Katz has responded (sort of) to my last post on sex and sexual orientation discrimination. He seems to feel I was too focused on the word "consistency" and thus I missed his other points. I thought I had responded to his main point that prohibiting same-sex marriage cannot be both sex discrimination and sexual orientation discrimination. Either this was not his main point or I missed something, but to be sure I'm not missing anything this time I will respond to him carefully a few sentences at a time.
It's a frustrating feeling: I think if I'd used some other word than "consistent," perhaps those who've reacted to my "Whatever Works" post might have addressed the points other than the word. Perhaps the notion of consistency is particularly powerful among supporters of same-sex marriage, or something. (Whether their reaction is an indication of insecurity, I leave to readers to decide; I'm not sure either way.)
This is a rather juvenile and disgusting attack. He accuses same-sex marriage proponents of being inconsistent, of doing "whatever works" to achieve its goals, of not standing on any principles, in short of being intellectually dishonest. When I deny those serious accusations I'm told that my powerful reaction might be a sign of insecurity about whether I'm consistent. Katz isn't sure either way (but we will see he continues to level the charges in this post). The initial accusations were insulting. The inference that since I was insulted the accusations are probably true is just stupid.
Look, if the opposite-sex definition of marriage discriminates on the basis of sex, then there is no discrimination on the basis of orientation. Neither homosexuals nor heterosexuals can marry people of the same sex. The tenuous bridge between the two points from Yale Prof. Jack Balkin that I addressed is evident in his phrasing of the sex discrimination case:
It violates sex equality to tell a man he cannot marry another man when a woman could do so. It violates sex equality to tell a woman she cannot marry another woman when a man could do so.
Perhaps the distinction can be best phrased thus: the sex discrimination case is a matter of "can"; the orientation discrimination case is a matter of "want." If we apply the "can" of sex discrimination to orientation discrimination, we find that there is no legal discrimination. The "cannot" is universal.
It follows from this that the discrimination on the basis of sexual orientation is not done in the same manner as the discrimination on the basis of sex. Katz's point is also well taken that the marriage statutes are facially neutral with respects to one's innate orientation. It does not follow that there is no discrimination on the basis of orientation as I pointed out in my last post. Let us proceed to how Katz addresses these points. First I had noted that one could make a disparate impact claim. Katz notes:
It may be the case that a legal regime that has made it a dramatic matter of law to peer into the hearts of men can trace back to discrimination from the outcome of a particular policy. Taking up that argument would require entry into another area of likely disagreement, however. Suffice, for now, to say that I reject disparate impact claims, at least when there isn't other information than the outcome to indicate invidious discrimination, and that I'm skeptical that homosexuals wishing to enter into opposite-sex marriages would have any greater difficulty finding spouses than do heterosexuals.
I too am quite wary of disparate impact claims which is why I would not make one here. That being said it is an argument that courts have at times accepted and one could make it without being inconsistent in the least. Katz has every right to disagree with such arguments in general, but just because you disagree with somebody's arguments does not make their arguments any less consistent. Still, since this is not an area of disagreement over the matter at hand let us proceed to his response to my own viewpoint.
Consequently, Rosenberg takes another tack that, oddly, winds up requiring him to posit a scenario in which discrimination is desirable so that the two forms of discrimination can be made one and the same in a forced overlap:
I posited a scenario in which discrimination is desirable? Desirable to whom? I did note that all sexual orientation discrimination is a specific form of sex discrimination but I never said this was desirable. I honestly have no idea what Katz is talking about here. He quotes me as saying one cannot define sexual orientation without reference to sex and responds..
The obvious response to the first part of this quotation is that one can define orientation without reference to a particular person's sex: heterosexuals are attracted to people of the opposite sex, and homosexuals are attracted to people of the same sex. Although I can't come up with a circumstance in which one would know the gender of a person's significant other but not of the person him- or herself, I will venture to suggest that if one cannot classify the person, one cannot discriminate against him or her on the basis of that classification. The only way to discriminate is to know that the person is homosexual — meaning attracted to a person of the opposite [sic] sex, whichever that might be.
But this definition does make reference to one's sex. For who is of the opposite sex and who is of the same sex depends on entirely on one's own sex. I do agree with Katz that if one cannot classify the person one cannot discriminate against him or her on the basis of that classification. Since one must classify on the basis of sex to classify on the basis of orientation, all sexual orientation discrimination must classify on the basis of sex (and thus I believe should be subject to heightened scrutiny).
At best, what Rosenberg has proven is that a policy beginning with the goal of discriminating on the basis of orientation must discriminate on the basis of sex, as well. That is not the direction in which this argument proceeds, however — unless we follow the path of those uncharitable enough to assume bigotry before the first round of debate has even begun.
Unlike Mr. Katz who has made uncharitable assumptions on my motives throughout, I do not bother trying to attribute motives. Either a policy discriminates or it does not discriminate. What I have proven is that if a policy discriminates on the basis of orientation it must discriminate on the basis of sex. It matters not whether the discrimination was itself the goal of the policy, which seems very unlikely, or whether there was some other goal with discrimination being used to achieve that goal, which is far more likely to be the case. Either way one discriminates. Katz is making the incorrect assumption that a policy of discrimination necessarily means the authors or advocates of that policy are bigots. If that were the case supporters of affirmative action would be bigots, in fact we would all be bigots.
Once again, and with all due respect to Rosenberg et alia, the objective appears to be to fit argumentation to a predetermined conclusion. That's fine, as far as it goes; consistency is only one consideration in ideology, after all. But it strikes me as odd that people engaged in that approach would be surprised and offended that others find their arguments to lack the aggregate import that would exist were they following reason rather than preference to their conclusions.
With all due respect? How could I be insulted by that? No, really, how can I be insulted by that? According to Katz's "reasoning", if I'm insulted that's just a sign that the accusation is true. I believe I am following reason and I thought I had explained my reasoning quite well. Nowhere do I see any actual disagreement with my arguments other than an unsupported belief that my arguments necessarily assign motives of bigotry. Instead I am told that they "must" be after the fact arguments for a predrawn conclusion and that I'm inconsistent. Again Katz provides absolutely no basis for either belief. And he finds it odd that I would be offended by these accusations? Throughout this blog I have explained why I find the prohibition of same-sex marriage to be unjust sex discrimination. In particular one could read through my SSM and Sex Discrimination category. I tried to explain my views in detail in a series of three posts beginning with "What Bugs Me About Discrimination". I am all for hearing disagreement with my views, but it is quite shocking to be told those aren't really my views but rather after the fact justifications for predrawn conclusions. I am curious. If that is the case, then why do I actually support same-sex marriage? And why must I hide those reasons and offer these arguments instead? I'm open to any guesses from anyone.
So what do we have? Katz made an accusation. I denied it. He takes the denial to be a sign that the accusation was true. He then repeats the accusation and finds it odd that one would be offended by the accusation since it is, after all, true. Unbelievable.