But It's Not Discrimination Because...

In the last post I tried to explain what it is about discrimination that bothers me.  I find the prohibition against SSM extremely unjust because of its discrimination on the basis of sex.  This is apart from the positive reasons I support SSM as simply good public policy, but the injustice I see drives me to push for SSM more than other mere policy changes I advocate.  It is also why I see this as more than a mere policy disagreement to be decided by the legislature.  In my next post (whenever that may be) I will look at arguments some make for why the discrimination is justified.  In this post, however, I want to deal with those arguments that seek to avoid justifying the discrimination by claiming it just isn't discrimination (as least not based on sex) because....   

...men and women are treated equally.  Neither is allowed to marry a person of the same sex.  The first problem with this argument is it focuses on the group and not the individual.  As an individual, a person is treated quite differently on the account of his or her sex.  Where a particular marriage would be validated (or license granted) if the person were male, that would not happen if the person were female.  Just because another individual finds himself facing a similar problem--the marriage would be accepted if only he were a woman--does not eliminate the discrimination.  It's a case of two wrongs don't make a right.  A person is being treated differently because of his or sex.  (Arguments that the sex of the person make the situation substantially different so as to justify the disparate treatment are valid attempts to justify the discrimination which I will deal with in a later post).  We have the government determining that it is acceptable for a man to marry a woman, but not for a woman to do the same thing.   We might consider other circumstances where this dual discrimination could arise.  In terms of marriage it already has when blacks were forbidden from marrying whites, but whites were also forbidden from marrying blacks.  One could imagine a hypothetical in which people were required to marry within their own religion.  Or perhaps for the sake of diversity people were required to marry a person of a different race.  Such acts would still be acts of discrimination.  Even in the gender scenario we can imagine a similar hypothetical.  Suppose we identified a certain job like nurse as a female job, and we identified a certain job like doctor as a male job.  We then said nobody is allowed to take a job of the opposite gender.  In fact, for a long time gender discrimination has been justified on just such grounds.  Men and women are being treated equally it was said, just differently.  It was argued that there are merely seperate but equal spheres for men and for women.  In all of these cases I still find the discrimination troubling unless it can be justified in some way.

...marriage is by definition a man and a woman.  I tried to explain in an earlier post why I find the argument by definition so unpersuasive.  The definition is a legal one and the government is responsible for the definition.  So if it is the definition that unjustly discriminates, then I find the government action in maintaining the definition to be unjust.  The definition of governor once included a gender requirement (as indicated by the "or" suffix and the separate word "governess" for a female) and yet that by no means justifies keeping women from becoming the governor of a state.  Pointing out that the discrimination occurs in the definition brings us no further towards discovering whether or not it is justified.

...it is not intended to keep women subservient.  Discrimination still troubles me even if the motives are pure.  Certainly I would object if somebody were trying to harm a group that I do not feel should be harmed, but even benign discrimination is still discrimination and may be unjust even if done with the best of intentions.  The examples I gave before about prohibiting interfaith marriage because it would be better for kids or requiring interracial marriage because it promotes diversity, would also be done with good intentions and not to keep any group down.  I still find them objectionable.  Much of the discrimination that has been done on the basis of sex was done to protect women and children, not to hurt them.  That may make them less objectionable, but they are objectionable nonetheless.  If discrimination were only problematic when it harms a group, this argument might make sense.  What I find most objectionable about discrimination, though, is not the harm it does to some group, but rather how it improperly treats an individual.   

...it's discrimination based on behavior not on sex.  The problem with this is that whether the behavior is acceptable depends on the sex of the individual actor.  So we are still left with an issue of discrimination based on sex.  A male and female could act the same way, say they both want to marry a woman, and yet one is allowed and the other is not.  If we did not allow women to become engineers that would only discriminate against women who tried to study engineering.  But that does not make it any less discrimination based on sex. 

...most women don't want to marry women.  As before with the engineering example, if most women did not wish to be engineers would that mean it wasn't discrimination?  Of course, not.  This highlights one of the things I found most troubling about discrimination, its focus on the group as opposed to the individual.  The same argument, by the way, was used by those who opposed allowing blacks into certain law schools. 

Later, I will look at arguments which do attempt to justify the discrimination because they feel the situaiton of a man wishing to marry anther man is substantially different than that of a woman wishing to marry another man.  I disagree with such argument, as I will explain, but unlike these, they at least attempt to justify the discrimination as opposed to denying it. 

Comments

[Lenka]

Thank you for the clear way you recently explained the different categories of definitions, and showing how those arguing against SSM on the basis of "definition of marriage" (i.e., "allowing SSM is like expanding the definition of 'dog' to include 'cat'...") are merely resorting to circular reasoning.

Your posts offer superb logical ammunition to use whenever we're faced with anti-SSM messages in daily life. I'm most grateful for that.

[Mark Miller]

Interesting post. As you know from the responses at Justin's blog, I still have feelings that the "marriage is by definition a man and a woman" argument has some merit but that does not change that your other points such as:
... "it is not intended to keep women subservient.
... "most women don't want to marry women.

are right on target. The 'most women don't want to marry women' is a personal favorite of mine. Please.

I guess where we differ if at all is that I can see where some SSM opponents see this as a significant change in civil marriage law. I myself do not see the justification for the change in the same way as I do for interracial relationships. That was a strict ban based on race and did not affect the change in the definition.

I also think the analogy between allowing people of different religions to marry but not allowing SSM does not work because ones' gender is public and ones' religion or lack thereof is none of the governments business (private). But having said that, the entire 'best interest of children' argument made by SSM opponents is hypocrisy because they are not willing to apply those same 'interests' when it comes to legally acknowledging opposite sex relationships.

All in all, I am still not sure that SSM is the inherent right that you do but I certainly disagree with most of the 'sky-is-falling' assertions that most opponents make and do feel that while it may not be an inherent right, it is a positive step for ALL people.

I still contend that for many SSM opponents, like Justin, the fear is not that SSM may destroy social culture and the institution or marriage et al - the fear is that SSM will not cause that harm - which would then lead to further normalization of homosexual behavior which is the biggest fear of all.

[Galois]

Mark,

What is the significance of "changing the definition"? If California had defined marriage to be the union of a man and a woman of the same race would that have made the discrimination any more justified? Would prohibiting women from becoming governor have been any more justified because the word governor was masculine? Will SSM prohibitions become less justified as it becomes more common elsewhere, and therefore the definition as it appears in dictionaries changes?

You say gender is public and religion is none of the government's business. We disagree there. Just as what religion I am should be none of the government's business, I also believe that how I define gender roles should be none of the government's business. I don't think gender roles should be a legitimate governmental concern.

I am not arguing here that SSM is an inherent right, but I am saying that it is not merely the case of SSM being good public policy (which I think it is). I also find the discrimination aspects deeply troubling. I am not arguing here that it is an instance of discrimination that is unconstitutional (although I believe that case was very well made in Goodridge). Basically you could say that in these posts I'm trying to explain why even if prohibiting SSM were constitutional, I do not think it should be. It is not just the sort of thing I don't think the government should be doing. It is the sort of thing I don't think the government should be able to do.

Thank you (and Lenka), by the way, for the kind comments.

[Mark Miller]

Wow - I get to play the part of Justin ... sort of.

I think that comparing the traditional and historical definition of marriage is not the same thing as if California were to define marriage by the same race. Now I am not saying that just because something has been historically defined that there is no basis to change it. Things change and the way in which familial relationships are defined and legally acknowledged is ever-changing.

I actually think from a consensus view that SSM prohibitions will become less justified as it becomes more common. As a result, the 'judicial tyranny against the will of the people' argument will erode away.

I am not saying that gender roles should have any basis for law/public policy. I guess I'm still struggling with the fact that 'marriage' has always referred to the union of a man and a woman (regardless of their respective roles). There are ways of legally acknowledging same sex relationships without changing that.

I am not arguing that allowing SSM will affect society in any of the ways Kurtz or Justin has said. I've spent enough time on this site, Justin's and marriagedebate.com as proof of that.

"Basically you could say that in these posts I'm trying to explain why even if prohibiting SSM were constitutional, I do not think it should be."
----- I am in complete agreement here and that is my agenda also.

[Galois]

You do seem to be saying, however, that the fact that the discrimination has historical and traditonal roots could at least play a part in justifying the discrimination. You say that you would see the definition by race as being different (becuase of the lack of historical or traditional basis), but you don't explain why that should make a difference. Perhaps it just does, but I am not able to relate to that. You also did not answer whether in the case of a governor (historically and traditionally defined as a male) that should justify the discrimination. Perhaps you would argue that we should have allowed women to be governesses with the same executive powers, but we could then have avoided changing the definition of governor.

[Mark Miller]

The difference with regard to race was there never was a definition of marriage that referred to race. It was a social issue based on the times in the same way that religion and even social class affected whom one could marry long ago.

The interracial law was a strict ban based on race and, in my view, did not affect the definition of marriage.

I am a supporter of SSM (just ask Justin, Ben and Mike S.) but I still think there is a significant difference between race and gender with regard to discrimination in marriage law. I'll grant that some of the logic is the same but overall, I don't think you can use one to clearly support the other. (I feel the same about those who attempt analogize polygamy and SSM).

With regard to governor, I see your point but you can also apply that to other terms such as King and Queen. Should those terms be interchangeable ? The same can also be said about referring to G-d as He. Is that discrimination or sexist ? It is based on the Bible, of course but that doesn't stop many many people from purchasing the politically correct Bible which uses "He/She" as a substitute.

I guess I understand what Ben once said in that there are some universal truths and the law should reflect those. Now, when he wrote that I responded that I agree that there are but was not sure that then definition of marriage should fall into that category. And that really is my point.

You must already know that I support legal acknowledgment for same sex couples and certainly see the value of SSM - because it is the right thing to do.

Yet a part of me can see where SSM is truly a new invention in marriage law - different from the interracial ban and even different than polygamy.

[Galois]

Mark,

I know you support SSM. I'm just trying to focus on why you find the definition so relevant to judging the discrimination. I have never tried to claim that interracial marriage prohibitions were wrong therefore same-sex marriage prohibitions are wrong. The two are different. I generally bring up the interracial analogy as one example where many can (now) see that just because each group can marry and there are parallel restrictions, that does not mean there is no discrimination and no analysis is necessary. Perhaps discrimination based on race is unjustified and discrimination based on gender is justified in this context. One does not imply the other, but I don't believe the discrimination doesn't exist because of parallel restrictions.

So I ask again, how is the definition relevant? If you have explained this, I missed it. You bring up the issue of "king" and "queen". Would you say a country which only allowed kings was not discriminating because a king was by definition male? Or what about the UK where there can be a queen, but the rules regarding when a queen takes power are different? Is that not discrimination, since the discrimination occurs by definition? Certainly I would say the discrimination were not nearly as troubling (perhaps not troubling at all) if king and queen were just two different words (gender determined) for the same position of power. One could go back to the governor analogy and say it would not be so bad if women were allowed to be governesses with all the same duties and powers of office as a governor. In the present context, that would relate to a civil union exactly identical to civil marriage with only the words used as different. I have some other problems with such an idea, but I agree that it would certainly not be discrimination in the same sense, and is far less troubling than using the defintion to deny even an "equivalent" of civil marriage. This is our current situation and if it can be justified by definitions then so could not allowing women to the highest executive office in a state have been justified. I don't believe either is, because the definition is stipulative and the decision to use a discriminatory defintion does not exculpate or even mitigate the discrimination.

As for using "he" to refer to God, that is an individual choice. It's not discrimination because it is not treating two individuals differently. It's not even treating an individual, it is just a reference to the Holy One. Personally I tend to avoid pronouns in referring to God for a number of reasons, but I'm afraid I really don't understand your point here. What does this have to do with using definitions to justifiy discrimination?

Finally you mention some universal truths that the law should reflect. What are those truths?

[Mark Miller]

Professor Rosenberg,

I guess where we differ is that I do not feel that SSM is a simple case of discrimination. To me, there is no more a ban on same sex marriage as there is for polygamous or incestuous marriages. I also feel that it would be a positive step for the movement to acknowledge that SSM does change the current definition of marriage - in even more of a way that does incest.

I am not saying that allowing SSM is as harmful as allowing incest or polygamy - I have certainly made that clear in my responses to SSM opponents who attempt to analogize those. But it is still a significant change, not only in the law but in society and culture.

I'll agree with many of the arguments that support the change as a positive one - such as those made by Jonathan Rauch.

But I don't accept that this issue is in any way analogous to allowing blacks to use the drinking fountains as whites.

"So I ask again, how is the definition relevant?"
—-- I'm not saying that it is relevant to the extent that the current definition means that SSM opponents have won the battle. I'm saying that current definition does refer to opposite sex people in the legal sense. Just as birth certificates have been modified that accommodate same sex parents, this is a change in how 'parents' has been previously defined. I guess I don't see the problem with acknowledging that allowing same sex persons to marry is a change in the legal definition.

I agree that the God analogy does not work. But King and Queen are the same as 'governor'. Obviously, all positions of leadership many years ago referred to the male gender. That has obviously changed because, as yo said, the definitions of those terms were stipulative. A proper analogy would be a term that refers to an event or group of people and not just a single person but I cannot presently think of one.

I also agree with your comments about civil unions. As you do, I see some problems with them as the 'separate but equal' status.

"Finally you mention some universal truths that the law should reflect. What are those truths?"
—-- An example could be procreation. I'm not saying that the procreative argument against SSM is a good one, it isn't. But it does take both make and female 'parts' to create children. My point was that Ben believes that 'marriage is the union of a man and woman' as a universal truth. I certainly don't agree with him all the time but that belief doesn't strike me in the same way that marriage is the union of one man and one woman *of the same race*' which reeks of bigotry. As I said, I'm not sure I agree with him about that but I'll concede that I'm not sure that I don't.

Finally, to me, this issue is about drawing lines with regard to freedom/liberty versus the role of the state in regulating personal behavior. I'm not a libertarian on this issue. I feel there are some private behaviors that the government has an interest in discouraging - as in polygamy, incest. But I do not feel that homosexual behavior falls into that category.

Having said that, I still feel it is a legitimate view to acknowledge that SSM does move the line from its current place - in a way much different than allowing interracial marriage. As you said, the main issue to me (and you) is why 'should' same sex relationships be legally acknowledged.

[Galois]

I guess where we differ is that I do not feel that SSM is a simple case of discrimination.

I never said it was simple, but it is a case of discrimination. We must examine whether that discrimination is justified (and we may reach different conclusions on that point). That the discrimination is embedded in the defintion, though, does not make it any less discriminatory. Do you agree with that?

To me, there is no more a ban on same sex marriage as there is for polygamous or incestuous marriages.

I agree. There is a ban on polygamous and incestuous marriages. They both discriminate on the basis of an existing familial relationship. The former on the basis of an existing marriage, the latter on some other relationship. SSM prohibitions discriminate on the basis of sex.

I also feel that it would be a positive step for the movement to acknowledge that SSM does change the current definition of marriage - in even more of a way that does incest.

I acknowledge that. In fact, that is precisely what I am arguing, that the current definition of marriage is discrimanatory. That discriminatoin is unjustified, and the defintion should change.

I'm saying that current definition does refer to opposite sex people in the legal sense.

Again, I agree. That is what I seek to change. I thought you said, though, that because that is the current definition, the discrimination is more justified. I don't see why you believe that. If you are not saying, that, I apologize and it seems we have no disagreement.

Obviously, all positions of leadership many years ago referred to the male gender.

Yes, just as the definition of marriage currently refers to gender. Did those definitions in any way help to justify the discrimination?

A proper analogy would be a term that refers to an event or group of people and not just a single person but I cannot presently think of one.

How about a "Board of Aldermen" which by definition is a group of men? Is a city not discriminating when it doesn't allow women to run for political office because, by definition, it must be a group of men.

An example could be procreation.

I'm not asking for anyone to deny the truth that it takes a man and a woman to procreate--of course it takes more than that, but at a minimum sure. And if you believed that marriage should when practical be restricted to couples who will procreate, it might make sense to use gender as a proxy for the ability. As I point out in the next post, though, one cannot justify the discrimination by pointing out it is a proxy for discrimination which one would not justify directly.

I certainly don't agree with him all the time but that belief doesn't strike me in the same way that marriage is the union of one man and one woman *of the same race*' which reeks of bigotry.

No it doesn't to me either. Ill motives can certainly make discrimination less justified, but as I point out if the motives were pure such discrimination would still not be justified.

Having said that, I still feel it is a legitimate view to acknowledge that SSM does move the line from its current place - in a way much different than allowing interracial marriage.

Sure but then we must focus on how they are different and how those differences are relevant in justifying the discimination. You point out the definition as a difference, but you still have not explained how that is different, merely that you want it acknowledged that the definition is being changed. Consider it acknowledged, but I still ask, why does that matter?

[Mark Miller]

That the discrimination is embedded in the definition, though, does not make it any less discriminatory. Do you agree with that?
—----- Yes, I do. My point is that changing the definition of the term 'marriage' is a more significant change in terms of cultural and social tradition than the example of 'Board of Aldermen'. I think that should be acknowledged by SSM advocates in some way such as "we know this is a significant legal and social change but we think it is justified and here is why ...."

There is a ban on polygamous and incestuous marriages. They both discriminate on the basis of an existing familial relationship. The former on the basis of an existing marriage, the latter on some other relationship. SSM prohibitions discriminate on the basis of sex.
—---- I agree completely.

Again, I agree. That is what I seek to change. I thought you said, though, that because that is the current definition, the discrimination is more justified. I don't see why you believe that. If you are not saying, that, I apologize and it seems we have no disagreement.
—--- I didn't say or mean to say that makes it more justified - but it does complicate it. Marriage is not a recent man-made term or institution. It has a deep history in both the theological and secular realm as being opposite sex. And there was reason for that - one of those reasons is that homosexuality was deemed an unacceptable behavior and another reason may have had to do with procreation. Because of more recent inventions such as birth control and the increase in acceptance of homosexuality, the introduction of SSM has become a possibility. Do you agree with this ?

Sure but then we must focus on how they are different and how those differences are relevant in justifying the discrimination. You point out the definition as a difference, but you still have not explained how that is different, merely that you want it acknowledged that the definition is being changed. Consider it acknowledged, but I still ask, why does that matter?
—---- I still believe that the difference is that the overturn of the interracial marriage ban did not result in changing the definition of marriage while SSM would. I've never said that the current definition should not be changed. I can see where there is value and justification to do it. But I do believe it does matter for the reason I state above, because changing the definition of 'marriage' is a very significant change and almost unheard of in any country or culture in the world. That doesn't mean it isn't justified or without merit but the change would go against history, theology and tradition like no other change - including Roe v Wade, at least in my lifetime. I guess it is those that have argued that "it is no big deal and just a basic human rights issue" that causes me to cringe. I happen to agree with you that the effect of the change will not have the harm that most opponents assert. But that doesn't mean that I agree that changing the definition of 'marriage' is so ... clearly obvious.

I'm becoming more and more confused as to whether we agree or disagree.

[Galois]

It seems for the most part we agree. You agree with the main points I was making and I agree with your main points. Our area of disagreement seems to be pretty minor, but for the sake of thoroughness let me highlight them.

My point is that changing the definition of the term 'marriage' is a more significant change in terms of cultural and social tradition than the example of 'Board of Aldermen'.

I'm not so sure that it is a more significant change in terms of cultural and social tradition than women holding poltical office. (Note that we still have never had a female president or vice-president in this country). But perhaps it is. Gender roles have been most connected with family roles. So any change there I think might strike a harder nerve. But if the "Board of Alderman" was a change in defintion that you find not so significant, then it seems you are judging the significance of the change apart from what the defintions are.

. Because of more recent inventions such as birth control and the increase in acceptance of homosexuality, the introduction of SSM has become a possibility. Do you agree with this?

Not quite. While birth control may have had something to do with it, I do not think that was necessary in order for SSM to be a possibility. The necessary conditions were (1) an increase in acceptance of homosexuality and (2) egalitarian marraige--that is a marriage without a legal distinction between the rights and responsibilities of husband and wife.

But that doesn't mean that I agree that changing the definition of 'marriage' is so ... clearly obvious.

I never said it was obvious, but nor were other civil rights issues obvious.

[Mark Miller]

"I'm not so sure that it is a more significant change in terms of cultural and social tradition than women holding political office. (Note that we still have never had a female president or vice-president in this country)."

I think it is much more significant than that. The fact that we still have not had a female president or vice-president is not due to a legal ban. What I do not know is when females were allowed to hold political office. But I'll acknowledge that I am judging the significance of the change apart from what the definitions are.

"While birth control may have had something to do with it, I do not think that was necessary in order for SSM to be a possibility. The necessary conditions were (1) an increase in acceptance of homosexuality and (2) egalitarian marriage--that is a marriage without a legal distinction between the rights and responsibilities of husband and wife."

I agree with that. I should have used the word "contributing" rather than "necessary" - that'd be more applicable.

"I never said it was obvious, but nor were other civil rights issues obvious."

True - I guess where we differ is that I feel SSM is less obvious than say, interracial marriage. But that doesn't make it less justified or without merit. Maybe I can refer to it as a 'tougher sell' than some of the other civil rights issues - but still a legitimate one.

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[thegoodgirl]

Wow, nice article! The more I read the more i see how moral values can be injected into denial ideology.

Through the use of semantics every amendment can be questioned and manipulated so we can pretty much define the Costitution to suit a particular purpose.