Galois

But The Discrimination Is Justified Because...

In an earlier post I examined some of the reasons I find discrimination troubling.  In the last post I responded to some common arguments that try to claim that the prohibition on SSM is not a case of sex discrimination.  It is one thing to try to justify the discrimination, but those arguments merely ignored the discrimination and evaded the issue.  Today, I will examine some arguments that deal with the issue and try to justify the discrimination.  Such arguments will need to explain why the sex of the individual makes their situation so different as to justify the disparate treatment.  Note it is not enough to say that gender differences are real.  If that alone were enough, all gender discrimination as well as religious discrimination would be justified.  Any substantive argument needs to address why these differences justify disparate treatment when it comes to marriage. 

…a person cannot procreate with a person of the same sex.  This certainly does make the situation different.  It implies the germane characteristic, though, is the ability to impregnate or get impregnated by ones spouse.  As any SSM proponent will remind you, though, even those without the ability to impregnate their spouse are still allowed to marry if they are of the correct sex.  So in this case, gender is acting as an imperfect—although still fairly good—proxy for the germane characteristic. But as most SSM opponents will remind you, there are some reasons to avoid using the germane characteristic directly.  So we might consider the use of a proxy, and hence the discrimination, as justified in this circumstance.  That would only be the case, though, if we could justify the discrimination on the basis of the germane characteristic directly.  That is, if we believed the inability to procreate justified withholding the validation of a marriage, it might make sense to use gender as an imperfect but close proxy to achieve that goal.  Sure, some infertile couples may marry, but that is unavoidable because of practical considerations.  I don’t believe, however, the discrimination on the basis of the ability to procreate is justified in the first place.  Furthermore, I don’t believe that most who support the sex based discrimination would support it if applied to this supposedly germane characteristic directly.  That is I don’t see the infertile marrying as some detriment that should be avoided if possible.   I don’t see the situation of an infertile couple marrying as being so different so as to justify denying the marriage.  Yes, it’s different, but the many things that an infertile marriage has in common with a potentially fertile one—not least of which is the possibility of having children through other means-- are far more important than this difference.  In any case, unless one believes the direct discrimination is justified, there is no way the proxy discrimination can be justified and I suspect the motive behind the discrimination is not truly the desire to weed out infertile couples.

…a same-sex couple cannot provide both the mother and the father that a child needs.  From a policy perspective I have often wondered why it is better for the children to be raised by unmarried parents of the same sex than by married parents of the same sex.  Those are issues that I have dealt with elsewhere, and will continue to address elsewhere.  For now, I want to focus merely on the discrimination aspects.  I see this situation as having much in common with other circumstances in which parents marry.  They cannot provide everything for their child, but they try their best to provide as much as they can.  A person who wishes to marry someone of the same sex also generally seeks to provide for their children (present or future) as much as they can.  In choosing a spouse we tend to think of what sort of parent that person would be, but we don’t forbid others from marriage simply because the chosen spouse is not able to provide everything we would want a child to have. 

On a deeper level, though, there is something that troubles me even more about this argument.  Essentially it says that a man cannot be a mother and a woman cannot be a father.  Well certainly by definition that is true, but as we have noted we must move beyond the definition in matters of discrimination.  What is it exactly that we are saying a man can provide for a child that a woman cannot (or vice-versa)?  I have heard three answers to that question, although I am certainly receptive to more. 

The first answer I have heard is a general one that a child relates to his or her father differently than to a mother.  This highlights, however, an aspect of discrimination I find troubling.  We relate to all individuals differently.  A child relates to his or her parents as individuals and not as some representative of a larger group.  We should be focusing on the individual things a person can provide for his or her child, and not resort to generalities about how men or women behave.

The second answer I have heard is slightly more specific and points out that only a parent of the same gender can know first hand what it is like to be that gender and can relate to the unique difficulties of maturing with a particular physical body.  Of course children grow up with all sorts of experiences and difficulties.  Sometimes one parent can relate to it directly, sometimes both, and sometimes neither.  Even when parents don’t know first hand what the experience is like, though, they can often relate in some other way.  The situation of a parent not being able to relate directly to all of the experiences of a child is common to all parents, and I don’t believe it is justified to use this one particular instance to justify denying the child’s parents the ability to marry one another. 

The final answer I have heard is that only a parent of a certain gender can role model that gender.   This highlights what I think I find most troubling about the discrimination.  First of all, as in the last case, parents relate or don’t relate to the child on so many levels that to focus on this difference strikes me as wrong.  We don’t prohibit a marriage because it lacks a parent who can model other roles.  Only gender roles are so necessary so as to require this distinction.  Furthermore, what use is it to model a role unless a person is going to model it well?  I don’t know what "male" qualities a father is supposed to be model, but I have been told they include duty, honor, and responsibility. Aren’t these virtues a woman can model as well?  Just the idea that there are gender roles that need to be modeled I find troubling.  I don’t think our genders should determine our roles and that is precisely what I find most difficult about gender discrimination.  It implies there are such roles and I would rather leave it to the individual to determine what significance gender will play in his or her life decisions.

Some have hinted that I might be setting the standards too high for what is necessary to justify the discrimination. Well, then I have high standards.  I would note, though, that what passes for justification of the sex discrimination here, might be used to justify just about any instance of sex discrimination.  What if the government decided that a child not only needs a mother and a father, but a mother who stays home with the child?  It might seek to prohibit women from the workplace (for the sake of the children, of course).  What troubles me in that case is the same as what troubles me in this instance of sex discrimination.   The government should not let gender determine our roles.  We should allow the parent to decide what is best for her child, which in an individual case might involve the mother working (or the mother marrying a woman).  And we should recognize that the woman who wants to work to provide for her child or the woman who wants to marry her beloved spouse to protect her family is in essentially the same situation as the man who desires to do the same things.

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. 

What Bugs Me About Discrimination

I had thought about writing a post responding to various arguments about how prohibiting same-sex marriage is not really sex discrimination or it is but not the kind that matters.  And I do intend to write that post soon, but I realized that first I need to explain--at least to myself--what is the problem with discrimination.  I don't mean from a legal perspective, but rather just from my sense of justice what is it that bugs me about discrimination?  Why do certain acts of discrimination bother me, but other acts of discrimination not bother me?  I had to think about this for awhile and I thought I would share my thoughts.  What follows are not guidelines I use to determine whether a particular act of discrimination troubles me, but rather the results of looking at acts of discrimination which bother me and trying to put into words why that was so.

Discrimination occurs when one draws a distinction between two individuals and treats them differently accordingly.  This only bothers me if those two people were in essentially the same situation.  Of course, this is really one of the key issues of dispute when one person sees the discrimination as justified and another sees it as unjustified.  Were the situations essentially the same, or were they essentially different in such a way as to make the differing treatment appropriate?  Those that would justify the discrimination would claim that the differences between the two individuals makes their situations different.  I think that one of the things that upsets me most, therefore, about an instance of discrimination is its rejection of our common humanity.  In these cases I think the focus should be on our shared situations and not on our individual differences.  Not that those differences aren't real or important, but real differences in people does not always imply real differences in our situation.   

Another aspect of  discrimination that bothers me is that it places a focus on a group identity when the focus should be placed on the individual.  In some senses this is the opposite of the previous complaint.  Whereas that was a concern about letting individual differences blind us to common characteristics, here the complaint is about taking a common charateristic and letting that blind us to the individual differences.  Within any category we use to classify people there is a diversity generally greater than the diversity between the categories.  Why use some characterstic, however real, to classify the group when instead we should focus on the individual?  This is because of its rejection of our individuality.  An individual should be treated on his or her own merits, whenever possible, and not on the merits of some group in which he or she is classified. 

When it comes to governmental discrimination, there is another aspect that bothers me.   There are some decisions that I don't want the government making.  Sometimes this is out of practical concerns, and other times because I think part of our worth as individuals requires us to make certain decisions for ourselves.  The problem can occur either because in its classification the government had to make some decision about how to classify an individual.  It can also occur because of a governmental decision about the significance of a certain classification.   

All three aspects bother me when it comes to discrimination on the basis of gender.  Although men and women are different, we share a common humanity and share many of the same situations.  A woman who wants a certain job so she can earn money for her family is in essentially the same situation as a man who wants the same job so he can earn money for his family.  Furthermore, there is a great diversity among men and among women.  Men may tend to be stronger than women, but if strength is necessary for a certain job it is better to focus on the strength of the individual.  In a particular instance it may be the woman who is stronger than the man.  Finally, we get to what does it mean to be a man or what does it mean to be a woman.  What are there proper roles in life?  These our decisions that I would like us to be able to decide for ourselves individuallly and not imposed by the government. 

If We Treat People Equally, Then We Are Saying There Is No Individuality?

Amp, Lucia, Bean, and PDP always have excellent posts over at Alas, A Blog.  I can't link to all of them, and I assume much of my readership is already reading over there, so I generally don't bother highlighting any particular post there.  Today, though, I think Ampersand has a series of three posts that I cannot emphasize enough.  They are in response to this editorial by Rev. Keith Tolley in the New Hampshire Union Leader which rehashses some of the arguments about how SSM is an attack on children and motherhood. 

Ampersand points out what should be obvious.  Same-sex couples are already raising children and will continue to do so.  The question is whether those families should be allowed equal access to the protections marriage will provide.  Neither same-sex marriage nor same-sex parenting is saying that a child's father is irrelevant.  Finally, when we allow two different couples to both get married, that doesn't mean we think those couples are exactly identical and both will provide the exact same or even equally good child rearing environments.  We are just treating them equally before the law.   

[typos corrected]

Definitions

Definitions come up frequently and importantly in the debate over same-sex marriage.  Some argue that prohibiting same-sex marriage is not sex discrimination because marriage is by definition between a man and a woman.  It is the definition which excludes same-sex couples and not the government.  In the 1970's a number of courts used such arguments to reject suits seeking SSM.  While this type of curt dismissal has lost quite a bit of credibility in the courts today which note that such logic is circular, it is still quite powerful in the public at large.  In a Pew Forum Poll conducted last November, 16 percent of those opposed to SSM cited the definition of marriage as a man and a woman as their main reason for opposing SSM.  Only moral and/or religious concerns were cited more often.  I often hear how the Massachusetts Supreme Judicial Court had no right to redefine one of our basic social institutions.  When other courts struck down interracial marriage bans it was different because that didn't involve the definition of marriage.  Even the movement to have civil unions instead of SSM is popular with some because they believe it would treat gays equally without changing the definition of marriage.  (Another reason for the appeal of civil unions is that until they are actually passed into law nobody knows exactly what they entail.  So two people can claim to both support civil unions while having very different images of what such civil unions would look like.)  Many opponents of same-sex marriage like to refer to gay "marriage" because they claim such a thing does not actually exist by definition.  Finally I have heard a number of variations on the idea that defining marriage to include same-sex couples would be like defining the word "dog" to include "cat".   

My reaction to these arguments may be shaped by my career as a mathematician wherein definitions play a critical role.  In the May 2004 issue of American Mathematical Monthly, Barbara Edwards and Michael Ward had a fascinating article discussing mathematical definitions and their findings regarding student misuse of them.  Borrowing on the ideas of philosopher Richard Robinson and lexicographer Sidney Landau, they refer to two different categories of definitions: (internal citations omitted)

[Robinson] distinguishes between lexical and stipulative definitions.  Robinson writes "Lexical definition is that sort of word-thing definition in which we are explaining the actual way in which some actual word has been used by some actual person".  [Landau] discusses the same category, but uses the term extracted definitions in place of lexical definitions because they are "definitions that are based on examples of actual usage, definitions extracted from a body of evidence."....By contrast, Robinson uses stipulative definition to "mean the explicit and self-conscious setting up of the meaning-relation between some word and some object, the act of assigning an object to a name (or a name to an object)"....Thus, extracted definitions report usage, while stipulated definitions create usage, indeed create concepts by decree.

Mathematical definitions are generally of the stipulated variety.  When defining a mathematical term the mathematician will often have to make decisions about whether or not to include certain properties.  In doing so the goal is not to arrive at a certain Truth, but rather to figure out which definition will be most useful in communicating certain concepts.  Those concerns may lead one mathematician to define a term one way and another to define the same term differently.  In fact, the same mathematician might even use a term in different ways in different papers or talks provided it is clear to the audience how the term is being used in that context.  For example, you might hear at a talk, "When I say ring, I shall always mean that it contains a unit element," even though this property is often not necessary for something to be considered a ring.  Of course the mathematician must take into account how a term has been previously used (especially in the same subject area) and weigh the benefits of any changes against possible confusion the altered definition might cause when communicating, but the definitions are still imposed rather than extracted. 

 

It seems to me that when a definition is put into a statute it is also stipulative.  Thus in order to obtain a conviction for robbery, it is not sufficient to show that what a person did would generally be considered robbery by most people, but rather that each element of the crime as defined in the statute occurred.  (I was on a jury once where some of my fellow jurors did not like the fact that I wanted to satisfy myself that each element of the crime was proved.  They thought that once it was determined that the defendant had indeed mugged the victim, we should automatically return a guilty verdict on all counts with which he was charged.)  The legal codes are filled with statements like "As used in this title...`highway' includes streets and roads."  So when I hear the analogy about defining a "dog" to include a "cat", I am undisturbed.  The law does things like that all of the time.  Even the courts will sometimes interpret a word to mean something quite different than it's usual usage.  In 1985 the Supreme Court declared unanimously that Long Island was not legally an island.  (As far as I know no one brought forth a constitutional amendment to defend traditional islands.) 

Maggie Gallagher says that marriage was not and cannot be created merely by law.  Even if that were true, we are concerned with what the legal definition of marriage should be, and that most certainly is created by the law.  I don't believe, however, that her statement is even true.  Unlike dogs, cats, highways, roads, or islands, marriage cannot exist apart from the law.  People can have sex.  They can make promises to one another.  I wouldn't call something marriage, though, unless it's implications were recognized by others, that is unless it were recognized by law.  That, however, is simply a matter of how I would use the word marriage.  What is important here is the stipulative definition of marriage imposed by the law.  Note that even those that discuss the distinction between civil marriages and religious marriages--myself included--are only making a distinction as to which law applies, civil or religious.  In neither case is marriage separate from law. 

I am therefore completely unpersuaded by attempts to avoid certain issues by referring to the definition of marriage.  Same-sex marriage already exists under certain legal codes (like Massachusetts Law), and the debate is whether or not it should exist under other legal codes as well.  That being said, I am sympathetic to those that are reluctant to embrace same-sex marriage because to them that is not what marriage is.  Change is scary, and it will take some time for people to get used to the idea of two people of the same sex being married.  I will, however, continue to push for this change because I think it is unjust to do otherwise and I believe more and more people will come to accept it before too long.

 

None of the Above

I am always wary when somebody presents two alternatives and asks, "Which is it? A or B?"  Quite often there should be a choice "C", none of the above.  Thus I was a bit skeptical when Eve Tushnet offered only two alternatives for the effects of same-sex marriage.  She wrote:

Marriage is the place where society promotes childrearing, because marriage links children to mothers and fathers. SSM either makes marriage no longer the norm, the place where it is good to have kids; or it says that children do not need mothers and fathers at all, only unisex "parents."

Scandinavia has take option #1, allowing same-sex couples to wed but denying them the ability to adopt. Now Scandinavia has marriages where childrearing is actively discouraged.

America seems to be taking option #2. That's understandable--gender, with its emphasis on the constraints of the body, is unattractive to Americans, who tend to prefer unfettered intellects and wills. So for us, SSM will intentionally create legally fatherless and legally motherless children--and will say that these family forms are just as normative as families with father and mother.

In just three short paragraphs I found a great deal about which Eve and I disagree.  First there is the initial premise as to the reason society would like childrearing to occur within marriage (as opposed to outside of it).  Eve claims it is because marriage links the children to mothers and fathers.  I believe the more fundamental reason is it links the mother and father to each other.  One benefit of that is it makes it far more likely that each will then be linked to the child, but I don't think it is just as well for the child to have the parents unmarried or even living apart as long as each parent maintains a link to the child.  I think the relationship between the parents has an enormous impact on the child.  When people--myself included--argue that marriage is good for the health, wealth, and happiness of the spouses or that it promotes stability in the relationship between the spouses, we are not ignoring children.  The welfare of the adults as individuals and as a couple is itself tied tightly with the welfare of the child.

Next Eve claims that SSM must do one of two things.  The first option is that it makes marriage no longer the place where it is good to have kids.  Suppose SSM does not do this.  What follows?  Only the negation of that statement.  That is, SSM continues to present marriage as the place where it is good to have kids.  But Eve claims this implies that children do not need mothers and fathers.  That only follows from the former if we assume that every marriage provides everything children need.  But that is certainly not true.  When a couple gets married it does not necessarily follow that the child will thus be raised in some perfect sitaution.  This is not what we mean--at least not what I mean--when I claim  marriage is the place where it is good to have kids.  I mean, rather, that it is generally better for the kids to be raised within a marriage than outside of one.  Across married couples there will be a wide variety of living situations for children.  They are not all equally ideal.  So one can hold that a child would generally do better with a mother and a father and at the same time believe that a child, whether he has a mother and father or two unisex parents, would generally do better if those parents were married.  As an example, I think a child would generally do better with two parents of the same faith.  That does not mean that I think interfaith marriages should be illegal out of some concern about it misleading people about the importance of religion in child rearing.  In fact, if an interfaith couple is going to raise a child I still think it should be done within marriage.  Whatever one's views with regards to interfaith or same-sex marriages, the second alternative Eve provides does not follow from rejecting the first.

Then Eve seems to claim that allowing same-sex couples to wed but denying them the ability to adopt is taking option #1.  That is, such a path makes marriage no longer the place where it is good to have kids.  Once again that does not follow.  "All child rearing should be done in marriage" does not imply "all marriages should engage in child rearing".  Therefore saying some marriages should not engage in child rearing does not imply some child rearing should not be done in marriage.  Compare this with the situation in many US states where same-sex couples are allowed to raise children, but denied the ability to wed.  We have child rearing where marriage is actively discouraged.  That does deny marriage is the place where it is good to have kids.  It is the current situation that really separates marriage from child rearing.

Finally Eve claims that SSM will intentionally create legally fatherless and legally motherless children.  That is also false.  Some children are legally fatherless or legally motherless.  Some of these children have two parents of the same sex.  SSM does not create these families, it only offers them more protection.  Same-sex marriage would hold out marriage as the normative family form.  Prohibiting same-sex marriage, on the other hand,  would create a wide variety of legal structures for families and say that which structure is right for which family depends on the characteristics of the individuals in the family.