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July 27, 2004



On the question of group identity, just what is sexual orientation? What is homosexuality? I hear about a distinction between gay or lesbian identity and sexual preference and behavior.

Sometimes SSM advocates talk about discrimiantion against homosexuality, or against gay men and lesbians, or they talk about heterosexism.

And then some leap to charges of bigotry and such when they meet disagreement. And still I know of self-identified homosexual adults who oppose, in principle, SSM and other things that activists push -- such as hatecrime laws.

I realize this is a ramble but I wanted to add to the notion of discrimination. There is a strong anti-religious feeling to much of the most vociferous SSM advocacey these days.


Chairm: In my opinion, when a language has a word for a collection of people with a particular trait, they can be considered a group. This makes gays a group. Blondes are also a group. The disabled are also a group.

If people make unjust generalizations about, or limit their rights of a person based on their group memberships, that is discrimination (In the sense the word is used in this article.)

If someone is intolerant of members of that group, they are a bigot.

I realize this is a ramble but I wanted to add to the notion of discrimination. There is a strong anti-religious feeling to much of the most vociferous SSM advocacey these days. seems to pick up the most vociferous voices of SSM advocacy in the blogosphere. I have not read any strongly anti-religous posts by advocates of same sex marriage at places like

Jon Rowe, Esq.

"There is a strong anti-religious feeling to much of the most vociferous SSM advocacey these days."

Hmmm? I wonder why?


I don't agree that language determines when a people form a group. For purposes of discrimination I believe it occurs when the person or entity doing the discrimination classifies a person in some way.

I also hear people talk about discrimination against gays or against homosexuality. What they means depends on context. In the context of the debate over same-sex marriage they might mean one who wishes to marry a person of the same sex. (This is generally what I mean in this context). But this is really just a specific case of sex discrimination. That is, it classifies people based on their sex and treats them differently accordingly. Suppose a law forbade women from becoming engineers. Would we say the law discriminates on the basis of sex, or would we say it discriminates against women who want to be engineers? Both statements are true, and the latter is more specific, but I think the former gets to the heart of the matter better. Just because we have a word for the people who wish to marry someone of the same sex, and we don't have a word for women who wish to be engineers, it doesn't change how troubling I find the discrimination.

Chairm notices one of the problems I alluded to in identifying people as a group. It is presumed that a gay person would support SSM or hate crimes laws. I would guess that a vast majority do support the former, and a smaller majority support the latter, but it is better to look at the individual instead of lumping them into some group.

Hate crimes laws are an interesting topic. I hope to discuss that at some point here, but first I want to finish a few posts concerning discrimination. Finally, I fiercely oppose discrimination on the basis of religious faith. In fact, I use that as an example of how the characteristic can be quite real and extremely important, and yet I still oppose discrimination on that basis. For example, I believe children do better when their parents have similar religious backgrounds, and yet I would not want the government to prohibit interfaith marriages. So when I say I oppose sex discrimination, it is not because I think sex differences are imagined or unimportant, but rather it is because in most contexts including this one I would not want the government discriminating on that basis.


"There is a strong anti-religious feeling to much of the most vociferous SSM advocacey these days."

I disagree. What you see is anti-Fundamentalist Christian feeling among many SSM advocates, not anti-religious. I am a church-going life-long Christian and I know many SSM advocates that are Jewish, Buddhist, Christian and Muslim. Its not a _anti-religious_ feeling, but rather directed towards groups (such as Family Research Council, Concerned Women, etc) that use their conservative Christian theology to bash gay men and women (sinful, perverts, pedophiles, destroyers of society).

Ben Bateman

Gabriel, you're missing a very important point about discrimination: Information is expensive. It's easy to say in the abstract that we should consider each person individually and not as part of a group. But that doesn't work in many situations as a practical matter, because judging based on group membership is often the only efficient way to get a job done.

If you're in charge of hiring for a business, is it wrong for you to automatically reject felons? There may well be some wonderful felons out there who you might discover if you spent lots of time interviewing them all. But should someone else be able to dictate to you and your employer how much of your time (and your employer's money) you have to spend interviewing them in the name of non-discrimination?

Economists usually put this point more eloquently, but basically each individual or business must determine how much information to acquire before making a decision and taking action. More information equals more expense. At some point, the expense of gathering more information outweighs the benefit. It's impossible to know a priori where that balance point is. And the decision is almost always best made by those people who 1) have experience in the field, and 2) have a financial interest in getting the right answer.

This is why most conservatives, myself included, do not agree with the basic emotional impulse to treat all discrimination as morally evil until proven to be absolutely necessary. It’s the sort of cost-ignorant goo-goo liberal thinking that can’t survive in the real world.

For example, it’s fine to say in theory that the military shouldn’t discriminate between men and women. It feels good to say that. But take the very practical problem of how to design a submarine that will be staffed by both sexes. The sub must be substantially larger to allow separate facilities for sleeping, bathing, etc. That makes the entire sub much larger, which makes it much slower and more vulnerable in a fight. And fighting is what these submarines are designed to do. So the eventual real cost of mandating mixed-sex submarines will be 1) more expensive subs, meaning fewer of them, 2) more submarines sunk, and 3) more sailors killed in those sunk subs, all in the service of a warm and fuzzy moral principle about equality between the sexes.

It isn’t enough to say, “OK, we will consider costs if you lay them out in extreme detail beyond any shadow of a doubt,” which is basically what the Goodridge court demanded. If you start with a theory of discrimination that isn’t deeply concerned about the potential costs of a top-down non-discrimination rule---which I think you just did---then to me you’re already talking nonsense. The people in the field know much more than you or me about how much information they should collect and how expensive non-discrimination rules are. If you want to impose a non-discrimination rule, explain why you should chose the bases on which people can make decisions, rather than those who know more than you and who have a much larger stake in the real-world outcome.

This is directly relevant to SSM in the infertility argument: It's easy to say that a SS couple cannot reproduce. That's cheap information. It’s very reliable. There are infertile OS couples who maybe should be excluded. But gathering the information to identify them is very expensive, and the benefit of gathering it is rather small because there are so few of them. The infertility argument ignores those expenses and treats government as if it has unlimited money with which to become omniscient. But real legislatures, unlike courts, have to weigh costs and benefits just like businesses. Everything is easy when you ignore cost, but legislatures have to live in the real world.

On a broader view, carping about sex discrimination in SSM only works if you first throw out reproduction as relevant to marriage. I assume that’s where you’re going with your posts. If your plan is to hold any justification for discrimination to an impossibly high standard, then be aware that most conservatives won’t agree with that method. I don’t agree that discrimination is guilty until proven innocent by overwhelming evidence. Only people who aren’t concerned with the practical costs of their ideas can believe something as silly as that.

Jon Rowe, Esq.

As I have written on JK's blog, Gabe's rationale -- gender discrimination -- may very be the strongest legal basis for striking down laws against SSM, and especially distinguishing SSM from all of the other "parade of horribles" that might follow.

When attemtping to analogize the ban on SSM to Loving (misceg.), much is said about the differences between the two. But the Civil Rights Act of '64 has as protected categories both "race" and "gender," but not, "number" (polygamy), "species" (bestialtiy), "consanguinity" (incest), etc. And more importantly, the 14th Amendment applies heightened scrutiny to both race and gender based categorizations, but not any of the other.

In fact in the Hawaii case striking down the ban on SSM, they explicitly said it was a form of gender discrimination.



I did not miss that point about discrimination. Here I am focusing on the harms of discrimination, that is what is it that bugs me about discrimination. The focus on the group over the individual is one of the things that bugs me. Sometimes that is justified by practical concerns, like as you said it might be too difficult or costly or time consuming to focus on the individual in a particular case. In that case the discrimination might be justified because the harm done in focusing on the group is outweighed by avoiding the costs of focusing on the indiviudal. Before I can examine whether discrimination is justified, I need to know first, though, what is so wrong with discrimination in the first place. In a subsequent post I will examine the possible justifications for the discrimination in the case of SSM.

In your post you have attempted to justify sex-segregated submarines. And you did a pretty good job. You have also attempted to justify the sex discrimination in prohibiting SSM. I will deal with those arugments later. I will say, now, that you don't need to say that reproduction is irrelvant to marriage in order to analyze the sex discrimination. You just need to examine whether the inability to reproduce makes the situation so different so as to justify the disparate treatment.

I do not ignore costs, and will gladly consider any alleged costs of not discriminating. I do not think all discrimination is unjustified. I do tend to be a little skeptical of arguments intended to justify sex-based discrimination, but as with your submarine example I do think it can be justified sometimes. I do think, however, the costs must be examined.

Jon Rowe, Esq.


All of the talk of cost-benefits and especially phrases like, "The people in the field know much more than you or me about how much information they should collect and how expensive non-discrimination rules are..." are good rationales as to why private firms (with rare exception) ought to be allowed to discriminate on ANY basis (good reason, bad reason, or no reason at all), including race, gender, religion, etc.

And that would allow private entities like the Catholic Church to discriminate against SSM. The problem with the ban on SSM is that it is A governmental ban, and all of that cost-benefit talk doesn't work on government monopolies. Government is free to impose discriminatory or any kind of rules that flunk the cost-benefit test and then pass the costs onto the tax-payer, (whereas in the private sector, the firms have to eat the costs).

Also, if we don't like a private firm that discriminates, we are free to not to business with them. We are not free to boycott government. And if gays, women, blacks, Catholics, are all tax-paying citizens, then government has an a priori moral obligation to treat them all alike as best as it can (this is the moral basis for equal protection). Or if it doesn't, then come forth with a damn good reason as to why it need to so do.

I am just a freshmen at a community college but, I agree with all of you. I am a lesbian and someday I hope to get married and have children. To say that I can't marry someone just because she's not a man is so closed minded and sexist it makes my skin crawl. I hope that the people who choose not see what thier doing to the world, get a servere wake up call. How can they bann LOVE?

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