Galois

The Fundamental Right to Vote

(Updated 2/12/05)

I want to return to the argument made by some that if we say the fundamental right to marry can be used to strike down prohibitions against same-sex marriage, it must therefore be able to be used to strike down prohibitions against polygamy.  I simply don't see how this is supposed to follow.  The argument for same-sex marriage is not that there can be no regulations with regards to marriage.  On the contrary if the state is going to recognize marriage in any way there must be laws deciding how we determine whether two people are married and what are the consequences of that determination.  Same-sex marriage proponents merely claim that in a free society the choice of whom one marries must reside with the individual and not the state absent some compelling governmental interest in restricting that choice.   This seems clear to me, but  not to others so perhaps I am not understanding  them or they are not understanding me, or both.  To try to make myself better understood I thought an analogy might be helpful.

I believe we have a fundamental right to vote.  This does not mean I believe that the state should not be able to regulate voting.  On the contrary it must if the vote is to be recognized in any way.  Rather I believe that in order for the right to vote to be meaningful it must not only include the right to cast a ballot for somebody but it must also necessarily include the right to cast a ballot for the candidate of our choice.  That is in a free society the choice of whom one votes for must reside with the individual and not the state absent some compelling governmental interest.  Because of my belief in this right to vote I would be suspect of even those restrictions which placed parallel burdens on different segments of the society.  For example, suppose the law required that there be one senator of each sex from each state.  This law burdens men and women equally.  Neither group is advantaged or disadvantaged by it.  Nobody is excluded from running for Senator nor is anybody excluded from voting.  There may even be a legitimate goal advanced by this proposal.  It would result in a Senate that, in terms of gender, more accurately reflected the population.  Every state would have a Senator of each gender and the two would "complement" one another, and so forth.  I believe such a policy, though, would violate our fundamental right to vote for the candidate of our choice.

Does it follow that the legislature must permit anybody who so chooses to vote for as many candidates as they would like?  Such a system, as in approval voting, could work.  In fact I think it would be a better system than we currently have. But I do not think there is a right to such a voting system.  The right to vote cannot include the right for us to each decide which voting system we would like to use.  Every person has the right to vote (barring a compelling reason to disenfranchise), but not the right to vote for as many candidates as one would like.  In a similar manner while the state would need a good cause to deny someone the opportunity to run for office, it is certainly reasonable to restrict the person to one office at a time.      

UPDATE:  In introducing this post at MarriageDebate.com, Eve Tushnet writes:

Not sure how far this gets you given that a) a huge part of the SSM debate is over whether sex difference is relevant to marriage in a way that it is not relevant to being a senator, and b) a lot of the "ssm-->polygamy" claims rest on particular rationales for ssm that are different from the anti-sex-discrimination rationale that Gabriel finds most persuasive.

Let me address Eve's second point first.  Although it is true that I find the sex discrimination argument the most persuasive, this post was based on a different argument, namely the fundamental right to marry. When in my analogy I compared it to a situation in voting where lines were drawn based on sex I did so to try to parallel to some extent the situation we face in marriage.   In doing so, though, perhaps I obscured the right to marry argument somewhat.  If it helps let us suppose a different restriction on the right to vote.  Perhaps the legislature decides that in order to combat political corruption and undue influence they were going to prohibit anybody from voting for anybody with whom they are related or with whom they have done business in the past.  Again I suspect this would be unconstitutional even though everybody would still be eligible to vote and the law is applied to everyone.

As for Eve's first point, I simply note that how sex difference is relevant to marriage would arise in evalutating the state's interest in prohibiting SSM (or how it's relevant to governing and representation would arise in its interest in requirng a senator of each sex).  That would not have anything to do with whether a compelling interest were needed. 

More on Society

In a recent post I had explained how it was wrong to imply that advocates of SSM were merely arguing for the rights of individuals over the rights of society.  I thought that, for a number of reasons, SSM was good for society. And  the individual's rights shouldn't be taken so lightly either.  At the end of that post I noted how this idea tied into Eve Tushnet's reply to a post by Ampersand on how gay intersests shouldn't be sacrificed. 

Ampersand himself now has an excellent response to Eve posted.  As I did, he notes the sacrifice Eve is asking of gays is quite different than that she is asking of straights.  She generally asks straights to sacrifice for their own child's interests.  She's asking gays to sacrifice their own child's interests for the sake of others.  He also notes some other differences, as well as explaining very nicely a number of ways in which same-sex marriage benefits society.  Part of that is the enormous benefit to the children of the same-sex couples from their parents marriage and he reminds us of two posts where he explained some of those benefits.  Finally he notes correctly that one's rights should not be contingent on how much benefit one brings to society.  I could go on, but just read the post!

Societal vs. Individual

Eve clarifies that her concern with my arguments against polygamy and incest were not a matter of abstraction, but rather a concern that I was assuming a societal interest in marriage which is at the heart of the SSM debate.  She writes:

I would say, rather, that his reasons, however compelling to people already driven by "macro" social concerns and questions of societal benefit, assume that marriage is about social capital and societal benefit rather than being about the adult individuals who make up the union. And this societal vs. individual divide is one of the biggest factors in the SSM debate! So it is not so much "abstract vs. concrete" but a deeper conflict of visions--what, or whom, is civil marriage about? The people who want their union to be considered a marriage, or the citizenry at large, and most particularly the children?

I believe civil marriage is about society at large, the married couple, and the children of that couple.  I don't think it's a case of who am I choosing in this conflict.  I don't see the conflict in the case of SSM.  I think marriage is good for society regardless of the sex of the individuals in the marriage.  I also think it's good for the couple and especially good for their children.   I believe Jonathan Rauch will continue to make this argument in his forthcoming book Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.  The description from the publisher reads:

Two people meet and fall in love. They get married, they become upstanding members of their community, they care for each other when one falls ill, they grow old together. What's wrong with this picture? Nothing, says Jonathan Rauch, and that's the point. If the two people are of the same sex, why should this chain of events be any less desirable? Marriage is more than a bond between individuals; it also links them to the community at large. Excluding some people from the prospect of marriage not only is harmful to them, but is also corrosive of the institution itself. The controversy over gay marriage has reached a critical point in American political life as liberals and conservatives have begun to mobilize around this issue, pro and con. But no one has come forward with a compelling, comprehensive, and readable case for gay marriage-until now. Jonathan Rauch, one of our most original and incisive social commentators, has written a clear and honest manifesto explaining why gay marriage is important-even crucial-to the health of marriage in America today. Rauch grounds his argument in commonsense, mainstream values and confronting the social conservatives on their own turf. Gay marriage, he shows, is a "win-win-win" for strengthening the bonds that tie us together and for remaining true to our national heritage of fairness and humaneness toward all.

That being said, I think there is a mistaken impression the Massachusetts SJC somehow ignored the arguments about the societal effects.  They did not.  They merely observed that the arguments as presented did not make sense.  The state argued that there would be some harm from nonprocreating couples marrying.  The court noted that if the state truly believed this, it was awfully strange that no nonprocreating opposite-sex couple was ever barred from marriage on that account.  It was even stranger that the laws made it easier for a woman on her deathbed to marry.  To accept the state's argument the court would have had to believe that the state really didn't want any nonprocreating couples to marry, but just hadn't figured out how to do anything about the problem except for the case of same-sex couples.  It would have also had to believe that the state made it easier for a person on her deathbed to marry in the hopes that she would conceive before dying.  I can't blame the court for not finding this argument credible.  Likewise the state had argued that it was trying to establish the "optimal" setting for raising a child.  The court was baffled by what children the state was possibly helping by its prohibition.  It certainly wasn't the children of the same-sex couples who were being denied the legal protections and security stemming from their parents' marriage.  It was rather hard to see how denying this one sizeable group of children these protections did anything to benefit the children of opposite-sex couples either. 

This idea is related to Eve's response to Ampersand where she contends that she's asking everybody to sacrifice.  It seems she's asking heterosexual couples to marry and to take care of their children and spouses.  I can understand that.  She's asking people to take responsibility for their actions.  I'm all for that.  It seems to me, though, that we should be asking the same of same-sex couples.  Same-sex couples are trying to protect their families and volunteering to take on addition legal responsibilities and obligations in the interest of their families.  Why is that wrong?  What would Eve have them do instead?

Choices and Marriage

I hear a lot in the same-sex marriage debate about how same-sex couples chose their "lifestyle" and thus must embrace the consequences of that decision with regards to marriage.  The argument seems to be that it is not the state that is denying them the benefit of marriage, but rather it is the decision of the individual to choose a same-sex partner.  Here are just a few examples where an argument like this has popped up.  At MarriageDebate.com David Barnes compares same-sex couples to cohabiting couples.  He writes that both a cohabiter and a homosexual have the formal freedom to marry, but "in both cases, a person would be forced to enter into a marriage that he'd rather not enter into only to get legal benefits he'd otherwise be denied if he were not married."  I have responded directly to Barne's argument at MarriageDebate, but in this post I want to focus on the idea that the homosexual made a choice to live life with a person of the same sex instead of marrying a person of the opposite sex.  At MarriageMovement.org Elizabeth Marquardt comments on my comparison of same-sex couples to couples who are not well-off.  [My comparison was not intended as a comment on the parenting skills of any couple or type of couple.  Rather it was to demonstrate that the state also makes no such statement by allowing a marriage to occur.]  She writes that my comparison "suggests that one sees children being raised by their own parents as a privilege largely out of adult control (in much the same way that we’d all like to be rich but most of us will never be), rather than as a birthright available to practically all children if only the adults did not choose otherwise." [emphasis added].  So again there is a notion that same-sex couples made a choice to have children and their family (children include) must deal with the consequence of that choice.  Marquardt also agrees with a reader who expresses sympathy for an opposite-sex infertile couple who finds themselves unable to bear children naturally.  It is unclear whether the reader has the same sympathy for same-sex couples, but I have seen others try to differentiate the two on this basis.  Infertile couples should be allowed to marry because they didn't choose to be infertile, whereas same-sex couples chose infertility by selecting a spouse of the same sex and thus can be denied marriage.  I would like to explore this idea of choice as the rationale for rejecting SSM. 

Let's start by looking at Barne's comparison of same-sex couples to cohabiters.  In the former the choice at issue was a person choosing a same-sex partner.  Once that choice was made, there is no choice as to whether to marry that person.  The cohabiter on the other hand is faced with exactly this choice.  A more interesting example is my comparison to a couple where neither partner is well-off.  Marquardt implies that the difference is the latter couple did not choose not to be well-off.  The same-sex couple, though, certainly did not choose their genders.  The choice came when the person chose his spouse.  Yet this same choice arises in the other couple as well.  A person chooses to marry someone who is not well-off.  In both cases a person makes a choice of spouse, and in both cases a person should be able to make that choice based on her own criteria.  It is very likely that a person who plans on having kids will choose a spouse that he thinks will be a good parent and will help to provide an optimal parenting situation.  That does not mean that we must forbid all but the theoretically best spouse, especially because what we may find to be theoretically best is not necessarily what actually is best for that individual.  In fact, we have a long tradition in this country of parents deciding what is the best way to raise their own children.  This is based in part on a parent's right to raise their children, and in part on an understanding that a parent is likely to know best what is right for their children.  Even if someone chooses to marry a person with whom he knows he will be unable to concieve, we recognize it is not for us to say he should not do so. 

I am not saying that the state is not involved in choices involving marriage and parenting.  I am saying that it is only with great justification, if at all, that we allow the state to remove the choice entirely.  We don't allow the state to force marriage, sterilization, or procreation.  We might restrict certain benefits to those couples who choose to marry, but I think we do so more in recognition of the additional responsibilities incurred by marriage, than as a reward per se for choosing marriage.  We recognize that marriage and parenting are difficult, and we do our best to make them easier.  Even if one did view marital benefits as a reward, where is the logic in denying them to same-sex couples.  Shouldn't they too be rewarded for making the responsible decision of marriage as opposed to cohabitation?