Not All Discrimination Is Equal

Look, up in the sky! It’s a bird! It’s a plane! It’s… The Ostensible Champion of Liberty and Tolerance! Or at least that’s what fellow Rhode Islander Justin Katz has dubbed me in his gracious response to some comments I left over at Anchor Rising. Before I have myself fitted for the cape and tights, it seems right and proper to address the challenges Justin has laid down in his post.

I’m struck, first of all, by Justin’s framing of the subject of our conversation as the “inevitable collision of the gay rights movement with certain fundamental freedoms, such as that of religion.” It’s hard for me to see how seeking to expand the civil rights of gay Americans impinges the religious freedoms of other Americans (or how the right to marry isn’t as fundamental as freedom of religion), but his lengthy response urges me to try.

Firstly, I must correct a seeming misapprehension. Justin says:

For me to have a lack of sympathy for those whose conclusions I oppose would require me to believe that they are all lying about their motives and are, in fact, consciously striving for the downfall of our society. It is disheartening to think that the courteous and discoursive [sic] MRH might believe something equivalent from the other side.

Flattery will get you everywhere, you handsome and articulate fellow! Of course, there’s no need to ascribe to me such a negative view of opponents of same-sex marriage, just as there’s no need to assume that supporters of same-sex marriage believe that gay people and their supporters want to bring about the downfall of society. We can certainly disagree – and even disagree without sympathy — without believing that the other’s motivations are so base. Take heart, Justin, that my courtesy does not merely cover disdain.

Our mutual good intentions thus assured, let us move to the actual matter at hand.

I view the denial of the right of same-sex couples to marry as a form of discrimination. And yet, if that right were granted, might there not be a new “reverse” discrimination against those who oppose it? Here’s Justin:

I offer you the not-so-hypothetical examples of a Christian organization that places adoptive children only with married couples and the business that only prints invitations for marriage ceremonies. In either case, with the civil-rights argument, that religion or that business has a definition of marriage — one that relates directly to their beliefs about the relationships that they are encouraging — that would, overnight, be invidious discrimination.

I’ll grant that, in a world where same-sex marriage is legal and discrimination based on sexual orientation is illegal, the invitation company might not be free to refuse to print invitations to same-sex marriages. Let’s also grant that, if they take public funds, the Christian agency might not be free to decline to place children into households where both parents are of the same sex. Their definitions of marriage would suddenly come into conflict with that of the state and, indeed, they would be guilty of legal discrimination.

Should our sympathy for this printing company and this adoption agency weigh more or less heavily than our sympathy for a gay couple that wants to marry? My initial answer was that, of course, we feel more for the latter, because I tend to sympathize with victims of discrimination, not agents of discrimination. Justin’s riposte was as follows:

My response to the expression of sympathy for “the victims of discrimination,” rather than “agents of discrimination,” is to wonder whether Matt’s sympathies are applied on the basis of individual cases or he’s speaking of victims and agents as class distinctions. If the former, one would expect his sympathies to cycle: The Catholics who are rebuffed for discriminating against homosexuals for purposes of adoption (to keep with the prior example) are, in turn, being discriminated against by the government in relation to the their ability to take private initiative in keeping with their beliefs about the most beneficial homes for children. If the latter, the application of sympathy — presumptuous in its assignment of roles — amounts to declaring a moral preference for homosexuals versus traditional Christians.

My sympathies apply to victims of discrimination both as individuals and as a class. Let’s address the challenge to the latter lemma first. In the spirit of cordiality and charity, I’ll interpret this as a rhetorical maneuver rather than as a genuine claim, but will respond with a rhetorical maneuver of my own: does sympathizing with the victims of racial discrimination, as a class, amount to a moral preference for blacks over whites? Of course, it does not. Rather, it amounts to a moral preference for equality and justice over inequality and injustice.

In the case of individual victims of discrimination, would my sympathies cycle, as Justin suggests, to Christians who are unable to deny service to homosexuals? I suspect it would not, because I don’t consider the imposition of equality to be discrimination. Was the decision in Brown v. Board of Education discrimination against segregationists? Surely not. Of course, the two cases are not entirely parallel. The distinguishing factor seems to be that the objections are motivated by religion rather than some other value system. I’m not sure that this should make a difference. Justin seems to think it does, however, and maybe some of you do as well, so let’s consider it so and proceed.

We are confronted with a choice, then. We either discriminate against same-sex couples by denying them the right to marry, or we discriminate against “traditional Christians” by forcing them to recognize same-sex marriages. Are we at an impasse? Faced with discrimination on either side, are we unable to judge between them? Of course not. Not all instances of discrimination are equal, and there is no moral obligation to tolerate intolerance. We must have a rubric to decide which is worse, and mine works by evaluating the harm done to the class or individual discriminated against. It seems clear enough to me that more harm is done by denying same-sex couples the right to marry than by granting it.

Justin said something else very interesting:

It oughtn’t take but so much intellectual distance to realize that the struggle isn’t between religious dogma and objective civil rights, but between two competing ideological worldviews with different understandings of what marriage, in its essence, is.

I don’t agree, unsurprisingly. I think extending marriage rights to same-sex couples is a simple question of civil rights. But Justin is right that there are competing ideas of what marriage is. And here is where we stop dancing around the real point. We’re arguing a point of public policy. We know what the traditional religious view of same-sex marriage is, but if we are to make it the law, we need another basis. Our secular democracy demands extra-Biblical justification for its law-making. So what is the secular, social argument against same-sex marriage?

Unfortunately, it’s not a very good one. Justin bases his opposition to same-sex marriage on:

… the utility of marriage to bind the genders in biologically affirmed union and to tie generations in an historical thread of ancestry and progeny, often with religious underpinnings. If this is the vision of marriage that one holds, then homosexual relationships, whether they inspire approval or disapprobation, are simply not marriage, and to redefine marriage to include them would inevitably erode the institution’s utility.

As loath as I am, in general, to argue from marginal cases, surely defining marriage as a procreative pair cannot be sustained in the face of some simple counter-examples. Can a heterosexual couple who are (independently or mutually) infertile be said to be truly married under this definition? What about a married couple that abstains from sex? And do we want the state to invalidate marriages that do not produce progeny, or require fertility and genetic testing before validating a marriage certificate? Do we want the state to compel married couples to attempt to conceive? No, we do not.

The other side will counter, lamely I think, that it is not actual fertility, but rather some kind of potential, Platonic fertility that matters: a marriage must include male and female genitalia, whether they are joined in sexual congress or not. This is, of course, absurd.

How, practically, would redefining marriage to include same-sex relationships “erode the institution’s utility?” This is the question that has never been answered to my satisfaction. Marriage, as Justin points out, has many benefits to society. These include the strengthening of familial and societal ties, the establishment of persistent kin groups and affinities, and the financial stability of combining households, benefits, and assets. Where, in any of this, should gender matter? Is there a fear that, should the option of same-sex marriage become available, men and women that would otherwise marry each other and produce offspring will be tempted to instead marry members of the same sex? If this is Justin’s argument, I think he drastically overestimates the number of closeted homosexuals in our society.

Besides, any of the arguments that society depends on “traditional marriage” for its procreative potential apply just as well to same-sex marriage as they do to homosexuality simpliciter. Homosexuals are, by and large, going to refrain from marrying members of the opposite sex and reproducing with them whether same-sex marriage is legal or not. Do opponents of same-sex marriage also want to outlaw homosexual behavior? Do they want to compel heterosexual behavior?

Advocates of the right to same-sex marriage draw a clear distinction between religious marriage – marriage as defined to any particular religious group that offers it as a rite – and civil marriage – marriage as defined by the regulations and structures of legal statute. I have never seen an argument against same-sex marriage that was not grounded in religious belief. I believe strongly that any religious person should be free to decline to officiate at, attend, or acknowledge any marriage that offends his or her beliefs. I believe just as strongly that he or she should not have the right to enshrine those beliefs in law.

Not All Discrimination Is Equal

0 thoughts on “Not All Discrimination Is Equal

  1. Ahem. First of all, Matt, I’d just like to again feed your ego for your articulate expressions found here on “Unlikely Words”.
    While my blog posts are vehicles of emotional expression, you actually have something to say. In regards to this particular issue, I have always found it difficult to argue with those on the opposing side, as most of their views and reasons stem from religious upbringing and views to which they can only teeter on simply because “that’s what I was taught”. I have come to the conclusion that we live in a Christian nation, regrettably, and there is nothing I can do about it. For instance, last night while waiting at Union Square in Manhattan, a middle-aged man was yelling at the top of his lungs about how awful Israel is, and that they rape children, and kill Palestinians, and it’s the most horrible country on Earth. These ramblings of a deranged mind wouldn’t have bothered me so much if he hadn’t emphasized each statement with, “I’m a Christian, I know this stuff”. As many New Yorks yelled back at him, I kept quiet, knowing that trying to convince a person who bases their views on religious principle is a lost cause. Frustrating as it might be, I’m not sure the topic you are discussing will ever get a fair trial.


  2. Well said! I hope you don’t mind, but I linked to your blog…I just found out that our senate has passed a domestic partnership bill, now its on to the house!


  3. F. Rottles says:

    Matt, the adoption agencies discriminate, as must all adoption agencies, in favor of marital status.

    SSM is not marriage. Two persons of the same sex are incapable of forming a conjugal relationship. Mislabelling the one-sex relationship as “marriage” does not magically make them capable.

    Marriage is the combination of A) integration of the sexes (i.e. man and woman) with B) responsible procreation. This is extrinsic to all one-sex arrangements — of which the homosexual relationship types are subsets.

    Your remark about infertility is way off-base if you meant to suggest that two persons of the same sex form an infertile couple. Or a combination analogous with an infertile couple.

    Two persons of the same sex form a combination that is not infertile for together their combination was never fertile.

    The same-sex pair, like a lone individual, might be fertile with the other sex. But such a pair is not disabled, like a man-woman pair who might experience subfertility or infertility due to misfortune or old age.

    Afterall, who among SSM advocates would claim that homosexuality is a disability? Or that the choice to form a one-sex relationship is the equivalent of, for example, the choice to treat cancer through surgery or radiation therapy?

    The marriage idea of “in sickness and in health” is directly connected to the combination of A and B above. It is the nature of the human being to enter this life non-fertile, to become fertile, to mature and eventually experience diminished fertility until it is gone altogether. Of course fertility is variable. It is variable for each and every healthy man-woman couple who will be fertile for only short periods of each month of their childbearing years. Couples who seek medical help for fertility problems generally resolve their troubles through behavior (such as a change in diet and such). More than half of couples who seek further medical help already have had at least one child.

    So your pointing to infertility as some major weakness in the man-woman criteria is really missing the forest for the trees. Fertility is variable for the man-woman combination. However, the sterility of all one-sex combinations is constant both in kind and in degree for it varies neither by happenstance nor by the day of the month nor by the normal maturation of the two persons. Rather, sterility is the nature of an arrangement which lacks the other sex.

    One should recognize fertilty for what it is. And infertility for what it is.

    This will aide in recognition of marriage for what it is.

    Both fertilty and marriage arise from the two-sexed nature of humankind. Integration of the sexes is essential to both; responsible procreation flows from this indispensable human community of husband and wife.

    Barring tragic circumstances, each of us is directly responsible for the children we create within such a complementary combination. That is the first principle of responsible procreation and, rather blatantly, the advocates of SSM contradict, disparage, and trivialize it.

    No two-mom or two-dad couple can attain children without parental relinquishment or loss. No such couple can align with the core of marriage for the one-sex pair is sex-segregative and in form is entirely sterile.

    Your pointing to infertility looks a good deal like trying to claim for homosexuals the status of disability. It amounts to asserting the false equivalency.

    Trying move marriage recognition away from the core of marriage is like trying to move a football game to the sidelines. Essentially, SSM advocates argue for the replacement of marriage recognition with something that is not even within the ballpark.

    Instead of seeking such a replacement via a merger of the conjugal relationship and the newly idealized homosexual relationship, put SSM on its own two feet. Make it stand on its own merits and demerits. Don’t demand that society treat the conjugal relationship as if it was the homosexual relationship. Focus on the nature of the new relationship form you wish to elevate via the authority of the state and, thus, with societal approval.


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