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

24: Episode 11, 5 PM – 6 PM

Today’s edition of the 24 Blog comes to you from 30,000 feet above the eastern seaboard. I’m currently on Jetblue flight 1208 from PBI to Logan International. Last week when I saw that “24” was going to be 2 hours long, I disappointedly thought I’d miss not one, but two episodes tonight. Thanks to the magic of technology, and Jetblue’s partnership with Direct TV I should be able to watch both episodes with minor interruptions for safety announcements. Without further adieu…
8:02: Tony! Tony! Tony! Actually, why is Tony being treated at C.T.U.? I know they have hospitals for explosion victims.
8:04: Why does Tony need talk to Jack? I’m missing this dialogue because the captain is telling us about…
8:30: Oops. I forgot you’re not allowed to have laptops turned on during take off. Sorry for the missing minutes, federal regulations and all.
8:31: I’ve missed almost everything during this episode except that Tyler Memorial Hospital is in a lot of trouble. The pilot is so chatty, sheesh.
8:32: If Martha Logan isn’t careful, she’s going to kiss Aaron Pierce.
8:41: If there’s anything to say about Christopher Henderson, at least he uses a Mac.
8:41: Mrs. Henderson’s wife is REALLY annoying.
8:43: C.T.U. seems to be getting lots of lucky bounces during this hour. Come on, controlling the First Lady’s philandering is definitely NOT Mike Novick’s job.
8:44: Is shutting off the air not an option? It seems that’s the easiest solution.
8:52: Regular people don’t run into people that tried to kill them only an hour before. Jack Bauer runs into these people three times a day.
8:53: Yeah, that’s what I was thinking. 1 torture (Miriam). “Miriam Henderson has been shot.” That happens when you shoot someone, Jack Bauer.
8:54: NJBD: 1 (Terrorist)
8:55: It took 8 minutes for the C.T.U. guys searching the terrorist’s body to find the remote detonator. Where do you think it was?
8:55: The football is in motion. This reminds Curtis of when he was a running back in college.
8:57: NJBD: 2 (Lynn McGill’s junky sister and her boyfriend). Who didn’t know that was going to happen?
0 JBKC, 1 torture, 3 NJBD, Prediction Ratio n/a
I’ll save the final thoughts for next episode.
Totals for the season, 21 JBKCs, 3 torture, 44 NJBDs, Prediction Ratio 44.4% (4 out of 9).

24: Episode 11, 5 PM – 6 PM