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Reply to George: IV. Parallels to Interracial Marriage

Rob Tisinai

February 12th, 2011

[This post is part of a series analyzing Robert George’s widely-read article, “What is Marriage“, which appeared on pages 245-286 of the Harvard Journal of Law and Public Policy. You can view all posts in the series here.]

Pages 247-250:  In which Robert George explains the structure of his article and makes a claim so outrageous it undermines his basic credibility.

George previews the rest of the article.

George splits his article into two parts.

Part I:

  • Defends the idea that that “the nature of marriage (that is, its essential features, what it fundamentally is) should settle this debate.”
  • “Shows how the common good of our society crucially depends on legally enshrining the conjugal view of marriage and would be damaged by enshrining the revisionist view — thus answering the common question, ‘How would gay civil marriage affect you or your marriage?’”
  • Explains why infertile opposite-sex couples can still have real marriages.
  • Accounts for why the state should enact any marriage law at all.

As for Part II:

But many who accept (or at least grant) our core argument may have lingering questions about the justice or consequences of implementing it. Part II considers all of the serious concerns that are not treated earlier…

All of them? Really? It takes a certain intellectual arrogance to claim with such certainty that you’ve even identified all the serious concerns around an issue, much less dealt with them.

Anyway.

George wanders off track.

At this point, we might reasonably expect Robert George to start explaining his answer to What is marriage. Instead, he detours into bans on interracial vs. same-sex marriage:

Revisionists today miss this central question — what is marriage? — most obviously when they equate traditional marriage laws with laws banning interracial marriage. They argue that people cannot control their sexual orientation any more than they can control the color of their skin. In both cases, they argue, there is no rational basis for treating relationships differently, because the freedom to marry the person one loves is a fundamental right. The state discriminates against homosexuals by interfering with this basic right, thus denying them the equal protection of the laws.

But the analogy fails:  antimiscegenation was about whom to allow to marry, not what marriage was essentially about; and sex, unlike race, is rationally relevant to the latter question. Because every law makes distinctions, there is nothing unjustly discriminatory in marriage law’s reliance on genuinely relevant distinctions.

But — no! Antimiscegenation was not about whom to allow to marry. Whites could marry; so could non-whites. Antimiscegenation was about whom one is allowed to marry. Just like bans on same-sex marriage.

According to George, race isn’t rationally relevant to what marriage is about, while sex is (actually, I don’t know whether by “sex” he means gender, or sexual activity, or both). But he still hasn’t proven that his procreative/conjugal view of marriage is the only permissible view:  until he achieves his own goal of establishing what marriage is, he can’t make claims about what’s rationally relevant to it. And so once again we him sneaking his unproven conclusion into his argument.

George tries sneaking in it in again.

George continues:

Opponents of interracial marriage typically did not deny that marriage (understood as a union consummated by conjugal acts) between a black and a white was possible any more than proponents of segregated public facilities argued that some feature of the whites-only water fountains made it impossible for blacks to drink from them. The whole point of antimiscegenation laws in the United States was to prevent the genuine possibility of interracial marriage from being realized or recognized, in order to maintain the gravely unjust system of white supremacy.

By contrast, the current debate is precisely over whether it is possible for the kind of union that has marriage’s essential features to exist between two people of the same sex.

Oh, that slippery use of “conjugal” again. What does he mean? Not “marital,” because that would make his definition of marriage an empty tautology (marriage is consummated by acts related to marriage). Not “procreative,” because later he says that infertile couples can commit conjugal acts. He must mean something as clinical as insertion of penis into vagina.

Now, one thing is certainly true:  Opponents of interracial marriage never denied it was possible for blacks and whites to makes sexual unions — that’s what they were afraid of! But that doesn’t mean they understood such a thing to be marriage. And so here he is, again sneaking in his own definition of marriage:  “marriage (understood as a union consummated by conjugal acts).” But Professor George, you haven’t established that understanding yet. Nor, I think, did the opponents of interracial marriage ever assume such a thing.

George establishes the analogy while trying to wreck it.

In fact it’s easy to argue some of them did deny “real” marriage was possible between the races, even if they didn’t use George’s terminology. This is from original trial judge in Loving v. Virginia who convicted the Lovings for interracial marriage:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

The judge says interracial marriage goes against God’s intent, just as many opponents of same-sex marriage argue that a gay marriage cannot be a real marriage because it violates God’s.

The parallels don’t end there — in fact, we should thank George for pointing them out. Let’s just swap out some of his words, and it’s easy to prove that for many people:

The whole point of antimiscegenation law anti-same-sex marriage law is to prevent the genuine possibility of interracial marriage same-sex marriage from being realized or recognized, in order to maintain the gravely unjust system of white heterosexual supremacy.

Will George deny some people worry that marriage equality sends a message that being gay is just as acceptable as being straight? If so, that would just betray a lack of research. Of course, he might deny that such a thing same-sex marriage is even a “genuine possibility” (which would have him sneaking in his conclusion again) or that heterosexual supremacy is “unjust” (which would have him sneaking — oh, you know the rest).

George says two things that just aren’t true.

Moving on:

Revisionists do not propose leaving intact the historic definition of marriage and simply expanding the pool of people eligible to marry. Their goal is to abolish the conjugal conception of marriage in our law and replace it with the revisionist conception.

Stop. We are not expanding the pool of people eligible to marry, and this points up a key difference between same sex marriage on the one hand and marriage with animal or a child on the other. With same-sex marriage, no one new is being added to the pool. Our opponents’ insistence ignoring this difference shows up the glibness of their thinking when they posit a slippery slope to bestiality and child marriage.

George’s second-sentence above is flat-out wrong. Do marriage equality activists want to abolish the conjugal/procreative view of marriage. Most of us simply want to recognize the fait accompli that this procreative view is not the only view active in our laws and customs, and hasn’t been for some time. The revisionist/common conception is already in place — legally, culturally, historically, and in the everyday practice of marriage as it exists in the real world.

George gets slippery with “discrimination.”

Here’s where George really gets into trouble:

More decisively, though, the analogy to antimiscegenation fails because it relies on the false assumption that any distinction is unjust discrimination. But suppose that the legal incidents of marriage were made available to same-sex as well as opposite?sex couples. We would still, by the revisionists’ logic, be discriminating against those seeking open, temporary, polygynous, polyandrous, polyamorous, incestuous, or bestial unions. After all, people can find themselves experiencing sexual and romantic desire for multiple partners (concurrent or serial), or closely blood-related partners, or nonhuman partners. They are (presumably) free not to act on these sexual desires, but this is true also of people attracted to persons of the same sex.

So what’s going on with this paragraph? George accuses us of defending marriage equality by opposing every possible form of discrimination. Then he calls us out for hypocrisy based on our willingness to discriminate against people who want to marry children or beasts.

There is a mountain of error here, most of it because George shifts between two different meanings of discrimination.

  1. George errs in saying the analogy to miscegenation relies on the assumption that any distinction is unjust discrimination. We don’t need to assume — in fact, we don’t assume — that any distinction is unjust. Rather, we rely on the argument (not the assumption) that banning interracial and same-sex marriage both constitute unjust discrimination, and for much the same reason. As Olson and Boise make the case:  this particular distinction is harmful to many people and serves no good purpose. George might disagree with them, but Olson and Boies don’t require the assumption that every conceivable distinction is unjust.

In fact, this first sentence in George’s paragraph is so thoroughly wrong that it wounds the credibility of the whole article. I have to admit, though, some gay activists confuse the issue when they claim right to marry anyone they love and have the marriage recognized. That’s sloppy rhetoric (I don’t support the right to marry kids, for instance). But it’s not a cornerstone of our argument.

  1. George errs — or is at best misleading — when he says according to revisionist logic we discriminate when we ban unions that are incestuous, bestial, etc. It’s not just according to revisionist logic but according to George’s logic, too. From page 249:  “Because every law makes distinctions, there is nothing unjustly discriminatory in marriage law’s reliance on genuinely relevant distinctions.” In other words, we can all agree it’s discrimination, and most of us can agree it’s not unjust. There’s no gap here between the conjugal/procreative and the revisionist/common view.
  1. George errs — or is being slippery — when he drops “unjust” from his comments about discrimination between his first sentence and his third. The only way this paragraph makes sense is if he’s assuming revisionists view all discrimination as unjust. But for instance, it’s easy to argue that laws against pedophilia justly discriminate against pedophiles.
  • Pedophilia by its nature requires a participant who lacks the mental and emotional ability to give consent or act as an equal partner.

  • This means that sex with children is unjust exploitation of those children.

  • Therefore laws to prevent it justly discriminate against pedophiles.

I’m perfectly happy to support laws that discriminate against pedophiles, murderers, rapists, and thieves. It’s ludicrous to assert that any opposition to discrimination requires one to oppose all forms of discrimination, all forms of making legal distinctions.

Obviously, George is also being slippery with the term “discrimination.” Compare these two definitions:

  1. to make a distinction in favor of or against a person or thing on the basis of the group, class, or category to which the person or thing belongs rather than according to actual merit
  2. to note or observe a difference; distinguish accurately

While #2 allows the existence of “just discrimination,” #1, which reflects the term’s popular usage, makes it an oxymoron. George is sliding back and forth between technical definition and popular understanding in these sentences, and that adds no clarity to the discussion. Clearly, when we condemn bans on same-sex marriage because they discriminate, we mean the popular definition of discriminate. George is just being silly when he claims we mean it as opposition to making any sort of distinction at all.

We can discuss George’s “open, temporary, polygynous, polyandrous, polyamorous, incestuous, or bestial unions” at some other time. For now, it’s enough to point out that the first sentence of his paragraph is patently untrue, and any arguments built on that first sentence fail as well.

What does this add up to?

Let me summarize, and we’ll see that George is almost entirely wrong in this section.

  • George has no right to say gender is relevant to marriage while race is not, because he still hasn’t established his answer to What is marriage?
  • The bans on interracial and same-sex marriage are analogous:

    • The bans do not address who can marry, but whom one is allowed to marry.
    • Some banners think such marriages are contrary to God’s intent and cannot be “real” marriages.
    • Some banners hope to perpetuate their own societal supremacy at the expense of a minority.
    • Both bans constitute unjust discrimination in that they harm the targets of the law for no good reason.
  • Marriage equality proponents can still support bans on other forms of marriage as long as we can show they make just distinctions (e.g., bans on marriage with children may distress pedophiles, but the bans serve to protect children from exploitation and abuse; also our society has long held that children lack the capacity to consent to contracts, a distinction that long precedes the debate on same sex marriage).

Did I miss anything?

Next: George defends the existence of “real” marriage as something independent of the government’s laws on marriage, and I (sort of, kind of) agree.

Comments

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Graham
February 12th, 2011 | LINK

His whole argument seems to revolve around this idea that there is some inherent nature of marriage (his kind, of course) floating around in the ether somewhere; it’s like a Platonist view of marriage. I wonder how he accounts for the fact that many different arrangements have been found in different cultures and time periods, the most common of which is one man and many women.

Tara TASW
February 12th, 2011 | LINK

“We would still, by the revisionists’ logic, be discriminating against those seeking open, temporary, polygynous, polyandrous, polyamorous, incestuous, or bestial unions.”

Actually his penis-in-vagina definition of marriage is much more conducive to any of those. Lots of cultures have had polygamous heterosexual unions (including in the Bible), and they were and are accepted as marriage.

Child marriage has been practiced in some cultures, and I’d certainly argue it’s a bad thing, but his definition of marriage as “penis-in-vagina intercourse even when it can’t make babies” leaves the door open for that.

I suppose the same is true for beastiality (the whole topic of that is stupid, since there aren’t any dogs or cats trying to get marriage licenses – he just throws it in to be insulting, but it fits his argument better than ours.)

On the other hand, accepting the definition that he calls “revisionist” and I call real-world, marriage is a choice made by people able to consent. That immediately rules out children and animals.

As for “temporary” marriages, last time I checked divorce was still legal, so any marriage (under his definition or the real-world one) could be temporary.

justsearching
February 13th, 2011 | LINK

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

I remember reading a pamphlet written by an early 20th century American evangelical urban reformer, who would certainly not have considered himself racist (not many do), in which he stated: “The good Lord created the races to work together in harmony while staying separate, just as the five fingers of the hand work in harmony while staying separate.”

White-black “unions” can take place and homosexual “union” can take place, but neither fit into some views of what marriage ought to be, or what marriage truly is.

Priya Lynn
February 13th, 2011 | LINK

Extremely well done Rob, you picked apart George really well. I never noticed the gross inconsistencies you pointed out, it just shows what happens when people like George decide in advance the conclusion they want and argue to support that instead of looking at the evidence and then drawing a conclusion – arguments are included merely because they’re anti-gay rather than because they’re logical.

Rob said “I have to admit, though, some gay activists confuse the issue when they claim right to marry anyone they love and have the marriage recognized. That’s sloppy rhetoric (I don’t support the right to marry kids, for instance). But it’s not a cornerstone of our argument.”.

I’ve often used that line, or “Gays deserve the same right straights have to marry the one person they love most”. I think it goes without saying that this excludes children, blood relatives, animals, and other current marriage exceptions other than gender. I’d like to make that explicit, but doing so doesn’t seem possible without making the line awkward and unwieldy.

Jonathan Justice
February 14th, 2011 | LINK

Since we find Professor George blithely using his academic standing to reanimate the corpses of the same slippery slope arguments his less graceful colleagues are noted for, it is time to point out that there is a really peculiar world view being articulated here: These guys seem to think that consent is not a consideration in most marriages.

I tend to see this as a matter of giving away the central authoritarian con by projecting it upon those with whom one disagrees. Whatever the rhetorical decor, the brutal fact is simply that this stuff is done to enlist law and social expectation in a program of getting the rest of us to bow to whatever authority figures the person presenting the argument wishes to see served. The consent of the people in the couple and the consent of the social setting in which they marry do not count for much in the discussion because they do not count for much in the sensibility of the presenter. His understanding of consent would seem to consist of consenting to an hierarchically ordered society where the central rule is that one is to obey those who rank high enough to tell you what to do.

This sort of social order is rarely all that consistent, so there are conflicts aplenty, but the resolution is thought of as a matter of figuring out who really deserves to tell you how to run your life, usually by listening to them yammer on at length about how disgusting all those other people out there are.

In that context it is possible to see marriage as a matter of some, well, man, telling a woman, child, dog, sheep, motorcycle, rock formation or (ick!)(blatantly) submissive man, that they are getting married without particularly delving into the question of other parties consenting to what is after all being imposed on them by his authority.

While we are all of us too familiar with this world view, we are ordinarily privileged to operate on a quite different basis wherein we negotiate with parties who are presumed to be our equals to get something resembling what we want. Professor George’s patrons would prefer to restrict that option to a degree that I find inappropriate.

Adam
February 14th, 2011 | LINK

Priya Lynn: How about “gays deserve the same right straights”?

Although I personally feel that “gay” and “straight” are adjectives, just like “white” and “black”, and I consider it insulting and dehumanising to promote them to nouns to identify a person. That is a gay person, not that person is a gay. It’s probably different in the US, but it would be considered rude indeed to refer to a person as a black…

Adam
February 14th, 2011 | LINK

Err, I mangled your grammar by trying to be clever with my quote. Obviously if you were taking my approach you’d be saying something like “gay people deserve the same rights as straight people”. Or even “gay people deserve the same rights as everyone else”.

Sorry about that!

Hunter
February 14th, 2011 | LINK

About adjectives becoming nouns: English relies very heavily on elision — we leave words out. A lot. So we’ll use an adjective (“gay”) and leave out the noun (“people”) because it’s understood from context. And eventually the adjective becomes the noun, to the extent that after a certain point, going back and saying “gay people” begins to sound a little formal and almost stilted.

Just an observation.

Otherwise, Rob, very well done dissection of George’s somewhat shoddy arguments. And I do mean they’re shoddy, as you’ve so elegantly pointed out.

Adam
February 14th, 2011 | LINK

Hunter – I appreciate your point, and it’s a good one. But I don’t think that just because tendancies exist that change is irresistable, and I believe that some change is for the worse and should be resisted.

I don’t need to tell anyone here that language is a powerful tool for influencing attitudes, and when people are reduced to a one-dimenstional characteristic, it becomes easy to stop thinking of them as actual people with whom we share so much and to start thinking of them as something other with which we share nothing at all. Especially when that characteristic carries with it such social stigma as the word “gay” does. Although the principle doesn’t end at using “gay” as a noun, either; like I say (or meant to say; I failed to be explicit) above, in the UK it would be very unusual to hear someone refer to a person as “a black”.

I’m conscious that my attitude on this probably reflects my own issues, and may well also be a cultural difference between the UK and the US. But, for me at least, it’s a real thing, and I wanted I’d take this opportunity to share my thoughts on it. :)

Donny D.
February 14th, 2011 | LINK

Hunter wrote:

About adjectives becoming nouns: English relies very heavily on elision — we leave words out. A lot. So we’ll use an adjective (“gay”) and leave out the noun (“people”) because it’s understood from context. And eventually the adjective becomes the noun, to the extent that after a certain point, going back and saying “gay people” begins to sound a little formal and almost stilted.

That assumes that we are all using the language in the same way, which is never entirely the case. I’ve never been comfortable with using gay as a noun. I’m a gay man, and not “a gay”. I can see the convenience in saying gays instead of gay people, even if I almost never or never avail myself of this usage. But elision isn’t what’s happening when someone is referred to as “a gay”.

Boies and Olson referred to us overwhelmingly or exclusively as “gay men and lesbians” (or the reverse) throughout their briefs in Perry v. Schwarzenegger. Though Judge Vaughn in his decision often (or usually/mostly?) referred to us as “gays”.

I do think the slightly longer, more formal usage is often the more clearly respectful one, as with “people of color” versus “non-whites”.

One problem I have with “gays” is its imprecision. It can mean only gay men, or both gay men and lesbians. I’ve seen anti-gay people and the type of gay men who don’t think much about lesbians use the word ambiguously in contexts that didn’t make clear which meaning was intended, or in a way that implied that the only gay people who existed — or mattered — were male.

Rachel H
February 14th, 2011 | LINK

Would I be right in thinking that George’s article is just a very long-winded tautology?

Désirée
February 14th, 2011 | LINK

@Rachel: you would be.

George says “marriage is only between a person with a penis and a person with a vagina because we say that marriage is only between penises and vaginas.”

Priya Lynn
February 14th, 2011 | LINK

Adam said “Priya Lynn: How about “gays deserve the same right straights”?”.

I could say that but then frequently the anti-gay will say “Gays have the same right as straights to marry an opposite sex partner.”. When I’ve heard that in the past I’ve then refuted that with “Gays deserve the same right straights have to marry the person they love most.”. I find that statment very handy, but as Rob says every now and then someone will twist it and say LGBTs want the right to marry a child/sibling/dog. I’m not sure there’s a good way around this.

Rachel said “Would I be right in thinking that George’s article is just a very long-winded tautology?”.

By jove, I think you’re right Rachel.

Rob Tisinai
February 14th, 2011 | LINK

@Priya: “frequently the anti-gay will say “Gays have the same right as straights to marry an opposite sex partner.”

That one drives me nuts! I made this cartoon about it.
http://wakingupnow.com/blog/discrimination-certainly-not

Adam
February 14th, 2011 | LINK

Priya – Yeah, I anticipated that objection after I wrote my response to you. I had momentarily forgotten the kind of person that most frequently opposes marriage equality.

I sometimes think that the right approach to this problem is to reduce it to a matter of discrimination (in the popular usage Rob highlights) not against people on the basis of sexual orientation, but on the basis of sex (or gender – forgive my ignorance of the nuance).

A man has the right to marry a woman; that man therefore has a substantive right denied to women. Sex / gender equality therefore demands that women be permitted to marry women; sexual orientation doesn’t enter into the equation. This approach has the added advantage of elucidating the silliness of the slippery slope argument: no-one has the right to marry a child (or a horse, or a motorbike); there is no scope, therefore, for using the sex / gender equality grounds to extend such a right to others.

I think this is really just another way of saying what Rob is already saying, but I found it a very helpful approach to understanding the injustice of opposition to marriage equality.

Priya Lynn
February 14th, 2011 | LINK

That’s a good one Rob, I’ve used some of your lines in my arguments.

Adam, I sometimes as well approach the issue as one of sex discrimination rather than orientation. The way I word it is:

Bob has the right to marry Alice. Donna does not have the same right Bob has to marry Alice, that’s sex discrimination and its wrong.

Pacal
February 14th, 2011 | LINK

Like so many George just cannot help himself from being obsessed with sex. It is so tired that people like him define marriage in terms of sex. For that what it boils down too. And of course like so many anti-Gay people he is obsessed with Gay sex. Although in this case he hides it by concocting a sex based definition of Marriage which of course means that since Gay people don’t have the “right” type of sex means they can’t really get married because they don’t do it the way Hetrosexuals do it.

And once again we here about the old sliding slope crap and the oh so unsubtle link being made between Gay sex and bestiality and incest etc. The only thing missing is child molestation.

And of course like so many George says things that are false. His statement concerning the “revisionist” position on marriage is so distorted that I think it is likely that George knows he is telling a falsehood.

Amicus
February 14th, 2011 | LINK

Here is potentially a whopper, relating to GGA’s use of legal history.

When responding to Kopplemen and Deutsch, they appeal to legal history to bolster their argument, to suggest that their view is easy-to-grasp: “What Deutsch calls the protean “myth” at the heart of marriage law has been its cornerstone for centuries. Our legal tradition understood coitus and coitus alone as consummating (and thus completing) a marriage, but never accepted infertility as a ground for annulment or dissolution. ”

When writing legal briefs, they admit that argument cannot rest on bare traditional alone. But, they just did that, right? Basically said, we’re not unreasonable because we’ve offered a reasonable interpretation of history.

Finally, when writing about miscegenation, they ignore that history would have supported the view that race is, in fact, an essential feature of marriage as a social institution. I think we can even say anthropological and cross-cultural experience would have supported that view, as well.

Throbert McGee
February 14th, 2011 | LINK

Rob Tisinai writes:

The bans on interracial and same-sex marriage are analogous

No.

In principle, the bans could be analogous, but as a matter of historical fact, they fail to be analogous, and it was sloppy for Tisinai to write this (in an article taking someone else to task for sloppiness).

The nut of the problem is that there’s a difference between the prohibition of a particular form of marriage, and the mere non-recognition of certain marriages — and in actual historical practice, antimiscegenation laws were prohibitions that had the effect of criminalizing certain relationships: Mr. and Mrs. Loving were arrested and sentenced to prison after they obtained an interracial marriage outside of Virginia and then returned to Virginia territory.

But nowadays, a gay couple from Virginia who obtained a same-sex marriage in DC or Massachusetts would simply be told, in their home state: “Sorry, but that marriage license from DC or Massachusetts has no legal force or meaning in Virginia — if you’re concerned about medical decisions or inheritance issues, you’ll need to do it the roundabout way by getting documents A, B, C, and D notarized and filed.”

To sum it up: Although Virginia does in some sense ban same-sex marriage (and CUs, and DPs), it does not ban them in anything close to the sense that it formerly used to ban interracial marriage (which involved threats of prison time and a criminal record).

In terms of legal effect, it was anti-sodomy laws that were more closely analogous to how anti-miscegenation laws functioned historically.

Amicus
February 14th, 2011 | LINK

“Because every law makes distinctions, there is nothing unjustly discriminatory in marriage law’s reliance on genuinely relevant distinctions.”

GGA have taken this argument way too far.

I think that we all are coming closer to the list that shows that one can make a moral distinction, yet still have a law based on that (and set of benefits at law) which is, in fact, unjustly discriminatory. Not all moral arguments are equal, are they?

In fact, I think their burden is not just to argue that they have a consistent moral view; but, if they want to have mere “rational basis” review, they have to argue that their view is so obvious, that it can barely be challenged without appearing odd, like challenging that eyesight is an ‘intrinsic good’.

Elsewhere, I made the argument that one could also challenge the law based on other factors, like whether benefits of being in a privileged class were actually tailored to the underlying “distinction” which GGA believes gives rise to the legitimacy of the law. When one sits down to think this point through, there is a LOT there to make pages of cases and arguments about.

Finally, suggesting that any moral argument expressed by plebiscite is the incontrovertible will of the people is equally daft. Given that all moral arguments are not equal (or equal strength or merit), some might be consistent but weak or based on facts not in evidence or speculations that are clearly remote or even trumped up, the courts clearly have a role in deciding, not deferring. Indeed, a “moral argument” can be so thinly reasoned that a court could find it based on sheer animus or proceeding, overall and in the long term, from a mere tradition of prejudice.

Rob Tisinai
February 14th, 2011 | LINK

Throbert, can things be analogous without be identical? The key here is that even if they are not perfectly analogous, they are analogous in exactly the ways Robert George says they are not.

You do point out an important distinction, though. Something to chew on. (Though if the Texas GOP gets its way, even that distinction will start to fade).

Perhaps the final version should read, “The bans on interracial and same-sex marriage are analogous in some ways — the very ways, in fact, that George claims they are not.”

kermode
February 14th, 2011 | LINK

Throbert (And Rob): Check out Delaware’s *current* marriage code before being so sure one can’t be sent to jail for a same sex marriage:

http://delcode.delaware.gov/title13/c001/sc01/index.shtml

Section 101a states that marriages between people of the same sex are void.

Section 101d states that people obtaining marriages in other jurisdictions that would be prohibited by the criteria in section a have a void marriage.

Section 102 states that the penalty for entering into a void marriage is a $100 fine, or 30 days in jail if that fine is not paid.

Section 104 *also* reiterates that there is a criminal penalty for entering into void marriages in other jurisdictions and then living as husband and husband in my state.

By hopping up to Connecticut to get married, i’d be facing at *least* a $100 fine. A pittance for some, maybe, but a criminal penalty none-the-less.

Throbert McGee
February 14th, 2011 | LINK

Thanks for pointing out that legal wrinkle, kermode.

(Although I greatly doubt that you could actually get yourself arrested/fined nowadays under this statute, even if you tried to do so.)

Reed B
February 14th, 2011 | LINK

Throbert –
Although you “greatly doubt that you could actually get yourself arrested/fined nowadays under this statute, even if you tried to do so,” the fact remains that the laws and penalties are on the books.

Just as sodomy prosecutions and convictions were rare, the laws were on the books (and kept kept there) as a pre-emptive, Damoclesean threat until they were eliminated.

It’s these little inequities and oppressive measures, taken all in all, that add up to systemic subjugation of a class of people.

Phil
February 15th, 2011 | LINK

“Both bans constitute unjust discrimination in that they harm the targets of the law for no good reason.”

To be fair, you are sneaking in your conclusion when you say they harm the targets for no good reason. _If_ the nature of marriage were somehow exclusively male-female, then that might be a “good reason” to ban, even if it harmed the target of a law.

Rob Tisinai
February 15th, 2011 | LINK

Phil, I’m going to push back on that. George is describing our argument incorrectly (saying that we view all distinction as unjust discrimination). I’m correcting him. At this point, I’m not trying to establish that our argument is right or wrong, simply that it’s different from what George claims it to be.

Reed B
February 15th, 2011 | LINK

While we’re all concentrating on George, let’s not forget Anderson and Gergis.

I’ve Googled them – interesting reading emerging. This appears to be very much a Princetonian Catholic attempt at “natural law” arguments.

Anderson’s “Advice on Being A Christian Student” contains one little gem: “Now, same-sex marriage threatens to detach gender, sex, babies, and moms and dads from marriage.”

Gergis’s “On Guns, Knives, Sexual Organs . . . ” article (Mirror of Justice) has this lengthy chunk: “My defense of this aspect of George and Lee’s view relies in no way on the “perverted faculty” argument, according to which it is immoral to use body parts against their natural function. With George and Lee, I consider that argument clearly fallacious. And anyway, I have said nothing directly about the morality of same-sex relations. I have only relied on the idea that organs have natural functions, in order to defend the intelligibility of the concept of reproductive-type acts, in which a man and a woman can cooperate by way of their reproductive organs, regardless of their fertility.”

Seems like bloviation to me. Boiled down: “I’m not calling them immoral, just un-natural.”

Amicus
February 16th, 2011 | LINK

Also, on “did I miss anything?”, I want to write this, while I have time.

GGA:

10. Throughout history, no society’s laws have explicitly forbidden gay marriage.
They have not explicitly forbidden it because, until recently, it has not been
thought possible. What is more, antimiscegenation laws, at least in the United States, were meant to keep blacks separate from whites, and thus in a position of social, economic, and political inferiority to them. But traditional marriage laws were not devised to oppress those with same‐sex attractions. The comparison is
offensive, and puzzling to many—

p. 249, footnote

Intense umbrage at that, GGA.

1. Just because laws weren’t used/devised with aforethought about gays, in that past, doesn’t mean that cannot be used that way now, in the absence of criminal sodomy laws.

2. The distinction in intent is bogus. I’d hazard that not a single miscegenation law was put on the books with the stated rationale of ‘economic supremacy’. The stated reasons were very likely to have been quite different (see above). Indeed, at trial (Prop8), there was plenty of evidence of malice (and hypocrisy) towards gays among proponents of the law.

3. Last, we can easily make inferences and observations from the slew ‘marriage protection laws’ in recent memory that show how infuriating is GGA’s effort to minimize the parallels to systemic and criminal disenfranchisement.

Here’s an easy way to illustrate the overbroad nature of these statues:

Because there is a penis going into a vagina somewhere in the state of Virginia, gay couples in that state cannot share in partner benefits, even when supported by their own tax dollars, cannot enter into private contract to support their relationship because they are denied doing so by public policy, can be forced to testify against each other (even if they have kids) and can be fired at will, simply because of a native non-orientation to penis-in-vagina and public affirmation of the same.

So, please, spare us the Harvard journal pretense or head-in-the-sand portraiture that there is no soft “Jim Crow” going on under the rubric “protect marriage”.

Priya Lynn
February 16th, 2011 | LINK

“But traditional marriage laws were not devised to oppress those with same‐sex attractions. The comparison is
offensive, and puzzling to many—”.

Amicus, further to that is that some jurisdictions didn’t define marriage as one man one woman, but when gays tried to marry they changed their laws to prevent it. Those traditional marriage laws were certainly devised to oppress gays and lesbians.

Priya Lynn
February 16th, 2011 | LINK

Further to Amicus’s comment:

Although unequal marriage laws may not have been passed with the intention to enforce the social, economic, and political inferiority of gays and lesbians they still have that effect.

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