Reframing gay rights as gender equality
After reading another letter to the editor in our college newspaper defending California's proposition 8, discussing how gays have the same rights as we do because they can also marry people of the opposite sex, it occurred to me that common sense was not in high supply for these folks. So, rather than use empathy to explain how they wouldn't be very happy with that argument if the shoe was on the other foot, another approach occurred to me: show where their silly argument breaks down—not for gays, but for women (or men).
Men are allowed to marry women, but women aren't. Women are allowed to marry men, but men aren't. That sounds like gender discrimination to me. Does this argument stand a chance of breaking through that dense wall of willful ignorance?
Probably not. Nice try, though
November 14, 2008 8:00 AM | Reply | Permalink
Yeah, probably not. Maybe it'll at least make them shut up for a little while as they realize they don't have a rhetorical leg to stand on.
Nah, that probably won't happen, either.
But what about as a legal challenge? I realize that the Equal Rights Amendment never passed, but are their state constitutions that explicitly guarantee equal rights for men and women where this might be a viable legal challenge?
November 14, 2008 8:24 AM | Reply | Permalink
I think that's somewhat along the lines of the state supreme court decision in Connecticut. This week was the first week of gay Marriage becoming legal here, and furthermore there are no residency requirements. I feel happy at hearing and seeing their joy. It is wrong to deny people that, I think. (Or as Bill Maher put it, the right to be as miserable as other married couples.)
It's hard to argue logic with people who have convinced themselves that it is their business to patrol others bedrooms. There used to be another name for such people and they were looked upon as "disturbed." I don't think anything has changed, really.
November 14, 2008 8:32 AM | Reply | Permalink
What I don't understand is the refusal to see their hypocrisy. It's almost seems willful.
It's normal to think that rules apply differently to ourselves. And when we compare two situations, we look for ways to rationalize why, when we've taken a remarkably similar path as our opponent, our way was somehow more acceptable.
But when we're honest with ourselves, we understand when we have been hypocrites. When I come to this realization, I feel embarrassed and contrite. When will the Prop 8 supporters who are whining about their own rights have this epiphany?
November 14, 2008 8:42 AM | Reply | Permalink
It definitely does seem willful. It's not hard to see how their same filtered logic could be applied to anti-miscegenation laws: blacks have the same rights as whites, they can marry someone in their same race. Heck, you could extend it to other cases: blacks have the same rights as whites, they can go to schools with others of their same race. (Obviously, one has to ignore the existence of mixed-race individuals. This makes me wonder: how do marriage laws affect hermaphrodites?)
It's hard for me to imagine that such people don't realize just how tortured their logic is.
November 14, 2008 8:50 AM | Reply | Permalink
It isn't willful for them, it's visceral, THEY CAN'T HELP IT. This stuff isn't going to stop for them individually until, by some freak accident, they happen upon gay people, in a circumstance where they can't discount them as less than good people, and see that these kinds of decisions have made these good people suffer in an undeserved way. It happens one-at-a-time, currently, at best. And in many cases, another bigot is born to take their place in the bigotted line-up. Sad, but true.
November 14, 2008 1:05 PM | Reply | Permalink
This reminds of a Supreme Court case, the name of which slips my mind. It was a decision from the seventies on gender discrimination, holding that pregnancy discrimination is not sex discrimination because the equal protection clause does not protect different treatment of "pregnant persons" and "non-pregnant persons". Any cracker jack lawyer or law student know which case I'm referring to?
November 14, 2008 9:17 AM | Reply | Permalink
should be "protect against"
November 14, 2008 9:18 AM | Reply | Permalink
Ah yes, here it is, Geduldig v. Aiello, 417 U.S. 484 (1974) (holding that a state disability insurance system excluding pregnancy from coverage did not discriminate on the basis of sex in violation of the Equal Protection Clause of the Fourteenth Amendment, because it simply divided potential beneficiaries into two groups: pregnant women and non-pregnant persons, including nonpregnant women).
November 14, 2008 9:56 AM | Reply | Permalink
Your comments sent me down a Wikipedia path of exploring the Fourteenth Amendment.
One thing I still don't understand, if the Fourteenth Amendment (enacted in 1868) guarantees equal protection to women, why is it that they didn't have the right to vote until the Nineteenth Amendment (enacted in 1920)?
November 14, 2008 11:54 AM | Reply | Permalink
Two reasons (I think :)): First, the equal protection clause was not construed to apply to male/female discrimination at its inception. Second, in any event, it had to be read in light of the constitution as written, which provided for suffrage to males, until such time as the 19th Amdt. was passed.
November 14, 2008 12:02 PM | Reply | Permalink
It is a good point but I don't think it will persuade the public. I still think that the strongest approach that can get reach beyond religious objections is decrimination. If there were commercials prsenting over and over again various scenarios of descrimination.... such as the water fountain with whites only written above... a black man walks up and peels away the word whites to reveal blacks, now it reads blacks only. Then another person walks up and peels off blacks to reveal 'gays only'. All decrimation is wrong. Hammer home 'decrimination is wrong' Use a bus analogy... things that will hit home to minorities and the realities of the history of descrimination in our country. Don't focus on marriage. ALL descrimination is wrong.
I think the mistake has been to try to push against tightly held ideological beliefs about religion and marriage etc. Just focus on descrimination. That is a trigger that could help win the fight.
November 14, 2008 12:04 PM | Reply | Permalink
Ben, off-topic, but just wanted to say that it's good to see you posting again. Cheers!
November 14, 2008 12:18 PM | Reply | Permalink
You're dead on here. This is a growing approach in legal academia, and certainly one of the strongest arguments for marriage equality as required by the Equal Protection Clause; because the discrimination operates on the basis of sex, the government's ban must survive intermediate scrutiny in order to be considered constitutional.
In order to survive intermediate scrutiny, the State must demonstrate an "exceedingly persuasive justification" - important government interests must be served by a policy which is substantially related. There does not exist any such justification, though conservatives on the Court are loathe to admit it.
November 14, 2008 7:41 PM | Reply | Permalink
I think the silliest argument is that allowing same-sex marriage somehow undermines the Institution of Marriage (TM).
How does allowing Adam and Steve (or Adele and Eve) weaken marriage? If they're in a loving, committed relationship, why shouldn't they be able to seek the same state recognition that a heterosexual couple can?
"Starter" marriages, or drunken on-the-spot weddings weaken respect for the institution, but I fail to see how same-sex marriage weakens anything about traditional marriage. 40 years ago some states outlawed interracial marriage, too.
My best guess as to why some heterosexuals feel threatened by gay marriage is that some of them are latently closeted. Who knows - maybe if gay marriage were legal, Larry Craig might never have gotten married to a woman, let alone been busted for tap-dancing in that infamous men's room...
November 15, 2008 7:13 AM | Reply | Permalink
I'll second Astral...I didn't recognize the new avatar!
I wonder if a good lawyer and an open-minded appellate court could get this argument through. I agree that's it's a fundamental civil rights issue, and adding sex discrimination to the mix might make it stick.
I know this argument has been floated before (most recently by a priest in San Fran, I think), but I was just reading Sarah Vowell's new book and she points out that Puritan marriages were not religious - they were purely civil contracts, and divorce for failure to fulfill the terms of the contract (no sex or no kids) was common. I think the answer here is to make "marriage" a purely religious institution and ALL legal unions are "civil unions." I mean, we already know separate isn't equal, and Prop 8 supporters don't want homosexuals to have access to marriage, so then the only solution is for everyone to get civil unions. Leave "marriage" to the God folks...whaddya think?
Oh, heck I just realized this blog's a week old so you'll probably never see my comments...
November 24, 2008 1:03 AM | Reply | Permalink
Hey, I'm narcissistic enough that I occasionally check in on my old blogs, especially if they're the last one I've written. (I'm thinking about writing a new one about how "Too big to fail means too big to exist" on our failure to do trust-busting any more, and how such measures could get incorporated into any bail-outs.)
Anyways, to your point: I absolutely agree. Of course, this will not please many of those Prop 8 supporters one lick, because it's not hard to find a church that will marry homosexuals, at least not in places like San Fran or Charlottesville.
Wait: no kids? That was grounds for divorce? Am I correct in assuming that the woman invariably got blamed for it?
November 25, 2008 6:57 AM | Reply | Permalink
Ha, and here I thought I was the only narcissist here...whew!
"Wait: no kids? That was grounds for divorce? Am I correct in assuming that the woman invariably got blamed for it?"
Nope, the wives initiated divorces all the time. The book cites an example of a wife who was granted a divorce on the grounds that her husband "was not performing his husbandly duties." Nice, huh?
Not to sound like Levar Burton, but if you think you'd enjoy a snarky take on the founding of Massachusetts, the book is "the wordy shipmates" by Sarah Vowell.
November 25, 2008 6:26 PM | Reply | Permalink