Gay Rights: A logical appeal — A response

In a previous post Atticus, a guest poster to this site, argued in favor of same-sex marriage as it relates to property rights.  This is my response.

Atticus begins:

Marriage is defined as between a man and a woman. That’s what the law tells us. So what about two individuals of the same sex? Why is it that so many Americans find it immoral for this group of individuals to have the same right – to engage in marriage under the law? Furthermore, how can the legal system justify withholding this right from a certain group of people?

This brief opening statement encapsulates the entire fallacy of arguing for same-sex marriage as a right.  Before getting to the fallaciousness of this, I briefly want to address the issue of defining marriage.

I think it is first taken for granted that marriage is a right granted by state law.  Sure, marriage is defined by the law, but is that where we get our definition of marriage?  I would argue that the institution of marriage has been recognized by every culture for the the history of the world as an institution between men and women.  There was a time when the government didn’t define or extend incentives for married couples at all.  The question is why does the government get involved in the first place?

As former MIT student Adam Kolasinski notes:

[M]arriage is heavily regulated, and for good reason. When a state recognizes a marriage, it bestows upon the couple certain benefits which are costly to both the state and other individuals. Collecting a deceased spouse’s social security, claiming an extra tax exemption for a spouse, and having the right to be covered under a spouse’s health insurance policy are just a few examples of the costly benefits associated with marriage. In a sense, a married couple receives a subsidy. Why? Because a marriage between two unrelated heterosexuals is likely to result in a family with children, and propagation of society is a compelling state interest. For this reason, states have, in varying degrees, restricted from marriage couples unlikely to produce children.

Granted, these restrictions are not absolute. A small minority of married couples are infertile. However, excluding sterile couples from marriage, in all but the most obvious cases such as those of blood relatives, would be costly. Few people who are sterile know it, and fertility tests are too expensive and burdensome to mandate. One might argue that the exclusion of blood relatives from marriage is only necessary to prevent the conception of genetically defective children, but blood relatives cannot marry even if they undergo sterilization. Some couples who marry plan not to have children, but without mind-reading technology, excluding them is impossible. Elderly couples can marry, but such cases are so rare that it is simply not worth the effort to restrict them. The marriage laws, therefore, ensure, albeit imperfectly, that the vast majority of couples who do get the benefits of marriage are those who bear children.

Homosexual relationships do nothing to serve the state interest of propagating society, so there is no reason for the state to grant them the costly benefits of marriage, unless they serve some other state interest. The burden of proof, therefore, is on the advocates of gay marriage to show what state interest these marriages serve. Thus far, this burden has not been met.

[…]

Some argue that the link between marriage and procreation is not as strong as it once was, and they are correct. Until recently, the primary purpose of marriage, in every society around the world, has been procreation. In the 20th century, Western societies have downplayed the procreative aspect of marriage, much to our detriment. As a result, the happiness of the parties to the marriage, rather than the good of the children or the social order, has become its primary end, with disastrous consequences. When married persons care more about themselves than their responsibilities to their children and society, they become more willing to abandon these responsibilities, leading to broken homes, a plummeting birthrate, and countless other social pathologies that have become rampant over the last 40 years. Homosexual marriage is not the cause for any of these pathologies, but it will exacerbate them, as the granting of marital benefits to a category of sexual relationships that are necessarily sterile can only widen the separation between marriage and procreation.

The biggest danger homosexual civil marriage presents is the enshrining into law the notion that sexual love, regardless of its fecundity, is the sole criterion for marriage. If the state must recognize a marriage of two men simply because they love one another, upon what basis can it deny marital recognition to a group of two men and three women, for example, or a sterile brother and sister who claim to love each other? Homosexual activists protest that they only want all couples treated equally. But why is sexual love between two people more worthy of state sanction than love between three, or five? When the purpose of marriage is procreation, the answer is obvious. If sexual love becomes the primary purpose, the restriction of marriage to couples loses its logical basis, leading to marital chaos.

For more on the differences between opposite-sex and same-sex coupling read THIS POST.

Now to the fallacy of same-sex couples not being afforded the same rights as opposite-sex couples.  Here’s the thing, there are no differences in rights regarding marriage even in states which do not recognize same-sex marriage!  None!  The issue is not one of rights, but restrictions.  Everyone, regardless of sexual orientation are afforded the same rights regarding marriage.  The problem is the same restrictions are imposed as well.

Marriage laws apply in the same way to all people regardless of emotional status or sexual attraction of the perspective newly weds (i.e. a currently unwed person can marry one person, of the opposite sex, who is not of close relation [as defined by the individual State], who is currently free to marry [i.e. not currently married]).  Put another way, marriage laws regulate the participants, not their feelings.  However:

  • It is nowhere prohibited for two consenting adults to make life-long commitments to each other.
  • It is nowhere prohibited for two consenting adults to make their commitment before family and friends.
  • It is nowhere prohibited to make that commitment in a religiously contextualized ceremony.  (There is no shortage of clergy who would be willing to perform a wedding ceremony for homosexuals)
  • It is nowhere prohibited to describe the ceremony as a wedding.
  • It is nowhere prohibited for same-sex partners to refer to each other as “husband” or “wife” regardless of their gender.

If the legal rights and restrictions are equally applied, then no rights have been violated.  Let me briefly address three of the most offered complaints I have heard over the years.

Heterosexuals can marry the person they love/anyone they want

The government is not concerned with the emotional status or sexual attraction of the to-be-wed.  There are no questions on the marriage licence asking if the parties are in love, or attracted to one another, or if the couple even plans on having a sexual relationship.  By seeking to amend the marriage laws, advocates for same-sex marriage, in principle are demanding the government care about the emotional status of those applying to be married.  Though love and attraction is often the reason people get married, love is not a prerequisite for marriage.

The government simply encourages opposite-sex unrelated couples to be legally committed to one another because they are the most likely to produce children.  The incentives the government offers is not because the couple is heterosexual.  Rather they have an interest in the two staying together long-term to raise the children they will produce.  It benefits the government and the children produced.

Second, heterosexuals cannot marry the person they love if they do not meet the requirements listed in the marriage laws.  Same goes for homosexuals.

Homosexuals do not want to marry someone of the opposite sex

And they don’t have to.  No one is required by any local, state, or federal government to get married.  But should someone desire to be married, they must do so in accordance to the laws of the state, which apply to every citizen equally, if they are concerned with the incentives a government may offer.  Otherwise, they are free to make long-term commitments to one another as I noted above in the bullet points.

There could exist a scenario where two heterosexual men could want to marry for purposes of convenience: tax incentives, health insurance incentives, distribution of assets upon death, etc. The film I Now Pronounce You Chuck and Larry highlights this very concept.

The issue is not who you want to marry, the issue is equal rights.  Is the law applied equally to all?  Yes, it is.

Homosexuals want to be allowed to: visit their partner in hospitals/make medical decisions/discuss medical information

In my opinion, each state ought to have a provision for any person to arrange for anyone of their choice hospital visitation in situations where only immediate family is permitted.  This could be done through waivers and consent forms or power of attorney.  The same goes for medical decisions in case of incapacitation, or the ability to discuss medical information with hospitals and physicians.  It could all be achieved without marriage or civil union.

That being said, even if I have been dating a woman for a number of years, if we are not married she cannot visit in these limited circumstances no matter how much we are in love.  She could not make medical decisions for me, or discuss my medical information.  This applies to homosexuals as well as heterosexuals alike.

So while this issue is often argued under the guise of rights, when it comes down to it, rights are not the issue.  Everyone has the same rights.  It’s the restrictions they don’t like.  This is why the argument Atticus makes, and others like it fail.

Comments

  1. As for your next-to-last paragraph, I know of no state which will not allow contractual arrangements to allow hospital visitation, discuss medical information, as well as making medical decisions.

    As an example: due to family circumstances (including distances), my wife and I considered it wise to have good Christian friends able to make medical decisions for us if my wife and I are both incapacitated. Therefore, we made legal documents giving them full visitation rights, full accessibility to medical information, and the right to make medical decisions on our behalf. These people are not related to us in any way. So if we can have such legal documents drawn up, so can homosexuals.

  2. Absolutely right. The question should be “Why should the government be involved?”. In marriage, as in any other consideration, the answer is never “Because I want it”.

    Procreation is so clearly a reason for legal marriage to exist, it’s shocking that anyone would deny it. But, if you want a group of people who can’t reproduce (by the very nature of those involved) to be included, you must deny it.

    As for the interest government takes in sexual relationships, it’s not in government’s interest that procreation take place, or that legal marriage is a prerequisite to making babies. It’s that when a particular configuration of TWO people decide to have a sexual relationship, there is a legal mechanism available to them that lays out their responsibilities to each other AND the people their actions are likely to produce. Put simply, marriage is not intended to produce children. It’s meant to protect children proactively.

    Marriage (inasmuch as it is intended to protect children) is like liability insurance. When you go to purchase it, the question is not “Do you love wrecking into other people’s cars?”. It’s there to protect the people who may be impacted by the possible outcome of your decision to engage in a particular activity: driving. If you don’t drive, you don’t need it. More importantly, neither do the rest of us need you to have it. MOST importantly, we dont need to have government act as if you need it.

    • C2C

      Great response.

      • And we certainly don’t need government telling us you need liability insurance because sitting in a refrigerator box in the back yard, saying “VROOM VROOM!” is “exactly the same thing” as driving!

        The similarities aren’t enough to outweigh the one difference that makes ALL the difference. Liability insurance is for people engaging in one type of ACTIVITY, not for “any person” who likes doing driving-like stuff.

        This all goes away if you say marriage is not about what it actually is about. Take procreation out of it, and they’re right. Marriage may just as well be for any number of any type of people. Because, why not?

  3. A point for another post perhaps, but SS couples not only want the state to recognise and validate their sexual relationships, they want access to children, too. If they can’t reproduce themselves, they insist that the state force organizations to give them children. Any hesitation to do so is labelled bigotry and homophobia.

    As you’ve touched on above, SSM is an incredibly selfish creation designed to cater to the desires of the couple involved. Sadly, OSM has also become increasingly selfish, as the focus has moved away from procreation, together with social and community responsibilities, children have become commodified to an alarming extent.

  4. A few quick responses:

    1. “This brief opening statement encapsulates the entire fallacy of arguing for same-sex marriage as a right. ”

    That wasn’t my argument at all. I argue that two consenting individuals decision to enter into a legally binding contract is a right. And that is their right under the law to be treated equally under the law. Same-sex marriage isn’t the right – it’s about people’s freedoms to pursue their own interest freely without government discrimination.

    2. “Now to the fallacy of same-sex couples not being afforded the same rights as opposite-sex couples. ”

    What you are saying is untrue. Same-Sex couples do not have the same rights and privileges afforded to traditional couples. For example, taxation, social security benefits, in some cases hospital visitation rights, etc. This is also similar to the seperate, but equal clause. SS couples deserve the same title because it carries a social stigma about the legitimacy of their relationship. Do you really think that traditional marriages and SS relationships are treated the same under the law?

    3. Rights vs. Restrictions: The nature of a restriction is that it limits people in what they can do. When you limit what one group can do and not another group that is unfair advantage. Since a SS couple and a traditional couple are equivalent they should be treated equivalent under the law. Just like a black person and a white person are equivalent, thus should be treated the same under the law.

    What if the roles were reversed and the Government decided that due to over population they would restrict traditional couples from being married and encourage SSM. Thus, the exact laws were reversed and marriage was only man-man or women-women. Would you think that was fair – even though it is just a set of restrictions and not right? I doubt it.

    • 1. Any homosexual can pursue their wishes without interference from the government. As my bullet points show, the govt doesn’t tell homosexuals they can’t make lifelong commitments before family and friends by the authority of clergy and call it marriage. What the govt doesn’t do is incentivise it. Big difference.

      2. The government doesnt regulate heterosexuals and homosexuals regarding marriage. They regulate males and females. No male, regardless of their sexual desires (ala Chuck and Larry) can wed (in states that dont recognize it) another male. Same with females. Sexual orientation has zero to do with it. THAT is what you dont see when saying they dont have the same rights. Yes they do. You seem to think and argue that the state should recognize sexual desires and love when considering marriage.

      3. You further fall into the “one group and not another”. The restrictions are not on homosexuals, they are on males who wish to marry other males regardless of their reason to want to do so.

      If I wanted to marry another heterosexual man, as two heterosexuals, for whatever reason but we are denied, am I being refused rights because I am heterosexual?

    • Same-Sex couples do not have the same rights and privileges afforded to traditional couples. For example, taxation, social security benefits, in some cases hospital visitation rights, etc. This is also similar to the seperate, but equal clause. SS couples deserve the same title because it carries a social stigma about the legitimacy of their relationship. Do you really think that traditional marriages and SS relationships are treated the same under the law?

      Atticus. Tax BENEFITS, and social security BENEFITS are NOT “rights.” They are benefits provided by the government to foster real marriage and family raising. There is no benefit to society from same-sex unions.

      Hospital visitation rights, medical care decision rights, etc, can all be done through contracts.

      Same-sex unions and real marriages are completely different social unions. There is nothing equal about them intrinsically. You would have us fight for a circle to be called a square or they aren’t treated equally!

  5. Atticus,

    1. Of course they have that right. But marriage is a specific type of legal contract that has certain requirements, as all legal contracts do. Homosexuals can enter into civil unions or domestic partnerships.

    2. They shouldn’t be treated the same under the law because they are not equal. There is no reason for government to endorse any relationship or union that doesn’t adhere to the traditional family model. Government has an interest in relationships that, in principle, can produce children and provide stability in society. It is very important to society that the native-born population be replenished. And while this may be incidentally impossible in heterosexual relationships, such as the case with an infertile couple, it is never impossible in principle with opposite-sex couples. It is, however, impossible in principle for a homosexual couple, and so government has no reason to endorse or recognize their relationship. There is no benefit.

    3. Your fallacy is assuming these couples, these relationships, are equivalent. They are not.

    BTW, interracial marriage never altered the definition of marriage. It’s still a union between one man and one woman.

  6. Atticus, do you think that legal marriage exists to show that government thinks love between (any or a certain type of) two people is a good thing? It sounds like that’s what you’re saying when you compare hetero and homosexual relationships in those terms (“…legitimacy of their relationships”, etc.).

    This is an honest question. Is that really what you think LEGAL marriage is for? To give a governmental legitimacy stamp of approval?

    • I still want to know the answer to my question. If I am in a state where same sex marriage is not legal, if me and another heterosexual man are prohibited from getting married (in the vain of Chuck and Larry, i.e., for the tax, insurance, property or pension purposes) am I being discriminated because I am heterosexual?

      • Don’t stop there. How about Buddhist Monks, sworn to celibacy? Certainly, their asexuality defines them, right? Why should they not enjoy marriage-like benefits? Bestowing benefits to people in a marriage between two people delegitimizes their sexual… preferrence (?), right?

  7. If we alter the definition of marriage to suit homosexuals, why not alter it to suit polygamists as well? There are many legal contracts that have three or more parties, so why not marriage?

    • You’re right. The question should be why only two? When we’re talking about m/f couples who are likely to produce children who need a stable family, we absolutely should limit marriage to two people. And doesn’t that hint at the reason we have marriage in the first place?

      Marriage is not just a contract that let’s two people have benefits simply because they want them. And the benefits they get are not there to reward their love for each other. Most of the benefits, rights, and responsibilities involved with marriage were designed with the fact that male/female sex produces children in mind. It’s not coincidental. Marriage is for heterosexual couples precisely because they’re who make babies. One man and one woman equals two.

      If it’s not about procreation, a lot of marriage law ceases to make any sense. Just a bunch of stuff that doesn’t apply to any two people, including the restriction of the number of people who may marry.

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