The debate over homosexual marriage is simmering again in California. Opponents of Proposition 8 are making their case in the California Courts, arguing that California’s recent constitutional amendment violates the civil rights of those engaged in homosexual practices.
To gain clarity on this discussion, one can put it in a different context. Consider a sandwich shop on Crow Street, U.S.A. A white man walks into the sandwich shop, looks at the menu and orders a turkey on rye sandwich. An attendant prepares the sandwich and gives it to the white man. The white customer pays the attendant and walks out. Then, a black man comes to the same shop, orders the same sandwich but receives a very different response. The black man is told that this shop cannot serve him.
This is an example of what? If all else is equal, we clearly witnessed an example of a civil rights violation. Specifically, we are seeing Jim Crow racism in action. Why? Put simply, the white man could get something the black man could not simply because of his skin color.
Now, let us look at a modification of the previous scenario. A black man walks into a sandwich shop on Main Street, U.S.A. He walks to the counter without viewing the menu or glancing at the order board above the attendant’s head. Then, he asks for a Brontosaurus on Soylant Green sandwich. Dumfounded, the attendant replies, “Well, sir, that’s not on the menu.” He continues, “The brontosaurs went extinct millions of years ago and Solyant Green is just a mythical construct invented for a 1970s movie starring Charlton Heston.” The resigned though still hungry black man walks out, passing a white man on the way into the shop. The white man, astonishingly, asks for the same brontosaurus on Soylant Green sandwich. To this request, the attendant counters, “look, pal, I do not know what type of joke this is, but that’s just not on the menu.”
Now, this is an example of what? A civil rights violation? Racism? No. They received equal treatment. Both the white man and the black man asked for the same thing, and both were refused. The reason was simple; the request was not on the menu.
Moving closer to our targeted issue, imagine a justice of the peace’s office on Getto Street in Warsaw, Poland in 1940. A blond haired, blue eyed Methodist (a protestant Christian denomination) woman walks into the office arm in arm with the man who hopes to marry her. After explaining their intentions, the German appointed justice of the peace asks for their papers. He reviews them, abruptly stops and harshly says, “You, sir, are a Jew. A Jew will never marry an Aryan in Hitler’s Poland!” The couple withdraws in fear. A month later, the same woman returns with a Methodist male companion and requests a marriage license. The same justice of the peace reviews their papers and grants the happy couple a marriage license.
What is this? A civil rights violation has occurred. In this situation, we see religious discrimination. The Jewish fiancée was denied the right to marry his gal, but a protestant man was able to marry the woman without a problem.
Let’s return to Ghetto Street. As a way of compensating for losing his one love, the Jewish man finds three Jewish women willing to enter into a polygamous marriage with him. So, he braves the justice of the peace once more to ask for a marriage license. Without even looking at the papers of the four people before him, the justice exclaims, “You want to marry how many girls! This is, of course, entirely illegal, and I cannot do it.” Moments later, a Methodist man arrives with three blonds in tow. He says, “I can’t wait to marry these gals; let’s get the paperwork out of the way!” To this the justice responds, “This must be international polygamy day! However, the law remains; you cannot marry more than one woman, sir.”
In this scenario, we again see the difference between a civil rights violation and fair application of a rule. Neither man could marry his trio. The discriminatory religious preference of the justice of the peace did not affect his decision. The law stated that one person could have but one spouse at a time, and the justice applied the law fairly.
Connecting the two situations and four scenarios described, one can see that both highlight the difference between civil rights violations and fair applications of societal prohibitions. Civil rights violations occur when a particular group enjoys privileges fundamentally denied to others. When you strip the emotion and religious arguments away, it is fairly easy to see and understand this.
Let’s apply our newfound clarity to the homosexual marriage issue. We need to answer one fundamental question. Are homosexuals asking for a privilege given only to heterosexuals, or are they asking for something denied to both groups? In the former case, homosexuals would be the victims of a civil rights violation, but in the latter, they are simply asking for something “not on the menu.” Homosexuals are asking for the ability to marry people of the same sex. Heterosexuals have not asked for this ability, but under current laws, same sex marriage would be denied to heterosexuals as well. Neither group benefits from its sexual practices. Neither group enjoys a privilege denied to other. Therefore, homosexuals are not suffering a denial of rights. They are merely asking for a change in existing laws meant to benefit their group, a case of simple self-interest – not civil rights.
Neither group benefits from its sexual practices. Neither group enjoys a privilege denied to other. Therefore, homosexuals are not suffering a denial of rights. They are merely asking for a change in existing laws meant to benefit their group, a case of simple self-interest – not civil rights.
I think they kind of are Zack. This depends on your defintion of marriage whether it is a right or a privelege and whether it is to be defined as a union between a man and a woman or between two individuals. Your defintion only stands up if marriage is defined as an institution where a man and a woman make a commitment to each other not one where two inviduals make a commitment to each other. The former definition is in my opinion more influenced really by our religious heritage and bourgeois conceptions of marriage that grew out of late mideveal Europe. I think it is time we perhaps moved beyond these definitions.
Also I can’t accept your analogies, it seems to imply that sexual orientiation is a matter of choice rather than something that is exogenously determined. I think the history of homosexuality particularly in homophobic societies where many have entered into unhappy marriages and as a result suffered various psycholical problems, lapsed into drinking etc. indicates that to speak of a right to marry women for them is meaningless since it is a right that would impose a high personal cost to exercise and which they have no desire to do so.
It would be like going to the all the shops and being told that they only sold white bread, now if for some reason white bread made you perennially ill and you could only eat brown bread (and lets just assume that bread is the only available source of staple in this fictive economy) and that yeah you could have brown bread but only if you went abroad to buy it; and for whatever reason the majority of people who liked white bread and weren’t affected by it refused to allow the govt to import or seel any brown bread domestically; then this strikes me as discrimination.
Part of the problem is that marriage isn’t simply a right, it isn’t even just a privelege – it is an institution and I don’t see why homosexuals can’t partake of this institution as well as hetereosexuals. To say that it isn’t discrimination because heteresexuals can’t undergo homsexual marriage seems to imply that homosexuals are just hetereosexuals in disguise who should stop moaning since they dont’ have any bars that hetereosexuals have.
Of course marriage is about a lot more than just a legal act recognised by the state; what is really driving this conflict imo is a desire by the gay community to put homsexual marriage- relationships on the same footing as hetereosexual-marriage relationships. And why not.
Lastly, surely all most civil rights complaints will involve self-interest. In your analagy of the sandhwich incident the black customer can legitimately claim that his civil rights have been violated – why is this incompatible with his self-interest?
Conrad: This was written by my good friend Captain Arrrgh as the byline at the bottom of the article says.
Captain Arrrgh: ok I missed the magic trick where with a sleight of hand you defined gay marriage as “off the menu.”
Ah – really sorry there Zack, I thought it was just you on the blog and forgot that the Captain was a contributor (sorry cap at the misdirection) – and that small print, is well really small print 😀
It didn’t sound quite like you either, so I was a bit surprised. Interesting comparisons though even though I didn’t agree with the arguement.
Conrad,
At the base of it, one cannot claim a violation of rights unless one can identify a difference in treatment between supposedly privileged and disadvantaged classes. The examples present disadvantaged groups in situations where disadvantage is manifest and where it is not relevant to emphasize this point. Paragraphs one and two of your response introduce God, religion and morality into the discussion. They also inject customs, traditions and, indirectly, financial matters into an already complicated debate. On the matter of simply identifying civil rights violations, these matters are irrelevant. Both homosexual man A and heterosexual man B are denied tax benefits if they cannot marry man C. They are equally denied; neither class enjoys a privilege. Interjecting statements about marrying the person of your choice vs. the man or woman of your choice introduces imprecision into your argument. Homo or hetero, each chooses to marry a man or woman, not an amorphous being. To counter my argument, you must find a delta, not add ancillary issues or obfuscations.
Now, your white bread / brown bread analogy, on the other hand, touches a matter of the gravest importance for any group of interacting people – the identification of rights. How does one know what privilege is a basic right that every human should possess? This is not the same as detecting a rights violation. The delta concept helps a person check for violations, but it is useless in the search for the base set of human rights…
Captain Arrrgh: You claim a couple of things. One is that the act of marrying another of the same gender for homosexuals is equivalent to the act of marrying one of the same gender for heterosexuals instead of the act of marrying someone of the opposite gender for heterosexuals. I think your comparison is not correct, though I am not sure what arguments I could bring forth that could change your mind.
You argue that gay/lesbian marriage is not a civil right. I am actually willing to grant that since I am unsure whether there is such a right or not. However, I think there are smaller such rights for homosexual couples to take care of each other and be together. These rights have necessitated a lot of domestic partner benefits here in the US, which is something I don’t like since I believe marriage (i.e. a contractual long term relationship) is an important pillar of society. That argument gives me a pragmatic case for gay marriage as I wrote a long time ago.
As for the current lawsuit in California, it’s stupid in my opinion.
Hi Captain – I just want to apologise for the case of mistaken identity before, there it was unintended I assure you!
At the base of it, one cannot claim a violation of rights unless one can identify a difference in treatment between supposedly privileged and disadvantaged classes.
My response here would be very similar to Zack’ s for me Homosexuals here are the disadvantaged class while hetereosexuals are not. Your case rests on Homosexuals and Hetereosexuals being of the same class; which they are not, in my view. This is a category error on your part which I feel undermines the rest of your otherwise logical arguement.
Paragraphs one and two of your response introduce God, religion and morality into the discussion. They also inject customs, traditions and, indirectly, financial matters into an already complicated debate. On the matter of simply identifying civil rights violations, these matters are irrelevant.
Ok, I can appreciate your arguements about trying to keep the debate focused and not expand its coverage but you feel that morality, customs and traditions as well as financial matters are “irrelevant” to a debate on civil rights?! I think this is really wrong; Western traditions of civil and political rights as well as law are in reality based on these sources.
My point, though not very sharply laid out, for which I will take responsibility; is that one of the reasons that this can be claimed not to be a civil rights violation can only be valid if one takes a specific interpretation of marriage which itself rests on the sources I outlined above.
You have to think about what is the foundation from which civil rights flow and what defines them. I don’t think we can do that unless we also examine some of our earlier assumptions regarding marriage.
Both homosexual man A and heterosexual man B are denied tax benefits if they cannot marry man C. They are equally denied; neither class enjoys a privilege. Interjecting statements about marrying the person of your choice vs. the man or woman of your choice introduces imprecision into your argument. Homo or hetero, each chooses to marry a man or woman, not an amorphous being. To counter my argument, you must find a delta, not add ancillary issues or obfuscations.
No, the problem is that you are treating A, B and C as the same when they are not. They are all men, sure but they have other divisions apart from that. In fact, the assumption that one must be defined by gender alone like this, to my mind, indicates a hetereosexual bias.
A and B belong to different categories as far as I am concerned; you can say that they are both subsets of a larger group which covers all men regardless of sexual orientation. So what you have here is a case where subset 1 (heteros) have a right that subset 2 (homosexuals) don’t have. This is discrimination.
How does one know what privilege is a basic right that every human should possess? This is not the same as detecting a rights violation. The delta concept helps a person check for violations, but it is useless in the search for the base set of human rights…
I am sorry but this is confusing. How can you know whether there is a rights violation unless you have first established what these rights are – isn’t this basic falsification theory? Unless we can agree what constitutes a set of basic civil rights, there is little point in checking for violations. This is important. My feeling is that we probably differ on our the ascribed set of civil rights, which is one of the reasons why will disagree on this specific issue.
Conrad and Zack,
Both of you argue that the difference between the heterosexual and homosexual groups with regard to same sex marriage is desire. Let’s examine this idea of desire in a different rights context. Consider the right to vote. Roughly 40-50% of eligible voters choose not to cast ballots during presidential elections in the U.S. By failing to cast a vote, have these inactive citizens forsaken their voting rights? Should their names permanently and irrevocably be stripped from the rolls? Certainly not! Their lack of interest does not diminish their right to vote. Conversely, extreme electoral zeal does not multiply the value of votes cast by politically active individuals. The right to vote is insensitive to desire. Other rights are similarly insensitive to desire.
We must return to the heart of the matter when searching for civil rights violations – treatment. The only question we need to ask is, “Were individuals treated differently at the point of decision.” If both heterosexuals and homosexuals cannot marry others of the same sex, they are equally treated. The level of desire will, of course, be different, but when it comes to finding unequal treatment in a given rights framework, desire is irrelevant.
Now, let’s return to the mystifying last paragraph of my previous response. My arguments have been based on the idea of detecting rights violations within a given framework. One only needs to identify treatment differences or the presence of equal treatment to confirm or deny rights violations in this context. However, one can argue that equal denial is equal violation, if one can establish that a fundamental right granted to all mankind is not present in an existing framework. The specter of equal denial as equal violation is the one conjured in my previous closing paragraph. It is important to remember, though, that rights violation detection and the identification of a list of basic rights fall into two distinct categories of discussion. One is well advised not to make the error of ascribing properties of one to the other.
MISCELLANEOUS
Conrad:
– Don’t worry about the identity confusion. Given my infrequent posts, it’s quite understandable.
– I accept that heterosexuals and homosexuals self-sort into different categories via sexual behavior.
– God, religion, morality and western customs become relevant when one tries to establish a fundamental set of rights, not when one tries to determine if existing rights are being violated.
– Bias is unavoidable. I have it, and so do you.
Zack:
– I agree that marriage is a fundamental social institution.
– I am partitioning the complex problem of homosexual marriage into parts in order to better form a reasoned position on the issue. As it turns out, the part about equality within the given civil rights framework has been easier to resolve than the ones about fundamental rights or ancillary benefits.
– As a side note, Leona Helmsley left 12 M$ to her dog; so, I find it highly dubious when people claim they cannot transfer their wealth to the institutions and individuals they see fit.
I do appreciate your thought provoking lengthy explanations to prove a point. Rights and privileges come after words. First comes the reality. And what is the reality? Man and women get married for what? Sex? No, though that is contained in it. Marriage is only for reproduction to keep the world going which is not possible if a male marries a male. Marriage between males or vice versa sounds funny but several other funny acts, I know of, have been there in the society even in the ancient times. Rights means human rights which do not include inhuman acts. You are learned bright fellows, so I am sure you know what is human and what is inhuman. I am not talking of killing or thrashing. The governments that have legalized homosexuality, perhaps calling it personal freedom, have not kept in view it its global effect. There are such lust-loving so-called human beings who would like to have sex with their sisters / mothers / daughters (Please do not stare at me. This had been there in the ancient times and is there in Europe and America but is not publicized). Will those law-makers allow that also? Probably they will if the basis remains personal freedom.
Always a line has to be drawn to secure a goal, and it must be drawn without leaving any loop-hole. Unfortunately, such loop-holes have always been created by the judiciary throughout the history.
This argument is simply the “marriage has always been between a man and a woman” argument dressed up in other garb. Clever, but meaningless. You fail to recognize that social change always alters the status quo, and that position being changed has often been hed for long periods of time. Think about womens’ suffrage, interracial marriage (also touted as “against God’s will” when I was younger), Civil rights for blacks, equal pay for equal work, etc. All of these changes countered long-standing social policies.
I think the time is past due to apply Christ’s message of loving everyone as we love ourselves and to allow those homosexual people to live their lives free from outside interference from others. God himself does not force us to obey Him—He has granted us free will and hopes that we will chose to love and obey Him. Love does not force or coerce because the result is unhappiness and resentment. Love grants autonomy to the beloved. I think that it is time for tolerance, understanding and love. Maybe I am wrong, but that it how I feel.
For those who base their arguments on the Word in the Bible, I would remind them that the Bible never addressed a long-term, loving , committed relationship between two parties of the same sex, and certainly never discussed marriage in this context. It simply condemned certain sexual practices or sexual acts. In order to reach the conculsion that homosexual marriage would be forbidden, it is necessary to interpret these statements and apply them to facts not in evidence in the Bible. Maybe you are correctly interpreting these statements, but isn’t this judging others—forbidden in the Bible. Interpreting the law and applying it to a new set of facts is the providnce of a judge, and the Bible tells us that there is only one Judge and one Lawgiver. I have been thinking about this quite a bit because my church preaches against homosexual marriage and I have spent some time re-examining my own views. I don’t know that I am right, but so far, no one has come up with an argument sufficient to convince me to change my mind.