Equally Equal, But Not Equally Just

Some advocates of gay marriage, as well as a California Superior Court judge, have argued that barring same-sex marriages constitutes a form of sex discrimination. The argument, in simplest terms, goes like this: Eve can marry Steve, but Adam cannot marry Steve. Thus the law discriminates against Adam, because it gives Eve rights that Adam does not have.

Interestingly, the argument implies that both sexes are being discriminated against. Adam can marry Madam, but Eve cannot, so the law gives Adam rights that Eve does not have.

Much as I support gay marriage, I don’t think this argument flies. What we have is a conflict between two different rules. The rule supported by gay marriage opponents is:

1. Person A can legally marry any willing member of the set {adult persons not of A’s sex}

whereas the rule supported by gay marriage advocates is:

2. Person A can legally marry any willing member of the set {adult persons of either sex}.

These two rules are both formally equal. They are both abstract, and neither specifies the sex of subject. Gay marriage opponents are correct to say that, under current law, everyone has an equal right to marry someone of the opposite sex.

“But,” some may object, “rule 1 differentially affects certain groups. Yes, everyone has a right to marry someone of the opposite sex, but some people – notably homosexuals – have no use for such a right.” This argument fails for two reasons. First, it implicitly recognizes that the issue is not really one of sex discrimination. It’s not men and women who are affected differentially, but straights and gays.

Second, lots of rules affect people differentially. Rules that protect property have a different effect on people with lots of property than on people with little. The right to pursue a career in modeling is much more useful to someone who’s sexy and beautiful than someone who’s not. These rules do affect people differently, but most of us (communists aside) are okay with that.

I think the lesson here is that formal equality is a pretty empty notion without some substantive notion of rights underlying it. The relevant underlying rights in the case of gay marriage are things like freedom of association (I can live with whomever I want), freedom of contract (I can make agreements and promises with whomever I want), and self-ownership (I can rub naughty bits with whomever I want).

Of course, marriage is more than just a contractual association; legally, it entitles you to certain privileges, such as (sometimes) preferable tax treatment and the ability not to testify against one’s spouse in court. These privileges are difficult to justify on the basis of underlying substantive rights. The argument for extending them to same-sex relationships is more roundabout, but it goes something like this: the state should not hand out special freebies and then make those freebies contingent upon waiving one’s substantive rights or exercising them in a manner one finds repugnant.

I realize this argument is incomplete. Specifically, one might ask whether the existence of people who find sex and marriage repugnant means that no marital privileges can pass muster. But I think this approach has more promise than any line of argument that relies strictly on formal notions of equality.