Saturday, March 19, 2005

Equally Equal Revisited

Amanda at Without Bound has responded to my post on gay marriage below. Before replying, I should clarify my position: I support gay marriage (at least as a second-best alternative to privatizing marriage), and I think it’s wrong for the state to sanction heterosexual marriage while banning homosexual marriage. What I’m arguing against is the claim that banning gay marriage is wrong because it constitutes sex discrimination. Here’s how Amanda replies:
The fact that, in Glen's Rule 1, the set of rights given to each sex is contingent on sex (that is, the set of allowed marriage partners differs for men and women) means, by definition, that sex discrimination is taking place. And I think that's wrong. Allowing the state to make laws that take gender into account goes against liberal concepts of equality - not only should men and women be treated equally by the law, but the law, as much as possible, shouldn't even pay attention to the distinction. I don't think that a gender-blind society is either possible or desirable, but a gender-blind government is worth striving for. [emphasis added]
This strikes me as an odd definition of sex discrimination, since (as I said in my original post) many rights and privileges are dependent for their application on the characteristics of the agent to whom they belong. What protection of property rights means, for instance, depends on what property you have. To me, sex discrimination means applying different rules to the sexes, rather than one facially neutral rule with different applications.

I was about to bring up the issue of separate restrooms for men and women as an example of equal rights (and prohibitions) contingent upon sex – and then I saw that Amanda had written a prior post arguing against laws prohibiting women from entering men’s rooms (and vice versa). Points for consistency! But I’m still not buying the argument.

I think Amanda is conflating the end (equal legal treatment of men and women) with one means of achieving it (never having rules whose application is dependent on the agent’s sex). While rejecting that kind of rule may be useful, inasmuch as doing so rules out sex discrimination a fortiori, it is not a necessary condition of equal treatment. Having unisex restrooms in the public schools would assure no sex discrimination for restroom usage. But if a public school has boys’ and girls’ restrooms, provides boys and girls with equal opportunities to answer the call of nature, cleans both restrooms regularly, etc., that too satisfies the principle of sexual equality.

I hear the counterargument, which is that my reasoning would bring back the “separate but equal” principle struck down in Brown v. Board of Education. But note that the reasoning in Brown was that, because of particular facts about education, politics, and race relations, the quality of education received in segregated schools could never really be equal across blacks and whites. Thus, segregated schools constituted a form of race discrimination. Now, apply the same reasoning to the ban on gay marriage. Is the claim that the ban somehow causes marriage to be unequal across men and women? Of course not. The differential impact is across straights and gays, not men and women. Hence no sex discrimination.

The point, again, is that the formal principle of equal treatment can’t do all the heavy lifting. You also need a substantive notion of individual rights to go with it.


David said...

But there's a rational agrument that by the way the law is written, it's not discrimatory against gays/bisexuals/lesbians. It says people of the same gender cannot marry. Thus two straight men couldn't marry, but a gay man and a lesbian could (and have). No mention of sexual orientation.

Legaly, I think there's more to the logic than you're admitting (though it's not the strategy I'd use).

Anonymous said...

Why is the state entitled to information about my sex (m or f) and make laws that discriminate on that piece of data? Is this sex classification based on genotype or phenotype or butch hair cuts? Hermaphrodites are in a predicament, I'd say. If a woman marries a man who then has a sex change and becomes a woman does that render their marriage null and void? Why should that be the case? The point is that sexual discrimination re the marriage controversy is bigotry plain and simple.
If two heterosexuals of the same sex want to marry they are prohibited in most places. So heterosexuals are potentially being discriminated against as well. That is just as plain wrong. We need the Equal Rights Amendment to the Constitution to set people straight, no pun intended.

Big Ben said...

I agree with your main point that this is not "sex discrimination" as such, but I have to disagree that "the formal principle of equal treatment can’t do all the heavy lifting." SCOTUS unanimously ruled in Loving v. Virginia:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Replace race with sexual orientation and it's pretty clear that the situation is the same.
Whether one wants to apply these principles to public restrooms is another matter ;)

Glen Whitman said...

Big Ben -- It seems to me that the heavy lifting is being done by the freedom to marry ("the freedom to marry, or not marry, a person of another race resides with the individual"), not by the principle of equal protection. In any case, it's clear that equal protection alone would not be sufficient to reach the conclusion.