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.