Thursday, September 29, 2005

Real v. Bogus Arguments for Gay Marriage

[Cross-posted on The Agitator.]

Dan Savage responds to a reader’s question about how to resist right-wingers’ “gay marriage will lead to polygamy” slippery slope argument. Dan’s answer relies on extended quotes from E. J. Graff, author of What Is Marriage For?. Graff explicitly denies the libertarian argument for gay marriage and endorses the gender-equality argument.
They're assuming that we homos are making a claim to marriage under the libertarian argument that everyone should be free to do as s/he wishes. Wrong. We are arguing that we already belong to the West's contemporary marriage philosophy -- for capitalist and for feminist reasons. … Gender equality is today's governing public philosophy, in marriage and in much else. For 150 years, courts and legislatures have changed marriage law to fit this philosophy, under which same-sex couples fit just fine.
As I’ve argued before, this argument doesn’t fly. The bottom line, as I said before (yes, I’m quoting myself), 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).”

But even if you buy the gender-equality argument, it’s not the real reason that gay-marriage advocates support gay marriage. Say that Bob and Jill would both like to marry Carla, but only Bob can. The gender-equality argument says this is wrong because Bob and Jill are being treated unequally, as Bob’s allowed-marriage-set includes Carla while Jill’s does not. Notice that Carla’s interests have nothing to do with it. Carla’s role here is equivalent to that of a parcel of real estate before women were granted the right to own property. Yet I suspect most people who favor gay marriage would say that Carla’s ox is also being gored here. The real issue is that, if Jill and Carla like each other, they should be allowed to associate as they please. Banning Bob from marrying Carla would make things equal, but it wouldn’t solve the problem.

(A possible counterargument is that Carla’s interests are involved because the same law that prevents Jill from marrying Carla also prevents Carla from marrying Jill. But the gender-equality argument doesn’t require caring about Carla. The gender-equality argument, if it works at all, would still work if Carla were a dog or a piece of furniture.)

The reason we should care -- and the reason gay-marriage advocates do care -- about gay marriage is that we support freedom of association, freedom of contract, and self-ownership. But if these claims provide the basis for gay marriage, they provide a strong argument for polygamy as well-- so long as it is practiced voluntarily by all parties involved. Outlawing polygamy means interfering with people’s ability to intimately associate with whomever they wish on terms they find mutually agreeable. So the right-wing slippery slope argument makes a good deal of sense. But it’s a slippery slope toward freedom, the kind we should jump on with a toboggan.


Glen Whitman said...

CF -- I favor legalizing prostitution, incest between consenting adults, and conceivably necrophilia (though I wonder about the possibility of a public health hazard from keeping a dead body around). As you say, the acceptability of bestiality depends on your view of moral claims of animals; since I'm okay with killing and eating animals, I lean toward saying it should be legal to have sex with them, too. So yes, as I said, I'll take the slope.

However, that doesn't mean I accept the conservative argument that equates them all. While the arguments for making them *legal* are similar, I think those who would like to engage in incest, necrophilia, or bestiality probably need psychotherapy. I don't have that opinion of homosexuality.

Big Ben said...

It seems to me that you're misreading Savage's argument. I don't think he's saying that gender equality arguments mandate gay marriage, but rather that gender equalty arguments have already changed marriage to the point that the genders of the couple are irrelevant.

Marriage used to be one person gaining property rights over another, but now that it has become two consenting adults freely entering a contract, entrance requirements specifying that they be of opposite sex are obsolete, and we should change those laws to recognize that fact.

I think your argument is stronger than this one, but I think there's merit in this argument as well.

Glen Whitman said...

Anon -- I beg to differ on slippery slope arguments. They are fallacious if they assert that A *always* leads to B -- but why be so restrictive? Most slippery slope arguments simply claim that A makes B more likely than it would be otherwise, and this type of argument can be quite valid.

Here is my paper, co-authored with Mario Rizzo, on slippery slopes. Here is Eugene Volokh's paper on the subject. Both papers argue for the validity of (some) slippery slope arguments.

Glen Whitman said...

High30Something -- I basically agree. I think marriage should be a private matter. Your church should be able to allow gay marriage, or not, as it sees fit.

But as it stands, government is involved in the marriage business. And some involvement is unavoidable, inasmuch as marriage is not just a spiritual commitment but also a contractual arrangement to share property, child-rearing duties, medical power of attorney. To the extent that the state is involved, I think the state should not discriminate. If gays want to enter into these contractual arrangements, they should be able to do so.

But it's possible to distinguish between spiritual marriage and civil marriage. Just because the state recognizes a gay marriage doesn't mean your church has to. (After all, there are plenty of marriages that the Catholic Church doesn't recognize, such as those between divorcees.)

For more on privatizing marriage, go here.