August 13, 2010

The Distinction Goes Sub Silentio

Hatched by Dafydd

Paul Mirengoff of my favorite blog (P - - - - L - - -) admirably faced what I've come to call the Question... a childish retort that inevitably bubbles up whenever one undertakes to defend the traditional definition of legal marriage against the tendentious redefinition that gives us the non-sequitur "same-sex marriage."

The Question is, of course, "If you applaud the courts overturning anti-miscegenation laws in Loving v. Virginia, how can you decry the courts overturning anti-gay-marriage laws in Perry v. Schwarzenegger? Doesn't everyone has the right to marry the person he or she loves?"

(Answer: No, no more than everyone has the right to be the most popular person on campus.)

It's a smug and juvenile argument tarted up as a question; it's equivalent to a born-again atheist demanding to know whether God can make a rock so big He can't lift it, and doesn't that paradox prove an omnipotent deity cannot exist?

(Answer: No; it just means Mr. Atheist has too simplistic a notion of "omnipotent.")

Paul answers the question as would a lawyer, oddly enough:

Loving v. Virginia did not implicate the definition of marriage. The largely regional ban on inter-racial marriages was not founded on the belief that such unions cannot be marriages under the nearly universal understanding of what a marriage is (i.e., between a man and a woman). Rather, the ban was based on the notion that, although it is possible for blacks to be married to whites under that understanding -- just as it is possible for blacks to sit on the front of a bus -- such marriages represented an undesirable mixing of the races.

The decision in Loving no more changed the definition of marriage than allowing James Meredith (a black) to attend the University of Mississippi changed the definition of "student," or requiring the lunch counter at Woolworth's to serve blacks changed the definition of "customer." But recognizing a marriage between two men (say) changes the definition of "wife" (say). [And changing the definition changes the concept itself. --DaH]

To me, the notion that a constitutional amendment mandates, sub silentio and plainly without intent, such a monumental change in an institution as fundamental as marriage is, as I said, ludicrous.

Having been involved in the Marital Wars for years before even Proposition 22 trundled along in the year 2000, I have long since had to come to grips with the Question. But being a lifelong non-lawyer, I am quite certain I never essayed an answer that contained the phrase "sub silentio." (It's legalese for "without saying;" I looked it up.) I've had to answer the Question in mortal terms, but I think I've boiled it down pretty well:

We cheer Loving v. Virginia (1967) because it struck down legal antebellum relicts of irrational and despicable racism... the idea that we must stop the "mingling of the races" to avoid breeding "race mongrels." We have long since adopted the credo that there is no intrinsic or essential distinction between the races -- whatever those are.

But nobody in his right mind can argue that there is no intrinsic or essential distinction between men and women. Any parent knows that boys are worlds apart from girls; any human being knows (excepting only hermits who have never met anyone of the opposite sex) that women and men think differently, react differently, argue differently, take revenge in different ways, hate differently, and yes, love differently.

Marriage has always been, by definition, the union of opposites -- man plus woman (or some number of women); the synthesis is more than the sum of its parts. Thus, same-sex marriage is logically inconceivable... like a monochrome checkerboard, a coin with only one side, or a debate between proponent and proponent: By its very nature, marriage requires at least one member of each sex, or else it isn't a marriage... it's just a partnership or merger.

Get it?

I see nothing wrong with sexual, emotional, and financial partnerships of all sorts; enjoy! But such unions that involve only one sex are not marriages -- and redefining the word "marriage" won't change that fact.

If you call a cow's tail a leg, how many legs does she have? Four, of course, because calling a tail a leg doesn't make it one.

Got it? Good.

Hatched by Dafydd on this day, August 13, 2010, at the time of 11:57 PM

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The following hissed in response by: snochasr

Yours is basically an argument against "losing the language" and I greatly respect that. The "monochrome checkerboard" is a particularly apt analog; thank you.

It is my understanding that civil unions are legal in California. That being the case, the case for "gay marriage" (and we must now, thanks to you, ALWAYS put that phrase in quotes) is wholly and completely an argument for changing the definition of the word.

The above hissed in response by: snochasr [TypeKey Profile Page] at August 14, 2010 6:40 AM

The following hissed in response by: BigLeeH

One of the things that irritates me about my fellow libertarians is their tendency to fall for glib, libertarian-sounding notions that, if you think them through, lead to increases in the influence of coercive government into the lives of the citizens. Same-sex marriage is such an issue.

When presented as "Shouldn't a person be allowed to marry anyone he or she loves?" it certainly sounds like a request for positive liberty -- for an end to arbitrary governmental restriction that prevents some desired action -- and as such it appears to qualify for libertarian support. And, if the request was to only remove impediments to civil unions, I would support it. There is no action that gay and lesbian couples want to engage in that I oppose. I support their right to enter into committed, exclusive domestic relationships, to have a ceremony and a party, invite their friends, have a cake, find a liberal-leaning minister to bless their union (or other authority-figure of their choice), to move in together, and to live together, as happily as they can manage it, forever after. If there are legal barriers against their doing any of these things then I support having those barriers removed. But...

That's not quite all that is demanded. Supporters of same-sex marriage want all that -- plus one thing more: They also want changes to statute law which would have the effect, under threat of anti-discrimination litigation, of requiring everyone else to treat them exactly the same as a married couple, this despite the fact that a strong majority of the populace understand that the institution of marriage has another purpose, and that that purpose -- to provide a stable framework, surrounding the reproductive potential of intimate heterosexual relations, in which children can be reared -- is not served by same-sex civil unions.

Given that the states targeted by same-sex marriage supporters already have tolerably complete support for civil unions it is hard to avoid thinking that the primary thrust is not personal liberty, which libertarians should support, but "fairness," which libertarians ought to recognize as a potential slippery slope.

Of course, none of this speaks to your main point here which is that the strength of a social institution depends on being able to define it in simple terms that most people implicitly understand. What strikes me is that the analogy of the difference between a leg and a tail can be applied recursively to the definition of marriage. When one attempts to define marriage as the union of a man and a woman then the same-sex marriage types will often want to engage in legalistic wrangling: If marriage is all about providing for children, then what about childless couples? Sterile men? Infertile women? The elderly? Should they be allowed to marry since there is no potential for children? The answer is "Yes, they should." The institution is strengthened by tying it to the clearest understanding of the terms in which it is defined. A broken leg, or an arthritic leg, or a deformed leg remains a leg and not a tail, and by the same token a barren woman who gets married is playing her role in the social construct despite her inability to conceive. This doesn't necessarily yield an altogether static picture. In the past generation people have come to accept the gender-identification choices of sex-change subjects, and consider them to be suitable participants in a marriage according to their assumed gender. To return to our analogy, if a tail were to be surgically altered to serve as a leg then it would become a new leg made from a former tail.

The above hissed in response by: BigLeeH [TypeKey Profile Page] at August 14, 2010 9:32 AM

The following hissed in response by: BigLeeH

Grrrr. Why is it you only see errors after you hit the "Post" button.

only to remove impediments


to only remove impediments

The above hissed in response by: BigLeeH [TypeKey Profile Page] at August 14, 2010 9:36 AM

The following hissed in response by: On Lawn

There's another angle that I've uncovered at Opine Editorials.

Essentially, the case for Loving was one of integration or segregation. Should the state have an interest in segregating marriage combinations of white people from everyone else?

That is the question Loving sought to answer.

In reviewing the arguments given, you can tell me which side resembles which in Loving.

1) White people cannot integrate with a black person in any meaningfully marital way and still maintain their identity.
2) Segregation should be endorsed by state, even if it means the jackboot of the government being placed squarely on the necks of those who disagree with their segregative nature.

Marriage, I would argue, is about integration of the sexes. In fact, if you stopped anyone on the street 30 years ago and asked what marriage equality was, they'd tell you something like, "its making sure the man and the woman equally recognize each others value and responsibilities in the marriage". Where marriage came with the Bombeckian understanding that it included a great burden of raising children that you have together (otherwise marriage isn't much of a burden at all).

One side in this debate is about using marriage as identity politics, a special pleading to have the government protect and establish their identity through endorsement of their segregation based on it.

One side of this debate is about using marriage as a way to integrate two different kinds of people for the sake of the equality between them, and in this case the rights and entitlements of the children they potentially create together. A child is a physical embodiment of the integration of identity between two people (hence why the law Loving struck down). And that integration should be supported is exactly why Loving decision came down.

So if you ask me (and there is no way for me to know if you did or didn't :) the Loving decision merits more for the case of traditional marriage than neutering its definition to protect segregation. Because, in a phrase, traditional marriage is twice as integrated as neutered marriage. Traditional marriage is about marriage equality.

For more about the Loving decision and why it doesn't work, we at Opine have devoted many great writings to the subject. Just look up "Loving v Virginia" in the labels section. The link to Opine Editorials is above in my name.

The above hissed in response by: On Lawn [TypeKey Profile Page] at August 14, 2010 10:28 AM

The following hissed in response by: Bart Johnson

When I went to get married, my bride-to-be and I were required to prove that we did not have gonorrhea or syphilis. We were forbidden to marry until we did prove that by having a blood test done by a doctor.

Would it be reasonable to forbid "ssm" if either party had HIV/AIDS ?

Note that I still can't marry my sister even if we are healthy, and she is well post-menopausal.

The above hissed in response by: Bart Johnson [TypeKey Profile Page] at August 14, 2010 1:41 PM

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