September 10, 2010

Companion Piece: Risible Racism vs. Gender Benders

Hatched by Dafydd

Same-sex marriage (SSM) activists frequently cite the Supreme Court decision in Loving v. Virginia, 388 U.S. 1 (1967), a unanimous ruling that overturned all anti-miscegenation laws across the United States by holding that marriage was "one of the 'basic civil rights of man,' fundamental to our very existence and survival," and that laws banning mixed-race marriage violated both the due process and equal protection clauses of the U.S. Constitution. SSM activists argue that if marriage to the person of one's choosing, regardless of race, is a fundamental right, then so too must be marriage to the person of one's choosing regardless of gender.

But there is a flaw in this first, naive version of the argument: No right is absolute, not even fundamental ones; they are simply held to the strictest scrutiny, with the state or feds having to show:

  • That the government has a compelling interest in the law, that it is vital and necessary, not merely desirable;
  • That the law itself is narrowly tailored to accomplish that purpose without branching out into irrelevancies;
  • And that the law uses the least restrictive means of achieving that purpose.

Laws which pass that three-pronged test can and do limit even fundamental rights. For example, we limit the fundamental, First-Amendment right to the free exercise of religion in various ways, such as prohibiting Christian Scientists from denying urgent medical care to their children or prohibiting human sacrifice, even of willing victims.

The brighter SSM radicals recognize this problem, so they attempt to get around it by denying that the State has any legitimate "compelling government interest" in promoting opposite-sex marriage over same-sex marriage (or, one presumes, in promoting two-person marriage over polyamorous marriage). In particular, they argue that:

  1. There is no possible reason to prefer opposite-sex marriage over SSM other than the purely religious, specifically the Judeo-Christian and Moslem belief that homosexual acts are an "abomination."
  2. Yet such a sectarian interest constitutes an "establishment of religion" and cannot possibly pass the "strict scrutiny" test.
  3. Therefore, the traditional definition of marriage is prohibited by the First Amendment.

I fully support the Court's decision in Loving v. Virginia: Given the clear meaning of the words of the Civil Rights Amendments and their obvious application to racial equality, the Court made the right decision. But I utterly reject its application to SSM.

Is this inconsistent or irrational? Not in the least: There is a bright line between the two that should be obvious, even to the activists themselves.

There is no possible compelling interest in preventing mixed-race marriages other than perpetuating "racial purity" and ultimately "racial supremacism." Yet there is no significant biological difference between the "races," and it's frequently hard even to distinguish between them.

Biologists cannot even generally define a "race"... there is no specific scientific guideline to judge how dark one's skin can be while remaining "white," or how narrow a nose can be while still being "African," nor even exactly what percent African, American Indian, Causasian, or Oriental descent makes a person that race: If one great-great-great grandparent of African ancestory makes one black, then why don't the other thirty-one great-great-great grandparents of European ancestory make that same person white? (Is white blood that much weaker than black blood? Did any racist ever think this argument through?)

Similarly, there is no inherent or genetic difference in how different races think, behave, or reacts; all such differences are cultural or driven by will. Even if one buys the premise of the Bell Curve, which I do not (yes, I read the book), a supposed difference in intelligence is not the same as a difference in how one thinks, behaves, or reacts.

Thus we long ago concluded that legally, there is no essential difference among people on the basis of race. And therefore any racial classification or racial law is inherently invidious and requires the absolute strictest of scrutiny.

In the case of laws banning miscegenation, no compelling government interest other than the even more vile racial supremacism or separatism has been offered for banning mixed-race marriages... so such laws clearly fail the test of "strict scrutiny" and were rightly struck down as unconstitutional.

Contrariwise, only the most radical of radicals would dispute the essential difference between men and women. The claim itself is preposterous: Men can impregnate, women cannot; women can give birth, men cannot.

Moreover, much scientific testing has discovered profound differences in the way men and women think, behave, and react; and as any parent knows, such profound differences begin at birth (some say even earlier) -- so they are not simply constructs of an oppressive society, as the most radical feminists argue.

One can easily find many compelling government interests in promoting traditional marriage over SSM (and over polyandry):

  • To raise the fertility rate, so our population doesn't dwindle (as it has in many European countries), causing society to collapse.
  • To provide a more stable, well-rounded environment for raising children, thus lowering crime, drug use, and other socially destructive behaviors.
  • To mate the aggressive male personality with the loving female personality, in order to civilize the former and embolden the latter.
  • To prevent the objectivization and abuse of women by restricting men to but one wife, not the harems we find in, e.g., the ummah and among primitive tribal cultures.
  • To promote marriages that tend to last longer and be more stable -- as research clearly shows traditional marriages do, compared to same-sex or polyamorous marriages -- which in turn makes society itself more stable.

Each of these interests is compelling in itself; and traditional marriage promotes all of them. And please notice one point: Not a single one of these listed compelling government interests is in any way driven by religion. In fact, I myself am not in the least religious, yet I support all of them.

So yes, marriage to the person of one's choice is a fundamental right; but both laws that prohibit racial discrimination in marriage and laws that define marriage as between one man and one woman clearly pass the "strict scrutiny" test. We can prohibit racial separatism and supremacism, saying there is no essential difference between the so-called "races," without having to profess the absurdity that there is no essential difference between the sexes. The two claims are worlds apart.

Hatched by Dafydd on this day, September 10, 2010, at the time of 2:19 PM

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The following hissed in response by: BlueNight

There are the statistical anomalies to consider when making the fertility argument.

First, there are a surprising number of people who are heartbreakingly infertile.

Second, consider the plight of the biologically intersex: born with indeterminate genitalia, they were often "trimmed" into girls during their infancy no matter their genetic gender, and treated with hormones to make the assigned gender stick. When they discover this, usually when they suffer complications at puberty, much angst and anxiety results. The words "phenotype" and "expressed" are required when deciding who they can and cannot marry.

Third, the gender dysphoric ("transsexuals") can marry people of "the opposite" sex, and if the surgery happens after the marriage, a defacto same-sex state occurs (either before or after surgery). In a highly publicized case recently, a pre-op man gave birth, so such couples are not necessarily infertile.

Each of these cases is rare, but each involves real people whose civil rights and social personhoods are at stake.

The above hissed in response by: BlueNight [TypeKey Profile Page] at September 10, 2010 7:14 PM

The following hissed in response by: Dafydd ab Hugh


Each of these cases is rare, but each involves real people whose civil rights and social personhoods are at stake.

And each is best handled by a judge who hears all the evidence in a particular case, then rules whether the person in question is male or female. You can't write every possible quirky situation into the law.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at September 10, 2010 8:09 PM

The following hissed in response by: snochasr

Seems to me that your very clear and convincing argument could as well be turned against your support for open gays in the military.
a) The government has a compelling interest in an effective military. A finding that allowing openly gay people to serve would be "disruptive of good order and discipline" establishes that compelling interest.
b) The law is narrowly tailored. It does not prohibit gays from serving in the military, and doesn't compel them to say they are not gay. It's DADT. The fundamental right being circumscribed is that of free speech, IMHO, and rightly so, since the difference between someone who is gay but looks and acts just like everybody else and someone who is gay and openly says so is everything.
c) It's the least restrictive approach, again, because no one is required to declare, and nothing prevents their service so long as they do not violate the "don't tell" provisions. I know, you will say that there are ways for them to be found out-- inadvertent "slips"-- that make it unfair, but IMHO that is their problem, not the problem of the policy. They can avoid the problem by not enlisting in the first place.

Now, you can correctly point out that women have been serving successfully in the armed forces for some time now, even in some combat roles, without disrupting things enough to change that policy, but that is not to be argued from the same stance as the racial integration of the military of a half-century earlier. The clear racial differences didn't affect a fighting man's abilities, though gender differences do. Sexual orientation does not, up to the point where it becomes known and then it does.

The above hissed in response by: snochasr [TypeKey Profile Page] at September 11, 2010 8:21 AM

The following hissed in response by: Dafydd ab Hugh


A valiant effort, but it's sheer sophistry in service of bigotry.

If a law is subject to "strict scrutiny," then surely it's also subject to the lesser standard of "rational basis;" and there is no rational basis to claim that gays, as a class, are disruptive.

Rather, the disruptive ones are those whose dislike of gays is so severe that they refuse to serve near them, no matter how circumspectly gays behave. Merely knowing the other guy in the foxhole is gay causes the bigot to be unable to perform his duty.

The situation is exactly analogous to racial segregation in the ranks prior to Truman: The claim in both cases is not that the gay soldier or the black soldier is doing anything "disruptive of good order and discipline," but rather that the irrational and bigoted reaction of some other soldiers to the mere presence of gays or blacks disrupts good order and discipline.

(If anything, blacks would be more prone to provoke such a bigoted reaction, because the bigots are constantly reminded, by visual appearance, of the "blackness" of the blacks; whereas, even if a person knows that so-and-so is gay, if he doesn't mince or swish, but acts just like other soldiers, the bigot doesn't have to be reminded of the gayness. It would certainly be appropriate to forbid anyone, gay or straight, from sexually harassing others or even flaunting one's sexuality... which could include both a gay soldier acting overtly fey, and also a straight soldier leering and displaying in front of the opposite sex.)

The solution is not to racially segregate the forces or force gays to serve in secret -- and be subject to blackmail and extortion, and never entirely to belong to their units, because they're always afraid they might inadvertently slip up and be booted out with an Other Than Honorable discharge -- but to do the rational thing and punish those who are actually disruptive of good order and discipline: the bigots who give in to their baser emotions and react so violently and irrationally to a non-event that doesn't affect them.

The government has a compelling interest to have an effective military; but the least restrictive means is not to restrict an entire class of people from service, nor even to require that they serve in the closet, but rather to enforce military discipline upon those who refuse to mind their own business... just as the service would do in the case of a soldier who is such a staunch Christian that he refused to serve with soldiers who had sex outside of wedlock.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at September 11, 2010 10:40 AM

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