Friday, September 07, 2012

Thought experiment: on homosexuality and “discrimination”

The big argument against the traditional definition of marriage these days is that it discriminates against those who want to marry someone of their own gender. Those of heterosexual preference can marry anyone they want, runs this line, while those of homosexual preference can’t; this, it is asserted, is discriminatory.

Leave aside that this isn’t necessarily so as a matter of fact (prohibitions on bigamy/polygamy, marriage of siblings, etc.), and let’s consider it as a matter of logic. Discrimination in law is generally understood to refer to situations in which the law is actually different for different groups. Pale-skinned people are allowed to vote, but people whose skin is dark, or who are known to be related to anybody whose skin is dark, are not allowed to vote. Male adults are allowed to vote, but female adults are not. People who have never been convicted of a felony are allowed to vote, while those who have a felony conviction are not. The law defines groups of people and explicitly extends rights/privileges to one which it denies to the other.

On this standard, is the traditional definition of marriage discriminatory? No. It does not define groups of people, nor is it applied unequally; it is one common standard which applies to everyone. The law does not say, for instance, that “straight people” can marry people of their own gender, but “gay people” can’t; that would be, inarguably, discrimination, because the marriage law would be different for different legally-defined groups. It simply says: this is marriage; within this definition, do what you will.

Why then the accusation of discrimination? Because the traditional legal definition of marriage forbids everyone to do what only some people want to do—thus the restriction is felt as a meaningful limitation by some people but not others. “You can do what you want to do, but I can’t, and that’s not fair.”

That may sound reasonable, but consider: that’s true of every law; by this standard, every law is discriminatory. Laws against drug use discriminate against addicts—I can put whatever substance I want into my body, since I have no desire to take anything illegal, but addicts can’t. Laws against polygamy discriminate against those who want to enter into multiple marriage—they don’t restrict me in any meaningful way, since I have no desire for more than one wife (I agree with Rich Mullins on that one), but those folks clearly aren’t free to marry whomever they want. Indeed, even laws against discrimination are discriminatory; I’m free to hire whomever I want, and I’d be free to rent to whomever I wanted if I had anyplace to rent out, but racists aren’t. It is the nature of laws to discriminate against those who want to break them.

Now, if that’s a form of discrimination, you need to realize that it’s a form which is not only defensible, but necessary—logically, intrinsically necessary, if there is to be any such thing as law at all. Laws draw lines, it’s just what they do. If you want to argue that a given line shouldn’t be where it is, by all means go ahead; but don’t argue that the mere existence of the line is unfair. When once you start doing that, you’ve started cutting a great road through the law just for the sake of getting your own way; and as Robert Bolt memorably had Sir Thomas More argue, that’s a really bad idea.

7 comments:

KDulcimer said...

One of my favorite non-arguments against laws perceived to be unduly restrictive is "You can't legislate morality!" My response is "Show me a single law which is not a legislation of morality. That is the whole point of the law, to legislate morality."

I would further point out that I have always been uncomfortable with the term "traditional definition of marriage", as it puts "tradition" as the definer. Traditions, by and large, are human conventions, but marriage is not.

Sarah Moon said...

Remember when "marriage" meant "one man and one woman of the same race?" Obviously that wasn't discriminatory because it applied to people of ALL races, right? No one was saying black people couldn't marry, as long as they followed the definition that applied to everyone and stayed within their own race.

In short, your logic is inherently privileged. No matter how hard to try to reason your way out of being defined as discriminatory, you're still working from your privileged position to keep other people from happiness and equal recognition under the law. Appease your conscious however you'd like, but your line of "logic" is ruining people's lives. But whatever helps you sleep at night...

Alise said...

So I assume you would have argued that anti-miscegenation laws were also not discriminatory, since they didn't stop like races from marrying. Based on your logic, I'm not sure how we could call one discriminatory and not the other. After all, Richard Loving was allowed to be married - he just needed to find a white woman to fall in love with and marry. He wasn't stopped from being married, just from being married to Mildred.

It's just logic, after all.

Rob Harrison said...

Sarah, Alise: no, not at all. You're not understanding the logic because you're defining your categories ideologically rather than logically. Groups are defined by their membership, not by their relationship to the observer; "your own race" isn't actually a consistent category.

Under laws prohibiting marriage between people of dramatically different skin colors, some people had the right to marry "white" people but not "black" people, while others had the right to marry "black" people but not "white" people. I.e., the law was different for different groups; which is, properly speaking, discriminatory.

Indeed, such laws discriminated against everyone; which may seem strange to say, but such is the nature of law that it can do it. The fact that everyone was discriminated against in the same manner doesn't make such laws any less discriminatory as a matter of logic.

"In short, your logic is inherently privileged."

This is an irrational statement, not an argument; it is in fact Bulverism in its finest form.

KD, two things: one, it should be noted that while laws can and do legislate moral behavior, they can't effectively legislate moral attitudes--though hate-crime legislation is an attempt in that direction.

Two, the bigger problem is that "traditional" is vague and not really all that accurate in this context. But--for shorthand, it works well enough for present purposes.

Sarah Moon said...

Again, whatever helps you sleep at night. If you want to hurt people and treat them as less than human, tell them that their families don't count under the guise of "logic," be my guest. It doesn't make you not discriminatory. Your ability to come to a flawed "logical" conclusion within the context of your own bias does not make you right.

Rob Harrison said...

I'm not treating anyone as less than human, nor am I hurting anyone; we have radically different understandings of what is actually causing harm here, but set that aside for the moment. My point, as it appears you have failed to understand, is not about the rightness or wrongness of expanding the definition of marriage to include same-gender couples. It is, rather, about the ways in which people make the argument for doing so--and specifically, one argument which is logically spurious, advanced not because it's a good argument but for the sake of its emotional effect.

You want to argue your position, go ahead--you might be right; honestly, it would be more comfortable to believe you are. But argue the issue, not red herrings.

Flyaway said...

Rob--I'm glad to know you are still with us. Hope you will blog more. I am grieved by the whole gay marriage thing. There are so many who are deceived by the evil one and can't see the truth.

Romans 1:18-27
Unbelief and Its Consequences
18 For the wrath of God is revealed from heaven against all ungodliness and unrighteousness of men who suppress the truth in unrighteousness, 19 because that which is known about God is evident within them; for God made it evident to them. 20 For since the creation of the world His invisible attributes, His eternal power and divine nature, have been clearly seen, being understood through what has been made, so that they are without excuse. 21 For even though they knew God, they did not honor Him as God or give thanks, but they became futile in their speculations, and their foolish heart was darkened. 22 Professing to be wise, they became fools, 23 and exchanged the glory of the incorruptible God for an image in the form of corruptible man and of birds and four-footed animals and crawling creatures. 24 Therefore God gave them over in the lusts of their hearts to impurity, so that their bodies would be dishonored among them. 25 For they exchanged the truth of God for a lie, and worshiped and served the creature rather than the Creator, who is blessed forever. Amen. 26 For this reason God gave them over to degrading passions ; for their women exchanged the natural function for that which is unnatural , 27 and in the same way also the men abandoned the natural function of the woman and burned in their desire toward one another, men with men committing indecent acts and receiving in their own persons the due penalty of their error.