The Circular Reasoning of the "Equal Marriage" Argument
If you ask any black person whether they think being 'gay' is like being black I bet they would get offended. Just my guess, not being either. Let's get that out there first. I am outing myself as a rabid caucasian unabashed hetero. OK, now this Gay Marriage thing. Yesterday, an odd assortment which I dare not call 'strange bedfellows' given the topic, of Cato libertarians and neo-progressives and class action attorneys looking for a good fight (election stealing only happening Presidentially once every four years) John Podesta, Ted Olsen and David Boies and the head of Cato sat on a panel to say why 'of course' everyone should be on board with Gay Marriage- for the love of all our gays and their families.
I have gay clients, gay friends and a distant second cousin somewhere in Florida.
I love them all.
But there is a serious constitutional problem with the gay marriage argument under constitutional Equal Protection principles. Because Being Black is not being gay. Sorry.
Gay is not 'immutable' regardless of who wants to testify to that because the 'cause' is not the same in all people and some people have in fact come out of gayness in to full heterosexual lives. Some people believe if entire genders can be reoriented, hormonal and environmental and emotional treatments can also reorient gays. No one has isolated a gay gene. That is just nonsense.
Further, behavior- setting up a household to have gay sex is not a phenotypical characteristic. It is behavior. So when you say that you want to give equal protection to a class of persons because of their behavior it is not the same thing as equal protection to what we consider a 'protected' class. If you want to 'protect' the behavior you are intrinsically imputing a moral value judgment that it is worthy of protection. In other words it is something that persons who wish to engage in should have the protection to do so as 'protected' class persons because the state deems the behavior worthy of protection - this unavoidably imputes a value judgment regarding its worthiness.
David Boies kept reiterating that one religion should not dominate over another in the debate- some religions condemn homosexuality and those that do should not get to say what those that don't want with regard to public approval or higher state preferences in granting privileges and benefits. But that automatically gives preference and priority to the other 'religions' or 'ethics' or 'ethos' that claims that homosexuality is as worthy as heterosexuality and thus should be given protected class status-to level the playing field and equal the status. The humanism or universalism or reformed presbyterianism or whatever you wish to call the religion or ethos that says that homosexuality is not evil, not a sin, not a deviancy, thus gets higher state sanctioned preference over the traditional view.
So while, in the words of Rodney King, can't we all just get along, and I add, play nice- there are real serious constitutional, and common sense issues with regard to legalizing 'marriage' for homosexuals.
The notion that "of course" we will all come around and agree came off patronizing on the panel- and a bit ignorant actually.
Not the way to win hearts and minds of people who actually try to read case law for a living.
3 comments:
You say people can "come out" of gayness, giving as an example a small number of gay people who have gone on to lead "heterosexual" lives, through "therapy" or some other forms of "treatment".
I would argue that those people, if indeed they succeed in leading "full" heterosexual lives, without any reservation, were never really gay to begin with.
But let's argue from your way: As a sexually active gay man, I cannot tell you how many married "heterosexual" men come on to me for sex. How do you account for that, except that they are gay? They have no reason, if they are truly heterosexual, to seek gay sex, except that they are gay. The reason they get married is not that they are heterosexual; it is that there is pressure in society--still--to conform. If they are truly heterosexual, they are already in heterosexual relationships, which is, according to you, the only admissible one, so how do you explain the fact that they look for sex elsewhere?
I might also like to mention Michael Jackson, who was an example of a black person becoming white, which debunks your idea that one cannot change one's race. I think you can, with the right amount of money. It is harder to change one's orientation.
Furthermore, you say, "Setting up a household to have gay sex is not phenotypical behavior."
Actually, people form households for many reasons, and sex is the least important. In the 18th century, heterosexual couples set up households to protect legacies, but they did not have sex in them: they had mistresses and lovers for that.
And, since you brought it up, for a lot of heterosexual people (blacks among them), setting up a household is also not "phenotypical" behavior. They just do it. Just check recent statistics.
So the fact that gay people want to set up households to protect their interests is actually normal, natural, time-tested, and mother-approved. It should not only be "tolerated", but actively encouraged.
From many statistics, heterosexuals are not exactly in a position to be dictating to anyone what types of relationships are healthy and normal. At least none of the heterosexuals who constituted my immediate family. Nor some who are winning primaries in South Carolina.
This was well thought out and I appreciate the comment. I just read a piece where cynthia Nixon said her gayness is a choice, and it was a choice to previously be hetero- not something like an immutable fixed natural aspect. I know some black folk who would disagree that Michael Jackson changed his race. He didn't change his DNA, just his skin coloring and plastic surgeried his nose. Even people with gender reassignment surgeries don't change their basic DNA. I am not an expert on any of this and generally don't feel that giving gays marriage rights poses anything like the dangers touted out there- even for those who want to call the behavior sin, they don't want to discriminate against other sins, so on that basis alone, I think its an equal protection problem. Imagine a public policy saying everyone who masterbates is sexually sinning and thus unworthy of marriage. Point taken on three time adulterers in South Carolina while I don't see anything to fault in santorum's family life and he is most out there against gay marriage. I am not actually opposed to it- I think it is ridiculous as a defining issue on any political campaign though .....like the iranians aren't challenging Non Proliferation strategies and there is nothing else in the world to worry about. As for all the married men hitting on you- lucky you I suppose. Except whatever would give them the belief that anyone like yourself would want to disturb the vows of their marriage? What are you putting out there? I am not gay but really appreciate all my gay men friends and my sister's in laws have gay female cousins married whom I have great admiration for-not because they are gay. Who cares. Because they are kick -A Architects with their own Architect firm. Gayness or not shouldn't be the defining feature of anyone should it?
I should add that you misquoted me- i didn't say phenotypical behavior did I ?
From a constitutional perspective there is a difference between something in someone's DNA make up that is intrinsic to their biology and some aspect of a behavior not rooted in biology. It may be that gayness is in fact rooted in biology which gives this constitutional argument less teeth. I am learning more about it- but it is clear that there are a lot of people who feel it is a behavioral choice not rooted in biology but preference. I had an aunt by marriage who was married to my uncle who one day left him for a woman. By choice- she was hetero then 'turned' gay as it were (bummer for my uncle). There are people who think that they are "bi" people who think that they were one then 'turned' into the other (in women this happens frequently with major post menapausal hormonal change later in life) and there are those who think they are born that way. The issue of constitutional protections for behaviors is what is under discussion when we deal with equal rights issues. Society has always reserved the right to regulate behaviors, deeming some in the common interest of all and some harmful. Your dilemna in understanding how married guys can also be gay might be because they are "bi" or might be because they are bored- I don't know and it doesn't matter for Constitutional analysis purposes much. The question is can we say with certainty that it is an Immutable characteristic biologically intrinsic to a person or is it a behavioral choice. I might have a behavioral choice that I want to drink myself into a state of drunken stupored public disturbance, and the police and going to ticket me for being a public nuissance. We think that is fine, it is a behavioral attribute. Society regulates behaviors and protects the dignity of people born that way. Hence the emphasis on people fighting the equality of gay marriage battle to champion the 'born that way' line of thought. e.g. lady gaga et al.I can't believe i just cited lady gaga in a constitutional argument. do you see my point?
Post a Comment