Notes From Babel

Same-Sex Marriage and Political Symbolism

with 7 comments

A whole bunch of blogs have been touting this Washington Post/ABC News poll—claiming that “support for gay marriage has grown to 53 percent today”—as a sign that Americans have now embraced “marriage equality.”  Putting aside for purposes of this post the question of same-sex marriage itself, that commentators are claiming a victory for “marriage equality” generally should give pause.  Indeed, this has become the accepted term for rhetorical engagement on the issue, simply for the reason that “equality” has such great purchase on the American political soul.  Most Americans are reflexively in favor of the concept of equality because the word is so commonly coupled in political and historical discourse with “racial,” or “religious,” or “political.”  Those campaigns for equality concern egregious historical abuses concerning the most fundamental of rights, which abuses were extinguished only at great cost.  It is good and right that we exalt concept, such as equality, as overarching symbols of the American political order; such symbols serve as a means of expressing our hard-fought fundamental values as a people, and of forefending threats that might still be lodged against them.

Beyond a few relatively narrow areas, however, “equality” as a political symbol bears little application to “equality” as a legal standard.  No one seriously believes, for example, that doctors and janitors are entitled to equal pay, that Best Buy and Circuit City are entitled to equal market share, or that the Yankees and the Red Sox are entitled to an equal number of World Series championships.  On these questions, we expect and demand protection of unequal results corresponding to the input of unequal talents and efforts.

We also demand inequality on other types of questions—e.g., who is qualified for employment as a police officer or a fire fighter; who is allowed to drink alcohol; whether gardeners and nuclear power plant operators should be equally regulated.  When it comes to such questions concerning the public health and welfare, the equality principle is significantly circumscribed.

Equality, then, is a strange concept, as it at once guarantees and threatens liberty depending on the subject matter.  There is no doubt that liberty cannot endure when, for example, racial minorities are arbitrarily deprived of protection of fundamental rights.  But neither can there be any serious doubt that liberty cannot endure when everyone is deprived of protection of fundamental rights so that an equal menu of positive rights can be offered up in exchange.  Thus, the way in which some individuals are deprived of personal, political, economic, and property rights in order to promote social and economic equality poses a substantial threat to classical liberty generally.  Similarly, it cannot be seriously doubted that the state cannot serve its necessary function to protect the public health and safety if it must yield in all cases to a mandate of absolute equality.  Equality, then, is a lancet, not a sledgehammer.

Advocacy of a general notion of “marriage equality” poses its own kind of threat:  It incites us to demand urgent remediation of a perceived injustice, yet provides no guidance for evaluating the nature of the purported injustice, or why similar instances of social inequality should not also be subsumed in the demand.  The Religion News Blog, for instance, recently reported that a Canadian civil rights group “has filed a final argument in B.C. Supreme Court against [Canada’s] polygamy law, saying it is a Victorian-era statute that should be ‘relegated to the scrap heap of history.’”  Similarly, Andrew Sullivan recently passed along this story reporting that Switzerland is considering abolishing its “obsolete” laws criminalizing incest.  Matthew Franck likewise has argued that the U.S. is already surprisingly close to announcing “a constitutional right to incest.”  Most advocates of “marriage equality,” of course, have no intention of supporting these reforms.  But why shouldn’t the same symbol of equality, conscripted into advocacy of same-sex marriage, also compel equality for these other types of social arrangements?  Is there not something irresponsible and perhaps deceptive about demanding “marriage equality for all” if what is really meant is something other than “equality” and something less than “all”?

I’ve argued previously that were same-sex marriage judicially imposed, there would be no logical stopping point before judicially obliterating all morals legislation, such as suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, adult incest, public nudity, profanity, stem cell research, human cloning, and so on.  On that basis, I’ve concluded that this question must be decided by the normal democratic process, who are not limited by strict logical application of legal principle.  The “marriage equality” rhetoric, however, compromises that process by putting voters to a false choice by insisting on strict adherence to the equality principle.  In other words, it is a distinct possibility that many Americans have changed their attitude about same-sex marriage based on an implicit threat that, if they don’t, they will be branded as enemies of equality and share space in the pages of history with racial bigots and merciless dictators.  Same-sex marriage advocates’ ubiquitous citation to the inapposite racial discrimination case of Loving v. Virginia, for example, makes this threat unmistakable.

Members of a democratic society must live with the duly expressed choice of the majority on social questions like those concerning the social institution of marriage.  It is disconcerting that consensus is quite conceivably being achieved by confusion, misconstruction, or misrepresentation concerning the fundamental symbol of equality and thus putting voters to a false choice between their political and social values.  Same-sex marriage advocates neglect to correct this misunderstanding since it works in their favor.  The resulting false pretense in the political discourse concerning same-sex marriage is quite possibly responsible, in some measure, for the increased likelihood that Americans will tell pollsters same-sex marriage should be legal.


7 Responses

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  1. “I’ve argued previously that were same-sex marriage judicially imposed, there would be no logical stopping point before judicially obliterating all morals legislation, such as suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, adult incest, public nudity, profanity, stem cell research, human cloning, and so on.”

    And you’re wrong about that.

    The logical stopping point is a little thing called ‘harm’. We can certainly have a long conversation about what does or doesn’t constitute harm, but that is where the logical stopping point will be.

    Same-sex marriage harms no one, and thus there is no good reason to prevent it. And ‘being offended’ doesn’t count as harm.

    And if you want we can break down that list of yours and discuss and debate where harm falls and where the ‘logical stopping points’ are.


    March 21, 2011 at 7:13 am

    • Yes, that is the idea of the list.

      Tim Kowal

      March 21, 2011 at 7:59 am

      • Suicide and euthanasia should be put together. Suicide is often a symptom of some sort of mental disorder or illness. The person’s own body is harming them to the point where they think that suicide is the only way out. We should help them as much as we can. I see no reason for suicide to be ‘illegal’, because who do we punish if they succeed? That makes no sense. Euthanasia is suicide or assisted suicide when the human body is so damaged or ill that the end of life is actually preferable to the person than continued living while suffering. We should certainly look into it, but I don’t see how letting gays get married stops us from discussion about it.

        Animal cruelty and bestiality are again about harm. Harm, and recognizing it in animals, helps us deal with it.

        Prostitution and polygamy, if completely done of all the participants free-will, don’t seem to harm anyone. So maybe we should look into those things and determine whether or not they should be legal.

        Shall I really continue? Do you think there’s a better way of determining things than seeing if they are harmful or not?


        March 21, 2011 at 8:12 am

        • None of these arguments indicate harm to OTHERS, which is what the harm principle is based on.

          My proposal is to do what we already do: let the people decide.

          Tim Kowal

          March 21, 2011 at 8:50 am

  2. Dear Tim,

    Are you arguing that “morals legislation” is the category of legislation concerned with har

    Silas K

    March 31, 2015 at 1:08 am

    • *comment cut-off
      …concerned with acts that do not cause harm to others i.e. victimless crimes. In other words, is your argument that admitting harm as the only principle of law would render legal many things our society typical regards as immoral and worthy of legal prohibition? Not arguing one way or another, just trying to understand your line of thinking.

      Also, your exchange with the previous commenter makes me think of the book, “The Righteous Mind” by Jonathan Haidt. Have you read it? He basically describes 5-6 elements of people’s moral sense only one of which is directly concerned with harm. He also argues that Liberal and Conservatives focus on different subsets of those type of moral feelings. I’d be curious how you would feel about the line between law and morality in each of the domains he describes.

      Silas K

      March 31, 2015 at 1:14 am

      • Silas,

        For the purposes of this post, I was referring to “morals legislation” as those that are not necessarily rooted in the purpose of preventing any immediate harm. As you can see from NotAScientist’s efforts, it is a hard sell that the items above are justified by a harm principle.

        I’m an admirer of Haidt’s work, and enjoyed The Righteous Mind. He’s an honest broker, and there are precious few of them.

        Tim Kowal

        March 31, 2015 at 5:47 pm

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