http://www.nytimes.com/2008/11/21/us/21marriage.html?_r=1&th&emc=th
Let us hope that they decide it will not. No doubt many will argue that it is a violation of democracy for the court to simply overturn the voters decisions. That may sound high and democratic but it really is not. Democracy does not allow us to vote on human rights issues. Would anyone in this country seriously allow voters to decide if a particular religion was to be outlawed? Or if segregation, slavery, interracial marriage, due process, trial by jury, free speech, free assembly, free press, and other such fundamental human rights should be permitted? Nobody would stand for these matters being put to a vote!
You do not subject basic human rights and fundamental human dignity to a majority opinion! If you allowed such things to happen, imagine the rights the majority would deny the minority in many cases!
While I agree with you that the fate of same-sex marriage should not be decided by voters, I'm not so sure this is ultimately a human rights issue.
ReplyDeleteThere's an important disanalogy between the issue of gay marriage and slavery, segregation, outlawing interracial marriage etc. The latter arise from a view of seeing a demographic as less than human, barely human, or less human than other demographics, and on this basis denying them some right or privilege. So slavery entails racism, segregation entails bigotry, etc. but does the denial of gay marriage entail homophobia?
Of course, many oppose same-sex marriage because they see homosexuals and homosexual relationships as in some way inferior to heterosexuality. That's why I say that the fate of same-sex marriage shouldn't be decided by the voters; when it is, for all intents and purposes it becomes a human rights issue: i.e. homosexuals are then being denied a right or privilege on the basis of homophobia. But I say it may not ultimately be a human rights issue because there may be good non-homophobic reasons why the legal scope of marriage should be restricted to heterosexual unions.
There you raise a good point. It is true that there may be non-homophobic reasons for opposing same-sex marriage, and probably people vote on and enact legislation on them.
ReplyDeleteBut, could there not equally have been such reasons voted and acted upon say in opposition to inter-racial couples? Indeed there were. Just watch "Guess whose coming to dinner?" One could presumably respect black people, think of them as fully human, never discriminate against them . . . even fight with them for their rights, but think it inadvisable - perhaps because of societal prejudice - for your daughter to marry a black man.
I think the same can be said of gays. We may think gay marriage is somehow inadvisable. We may not want our religion to recognize it. But despite that: it seems clear that gay people have the right to choose if they want a legal marriage with the economic, legal, and property rights that entails.?
But the main point is that unless there truly are legitimate non-homophobic reasons against same-sex unions, and I've never been convinced that there are, then it seems that we have a fundamental denial of basic rights.
The way I see it is that marriage is fundamentally a religious notion. The scope of allowable unions under the conception of marriage in different religious traditions conflict. A legislative definition of marriage that would preclude any one of these practices essentially amounts to outlawing those religions. Instead, marriage should be left an exclusively religious notion, the scope of allowable unions being determined by the factors at play within the various religious traditions. The legislative notion of notion of union, and thus what unions are allowable should be considered independent from religious considerations.
ReplyDeleteThe civil union of married couples are said to constitute a household, which is seen in the eyes of the state as a legal, economic, etc. unit. The legal, economic, etc. benefits that married couples currently enjoy is due to their being recognized as forming a household. Any reformed legislative notion of union would thus have to be related to the notion of a household. That is, one must inquire into the requisite conditions that different relationships among adults consenting to a union must meet in order for it to be considered a household in the eyes of the state.
Prima facie there seems to be no good reason for denying a same-sex union as constituting a household. Certainly nothing about the nature of homosexual relationships would prevent them from actually being a socio-economic and legal unit. The only obstacle, then, would be legislation itself (or lack thereof). But this would also be true of any number of different kinds of union - e.g. friends and relatives who live with one another, groups of people, etc. So would denying each of these "unions" legal status also amount to denying some basic human right?
The idea that same-sex marriage is a basic human right amounts to this: that the benefits which follow from forming a household are deserved for same-sex couples just in virtue of the fact that they can be legally considered as forming a household. But then these benefits should also be deserved for any relationship amongst consenting adults that could be considered as forming a household.
One might say the fact that a union of consenting adults could legally be a household does not count as a sufficient condition for the state to actually recognize such union. One might introduce some other or further standard. But I can't see how these would in any way be non-arbitrary.
Unions themselves would therefore be a legal stipulation, and the benefits that would follow as a consequence would also be granted by legal stipulation as well. The human right seems to be access to the benefits that are currently legally granted to unions and not the unions themselves.
I agree with much of what you write here.
ReplyDeleteMarriage is often a religious enterprise. Given the separation of church and state that is essentially to any real democracy we cannot impose upon religions a requirement to marry people of the same-sex.
But then why are there secular extensions of economic rights to a man and woman who are "legally married"? Presumably the state is recognizing not simply that they form a "household" but that they have chosen to become a "unity" to share a life together in a romantic sense - they are clearly more than roommates!
If this union is granted by the states to heterosexual couples it must be also permitted to homosexual couples. For, there is simply no non-religious rationally sustainable reason that could prohibit this right to gays.
One could of course bite the bullet. One might simply say that state ordained legal marriages should not exist, that marriage is simply a matter of religion. But, then nobody would get the marriage rights the state gives.
It seems to me that it must be both heterosexual and homosexual unions given such legal rights, or nobody given them. Otherwise we are arbitrarily denying rights to one group which we bestow on another.
I will respond to your last comment line by line, with your statements in bold:
ReplyDelete"Marriage is often a religious enterprise. Given the separation of church and state that is essential to any real democracy we cannot impose upon religions a requirement to marry people of the same-sex."
But following that same line of reasoning, should we restrict religions from marrying multiple people, etc.?
"But then why are there secular extensions of economic rights to a man and woman who are "legally married"? Presumably the state is recognizing not simply that they form a "household" but that they have chosen to become a "unity" to share a life together in a romantic sense - they are clearly more than roommates!"
This is not true. The state is blind to whether there is a romance, love, etc that unifies. The current legislative notion of marriage boils down to two consenting adults, one necessarily a female and the other a male, agreeing to a contract that makes them a household and consequently confers certain economic and legal benefits. They are seen as more than roommates in the eyes of the state. They are also seen as more than a domestic partnership. But this is because of the contract into which the state allows them to enter, and not because of love, romance, or any such thing.
"If this union is granted by the states to heterosexual couples it must be also permitted to homosexual couples. For, there is simply no non-religious rationally sustainable reason that could prohibit this right to gays."
First, why limit it to homosexual couples? Homosexuality seems to be accidental to same-sex marriage. Shouldn't two consenting male heterosexuals or or two consenting female heterosexuals also be permitted to marry in the eyes of the state?
Second, lets follow our reasoning to its logical conclusion: there is no non-religious non-arbitrary reason to prohibit group marriage, polyandry, polygyny, etc. Why allow monogamy, be it same-sex or different-sex, and yet prohibit others? We'd be denying basic rights to those who for whatever reason want to enter the non-monogamous unions.
"One could of course bite the bullet. One might simply say that state ordained legal marriages should not exist, that marriage is simply a matter of religion. But, then nobody would get the marriage rights the state gives.
It seems to me that it must be both heterosexual and homosexual unions given such legal rights, or nobody given them. Otherwise we are arbitrarily denying rights to one group which we bestow on another.
"
I agree, with some qualifications. Based on the reasoning above, we are faced with an exclusive disjunct. Either every form of union should be recognized by the state, and consequently the legal and economic benefits would be conferred on all such unions, or there should be no legal institution of marriage.
One can also think of it from this perspective as well:
ReplyDeleteSuppose that legal and economic benefits weren't conferred on married couples. Would legal access to marriage then be a human rights issue? Would same-sex couple even care?
As to the question of whether or not we should prohibit religious groups from practicing polygamy. I am not sure that we should. I have to think about that one more deeply.
ReplyDeleteBack to the "unity" factor. I don't think that the state can assume or not assume "true romance" or anything like that. I merely meant that the type of relationship that is recognized as marriage is clearly meant to be a closer bond than just living in the same place or sharing the bills. There is a commitment to share a whole life and every level and the legal and economic status of Married couples reflects that.
It may be that the rights issue would not arise without the legal and economic benefits the state confers upon married couples. But the state does so confer, and so we have the issue.
But more important to me is this: if we do not allow gay people the right to marry we are, in effect, telling them that their love and their life together is not equal to heterosexual couples'. We are legally defining their relationships as sub-par and inferior. We are basically slapping gay couples in the face.
That to me is really the rights issue. How can we say as a society - and with the force of a law - that the love of this group is not worthy of public recognition?!
It may be that the rights issue would not arise without the legal and economic benefits the state confers upon married couples. But the state does so confer, and so we have the issue.
ReplyDeleteFair enough. but keep in mind that my point is that, considered in itself, marriage is not a human right.
But more important to me is this: if we do not allow gay people the right to marry we are, in effect, telling them that their love and their life together is not equal to heterosexual couples'.
We are legally defining their relationships as sub-par and inferior. We are basically slapping gay couples in the face.That to me is really the rights issue. How can we say as a society - and with the force of a law - that the love of this group is not worthy of public recognition?!
I see things somewhat differently. Your claim is that Proposition 8 is immoral because, through a change of California state legislation brought about by a tyranny of the majority, same-sex couples have been denied a fundamental human right: i.e. the right to marry. While I agree with you that 1) such matters as same-sex marriage should not be put up to vote in the first place and 2) that Proposition 8 is problematic because it explicitly introduces legal prejudice against same-sex couples, I have serious doubts that 3) Proposition 8 is immoral because it in principle denies same sex couples the human right to marry. The issue is whether the right to legal marriage is a human right. While the controversy over same-sex marriage may currently be related to human rights issues, there is good reason to think it's not itself a human rights issue. Anything else amounts to confusion of human with legal rights.
You wrote:
ReplyDelete"While the controversy over same-sex marriage may currently be related to human rights issues, there is good reason to think it's not itself a human rights issue. Anything else amounts to confusion of human with legal rights"
I think you are quite correct. We must make a very clear seperation between legal and human or moral rights. I don't know if marriage is a moral right - what may be called a natural human right. Perhaps a case can be made for it. But there may not be any natural moral (i.e, "human") right to marriage, same-sex or otherwise.
I am in agreement with you, that the issue is legal rights. But I think with that stipulation, we fundamnetally agree? If their are legal rights which - among other thins - recognize that two heterosexual persons may enter a union of "life together" and get economic and legal rights and benefits form it, then it must grand the same legal rights to homosexual persons. Otherwise, we are saying that group a is guaranteed these rights by law, while group b is prohibited from them.
Yes, I think we by and large agree. We seem to differ with regard to the following:
ReplyDelete1) You, along with the majority of opponents of same-sex marriage, see legal or civil marriages as more than a legal contract whereas I do not.
2) You emphasize the legalization of same-sex, and specifically gay, marriage. I go further than you in maintaining that the logic of equality at least prima facie demands all types of union be legal.
3) (This last one I'm not sure about, but I'll mention it anyway.) You seem to have no qualms with calling legal unions "marriage." I think we could avoid a whole host of headaches and avoid confusion of the secular with the sacred if we were to altogether banish any conception of marriage from law and leave it as a purely religious notion. The legal notion and teminology of marriage should be replaced by some more neutral concept and term like "civil union".
This being said, I follow another line of reasoning that I maintain is sound, but there may be parts of which that you'll disagree with. The first concerns non-monogamous unions and the second concerns the rights and privileges granted to same-sex unions.
In an earlier comment I noted that those unions rightly recognized by the state are those that establish or constitute a household, a socio-economic and legal unit. Questions about which types of unions should be legal consequently amounts to questions about which types of unions form a socio-economic and legal unit. To this I add that an individual can only be a member of one household. He or she may, of course, be the only member of a household, but to preserve the unity of the household, he or she cannot belong to two or more households. Granting this, polygyny, polyandry, and group marriages should therefore be outlawed because such "unions" don't necessarily entail the establishment of a single household but rather seem to involve a conglomerate of multiple households.
Concerning the rights and privileges of same-sex unions, should they be the exact same as inter-sex unions? The state has interest in seeing that children are born and properly reared, if only to maintain a positive birthrate. Now all the empirical evidence we have suggests that same-sex couples can do just fine with regard to the latter. However, as anyone knows, the former is currently biologically possible only with inter-sex couples. As such, the state should provide greater economic and legal incentive for inter-sex couples to enter civil unions than same-sex couples. So, for instance, same-sex and inter-sex couples would share certain "baseline" legal and economic benefits in common (e.g. if one's spouse is foreign, he or she will become a US citizen, single tax filing, inheritance laws, etc.) . Beyond this, however, inter-sex couples who (can?) birth children should receive legal and economic benefits beyond the baseline, and both inter-sex and same-sex couples who rear children should receive further benefits as well. Thus there would be variation in legal contracts, but insofar as this variation doesn't lead to a "separate but equal" scenario, I find it unproblematic.
There is still the further question about incestual relationships. There is a clear problem with allowing inter-sex incestual unions, as this would promote inbreeding. But this is not so for same-sex incestual unions. Should these be allowed? Keep in mind that such unions need not be romantic or sexual in any way.
Just one comment on the last post. I don't need legally recognized unions to be called marriages. Let them be called civil unions; that is fine.
ReplyDeleteI insist, however, that if we refer to such legal unions as "marriages" for straight people, then we must also do so for gay people. If, on the other hand, we call all gay and straight "legal marriages" not marraige but simply civil unions, that is fine. One could then say that whether two people are married or not is a personal/religous matter.
I can agree with that thinking. The thing for me that matters is that their is no legal and economic difference between gays and straights.
Yes, I agree that so long as same-sex and/or non-monogamous unions are legal, they should be called marriages when monogamous inter-sex unions are called marriages.
ReplyDeleteI would also say that whatever legal and economic differences there may be between same-sex and inter-sex households, these should be based on the properties of those households.