Marriage and Equality

Equality is about preventing and abolishing social stratification.  This is the issue which is raised when advocates of "marriage equality" use phrases like "Current marriage laws create a set of second-class citizens."  However, not all distinctions which "create second-class citizens" stratify society in an inappropriate way.  For example, laws against drunk driving create a set of second-class citizens out of all those who would like to drink and drive.  Tax breaks for certain behaviors, such as for buying a house or for having a child, create a set of second-class citizens out of those who do not qualify for those tax breaks.  These distinctions are not inherently improper unless all laws and all public policies are improper.  I sincerely hope nobody is saying this because it is patently absurd.  What advocates of "marriage equality" seem to be saying is that an individual's sexuality is not an acceptable distinction like drunk driving is.  Because equality is about preventing social stratification, the further point seems to be that this distinction is inappropriate because an individual's sexuality is an immutable characteristic, an essential quality of that individual which, by virtue of marriage laws, has condemned that individual to a particular social status.  Therefore, if it were not for marriage laws, as they have historically been, there would not be social stratification in this regard. 

At first blush, I balk at the notion of marriage as a symbol of status within society.  But that, I think, is misapprehending the point.  Marriage laws which would prevent a member of one race from marrying a member of a different race are inappropriate, but not because of any desire of a "lower" race to climb the ladder of social status by "marrying up."  Such laws are inappropriate principally because they interfere with the inalienable right to marry.  Recall from an earlier post that marriage is an inalienable right derived from the combination of a child's right to be protected and guided as it matures and from the biological parents' rights to be the primary providers for their own children.  Given a further inalienable right of adults to engage in sexual activity in a private location, members of different races can have sexual relations with each other, thereby creating human life.  Thus, they have the right to marry and to receive societal support and recognition in their efforts to raise any child which they may or may not conceive.  To prevent these biological parents (or potential biological parents) from marrying not only violates their inalienable right to marry, but it stratifies society by preventing a select group from exercising their inalienable rights for the sole reason of a quality which the members of that group were born with and which cannot be altered.  Similarly, the argument goes, marriage laws which would prevent people of a particular sexuality from marrying is not so much about marriage as a symbol of social status, as it is about being denied access to an inalienable right based on a characteristic that they are born with and which they cannot alter.

However, I must seriously disagree with some of these premises.  As I argued in another post, homosexuals do not have an inalienable right to the same recognition and support that heterosexual couples do.  Of course, the argument for "marriage equality" can easily be altered to merely say that, while the laws and public policy which they reflect may not necessarily implicate an inalienable right, the laws themselves deny homosexual couples the same recognition and support for no other reason than their sexuality, which is something they are born with and cannot alter, and hence stratifies society in an unacceptable way.

Once again, I have serious objections.  I am not at all convinced that one's sexuality is determined at birth.  I suppose the theory is that sexuality is determined by one's DNA.  I am unaware of that hypothesis having been proven by any scientific research anywhere.  There are certainly some scientific hypotheses along these lines, and there are some studies attempting to prove these hypotheses, but they have not been demonstrated with any amount of certainty to be correct.  In fact, the latest and most scientifically promising hypothesis involving DNA and sexuality only muddies the picture by throwing in epigenetics, arguing that external factors that an individual is exposed to, both in the womb and throughout life, effectively activate an otherwise dormant "gay" gene.  Besides all this talk of genetics, I myself can't see how sexual identity is anything other than a psychological phenomenon.  We are born with sexual potential, clearly, but it is only as we begin to mature that we must make sense of this facet of our physical selves in light of our experiences.  It is how one makes sense of one's own sexual potential that determines one's own sexual identity.  The sexual potential itself does not determine one's sexual identity.  Hence, sexual identity can be an incredibly fluid concept, both between individuals and for the same individual over time.

At any rate, the reason why some people are homosexual and not heterosexual, or vice versa, is not explained by science or shown to be determined at birth.  When one considers this basic fact with the dangers of a court system which "leads" science, I would think that even the most sympathetic yet empirically minded individual would hesitate to accept judicial action that seems to rely on such unproven hypotheses.  Furthermore, the lack of a clear understanding as to why some people develop a particular sexual preference makes comparisons of homosexuality to race or gender completely unwarranted.  How and why people develop a particular skin color or a particular gender is known and found to be an immutable characteristic, and hence an inappropriate foundation for legal distinctions.  I'm sorry if this offends anyone, but it has NOT been shown that homosexuality is such an immutable characteristic.   One need not conclude that homosexuality is a mutable characteristic, unlike race and gender, but I do think that intellectual honesty would result in the conclusion that there is scientific uncertainty as to whether homosexuality is an immutable characteristic or not.  This uncertainty, combined with the principle that the judiciary should not lead the way for science, leads to the conclusion that the Supreme Court should not, at least at the present time, conclude that traditional marriage laws stratify society in an inappropriate way.

Furthermore, if sexual identity is a protected "class" because it is an immutable characteristic, I don't see any reason why the equality argument should end with homosexuals.  Only a narrow and truncated view of life results in the idea that sexual identity is merely bi-modal, that the only options when it comes to sexuality is that you're either heterosexual or homosexual.  (For an interesting article on this point, see http://dailycaller.com/2014/03/19/nobody-is-born-that-way-gay-historians-say/).  Even the term LGBT refutes that view.  So, what then of people whose sexuality involves multiple partners?  It could probably be argued that such a sexual identity has been around far longer than homosexual identity (which has only existed for roughly 100 years as a distinct sexual identity).  Why not extend marriage to relationships with multiple partners in their many potential forms?  Shouldn't we encourage people with multiple partners to be committed to all of their relationships?  After all, as the theory goes, love is love, people are born with their sexual identities, and laws which distinguish based on those identities offend the principle of equality.  I know many advocates of "marriage equality" don't necessarily want to conclude that anti-polygamy laws are inappropriate, but why should one particular class of sexual identities (i.e. homosexuals) be more protected than others?  (For a somewhat more disturbing implication of the argument of, "I was born this way and can't help it," see http://www.theatlantic.com/health/archive/2013/08/what-can-be-done-about-pedophilia/279024/).

As a final objection, I do not think that it is at all clear that the laws discriminate against homosexuals for no other reason than their sexuality.  As I indicated in my previous post discussing inalienable rights and marriage, marriage laws are based on the child's inalienable right to be raised and protected as it matures, and on the biological parents' inalienable rights to be the primary caretakers of their child.  Hence, marriage laws only "discriminate" against homosexuals to the extent that it reflects the fact that homosexuals cannot be biological parents of the same child.  If society cannot pass laws buttressing and providing various forms of support and recognition to those who decide to exercise their inalienable rights in a responsible manner, what can society do?

However, as I believe I have stated elsewhere, this does not mean that the laws surrounding marriage cannot be altered through the regular legislative process, thereby expressing a different public policy for a different time.  The wisdom of such a policy change may be debated, and probably should be.  But that simply is not the direction the national discussion is going, and so I will leave that to another day, should the issue arise.