I had a conversation recently over on HuffPo about marriage equality that, in the end, chilled me to the bone.
I'm a lawyer and a former teacher. I'm not a law professor, but I like to educate people about the law. So I sometimes go over to the HuffPo comment threads and try to reason out with same-sex marriage opponents just what their opposition is based on. What I'm really looking for is an explanation that would satisfy the standards of the Supreme Court's key civil rights decisions, and thereby objectively justify excluding same-sex couples from being married under the law.
The problem, obviously, is that once you frame the issue properly and explain the legal precedents and standards involved, no one can come up with a good reason why we should not allow same-sex marriage. I remember many years ago when someone first suggested the idea of gay marriage to me (being neither gay nor married, nor considering marriage at that time, I had never thought of it before.) My first reaction, after thinking about it for a few seconds, was, "Why not?" Simply put, after all these years I have yet to hear a good answer to that question.
So, essentially, that's the question I always ask at the beginning of every conversation, the question I challenge gay-marriage opponents to answer without resorting to what amounts to homophobic bigotry, religious or quasi-religious dogma or retrograde notions about "morality," all of which are inherently subjective. When I push these folks for objective reasons, or an objective correlation between banning gay marriage and whatever it is they "believe," most of them can't and they just give up.
But sometimes they don't. Follow me below the Mets-logo-on-meth for an example of one who didn't, and a long, dark journey into the sick, twisted place he took me.
The proper way to frame the same-sex marriage dispute is not gay-vs.-straight, religious-vs.-secular, state-vs.-federal, etc. It's not even about "defining" marriage. The proper framing is equality vs. exclusivity.
What same-sex couples seek is nothing more or less than the legal status of "married," with each partner legally the other's "spouse." Full stop. Now, that carries with it hundreds of benefits and privileges that exist by operation of law, by virtue of that status, that cannot be attained by private contract. And there is, of course, more to marriage than legal status, but for these purposes that's beside the point. Generally speaking, the states make "married" status available to any couple that wishes to get married, provided that (1) they both can and do legally consent; (2) they are not already married to someone else; and (3) they are not close blood relatives. There are good reasons for these three restrictions, and just about everyone is OK with them. They have either not been challenged or have been found not to offend anyone's constitutional rights.
At best, same-sex marriage opponents would add (or, really, maintain) a fourth restriction, (4) one applicant must be a man and the other a woman, which is essentially the restriction being challenged today. It could also be said that opponents seek to "define" marriage that way, because a definition of "marriage" as "one man, one woman" is really the only justification for that restriction. It would be wrong, however, to suggest that supporters of same-sex marriage want to "define" marriage. Indeed, "marriage" need not be defined at all in order for it to include same-sex couples. Definition implies restriction; proponents of marriage equality seek, at most, to remove a restriction that opponents seek to maintain. If anyone seeks to "define" marriage, it is the latter, not the former.
Nevertheless, the proper framing of this dispute is whether "married" and "spouse" status, conferred and recognized by law, should be available to same-sex couples (i.e., "equality"), or whether it should be reserved for opposite-sex couples only ("exclusivity"). [Always assuming for the sake of argument that, gay or straight, they meet the three aforementioned criteria.] This framing then becomes the starting point for evaluating exclusivity under the rubric established in Loving v. Virginia, 388 U.S. 1 (1967), the landmark Supreme Court decision that struck down miscegenation laws as unconstitutional. The essence of the Loving decision is twofold:
1. "Marriage," viz., the right to marry the person of one's choosing, is a fundamental constitutional right (or "liberty interest") protected by the Due Process Clause of the Fourteenth Amendment. Any restrictions on marriage are therefore subject to strict scrutiny, i.e., they require the state to demonstrate (1) a compelling governmental interest in the restriction, and (2) that the restriction is narrowly tailored to that interest. The Court determined that there was no compelling governmental interest in limiting marriage to same-race couples only; maintaining racial purity, or the "supremacy of the white race," was not a compelling governmental interest.
2. The restriction of marriage to same-race couples only, even though it purported to treat the races equally in that the restrictions and penalties did not depend on which race you were, still violated the Equal Protection Clause of the Fourteenth Amendment, because it constituted divergent treatment by the laws based on racial classifications.
One thing I have to keep reminding opponents of same-sex marriage (let's call them "exclusivists") when I have these conversations is that the United States of America is a free country. What that means, inter alia, is that when a person seeks either a substantive right or equal treatment under the law, he does not have to justify it or demonstrate that he should have it; rather, the state has to justify the restriction and demonstrate why he should not have that right or why he should not have equal treatment. Therefore, proponents of equality do not have to justify equality; the state has to justify exclusivity. That's the essence of what "liberty and justice for all" actually means. Liberty, and justice, for all.
So, whenever I have a conversation about this with an exclusivist, I always try to push the conversation into this framing and get him or her to provide me with the following:
(1) A compelling governmental interest that justifies exclusivity; and
(2) A direct, objective correlation between exclusivity and that interest.
Many exclusivists will then cite, in one manner or another, human procreation as a "compelling governmental interest." The state, they say, has a compelling interest in promoting and encouraging procreation, and since straight couples can procreate and gay couples can't, only the former should be allowed to marry. Now, as we all know, there are a myriad of logical and practical problems and contradictions with that formulation, which I don't really need to detail here. The most obvious, which exclusivists invariably ignore, is that it does not account for infertile straight couples or those that simply don't want to have children, let alone the fact that marriage is not conditioned on procreation, nor on the capacity or intent to procreate. But all of those problems and contradictions all amount to the same basic point: That exclusivity is not "narrowly tailored" to those interests. Marriage may serve those interests, whether directly or incidentally, but exclusivity does not.
And here's where the dark heart of the exclusivist begins to reveal itself.
I had a conversation with an exclusivist over at HuffPo recently, who was especially interested in, and adamant about, human procreation as the justification for exclusivity. [Click here to read the entire thing.] It started when I wrote this:
All of the things we like about hetero marriage, including (but not limited to) procreation, will continue to be true and continue to occur if access to marriage is no longer restricted to hetero couples, who will continue to marry and procreate as they desire; the civic/legal status "married" (or "spouse") will be no less accessible to hetero couples than it already is. Hence not only is there no compelling governmental interest, but even if promoting "traditional marriage," "family," "procreation," &c. were such an interest, a law banning same-sex marriage would not be narrowly tailored to serve that interest."A person called "las Novios" replied thusly:
You are wrong about "including procreation." No homosexual couple can procreate without resorting to some form of sex with the other gender - which, I might add, is what traditionally has defined "marriage." So no homosexual can procreate without, in some sense, "marrying" in the traditional sense.And off we went.
As I labored to frame the discussion in the terms laid out above, dismissing a number of irrelevancies (like the "federal government defining marriage" and what-not) along the way, I had to keep reminding this individual that
Hetero marriage and procreation will continue unabated either way.
[P]rocreation and the potential for procreation will continue unabated when same-sex couples are recognized by law as "married."
[H]etero marriage and procreation will continue unabated when same-sex couples are legally "married."
[H]etero marriage and reproduction will continue unabated when same-sex couples are legally "married." Even if "encouraging reproduction" is a compelling governmental interest...legalizing same-sex marriage will have no effect thereon whatsoever, therefore a ban/restriction on marriage is not "narrowly tailored" to that interest.las Novios never acknowledged or refuted any of this. The longer the conversation went on, the more he would fixate on and emphasize the importance of procreation; indeed, procreation seemed to become more and more important as the conversation went on. I probably should have bailed when he wrote this:
There are a great many ways the law can encourage procreation, but banning same-sex marriage or limiting marriage to hetero couples only is not one of them.
Same-sex marriage will not make marriage less accessible or less desirable to hetero couples, nor will it inhibit procreation or the potential for procreation, nor will restricting marriage to hetero couples encourage procreation beyond what will naturally occur anyway.
[A]ny mating that does not result in reproduction is meaningless, so any relationship between two individuals that precludes that possibility has no validity.I thought this was a horrible, mean, vicious and offensive thing to say, and I told him so. He didn't acknowledge it. But in retrospect I see where he was going.
Only [a] heterosexual couple can produce children. That makes them unique and there is no way that homosexual couples can be considered their equal in that regard.Over 90% of the population is "unique"?
[T]he argument can be made that the country has a compelling interest in encouraging reproduction, so it could be argued that providing special benefits to incentivize that activity is perfectly legal."Special benefits"?
In the post- WWII era, special benefits were extended to veterans. ... [W]hy give special benefits to veterans and deprive the rest of the population of those benefits, essentially making them second-class citizens in the eyes of the government? ... [Because] the government felt it was in the best interests of the country to do so. You could make that same argument for heterosexual marriage - that it is in the interest of the government to encourage a system that reproduces its population.Exclusive access to marriage is the equivalent of veterans benefits? We reward veterans for their service, so we should reward straight people for being straight? For merely having the capacity to do something they have not yet done, may never do, and are under no obligation to do? And non-veterans are "second-class citizens" because they do not get benefits that they did not earn?
[H]eterosexual couples can procreate, while homosexual couples cannot. ...[T]hat makes them special because they alone can do this, and it is absolutely necessary for the welfare of the community and the country that they do so. That specialness is worthy of consideration and ... the exclusive use of the term "marriage."Uh-oh....
[I]t [also] might be good to give heterosexual couples special treatment, [because of] the cost they incur to bear children - physical challenges of pregnancy, loss of career parity, reduction in per-capita discretionary income, the added responsibility of serving in a custodial capacity. ... [H]eterosexual couples do disproportionately incur [these burdens], so some special compensation is warranted.Wait ... now I'm supposed to feel sorry for straight couples and "compensate" them for bearing the "burdens" of child-bearing and child-rearing, which they individually choose for themselves and are under absolutely no obligation to undertake?
Choosing parenthood is no less a commitment to the welfare of the country than is serving in the military, so why not reward these people for shouldering the extra responsibility? ... Since heterosexual couples disproportionately shoulder these responsibilities, then they are deserving of special consideration from the country they sustain."Choosing parenthood" = "serving in the military"? Having children is a service to the state???
[S]pecial consideration is considered a reward for specific desirable behaviour, and sometimes it is seen as mitigating the cost incurred by a group as a consequence of following the particular behaviours associated with that group. I think both of those criteria are met by heterosexual couples.Oh, boy.
So, just to summarize, this person is basically saying that:
1. Having children is a service to the state.
2. Civil rights are "special benefits" that should be reserved only for those with "desirable" human characteristics.
And let's not forget,
3. Any relationship between two people that lacks the potential for procreation has no meaning, no validity, and no social value whatsoever.
Not really appreciating at the time the full awfulness of his argument, I put it to him this way:
At the end of the day, your describing marriage as "special benefits" just for hetero couples, given so as to encourage procreation, with or without any consequences for inability, failure or refusal to procreate, illustrates what this really comes down to.He didn't really dispute this, except to reiterate and double down on what he'd already said, viz., that heterosexuals are "special" and thus deserve to be rewarded, and exclusivity is an appropriate reward. I finally challenged him:
Remember, -nothing- -will- -happen- to hetero marriage or human procreation if same-sex couples can legally marry. Nothing else will change. Assuming you understand that, what you're ultimately saying is this:
Although the "benefits" will remain unchanged, they will no longer be "special."
If you could convince me ... that hetero couples would be less inclined to procreate if they did -not- have -exclusive- access to civil marriage status, I might begin to agree with you, at least to the extent that the discrimination you advocate has a rational basis.His reply:
I have never suggested that heterosexual couples would be less likely to procreate if they did not retain exclusive status as "married," but I feel that is too narrow of a criterion to determine whether they should be granted special consideration.Ignoring the second half of that sentence, I replied:
If that is the case, then your entire argument fails. Your position is premised on a direct, objective correlation between exclusivity and procreation. Not between marriage and procreation; between -exclusivity- ("special benefits") and procreation. If no such correlation exists, then the entire argument is invalid.And that was the end of it.
I had to re-read this thread a few times before I truly realized what a sick, twisted view this person was harboring and advocating. In challenging him to justify exclusivity, I had him justifying and advocating for marriage itself instead, and when I pressed him to connect his justification for marriage with a justification for exclusivity, not only was he unable to do it but he ended up spouting off these horrifying beliefs.
I posted this because it's been on my mind a lot the last few days, and I wanted to lay it all out in one place. Thanks for reading the whole thing.