The Ground Beneath Me Remains Quite Solid, Thanks All The Same

I confess that I'm not always certain what point Jonathan is trying to make. Such is the case here:

You are misguided on the polygamy vs. gay marriage point. It is a bit like saying "it is okay to fall in love with many different people, but not more than one at a time." Well, I do not see the problem with the state condoning polygamy when it does condone people cheating on each other. That is, if I go cheat on my girlfriend, what is the state going to do about that? Nothing. Thus, the discrimination against polygamous people is arbitrarily enforced -- not merely against homosexuals.

I'm not sure whether Jonathan is talking about marriage rights or the criminalization of certain sexual behaviors. First, he should note that I never used the word "polygamy," but the more neutral "polyamory." Why? Because even though polygamy literally means a sexual relationship involving one man and multiple women, in contemporary parlance it refers to an arrangement whereby one man marries multiple women. Polygamy does indeed fall under the category of polyamory, but the latter term refers only to a sexual relationship involving multiple partners, is gender-neutral, and need not have anything to do with marriage. For the record, the state doesn't discriminate between a man who cheats on his girlfriend and a swingers' club. Both are legal and exempt from intervention. What Jonathan is not legally able to do is marry one woman, and then marry another. I'll defend to the death his right to cheat on his girlfriend and take on as many sexual partners, men and women, as he desires. Personally, I don't have a huge problem with allowing groups of people to marry each other. The problem is that every historical instantiation of polyamory involving multiple marriage is rife with physical and sexual abuse. There is a binary divide among polyamorous people: on the one side, progressive types who aren't interested in marriage, and on the other Mormon and Muslim fanatics whose marriages have been declared illicit for the reasons cited above.

I might as well repeat my point about the faultiness of the comparison between homosexuality and polyamory: A polyamorous heterosexual person is free to marry any person with whom he falls in love. What he lacks is the freedom to marry multiple people simultaneously; perhaps Jonathan views this as a huge imposition on liberty, but if it is, it has nothing to do with the rights of gay people. Presently, a homosexual does not have the right to marry any person with whom he falls in love. Were homosexual marriage to be legalized, homosexuals would have no more freedom to enter into group marriages than anybody else. Nothing about the fundamental structure of marriage as a union between two individuals will have changed. It remains to be shown why homosexuals should be barred from joining such a union.

Responding to my points about arbitrary discrimination, Jonathan writes:

To say a law is wrong because it is arbitrary is treading on risky ground. Law IS arbitrary. Prison sentences are arbitrary. Taxes are arbitrary. With regards to "equal rights," why am I allowed free speech that is limited through laws against libel and defamation? You cannot justly speak of an unlimited right. Why is equality any different?

I want to be as objective as possible, but it's difficult when confronting so many horrific misinterpretations of American Constitutional law. In the Brown decision of 1954, the US Supreme Court ruled 9-0 that arbitrary forms of discrimination violated the equal protection clause of the 14th Amendment. A law that creates, for example, one set of public schools for Christians and another for Jews is unconstitutional. There is no such thing as separate but equal. State laws that restrict marriage to heterosexual couples cannot justify the exclusion of homosexuals by virtue of the fact that they are homosexuals, QED. The state's failure to come up with any sufficient reason for excluding homosexuals from marriage was the basis of the Massachusetts SJC ruling that legalized gay marriage in the Commonwealth. Furthermore, it's vital to keep in mind the fact that this ruling does not constitute the creation of rights that never previously existed. It means that gays have had such rights in Massachusetts all along, and have previously been denied them unjustly. Just as school segregation had always been unconstitutional, and did not just become unconstitutional following Brown.

Law is not, pace Jonathan, arbitrary in the sense that you impute to the term. Prison sentences may be numbers that are argued and voted upon, and there may indeed be no good reason that a particular sentence should be 2 years rather than 23.9 months, but the purpose of sentencing is to correlate punishment to the severity of the crime. Like any human institution, the legal code is fallible, yet it is clear that criminal sentences are the opposite of arbitrary in their intention. Judges are trusted to exercise their discretion in determining the appropriate sentence given the circumstances of a crime. They do not draw numbers out of a hat. That would be arbitrary. Similarly, the basis of a graduated system of taxation is to assign a proportion of income to be taxed correlative to one's ability to pay. Obviously, no two people are going to pay precisely the same amount relative to their ability to pay, but the intention behind the tax code is unarbitrary and unambiguous. If, on the other hand, gays were required to pay 5% more in income taxes than heterosexuals in the same income bracket, that would be a case of arbitrary (and therefore unconstitutional) discrimination.

Similarly, the limiting of speech through libel laws is not arbitrary. Even libelous speech is not criminal, but merely subject to civil litigation. In order to win a judgement against someone for libel, you would have to prove that his speech was injurious to you, and the standard of proof in such cases is extremely high (as we indirectly pointed out here). Speech that has met that threshhold constitutes a violation of the rights of the injured party, and that is why it's actionable. The assignment of damages in successful libel suits is no more arbitrary than sentencing in criminal cases, so refer to my comments about those, above. If, however, certain forms of speech were protected for one group of citizens and unprotected for another, then that would constitute arbitrary discrimination. Moving along:

Next, people without a good sense of history seem to think that marriage and romance were always linked at the hip. The result is that people think marriage is and has always been about love. That said, your challenge " I have yet to hear an argument as to why it is any less valid than heterosexual love" misses the point. Heterosexual marriage is not unique due to its validity or even love elements. Thus, your point is answered ("Namely, but for the fact that they are homosexual, there is no criterion that straight partners wishing to marry one another must meet in order to obtain a marriage license that gay partners would fail to meet.")

Despite your condescension, I am actually quite well aware of the fact that marriage and romance were not always linked at the hip, and this is a fact that tells in favor of my argument, not yours. Of course marriage has always been a fluid and changing social institution, something that the neo-Phalangists usually ignore. In the United States in 2004, any two heterosexuals of sufficient age and not blood-related within prohibited degrees have the right to marry one another. They need not want to have children, need not have the ability to have children, and need not love or even like each other. Heterosexuals are free to marry for financial reasons, in order to facilitate an immigration, because they're in love, or for any other reason that they could come up with. The only restriction is that no one can be forced to marry. These are criteria that any two homosexuals can easily meet, and to deny them the right to marry is arbitrary discrimination.

Not so fast, says Jonathan. I'm forgetting biology class, apparently:

Marriage is unique because it is a biological fact. Marriage enshrines this fact, this one union flesh -- consummation -- into law. A man and a woman unite together to form a unique principle that cannot be attained in other relations. Homosexual relations cannot achieve this union due to the biological reality of two men or women.

What unique principle that has not already been removed from civil marriage law can a heterosexual couple achieve that a homosexual couple cannot? Fertility, as I've already discussed at more than sufficient length, is not a legal criterion for the issuance of a valid marriage license. Since you're apparently conceding that homosexual love actually is love, the one thing homosexuals cannot do with each other is have heterosexual sex. Duh. That's not grounds to deny them the right to marry, merely a restatement of the arbitrary discrimination in which heterosexuals can marry and homosexuals cannot. So much for the legal and philosophical case Jonathan presents. The issue of his "statistics" remains. I'll save that for the next post.