Tuesday, March 15, 2005

Gay Marriage and Gender Discrimination:

Once upon a time in Western Culture and America, women were seen to have no fit role in government, weren't allowed to vote, and were expected to stay home and raise children. A man's place was in the workplace as the sole provider of the family and the woman clearly had a subordinate role in society and the family; a wife was for all practical purposes the property of the husband. In Family Law in law school we learned that at Common Law, Blackstone's definition of marriage was that "husband and wife were one person and that the husband was that person."

Oh how have times changed. The notion of female equality is a Western invention. And it stems from the natural rights doctrine of equality. "All men are created equal," was once understood as meaning only white, Protestant men. But that understanding soon expanded to include all humans regardless of race, religion and gender.

Eugene Volokh notes how gay marriage is increasingly being argued for under the rubric of gender discrimination. If race and gender were perfect analogies then indeed, a ban on gay marriage would be gender discriminatory just as a ban on interracial marriage is racially discriminatory.

Clearly gender differences aren't perfectly analogous to racial ones (but then again, nothing is perfectly analogous to anything else. If two things were, then we would be dealing with duplicates. All analogies involve "apples to oranges" comparisons. We need to avoid comparing apples to typewriters).

I think from a philosophical perspective the natural equality of women does indeed cut against anti-homosexual arguments, especially those anti-homosexual arguments done under the rubric of "natural law" (And remember, not all theories of "natural law" are the same. For instance, one would have to strive mightily to connect Aquinas's-the Catholic Church's notion that masturbation is "unnatural" with the "laws of nature and nature's God" theory that underlies the Declaration of Independence).

For instance, the natural differences between (the so-called "complementarity" of ) the genders has oft-been used to attempt to prove something against homosexuality. As Harry Jaffa once said, "Of all the distinctions in nature from which morality can be inferred, nothing is more profound than the distinction between male and female, which runs not only for human nature but through all nature." Jaffa thinks gender differences are as profound (or profounder) as the natural distinction between man and beast on the one hand and man and God on the other. As I demonstrated in this post, this indisputably is a logical error. There may very well be some profundity to natural gender differences, but as a matter of biological and natural fact, they are not nearly as profound as the differences between man and beast or man and God.

Whatever their natural or biological differences, from a legal and social perspective, gender distinctions in the modern era are associated with a high degree of arbitrariness. Racial differences are properly viewed as wholly arbitrary. Species distinctions are properly (in my, but not Pete Singer's, opinion) viewed as wholly non-arbitrary to the point where we may legally slaughter, enslave, and eat animals (but doing so to humans is viewed as genocide, slavery, and cannibalism). Gender distinctions are viewed as presumptively arbitrary and are thus much closer to racial distinctions than to man-beast distinctions.

If Jaffa is right, then something is drastically wrong with how we view gender in this society. And the problem is not just with radical feminists and Leftists, it's with things accepted by mainstream thought: Women being accepted in the workplace, being allowed to vote, hold public office; these are part of this "new" understanding of gender as something that is properly viewed legally and socially arbitrary. Are those people who would argue for "traditional" gender roles willing to argue for the way things used to be when gender distinctions were socially and legally more profound: denying women the right to vote, to work outside of the home, to maintain an equal place in the family with the husband...? Would they argue for the repeal of 1) the 19th Amendment, 2) the category of "gender" in all civil rights related legislation, and 3) Supreme Court decisions holding that government "gender distinctions" must receive "intermediate" scrutiny? If gender differences were as profound from a natural, biological, social and legal perspective, they would. Or else they would argue for some other drastic changes along these lines.


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