November 09, 2004

marriage "rights"

My classmate Denise has been conversing with Irish Law (1, 2) about whether same-sex marriage is a "right" or not. I'm wondering why this debate has to be confined to same-sex marriage--why should one side's version of marriage enjoy all the scrutiny? Why can't we ask the same questions of man/woman marriage? It's only fair, after all. . .

Irish Law says that supporters of same-sex marriage ("SSM") show "contempt" for the democratic process when they appeal to the judicial branch to preserve SSM in the face of the expressed desire of the majority to prohibit it. She claims that this tactic is legitimate only when a "right" is at stake--we can't infringe rights by majority vote--and that SSM is not a right.

That's fine, as far as it goes. But Irish Law doesn't want to say that "marriage" has nothing to do with rights at all. Predictably, perhaps, she asserts that marriage between a man and a woman is a right. This conveniently relieves herself of any obligation to do what she insists the supporters of SSM must do: persuade a majority in the public square to permit the practice, or go without.

I can't blame her for trying to insulate her version of marriage from the whims of the majority. After all, the ability to marry someone you love would be a terrible thing to lose. But why should Irish Law relax, content in the knowledge that her idea of marriage is safely ensconced behind the walls of "rights," while a gay person is forced to endure the vicissitudes of public opinion, pleading in the public square for what Irish Law is assured of having, and for what may, if won, be withdrawn in the next election?

With man/woman marriage safely protected as a right, Irish law can appear magnanimous about her willingness to debate SSM: "if I lost the overall debate in the public square I would be upset and keep working to protect marriage, but I would accept that the result had come about by democratic processes." This apparent magnanimity is possible only because she is protected from "losing" a public debate about whether her version of marriage should be legislated out of existence--she's already locked this up as a right.

Can Irish Law explain why man/woman marriage is a right, but man/man or woman/woman is not? She attempts to do so in several ways, all of which fail.

  1. The definitional argument: "It's true that marriage is a fundamental right, anterior to the state -- but marriage has never encompassed in its definition any "right" to wed someone of the same sex." This is simply arbitrary. Definitions are (by definition?) always capable of being contested. Grounding a right "anterior to the state" (whatever that might mean) in a definition just begs the question of whose definition we should privilege. Irish law wants to privilege hers. But she still has to explain why we should, and this brings us to. . .
  2. The history argument: "Empirical observation of historical or current societies around the world does not demonstrate that marriage ever has included or really does include union to someone of the same sex. . ." Is IL really prepared to hang her hat on this? Must all rights depend on an unbroken historical practice of the recognition of these rights? I hope not. Women's "right" to vote? Tenuous. But we also have. . .
  3. The biological argument: "It doesn't follow from rational deduction that marriage must include the right to join with someone of the same sex; reason rather supports the institution of marriage, as it is between men and woman, as a means to ensuring stability of and propogation [sic] of our very existence." But why should the need to procreate establish the "right" of men and women to marry each other? All procreation requires is the right to fuck each other. With today's in-vitro fertilization technologies, it might not even require that.

Since Irish Law cannot establish why men and women have the right to marry each other, her argument that men and men, or women and women, have no such rights is actually stronger. But I doubt Irish Law will revel in this kind of victory.

Chris Geidner is correct to characterize the SSM issue as fundamentally about equality. What I'm curious about is why Irish Law seems so afraid of equality. Is it because she fears that gays will demand that the Catholic Church sanction gay marriage? I haven't heard of anyone threatening to do that. I don't see how Catholic marriages are in any way threatened by the state's recognition of SSM. Irish law is a good writer, and she seems very smart. I'd like to see her answer this question, if she can.

Posted by Carey at November 9, 2004 10:18 PM