Gay Marriage: An Argument for Discrimination

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This post is cross-posted from The Mulling Stone, which is where any conversation will be taking place. If you wish to comment, please comment there.
The Importance of Discrimination
Last Wednesday’s legal decision against Proposition 8 and in favour of same-sex marriage in California has been met with great joy by many, who herald it as a milestone for necessary civil liberties for homosexuals. Even a number of people I know who disagree with homosexual practice on moral grounds have voiced support for the ruling, seeing it as a victory for equal rights. I was disappointed by the news, though not in the least surprised.
Few cases are less likely to receive a charitable hearing than an argument for discrimination, but that is what I intend to provide here. There was a time when discrimination was not the dirty word that it is today, a time when it primarily denoted the ability to make wise judgments, discerning fine but significant distinctions. This usage is maintained when we speak of such things as a discriminating palate. Recent decades have seen the term fall into opprobrium. The fact that certain acts of discrimination between groups or classes of persons are unjustifiable and morally reprehensible has often led us to eschew acts of discrimination altogether.
The denial of gay marriage is an obvious case of discrimination. For most people, this is enough: where discrimination exists, it must be uprooted. However, not all discrimination is without justification; certain acts of discrimination are necessary for the health of society. People of differing sexes, sexual orientations, nationalities, cultures, classes, ages, and various sorts of relationships are not the same, and occasionally their differences are relevant and important bases for discriminating between them in certain matters. For instance, when it comes to most sports, practicing segregation on the basis of differences in potential levels of performance of men and women is hardly a case of unfair discrimination. In such a case it is fairly apparent that differences between men and women have bearing and require that we discriminate.
The Right Being Denied
In the case of gay marriage, the argument is often advanced that the traditional form of marriage discriminates against homosexuals by not permitting them to marry. Strictly speaking, this is not true. In this respect, homosexuals have no more or less rights when it comes to marriage than straight people do: everyone has the right to marry someone of the opposite sex, and no one has the right to marry someone of the same sex. It is argued that homosexuals are discriminated against by not being permitted to marry the spouse of their choice, or by not being permitted to form marriage unions between consenting partners. However, no one has the right to marry the person that they want, and a number of forms of marriage unions between consenting heterosexual partners are forbidden.
Of course, the grievance can be expressed in terms of homosexuals not generally having the right to a form of marriage union that conforms to their sexual orientation. The question is whether this is really a meaningful ‘right’ at all. Although traditional marriage does give heterosexuals the chance to enter into heterosexual relationships, it is far from clear that such rights categories provide us with an appropriate handle on the institution of marriage. As an institution, marriage is largely indifferent to the demands and the desires of the individuals within it. The requirements of the institution do not exist to bestow rights upon certain sets of individuals, or to deprive others sets of individuals of them. As an institution, the purposes that marriage serves go beyond the individuals who enter into the state. This is why marriage gives people a chance to transcend themselves and enter into something greater. The institution of marriage has never existed to conform itself to certain forms of relationships, but to conform certain forms of relationship to marriage.
Understandably, none of this will sound satisfactory to homosexuals who feel alienated and marginalized by society’s primary institution. Marriage as it currently exists obviously forms a barrier to the normalization of homosexuality, and to the full integration of homosexuality into the society. We must question whether a form of marriage that is exclusive to heterosexuals is contrary to a just and inclusive society.
Various possible courses are open to homosexuals and others wishing to overcome this state of affairs. The first possible course is that of demonstrating that homosexual relationships are, in fact, conformable to the relationship of marriage and that discrimination against them is unfair and unjustifiable. The analogy of the ending of restrictions against interracial marriages is often appealed to in this context. The second possible course is that of openly arguing for the dismantling, either entirely or merely partially, of the institution of marriage, moving towards a post-marriage society, with new institutions. The third course would be that of formalizing the deinstitutionalization of marriage within our society, withdrawing the privileges that the state bestows upon married couples, among other things. Further courses include the establishment of new institutional forms to accommodate homosexual unions, alongside traditional marriage, but distinct from it.
The discrimination associated with marriage is less directed against certain classes of persons than it is against certain forms of relationships (even heterosexuals are unable to consummate a marriage by means of acts of sodomy), although this discrimination is obviously far more restrictive for certain classes of persons than for others. More strictly speaking, traditional marriage is a positive discrimination in favour of a particular form of relationship. Indirectly it discriminates for and against other things, but this is its fundamental discrimination. Rather than assuming that this positive discrimination is unjust, it behooves us to determine the grounds of the discrimination. Once we have recognized these grounds we should be able to establish whether or not differences between committed relationships between homosexual couples and opposite sex couples are a valid basis for discrimination between the two. (more…)






