It’s Not About Equal Rights

By | June 27, 2011

The state of New York recently made headlines when it passed the “Marriage Equality Act” by a 33-29 margin. Many of the arguments presented in favor of the bill were framed in terms of equal marriage rights for all citizens, paralleling the same arguments used by those in the Civil Rights Movement.  Those in the same-sex community argued that by being unable to marry, they were being denied a right.

As it stands, the term “marriage equality” is both vague and loaded. In order to determine what is considered equal treatment, we first have to know what marriage is. To speak about marriage equality without first establishing a definition of marriage is to put the cart before the horse. We cannot sensibly talk about issues of rights if we don’t even know what a right itself is.

Many pro-abortion arguments take a similar route — that is, they presuppose what’s entailed in the conclusion. But in fact, the real debate with abortion ought not be about a women’s right to choose, but about the personhood of the unborn. If the unborn are rights-bearing persons, then there exists no right to terminate their lives (extraordinary cases aside).

In a similar way, it is circular to argue that same-sex couples should be married because it is their right, for the conclusion is presupposed in the premises. Proponents of conjugal marriage will simply deny that such a right exists to begin with, so it is of no use to assert it.  For advocates of conjugal marriage, marriage is already equal.

It is precisely for this reason that the argument against traditional marriage norms on the grounds of Equal Protection and Due Process clauses fail. Before we can delve into issues of what marriage law should be, we first have first to establish the relevant facts concerning marriage. If the very nature of marriage is conjugal, then there is no unjust discrimination taking place when it is denied to same-sex couples, since no conjugal aspect is possible.

Ultimately, the issue is not one of equal rights, but of what marriage is fundamentally.  I would be the first to admit that same-sex couples should have the full right to marry, but only if marriage is defined in a certain way (such as being an emotional union of persons). That’s a big if, and one that many proponents of same-sex marriage seem to gloss over.

Considerations of equal rights must always come after a definition of the benefit in question is established, otherwise cases in favor will invariably end up begging the question. Campaigns and slogans that parade the term “marriage equality” have thus already presupposed the conjugal conception of marriage to be false. We must be careful not to grant this assumption, and to focus the debate on the real issue.

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  • CraigHenry


    I have a few comments:

    1) On language: most of us in the LGBT community and our allies don’t refer to ourselves as the “same-sex community” – at least not any more often than straight people refer to their marriage as “opposite marriage” (as a recent beauty pageant contestant so awkwardly referred to it). “LGBT” works, or even “Queer” if it’s said with respect.

    2) Obviously, advocates for same-sex marriage do not consider conjugality to be necessary to the definition of marriage (this says nothing of whether or not they value conjugality as a part of many marriages), nor do the rights and privileges bestowed by the state in relation to marriage have much to do with conjugality at all (if by “conjugality”, you mean something like the possibility of procreative genital intercourse – I’m not sure what you mean by this term).

    Maybe you’re suggesting that those who favored this law were unclear about whether or not procreative genital intercourse was a necessary aspect of marriage, but I can’t imagine any of them being ignorant enough to believe that same-sex marriages could be characterized by procreative genital intercourse, yet they voted for and supported it. Since there is hardly any dispute about whether or not same-sex couples could procreate through genital intercourse, I cannot imagine that the lawmakers and supporters of this bill were confused in this regard. I think you’re probably right that they just don’t see conjugality as central enough to the legal definition of marriage to deny the benefits of marriage to LGBT families.

    I’m not sure what “glossing over” the issue of conjugality in marriage meant, but it’s hardly believable that they were unaware of (or even intentionally misleading) in this regard, since it is so obvious to all that same-sex couples cannot procreate. It seems pretty naive, to my mind, to assume that supporters “glossed over” conjugality, especially given the repeated warnings by opponents of the measure that it changed the definition of marriage (including Archbishop Dolan, whose blog post on the subject was all over the news).

    Instead, we might assume that those supporters found that to extend the rights and privileges associated with marriage to LGBT families not only did not threaten the conjugal aspect of straight marriages, but it dignified those LGBT relationships in the aspects of marriage which you might agree are valuable (emotional connection, commitment to family, etc.), and encouraged more people (in this case LGBT people) toward them. I’m afraid you misinterpreted supporters’ enthusiasm for the bestowal of these rights as a forgetful or intentionally misleading dodge of these issues. I’m glad to give my assurance (just one supporter’s, admittedly), that this enthusiasm is neither uncritical nor malicious (I can’t imagine what other explanations you might have had in mind for the “glossing over” of the aspect of conjugality as necessary to the legal definition of marriage?!).

    I have to say that I find it a heroic and compassionate gesture that so many straight people, faced with the lives of their LGBT friends, are willing to open up an institution that privileges them to those they deem worthy of equal privilege (overwhelmingly studies show that those who know us, are willing to do this). I don’t deny that marriage is changing. But those of us who are enthused about the change are neither ignorant of it, nor attempting to pull the wool over the eyes of others.

    You write that, “considerations of equal rights must always come after a definition of the benefit in question is established”. LGBT allies are articulate about those benefits – they know them from receiving them themselves, and they are under no delusion that we can procreate through genital intercourse, however “glossy” the rhetoric used to persuade is. Given how clear it is that same-sex couples can’t procreate, I don’t think you can argue well that the public was misinformed or unaware or just lacking the training of a philosophy 101 course. They know what they’re doing.

    3) I suppose this is something I’ve noticed over and over on the pages of Ethika Politika, which I encourage contributors to avoid: The critique of slogans (whether on t-shirts or titles of legislative bills) is so frustrating, because it allows you to fill in an entire narrative behind the few words that no articulate supporter of that slogan would use in defense of it. And slogans aren’t even arguments – at least they are different enough to warrant consideration! I suppose this is a necessary danger of critique of a soundbite culture, but no one is very persuasive because in this way we continue to engage with arguments that don’t even exist. I’m on no moral high ground here – I’m sure it’s a temptation for myself as well, and it’s always easier to see when you’re looking at the other side. But in this case, the argument that people just weren’t thinking about the issues underneath because they were too dazzled by the slogan seems pretty pessimistic and doesn’t do much to engage an argument.

  • d.acheson

    Mr. Henry misses the crux of Mr. Hsiao’s argument, which is that “To speak about marriage equality without a definition of marriage is to place the cart before the horse.” In no way does Mr. Henry refute this core assertion, indeed, like so many proponents of gay marriage, he treats it as if it is non-existant. At best this is disingenuous because the very idea that the homosexual community has been denied a “right” attacks the traditional purpose of marriage, that is, a community of love which bears and raises the next generation.

    Whether or not this was on the minds of New York’s legislative body is irrelevant because you cannot legislate away nature. Failing adoption there is no avenue by which homosexuals can raise children in a monogamous relationship. The perennial tactic of proponents of “marriage equality”, then, is to assert a circular argument; that is, they presuppose the conclusion in their assertion.

    In this respect the issue is no longer a point for conservative and liberal contention, but rather an objection to a logical fallacy. Whether or not public discourse perpetuates this error has no bearing on its objective truth. In no way is a “good” conclusion redeemed by a bad assertion. To his credit, Mr. Hsiao drags this persistent error of the same-sex marriage debate into the limelight.

  • CraigHenry

    Ms. Or Mr. Acheson,

    I did not miss the crux of the argument, although you are right that neither did I refute that core assertion. I agree that it is logically consistent. I only disagreed with the assumption that supporters of this bill somehow missed the fact that same-sex couples cannot procreate – that their marriages wouldn’t have a procreative aspect. Rather than ignoring this logical point, I am suggesting that people do recognize that they are expanding the definition of marriage, and they simply don’t conclude that such an inclusive gesture “attacks” the procreative aspect of many marriages.

    On a separate note, i would suggest that same-sex marriages encourage strong family structures. My partner and I are ready and willing to care for my niece and nephew should something happen to their parents, and I would be less capable to do so without his support. Indeed we participate in the same community of love you refer to when we help to raise them now and when we do our other work as teachers – he to special needs kids in our community and I to college students. And we are better able to do so when our monogamous, committed relationship is supported in the same way as my brother and his wife’s.

    I appreciate your points about logical fallacy, but encourage you to consider that few read ethika polotika for training or exercise in logic. I’m glad for those skills, but they don’t operate in a vacuum, and i question the reading of an article like this as an exercise in logic. I suppose what we might mean when we say “marriage equality” is something like, ” let’s see marriage become something straight and lgbt people can both participate in at the public level” – doesn’t fit as nicely on a poster board. I was giving Timothy some reassurance that nobody actually believes “marriage equality” means having the exact same kinds of marriages – that would be an error, not only of logic, but of common sense.


  • R.R. Edwards

    Timothy argues that life, liberty and the pursuit of happiness are only rights if you are straight. Is there anything more that needs to be said than “boooo”.

  • R.R. Edwards

    If it were an error, then it would indeed be commendable. However, if you familiarize yourself with the bonds of marriage you will find that it is about love and building a life with another person and not in any way about permissible fornication. In fact the traditional bonds “in sickness and in health . . . until death do us part” specifically includes sterility, impotence, and other medical conditions which exclude progenitive fornication. However, I agree with your notion – you can not legislate nature away and as homosexual pair bonding is well demonstrated in all complex animals, it is obviously as natural as breathing.

  • M.S. Holiday

    Animals also kill their young and each other. Is that natural as breathing?