Saturday, October 18, 2008

What is Equality?

That is the question raised by this very interesting column in the Yale Daily News.
Equal protection principles basically amount to the idea that individuals in similar conditions should be treated similarly. This ostensibly raises the problem, though, of determining which conditions are relevant (implying sexual orientation is an irrelevant difference).

What interests me, however, is the assertion (the crux of this kind of argument) that they are treated differently. Marriage laws typically state that one is entitled to marry someone of the opposite sex. A denial of equal protection, then, would mean that the law prohibits gay men from marrying women. I seriously doubt there is a legal ban anywhere from gays entering into heterosexual marriage. A gay man has as much entitlement to marry a woman as I do. To put it another way, I, a straight man, have equally little (in three states, equally much) opportunity to marry another man as a gay man does. ...
The only way to use the argument that there is no equal protection under the law is to, well, ignore the content of law that is supposedly being unequally applied. This is different than a black person being denied a job a white person would get. Everyone — gay or straight — is allowed a heterosexual marriage, and everyone is equally denied a homosexual marriage. ...
the argument relies on the reading of the Constitution that says everyone has the right to marry who he wants, not that everyone has the right to marry someone of the opposite sex. This is a dangerous formulation because the Constitution requires that everyone have the same legal privileges, not that everyone have a fit between his privileges and preferences.

Requiring that, in order for true equality, everyone must have a privilege that matches his preferences is too much work to ask the word “equality” to do.

Here is another variant of the same concern: the word "equality" is not a stand-alone word. It is a concept which requires a referent. Who is equal to whom, for what purposes? The gay lobby takes it as self-evident that marriage equality requires that the legal definition of marriage be genderless. Mr. Harris in effect, proposes that equality means that everyone is equally permitted to marry an opposite sex partner.
I have yet a different proposal, inspired by CA's domestic partnership law. CA permits same sex couples to register as domestic partners. California also permits opposite sex couples, over the age of 62 to register as domestic partners. In effect, this rule treats intrinsically sterile couples the same way. Why doesn't this count as equality? For some purposes, obviously, it does. We have to specify the referent, before the term "equality," has any meaning.


Paula said...

It seems ludicrous, given the generally understood (until now!) definition of marriage as the legal union of a man and a woman, for gay activists to demand the right to marry. What does it mean to say "I want to enter into (a legal union of a man and a woman) with my same-sex partner." Huh? Oh, yeah, what they don't want us to think about is that they are trying to completely change the definition of marriage itself!

LB said...

It doesn't count as equality beacuse opposite-sex couples over age 62 can get married if they so choose. They are not required to become domestic partners.

mgarelick said...

I see a couple of problems with your analogy, and with that of the article you quote. First, the domestic partnership question. I wasn't in California when that law was passed, but isn't it the case that the 62-and-older provision was to accomodate people who would have gotten married except that it would have been detrimental to their financial status (social security, income tax, etc.)? And same sex couples were offered domestic partnership status because they could not legally marry. Was anyone, at that time, drawing the link between seniors and gays as "infertile?"

Turning to the Yale Daily News column, what about pre-Loving v. Virginia anti-miscegenation laws? Didn't they give everyone the equal right to marry someone of their own race? It seems to me that this columnist, while arguing that "equality" should not be asked to do too much "work," is demonstrating that, with enough fine-tuning of the definitions of the rights and classes, any equal protection analysis can come out with no constitutional violation.

Chairm said...

Actually, full retirement benefits begin at age 65 for people born before 1960. This age requirement gradually increases until age 67 for people born after 1959.

Medicare benefits do not begin until the age of 65.

When domestic partnership was enacted in 1999, both the man and the woman had to be over the age of 62. This was to avoid creating a status that would compete with marriage.

Domestic partnership was expanded in scope but also the eligiblity requirement changed so that only one partner -- either the man or the woman -- had to be 62 or older.

So, in the early implementation, domestic partnership used old age as proxy for infertility. Marriage was still to be encouraged for people during their childbearing years. Obviously it is not a precise proxy because women generally reach menopause in their mid-forties and men generally remain potent beyond their early sixties.

The expanded domestic partnership status is an attempt to merge nonmarriage with marriage in all but name.

Since it remains open to both-sexed couples, and to those which could include a younger woman and an older man, the presumption of paternity was attached in one of the earlier steps of gradual expansion of the status.

So when Dr J said:

In effect, this rule treats intrinsically sterile couples the same way.

She cited the 1999 rule that required both the man and the woman to be over age 62.

I would object to the notion that an elderly both-sexed couple is intrinsically sterile.

They have become infertile, yes.

As for being equal to the one-sexed type of arrangement, the lack of one or the other sex is not infertility. However, yes, no individual, no twosome, no moresome can be infertile without the other sex; just as no such scenario can be fertile without the other sex. The lack of the other sex may not be experienced as a lack for, say, two same-sex attracted people, but that lack is not a disability like infertility.

The elderly couple mark a stage in human fertility. The human being typically begins life pre-fertile, matures into fertility (with the other sex), and later in life goes through subfertility before reaching irreversible infertility. The elderly couple's infertility demonstrates the variability of human potency. Indeed, sex difference entails such variability.

That is contrasted to the constancy of non-fertility where one or the other sex is missing.

Again, I am not saying that the gay relationship would "miss" or "lack" the opposite sex, just that for the context of equality, we are still discussing apples and oranges, or rather, apples-apples and oranges-oranges.

Nonetheless, the proponents of SSM use "same-sex" as proxy for gay/lesbian. It is a poor proxy for the spectrum of same-sex arrangements is far wider than just those which are sexualized. Same-sex is not a criterion that is exlcusively a mark of gayness.

So when Dr J referred to the use of old age as proxy for sterility, she was onto something, even if, like "same-sex", old age is an imperfect proxy.

Even the SSM side points to this sort of equivalence when they talk about elderly couples being eligible to marry in light of the centrality of procreation in the argument by those who defend the man-woman criterion of marriage.

But what does it mean that some related people may not form a domestic partnership, same-sex and old age are proxy for sterility?

Why bar people if, presumably, they cannot procreate?

Afterall, the domestic partnership law only says that "Domestic partners are two adults who have chosen to share
one another's lives in an intimate and committed relationship of
mutual caring."

Adults have the choice to share lives. They can have an intimate relationship without engaging in sexual relations, surely. And they can certainly engage in mutual caring without feeling sexual attraction or falling into romance.

Apparently, intimacy is supposed to serve as proxy for sexual relations and sexual attraction. A very poor proxy it is.

And, supposedly, mutual caring is another proxy for the same. An even more lousy proxy, surely.

Marriage entails the marriage presumption of paternity which is based on both-sexed sexual behavior. The presumption is rebuttable, sure, but not by the government unilaterally.

On the other hand, the presumption does not fit the one-sexed kind of arrangement precisely because no such arrangement is fertile without the other sex. No form of one-sexed sexual behavior can be the source of a presumption of maternity or paternity.

The marriage presumption is a very good proxy for the sexual aspect of the conjugal relationship. Excellent proxy, in fact, because it is directly tied to both the nature of humankind (two-sexed), the nature of human generativty (both-sexed), and the nature of human community (also both-sexed).

Even where states have enacted statutory provision for unwed presumption of paternity, it is not a presumption of maternity but of paternity. It is not applicable to the one-sexed type of arrangement. It is based on the opportunity of a man to have impregnated his female sexual mate -- whether or not they cohabitated. It, too, is rebuttable, of course, but the government does vigorously enforce it -- premised on the model of marriage's obligation.

There is nothing to rebut in a one-sexed arrangement so if some other kind of presumption of paternity is to fit, it would be based on a nonsexual criteria.

This must make of the domestic partnership status a nonsexual relationship type.

Instances may be sexualized, but the status itself is not if it includes, primarily, same-sex partners.

Hey, there is another proxy for sexualization -- "partners". A poor proxy.

Right, so why does the domestic partnership legislation exclude some related people, but not all related people? It can't be due to some legal requirement for mandatory sexual relations nor for sexual attractions nor for even romantic love. No such requirements are in the domestic partnership law.

Merging domestic partnership with marriage would mean cutting out of the conjugal relationship type anything that does not fit the one-sexed relationship type.

Cut the marriage presumption of paternity. Cut the sexual aspect. Cut the integration of motherhood and fatherhood. In fact, assume segregation of the sexes to the extent that gender is made irrelevant to the marriage law.

So now the question extends to marriage. Why exclude some related people but not all related people?

If such a line must be drawn around the relationship status, then, it must be due to the core, the essentials, of that type of relationship.

Minus sex integration and responsible procreation -- minus the sexual aspect that is definitive of the conjugal relationship type -- what does this boundary against related people encircle, precisely?

I guess it has become yet another very poor proxy for something or other.