Thursday, March 06, 2008

Same Sex Marriage

So, the Cal. Supreme Court heard oral argument in In Re Marriage Cases a couple days ago. I listened to some of it here. I didn't think the lawyers on either side were making the best arguments they could. I found it particularly odd that the lawyer for San Francisco didn't think the State of California could not simply create an equal system through eliminating the word "marriage" and call all State sanctioned unions "civil unions" and leave the word "marriage" to individuals and their religions.

There was a good deal of discussion of whether limiting marriage to male-female couples is discrimination based on sex or discrimination based on sexual-orientation, and if the latter, should rational-basis or a heightened level of scrutiny be applied. The court of appeal below decided that the law is not sex discrimination and rational basis review applies. I have previously argued that the restriction is facially discriminatory based on sex (not just sexual orientation), and the court of appeal was able to overlook this fact because of the reflexive nature of the limit

The court of appeal adopted the argument that all people have the same limitation: they cannot marry a person of the opposite sex; therefore, no sex discrimination. However, a more careful analysis is reveals two different rules: (1) men may not marry men; and (2) women may not marry women. Each of these rules is specific to gender and each is sex discrimination. Only men are prevented from marring men, and only women are prevented from marrying women. Clearly men and women are being treated differently, despite the reciprocal nature of the discrimination. It is often argued that limiting marriage only affects individuals who are homosexual. Therefore, it is only sexual-orientation discrimination. This argument is not entirely convincing. Consider a pair of laws that disallows men from working as teachers and women from working as reporters. Clearly the law discriminates on the basis of sex, even though only a narrow portion of the male and female population desire to be teachers and reports, respectively. The laws really only affect sub-categories of "didactically-orientated males" and "inquisitive-orientated females." Similarly marriage limiting laws create two rules, one imposed on all men and one on all women that have their most significant affects on sub-populations of those who desire to be with people of the opposite sex. In either case, the discrimination is still based upon sex.

Here is another idea. Perhaps much of the confusion over the marriage question comes from the many different asserted justifications for the legal status. I identify the following purposes: (1) raising children (through providing a sense of unity, commitment for long term obligations, tax breaks, shared income and responsibilities, etc.), (2) romantic companionship, (3) platonic companionship, (5) mutual support obligations, (6) unification of family assets and efficient use of resources, and (7) religious requirement. Generally, more than one of these categories applies to any marriage. However, I imagine there are plenty of marriages without any one of the identified purposes. Now, whether restricting marriage to male-female couples appears to be sex or sexual-orientation discrimination, or both, depends on which purpose you are mainly concerned with. Lets have a chart:

Reason for Marriage

Sex Discrimination?

Sex-Orientation Discrimination?

Other Discrimination?

Children

Yes

No


Romance

No

Yes


Platonic

Yes

No


Mutual Support

Yes

No


Assets

Yes

No


Religion

No

No

Yes, Religious




Its probably not so clear what I'm getting at here. It is this: with respect to each stated purpose of marriage, it may matter if the couple is same sex or not. If marriage was simply raising kids or a very close platonic commitment between two people, a person's sexual orientation would not necessarily have a bearing on who someone would choose to marry. Thus, for many of what we consider to be the most important aspects of marriage, its not about sexual attraction, but about something else. Of course, there is an assumption of sexual attraction and generally people have such desire, making a purely platonic marriage unlikely (except in the case where a couple that once had such attraction looses it, and the other purposes remain). If the purpose of marriage is to meet a religious obligation, limiting marriage would constitute discrimination against those whose religion allows for same sex marriage.

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