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David Friedman on Equality and Gay Marriage

with 2 comments

From here:

“Equal Rights” sounds like a principle practically everyone, at least in our society, is in favor of, which makes claims about equal rights rhetorically effective. It is not at all clear, however, what it means. The problem occurred to me recently while listening to Ted Olsen, who is one of the attorneys trying to persuade the Supreme Court that California’s failure to permit gay marriage is an unconstitutional violation of the principle. His view, widely shared by supporters of gay marriage, is that current California law fails to provide homosexuals the same right it provides to heterosexuals—the right to be married to the partner of their choice.

An opponent could respond, with equal logic, that it is consistent with equal rights. Both homosexuals and heterosexuals have the right to marry a partner of the opposite sex, neither has the right to marry a partner of the same sex. Seen from this standpoint, the difference is not in what rights different people have but in what rights matter to different people. Current California law provides both homosexuals and heterosexuals with the marital right that heterosexuals value and provides neither with the marital right that homosexuals value.

I talked to my father about this, and he asked, “Couldn’t the same logic apply to racist equality, where all people have the right to discriminate against black people?” I said that the argument against gay marriage claims that being gay is a choice, which isn’t the case with racists. It’s easier to legislate against choices as opposed to concrete physical traits like skin color, even if choices are supposedly influenced by genes or family history. A drunk driver, for example, can’t expect leniency if he claims to come from a family of alcoholics.

I assume gay marriage proponents haven’t found concrete evidence of the gay gene yet. I think it shouldn’t matter, since finding the gene makes homosexuality genetic-only and might restrict those who choose to go gay, though the legal process might be simpler if they did find the gene.

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Written by xout

June 25, 2010 at 9:38 am

Posted in culture

Tagged with , , ,

2 Responses

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  1. I would make a different answer to your father. If it’s legal for everyone to discriminate against black people and also legal for everyone to discriminate against white people, then both groups have the same legal rights. That doesn’t mean that the society is equal, or that the outcomes are equal, but the law is equal. What would be unequal would be if it were legal for everyone to discriminate against black people but not legal for everyone to discriminate against white people, since the law would then be treating the two groups differently–giving only one of them the legal right not to be discriminated against.

    David Friedman

    June 25, 2010 at 10:52 pm

  2. Let me clarify why I answered that way, which I now realize was the wrong way. The law that allows only opposite-sex marriage says that homosexuals enjoy equal rights, as long as they act like heterosexuals. Some believe that might be asking too much. Abnormal behavior, like Autism, was treated the same way until better science found the gene that triggers it. That’s not to say homosexuality is genetic as well, but until someone finds the gay gene, then same-sex marriage opponents can make the case that homosexuality isn’t a trait but rather a behavior, unlike skin color. So in a roundabout way I was telling him that sexual orientation and race don’t receive the same legal treatment, that is until further research emerges. But your response would have been more succinct.

    xout

    June 26, 2010 at 3:24 pm


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