Friday, April 3, 2009

Iowa court makes right decision

Today, the Iowa Supreme Court struck down that state's ban on same-sex marriage.

From what I can tell, the ruling was made on equal protection grounds:

“We have a constitutional duty to ensure equal protection of the law,” the Iowa justices wrote in their opinion. “If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.”
As I wrote some place in the past, the argument in favor of same-sex marriage through equal protection is fairly simple. The law gives some people the right to marry the consenting adult partner of their choice. Unless there is some "exceedingly persuasive justification" against it, everyone should have that right. There is no reason to restrict the right only to those who wish to marry someone of the opposite sex.

Simple. Conservative arguments against gay marriage often rely on dubious assumptions about the consequences that would follow from the legal recognition of same-sex marriage. For example, it has been argued that the legal recognition of same-sex marriage will somehow incentivize hetereosexuals against getting married -- despite the tax and other social benefits that go along with marriage.

These arguments are so transparent, it is no wonder the Iowa decision was unanimous.

There are other conservative arguments that could be called "formalist." These arguments rest on the assumption that marriage is and always has been defined in a certain way, and that -- for some reason -- the law ought to track that definition, to the exclusion of all other considerations.

These are silly arguments, for several reasons. One reason is that it is not clear how the person making the argument thinks normative content can and should be derived solely from a dictionary definition. I'm not claiming that a commonly accepted definition of a term should _never_ inform the law. But it is hardly the only consideration that matters.

Another formalist argument involves denying that same-sex couples have unequal rights, since they have exactly the same right to marry as opposite-sex couples: that is, they can marry someone of the opposite sex.

This argument piggy backs on the first. There is no way to rebut it directly -- not because it is that powerful of an argument, but because it is barely an argument at all. Marriage has certain essential features. We rely on these features when we distinguish "good" marriages from "bad" ones. A loveless show marriage, for example, qualifies as a "bad" marriage (or, better: it is a bad example of a marriage.)

Why is this? Well, we tend to think that the presence of a loving, committed relationship is an important, if not essential, feature of marriage. Same-sex relationships can exhibit this feature. That value -- which can be present in same-sex relationships to the same degree as opposite-sex ones -- is important, and the law ought to recognize it without prejudice.

But notice, the value -- which we can call the essential value of marriage -- depends in no way on the people in the relationship being of the opposite sex. When the law restricts marriage to opposite-sex couples, it is not protecting the value of marriage; instead, it is diminishing it, because it is placing what is an inessential part of the value of marriage -- the opposite sex part -- on the same level as a feature that is part of the essential value of marriage.

What is important is that we recognize committed, loving relationships; not that we recognize committed, loving relationships between people who happen to be of the opposite sex.

This is a good day for Iowa.

19 comments:

Tim Kowal said...

You say: "The law gives some people the right to marry the consenting adult partner of their choice."

There is a critical omission in that statement, and that is the right regards the marrying of a consenting adult partner of the opposite sex. It is for this reason that there is in truth no equal protection problem. If you wish to challenge the requirements of marriage, whether the opposite gender requirement, the number requirement, the age requirement, etc., have at it. As defined as a consensual relationship between two people of opposite sex of the age of majority, however, I see no equal protection problem.

I have not read the opinion, however, so perhaps the court had some better justification.

Terrence C. Watson said...

Tim,

I addressed that argument. You're elevating a feature of marriage that has little or nothing to do with its value -- the opposite sex part -- to the same level as the stuff that does have to do with its value -- you know, the whole loving, committed relationship thing.

(In my view, it's kind of like what the Court did in Bowers: you're defining the liberty at issue in the crudest of terms. Why do that?)

I see the love and commitment as an important, even essential part of marriage. That's the part, if any, society ought to promote. I guess I fail to see why governments should discriminate in this regard. What's the point?

IasonD said...

One point I would have liked to see covered is that,

Equal opportunity to marriage is a lot like equal opportunity to subsidies. Because, say, farmers are given subsidies, an increasing number of professions demand to be given the same, citing (rightfully so) equality.

Similarly married people enjoy certain state instituted advantages compared to single people, the most notable that comes to mind being, lower taxes, that is, tax subsidies. So, given a fixed government size, single people are penalized with more taxes so that married people can be given a tax subsidy. Understandably non-heterosexual people want to be given the same subsidies and if equality were the only issue, they ought to be given the subsidy too.

But wouldn’t perhaps be better if all subsidies were eliminated? So that nobody is forced to subsidize somebody else?

Terrence C. Watson said...

lasonD:

That's a good point, and a good way of looking at the issue.

I think you're right: in the best world, we eliminate the subsidies. Since we can't get to the best world, we have to look at the second best one. But which world is that? Here are two choices:

1. We restrict the subsidy to a few, politically well-connected industries.

2. We keep the subsidy but try to make it "fair and rational."

Of course, a LOT depends on what "fair and rational" means. It could mean that, instead of subsidizing an industry/couple just because that industry/couple is politically well-connected, we try to figure out if the subsidy will produce wider gains. That would at least go some way toward making the subsidies fair and rational.

IasonD said...

If I were single (homo or hetero-sexual) I might be particularly unhappy that yet another group has been added to the list of folks that single people must subsidize based solely on marital status.

Certainly, if you would like the state to get out of the business of picking your wallet based on marital status, then, including gays in the group of people whose relationship is now also regulated by the state, might be a step in the wrong direction.

Personally, I’m not sure what I consider more important. That gays be included in the marital status subsidy, or that single people are not discriminated any more than they already are?

Please understand that this is by no means a moral judgment on homosexuality, any more than criticizing farm subsidies is a moral judgment of the farming profession itself.

P.S. Interestingly, I am married, so I’m given a subsidy so long as we are not a dual income family. If we do become a dual income family, the second income gets taxed at around 50% (Federal + State marginal tax here in California).
So, in summary, the state says: “We encourage you to get married but not to be a dual income couple”. Am I the only one who finds it ridiculous that the collective should place such marital status incentives and disincentives on individuals ?

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