I love the argument that gays and lesbians have the “same right” to marry as everyone else—because, hey, we’re just as free to marry opposite-sex partners as straight people are. But when an American marries a foreign national the feds don’t just check to make sure that you’ve married an opposite-sex partner with opposite-sex genitalia before handing your foreign-born spouse his US citizenship. The feds make sure you’re fucking your opposite-sex partner, that you have a sexual relationship, not just a marriage license, because the feds don’t think a marriage is a marriage unless you’re making sweet, sweet love to your opposite-sex partner’s opposite-sex genitalia. (A lot of straight people are trapped in sexless marriages—when are the feds going to declare their marriages void?)
So they may say we have the “same right to marry” as everyone else, but what they mean is this: gay people who we want equality under the law should become straight people.
Instead of being generally frustrated, I’ll give this one a shot. It is a tricky bit of sophism that I have had the pleasure of tormenting people with when I’m bored. Legal arguments are so often semantic games because that’s what definitions are: semantic games. Its hard to precisely formulate what you mean when you say equality, and there will always be technical objections raised to arguments, even when these objections clearly come from a very cynical position within the debate.
Lets start with a simple definition of inequality (state of being unequal): Denying a thing to one person while it is provided to another. We can then define equality: if a situation is not one of inequality, it is a situation of equality. “Rights” are just a type of “thing” that can be equal or unequal. Now, you need to be talking about something that can be measured or else you can’t apply this criterion at all. So I can’t say that I’m equal to you unless we are comparing something, for instance the length of our toenails or right to trial by a jury of our peers.
You might start by arguing that two unmarried people have the right to consensually wed, regardless of genital type. Technically though, that isn’t an argument for equality of the individual but equality of the pair. For me, this is a fine and dandy way of looking at it but I think it is somewhat unorthodox and in conflict with the fundamentally individual way we tend to look at rights.
So, what if we try to frame it as the rights of individuals? Here’s how I see it:
Some Jerks say “Gays and straights have an equal right to marry because everyone has the right to marry a person of the opposite genitalia”. However, this is like saying that F(A) = F(B) because F()=F(). If the function was not dependent on its inputs, that is to say you could determine F(X) without knowing if X=A or X=B, then yes it would be an equal standard, but of course it isn’t.
Here’s what the law says:
Men can marry women but not other men.
Women can marry men but not other women.
If I say “Who can person X marry?” you can’t answer yet, because you have to ask:
“Is person X a man or a woman?”
So at the very least, men and women do not have the same right to marry.
At this point we can’t say that the situation is equal or unequal because I haven’t also assumed that these two situations are of equal value. But even if we assume that these two rights are of equivalent value, we still can’t say this situation is one of equality.
Here’s another argument that should shed some light on that point:
Suppose a racist southern town in the 1950s devised a means of discriminating against its black population. They pass an ordinance that reads:
White citizens may only use the public transit system that operates in the western half of the city.
Black citizens may only use the public transit system that operates in the eastern half of the city.
Even supposing that these two systems were perfectly equal, that the public transit usage rate was the same for whites and blacks, etc., discrimination still occurs. Whites who live, work, or play on the eastern half of the city would suffer an equal harm to the blacks who live, work, or play on the western half of the city. The discrimination still exists, regardless of whether it exists in an equal pair with some other discrimination! This situation could be a huge inconvenience for both blacks and whites, and it is clearly wrong.
Returning to the issue of Gay Marriage: Just as in the above example, some men are harmed by not being allowed to marry other men; and some women are harmed by not being allowed to marry other women. Gays aren’t the *only* group harmed here, for instance two male friends might wish to get married just to get a better financial aid status. But gays are definitely the most harmed group.
How can this be put into words as an explicit “helper” principle for equality? Doing so is always dangerous. I like this one (flawed though it is):
“Inequality under a given criterion between any two groups is unjust and can only be tolerated for the purpose of promoting equality under a higher criterion, and only when this is the best proven method”
Of course, a situation doesn’t have to be unequal to be wrong. Imagine if there was an 11th commandment: “Thou shalt not use insulin” that America chose to enshrine in the law. How would diabetics feel? They are being treated equally, right?
It is no secret that America continues to treat gays as second class citizens for reasons that have nothing to do with logic.