Friday, October 20, 2006

A bad argument in support of the Protect Marriage Arizona amendment

Gun rights advocate and "uninvited ombudsman" Alan Korwin has sent out a checklist of his recommendations on the Arizona ballot propositions. I disagree with him on several of the propositions, perhaps most significantly on his recommendation of a yes vote to amend the Arizona Constitution to ban same-sex marriage and any legal arrangements that are "similar to" marriage. Here's his argument for 107:
107 YES Protect marriage amendment. If people want gay unions, polygamy, bestiality or whatever, I say let them, but not under government sanction and funding. I'd like to see us return to "holy matrimony" without any government involvement. Getting married for tax breaks is so wrong.
But this argument presumes the effect of 107 is to get the government out of the marriage business, which it isn't. Rather, 107 has the effect of enshrining existing statutory prohibitions on a form (or multiple forms) of legal contract between consenting adults into the Constitution, and going further to restrict any such arrangement "similar to" marriage. It isn't pro-liberty, it's anti-liberty. It isn't eliminating special privileges, it is adding them to the Arizona Constitution.

It's perfectly reasonable to argue that nobody should have tax breaks or special privileges under the law, but it's not reasonable to say that because such privileges are wrong we should restrict them to a particular set of people. That's not only unfair, it's unconstitutional--a violation of the equal protection clause of the 14th amendment. It's like arguing that the government shouldn't confer support on religion, so we should vote yes on an amendment that limits government support to the Christian religion, and keep it from supporting Islam or other religions. (No doubt there are many Americans who would, quite wrongly, support such a law.)

Now, some advocates of Proposition 107 have argued that there is no violation of the equal protection clause because a gay man has the same right to marry a woman as a heterosexual man does. But this is just like arguing that a prohibition on interracial marriage doesn't violate the equal protection clause because a black man has the same right to marry a black woman as a white man has to marry a white woman--the description of the right is being crafted to exclude the category of person who is being discriminated against.

As Ed Brayton has pointed out on numerous occasions, the arguments for the unconstitutionality of a ban on same-sex marriage are of the same form as the arguments for the unconstitutionality of a ban on miscegenation, just replacing "different race" with "same sex." If you think that the Supreme Court ruled correctly in Loving v. Virginia, you should also think that Arizona's Proposition 107 violates the U.S. Constitution for the same reasons.

See also my previous post on the Protect Marriage Arizona amendment. You may also find David Friedman's economic analysis of marriage arrangements to be of interest.

UPDATE (October 21, 2006): Just to make it clear, THeath has enumerated some specific examples of what opponents of gay marriage are actually endorsing (there are several more if you follow the link)--these aren't hypotheticals, these are real people:
  • There was the friend I wrote about recently who was turned away from from the emergency room, where his partner had been taken after suddenly collapsing at work, and told he could not be given any information because he was not next of kin. He had to leave the hospital and retrieve their legal documents before he could gain admittance to see his partner when a married spouse would have been waved through without question.

  • My friend was luckier than Bill Flanigan. When his partner Robert Daniel was hospitalized in Baltimore, the couple had their legal documents with them, including durable power of attorney and documentation that they were registered as domestic partners in California. But those documents were ignored by hospital staff and Flanigan was kept from seeing his partner until Daniel’s mother and sister arrived and by then Daniel was unconscious, with his eyes taped shut and hooked to a breathing tube; something Daniel had not wanted.

  • Even having a will didn’t help Sam Beaumont when his partner of 23 years, Earl, died. Oklahoma requires a will to have two witnesses, but Earl didn’t know that and his will leaving everything to Sam had only one. So Earl's cousins, who disapproved of his relationship and most of whom never spoke to the couple or even came to Earl’s funeral, successfully sued to take away the home and ranch Sam an Earl had shared for 23 years. A married spouse, even in the event of a will lacking enough witnesses, would’ve had the right to automatically inherit at least some of the estate.


Further Update (October 22, 2006): Ed Brayton takes apart the Alliance Defense Fund's white paper on these marriage amendments here.

3 comments:

AZMarriageAmendment.com said...

Hi Jim,

"But this is just like arguing that a prohibition on interracial marriage doesn't violate the equal protection clause because a black man has the same right to marry a black woman as a white man has to marry a white woman--the description of the right is being crafted to exclude the category of person who is being discriminated against."

This is not a good comparison. Miscegenation laws, as you point out, treated blacks differently from whites. You say that discrimination is occuring against gays, but with marriage, the government makes no distinction, whatsoever, between individuals because of their sexual orientation. It treats all people the same. Equally. If you can think of an example of the government treating people differently because of their sexual preferences, then please tell us about it.

Regarding the update. I agree it is wrong that the people in these situations were restricted in making medical decisions for their loved ones. I'm with you that some reforms are in order, but that does not mean that we need to radically redefine our most fundamental, universal unit of society.

Jim Lippard said...

You've quoted my words, but you do not appear to have understood my point.

The comparison is apt. Blacks who wanted to marry whites (or vice versa) were told that they were perfectly free to marry the partner of their choice, provided that partner was of the same race. Likewise, you are telling homosexuals that they are perfectly free to marry the partner of their choice, provided that partner is of the opposite sex. The fact that sexual orientation is not explicitly referenced doesn't change the effect (or the explicit intent) of the law. Heterosexuals are permitted to marry the partner of their choice, and homosexuals are prohibited from doing so. That *is* the law treating people differently because of their sexual preferences (and their sex, for that matter).

I don't understand why you sympathize with the plight of the people in the update, yet you support an amendment to the Arizona constitution which is specifically designed to exacerbate the problem for the people in that circumstance, by not only prohibiting same-sex marriage, but prohibiting any other kind of legal arrangement "similar to" marriage that might help remediate such situations. I don't believe your sympathy or desire for reform in light of what you are advocating. There's an inconsistency in your stated position, and your actions speak louder than your words.

Jim Lippard said...

BTW, just to make the point even clearer--your argument that there is no violation of equal protection says, "You, Mr. Gay Male, are just as free to marry any woman as I am. You have the same rights that I do. There is no violation of equal protection." The defender of miscegenation laws says, "You, Mr. Black Male, are just as free to marry any woman of your own race as I am. You have the same rights that I do. There is no violation of equal protection."

The difference you are observing is that the racial restriction is a within-category restriction while the sex restriction is an across-category restriction. But if there were a law that said people on the east side of town could only marry people on the west side of town, and vice versa, that would be an example of an across-category restriction. If there were such a restriction, it would be disingenuous for you to argue that a west sider who wants to marry another west sider has exactly the same rights to marry a person from the opposite side of town that you do.

The underlying right is to associate, live with, and enter into a permanent relationship (with particular legal status) with the person of your choice. You want that right to be restricted to couples of one male and one female, and prohibit homosexuals from having any such legal status.

You say this is "to radically redefine our most fundamental, universal unit of society," but what makes it so radical and what are the negative consequences that you foresee? It will have *zero* effect on heterosexual marriages. The only real motivation here, so far as I can see, is an opposition to gay relationships. But opposing gay marriage won't stop gay relationships, it will only cause the kinds of negative consequences that I pointed out in my update to this post.