Saturday, July 17, 2004

Objective and Subjective Laws; Equal Protection and Equal Benefit

I apologize for the somber, non-jackass tone of this post. Stupid shit will resume post haste.
Unlike Andrew Sullivan, Den Beste is able to frame the gay marriage debate in logically consistent terms. He articulates the issue as between "objective" and "subjective" laws.  He's right, but I think there's also a simpler and better way of actually naming the dichotomy, especially since so often pro-gay union folks (including Sullivan in the instance Den Beste responds to) invoke principles of equal protection.
Den Beste would say that not allowing gay unions is objectively fair to all, since gays can legally marry a person of the opposite sex with no more legal impediments than exist for a straight. It is subjectively unfair, however, because, for obvious reasons, they simply have no desire to (in most cases). Since our system of laws is based almost entirely on objective fairness, not allowing gays to form a union between themselves and call it a "marriage" is logically consistent.
The way I (and others, though not nearly enough in my opinion) always thought about this can be stated simply as: "Equal protection under the law does not imply equal benefit." 
Den Beste understands this, since he quotes the classic tongue-in-cheek example of this principle: "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." 
Often, this kind of formulation strikes people as callous and just plain mean-spirited (which is likely why it's not often used, I think). For instance, after making an equal protection argument that he should be able to get married like everyone else, a gay acquaintance was stunned into exasperated, angry silence when I replied simply with, "You can. You can marry a woman just as easily as every other man." He thought I was just being glib and hurtful. I can't really blame him for that. I think it takes some detatchment to see all of this clearly, and this is a charged debate for most gays.
However, the brutal and unavoidable truth is that, as the quote about paupers and rich men illustrates, often the law varies wildly in the benefit it bestows to different groups. But that's not necessarily an argument for changing it.
Accordingly, the most important thing to realize is that "You can marry a woman as easily as any man" is also not an argument against gay marriage. It is merely a means of framing the actual question that the same sex marriage debate has to answer: whether we want to create a new right that has not previously existed for gays to marry each other.
Regardless of people's particular substantive beliefs about whether same-sex couples should be made legally able to marry, I think it's hard to disagree that both sides need to first address the issue from this angle. It's fallacious and distracting to argue that equal protection means gays already should already have the right, and it is only a matter of official legal recognition of that right (in the courts, for instance). They should be taking their case to the people as a legislative matter, asking for the granting of a new right under a new law, not making the argument that present laws mandate the right being bestowed.
The reason this hasn't happened, of course, is because the public is still overwhelmingly opposed to such a thing (if I'm up on my poll numbers), and such a legislative measure would surely fail. If you're in favor of same-sex marriage, that means you need to convince the electorate to agree with you. It doesn't mean you should make a judicial end-run around them.