The Eventual Argument
Sean Penn's Oscar speech got some attention. The part that struck me most was this:
...I think that it is a good time for those who voted for the ban against gay marriage to sit and reflect, and anticipate their great shame, and the shame in their grandchildren’s eyes if they continue that way of support.
Is anyone ever convinced by this sort of argument? That you believe in something now, but you won't in the future, so beat the rush and join our side? Or that your position will become embarrassing, so change it?
Beliefs don't have built-in expiration dates. People may change their minds, but if they believe something is right today, it usually because they believe it's always right.
posted by LAGuy @ 12:25 AM
18 Comments:
I agree that it's not much of an argument. I seriously doubt that anyone in the late 19th or early to mid-20th century would have been moved to change their beliefs about race just because someone said to them "you're going to be on the wrong side of history pretty soon, so you'd better wise up."
It does beg the question, though: what argument would persuade the majority of people that gays should have the right to marry and how long will it take to happen?
After all, to use the racial analogy again, blacks were still fighting segregation 100 years after their emancipation.
I think a vast majority of people believe gays should be able to marry right now. They just don't think it is something the Gov't. should promote or extend benefits for. This is quite different than the struggle for racial equality in the eyes of the law.
The same is true of other arguments where the left overstates the other side's position. The S.Ct. just okayed the right of local gov'ts to choose to display some religion oriented monuments (10 Commandments) and reject others (Summan cult in this case). This was not a blow to the establishment clause - no one believes the government should establish any religion. But the Gov't has a right to speak on virtually every issue, and can decide that the 10 commandments say something that the gov't wants to say, and that the Summan credo does not.
The same can be said for marriage benefits. The Gov't cannot bar gays from marrying (in violation o fthe right of association), but it doesn't have to say anything favorable about such marriages if it doesn't want to (which licensing such marriages would do).
That said, imho, Penn's argument is about the best one out there - that people's attitudes are changing, and voters should realize that some day gay unions will be celebrated and promoted just as heterosexual marriages. In fact, polyamorous marriages may be a well - there acceptance in the public eye is on the rise as well.
That said, imho, Penn's argument is about the best one out there - that people's attitudes are changing, and voters should realize that some day gay unions will be celebrated and promoted just as heterosexual marriages.
Even if this is true, why is it an argument for how you should vote?
Have you ever voted for a candidate you knew was going to lose? (Mondale '84, Dukakis '88, Dole '96, etc.) Suppose you read a poll that convinced you that the other guy was sure to win. Would this cause you to switch your vote to that guy?
It might cause you to feel depressed, and you might not bother to vote. But to stand in line to vote for the guy you oppose, on the grounds that the majority is on his side, so they must be right? Only a strict Rousseauian would accept this. Isn't this the same as Sean Penn's argument?
In fact, polyamorous marriages may be a well - there acceptance in the public eye is on the rise as well.
This may be true. I know more gay couples than polyamorous couples, but I have known some of each. (The polyamorous ones I have known have been very temporary -- but so have most of the male gay couples I have known, and quite a few of the hetero couples too.)
Yet your point is the opposite of the argument that has been used in the past decade by the pro-gay-marriage lobby. They have argued that it's slanderous to suggest that gay marriage might lead to polygamy, or to legal incest, or polyamory, or to a reduction of the age of consent. The argument, on the contrary, has been that extending marriage to gay couples changes nothing about marriage other than the genders involved.
In terms of legal precedent, I think you are right. (If it's legal for two men to marry, by what imaginable logic can the government forbid a man to marry his brother? And polygamy has a much more solid pedigree in human history than gay marriage does.) But in terms of the politics, your argument is being very deliberately avoided, it would seem.
To Vermont Guy:
Some arguments based on how things will change in the future correctly predict what will happen, others (most) don't. My point is regardless, it's not a good argument, or one that anyone should find convincing.
To Denver Guy:
I'm not sure if I'm getting what you're saying. The vast majority of people don't believe gays should be able to marry right now--that's what the controversy is about. A civil union is not a marriage. Marriage means official recognition of a legal state that, presently, only heterosexuals enjoy.
And it's interesting you'd say Penn's argument "is about the best one out there" since I'm claiming it's about the worst one. Perhaps you're not sympathetic to gay marriage, and so don't accept other arguments, but I don't see why you think that makes Penn's urging any better.
To Larry King:
You write: "In terms of legal precedent, I think you are right. (If it's legal for two men to marry, by what imaginable logic can the government forbid a man to marry his brother? And polygamy has a much more solid pedigree in human history than gay marriage does.)"
I'm afraid I don't see this argument at all. Perhaps if you extend the definition of who can marry, it'll lead to a slippery slope, but did allowing whites and blacks to marry lead to the things you mention above? Can legal interracial marriage even be said to have led us down the road to gay marriage? Right now we have heterosexual marriage but not heterosexual marriage between brother and sister or between more than two people. If the reason to disallow these "variations" are good today, they'll be good after we allow two homosexual people to marry.
"I think a vast majority of people believe gays should be able to marry right now. They just don't think it is something the Gov't. should promote or extend benefits for. This is quite different than the struggle for racial equality in the eyes of the law."
This is a big heaping steaming pile of smelly bullshit. If the government is going to extend marriage benefits to one group of couples and not to another, what is the basis for this discrimination? Either we all get the benefits, or none of us should, and if a group of us do not, there needs to be a much better reason than "The filthy Sodomites don't deserve it, so sayeth the Lord. Now if you'll excuse me, I need to go find my sixth teenage wife."
TO LA Guy: We have a different definition of marriage. Since marriage has existed long before states began licensing them, I believe the debate in California is over whether the state should license marriages (and thereby extend state benefits to these marriages). I'm sayingthe vast majority of people believe gays have the right to marry (be with) each other in a committed relationship - they just don't want to extend state benefits or formal recognition to such marriages. You are correct that I am not convinced by arguments that the state is constitutionally obligated to recognize gay marriages (or polyamorous ones for that matter). Thus, the argument that it will eventually be recognized as a good or right thing to do is the best argument I see for changing existing laws.
To Lawrence: You are correct that the expectation that one will lose an argument is not a particularly good reason for changing one's vote. But it is an argument (ie, why delay the inevitable). In any case, I think Penn was making an appeal to people to change their minds, not just accept the inevitable. As evidence (certainly weak evidence) he was saying future people will think you were wrong in your current thinking.
To Anonymous: The government discriminates all the time for all sorts of reasons with respect to the benfits it provides. The government is barred only from discriminating on the basis of protected classes (race, religion, gender, military service and age are the protected classes I think under the constitution), or frivolously.
Among the non-frivolous reasons for denying benefits and recognition to gay marriage are:
- The gov't does not wish to promote gay marriages, as opposed to heterosexual marriages.
- The gov't does not have the money to pay the cost of extending benefits to more marriages than it already does.
- Gay marriages do not further one of the purposes for which states started licensing marriages in the first place (to prevent incest and bigamy and, oddly enough, polyamory - marriage licensing began in the 19th century in large part to give gov't a weapon against polygamous Mormons).
By the way, I am opposed to all gov't licensing of marriage. It is an unneeded intrusion into the most personal of relationships among the citizens, and serves no purpose worth the time and expense, imho.
LAGuy wrote:
I'm afraid I don't see this argument at all. Perhaps if you extend the definition of who can marry, it'll lead to a slippery slope, but did allowing whites and blacks to marry lead to the things you mention above? Can legal interracial marriage even be said to have led us down the road to gay marriage? Right now we have heterosexual marriage but not heterosexual marriage between brother and sister or between more than two people. If the reason to disallow these "variations" are good today, they'll be good after we allow two homosexual people to marry.
I wasn't making a generic slipperly slope argument. (A generic slippery slope argument is isomorphic to: "The temperature used to be at 21.3, now we are at 25.7, and therefore we will soon be at 47.8"). I was making a specific argument regarding legal precedent.
Historically, most marriage court cases were argued on equal protection grounds. That changed with Lawrence v. Texas in 2003. Justice Kennedy overturned Texas' sodomy law not on the grounds of equal protection, but on the grounds that "the intimate, adult consensual conduct at issue here" is "part of the liberty protected by the substantive component of the Fourteenth Amendment's due process protections", and that "the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual".
Kennedy's opinion also explicitly said that it wasn't meant to establish a precedent that could be used for gay marriage, but I'm not alone in being unable to see why it doesn't do just that. I'm not saying that it's a slam dunk case, but it would seem to me that the burden is now on each individual state to prove that any restriction on "intimate, adult consensual conduct" (which certainly includes adult incest, polygamy, and prostitution) does in fact further "a legitimate state interest" of a sufficiently severe degree to justify this kind of "intrusion".
I haven't yet heard an argument for any legitimate state interest in banning incest between same-sex couples (since birth defects can never result from such) nor polygamy between consenting adults. I am open to such arguments. But let us set aside the question of whether such arguments exist: do you agree that, absent such arguments, LvT must logically result in such bans being overturned?
Again, none of this would be at issue if LvT had been decided on equal-protection grounds.
"I haven't yet heard an argument for any legitimate state interest in banning incest between same-sex couples (since birth defects can never result from such) nor polygamy between consenting adults. I am open to such arguments. But let us set aside the question of whether such arguments exist: do you agree that, absent such arguments, LvT must logically result in such bans being overturned?"
You're talking about court cases. First, if the gay marriage issue is settled in general by the courts, it's not certain what legal theory they'll use. Note the Supreme Court doesn't seem to have the votes to allow gay marriage on a privacy claim--not at present, anyway--so do you think that theory will win the day? I do agree that a privacy argument will have different ramifications from an equal protection argument. (BTW, I've heard some imaginative arguments claiming states have a compelling interest in preventing incest and polygamy.)
Second, I could be wrong, but I think the battleground for gay marriage is ultimately with the people, not judges. So the question becomes will we pass laws in favor of it or not? If we ever do, then we can use whatever reasons we like.
Let me give a halfhearted try to defend Sean Penn's argument. Now that we've had 150 years since slavery and 40 year since the women's movement, don't most people have a little perspective on whether their deeply held prejudices might someday be revealed as extremely self-serving? Can't we look back at the way that we know many folks thought about, say, women wearing pants, and feel it unreasonableness? Can't we compare those ideas to whatever ideas we are now holding about gays and ask: "Am I mad just because I'm not used to the idea, like they were back then?" Or, "They thought the sky would fall if blacks were treated as equals or women went to work. If I don't think it did, will the sky really fall if gays are allowed to marry?"
I think of this argument as akin to envisioning yourself being cross-examined on your various deeds at the Pearly Gates -- I doubt it really happens that way, but doesn't it put you into a reflective mode where you try to envision your actions (or beliefs) through another's eyes?
While I don't think this argument is good enough, I also don't think it's Penn's argument. It's one thing to argue by analogy and historical perspective that someone is wrong. Penn's argument isn't that he can convince you you're wrong, but that even if you don't see it now, you'll be embarrassed later.
In any case, the march of history, even if it were clear, doesn't always move in one direction (toward the Left, as far as Penn is concerned). I think the past has taught us how useful the free market is, but even after no country really wants communism any more, I still don't think I could (or should be able to) convince a Marxist that he should change his mind just because he's on the wrong side of history. I'd think someone would be embarrassed to support a thug like Huge Chavez or a killer like Fidel Castro, but because I recognize Sean Penn feels okay--even brave--about it, I don't think it would work to appeal to his sense of history.
Why would someone who disagrees with you care how much you're sure that history's on your side. No one accepts an analogy they don't want to believe. When gays try to piggyback on black civil rights arguments, blacks who support them see the analogy, and blacks who oppose gay marriage find it insulting.
What if some activist told you animals have as much right to marry as humans, and you better change your mind now so your grandkids don't hate you? Convinced?
To lawrence King:
How is a state not issuing a license (and the concommitant benefits) in any way a "restriction" on gay marriage? I think a "right" (in the constitutional sense) is something someone has independently and automatically without intervention by someone else - that is, it is not given by the gov't or any other person, (but is endowed by creation, to paraphrase the Dec. of Independence).
So I agree there is a right to marry - butthat right is just the right to be with another person (or persons) in a committed relationship - the gov't has nothing to do with that right. You cannot have a constitutional "right" to receive benefits from society. You may have an entitlement (if society creates it), but it is not a denial of a right if the gov't chooses not to grant one or all people a benefit. Indeed, would you deny that the gov't could end all marriage licensing - giving no related benefits to anyone?
Kennedy distinguished gay marriage from sodomy because people do have a right to have sex (a joint right held with others who want to associate in this manner). I think he is on very firm ground noting that the right to a gay marriage license is not inthe same constitutional catagory in the least.
DenverGuy asked:
How is a state not issuing a license (and the concommitant benefits) in any way a "restriction" on gay marriage? I think a "right" (in the constitutional sense) is something someone has independently and automatically without intervention by someone else - that is, it is not given by the gov't or any other person, (but is endowed by creation, to paraphrase the Dec. of Independence).
I actually agree with you. This is what "rights" once meant, and I would like to see that return. I would also like to see power devolve from the federal government to the states, and for our congressman to create our laws (not our courts or our ballot initiatives).
But that's not gonna happen, so I was using "rights" in the modern sense.
FDR's famous 1941 speech about the "Four Freedoms" is a signpost on this redefinition. Freedom of speech and freedom of religion are "Rights" in the sense that you describe them. But "freedom from want" exists only when the government distributes food or money to the destitute, and "freedom from fear" exists only when the government hires policemen and soldiers to protect those who can't protect themselves.
And I'm quite sure that a majority of the supreme court considers the government choosing not to issue marriage licenses to people under certain circumstances to be a denial of a "right". The only question (to them) is whether that denial is justified.
Perhaps you're familiar with Meyers v. Nebraska (1923):
"'No state ... shall deprive any person of life, liberty or property without due process of law.'
"While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts."
So plenty of people think we have the right to marry (though this doesn't mean there can't be restrictions). There are negative and positive rights (such as the right to an attorney). As long as the state has decided to take over the marriage business--you're not legally married until the state recognizes it--it's useless to have the "right" to marry unless they recognize your marriage and take whatever steps are necessary to make it possible.
I agree, and retract my earlier implication that I oppose all positive rights.
What is missing today is a metaphysical discussion of rights. The founding fathers believed that human beings actually possessed a right to free speech, a right to free thought, etc. -- these existed independently of any government or other institutions.
In 1790, many statesmen, when asked "Is there a right to X?", would have crafted their response from a metaphysical theory of human rights. Today, politicians confronted with that same question would refer to the constitution, positive law, and legal precedents. If you asked them, "Suppose every government and every person on the planet decided that we don't have the right to free speech, and unanimously enforced laws against it. Would that mean that such a right would cease to exist? Or would it still exist even though it wasn't recognized?", politicians today would be uncomfortable with the first option, but would be incapable of arguing cogently for the second.
Do you believe that in a totalitarian state, the subjects still possess a right to free speech, even though the state doesn't recognize it? If so, what other rights would you put in this inalienable class? The right to an attorney? The right to be mirandized when arrested?
There are different theories of rights, of course. There are natural rights and legal rights. The founding fathers talked about both. They recognized, for instance, that trial by jury was a right developed by societies as was part of the social contract.
I do believe that basic human rights--freedom of speech, freedom of conscience, that sort of stuff--adhere to humans, regardless of what culture you live in. (To me they're "natural" rights because you have them in nature--in nature, you can say what you want and think what you want, for instance.) But some would argue that part of the social contract is you give up some or even all of your rights and agree to live with others. And a pretty good argument that all rights are legal rights are for all the talk about natural rights, you have to live in a society and if it doesn't have an apparatus to enforce these rights (or indeed, acts against them) then you don't have them.
I'm not sure I buy that you have any rights in nature. In nature, whoever is strongest gets to decide what you can and can't say. If it's offensive to them, they beat you up. If there is no force to intervene, the bullies rule. This is different than saying that humans have certain "natural rights." This refers to a sense of fair play and an instinct for what should be allowed.
I think this distinction is where I find libertarianism lacking. It seems to me to start from a false premise that liberty precedes government. While I agree that certain liberties should precede goverment de jure, I don't think they really do de facto.
Of course, we'll all disagree on what natural rights do and/or should exist for all humans. But only the strongest have them in the absence of enforcement.
I'm not sure I buy that you have any rights in nature. In nature, whoever is strongest gets to decide what you can and can't say. If it's offensive to them, they beat you up. If there is no force to intervene, the bullies rule. This is different than saying that humans have certain "natural rights." This refers to a sense of fair play and an instinct for what should be allowed.
I think this distinction is where I find libertarianism lacking. It seems to me to start from a false premise that liberty precedes government. While I agree that certain liberties should precede goverment de jure, I don't think they really do de facto.
Of course, we'll all disagree on what natural rights do and/or should exist for all humans. But only the strongest have them in the absence of enforcement.
I'd say you have these rights in a natural state, but then others (stronger or not) may try to take them away from you. This is where the theory of the social contract comes in. The reason you agree to create a society is you can receive benefits from it, including (especially) protection against others. To receive these benefits, however, you will be asked to give up certain things. But it still seems to be rights precede government.
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