Message From Martha
The New York Times Sunday Magazine has an interview with Martha Nussbaum, the "eminent philosopher at the University of Chicago." (I've spoken to Nussbaum a few times, but I wouldn't say I know her personally.)
The main point of the interview, as well as her latest book, is disgust. Disgust, she explains, is a major reason for opposition to same-sex marriage. As she puts it:
What is it that makes people think that a same-sex couple living next door would defile or taint their own marriage when they don’t think that, let’s say, some flaky heterosexual living next door would taint their marriage? At some level, disgust is still operating.
I agree that disgust plays an important--if often hidden--role in our political opinions. What just feels wrong to us informs very strongly how we vote.
Of course, people generally don't admit this. They make intellectual arguments to explain why they vote as they do.
I wonder what disgusts Nussbaum?
Later she notes:
If I thought of getting married, I would worry that I was taking advantage of a privilege that I have that a same-sex couple wouldn’t have.
I don't get that at all. If slavery were still around (and actually, it is), would she refuse to partake in any freedom?
posted by LAGuy @ 12:09 AM
25 Comments:
She's disgusted that same-sex marriages are illegal.
If I thought of getting married, I would worry that I was taking advantage of a privilege that I have that a same-sex couple wouldn’t have.
The amazing thing is that I've heard various people (all celebrities, IIRC) state this same thing.
Your criticism of her claim is dead-on. To that I will add a criticism of her math: Says Nussbaum, "I" (one person) have a privilege that "a same-sex couple" (two people) doesn't.
But the math disguises the real error here. Every adult American, gay or straight, has exactly the same freedom in marriage: They are free to marry any consenting adult of the opposite gender who is not a close relative and who is not currently married.
If same-sex marriage were legalized, then there would still be equality of rights: Every adult American, gay or straight, would be free to marry any consenting adult of either gender who is not a close relative and who is not currently married.
She can claim that the current restriction to "opposite gender" restricts many Americans from marrying their preferred spouse. But in fact, the restriction to "consenting" is far more draconian; there are far more Americans who are denied the marriage "privilege" on this ground than on any other. Shouldn't Nussbaum avoid marriage for this reason more than any other? Think how bad her cousin with all the failed relationships will feel at her wedding....
Lawrence, please substitute the words "same race" for "opposite gender" and re-read your argument. I.e. it's also narrowly true to say that both black and white folks had the same rights as each other when there were anti-miscegenation laws in place, but misses the entire point.
That said, I agree with your, LAGuy's, and Dan Savage's conclusion that straight folks refusing to marry each other in no way benefits the cause of gay marriage. All that would accomplish is to convince opponents of gay marriage that it's only those who already seek the death of "traditional marriage" that support gay marriage.
I'm always confused over what "right" she feels is being denied same sex couples. There are certainly committed, "married" homosexual unions in every state. There are churches that sanctify same sex unions marriages (if that is the key), and of course any two people can declare themselves and live as a "married couple" anywhere in the union without interference from the gov't. (unlike the situation in many countries of the world).
So I must assume Nussbaum is disgusted that Federal & State benefits are denied same sex couples, so she would therefore refuse to get nmarried until such benefits were extended to same sex couples? But why does it only bother her that homosexual couples don't get these bennies? How about any couple - should two platonic friends committed to mutual support be denied joint tax returns and hospital visitation rights? How about a son supporting and living with his elderly mother? And why just couples - why is 2 a magic number and three people living in a committed, loving raltaionship don't get the rigth to list each other as family for mutual insurance coverage?
I am disgusted by the effort to extend the legal definition of marriage to gay couples being presented as a civil rights issue. I have no problem if society wants to start licensing gay unions the way heterosexual ones are, but understand that the reason for doing it is to try and change attitudes about gay sex - which still disgusts many people.
Even with regard to the disgust issue, Nussbaum seems to be self-contradictory. She tells the interviewer:
What becomes really bad is the projective kind [of disgust], meaning projecting smelliness, sliminess and stickiness onto a group of people who are then stigmatized and regarded as inferior.
Her theory insists that these people are "stigmatized and regarded as inferior" as a consequence of this "projective disgust". If that's true, then why are they initially seen as disgusting? Clearly she has this backward. It's like saying that some white people refer to black people with racial slurs, and as a consequence of this they see the blacks as inferior.
QG: Your argument is a good one. Indeed, given the way I phrased my argument, your argument is the stronger.
Still, I think that my argument remains valid, even if I phrased it in too compact a formulation. If you ask a hundred random people to define the term "marriage", I doubt that any of them would introduce the concept of race. So to include "same race" would be a bizarre and arbitrary restriction. And human history agrees -- over thousands of years of recorded history on six continents, race-based marriage restrictions existed only in very brief moments in a very small number of societies.
On the other hand, it's hard to imagine a definition of "marriage" that doesn't refer to sexual intercourse. In fact, in all of human history "marriage" has always been heterosexual (even in societies that tolerated or even approved of same-sex sexual relationships). Even today, in our enlightened times, no one has found a way for two men or two women to produce a baby without the assistance (direct or indirect) of someone of the opposite sex.
So essentially, I think your argument ends up falling into the category of "You made Statement X. If you replace some of the words in Statement X with other words, it becomes Statement Y. And clearly Statement Y is bad. Therefore, Statement X is bad." And I find this logic unconvincing, unless the word-replacement can be shown to be a reasonable parallel, which in this case it is not.
Lawrence, I'm not sure your historical arguments are nearly as absolute as you think. See, e.g. http://en.wikipedia.org/wiki/Same-sex_marriage
We see a grand array of arguments ere for the state getting out of the marriage business. Law functions best when it rests upon common assumptions held by the overwhelming majority- so much that a belief is such a basic assumption that it does not even rise to the level of a question. When that basic assumption disappears, the reasoning behind the law disappears.
I think the PR on freedom to marry will trump the PR on traditional values though will take years
Ok, I have a few more minutes now so I'll respond in more detail.
DG, I can promise you that my gay friends do not care whether you are disgusted by their behavior, so long as they receive equivalent legal treatment to you. As to it being a civil rights issue, I'm certain they see it that way, as would you if you were gay, I suspect. But whether you do or not doesn't change the analysis of basic equality under the law.
As to the slippery slope of multiples, etc., there is a societal bias in favor of committed sexual monogamy, particularly for purposes of childrearing. Expanding that to a bias in favor of committed gay or straight sexual monogamy is perfectly consistent with the same rationales. Those other cases are not.
Lawrence, I think an appeal to history is particularly weak when it comes to issues of individual rights. It is either something worth protecting for good reasons or it is not, and if the majority of history were a good guide to that analysis, "slavery" wins over "no slavery" by a landslide. You made an argument, I rebutted it, you changed it to an appeal to history and what the majority of people would think. Both of those appeals are repugnant to an analysis of individual rights.
QG: Okay, let's talk individual rights. If I understand you correctly, you believe:
(1) Individuals possess certain rights, regardless of whether any government recognizes them.
(2) Governments that do not recognize these rights should be changed so that they do so.
(3) Among these rights is the right to marry. This right might be constrained in certain ways, but it is not constrained with regard to choice of gender.
In other words, you are not merely saying that governments are arbitrary, and you would arbitrarily prefer our government to license same-sex marriages. Rather, you are saying that the thousands of same-sex couples in the USA today who wish to marry actually possess that right, and the government should be modified (either by the voters or the courts -- for the moment I don't care which) to recognize these already-existing rights.
Is that a fair summary of your view?
By the way, I'm not setting this up as a rhetorical trick. And I am not looking for a slipperly slope argument (Denver Guy's second paragraph above already made that argument). I actually am trying to determine the actual core arguments you are using rather than focusing on tangential matters and "gotcha journalism" (don'tcha know).
For the record, I myself answer "yes" to # 1 and # 2, so I wanted to see if we are on the same first page.
Yes, points 1 through 3 are all accurate descriptions of my beliefs.
Then, is the right to marry a "positive" right -- in other words, it's a "right" that entails positive obligations on others?
Specifically, if Fred and Jane or Fred and Jim have the right to marry, then it follows that (1) private insurance companies that insure Fred are obligated to provide certain options with respect to J; (2) private hospitals in which Fred is resident are obligated to allow J to visit; (3) private newspapers who claim that F and J are not married are subject to libel suits if they did so deliberately with malice (and F&J are not public persons); (4) the government is required to give to J all the legal benefits that come with marriage to Fred.
It seems to me that these are all positive rights. (A negative right to be married would be that the government cannot prevent private individuals, organizations, and churches from treating F&J as married if they choose to do so; of course I support that.) And I guess I am not sure that heterosexual couples have such a right. Can you give any argument why a couple (even a heterosexual couple) possesses these rights?
LK
Do you believe that the positive right to marry (which I agree there is - it is simply an extension of the right of association), is impinged by the gov't refusing to license and thereby extend benefits to some couples that exercise that right?
I do not believe rights come from government or constitutions. I believe they exist independently (whether from nature or God or whatever source you want to declare). Rights, however, can be denied by governments, and a statute making it illegal for gay couples to have marriage cerromonies, or live together or have sex violate the fundamental right (and such laws have certainly existed and were properly found unconstitutional).
But I do not see gov't discrimination among various exercisers of that right when choosing to distribute additional benefits as a restriction on the right. What if the Fed. Gov't decided to only allow married couples wityh income below the poverty level to file joint tasx returns. This would discriminate against the wealthier married couples, yet I think would be constitutional as long as the reason for doing so reflected a not-arbitrary state interest.
I fully see that there is an argument that the refusal to extend marriage benefits to same sex couples may be arbitrary, and a court will rule on that some day. But if it is not found arbitrary or capricious, I do not think this discrimination by the government is a denial of any fundamental right, as long as all couples can get married.
Why is the right to association a positive right? I see it as a negative right: no government may prevent people from freely gathering together, for whatever reason they choose (or no reason at all), or from excluding others from their club on any grounds they so choose.
That's a negative right: it says that the government is not permitted to suppress a certain kind of activity.
On the other hand, if someone asserted that public colleges are obligated to give tax money to all assemblies of students, then the right to assemble would be a positive right. In my opinion, while it may be prudent for a government to give such money to student groups, they have no fundamental obligation to do so.
If marriage is merely a matter of negative rights, then no one has a "right" to any of the benefits and privileges of marriage that the government happens to grant today. It might violate the equal protection clause for the government to give these grants to some people and not others, but nobody's right would be violated if nobody got these grants. (Whereas if nobody got free speech, rights would indeed be violated.)
Sorry, I wrote positive, meant negative (though I was trying to agree with you). My point was, as you summarized, merely that the right to marry is separate from the entitlement to receive marriage benefits.
It may be separate, but if any group enjoys the negative right to be married, you can't separate them out as a group if the government starts handing out goodies associated with being married.
It may be separate, but if any group enjoys the negative right to be married, you can't separate them out as a group if the government starts handing out goodies associated with being married.
I disagree. If the goodies are not themselves obligatory (which they would be if there was a positive right to them), then the government is handing them out not because of intrinsic obligation, but because they have a specific reason to do so. In that case, they can (and indeed, must) discriminate with regard to things that are related to those reasons.
So, for example, when we hand out defense contracts, we discriminate in all sorts of ways between various companies. And that doesn't violate the equal protection clauses. The government routinely funds one highway and not another, for absolutely no good reason. And while that may be inefficient or even corrupt, it's not unconstitutional and it doesn't violate anyone's rights.
The original reason for most of the marriage benefits was that males had many, many advantages in society (and most of these were not due to the government, but to many social factors). The legal status of marriage effectively extended the goods and privileges of a married man to his wife and to his minor children. Everyone was happy about this: the woman was happy to get the protection that single adult women didn't have, the man was happy because his wife was protected, both were happy that their kids were protected, and society approved because it assured that the next generation of children would be raised in an umbrella of protection.
Notice that this umbrella was proportional to the man's social class. Even if I believed in positive marriage rights, I would find it indefensible that a woman who married a rich man had a right to millions of dollars when he died, and a woman who married a poor man had no such right when her husband died. Surely this violates the equal protection laws: when the two men both die on the same day intestate, the government takes their $1,000,100 and then gives a million to the widow of one and $100 to the widow of another -- how is that fair? In other words, if this were an issue of positive rights, it's all grossly unfair.
But if it's not an issue of rights at all, then it makes sense. As I said, in a society where men have most of the power, everyone benefits from the State instituting marriage laws that extend a man's goods and privileges to his wife and minor children.
If that's a fair analysis, then we have to ask (1) whether this still applies now that women are virtually equal in the workplace and society to men, and (2) whether this applies in the cases of marriages where no children are intended. The original reasons no longer apply; are there substitute reasons? And what are they? Once we know that, we can determine if these reasons apply to same-sex couples as well.
Perhaps at one time marriage was about conferring male rights onto his family, but it hasn't been that for a long time. Marriaged couples enjoy rights and privileged denied other couples. That is why if same-sex couples are allowed the negative right of marriage, they must also be allowed the positives rights. Otherwise, it is illegal discrimination. Not discrimination based on where's a better place to build a highway, but discrimination based on sexual orientation. That, indeed, is the whole essence of the debate. It's to get rid of this discrimination. Allowing only "negative" marriage rights to blacks, but positive ones as well to whites, would obviously be illegal discrimination. For that matter, it would be illegal to treat mixed couples differently, though that was the law not so long ago. Now there is discrimination on preferred partners because they are homsexual. To say they cannot enjoy the full rights of marriage would make a mockery of any civil rights claim that they have.
Anon, you are assuming there is a positive right to the benefits of marriage. Do you deny thatthe Fed and State govt's could scrap the whole marriage licensing business entirely, without violating anybody's rights?
I happen to think that the gov't should do just this - stop encouraging marriages of any sort because, as LK has ponted out, it serves no purpose in the modern world. I would add that marriage licensing also came into vogue in the mid 19th century to counter the polygamy promoted by the growing Mormon religion. marriages were licensed, and it was made specifically against the law to have more than one wife.
So if marriage licensing has no real purpose for heterosexual couples today, it certainly has none for same sex couples. Compounding the problem by increasing the number of couples who are "married" by the state seems silly, except for the equal protection argument. But I would argue the Equal Protection argument has as much force (to whatever extent it has force) if you pick any couple (same sex, same family, minors/elders, etc.). Before you start adding coupels to the list of people receiving a benefit from the gov't, you have to tell me why the gov't is extending this benefit in the first place? Why do gay couples need to be able to file joint tax returns? Again, I don't see why straight couples need that benefit, but before I extend the benefit to gays, I want to know what state purpose it is serving.
DG wrote:
But I would argue the Equal Protection argument has as much force (to whatever extent it has force) if you pick any couple (same sex, same family, minors/elders, etc.).
I totally agree. The Equal Protection clause means one of three things.
(1) It means that any time you can imagine a parallel law that affects different people, the parallel law should exist. If the law allows blue-eyed people to visit the Grand Canyon, then it must also allow brown-eyed people. If it's legal for a man to marry a woman for reproductive purposes, then it's just as legal for a man to marry his doctor for medical purposes (no sex, but they are immune from testifying against each other).
(2) It means that those parallel cases that Congress chooses to enact by statute are valid; so if and when Congress decrees that race is a parallel category, then you can't pass laws for white people only. When Anonymous states that "it is illegal discrimination" to not have same-sex marriage, he seems to be saying that Congress has passed a law making this a parallel category. I believe this is factually incorrect, but in any event it has nothing to do with rights.
(3) It means that a law that explicitly restricts its application to a specified subclass of Americans must be broadened to include all of them. So a law that specifies brown-eyed people violates this clause. In that case, the current marriage law clearly doesn't discriminate against gay people (it says nothing about heterosexuality). However, it might discriminate against men (if it says "A man and a woman", man # 2 might claim that the specification of a woman discrimates against him).
My point is simple--the same fight for rights that demands homosexuals be allowed to marry their person of choice (which the law presently forbids) by its very nature includes them the right to enjoy everything attendant to marriage that the state provides. If the state decides to stop providing these things, fine, as long as it stops providing them to all married couples.
This is a common way of looking at basic rights. States can do all sorts of things, but if they do them in a discriminatory fashion, suddenly what was once legal no longer is.
Marriage is certainly a basic right. It's been discussed as such in Supreme Court cases, but if you really don't believe it, try to take it away from any group that presently enjoys it and you'll see how much a basic right it is.
Other limits on who can marry can stay or not based on their own merits, which always should have been the case.
Anon - you are arguing without defining terms. The S.Ct has indeed ruled that marriage is a basic human activity, a component of the pursuit of happiness, if you will, and therefor cannot be banned. But this was in the context of misogeny laws (laws making it illegal for people of different races to marry).
The key was the definition of marriage. There is no question that the S.Ct, in its ruling, defined marriage as a union between a man and a woman, not of the same family, each of whom is not already married to someone else. That is the definition of marriage the S.Ct. based its ruling on. In the future, it may rule that the definition has changed, and of course the definition could be changed by legislative action.
But this is besides the point. No law in the US bans marriage of same sex couples. There are surely thousands of same sex couples who have had marriage ceremonies, live as spouses, where rings, open joint bank accounts, own homes together, etc. I fully agree, and law that would seek to bar such activities is unconstitutional. In the mysogeny cases, a black and white couple violated the law by doing these things.
The situation for gays today is quite different. They can marry. They cannot always get state benefits (to which there is no basic right) in recognition of their marriage. So you really want the S.Ct to change the definition of marriage to "a union of two people (regardless of gender, but otherwise for amorous purposes) with the expectation of receiving government benefits." Ifthat was the definition of marriage, I would agree the state must license all couples, though only the ones having sex together (I guess there would have to be a test for that - right after the blood test).
DG, I believe you're asserting that gay folks already have the negative right to marry, presumably in the sense that there is no civil punishment attached to them doing so in whatever religious ceremony they choose. All that is being denied are positive, optional civil benefits, right?
Ok, when I make race analogies it seems to make folks get nervous and defensive, so let's not start talking about analogies to "separate but equal" here, but instead just stick to religion. (Way less controversial, right?)
To me, allowing the negative right to marry to differ in practical, civil effect denigrates that negative right. Just as it would if one religious group were not prosecuted for practicing their faith but were treated for tax purposes like a social club, and another received a property tax exemption. Creating practical differences in the treatment of different expressions of the same negative right impinges on that right.
Post a Comment
<< Home