Saturday, June 12, 2010

The Ambiguity of "Equal Rights"

"Equal Rights" sounds like a principle practically everyone, at least in our society, is in favor of, which makes claims about equal rights rhetorically effective. It is not at all clear, however, what it means. The problem occurred to me recently while listening to Ted Olsen, who is one of the attorneys trying to persuade the Supreme Court that California's failure to permit gay marriage is an unconstitutional violation of the principle. His view, widely shared by supporters of gay marriage, is that current California law fails to provide homosexuals the same right it provides to heterosexuals—the right to be married to the partner of their choice.

An opponent could respond, with equal logic, that it is consistent with equal rights. Both homosexuals and heterosexuals have the right to marry a partner of the opposite sex, neither has the right to marry a partner of the same sex. Seen from this standpoint, the difference is not in what rights different people have but in what rights matter to different people. Current California law provides both homosexuals and heterosexuals with the marital right that heterosexuals value and provides neither with the marital right that homosexuals value.

For those readers who see this as merely a rhetorical quibble, I put the following question: Is a law forbidding discrimination against gays in housing or employment also a violation of equal rights? Seen from one standpoint, it provides the right to hire or rent or sell to the person of one's choice to those people who are not prejudiced against gays but not to those who are—a violation of equal rights. Seen from the other, it provides both groups the right to decide who to deal with on grounds other than sexual preference and provides neither the right to make the decision on grounds of sexual preference. It's just that the right it denies is valuable to one group and worthless to the other. The logic is exactly the same as in the case of California marriage law.

All of which suggests to me that that the principle of equal rights is a great deal less clear than it may at first seem.

34 Comments:

At 11:12 AM, June 12, 2010, Anonymous Anonymous said...

Not ambiguous, just less satisfying.

 
At 11:41 AM, June 12, 2010, Anonymous Anonymous said...

I agree that there's a lot of ambiguity, but the old "everyone has exactly the same right to marry people of the opposite sex, so we do have equal rights" argument is complete BS. If you insist on looking at it that way, it's just discrimination based on gender instead of orientation: men are allowed to marry women, and women aren't; women are allowed to marry men, and men aren't. At best it's sort of a "separate but equal" situation, but only a perfectly bisexual person could see it as equal.

 
At 1:47 PM, June 12, 2010, OpenID timgier said...

You mention logic in this post but fail to employ any.

 
At 1:48 PM, June 12, 2010, Blogger Jonathan said...

Of course it would be a lot simpler just to let people do what they want with their own lives and their own property.

 
At 2:58 PM, June 12, 2010, Blogger Jonathan said...

I hope future generations will find it difficult to believe that people once voluntarily queued up to register their choice of long-term sexual partner with the government.

Homosexuals should really be laughing at this nonsense, not demanding the right to join in with it.

If they just want a ceremony and a party, anyone can do that.

 
At 3:17 PM, June 12, 2010, Anonymous Terry said...

It's more than just a ceremony and a party. A gay couple is currently entitled to the most elaborate wedding they can afford. Their issue is that it's not recognized by the state.

I don't personally believe in the institution either, but the fact is, it exists, is (in part) sanctioned by the state, and therefore should be open to everyone.

Any argument for so-called "traditional marriage" always boils down to religion and as we all know "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." So I don't see what all the arguing is about. The issue seems pretty cut-and-dry to me.

The state must recognize all marriages between any two consenting adults, and religious institutions may be free to deem them illegitimate within the church. There, everyone's happy.

 
At 4:00 PM, June 12, 2010, Blogger Glen Whitman said...

I agree, and I made a similar point in a blog post a few years ago:

http://agoraphilia.blogspot.com/2005/09/real-v-bogus-arguments-for-gay.html

My bottom line there was "that formal equality is a pretty empty notion without some substantive notion of rights underlying it."

 
At 4:33 PM, June 12, 2010, Anonymous Anonymous said...

It might make sense for a society to choose which rights to provide to it's members based on how beneficial the exercise of those rights is to the society.

 
At 4:38 PM, June 12, 2010, Blogger Gordon said...

The "equal rights" argument here is a legal, not a philosophical, one. As such, it carries a lot of specialized context with it. (I believe a due process argument is also being made - same story - in CA but I have not had time recently to follow this closely.)

For example, consider Loving v. Virginia, a case about interracial marriage. As David points out, from a purely "equal rights" perspective, the claim that everyone has equal rights when all have the same right to marry a person of the same race is plausible. But that is not what matters in a *constitutional* argument about equal rights. A crucial issue would be whether the law makes use of a "suspect category", which race is considered to be. Virginia's law made reference to this suspect category, and the upshot is that the law failed to pass constitutional muster.

At present the only "suspect categories" (which force "strict scrutiny of the law in question by the Court) are race, ethnicity or national origin, and lawful resident alienage. Sexual orientation has not been put in the suspect category. Yet, immutable traits are one of the key factors to get there; also, a history of purposeful unequal treatment or a perennial lack of access to political power. A good case could be made for any of these regarding gays.

Of course, many may not find constitutional arguments as persuasive as moral arguments, and invoking "equal rights" will not cut much ice with them in this context.

 
At 6:28 PM, June 12, 2010, Blogger David Friedman said...

Gordon sketches a legal argument, but I don't think it works in the form he offers. Even if sexual orientation is a suspect category, current California law can, as I pointed out in the post, be described in a way which gives heterosexuals and homosexuals the same rights. To make Gordon's argument work, I think you have to treat gender as a suspect category.

Incidentally, as regular readers of the blog can probably guess, I think same sex marriage should be legal (if the government remains in the business of defining marriage--I argued in an old post that privatizing marriage was a better solution).

I also think that private discrimination in employment, renting, and the like, against blacks, atheists, jews, gays, and anyone else, ought to be legal.

A central feature of a free society is that transactions are voluntary on the part of both parties. You hire me only if you want to hire me and I want to be hired by you, and similarly, mutatis mutandis, for other transactions. Replacing that with the rule "the transaction happens if and only if the state thinks it should" is a very large step backwards. Yet that's the rule implicit in current antidiscrimination law—I'm not permitted to make choices on grounds the state disapproves of.

 
At 6:39 PM, June 12, 2010, Blogger Gordon said...

David, that there is some description under which the rights are equal is irrelevant to the *legal* argument - as Loving v. Virginia showed.

 
At 8:22 PM, June 12, 2010, Blogger Arthur B. said...

The same kind of reasoning can also make Kant's categorical imperative moot. For example I wish that everyone lived by the rule that one should give 10% of their income to people who share my genetic code. The maxim applies equally to everyone but it only benefits me. Any "right" can point at a specific group of people, and it doesn't matter if it's shared.

 
At 3:09 AM, June 13, 2010, Blogger Tim Worstall said...

I believe that Anatole France got there with the logical point back in 1894

"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."

 
At 7:26 AM, June 13, 2010, OpenID hudebnik said...

Thanks, Tim, for the Anatole France quote, which was the first the I thought of on reading this.

It seems to me that the real question is how to objectively recognize a "right" which is defined in such a way as to be important or beneficial to one group of people but not to another -- in other words, how to define "suspect category".

In saying "men have the right to marry women, and vice versa," the words "men" and "women" stand out for their specificity, and one is inevitably drawn to ask why that specificity is needed. Likewise, if it's phrased as "an adult have the right to marry a single adult of the opposite sex [and same race]," the words that stand out are "adult", "single", "opposite sex", and "same race": in each of these cases, an argument must be made that the category in question (a) is legally well defined, and (b) serves a compelling state interest. I would claim that "same race" is almost impossible to define, and doesn't serve a compelling state interest; "opposite sex" is somewhat easier to define (although transsexuals pose a challenge) but serves no compelling state interest; "adult" is easier to define and serves some arguable state interest (if the state is going to recognize a contract, it cares whether the parties to the contract are competent to make contracts), and "single" is easy to define but only dubiously serves a state interest.

Do we have other examples of laws that name specific categories of people that most of us would find defensible? That's the real test of our definitions.

 
At 11:42 AM, June 13, 2010, Anonymous Anonymous said...

The law that one can not sleep under a bridge applies equally to both rich and poor. How can universal applicability be a problem?

Peter B

 
At 12:28 PM, June 13, 2010, Blogger Milhouse said...

"A law forbidding discrimination against gays in housing or employment" is certainly a violation of equal rights, no matter how you look at it. A law forbidding discrimination against anyone for their sexual preferences/orientation, on the other hand, might be a violation of rights, but not of equal rights, since it restricts everyone equally. True, it would affect those who care about such things and not those who don't; but in my opinion that make the law unequal, because I don't believe in the doctrine of "disparate impact".

 
At 11:02 PM, June 13, 2010, Blogger Michael said...

From the governments view, people don't have the right to choose who they live with. There was a roommate finder web site that was taken to court for discrimination for permitting people to place the sex and sexual orientation of the roommate they were seeking in their ad.

Any law that is putting a restriction on something, is putting a restriction on freedom.

 
At 7:42 AM, June 14, 2010, Anonymous BobW said...

I suggest that the state has an interest in defining the legal relationships of parenthood. Marriage is a standard contract establishing legal responsibility for control and support of children.

Some argue this means senior citizens should not be allowed to marry any more than gay couples. I'm not sure where that logic would end, perhaps automatic annullment of marriages that are childless after a prescribed time period?

The gay men I've known were very upfront about wanting spousal benefits for their partners. It wasn't rights or ceremony. It was about the money.

 
At 9:14 AM, June 14, 2010, Anonymous Anonymous said...

BobW, gay people can raise children.

 
At 2:13 PM, June 14, 2010, Anonymous RKN said...

I also think that private discrimination in employment, renting, and the like, against blacks, atheists, jews, gays, and anyone else, ought to be legal.

Easy for you to say, you're not running for political office! Now Rand Paul on the other hand...

 
At 8:21 PM, June 14, 2010, Blogger montestruc said...

From first principles people should have freedom of contract.

To me that would mean the freedom to enter into a contract of marriage (which unless you are going to go holy joe on me is what marriage is, a contract) with whom they choose, that would to me include both same sex and multiple partners.

Likewise owners of housing should have freedom of contract to rent to whom they wish, which includes right of refusal to rent for any reason or none.

That is to me, equal rights,anything else is a compromise with powers that be.

I see no ambiguity in this position. I see lots of hypocrisy in (for example) proclaiming that people should be free to marry same sex partners, but not multiple partners.

 
At 10:18 PM, June 14, 2010, Anonymous Peter A. Taylor said...

When I got married, my taxes changed significantly. I would like to know what the IRS is doing in my bedroom.

 
At 12:51 AM, June 15, 2010, Anonymous Anonymous said...

"I also think that private discrimination in employment, renting, and the like, against blacks, atheists, jews, gays, and anyone else, ought to be legal. A central feature of a free society is that transactions are voluntary on the part of both parties."

Does this mean you believe we live in a free society?

Why should public workers be prohibited from discriminating, but private people are free to do so?

 
At 10:00 AM, June 15, 2010, Blogger Milhouse said...

"Why should public workers be prohibited from discriminating, but private people are free to do so?"

Are you serious? The answer is obvious: because they're not working for themselves. An employee must implement his employer's preferences, not his own. And public employees work for the entire public, including the ones they don't like. Try working in any business and telling one of your bosses that you won't serve her!

 
At 10:12 AM, June 15, 2010, Blogger montestruc said...

Anonymous said:

"Why should public workers be prohibited from discriminating, but private people are free to do so?"

Umm, , because they work for the public which includes all citizens, and if they do not like treating their employer with respect they should get another job?

 
At 11:18 AM, June 15, 2010, Anonymous Pender said...

By this logic, anti-miscegenation laws did not discriminate on the basis of race, since whites and blacks alike all had an equal right to marry someone of the same race. I don't think many people would find that compelling, and I doubt many would find your argument compelling either. Nearly everyone in America today understands that the current state of marriage laws is designed to denigrate and marginalize gay people. Even our opponents more or less admit it.

 
At 11:26 AM, June 15, 2010, Anonymous Anonymous said...

"I see lots of hypocrisy in (for example) proclaiming that people should be free to marry same sex partners, but not multiple partners."

It's not at all hypocritical without some kind of evidence that there are a substantial number of people who are capable of a stable and happy marriage if and only if it is polygamous. Without that evidence, we should be able to agree at least that banning same-sex marriage is a far greater injustice than banning polygamy. And I don't think gay activists particularly care if polygamy is legal -- they just don't advocate for it because it's politically unpalatable and irrelevant to their cause.

 
At 9:09 PM, June 16, 2010, Blogger montestruc said...

Anonymous said...

"It's (forbidding plural marriage but not homosexual marriage) not at all hypocritical without some kind of evidence that there are a substantial number of people who are capable of a stable and happy marriage if and only if it is polygamous."

Yes it total hypocrisy because it violates the principle of freedom of contract. Further, we need not jump through hoops you choose to impose on others.

Neither you nor society have any right whatever to impose such rules on private personal behavior.

 
At 1:54 PM, June 18, 2010, Blogger Matt said...

They can move in with whoever they want. They can merge finances with whoever they want. They can have sex with whoever they want. They can hold an elaborate ceremony and call it a "wedding" if they want to. They can call themselves "married" if they feel like it. And they can refuse to associate socially or commercially with anyone who doesn't join in and also call them married. All under present law. (By the way...feel free to jump in your time machine back to the days of antimiscegenation laws and try ANY of those things with someone of another race. See how long you remain alive and unimprisoned. Then come back and try to make claims that such laws are no different than a refusal to redefine marriage to include homosexual unions.)

What do they lack, right now? Only one thing.

The power to use the force of the state to compel nonconsenting third parties to regard them as married.

If you want the right to think I'm an asshole for not calling you married and treating you as a married couple, go ahead. Freedom of conscience -- I'm for it. Similarly if you refuse to work for, buy from, or even sell to my business, to turn away if we encounter each other at a party, and to say nasty things about me behind my back and to my face as well. All fine and dandy. It's a free country.

If you want the power to sue me or have me arrested for it, though, that's where we run into a problem.

 
At 10:45 AM, June 22, 2010, Anonymous Anonymous said...

""I agree that there's a lot of ambiguity, but the old "everyone has exactly the same right to marry people of the opposite sex, so we do have equal rights" argument is complete BS. If you insist on looking at it that way, it's just discrimination based on gender instead of orientation: men are allowed to marry women, and women aren't; women are allowed to marry men, and men aren't. At best it's sort of a "separate but equal" situation, but only a perfectly bisexual person could see it as equal.""

in response to this...your logic is flawed. your example defines the target group of the law as defined male or female. that there would be a gender discrimination law, indeed... the laws must be written gender neutrak and that's why his example held true, using the definitions as "opposite sex" to apply to any person. Not gender specific. I'm not agreeing with his viewpoint in that whomever shouldn't be allowed to marry whomeever they wish, but if they insist on forcing a religion to change their beliefs that's crossing their rights for their own beliefs as the church... i say start your own religion..solves that

 
At 10:45 AM, June 22, 2010, Anonymous Anonymous said...

""I agree that there's a lot of ambiguity, but the old "everyone has exactly the same right to marry people of the opposite sex, so we do have equal rights" argument is complete BS. If you insist on looking at it that way, it's just discrimination based on gender instead of orientation: men are allowed to marry women, and women aren't; women are allowed to marry men, and men aren't. At best it's sort of a "separate but equal" situation, but only a perfectly bisexual person could see it as equal.""

in response to this...your logic is flawed. your example defines the target group of the law as defined male or female. that there would be a gender discrimination law, indeed... the laws must be written gender neutrak and that's why his example held true, using the definitions as "opposite sex" to apply to any person. Not gender specific. I'm not agreeing with his viewpoint in that whomever shouldn't be allowed to marry whomeever they wish, but if they insist on forcing a religion to change their beliefs that's crossing their rights for their own beliefs as the church... i say start your own religion..solves that

 
At 6:16 AM, June 25, 2010, Blogger Alex Perrone said...

This comment has been removed by the author.

 
At 6:19 AM, June 25, 2010, Blogger Alex Perrone said...

I like to put David's point in terms of "construal": Equality is relative to how one construes a situation. Construed as "everyone has the right to marry a member of the opposite sex" equality is upheld according to our laws; according to "everyone has the right to marry any other person" equality is not currently upheld.

This makes me wonder what people are doing who "fight for equality." In fact what they are really doing is fighting for a particular construal of a situation.

This also applies to abortion: it is not a case of rights but a debate about how to construe the situation. Given a contrual, rights fall out trivially.

Many other concepts besides equality require construal in their application (e.g. freedom or justice) and thus inherit the complexity of trying to construe the situation in the "right" way. As these concepts are much clearer relative to a given construal, I wish there were even deeper concepts that would help us decide which construal is the right one.

 
At 2:18 PM, June 29, 2010, Anonymous Anonymous said...

"Yes it total hypocrisy because it violates the principle of freedom of contract."

It's hypocritical only if one is (a) a libertarian, and (b) agrees that the contract creates no externalities.

Hypocrisy requires more than being wrong.

 

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