Sherif Girgis, Ryan T. Anderson and Robert P. George (who I’ll call “Girgis” for short) write:
In short, marriage unites a man and woman holistically — emotionally and bodily, in acts of conjugal love and in the children such love brings forth — for the whole of life. […]
Nor did animus against any group produce this conclusion, which arose everywhere quite apart from debates about same-sex unions. The conjugal view best fits our social practices and judgments about what marriage is.
I agree with what Girgis says here. The definition of marriage as between a man and a woman (or between a man and multiple women, in many cultures) arose apart from animus against lesbians and gays, because the idea of marriage precedes modern conceptions of homosexuality.
At the same time, I think – and perhaps I’m mistaken – that Girgis, by saying that, intends more than just describing historic sequence. I think they want readers to conclude that because the historic definition of marriage was formed without animus towards lesbians and gays, therefore a modern-day exclusion of same-sex couples from marriage has nothing to do with prejudice against lgbt people.
I don’t think that conclusion is warranted.
Imagine a country in which absolutely everyone is Christian or atheist. In fact, in this country, they’ve never even heard of people who aren’t Christian or atheist.1 This country always schedules elections on Saturday, because the large majority of people have Saturday off from work and Church obligations.
I think it’s fair to say that the decision to hold elections on Saturdays, in this country, has nothing to do with anti-Semitism.
But then a population of devout Jews – large enough to constitute two or three percent of the total population – immigrates to that country. Those Jews, whose religion forbids them from handling pen, paper, or machinery before sundown on Saturday, request that elections to be moved to another day of the week, or replaced with a two-day election weekend.
At this point, circumstances have changed. Although the initial decision to hold elections on Saturdays was not antisemitic, to continue holding elections exclusively on Saturdays, thus excluding Jews from being equal members of society, would be antisemitic.
Note that this would be true even if the “traditional election day” defenders included many people who didn’t bear any personal animus against Jews. What makes the law antisemitic is not what’s inside the hearts of the people defending the law (how could we know what’s in their hearts?), but that it discriminates against Jews, and makes Jews into second-class citizens.
Girgis might respond, quoting their essay, that “Equality forbids arbitrary line-drawing.” They could argue that Saturday-only elections, in my fictional country, are antisemitic because they are arbitrary. But the reasons for holding elections on Saturday – “the large majority of people have Saturday off from both work and Church obligations” – are not arbitrary.
The Saturday election policy is prejudiced, not because it is arbitrary, but because it is indifferent to the legitimate needs of Jews.
This points to a problem with Girgis’ view of equality. If equality merely means a lack of arbitrary line-drawing, then all sorts of prejudiced and unjust results will result, as long as they combine non-arbitrary rationals with prejudicial outcomes.
Real equality is not compatible with laws which unjustly make a large group of people into second-class citizens by depriving them of an essential right, whether it’s the right to form a new family through marriage, or the right to vote.2
- How is this possible, you ask, since the Bible mentions many people who aren’t Christian or atheist, and as Christians they’ve surely read the Bible? And I answer, oy vey! Stop bothering me with these nit-picks and just go with my silly example for the sake of argument, already! [↩]
- Note that certain groups, such as convicted criminals, may justly be treated as second-class citizens. [↩]
It’s only legitimate because you set that up in your example. They listened to the needs of one religion when choosing to hold elections on a Saturday not a Sunday, but then refused to listen to the identical request of another religion when asked not to hold it on a Saturday. I accept that that’s discriminatory because it is listening to the voice of one religion but not another.
What if they hadn’t. A religion is saying following its precepts are more important than voting. You accept that as reasonable, and say it has to be accommodated by the state. But is it really? Couldn’t a secular state just respond that that’s just incorrect, voting is actually more important than religious observance, and if you want to make the wrong decision about that then you’re welcome to?
Alex – you’re either reading too much into the example, or I’m missing your point. It seems to me that you don’t need to actually believe that a religion should have a say in voting days for Amp’s analogy to work. At worst, it’s just not a great analogy, but it’s not too difficult to come up with analogous examples in other domains that make Amp’s point equally well (for example, if the same hypothetical country’s employment laws were drafted back when only men tended to work outside their household, then these laws may make no provision for childbirth as a valid reason to miss work. That law may make no overt gender distinctions, and it might not have been crafted with sexist intent – it simply may never have occurred to the lawmakers that women may join the workforce. But now that they have, the laws are in effect unfairly discriminatory against women).
So (some) Jews and (a very few Christians – guess there aren’t any Seventh Day Adventists in your fictional utopia…you monster) pay respect to a certain religiously-prescribed behavioral pattern with regard to election day. The state disregards their preference and scheduled election day on Saturday.
Some Jews, some Christians, some Muslims…even some atheists for that matter, though for them it isn’t a religious sentiment, pay respect to certain religiously-prescribed behavioral patterns with regard to contraception and abortifacients. The state disregards their preference and requires all employers across the board to provide “free” contraceptives and abortifacients to their employees.
If disregarding the sincere moral bind the first group is put in is impermissible religious discrimination…what kind of discrimination is the treatment of the second group?
Robert – I don’t quite see how this has anything to do with Amp’s actual point, but I figured there’s no harm in answering (Amp, feel free to delete my comment if you want this thread to remain on topic. There are differences that I could draw between the two situations, but essentially I agree with you – if employers are forced to physically hand out contraceptives and perform abortions on their employees, that very well may be an infringement of their religious freedoms.
Of course, that’s a totally different situation from laws that require employers to give their employees payment for their work, in the form of money or health insurance that the employees could then, acting according to their own conscience, use to purchase contraceptives or abortifacients. After all, that really doesn’t have anything to do with the employers’ religious beliefs.
Uh, Robert, where is in ACA is RU486 being required with no copay? Contraceptives are not abortifacents.
The fact is the United States has a rich rich history of discriminating against disfavored classes of people through our marriage laws. We discriminated against blacks from marrying each other, we discriminated against blacks and whites from marrying across racial lines, we discriminated against Asian men (when the Chinese built the railroads) by making laws that if an American woman married an Asian man she lost her US Citizenship and we did the same thing if a woman married a Russian man.
Just because something was historically one way does not mean it has to stay that way. The best spin is saying that the discrimination was unintended, that the people were ignorant therefore it is not animus when it started, but that does not matter for today, it doesn’t really matter for today, how it started, whether willful discrimination or ignorant discrimination, here we are in 2012 and today it IS Discrimination and today it is religiously based animus.
Did you read the release of the Pope’s Message of Peace that was released yesterday? So on January 1st every year the Pope celebrates World Peace Day, and they released the text early of what he will be saying on January 1.
http://www.huffingtonpost.com/2012/12/14/pope-gay-marriage-threat-justice-peace-world-day-of-peace-2013_n_2303534.html
Yup World Peace Day, gotta get in that swipe at the gays!!! This is religiously based and lead animus, lead by Pope Ratzinger. It IS. Now the Evangelicals may be joining them Focus on the Family, the Family Research Council, but the real Leadership is all Catholic. This is a Holy War against sexual Minorities. And Religiously based animus is still animus. The only proper approach should be to mind their own business what goes on inside their churches. The idea that they are going to make civil law conform to Catholic Doctrine is appalling, they completely disregard the civil rights of of non-Catholics.
Not only that, but did you know Justice Scalia’s son is a Catholic Priest is (or was) Chairman of the Board of Directors of the Catholic Pray Away the Gay organization, Courage?
http://www.goodasyou.org/good_as_you/2012/12/antonin-scalias-church-promoted-event-dealing-w-challenge-of-same-sex-attractions-son-was-key-speaker.html
If you read the testimony of Dr. Nancy Cott Harvard Professor of History, you will learn that Marriage Laws have changed plenty over the years and the Institution of Marriage has survived. I highly recommend reading her testimony. She was the first witness called in the Prop 8 Trial and after reading her full testimony it is easy to see why.
http://www.scribd.com/doc/116836110/
Eytan, being obliged to pay one’s workers in cash, and being obliged to pay one’s workers partially in Qualuudes and lap dances, may be functionally identical, if there is strong worker demand for Qualuudes and lap dances. But it is transparently clear that my employer handing me a check, knowing I might use it for immorality, and my employer handing me a smaller check and a big ziplock bagfull of naughty, are two different things from the moral perspective of the employer.
Kelly, who said anything about the ACA or RU486? There is no nation of Shabbes voting and there is no country of abortion drugs on demand; we are talking hypotheticals.
I’d be against that. Although, as you point out, this is very unlike the situation in the US.
Now that we’ve gotten that out of the way, can we go back on topic?
Right…totally hypothetical. You’re absolutely not talking about Obamacare. Just comparing completely random hypotheticals, and your comment’s resemblance to actual talking points about ACA are is totally coincidental.
Anyway, back on topic…
I like this analogy because it’s a good point that the origins of a practice aren’t really relevant to whether or not it’s discrimination. “Equality forbids arbitrary line-drawing” is actually a really narrow view of equality, because it means you can discriminate as much as you like, as long as you have some plausible reason for it that isn’t arbitrary. Which I’m pretty sure you could pull off for every type of discrimination. And which, in fact, people do all the time to justify why the discrimination they’re aiming for is totally not discrimination and totally has a valid reason behind it. (“Oh no, we aren’t trying to disenfranchise black voters–we’re worried about voter fraud.” or “But, our older patients don’t respect fat doctors–we’re just focused on the doctor/patient relationship.”) Sometimes, the reason actually is valid; other times it’s BS. Either way, if it doesn’t count as discrimination unless you can prove it’s completely arbitrary, then pretty much all discrimination is acceptable.
You shouldn’t agree with them, because the definition of marriage they supply did not “arise” out of anything other than Catholic theology. Marriage did not “arise everywhere” as a way of spiritually conjoining male and female. The premise of the argument is false, and it’s typical of Robert George; he is the marriage-inequality version of an Intelligent Design supporter, attempting to sanitize an article of faith into a secular argument. It doesn’t work any better here than it does for evolution.
That’s a good point. I meant to refer only to the idea that marriage was between men and women, not to their entire definition, but I should have made that clear.
Mythago is right. This is 100% of the time the way it is argued,
This is why I posted the link to Dr. Nancy Cott’s Testimony in the Prop 8 Trial. Because she defines Marriage from the State’s Perspective, and she has the History to back up her definition. Out of all of the testimony in the Prop 8 Trial, I think hers is the most important. Because her definition as being an expert scholar (and she was not impeached by any other witness) is what is going to win the case. She starts the trial off correctly by getting the Civil Definition of Marriage correct. Here again is the link