Defense of Gay Marriage July 1, 2009Posted by Dwight Furrow in Culture, Dwight Furrow's Posts, Political Philosophy.
Tags: gay marriage, gay rights, Martha Nussbaum on gay marriage
Philosopher Martha Nussbaum has a wonderful, comprehensive defense of gay marriage, concise and devastating to opponents of this fundamental right. Anyone who wants a thorough summary of all the arguments for and against should read this.
Again, the issue turns on equality. What the cases consistently hold is that when the state does offer a status that has both civil benefits and expressive dignity, it must offer it with an even hand. This position, which I’ve called “minimal,” is not so minimal when one looks into it. Laws against miscegenation were in force in sixteen states at the time of Loving.
In other words, marriage is a fundamental liberty right of individuals, and because it is that, it also involves an equality dimension: groups of people cannot be fenced out of that fundamental right without some overwhelming reason. It’s like voting: there isn’t a constitutional right to vote, as such: some jobs can be filled by appointment. But the minute voting is offered, it is unconstitutional to fence out a group of people from the exercise of the right.
And she goes on to argue that there is no overwhelming reason to forbid gay marriage.
The idea that same-sex unions will sully traditional marriage cannot be understood without moving to the terrain of disgust and contamination. The only distinction between unworthy heterosexuals and the class of gays and lesbians that can possibly explain the difference in people’s reaction is that the sex acts of the former do not disgust the majority, whereas the sex acts of the latter do. The thought must be that to associate traditional marriage with the sex acts of same-sex couples is to defile or contaminate it, in much the way that eating food served by a dalit, (formerly called “untouchable,”) used to be taken by many people in India to contaminate the high-caste body. Nothing short of a primitive idea of stigma and taint can explain the widespread feeling that same-sex marriage defiles or contaminates straight marriage, while the marriages of “immoral” and “sinful” heterosexuals do not do so.
The only surprising feature of the argument is her lukewarm endorsement of the slippery slope argument that if we permit gay marriage there will be no principled reason to reject polygamy.
Whatever one thinks about the moral issues involved in polygamy, our constitutional tradition has upheld a law making polygamy criminal, so it is clear, at present, that polygamous unions do not have equal recognition. (The legal arguments against polygamy, however, are extremely weak. The primary state interest that is strong enough to justify legal restriction is an interest in the equality of the sexes, which would not tell against a regime of sex-equal polygamy.)
I disagree. In a marriage, structurally, each spouse has equal obligations and privileges. This is not the case with polygamy which is inherently unjust to the plural partners. The state has a compelling interest in preserving the equality and autonomy of individuals. So I see no reason why permitting gay marriage makes the case for polygamy stronger.