It is fundamental to our system of government that all of our citizens have equal civil rights.  We fought a war over the question, in fact, and it's now settled.  All American citizens start with the same package of rights; sometimes a right may be stripped from someone after due process, but we start out equal.

Equal rights do not guarantee equal outcomes, of course.  Two people have the same right to free speech, but if one of them is articulate and witty while the other is crude and incoherent, we would expect to see a differential outcome in terms of their ability to attract an audience.

Nor do equal rights translate into equal treatment at the hands of the state.  Two people have the same right to bear arms, but if one of them buys one handgun a year while the other accumulates an arsenal of ten thousand weapons, the local police are going to keep an eye on one and not the other. 

However, in both sets of cases, we expect that the state will not interfere with the rights of the individuals in question.  When the crude and incoherent person starts a newspaper, nobody tries to stop him.  When the builder of armies toddles off to the gun show to reload, nobody tells him that he can't do it.

Advocates of same sex marriage have leaned heavily on this equality of civil rights in making their arguments, to good effect.  Americans don't like the idea of one group not having access to a civil right; it rubs us the wrong way.  But are SSM advocates talking about the same civil right?

Advocates often ask the question "how would you like it if you couldn't marry the person of your choice?"  Well, I am fortunate in that I was able to marry the person of my choice.  However, "marrying the person of your choice" is not a civil right which Americans have.  It is an outcome that most Americans are able to reach, not a right.  Analogizing to free speech, we have the right to speak - not the right to be listened to, or believed.

Sometimes the person of our choice doesn't want to marry us.  Sometimes the person of our choice is a close relative.  Sometimes the person of our choice is too young.  Sometimes the person of our choice is of the same gender.  Sometimes we, or the person of our choice, are already married.

In the last four categories, the state has created laws that act as barriers to the fulfillment of the aspirations and dreams of many Americans.  Whether those laws are right or just is beside the point at the moment; the fact is that they are laws, and they are enforced.  Polygamy, incest, hebephilia, homosexuality; these are all categories of relationship that the state either declines to recognize or bars outright.  All these categories (except homosexuality) affect homosexuals and heterosexuals alike; you can't marry your sister whether you're a man or a woman.

So the idea that gays are being deprived of the civil right to marry the person of their choice is a non-starter; that right doesn't exist for anyone.  Gay people get much less satisfaction out of their right to marry one appropriately-aged non-relative member of the opposite sex than heterosexual people do, but both have equal theoretical access to the institution.  Blind people have the right to come into a public art museum, the same as the sighted; that they get less out of the painting gallery does not signify in terms of a violation of their rights. 

OK, if it isn't legitimate to characterize the lack of SSM as a violation of gays' rights to marry the person of their choice, then how can it be characterized?  I characterize it thusly:

The institution of marriage does not make provision for same-sex couples. 

So what SSM advocates are actually requesting/demanding/working for is a redefinition of the institution of marriage as currently practiced in 49/50ths of the US - a redefinition that does make provision for same-sex couples. 

More later.

Robert @ 12:47 | | | . | E-Mail This Post