Sunday, January 13, 2013

A Response to Brandon Vogt: Part Two - Equality and Marriage

A few days ago, I started a series in which I analyze Brandon Vogt’s critique of the top ten reasons that marriage equality supporters give for the Government to recognize marriage (my first analysis is here). Today, we will be looking at the second argument in favor of marriage equality, and Mr. Vogt’s critique of it. He claims,
2. Same-sex marriage is primarily about equality.
This argument is emotionally powerful since we all have deep, innate longings for fairness and equality. Moreover, history has given us many failures in this area, including women banned from voting and African-Americans denied equal civil rights. The question, of course, is whether same-sex couples are denied equality by not being allowed to marry each other. 
To answer that, we first must understand equality. Equality is not equivalency. It does not mean treating every person or every group in exactly the same way. To use an analogy, men and women have equal rights, but because they significantly differ they require separate restrooms. Equality means treating similar things similarly, but not things that are fundamentally different. 
Second, there are really two issues here: the equality of different people and the equality of different relationships. The current marriage laws already treat all people equally. Any unmarried man and unmarried woman can marry each other, regardless of their sexual orientation; the law is neutral with respect to orientation just as it ignores race and religion. 
The real question is whether same-sex relationships differ significantly from opposite-sex relationships, and the answer is yes. The largest difference is that same-sex couples cannot produce children, nor ensure a child’s basic right to be raised by his mother and father. These facts alone mean we’re talking about two very different types of relationships. It’s wrong, therefore, to assume the state should necessarily treat them as if they were the same. 
Same-sex marriage advocates may argue that it’s discriminatory to favor heterosexual spouses over homosexual couples. With all of the benefits flowing from marriage, this unfairly endorses one set of relationships over another. But if the state endorsed same-sex marriage, it would then be favoring gay “spouses” over unmarried heterosexual couples. The argument runs both ways and is ultimately self-defeating.

First, Mr. Vogt claims that equality does not equal equivalency. That is correct; our society does treat things differently even though there is may be equality between them (men and women’s restrooms being an example).  He then goes on to say that when discussing marriage laws in the United States, we need to understand that there is a difference between how the law treats an individual, and how the law treats a relationship. He asserts that our current marriage law is neutral on its face, and that any unmarried person, regardless of their sexual orientation, can marry anyone of the opposite sex. Though it may seem persuasive, this is a common, yet easy to rebut argument, that those who are opposed to marriage equality bring to the table.

With this assertion, Mr. Vogt glides over the real meaning of equality. Equality is not that each person is treated the same (as we have already agreed too above), but is instead that each person has the ability to access the right in question in the same way. Our current marriage laws fail that test, and therefore they are not truly equal. A gay man or a lesbian woman cannot experience the marriage right in the same way by marrying someone of the opposite sex as they can by marrying someone of the same sex. For homosexuals, marriage, and the emotional experience that it provides us, can only be fully shared with those who are of the same sexual orientation. Therefore, keeping marriage limited to an expression between two people of opposite genders, does not allow LGBT individuals access to fully enjoy the marriage right.

Mr. Vogt then discusses the differences between the relationships and whether same-sex relationships are the same as heterosexual relationships. Again, he asserts that the state needs not recognize homosexual couples as equal to heterosexual couples because same-sex couples cannot produce children or “ensure the child’s basic right to be raised by his mother and father”.  First of all, a child being raised by his mother and father is not a “right”; it may be what Mr. Vogt views is ideal, but it is not a right in the legal sense (but that is an argument for another day). Mainly though, Mr. Vogt’s assessment is based upon the fact that he views the states purpose in recognizing marriage is to ensure procreation.  First, as I said here, though procreation may be one purpose that government encourages marriage, it has not been – and isn’t currently – the only reason why marriage exists as a government institution.  For example, Government recognizes that it is GOOD for society to have stable economic and emotionally integrated relationships. For Government purposes, marriage is also an efficient way of determining inheritance rights, who makes medical decisions, and privileges when it comes to legal proceedings.  Second, just because there is a slight difference between two groups, does not mean that Government should treat those groups differently. If there was, then we would be going back into a “separate but equal” mentality – one which I highly doubt that Mr. Vogt agrees with.

Lastly, Mr. Vogt asserts that if we grant same-sex partners the rights and benefits of marriage, then we are discriminating against unmarried heterosexual partners. This argument is a non-sequitur. A heterosexual couple who is unmarried still has the ability to enter into the government recognized marriage relationship. Currently, same-sex couples do not have that ability. By opening up marriage rights to same-sex couples, the State will be ensuring that both heterosexual and homosexual couples, if they so choose, can enter into state-sanctioned marriage. 

No, Colorado and Washington Have NOT Nullified Federal Law

I have recently become embroiled in discussions on twitter regarding an Indiana bill which would "nullify" the Affordable Care Act in the state, and make it a felony for anyone in Indiana to enforce the provisions of the ACA. Though the bill directly contravenes the Supremacy Clause of the Constitution (a fact which I will not deal with at this moment), much of the intellectual support for the bill comes out of the early 19th century doctrine of Nullification. In essence, nullification is when a State deems federal law to be unconstitutional, and therefore unenforceable, in their jurisdiction.

In support of nullification, many of the individuals whom I have talked with have pointed to states legalizing medical marijuana and/or legalizing marijuana for recreational use (Washington and Colorado). Though pointing to these states as an example of nullification may appear correct at first glance, as those states have legalized a substance that the federal government deems illegal, the argument does not support the nullification doctrine at all.

In all of the states which have legalized some form of marijuana possession, they have done so in regards to state, not federal, actors. For example, here in Michigan, a state trooper or police officer will not be able to arrest you if they catch you in possession of marijuana and you have a valid medical marijuana license. Yet, in Michigan, if a federal Drug Enforcement Agency officer pulled you over and caught you with marijuana, they WOULD be allowed to arrest you, as you have contravened federal law.

If Michigan (with its medical marijuana program) or Washington and Colorado (with their recreational use laws) had refused to allow the DEA to enforce drug laws in their states, then yes, those States would have nullified federal law. But that is not what has been done. Federal officers can, and do, go into States which allow possession of marijuana, and arrest individuals for their possession. Federal Law is still in effect, and thus, using marijuana legalization as an example of nullification taking place is, at best, a dubious method of justifying the doctrine.
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