Opportunity and Outcome

The problem is that, in our society, even with formal equality of opportunity, you can predict with some accuracy someone’s outcome by knowing morally arbitrary facts about them. If there really were equality of opportunity in New Zealand, outcomes may not be equal, but they would also not be predictable…

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Marriage Equality: A More Gentle Fisking of Brendan Malone

A few days back I fisked a Kiwi’s blog post opposing marriage equality. The author, Brendan Malone of LifeNET, claims to have read my post, but has declined to respond to its points so far (beyond a blanket dismissal of the whole thing). (UPDATE: Brendan has replied to some of these points in a subsequent post.) But he has written a whole new post opposing marriage equality. So, you know, here we go again.

It’s even longer than the first one, so instead of quoting the whole thing, I’ll summarise his arguments with quotes as references, but I recommend you read the whole thing to be certain I’m taking things in context.

While his previous post was a response to what he called a rights-based argument for marriage equality, this time he’s turned his attention to arguments from equality in general. He also notes that equality is such a big part of the push for legalised gay marriage that it’s been inserted into the PR-spin term “marriage equality”. Mr Malone’s no stranger to such spin terms, having issued press releases calling the repeal of Section 59 an “anti-smacking bill” and being a speaker for “pro-life” groups.

(Of course, the repeal of Section 59 was an anti-smacking bill, and opponents of abortion are pro-life.)

(And proponents of gay marriage are arguing for equality.)

Now, Malone sums up the equality argument as…

The equality argument basically goes something like this: if we don’t redefine marriage in order to allow for gay marriage then this discriminates against gay people, and it denies them equality with heterosexual people because of their sexual orientation.

Which is great, because unlike his previous post, this is an argument that people actually make.

His first argument is that the limiting of legal marriage to different-sex couples is not discriminatory, because it affects everyone equally. Regardless of sexual orientation, you are unable to marry someone the same sex as you – this is true for straight and LGBT citizens equally. Malone again lists this restriction alongside all of the other limitations on marriage that apply equally to all: you can’t marry a minor, you can’t marry more than one person, etc.

Interestingly, he follows this point up by saying that this point has been missed by people claiming that “banning gay marriage is just like banning interracial marriage”. Now, I personally don’t think banning gay marriage is just like banning interracial marriage – though there are certainly some similarities. However, I do think that the form taken by arguments against gay marriage are overwhelmingly just like arguments against interracial marriage. And this is often instructive.

For example, it seems plain as day to Malone that by pointing out that the restriction on same-sex marriages applies equally to all – straight or LGBT – he has therefore demonstrated that it’s not a case of inequality. However, one could just as easily point out that a restriction on interracial marriages applies equally to all – white or not – and is therefore not a case of inequality. It’s just another restriction, alongside not marrying minors or two people at once, and for opponents of interracial marriage, that reflects the very definition of marriage as being between two people of the same race.

It’s worth quickly noting that while a little word magic produces the technically true statements “everyone is equally free to marry a consenting adult of a different sex” or “everyone is equally free to marry a consenting adult of the same race”, that’s not the key question for same-sex or interracial couples in love. Societies in which same-sex marriage or interracial marriage are restricted unequally distribute people’s rights to marry the consenting adult with whom they fall in love.

Anyway, Malone goes on to say…

A ban on interracial marriage discriminates NOT based on what the authentic nature of marriage is, but instead it discriminates based on an attribute of one of the persons who wishes to enter into the union of marriage.

Just as one could say, “A ban on same-sex marriage discriminates NOT based on what the authentic nature of marriage is, but instead it discriminates based on an attribute of one of the persons who wishes to enter into the union of marriage (their sex).” And just as an opponent of interracial marriage could say, “A ban on interracial marriage IS based on what the authentic nature of marriage is – because racial homogeneity is essential to the definition of marriage.”

Malone sums up the difference between the comparisons (emphasis mine):

Laws which don’t recognise gay marriage are based on the principle that marriage has a specific form that two people of the same sex cannot bring into existence (i.e they cannot actually form a marriage between them), whereas bans on interracial marriage are based on the arbitrary and unjust notion that even though a person could actually form a valid marriage with someone of the same race, they cannot form a marriage with someone of a different race because one of those persons is inferior to the other because of their race, and inferior persons should not be wedded to superior ones.

Begging the question is a tricky fallacy because it’s not usually as obvious as you’d think. It basically involves the conclusion of an argument being assumed as part of the premises of that argument. Sometimes it’s not even clear to the person making the argument that they’ve slipped it in there, because the truth of the conclusion seems so transparently obvious to them.

Malone starts with the assumption that two people of the same sex cannot get married, then argues that the difference between restrictions on interracial and same-sex marriage is that one is preventing an actual marriage and the other is preventing something that can’t be an actual marriage, and therefore the comparison is spurious, and therefore two people of the same sex cannot get married.

In fairness, he also focuses on the idea that a ban on interracial marriage may be based on the idea of some races being inferior, and that no one is being called inferior in a ban on same-sex marriage. And that’s a fair enough point, assuming that this was the justification for a ban on interracial marriage.

However, it’s instructive to imagine a scenario (which does actually exist in some places) where people believe that races shouldn’t intermarry not because one is inferior to another, but because the mixing of races itself is bad. Racial purity, of whatever race, is an esteemed value in this culture or religion. And as a result, these people oppose the legal recognition of interracial marriages. I assume that Malone would be in favour of interracial marriages in such an environment, and would not be swayed by their “everyone’s equally free to marry their own race” argument.

Malone’s main thrust here is that interracial marriage is not like gay marriage, because interracial marriage is actually marriage and gay marriage isn’t marriage. Limitations on the sex of the person you marry are just like limitations on how many people you can marry, how old a person has to be to get married, etc. – they’re expressions of the definition of marriage. Limitations on the race of the person you marry are not like those other limitations, because they are irrelevant to the essential definition of marriage.

He reiterates the point by listing each of those non-contentious limitations on marriage and arguing that if you put limitations on gay marriage in the same category as limitations on interracial marriage, you have to be arguing for the removal of every other limitation on marriage as well. Because Malone seems to think that arguing against one limitation on marriage is arguing against all limitation on marriage:

You see, “marriage equality” tries to suggest that preventing someone from doing something that someone else can do, in this case marriage, is ALWAYS an act of injustice which treats one party as if they do not have the same intrinsic worth as the other.

Which is a far cry from the more accurate summary of the argument for marriage equality with which he began. We’re back to Malone knocking down strawmen. No one is saying that preventing someone from doing something that someone else can do is ALWAYS an act of injustice which treats one party as if they do not have the same intrinsic worth as the other. Being a proponent of marriage equality myself, here is a list of things I think some people should be able to do that others should not be able to do:

  • Drive a car
  • Surgery
  • Represent New Zealand in the Olympics
  • Teach kung fu
  • Teach anything
  • Adopt kids
  • Get married
  • And so on

 

But don’t let that stop Malone from patiently explaining that the state doesn’t let children get married or men get pregnant, and you don’t seem to have a problem with that, so clearly you think some restrictions are okay, so you should be happy with the restriction on gay marriage.

Malone sums up his point:

Once again, the key failing of the “marriage equality” claim is that it fails to see that marriage is unavailable to two people of the same gender NOT because of their sexual orientation, but because of what marriage actually is.

And he finishes his post by introducing an entirely other point, addressing (as usual) unspecified persons claiming that “marriage is nothing more than the legal formalisation of a romantic relationship between two people.” Malone notes that civil unions already do this. Fair enough. I’m not opposed to the idea of abolishing the Marriage Act entirely and having every marriage legally called a civil union – a union which couples can call whatever they like.

It must be frustrating for Mr Malone, saying the same thing over and over, which seems so patently obvious to him and others have such trouble understanding: the law isn’t being discriminatory, marriage itself is discriminatory and the law is just being true to marriage.

His entire argument against marriage equality, whether he’s addressing what he calls rights-based arguments or equality-based arguments, hinges on the underlying assumption that marriage is, by definition, between a man and a woman. Unfortunately for him, that’s also the conclusion of his arguments, and so the only people he will convince with them are people who already agree with that conclusion. That’s the problem with begging the question.

What he needs to be doing is arguing for that point: marriage is, by definition, between a man and a woman. And in fairness, he tried to do exactly that a few days ago, claiming that marriage is between a man and a woman because marriage is fundamentally about procreation. However, his justification for infertile couples getting married was vague at best, though I look forward to him explaining it further.

Marriage has changed over time. It has, at different times and in different places, had various definitions. At some times and places, Malone’s procreation-based definition would have been accurate. However, it is not accurate now. Infertile couples get married – and what is essential to their marriage is their romantic love and lifelong commitment to each other, not their ability to produce children or lack thereof. That’s the definition of marriage today, and it is not inherently discriminatory against infertile and same-sex couples as Malone’s is.

And that’s why every argument Malone has made, each based on his inaccurate definition of marriage, is unconvincing. And it’s also why comparisons to bans on interracial marriage are relevant. Because, to paraphrase Malone:

A ban on same-sex marriage discriminates NOT based on what the authentic nature of marriage is, but instead it discriminates based on an attribute of one of the persons who wishes to enter into the union of marriage.

Marriage Equality: Fisking Brendan Malone

UPDATE: Brendan has replied to some of these points in a subsequent post.

This Kiwi (The Leading Edge) blog post in opposition to marriage equality was mentioned on Kiwiblog along with the standard “it makes too much sense for any silly liberals to be convinced by it” nonsense. Turns out the original post is a lot longer than the excerpt I read on Kiwiblog, but for the sake of completeness and context I’ll look through the whole thing and analyse the arguments as they go.

In this post I want to explore a couple of important reasons why I think that rights based arguments for gay marriage are flawed – i.e. any sort of claim that gay marriage is a human right.

Sort of bothersome right from the start that Malone is addressing an argument I’d never make myself – a link to someone specifically making the argument he’s addressing would be handy. Nevertheless…

Firstly, I think there is a huge flaw in the way that some are using the word “right” in this debate.

What I mean by this is that I have heard a lot of people talking about marriage in a sense which implies that it is an absolute right for heterosexuals, and that it is only homosexuals whom marriage is denied to.

Right, from this point, for Malone’s argument to make sense, you must be imagining someone who believes that homosexuals are the only people who are denied marriage. This is where a link to these “I have heard a lot of people” would be handy. My point is that the things he’s about to say would not apply to, say, someone who thinks that marriage is denied to plenty of people in plenty of situations, but while recognising the justifications for many of those denials, does not agree that the denial of marriage to homosexuals is justified. You know, someone sane.

However this understanding is definitely not correct.

You see marriage is not afforded to heterosexuals as an absolute right at all.

A child cannot marry.

A brother and sister cannot marry.

Someone who is already married cannot marry.

More than one man and one woman cannot marry.

A father cannot marry his daughter.

A couple cannot marry without the required documentation.

A couple cannot marry without a celebrant and witnesses.

So, without even exploring the issue of gay “marriage”, we can already see that marriage has strict boundaries which cannot be violated if the two persons who want to be married wish to actually enter into a valid marriage – thus meaning that marriage is not actually something that is afforded to heterosexuals by right, instead it is something that is afforded to them on condition of them being able to meet the requirements necessary for a marriage to be brought into existence.

As usual, it’s instructive to apply the same reasoning to the denial of marriage equality to interracial marriages. “Interracial couples claim that marriage is a human right that only they are denied! But lots of same-race couples can’t marry – fathers and daughters can’t marry, brothers and sisters can’t marry, etc. So even without exploring the issue of interracial ‘marriage’, we can see that marriage has strict boundaries.”

Two important things you will see from the limitations listed above:

a) The presence of a romantic bond between the parties wishing to enter into a marriage does not override, or make null and void any of these conditions – the reason I point this fact out is because many gay marriage supporters are suggesting that a romantic bond between two people of the same gender should be all that is required for a marriage to be brought into existence. If we actually embraced this reasoning then none of the limitations listed above could be legitimately placed upon a marriage either.

Another strawman. No one is saying that a romantic bond between two people should be the only condition of a marriage, and no one is saying that a romantic bond between two people is a sufficient condition of marriage. In other words, there is obviously more to marriage than a romantic bond, and there are obviously restrictions a romantic bond does not override, and it is disingenuous to pretend that proponents of marriage equality are ignoring these things.

b) They create a framework which legitimately discriminates against certain people and situations when it comes to marriage, thus making a complete mockery of the argument that it is only two people of the same gender who wish to marry who are discriminated against by current marriage laws.

Again, arguing against an imaginary person who has a much weaker position than real people. No one is saying that it is only two people of the same sex who are currently excluded from marriage – “discriminated against”. People are saying that, while there are legitimate exclusions from marriage, being of the same sex is not one of them.

The other important point to note is that the current law does not actually prevent homosexual persons from marrying, instead it prevents ANY two people of the same gender from marrying, regardless of their sexuality – this is because two people of the same gender, regardless of their sexuality, cannot satisfy the fundamental requirement necessary for a pairing of two people to actually be a marriage.

That fundamental requirement is the potential for procreation in the pairing of the two persons.

What about inferti––

Now before you start raising objections about infertile heterosexual couples, please note that I refer to the “potential for procreation”, rather than the “ability to procreate”. This distinction is vitally important, and it is the pivotal distinction between a same sex couple and a male/female couple.

This ought to be good.

An infertile male/female couple is still a pairing with the potential for procreation, it is simply that this potential is rendered unavailable to them by an impairment of the nature of their union, however a same sex couple do not posses this potential at all because they lack the obvious complementarity that is required for a couple to posses the potency for procreation within the nature of their pairing.

This is a fine example of the kind of mental gymnastics people are prepared to perform in order to reach the conclusion that they were right all along. Extraordinary. “An impairment of the nature of their union.” Just extraordinary. What we’re being told here is that the fundamental requirement of a couple to be a marriage is their “potential for procreation”. Same-sex couples can’t be married because they can’t have kids.

BUT!

Different-sex couples who can’t have kids CAN be married. Because even though their union is just as incapable of producing children as a same-sex couple is, something called “an impairment of the nature of their union” is getting in the way, so they get a pass. (One wonders if being born into a body the same sex as the person with whom you fall in love couldn’t be considered an impairment of the nature of your union just as much as being born into a body that is unable to conceive for some other reason.)

All of which is a pretty convoluted way of saying that same-sex couples just can’t be married because they’re the same sex, not because they can’t have kids.

At this juncture some might be asking “but so what, why is procreation such a big deal?”

Precisely because marriage laws are simply a legal recognition of the fact that marriage is an institution that can, and does, result in the good of children because of the potential for procreation that exists between one man and one woman. The very reason we have marriage laws in the first place is not because the state invented marriage, but because the state recognises marriage – and for the state to recognise something, that thing has to exist PRIOR to the state and have its own clearly recognized form already in place (i.e. the form of marriage is not given to marriage by the state, but rather by the potency that exists in the sexual union of a man and woman, and by implementing marriage laws the state is simply recognising that form and upholding its vital importance as a public good).

Still not seeing how infertile straight couples or post-menopausal women, etc., should be able to get married…

Secondly, in regard to the current popular trend of using the word “right” when talking about gay marriage I would humbly suggest that if you want to try and claim something as a human right, that thing actually has to first exist in reality.

Oh, I know what’s coming up. It’s great. Check this out.

Marriage definitely exists, but gay marriage does not, so in order to create gay “marriage”, you would first need to completely abolish marriage in order to create a new form that you also call “marriage”, but which is actually completely different to authentic marriage in its form – the obvious problem with doing this is you’ve actually abolished marriage in the process, meaning that gay “marriage” is not actually marriage in anything other than name only (because the form of marriage had to be destroyed in order to create gay “marriage”).

Whoo! You can’t shoot me! I’m not even playing!

The difference between marriage and gay “marriage” is that marriage is RECOGNISED by law, whereas gay “marriage” is INVENTED by law – this is a vitally important distinction, as the state has no legitimate authority to impose itself in this way upon something which exists prior to, and which does not flow from the state.

Malone’s own reasoning actually works against him here. Sure, the State didn’t invent marriage; it recognised it. And the State didn’t invent gay couples falling in love with each other and making lifelong commitments to each other; it’s going to recognise them.

Because that’s what marriage is. It’s two consenting adults falling in love with each other and making a lifelong commitment to each other – and note how I don’t have to do any mental gymnastics to account for infertile couples. Marriage may have been other things in the past – ownership of one woman or many women, ownership of kids, two families coming together, the raising of children, etc. But as it has changed in the past, in our culture, it has come to be about romantic love and lifelong commitments.

And Malone is wrong about this not already existing and having to be invented by the State. There are same-sex marriages already – they’re couples of adults in love making lifelong commitments to each other. The State is just going to recognise what’s already there.

Let me give you another example – your right to life does not come from the state, it is not granted to you by them, instead it is yours by virtue of your nature – that is, you are a human being. Your right to life was not invented by the state, but is definitely recognized by them and enshrined in law because the state has a duty to uphold the common good in order to provide the necessary just order that enables human beings to flourish.

So if the state was to suddenly start enacting laws which denied you, an innocent human being, your right to life, then the state would be imposing itself upon something that it has no legitimate right to impose itself upon, and thus it would now be working against the common good and acting in an illegitimate fashion.

This matter of state recognition versus state invention when it comes to marriage is precisely why the issue of polygamy can be validly raised in a debate about gay marriage.

Because if the state now believes that, based on nothing more than a popular whim, it has the power to completely abolish and redefine institutions that exist prior to, and independently of the state – those which are recognised, rather than invented by the state – then how can the state exclude ANY new form of those institutions without actually engaging in an act of unreasoned and totally arbitrary prejudice?

By having reasons for excluding them. And there’s no reason to exclude same-sex couples (who aren’t related, etc.).

You see, when it comes to marriage, if the state is now going to try and claim that the primary thing that makes a marriage a marriage is a romantic bond and a freewill desire from the parties entering into a marriage, then how can ANY of the following be excluded from access to marriage by anything other than a totally unfounded prejudice on the part of the state:

-Polygamous relationships where a romantic bond and a freewill desire to marry on the part of all parties is present

Yep, good point. If there are polygamous lifelong commitments going on, I’m all for them receiving equal recognition by the State.

-Relationships between two siblings where a romantic bond and a freewill desire to marry on the part of both siblings is present

Icky, but if they can prove there’s been no grooming going on and they can assure they won’t have kids, fair enough.

-Relationships between a parent and their child where a romantic bond and a freewill desire to marry on the part of all parties is present

No, you can’t prove consent there – power dynamics are too messed up.

-Relationships between two people who are already married to other people, but who wish to marry a second person in a different marriage, where a romantic bond and a freewill desire to marry on the part of all parties is present

If everyone involved consents, sure. Otherwise it’s a breach of the initial contract.

-Child marriage where a romantic bond and a freewill desire to marry on the part of all parties is present

Children aren’t consenting adults, by definition.

I am yet to hear a coherent, or even close to convincing argument from those who want to abolish marriage and remake it in their own image.

Unsurprising, given you appear to hear only simplistic arguments in your imagination rather than what people are actually saying.

Using newspeak such as “marriage equality”, or simply parroting slogans like: “marriage is a human right for everybody”, or: “not letting two people of the same gender marry is like when they used to ban interracial couples from marrying” is not actually the same thing as presenting a reasoned argument in support of your views on this issue.

That last one is actually a pretty reasoned argument. You could respond to it by explaining how it’s different, but I expect we’d get into how interracial couples can produce children and infertile interracial couples get special passes again.

The reason I am pro-marriage, and therefore opposed to any state imposition and redefinition of marriage to include pairings that can’t actually legitimately be marriages, is not because I am anti-gay, it is because I have weighed the evidence and I can clearly see a logically coherent reasoning as to why the state has no legitimate right to abolish marriage and invent something new that will also include a thing, that only exists in legal definition, called “gay marriage”.

Well, if that’s what you’re caught up on and it has nothing to do with your religion, we can sort it out right now.

  1. Your definition of what is fundamental to marriage (ability to create children) is patently ridiculous and you know it. You have to practically do mental backflips to make it fit with the reality: 14-year-old couples could have kids, infertile couples can be married, polygamous groupings could have kids, etc.
  2. My definition of what is fundamental to marriage (romantic lifelong commitment of consenting adults) fits with everything we currently recognise as marriage (including infertile couples).
  3. There are already gay couples with lifelong romantic commitments to each other. These are marriages, even if they themselves don’t call themselves married. These are marriages, even if the State currently doesn’t recognise them.
  4. When the New Zealand Parliament passes the Marriage Equality bill, it will not be inventing gay marriage; it will be recognising what’s already there.

 

A Few Thoughts on Marriage Equality

An appropriate response to calls for a referendum.

I was opposed to the Civil Union Bill, though not as much as I was opposed to its opposition. It obviously didn’t go far enough in removing unequal treatment by the law of New Zealanders on the basis of their sexuality. Opponents argued, among other things, that civil unions would pave the way for gay marriage – which, of course, it did. It’s frustrating that such incrementalism was necessary.

A quick glance at Kiwiblog provides a snapshot of the views of opponents of marriage equality. I was going to say that the snapshot was of caricatured exaggerations of the average opponent’s views, but sadly I don’t think I quite believe that. I pessimistically think that the kinds of things said there do represent the way that many New Zealanders think.

  • Marriage has always been between one man and one woman.
  • Gay Kiwis already have civil unions – what are they complaining about?
  • Terrible things happen to kids raised by gay couples.
  • Celebrants will be forced to act against their religious beliefs by performing gay marriages.
  • What’s next? Polygamy?

 

Underlying the majority of these views, often (but not always) explicitly, is a belief in Christian values and a desire for those values to be imposed on everyone via the machinery of the state – or at least to prevent a perceived negation of those values being imposed on everyone via the machinery of the state. NZ Conservative makes it explicit:

One of the problems we have in the West right now is that we think we can define our own reality. We say, marriage is no longer between a man and a woman – it is between two people of either sex, and we think we can make it so. Our Post Christian nationas have abolished God and seek to act in His place.

Also noting: “Marriage is not marriage unless it is made up of a man and a woman, so two men or two women could never marry each other, because then it’s not marriage.”

In my experience, that last bit is reflective of a new trend emerging in opponents of marriage equality. What used to be “don’t do it!” has become “you can’t do it”. You can’t do it, you see, because marriage is between a man and a woman no matter what the Government says, so you can have your piece of paper and pretend you’re married, but you’re not really.

It feels to me that this trend comes from a sense of inevitability about marriage equality. A sort of emotional self-inoculation in the face of what’s coming.

What I find interesting about it is the double-thinking required to keep it going. On one hand, the state shouldn’t redefine marriage. On the other hand, the state has no power to redefine marriage. Of course, not everyone holds the two thoughts in their head at the same time, but I like that opposition is coming from two such different and contradictory bases.

Finally, it’s nice to see Family First showing a little reasoned argument. They’re calling for political parties to declare where they stand on polygamous marriages. Some may scoff, but really, if there’s no tax incentive and all parties are consenting adults, it’s a logical extension of the move towards liberty and equality behind gay marriage. Most of the more compelling arguments for one apply the other.

And Family First realise this, in a moment of rare lucidity, and also know that while political parties may feel comfortable championing gay rights, they may not be so comfortable about declaring a pro-polygamy stance. Clever.

Planned Parenthood is Big Business

I never realised it before, but Planned Parenthood is clearly hooking kids on sex so it can sell birth control and abortions.

If it wasn’t for Planned Parenthood, teenagers wouldn’t even THINK about sex!

Meanwhile, don’t use sunscreen from The Cancer Society! They make money off you getting melanoma!