The concept of legal privileges
(NOTE: This is a post that originally was posted on my Cal blog, Excuse Me For My Voice. Because that blog is host to both Jason Snell and myself, I have moved this post to here, to remove any implication that I spoke for the both of us. The first 4 comments are also moved and so reflect having been posted on the other site (particularly #4).)
I want to talk about a matter of significant importance, one that it amazes me just how few people, including the justices of the California Supreme Court, seem to recognize.
This matter has nothing to do with religion, as I suspect most of my readers would guess that my perspective on the subject would guess, but simple logic and the principles on which this country is founded. In this post you will find no references to God.
The principle not only affects the immediate issue I’m going to discuss, gay marriage, but a myriad of other political topics, both conservative and liberal leaning, on which the country has been heading the wrong direction.
The principle is called legal privileges.
The word “rights†is thrown around these days with amazing abandon. Everybody has a “right†to an amazing number of things, if you believe the various pundits out there. We’ve got the right to affordable gas, health care, owning a car, to get various medical procedures, to do business with others whether or not the other party wants to, to own a home, to a free education, the list goes on and on.
The problem is that none of things are rights. Rights are things that all humans deserve. They are not granted by a government. They transcend every location and generation. They are inherent to the fact that we are alive and human. In fact, the declaration of independence makes this very clear:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The point is that rights are not granted by the government, they are upheld by the government.
As such, the list of rights we all have are few but broad in implication. We have the right to live out the course of our natural lives. We have the right to work to obtain the means to continue living (air, water, food and shelter). We have the right to freely associate with others. We have the right to believe what we want. We have the right not to be discriminated against because of who we are, as is separate from our actions. Really that’s about the limit of our fundamental rights. These rights transcend all governments.
Certain governments, including ours, extend additional rights to their people, rights that although not fundamental, make for a better society. Rights that likely make it easier for people to keep their fundamental rights. The right to freely publish and the right to bear arms fall within this set of extended rights. We in the United States are granted a number of these rights.
In any case, whether rights are fundamental, and thus apply to every human being, or extended, and then only apply to those within the government that has established them, rights are things that apply to EVERYONE.
All of this is a very long introduction to the concept of legal privileges. I wish I didn’t have to spell these things out so explicitly because it seems self-evident to me (and apparently to the founders of our country), but it apparently is no longer evident to the general public and much of the judicial system.
Legal privileges are things that either only apply to subsets of the population or if applied universally, can be regulated or limited in their application. All of our laws, that which is not in the Constitution, are legal privileges. Things like all of our social services, tax breaks, public services like fire protection, libraries and emergency relief, inheritance privileges, education, all of these things are legal privileges that the government has granted a wide swath of the public. Similarly all of the regulations that exist, how we must build a house (or stadium), speed limits and drivers licenses, banking rules, incorporation rules and the rest, they can not infringe on our rights and be just or legal regulations. These privileges and their corresponding restrictions are granted by the government for the good of the people. It is the government’s job (and in a democracy the people are responsible for making the government do its job) to decide what legal privileges and what restrictions are wise and for what reason.
All of this finally brings me to the topic of gay marriage.
Marriage, in the legal sense, is a privilege, not a right. If it were a right, the government would be forced to find the ugliest, poorest, meanest jerk of a man someone to marry him if he desired marriage. If it were a right, it could be denied to no one, not criminals, not polygamists, not gay people.
But marriage is a legal privilege. It is a set of laws that the government created with the purpose of giving privileges and protections to a man and a woman who come together to live together as one legal entity. These privileges include tax breaks, medical decision making power, inheritance incentives and other legal privileges.
As such, it is also perfectly acceptable for the government to regulate marriage and limit its applicability. There is no basis for a court stating that certain people, who don’t fit the definition of the privilege by their actions or fall outside the regulations created, have a “right†to that privilege. It just doesn’t make any sense to say that. Nobody has a right to a privilege.
Is that clear?
The final thing I’d like to reference is the commonly used argument attempting to equate the issue of gay marriage and inter-racial marriage. If you go way back to the top of this post you’ll see that one of the fundamental rights is not to be “discriminated against because of who we are, as is separate from our actionsâ€. This is the factor that differentiates between inter-racial marriage and gay marriage. In inter-racial marriage the man and woman involved are not different in nature from a same-race marriage. Their actions are also the same and can fit within the same regulation on marriage.
Gay marriage is entirely different. Men and woman are not the same. It is acceptable to make laws regulating men from going into the women’s bathroom. As such, a marital relationship between a man and a woman is by the nature of the fact that men and women are different, a different type of a relationship than two men or two women. The actions in which that couple can engage, are again different. The most obvious example is that two men and two women can not duplicate the sexual activity of a man and a woman. They can simulate, but not duplicate.
As such, that is the inter-racial marriage comparison is a false comparison.
May 22nd, 2008 at 9:04 am
Ken:
I agree with you totally that marriage is a privilege granted by the State of California. It is not a right.
It’s more like the privilege to create a corporation. It’s a legal entity that grants favors and obligations.
I think that marriage should be de-regulated. I think the governement should not grant any of the privileges that it gives to married people. It’s very unfair to single people.
The government has no business subsidizing people because they want to co-habitate. We should abolish the pork barrel practice of marriage immediately.
May 22nd, 2008 at 9:05 am
Boy, Ken, you sure do get a lot of mileage out of your ‘Excuse Me For My…’ rhetorical device.
Anyway, I agree with much of what you are saying. Pretty much everything before your discussion of gay marriage is spot on. In particular, I am in full agreement that the number of things people are now claiming to have a ‘right’ to is getting out of hand, seriously warping what it means to have a ‘right’. The only thing I would add to this section is that while legal privileges may only apply to a subset of the population, the determinant of who does and does not fall into any particular subset of the population may not be determined by race, color, creed, sexual orientation, etc. To divide by any such means (to use your phrasing, “who we are, as is separate from our actionsâ€) would be discrimination.
However, I find some of your arguments less convincing. For instance, in arguing that marriage, in the legal sense, is a privilege, not a right, you posit that, “If it were a right, the government would be forced to find the ugliest, poorest, meanest jerk of a man someone to marry him if he desired marriage.†However, no one is arguing that everyone has the right to be married. Instead, advocates for gay marriage are arguing that everyone has the right to marry a willing partner who is legally able to consent. (Note that this continues to exclude minors, animals, and inanimate objects, some of the worst examples — thankfully not yours — of ’slippery slope’ arguments that I have heard.) Also, are criminals actually denied the ability to be married? If so, I was not aware of it.
The rest of your argument rests on a contention that gay marriage is fundamentally different in character from a traditional, heterosexual marriage, and as such, the privilege of a traditionally-defined marriage is a different privilege than one that might be extended to a gay couple. Put another way, the “actions†of gay couples make theirs a different kind of union, one that can be safely differentiated from heterosexual unions in a non-discriminatory way. For this argument to stand, we would have to find an action which all heterosexual couples engage in, but no homosexual couples do, or vice versa. Raising or even bearing children doesn’t work, because some people are unwilling (or unfortunately unable) to do so. Heterosexual intercourse is the only action that I can think of that stands a chance of holding up, and still there are certainly marriages where that no longer takes place. In any case, it seems an awfully flimsy pretext to deny people legal privileges which have nothing to do with sexual intercourse, such as “tax breaks, medical decision making power, and inheritance incentivesâ€.
(Speaking of tax breaks, when do those come in? I did my taxes as a married man for the first time this year, and I didn’t see any breaks of any kind.)
Call marriage a right or a privilege, if the government is going to extend such a privilege to some people, those people must be selected in non-discrimanatory manner. If the government wants to encourage procreation and families, and even marriage among parents, they are free to do so through their various methods, but I see no legal basis for conferring an advantage to a heterosexual couple that is unable or unwilling to raise children and denying that same advantage to a homosexual couple, just because of what happens in their bedroom.
May 22nd, 2008 at 9:06 am
Rag, I’m glad we can agree on the fundamentals. The entire reason I wrote the post was because most won’t even recognize the concepts I laid out. I’m also glad that you responded with your thoughts and also that you did so in a rational fashion (not that you’ve shown any inclination to act irrationally in the past, it’s just a subject that tends to bring out the worst in many on both sides of the argument… I’ve gotten my share of hate-mail this weekend while the comments were closed).
My rebuttal to your thoughts on where we diverge is that you’re placing far too little weight on the practical differences between heterosexual and homosexual sex. The reality is that homosexual sex is not capable of producing a child. Whether a couple actually does have a child is only partially relevant. The reality is that heterosexual sex is the only type of sex capable of doing that. It is also far more capable of doing it than most people want to admit. Birth control fails on occasion. No matter how many “mistakes†a gay couple makes, they won’t be having any children of their own.
Since that it is the case, it is more than reasonable for the government to want to protect and encourage the relationships that MAY generate children. Children who are born without parents committed to raising those children are at a very minimum a financial burden on society as others, whether it be through adoption or foster care or poorly raised children who don’t contribute, have to pick up the slack. Encouraging marriage facilitates more couples who have children, even those who aren’t intending to have children but have an “oopsâ€, to be in a position to raise those children.
And remember here, we’re not talking about whether this is a wise choice for society to make, we’re only talking about whether that choice meets legal muster for not being discrimination. The reality is, even if many want to dismiss it, it is a different sexual relationship with different potential consequences. The courts have no authority to determine if they LIKE that difference, only if it is a difference that indeed transcends discrimination. I think it takes a foolishly naive mindset, to the point of being willfully ignorant on the courts behalf, to ignore some pretty simple biological facts. Facts that clearly and simply differentiate the type of relationship it is.
Would you disagree that those biological realities exist?
The final thing I would like to say is that it is not a requirement that the reason a privilege is granted apply to all who are granted the privilege. There are plenty of legal privileges that had to find a simple way to determine eligibility and that eligibility is far more broad than the people being targeted for the privilege. No criteria is perfect and so it is acceptable if the marriage criteria doesn’t exclude some who are “taking advantage†of it. As such, the “not all people who get married have children†argument is not very compelling. The same can be said for a million other legal privileges.
Oh and before I forget, you’re right to point out that the “we’d have to find a wife for the ugly guy†argument in my post was indeed the weakest and most stretched part of my logic. I admit to using an over exaggerated example. That said, I don’t think the exaggeration hurts the overall points.
May 22nd, 2008 at 9:08 am
I come here occasionaly to read your ideas about Cal football. I don’t care what you think about gay marriage. I don’t care what you think about legal issues that don’t involve smelly hippies in oak trees. I imagine that the majority of your readers are Cal grads or current students who can understand your rather simple points on their own. If I did care what you thought about issues outside Cal football, I would read your Catholic blog (n.b. I’m also Catholic). But I don’t care. I considered challanging your ideas, as the previous poster did, but I don’t think this is the correct forum for that. I understand you probably get more traffic on this site, but if you care about keeping me as a reader, you would be wise to limit your comments to the Golden Bears. But you probably don’t care.
May 22nd, 2008 at 9:54 am
Thank you for all the care and consideration that went into this decision, Ken.
May 23rd, 2008 at 12:24 pm
I’ve always enjoyed Ken’s argument that Gay marriage is a gateway drug to polygamy…
But the more I’ve thought about it, what is really wrong with polygamy?
I mean sure, the FLDS people have a lot of sexual abuse and intermarriage, and a lot of us find it creepy.
But in theory, there shouldn’t really be anything wrong with polygamy, adults consenting to co-habitat with each other. And raise a really big family. It’s like communism, good in concept, bad in earlier editions. Is communism really to blame for the fall of the soviet union or Chinese human rights violations, or is it the people involved? Same question for polygamy.
Isn’t the point of marriage as Ken defines it to procreate? Because that’s the only real difference between homosexual and heterosexual couples. In theory, those polygamists have got us all beat, because they do a LOT more procreating than the rest of us (not named that weird Arkansas family with like 18 kids). Therefor, one could argue that since they’re better at procreation, they’re better at marriage, and therefor only polygamist marriage should be acceptable because they’ve clearly figured out the best arrangement.
That is until the environmentalists decide to protest because of all the waste associated with such a large family… damn hippies…
May 23rd, 2008 at 3:05 pm
Bro, where in any of my posts have I ever said anything resembling “Gay marriage is a gateway drug to polygamy”, even without the metaphor?
In fact, as I see it, gay marriage is a greater evil than polygamy (as is separate from incest or underage marriage, which all too frequently accompany polygamy with those who practice it). So as far as I’m concerned you’ve said I consider cocaine a gateway drug to pot, not the other way around. It’s much more hard to make a non-religious argument against polygamy than gay marriage.
But yes, the point of marriage is to build up and protect the procreative relationship and that’s why gays should be excluded and also why it is completely legally acceptable to exclude gays as their relationship can not be procreative.
May 23rd, 2008 at 5:28 pm
See Ken, there’s the problem with your argument.
There really shouldn’t be anything evil about polygamy or homosexuals getting married. They’re just two (or three or four) adults deciding to commit to each other with or without raising children.
Because let’s be honest, our society rewards people who get married, and looks down on people who don’t. So everyone should have the right to get married to the person of their choice.
Here’s the question for you Ken:
How does one argue that they’re against homosexuals getting married and at the same time not hate gay people?
May 24th, 2008 at 10:32 am
Bro, if you’re just going to ask ridiculously stupid questions, you’re going to find yourself blocked from commenting on the site, whether your my brother or not.
How can someone be against gay marriage and not hate them? The same way people can be against big SUV’s without hating people who drive them. The same way people can be against tax breaks for homeowners, without hating homeowners. Nobody is arguing that gay people should be jailed for having homosexual sex or co-habitating with a person of the same sex. We’re arguing about whether gay people deserve the PRIVILEGE (did you read the post at all?) of legal marriage.
People can be against a certain activity but be tolerant of those who participate in it. They just don’t want to see that activity ENDORSED by the government and given privileges.
To add in a Christian bent, I’m commanded by God to both be opposed to sin but also to ‘love my enemy’. It’s not appropriate for a Christian to hate anyone, even those who have done far worse than the evil or immoral sex, people like murderers and brutal dictators who starve their people.
To top it off, the reason that your question is particularly ridiculous is because you know me well enough to know that I don’t hate gay people. You’ve seen me interact with the many friends our family has that are gay and know that I don’t act with hatred towards them. Unlike those who just know my work as a blogger who wouldn’t know better, you do.
Stop acting like an idiot.
May 24th, 2008 at 11:15 am
I know I didn’t explain it in the most thorough way, but this is what I meant by my comment:
Our government has arbitrarily decided that gay people can’t partake in a privilege that we extend to straight people. For me, and a lot of people, it’s almost as if the government had always said homosexuals can’t drive a car. Because that’s also a privilege we extend to people. It’s not a right. People with epilepsy can’t drive a car for good reasons, but what’s the good reason gay people can’t get married Ken?
The government isn’t saying they have to get married in your church.
St. Peter won’t suddenly stop allowing Californian’s into heaven.
Your marriage isn’t suddenly diluted is it?
So to quote the great Bill Murray “What’s the big f*****g deal?”
What is it about homosexuals suddenly being granted the privilege our state had previously arbitrarily only given to straight people?
Why do you want to deny them the happiness that you and Wendy share? Because marriage should be a happy joyous occasion that ALL should have the right to partake in.
Marriage is an event, marriage is a commitment, marriage MEANS something to everyone. Marriage is important to all of us on many levels. It’s an institution, it’s something we should all look forward to and not drunkly rush into it ala Britney Spears. Arbitrarily denying homosexuals that is wrong.
So go ahead and block me from commenting on your blog Ken.
You just have to ask yourself how does one argue that gay people don’t deserve the same privileges in life that straight people do, and not appear to hate them?
May 24th, 2008 at 2:05 pm
I’m going to turn your question around on you. You implicitely admit that it was unfair to ask why all who deny gay marriage must hate gays. So you change you questioning to suggest it APPEARS that way.
Fair enough. It is exactly the charge that is leveled against me and others, as you have done and others have done. Apparently to many it has that appearance.
But that doesn’t change that I don’t hate gays. So what you need to ask yourself is “Why is it that Ken is willing to subject himself to the societal appearance of hating a group that he does not in fact hate?”
I mean, if it really don’t hate them and it really is no big deal, why would I subject myself to the ridicule?
Maybe, just maybe, I’ve thought this through and am willing to take the ridicule for a good reason. Maybe, just maybe, I posted this on EMFMV originally knowing that I would take heat over it, but did it anyway because the subject is important. So what I want you to do is read the rest of this comment with an open mind. For a second, put down your pre-conceptions and the arguments you’ve heard before.
Here’s the big picture I see it:
Those in favor of gay marriage insist on framing the discussion around a line of reasoning that completely divorces marriage from its purpose (to protect the nuclear family and the procreative relationship). Before birth control came around nobody was able to deny that marriage and children were synonymous. If you didn’t want children, you didn’t get married. If you were married and didn’t have children, it was considered a heart-breaking letdown. People knew you were infertile and felt sorry for you.
Birth control has allowed many to forget these fundamentals, the fundamentals that make up the purpose of marriage.
However, while birth control has changed things in that many who participate in marriage choose not to engage in the fullness of marriage, it doesn’t fundamentally change the nature of marriage. (As a proof point through an aside, those who criticize the Catholic Church about their stand on birth control routinely argue that birth control does not fundamentally change the nature of the marital act.)
Yet when anyone brings up this fundamental aspect/nature of marriage, they get shouted down as if it’s a ridiculous statement. And the reason they do, is because it is the one argument that is disasterous to those who desire gay marriage to be a reality. Unfortunately, they’ve been successful in convincing both about 30-40% of the US population and apparently the California Supreme Court to deny this fundamental aspect/nature.
So I’ll repeat the point I made to ragnarok: Don’t underestimate the unique importance of the procreative relationship. It IS an important thing. It IS the reason that a man and a woman come together to form a life-long bond. It IS different than a gay romantic relationship. And it IS the reason that the statement “gay marriage” is fundamentally a non-sensical statement.
I wish every gay person happiness. I believe they deserve the right to legal protections for the relationships they have that include the ability to make medical decisions for one another, have inheritance privileges, and the many things that I believe two sisters or bothers who spend their lives together as a family (usually this is seen when they’re both widow(er)s/divorced). Yet all of those protections are available without granting them marriage or even civil unions as currently constructed in California.
What I don’t wish gay people to have is a privilege they don’t deserve, just as I don’t deserve the privilege of maternity leave when my wife has one of our children. A gay couple can no more be married (as properly defined as the procreative relationship between a man and a woman) than I can be a mother. I’m no more being denied my rights or being hated as a father for not getting maternity privileges granted by the state than a gay person is for not being able to marry a person of the same sex.
Marriage IS about children. There is no escaping this no matter how much certain people in our society want to.
Finally, I’d like to address one rebuttal point that I suspect is coming: “Why then doesn’t marriage legally require that you have children or desire them or something like that?” For this I return back to a statement I made back in comment #3 (the response to ragnarok). Legally speaking, it is important that the criteria for a legal privilege is simple, even if that means some get to take advantage of it that should not, in principle, be able to. I leave it to God to sort out those heterosexual couple who entered into a sexual relationship that was not indeed a marriage and were purposely avoiding children. Legally, it is acceptable that it be solely limited to heterosexual couples since it is a simple and traditional way to go about it and generally speaking, accomplishes the restriction desired. (As an example of that, it is becoming more and more common for couples to put off marriage, choosing instead to just co-habitate, until they decide they want to have children).
May 29th, 2008 at 2:31 pm
Ken,
Because I think this topic is interesting, I’m going to respond to a couple of your responses. I don’t think either of us have much of a chance to convince the other, but I still find thinking about and defining our positions to be an interesting and potentially valuable exercise.
First of all, in your rebuttal to my response, you stated “it is not a requirement that the reason a privilege is granted apply to all who are granted the privilege. There are plenty of legal privileges that had to find a simple way to determine eligibility and that eligibility is far more broad than the people being targeted for the privilege.” I would agree with this statement. However, to clarify my position, the criteria for extending a privilege can be just about anything — so long as it is not discriminatory. There doesn’t even have to be a ‘good’ reason, or any reason at all. The government may pass what laws it wishes (and the people are free to vote the government out of office for passing such frivolous laws). When writing a law that extends privileges, the criteria does not have to be exact, but its exactitude is not relevant when discussing whether or not it discriminates. If the criteria does, in fact, discriminate, the government will have to go back and create a new law that does not, and if the new criteria is less precise than before, then we’ll all have to live with that; a just society does not discriminate.
Secondly, you often speak of ‘the reason’ behind marriage laws, or ‘the purpose’ of the institution of marriage. Legally speaking, the intent behind and purpose of any particular law is irrelevant. They may be useful as powerful arguments regarding the wisdom of having such laws, but in deciding whether a particular law is constitutional or not, they have no place. The fact is, many different definitions of ‘the purpose’ of marriage can, and have been, concocted; legally speaking, all we have are the resulting laws, and those attempting to infer ‘purpose’ behind any particular written law will have a wide range of options to choose from.
(A small, off-topic example: why do we have jails? To punish wrongdoers? Or, as the name ‘Department of Corrections’ implies, to try and rehabilitate lawbreakers? A combination of both? Your answer will inform your concept of what jails *should* be, and what laws and regulations to pass in relation to them, but it has no effect on whether having jails is a legally permissible thing for the state to do.)
Finally, what about the case of gay couples that are having/raising children (through various non-traditional means)? By not allowing them to marry, are they not being discriminated against too? Whatever you may think of this situation morally, or the wisdom in having children raised by a single-sex couple, it does happen, and those couples seem especially entitled to the privileges commonly extended to married couples.
Anyway, that’s the extent of my legal arguments. However, since we’re now on your catholic blog, I thought I might share a couple thoughts on the subject regarding what sort of laws might be ‘wise’ or ‘moral’.
Personally, I think that what the government should be interested in promoting and protecting is stronger families. However they may occur (and the traditional nuclear family is but one permutation that “family” now occurs in), whole, healthy families will give strength to each of its members, especially to the children raised in such families. Society has a vested interest in promoting more healthy, well-adjusted individuals, and anything that can be done towards that end is, in my view, a good thing. But then, I’m sure that I don’t have to convince you, Ken, of the wisdom in or value of family.
The other thing I think government should be doing is leaving people alone. While promoting and encouraging behavior that benefits the rest of society is certainly the business of society at large, I have no interest in telling consenting adults what they should or shouldn’t be doing, so long as nobody else is harmed. This extends from sex and marriage laws to the use of recreational drugs. If two people want to get married, I couldn’t care less; good luck to them both. I also don’t feel that gay marriage somehow dilutes the institution of marriage (frivolous marriages and quick divorces do much more in that regard), nor do I feel that it somehow reduces the effectiveness of marriage’s ability to promote procreation. Has there ever been a case of a heterosexual couple, upon learning that gays were being married, deciding that they no longer wanted any part of the institution of marriage?
Your brother also brings up an interesting point about polygamy. It is very difficult to make an ‘adults who love each other should be allowed to be married’ argument without also tacitly permitting polygamy, and indeed I won’t attempt to. In theory, I have no moral issues with polygamy (as long as *all* parties are consenting), specifically the sort of loving family depicted in the HBO series ‘Big Love’. Of course, in practice polygamy has been associated with all sorts of awful crimes such as incest and child abuse, and it may be that polygamy is like communism in that it only works in theory.
In conclusion, I certainly wish society could have more of the sort of civil discussion on difficult topics that we’ve been having. I wish I could say I was surprised that you received some hate mail for publishing your views, but I am not. Cogent argument is a precious commodity in our present political climate, and it is far to common to meet it with impassioned cries that bear little resemblance to reasoned thought. At least when we blog about sports, the outcomes are ultimately of little consequence; political disputes, on the other hand, are far too important to let devolve into muckraking shouting matches.
May 29th, 2008 at 3:47 pm
Rag, I’m glad you replied. While we obviously don’t agree on this matter, I think we share a healthy respect for one another and enjoy a good conversation.
You brought up a lot of points, so it’s going to take a while to break each of them down.
Starting with the legal stuff:
I think we’re in agreement in principle here. I even agree that in theory the “why” of a legal privilege is not relevant to whether it is discriminatory. However, in practice, it’s not how things work out. Why certain laws exist do indeed heavily affect whether that law is discriminatory in practice. Since discrimination is often about intent (did I not hire the Jewish guy because he was Jewish or because I “didn’t like his attitude?”), it’s very difficult to untangle them and the court rulings over the last 40 years heavily reflect this. If marriage really is about procreation, then it’s clearly not discriminatory. If it isn’t, then there’s a much more powerful argument that it is. So while I agree that “why” in theory isn’t relevant, in practice it is the only usable mechanism to determine whether something is indeed discriminatory.
That’s why I’ve laid it out in such detail.
Similarly along the lines of gays who adopt (or use other means to have children), there are plenty of people who have children who aren’t married. Marriage is about protecting the procreative relationship. We’ve got plenty of benefits for parents that are separate from marriage so that there are mechanisms to help those who are raising children outside of marriage. Again, going back to the legal arena, of course “seperate but equal” isn’t equal, but the point is that it is the procreative relationship that is being given privileges, not the raising of children. We encourage that separately because it is a separate thing.
On to the moral stuff:
I think where you and I part ways in this area is in “macro-morals” as opposed to “micro-morals”. We’re both completely on the same page regarding the value to society of people who raise children well, including gay people. We’re also on the same page that people should be allowed to do as they please, although I don’t see how disallowing gays to marry prevents them from living their lives as they wish, only in not getting the benefits society wishes to give married people.
So we’re on the same page freedom and children.
But the key statement/question that you make in my opinion is “Has there ever been a case of a heterosexual couple, upon learning that gays were being married, deciding that they no longer wanted any part of the institution of marriage?”
This is looking at the situation in an individual sense not a societal trend sense. While I completely agree that it would be a pretty darned rare case for a heterosexual couple to reject marriage because it is open to a group they wish it wasn’t, what I don’t agree with is that expanding marriage privileges beyond its intent won’t have the macro effect of discouraging marriage.
In fact, we can already see the trend occuring in Europe where fewer and fewer young people are getting married and fewer and fewer still are having children. The numbers have fallen beyond replacement levels and Europe faces a demographic disaster where a very small number of children will be caring for a very large number of old people a generation from now if the trends don’t reverse.
As a father of 3 (and likely more, God willing) who is the sole bread-winner for my family (which is a near requirement with more than 2 children as having a parent at home is critical), I know full well how many sacrifices it takes to get married and start a family. It’s critical that society encourage this. And it’s not just about raising children. It’s about the life-long commitment (as an aside, I completely agree that short marriages are more disasterous to marriage than gay marriage and “no-fault”-divorce is a blight on society, but that’s a topic for a different post.). It’s about a mindset of supporting one’s spouse and one’s family. Unless society puts special emphasis on this, fewer and fewer will be interested. Giving it special legal privileges is one of the keys ways that this is accomplished. Once those privileges are effectively available to everyone, they might as well be available to no one.
The tie between marriage and procreation is a very important one. It is the foundation upon which marriage came into being. Additionally, since procreation is the key criteria for the survival of a society, marriage, with the explicit tie to procreation, becomes a key aspect for the society to thrive. By society explicitely denying the link between marriage and procreation, and allowing gays to marriage explicitely does so, it will have a profound impact on the way people view marriage. While an individual may not say no to marriage because gays can marry, the number of couples who will be interested in marriage will decrease over time as marriage less and less is tied to procreation.