Equal protection of the law

Two American books on giving homosexuals equal protection of the laws (specifically, the right to marry with its attendant protections, privileges and responsibilities) are Evan Wolfson’s Why Marriage Matters: America, Equality, and Gay People's Right to Marry and Johnathon Rauch’s Gay Marriage: Why It Is Good For Gays, Good For Straights, And Good For America.

Marriage as civil rights issue
Wolfson’s book is specifically about the right to marry as a civil rights issue. He starts with a discussion of the social significance of marriage, moves on to a series of vignettes about homosexuals in long-term relationships and what legal protections and benefits they are denied. Wolfson argues against the term same sex marriage because what is wanted is just marriage, just an end to exclusion. The question at issue is not the existence of homosexuals and same-sex relationships, it is about whether the law will give them and their relationships the equal protection of the law. About how difficult the wider society will choose to make their lives and relationships.

Revealingly, arguments against equal protection of the laws typically have as a hidden, or not so hidden, premise that giving homosexuals and their relationships equal protection of the law will change the basic way the society operates. Opponents simply don’t want to provide acknowledgment or legitimacy to homosexuals and their relationships, which do, have, and will continue to exist. Hence such specious comments as homosexuals have the perfect right to marry folk of the opposite gender. What is denied is the right to marry in a way that reflects their natures, their aspirations. Clearly, it is those natures and aspirations that are intolerable.
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There is a considerable amount of empirical information in Wolfson as he takes the reader through various claims made about marriage, against extending equal protection of marriage law and how marriage has changed (dramatically) over the centuries. Thus, the frequent claim of opponents that same-sex couples are inherently worse at bringing up children is not only an assertion without evidence, it is an assertion against the evidence, with studies repeatedly finding that, although two parents are (on average) better than one, it makes no difference, in terms of children’s welfare, whether those parents are of the same sex or not.

On matters Biblical, Wolfson points out that a wide range of reforms have had to contend with opponents quoting Biblical passages against them. (The Biblical support for the institution of slavery is rather stronger than against homosexuality, for example.)

Wolfson sees civil unions as only “half a loaf” because separate is not equal and provides various case studies to illustrate that. But he points out it is easier to get half a loaf if one agitates for the full deal. Civil unions, he argues, is what you get when folk are prepared to acknowledge that homosexuals have relationships that are entitled to legal recognition but are not prepared to go all the way to equal protection of the laws.

Wolfson discusses at length the parallel to previous civil rights issues—which opponents of giving homosexuals equal protection of the laws are at pains to deny—particularly the specifics of the situations of homosexuals. The parallels with the fight over interracial marriage are particularly strong—the opposition, as registered in opinion polls, to permitting interracial marriage when the US Supreme Court struck down bars on interracial marriage was much stronger than opposition in current polls granting homosexual relationships equal protection of marriage law.

Wolfson’s book is a highly readable and comprehensive discussion and primer on the marriage issue, complete with summarising appendices obviously aimed at helping activism on the subject. Rauch’s book is more about the social implications of eliminating the exclusion of homosexual relationships from marriage and is clearly aimed squarely at the concerns of conservatives.

Equality as social improvement
Rauch starts by taking the reader through imaging a world without marriage: the situation homosexuals face. He then examines what folk mean by marriage—dictionary definitions and legal content. The legal content of marriage is actually very thin. (Hence the importance of its social context.)

Rauch argues that marriage is a good thing, that it would be good for gays, that such inclusion would be good for straights and marriage as whole. He also seeks to deal with various arguments against given homosexuals the equal protection of the laws, noting, again and again, how the real objection comes down to, at bottom, to a denial that the concerns of homosexuals are legitimate at all. As Rauch points out, opponents regularly apply to homosexual couples concerns and criticisms they do not apply to straight couples.

Consider the marriage-is-about-procreation argument. Rauch points out that, even in marriages with children, companionship comes before, during and after the raising of children. Marriage vows do not mention children. We neither compel those who have children to marry nor force those who marry to have children nor demand those fail to have children to divorce. About one fifth of male same-sex couples and about a third of female same-sex couples in the US are raising children.

Rauch is against those who want to privatise marriage (take the state out of it altogether) and those who want to substitute for marriage (encourage legal rights to cohabitation, domestic partnerships, civil unions). One of his persistent lines of argument is that, by excluding homosexuals from marriage, social conservatives are greatly encouraging the spread of alternatives to marriage, since it generates a broader interest in creating such arrangements and more popular support for them. And, as ever, what heterosexuals do is much, much more important for the future of marriage than what homosexuals do, in or out. (Essentially, he is arguing it is better to have gays and lesbians inside the marriage tent pissing out than outside pissing in.) But, as he demonstrates, a lot of social conservatives are much more concerned to exclude homosexuals than defend marriage.

Rauch points out that marriage is a contract (recognised by the state), and it is a package of benefits (provided by the state) but it is also a socially recognised state. (Rauch states that a marriage with only two people present at the ceremony is not a marriage [p.34] but medieval Canon law said precisely that, because God was always present and was the witness, a point he then acknowledges a few pages later [p.40]. As he points out, the Church was a latecomer to marriage, as a sacrament it was later still.) Marriage is a constraint, an ongoing and serious mutual project, so needs support, not competitors and undermining: for to fail to recognise responsibilities to undermine them. Civil marriage is a simple answer to the question: how do you prove you are married?

He notes that people use the patterns of life of homosexuals in a situation where they can’t get married as an argument against them being allowed to do so. (But bigotry using the consequences of bigotry to argue for its continuance is hardly new.) Rauch tackles the “gays are promiscuous” argument by pointing out that:
(1) about a fifth of husbands in the US admit to committing adultery,
(2) on that argument, lesbians are a shoo-in for marriage, being notably stable and monogamous (but, again and again, characteristics wielded against homosexuals turn out to not exclude them specifically due to significant numbers of heterosexuals also falling on the “wrong” side of whatever distinction is being made),
(3) when one examines the evidence, gay males are not nearly as promiscuous as legend states. Particularly not as they get older.
(4) the behaviour of folk when marriage is denied to them is not entirely a fair basis for judgement about their behaviour if they were permitted to marry.

85% of past or present human societies on which anthropologists have sufficient data (980 out of 1,154) have permitted polygamy (a husband having more than one wife). Polyandry (a wife marrying more than one husband) is extremely rare. Genuine group marriage (where extra spouses can only be added with the permission of all existing spouses) is also rare. Rauch carefully takes us through why giving homosexuals equal protection of (current) marriage laws provides no reason to change the incentives for all existing families by permitting incestuous marriage and all existing marriages by permitting polygamy (both of which he is firmly against). Since, as a matter of empirical fact, societies have existed which have done all mixtures of permitting or not permitting polygamy along with recognising or not recognising same-sex relationships, he seems on strong ground. (One of the many reckless indifferences to truth which characterise the anti-equality arguments—the claim that no societies have recognised, in effect, same-sex marriages—is simply false: nearly two-thirds of human societies on which we have data have a least tolerated homosexuality and many of them recognised various forms of official same-sex relationships; given that only 15% of human societies bar polygamy, very likely more human societies have recognised formal same-sex relationships than have monogamy as the only form of marriage.)

Rauch characterises the period from about the C13th (when oppression of homosexual activity became notably stronger) to just recently as the Long Dark Age for homosexuals. He notes, but does not make enough of, that homosexuals were not allowed to be public in their relationships for fear of great punishment. He notes that not one of the dire predictions about the consequences of letting homosexuals openly into institutions have come true. (Hardly surprising, since they have always been part of society: the only issue is about whether they can be openly homosexual or not.)

Rauch is very much a federalist. He wants the process of including homosexuals in marriage to go on an experimental, state-by-state basis. (Sensible man he is, he thinks Roe v Wade is an excellent example of precisely how not to do social reform [p.136].)

Rauch is very much about a commonsensical approach to the issue of granting homosexuals equal protection of the (marriage) laws. Incorporating a concern for a specific group (homosexuals) and the interests of the wider society. His problem is, of course, that his opponents hold that homosexuals have no legitimate interests—certainly no legitimate relationships—and that they are inherently the enemies of the wider society. Arguing with that view is as pointless as Jews arguing with Nazis: there can be no dialogue with those for whom you are not a legitimate form of the human and your aspirations are fundamentally perverted.

But there is a wider audience. Which is what Rauch is clearly, and sensibly, aiming at.

Bigotry is always about denying some group is a fully legitimate form of the human, either intrinsically (race, estate, sex, sexuality) or through some act of alleged forfeiture by them (belief, practices). The response denies that the specific difference makes one any less human so exclusion is illegitimate. The defenders of bigotry then express their outrage at the insult of equality being offered and predict dire consequences to the very fabric of the social order if the inferiors are let loose. The pattern has been for the presumption of inferiority to start off being the conventional view and having it break down as folk (particularly younger folk) see the previously excluded group as, indeed, being just folks.

And one thing just folks do is get married. In many ways, marriage is the final act of acceptance. When marriage across class, race, cultural or religious lines is viewed as a part of the fabric of normality, then the battle is essentially won. The only difference in the case of homosexuals is that they—unlike all the aforementioned groups except slaves—are the only ones where marriage itself has been denied them. The rest of the dynamic is the same. And both these books are sensible, clear expositions of the really, we’re just folks and so are entitled to the equal protection of the laws position.