Comparing the Uncomparable

John T. Kennedy and I have been going back and forth over at No Treason on the issue of gay marriage. Kennedy and I both agree that the best solution would be to privatize marriage completely. But Kennedy objects to the argument put forth by my fellow blogger Randall and I that changing the definition of marriage to include homosexuals, while imperfect, is still preferable to the current legal regime.

Kennedy provides three main arguments for his position:

  1. Marriage is unjust because it provides tax breaks that cannot be enjoyed by single people. Changing the definition of marriage to include homosexuals shifts the burden even further onto single people.

  • Marriage entails other benefits besides tax breaks. These benefits are unjust because they apply only to married people and not to single people.
  • Changing the definition of marriage to include homosexuals will expand the reach of anti-discrimination laws.

    With regard to tax breaks, it is unclear which direction the inequality lies. Does marriage entail an overall tax benefit or tax burden? Regardless, this is merely a shift of taxation from one set of people to another, which does not appear to increase or decrease justice as far as Kennedy is concerned. Fine, and Randall and I have never argued for gay marriage on tax benefit grounds. So this issue is pretty much irrelevant. I suspect this is why Kennedy has stopped using this argument against gay marriage.

    Is marriage unjust because it provides non-tax benefits to married people but not single people? It depends on what benefits we are talking about. Many benefits of marriage come from private organizations, such as hospital rules which extend visitation rights only to immediate family members. I doubt Kennedy objects to these kinds of benefits, since they come from the private sector.

    Other marriage benefits come from legal rights given to married couples, such as the right to make medical decisions for one's spouse if he or she becomes incapacitated. Non-married couples can enjoy these same benefits through power of attorney. Is this unfair? Only if we are willing to extend this same complaint to all contractual relationships. If marriage is viewed as a contract, and Kennedy believes it is wrong for married people to enjoy benefits unavailable to single people, is it also wrong for people who signed a power of attorney to have the right to make medical and other legal decisions for each other, while those who have not signed a similar contract are unable to do so? Of course not, because that was the very reason they signed a contract with each other in the first place. So too, people sign a marriage contract with each other in order to enjoy all of the various benefits associated with marriage. Would Kennedy suggest that, if unspecified in a living will or similar document, anyone and everyone should be able to make medical decisions for an incapacitated person? Or does it make sense to have certain common law assumptions such as who should make legal and medical decisions for someone in a time of crisis? Libertarians who focus their perpetual attention on abstract and imprescriptible rights frequently ignore the importance and necessity of common law and other judicial precedents for interpreting contracts when they do not specifically cover all possible situations.

    Kennedy tries to avoid this criticism with an analogy to a tiresome and fallacious conservative apology: Kennedy claims that "gays are also free to legally marry, they're just not free to legally marry members of their sex." In other words, if I argue that marriage does not constitute unjust discrimination against single people because single people can always enter into a contract to achieve the same benefits as marriage, Kennedy will argue that heterosexual-only marriage does not constitute unjust discrimination against gay people because gay people can always marry members of the opposite sex.

    However, this analogy only works if the legal benefits of marriage do not depend upon who you marry. For example, if all married people got a free Snickers bar from Santa Claus, then this benefit can be enjoyed regardless of who you marry. Gay men could marry lesbian women and still get the Snickers bar. But most of the benefits of marriage--apart from the alleged tax breaks--are closely connected to who a person marries. It is not good enough to say that a gay person who marries his roommate for tax purposes also enjoys the benefits of visitation rights in hospitals and jails and power of attorney for medical care and inheritance, because these benefits are only important for actual family members who love each other.

    It is true that contracts necessarily create "inequalities under the law" insofar as they provide benefits to those who choose to participate in contractual relations. But what is the point of a contract if not for its legal benefits? This is not what people mean when they speak of "equality under the law."

    I will be the first to admit equal treatment under the law has its exceptions. As I wrote in a previous post,

    As long as we live in a second-best world, with a government which maintains a legal monopoly on the use of force, this government should treat people equally under the law, without regard for gender, race, ethnicity, country of origin, religion, sexual orientation, or any other factors that are not immediately relevant to the task at hand. Of course, there are exceptions to equal treatment under the law in a second-best world, and for good reason. For example, if the government must choose a private contractor to build a road, it is reasonable to allow the government to discriminate based on price - the contractor who offers to build the road for the lowest price can legitimately be favored over those contractors who are more expensive. But it is not reasonable for the government to discriminate among contractors based on race, as it did in Adarand Constructors, Inc. v. Pena, 515 US 200, 227 (1995).

    So when people talk about favoring equality under the law, they certainly don't mean the government must treat people literally equally in all respects. What the legal principle generally means is that the government should not give unequal treatment on unacceptably arbitrary grounds, especially those like race, gender, and sexual orientation.

    Kennedy's final argument, that gay marriage will expand the reach of anti-discrimination laws, is faulty on two grounds. First, even if we concede that this will occur, there is still the question of which legal regime is worse: one which violates the rights of bigots or one which violates the rights of homosexuals. Specifically, since I do not like to talk in the language of abstract rights, the choice is between denying bigots the ability to bar gay people from their organizations or denying gay people the ability to share retirement and health benefits, make medical decisions for their spouses if they become incapacitated and unable to express wishes for treatment, file for stepparent or joint adoption, apply for joint foster care rights, sue a third person for wrongful death of their spouse and loss of consortium (loss of intimacy), claim the marital communications privilege (which means a court can?t force you to disclose the contents of confidential communications between you and your spouse during your marriage), receive crime victims' recovery benefits if the spouse is the victim of a crime, obtain domestic violence protection orders, obtain immigration and residency benefits for noncitizen spouse, and obtain visiting rights in jails and other places where visitors are restricted to immediate family, among other benefits.

    Since I do not believe in imprescriptible abstract rights, I have no problem comparing these two different legal regimes, both of which libertarians believe to be unjust, and judge between them to determine which is worse. The harm done to gays by denying them the ability to marry is in my mind significantly worse than the harm done to anti-gay bigots through anti-discrimination laws, just as the harm done to blacks through Jim Crow laws is significantly worse than the harm done to anti-black bigots through anti-discrimination laws.

    Further, and perhaps more importantly, Kennedy gives us no factual grounds for believing that extending marriage to homosexuals will expand the reach of anti-discrimination laws. If anything, the example he gives proves just the opposite. Kennedy describes a situation in which

    Atlanta's Human Relations Committee has ruled that a local country club is in violation of the city's anti-discrimination ordinance by refusing to allow domestic partners the same rights as member spouses. ...

    When institutions and organizations condition benefits on marriage, gay partners often find themselves on the short end of the stick.

    Kennedy concludes from this that "Such legal inroads against freedom of association are happening even in advance of the legal recognition of gay marriage, but who can doubt the process will accelerate with it's recognition?"

    But if gay marriage were already legal, this case probably would not have happened. The country club's policy provides benefits to married couples but not to domestic partners. Although it is possible that if gay marriage was legal, this country club would have changed its policy to specifically exclude gays, it is more likely that the club was either too lazy to make a special exemption to their current benefit system for gay domestic partners, or was using the current legal inequalities as justification for discrimination against homosexuals.

    The problem with Kennedy's argument is that gay marriage has absolutely nothing to do with anti-discrimination laws. Laws already exist which prohibit certain kinds of private discrimination against gays. While I oppose such laws--just as I oppose all laws which violate freedom of association--I have no doubt that anti-discrimination laws will continue to expand regardless of what happens with gay marriage. And Kennedy has not provided any evidence to show why introducing gay marriage would expand the application of these laws. If anything, gay marriage will reduce their use, by both forcing bigots to come out into the open without hiding behind state sponsored discrimination, and by removing any discrimination against gays motivated by bureaucratic laziness.

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    I got to agree with Kennedy

    I got to agree with Kennedy (never thought I'd say I agree with a Kennedy), but for a different reson, insurance and the current legal climate. As it stands, insurance companies offer insurance benefits for a spouse based on a marriage license.

    1. This would open up the slippery slope to including polygamy. Seriously, how much effort would it take for a Mormon or a Muslim to challenge the government based on the first ammendment if gay marriage was allowed? Personally, I think there's a stronger constitutional argument in favor of polygamy than there is for gay marriage.
    2. Homosexual males are more suceptable to catching the HIV virus. It's just statistically proven that there is a higher rate of infection among the homosexual male community than the heterosexual one. Even if a couple was clean, the chances of an extramarital affair infecting both parties with HIV is greater than a heterosexual extramarital affair. This in effect, costs the health care more per homosexual male than per heterosexual male.

    Do my arguments seem far off? Think about how quickly a discrimination suit would arise if an insurance company refused to provide heterosexual equivalent benefits to homosexuals and polygamists. Since insurance companies would not be able to charge more for higher risk or higher benefit parties, they would have to spread the cost out to all insured married parties.

    Also, I believe the marriage benefits for hospitals is a legal issue. Plus, a lot of hospitals are state run as opposed to private.

    Here's where I do my thing

    Here's where I do my thing and wave the "No IPUC's!" flag:
    "The harm done to gays by denying them the ability to marry is in my mind significantly worse than the harm done to anti-gay bigots through anti-discrimination laws, just as the harm done to blacks through Jim Crow laws is significantly worse than the harm done to anti-black bigots through anti-discrimination laws."

    That comparison simply cannot be made, even in the abstract.

    More importantly though, don't you think that argument is strikingly inconsistent with justice? The rights of these people are more important than the rights of these other people, because I say so? Smells fishy to me.

    That's an interesting

    That's an interesting argument Dave. Micha's argument is entirely consequential, and I think he is arguing mainly for the social benefits of govt sanctioned gay marriage. However, he doesn't get much into the market outcomes that might result as unintended consequences. If I understand you correctly, you seem to be saying that the less various businesses can price discriminate wrt to the sexual composition of a couple, the more distored markets will become due to diffusion of costs associated with different compositions of couples.

    I don't understand your first argument. Are you saying that polygamy is, in and of itself, a bad outcome? Regardless of my moral beliefs, I would support the right of multiple people to get married via contract in whatever arrangement they choose, if marriage was completely privatized. Yet, I don't see why the potential for polygamy should be an argument against state-sanctioned gay marriage.

    Well, the second argument

    Well, the second argument isn't about the morality of polygamy, I essentially agree that if three or more people want to get married let them. However, I am saying that Polygamy, by nature of our laws, would put an undue strain on our system as well. I don't want to argue that it would happen, but you could very well have a polygamist suing an insurance company for not covering their spouses at the same cost as a single spouse (due to the nature of wording of their policy). Even still though, a polygamist could take advantage of spousal tax breaks and end up getting money back from the government (though, admittedly, as a single guy I really don't have much of an idea how married people's tax returns look). I do admit though, that that argument is weaker than the second one.

    Dave, Jonathan Rauch talked

    Dave, Jonathan Rauch talked a good deal about your second concern, though he didn't mention it as such. If you read my post about it here, you'll see a reference to an article of his which discusses that point.

    "I got to agree with Kennedy

    "I got to agree with Kennedy (never thought I?d say I agree with a Kennedy)"

    It's difficult in the beginning Dave, but you get used to it eventually.

    For the record I don't find that Micha fairly characterized my arguments, though I don't suppose he intended to be unfair. People can read the argument at the link he provided and decide for themselves. Of course I'll have more to say about this.

    Randall, So what do you

    Randall,

    So what do you think of Rauch's argument against polygamy? How should the standard of equality under the law be applied to polygamists?

    Dave, I agree that gay

    Dave,

    I agree that gay marriage would open up the door to polygamous marriage. So what? If insurance companies don't want to pay for more than one benefeciary, they can stipulate a condition in the contract to only pay for the first spouse, or charge a fee for each additional spouse.

    Regardless, this is no reason to maintain the current legal regime. Suppose we have good reason to not legalize polygamous marriage. Further suppose that there is no logically important difference between the two and to be consistent, one must agree that gay marriage should lead to polygamous marriage. But there is also no logically important difference between gay marriage and straight marriage and to be consistent, one must agree that straight marriage must lead to gay marriage. Yet if we can maintain an arbitrary legal distinction between gay marriage and straight marriage as we do now, then why can't we do the same with regard to gay marriage and polygamous marriage?

    In response to the HIV issue, one reason why HIV has a higher rate of occurance in the gay community is precisely because they do not have the ability to marry. There is little social pressure to refrain from promiscuity, as the law itself prevents them from enshrining their long-term commitments in a marriage contract.

    Further, as far as I know, insurance companies do not have to insure medical conditions that people have prior to purchasing insurance. So if one or both members of a gay couple has HIV prior to purchasing insurance, the insurance company can legally discriminate against them. And if neither member of a gay married couple has HIV, there is much less chance they will get HIV when they are married, as married couples tend to be less promiscuous than unmarried couples.

    Noah, Is it unreasonable to

    Noah,

    Is it unreasonable to compare the actions of a murderer to the actions of a petty thief? Should both get equal punishments in a court of law? Would you be indifferent to associating with either one of them?

    I observe from introspection and from the actions of other people around me that we can and do make such interpersonal comparisons all the time. In fact, we must make them, as a prerequisite for any conceivable legal system. Property rights often conflict. Does my right to blast music at 3:00 a.m. trump your right to a peaceful night's sleep? Does my right to fly in an airplane trump your right to not have large objects flying over your property which have a slight chance of crashing into your property and killing you? And so on.

    Our current available choices between legal regimes do not include the best choice: fully private marriages. We must choose between the current regime and one with gay marriage. Both regimes have some element of injustice. Which one should we choose? You could claim, as you do, that it is impossible to compare the two. I don't believe this is the case, since I do not accept the argument that rights claims never conflict and cannot be compared to each other.

    JTK, I apologize for

    JTK,

    I apologize for mischaracterizing your arguments. I tried to do my best, but of course, you have a comparative advantage in expressing your own ideas. Please let me know if there is anything specific you want me to change.

    In the philosophy of law

    In the philosophy of law these issues are called "partial compliance problems" because they deal with already existing injustices. Libertarian principles, disagree with them though I might, are usually expressed in "full compliance" terms in which there is a purely just state of affairs at the end of the tunnel.

    If there's no clean slate though, we have an issue in which small steps away from ultimate justice can be more just than trying to slowly grope toward one's ultimate ideal. Think of it like rock climbing- climbing toward the summit is not always the best way of getting there, and sometimes you have to move laterally or even climb downward to ultimately get where you wanna go. Right now we're hanging onto a crevice which is dangerously pinching our collective fingers in a tremendously uncomfortable way, and there are no more handholds directly above us. John is telling us that we can't move our hand to the other more comfortable handhold, because it lies slightly below (or more likely to the side) the one we're at now. That doesn't sound reasonable at all.

    To fill in the gaps of my analogy, I should say that my "no more handhold above us" part is intended to signify that abscence of a major popular movement for aboloshing marriage altogether.

    -Matt

    Matt, "Think of it like rock

    Matt,

    "Think of it like rock climbing- climbing toward the summit is not always the best way of getting there, and sometimes you have to move laterally or even climb downward to ultimately get where you wanna go."

    Think of it like threatening innocent people with a gun. Because that's what it amounts to.

    Think of it like threatening

    Think of it like threatening innocent people with a gun. Because that?s what it amounts to.
    eh? Sounds pretty dramatic... I don't follow.

    Micha, Don't worry about it.

    Micha,

    Don't worry about it. These things work themselves out.

    Matt, The expansion of state

    Matt,

    The expansion of state institutions is accomplished by force.

    Okay well property rights

    Okay well property rights are enforced by "a gun" as well, which I suppose you approve of. Obviously this is a pretty big conversation if you want to argue it this way. I get the impression that there are serious tactical disagreements among libertarians regarding the intuitive appeal of their doctrines, and while I don't like the idea of compromising your ideas for practical purposes...

    Opposing equal rights for homosexuals on anti-statist grounds sounds like the end of a reductio ad absurdam argument against libertarianism to me. Meaning that if your "just principles" wind up supporting that which seems so clearly unjust, so much the worse for you principles.

    I realize I haven't said much in terms of argument, partly because your argument relies on a few fundamental assumptions which I'd be glad to argue, but which feel outside the scope of this thread. But the main reason is that I think you ignored the force of my analogy, opting instead to merely change the subject. The idea that the state uses "a gun" to enforce its decrees is entirely consistent with my analogy of taking baby steps away from your aim of ultimate, stateless justice to produce a better world now. Meaning that you didn't respond; you just asserted.
    -Matt

    Arg, I really want to

    Arg, I really want to respond, but I have to wake up in four hours to go see my brother's graduation (a 12 hour drive to Florida).

    a couple of quick rebuts to Micha:

    1. I am not arguing that polygamy is bad. I am trying to argue that a possible outcome of polygamy becoming legal is a polygamist's rate for all of their wives total being the same as a heterosexual couple's (but yeah, this could be worked around by a per-wife rate clause). Particularly as it seems normal to use the court system to force equality where the market does not necessarily see it. I am not saying it's a particularly strong argument though.
    2. The nature of instance of HIV being higher in the homosexual community is not due to promiscuity issues. I think it's a pretty silly argument to argue that they are promiscuous because something as slight as a mairrage license would stop their promiscuity. Some husbands still cheat on their wives, even though they have a piece of paper that legitimizes their relationship, and yes, some gay men would cheat on their spouses if they were legally married.
    Rather the truth is anal sex just happens to be a better conduit for HIV transmission than heterosexual sex.
    Here's a great (but controversial) article on AIDS by Michael Fumento:
    http://www.fumento.com/pozaids.html

    dave, studies have also

    dave,
    studies have also shown that college eductaed women, especially women with doctoral degrees, are significantly more likely to have anal sex (something like 180% more likely) than less educated women. Perhaps we should restrict women from getting an education because of the tax burden.

    Also, you also make a reasonable case as to why Lesbian women should be given liscence to marry over their heterosexual counterparts, as Lesbians are much less likely to ever catch STDs.