Scriptorium Daily
Perhaps the most powerful argument against Proposition 8, which would restore marriage to what it has always been in California, is that it is “discrimination.”
Dianne Feinstein kept popping up during my Packer’s game to tell me so.
The argument seems to be:
1. X and X’ want to get married, but cannot under Proposition 8.
2. X and Y can get married under Proposition 8.
3. Treating X’ differently than Y is discrimination.
4. Discrimination is always wrong.
Therefore:
Proposition 8 is wrong.
Dianne Feinstein has missed the point of civic marriage. Traditionally, the government has supported marriage as a benefit to encourage the formation of strong families to produce future citizens. There may be other good relationships (friendship for example), but the state hands out no special benefits for them because it has no compelling reason to do so.
The hidden assumption of the Feinstein case is that marriage is a right and not a privilege. We should not discriminate in cases of human rights, but marriage is not one of those rare and precious things.
You don’t have the right to get married . . . not even under California law. You cannot, for example, marry a plant, a comic book character, or your mother. We (rightly) discriminate regarding the privilege of marriage.
On Privilege: A Hypothetical
As a US Senator, Feinstein has access to many privileges that I do not get. She gets nifty license plates, for example, that I cannot get even if I want them. Even if my lifetime ambition was to drive my own car with US Senate tags, I could not do so.
The government will not let me.
If I were to complain, then Feinstein might point out that I should run for the Senate.
Suppose, however, that I was too young to be in the Senate. I would not be able to get the cool tags based on my personal identity. Just wait, the patient Senator might say, time will cure that problem (as it already has in fact!). . . and then you too can run for Senate to get access to the privileges of the office.
Sadly, some hypothetical I might reply to Feinstein: “I am legally blind and shall always be so. I am already discriminated against in getting a driver’s license and so I will never get the nifty Senate plates in a car I drive myself.”
In this case, I have a permanent and relevant feature of self (sight) that will keep me from a benefit and pleasure that Feinstein has. This is discrimination, but it is not bad.
Discrimination is what makes a privilege a privilege. If everybody has it, then it is no longer a privilege!
Governmental discrimination is bad when based on silly, wicked, or arbitrary reasons.
My lack of sight and lack of a Senate career are good reasons to deny me my dream of tooling down the Pacific Coast Highway with my own Senate plates.
If marriage is a privilege and not a right, then it could be sensible to deny it to others based on several arguments.
First, it could be (as most people in the West have believed) that homosexual behavior is wrong. There can be no right to a privilege based on a vice.
Second, there is no vested civic interest in homosexual behavior, whether it is a vice or not. Homosexual behavior by nature will not produce citizens.
Third, children are better off in homes with both male and female role models. Even if a tiny group of homosexual couples will have children, the state has no good reason to encourage such situations, though it might allow them.
Fourth, if persons acting out homosexual behaviors are allowed to marry, then it is difficult to argue why this “right” should not be extended to any person who wants to “marry” any other person. However, history demonstrates that a benefit can become so diluted that it becomes meaningless. Homosexual marriage becomes a “gateway” to allow for the destruction of marriage as a meaningful category.
The Feinstein argument is not, therefore, persuasive. The heart of the Prop 8 opposition is that all opposition to homosexual behavior is silly or wicked. It is really about making a traditional vice (homosexual behavior) a civic virtue.
Here is hoping that California voters restore marriage as a privilege and remove it from the endless list of “rights” that are diluting our freedoms.
