Individual and group discrimination

An interesting question is whether a prohibition on discrimination with respect to a determinable P by itself prohibits discrimination against groups with respect to patterns or distributions of P in groups.

If so, then it would be the case that:

• a prohibition of racial discrimination by itself prohibits discrimination against multi-racial groups

• a prohibition of gender discrimination by itself prohibits discrimination against same-gender couples.

But here would be a more surprising up-shot:

• a prohibition of P-based discrimination by itself prohibits discrimination against groups lacking P-diversity.

After all, lack of P-diversity is just a pattern of P-distribution (akin to same-gender couple, except that same-gender couples are by definition pairs while groups lacking P-diversity will often have more than two members). But that prohibiting P-based discrimination prohibits discrimination against groups lacking P-diversity seems implausible. After all, criticism is one of the forms of adverse treatment that when based on a protected characteristic will constitute discrimination. But it seems absurd to suppose that a prohibition on discrimination with respect to P also prohibits criticism of groups for lacking P-diversity.

If this is right, then a prohibition on discrimination against groups exhibiting particular patterns or distributions of the protected characteristic does not follow from a prohibition on discrimination on the basis of that characteristic, but requires a separate step. Sometimes, of course, that separate step is a no-brainer, as in the case of moving from prohibiting discrimination on the basis of race to prohibiting discrimination against multi-racial groups (including couples).

Let me add that I am neither a social nor a legal philosopher, so it may be that this has already been well-established or thoroughly refuted in the literature.

Marriage and the state

There is a presumption against the state imposing or enforcing restrictions on people's behavior. That's why, for instance, the state does not enforce private promises where money doesn't change hands. Now, marriage has two primary normative effects:

1. Make sexual union permissible;
2. Impose a rich tapestry of duties that the spouses owe to one another.

Most Western jurisdictions do not have a legal prohibition of fornication, however, which makes the first of the two primary normative effects moot with respect to the state (though of course marriage still is needed for sexual union to be morally permissible, as I argue in One Body). In those jurisdictions that do not legally prohibit fornication, the primary legal effect of marriage is entirely restrictive. Hence, in those jurisdictions, there is a presumption against the state's recognition of any marriages at all. (One might argue that the state needs to license marriages in order to render sex morally permissible; but marriage in the moral sense does not require state involvement.)

In those jurisdictions where fornication is not a crime, I think it is helpful to start debate about things like same-sex marriage or polygamy with a presumption against state involvement in any marriages whatsoever, and then ask in what cases, if any, that default negative judgment can be overcome.

(For the record, I do think the presumption can be overcome in opposite-sex cases, because of the connection with procreation. But I am not arguing for this here.)

Marriage as a natural kind

Thesis: Marriage as a natural kind of relationships is a better theory than marriage as an institution defined by socially instituted rights and responsibilities.

Argument 1: On the institution view, we have to say that people in most other cultures aren't married since they don't have the same socially instituted rights and responsibilities. That's bad, since they say they're married when they learn English. The natural kind view holds, instead, that people in different cultures are referring to the same kind of relationship, but may get wrong what is and is not a part of the relationship.

We do not automatically accept educational credentials from other cultures. Thus, being medically educated in France does not automatically make one count as medically educated in the U.S. And being medically educated in 5th century France would make one not one whit medically educated in 21st century France (imagine a 5th century doctor who travels in time). In other words, being medically educated is always indexed to a set of standards. But we don't think of marriage in this way, with a few notable exceptions, such as polygamy or same-sex marriage. Getting married in India is sufficient for being married in France. Why? If one thinks of getting married as assenting to a set of rights and responsibilities, then getting married in India shouldn't be sufficient for being married in France, or vice versa.

Argument 2: The natural kind view explains how we can individually and as a society discover new rights and responsibilities involved in marriage. The institution view leads either to constant abolishment of the old institution and replacement with a new one, or to a stale conservatism. We learn about the rights and responsibilities of marriage experientially and not just a priori or by poring over legal tomes. That is how it is with a natural kind like water.

Argument 3: Suppose we see someone from a patriarchal culture who is failing to care for his sick wife (or at least someone he calls a wife). We might well say: "It's your duty as a husband to take care of her." On the institution view, he can respond: "No, it isn't. It would be my duty to take care of her if I were her husband-per-American-rules, but I am her husband-per-Patriland-rules, and in Patriland wives take care of their husbands and husbands do not need to take care of their wives." But on the natural kind view, we can say: "You tried to marry her, and marriage does require taking care of a sick spouse, regardless of who is of what sex. So either you succeeded at marrying, in which case you have this responsibility, or you failed at marrying, in which case you don't have the rights you thought you gained." On the institution view all we can say is: "You're in a corrupt and sexist institution, and you should divorce to stop supporting it. By the way, you're right that you have no role duty to take care of her."

Argument 4a (for conservatives): If you take the institution view, you play into Wedgwood's argument for same-sex "marriage".

Argument 4b (for liberals): If you take the institution view, you cannot advocate same-sex marriage, but only same-sex "marriage". You have to adopt the very revisionery position that marriage should be abolished, albeit replaced with something very much like it, namely marriage*, since marriage is defined by the social understanding, and that has included opposition of sexes. Moreover, such a view leads to unhappy consequences. Once we have replaced marriage with marriage*, we can't say that our grandparents are married*, only that they are married, and since marriage* is the only relationship available after the revision, you can't do what your grandparents did. Moreover, even allowing our grandparents to stay married is problematic if marriage is an unjust institution. So probably the state needs to dissolve their marriage, leaving it up to them whether to marry*. This is a politically untenable and unhappy view. A much better view is that marriage is a natural kind, and we were simply wrong in thinking marriage is only for people of the opposite sex. This (and Argument 3, too) is a species of the general point that relativistic theses run the danger of leading to stale conservatism.

The concept of marriage

I will give an argument that many people in our society are operating with a concept of marriage that differs in a central way from the traditional Western concept of marriage. I will then say a little on the same-sex marriage debate.

Entry into an institution is largely or wholly defined normatively by what participation in the institution makes permissible, obligatory or impermissible. Some of these normative features of institutions are central to the role that the institution plays and some may not be so central.

In the Western tradition, one of the normative features of the institution of marriage is that it bestows on the couple the permission to engage in sexual relations. Moreover, this normative feature has been quite central to the institution of marriage in the West. For instance, this permission to have sex has very often been one of the main reasons for a couple to marry (St. Paul certainly sees it this way). In fact, of the permissions that the institution of marriage bestows on a couple, it is hard to find any others that are of equal centrality. Marriage bestows a permission to call oneself "married", but that is mainly a word. Most of the other permissions, such as those involving taxation, visitation, living under one roof, etc. are clearly much more contingent in the Western tradition.

But presently, many believe that it can be permissible for unmarried people to have sex. Therefore, entry into marriage is presumably not seen by them as the bestowal of the permission to engage in sexual relations. It is hard to deny that this is a change in a central feature of the concept of marriage. In the past, marriage's normative impact in the sexual sphere of activity was that something previously impermissible—sexual relations—became permissible. Thus, marriage significantly expanded the options for sexual activity. In the present day, marriage's normative impact in the sexual sphere is seen by many as a contraction—rather than allowing previously forbidden sexual activity with a spouse, marriage forbids previously allowed sexual activity with others. This is a very significant change in how marriage works. (I shouldn't say that marriage in the past caused no new prohibitions. For instance, it implied a prohibition against flirting behavior with others than the spouse, etc. But in terms of sexual relations, marriage extended the options.)

I suspect that few advocates of same-sex marriage believe non-marital sex is always wrong. Therefore, they are already operating with a different concept of marriage from the traditional one. Moreover, if one sees marriage sexually as primarily constricting of permissions (prohibiting sex with persons other than the spouse), then it is no surprise that one will have less difficulty with the idea of same-sex marriage—after all, what is wrong, one may ask, with a couple voluntarily constricting what is permissible to them? Expanding what is permissible is a more serious issue.

Thus, I think it is very important that those who believe in the correctness of the traditional Western understanding of marriage not overfocus on the same-sex marriage issue. The issue of fornication—and of divorce for that matter—is probably at least equally important.