Sunday, July 18, 2004

Back from hiatus with another disagreement with Den Beste.  Somehow he brings the blogger out of me.  I generally agree with his post about gay marriage and the debate between Sullivan and Lowry, but there is one critical area that I think his arguement falls down.  He writes:
"[Sullivan's] analogy to the apartheid laws doesn't survive close scrutiny. Take, for instance, the laws about miscegenation to which he referred, which forbade interracial marriages. Under those laws, Bob Blonde-and-Blue could legally marry Suzie Snow-White, but Clyde Coal-Black could not legally marry Suzie Snow-White. In objective terms, therefore, the law was discriminatory.

But that is not the case for the law Rich supports. Under that law, Gary Gay-and-Proud would be forbidden to marry Quincy Queer. Harry Hetero would also be forbidden to marry Quincy Queer. However, both Gary and Harry would be permitted to marry Flora Feminine. Objectively, the law treats Gary and Harry equally.

It is true that Gary doesn't have any interest in marrying Flora, and Harry isn't even slightly interested in Quincy. It is true that subjectively the law is unequal, because it forbids Gary from marrying the man he loves, while permitting Harry to marry the woman he loves.

But that's exactly the Anatole France argument: the law forbids both the wealthy and paupers from sleeping under bridges. That law, too, is objectively equal because it applies identically to all. It is irrelevant that only paupers wish to sleep under bridges, and that the law only thwarts paupers."
The problem here is that the law does NOT treat Gary and Flora equally.  Flora can marry Harry or Quincy, but Gary cannot marry either of them.
Let's go further and add another hypothetical character, Linda Lesbian.  Gary can marry Linda, whle Flora cannot. 
I have to strongly disagree with Ben Beste in his assertion that this is unlike the "seperate but equal" standard of years past.  Only people of a Race A could drink from fountain A, while only those of Race B could drink from fountian B.  Likewise, Flora can only marry males while Gary can only marry females. 
Objectively, I don't see any difference between the two.