Subtitled: You Can't Legislate Morality!Got off topic a few weeks ago in an American Lit class. We were discussing slave narratives in conjunction with early feminist writers like Margaret Fuller. The general point had to do with disenfranchisement - the denial of civil rights.
"This is what gays are going through today," one person said. "They're being denied their rights to marry." A general chorus of amens followed.
I raised my hand.
"I don't think gay marriage is analogous to disenfranchisement," I said. "No law is keeping consenting adults from cohabitating." I probably should have left it at that, but I went on to say, "Marriage isn't even a right." I guess that's how we got off topic.
So for the next 20 minutes we all shared our ignorance. The discussion ranged from efforts at defining marriage to personal testimonies of alleged discrimination against some third cousin's step-son's half-brother who couldn't visit his lover in the hospital.
I raised my hand.
First, no law is denying two consenting competent adults from entering into any legally binding or privilege providing contract. The power of attorney addresses health and hospital issues. Co-signing loans and property titles is done all the time. And one's will covers transfer of property after one's death. So what rights are gays being denied?
Second, marriage is a civic institution (albeit one ineluctably molded by religious values) that has inherent limits. It is between two people, for one. (Polygamy, at least the last time I checked, is still illegal, denying the "rights" of its advocates.) It is serial - at least for those who decide to have multiple marriages. (This, too, denies the "rights" of someone who wants to have multiple concurrent spouses - say in different states.) In other words, marriage is not an unrestrained right - it is an already legally defined and self-limiting concept.
So in an attempt to get back on topic, I concluded, "This is why I believe that the issue of gay marriage is not comparable to disenfranchisement of blacks and women in the 1800s."
Someone responded, "But you can't legislate morality."
To me this was a non-sequitur. But that got me thinking. Hmm - I thought - that's exactly what those in favor of gay marriage are trying to do. They are trying to legislate, and thus institute, a particular set of moral values upon/within the broader American culture. Isn't this what all acts of legislation attempt to do? The question is really, whose set of moral values best promote the welfare of society? (And this post is way too short to address that issue!)
Finally, one woman told an emotional story of how a person she knew of was forcibly removed from his home after his partner died because his name wasn't on the lease, etc. The story was a bit convoluted but there seemed to have been some legitimate legal issues that were violated. At the very minimum, human decency was denied this person.
I felt sad for that guy who lost his home. What happened to him was probably not right. Something should be done to change that, and prevent something like that from ever happening again.
But then, I guess you can't legislate morality.
Way to be bold in a college classroom. And you are right. It all comes down to whose morals are deemed right by society...which flows right into your previous post.
ReplyDeleteThough I see the reasoning behind this argument it does over simplify the difficulties faced by gay people and rights. The acceptance of gay marriage is a legal issue and thus does require legislature - or what is really a redefining of the laws in regards to marriage - these exist and are often used to refuse rights normally obtained by married (in the legal sense) couples.
ReplyDeleteIt is easy to say you cannot legislate morality when it is morality that is used as the argument not to recognize gay marriage.
The idea of marriage was never a moral right, it was just an agreement between two people - but over centuries legislation has been introduced to define the meaning of marriage, the rights each person has within the marriage and even the rights of women within the law of marriage. All these are legislated variants of a moral standing.
The idea of legislating morality or even just legislating gay marriage isn't what is required, what is required is as redefining of marriage as it pertains to people of any sexual persuasion.
Two partner swappers can marry, provided they are man and woman. Bisexuals can marry, provided they are man and woman - and dare I say two pedophiles can marry provided they are man and woman. The homosexual position is not as threatening to any social structure as the ones mentioned above, and yet they are privy to all the legal protections provided under the recognition of marriage.
So, it is not a simply idea to be deal with simply - there is a great deal a stake here and I feel more needs to be done to remove the inconsistencies of law and allow two people of any sexual (private)persuasion to marry, legally
Thoughtful response, Robert. Thank you for your perspective. My statement on legislating morality was, of course, ironic. One can not help but legislate from a moral position - we are moral beings, after all. So both sides claim a "morality" that supports their position.
ReplyDeleteThe question, to me, is why the insistence that marriage is a fundamental right. It would seem upon reflection (given the few examples I mentioned above) that it is not. It is, by definition, discriminatory. It provides certain benefits that are not available to single individuals, for example (or those wanting to marry their sibling or parent or have multiple partners, etc). So even if same sex marriage were to be broadly legislated, the discrimination would continue against these and other various classifications of people.
And again, no one is preventing gay people from the rights that are guaranteed by the constitution (I know you're from Australia, but I imagine Aussies have one like ours, lol). (Even then, these rights have limits, like age or felony restrictions on the right to vote.) And, as you mentioned, marriage is open to anyone - even gays, given the relationship is with a person of the opposite sex.
Which is, I guess, the fundamental difference between our positions. Scrape everything away and the crux of the matter is the definition of marriage. Is it already defined as a relationship between a man and a woman (like a triangle must have three sides). Or is it a flexible concept and therefore open to redefinition? That discussion, however, is big enough for another series of posts and interchanges.
Thanks again, Lyn