More on same-sex marriage rights here.
In the U.S., 9 states – including Utah, the center of Mormonism – make polygamy a crime, while 49 states have bigamy statutes that can be used to prosecute polygamous families. Polygamy is only legal in North Africa and most of the Muslim world. Does it make sense to promote the right to same-sex, interracial and interreligious marriage, and at the same time oppose polygamy? (By the way, polygamy usually means polygyny: one husband, multiple wives – the opposite, polyandry, is extremely rare).
Marriage is a recognized human right, but does the word “marriage”, as it is used in human rights language, also cover polygamous marriage? From the texts of human rights treaties and declarations, it’s not even clear that it covers same-sex marriage – although it undoubtedly covers interracial and interreligious marriage. The word ”marriage” isn’t clearly defined in the texts. Article 16 of the Universal Declaration merely states the following:
1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Polygamy or same-sex marriage aren’t specifically mentioned as being forms of marriage that are included in the right to marry, but neither is it the case that sexual orientation or the numbers of partners are stipulated as unwarranted limitations to the right to marry. So the phrasing as it stands neither includes nor excludes polygamy or same-sex marriage as a right. Article 23 of the International Covenant on Civil and Political Rights isn’t much clearer.
However, the case for same-sex or interracial marriage can be based on other articles, such as the non-discrimination provisions. Article 2 of the International Covenant states:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Sexual orientation is not mentioned but it is accepted that the list given here is a list of examples and not exhaustive. “Without distinction of any kind” is clear enough. Article 3 states:
The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
And Article 26:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
It’s not clear whether polygamists can invoke the same non-discrimination provisions. Perhaps the right to privacy can help them. Article 12 of the Universal Declaration:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence… Everyone has the right to the protection of the law against such interference or attacks.
However, apart from the question whether polygamy can be defended or not on the basis of existing human rights law, there are some good reasons why perhaps there shouldn’t be a right to polygamous marriage, even if it can be established that there is such a right. Wives may be pressured into polygamous marriages or prohibited from exiting them; they may suffer inequality and oppression in their marriage; and young girls may be forced to marry. The same risks exist of course in normal monogamous marriage, but are perhaps more important in polygamous marriage.
Moreover, polygamous marriage poses certain risks that are non-existent in normal marriage: excess boys in polygamous communities are often ostracized and condemned to a life of poverty and homelessness; and there’s a risk that marriage as an institution and as a general right may suffer when polygamy becomes widespread:
Polygamy is bad social policy for exactly the reason gay marriage is good social policy: everyone should have the opportunity to marry. Broad access to marriage is important not only for individual wellbeing but for social stability. And, to oversimplify only a little, when one man gets two wives, some other man gets no wife. There’s no better path to inequality, social unrest, and authoritarian social structures than polygamy. (source)
And yet, if it’s the case that
then why would anyone oppose polygamy? Monogamous marriage isn’t illegal because some wives are beaten or because there are some cases of monogamous child marriage. One could oppose polygamy for religious reasons, but those aren’t sufficient in liberal democracies. Polygamy can only be problematic when it’s a practice that regularly and intrinsically leads to rights violations, as it does when child brides are common, when wives are commonly forced into marriage or when widespread polygamy makes it very difficult for men to find brides and marry.
Another thing to consider is gender equality. Even if polygamy is rare enough not to deny men a reasonable chance of marriage, and even if all polygamous wives are adults who freely consent to their marriage and who have equal standing within their marriages, then it’s still the case that the practice itself can signal gender inequality and hence perpetuate it. The reason is that polygyny, by its very nature, signals that men have more rights than women: a man can take several wives, but not vice versa. A legal right to polygamy would of course also entail a right to polyandry, but it’s unlikely that the risks to gender equality created by polygyny would be offset by many cases of polyandry. The more likely result is that polygyny fosters preexisting misogynistic prejudice because polygyny will always be more common that polyandry.
So, in the end a lot depends on how often polygamy results in rights violations. Is polygamy more like child marriage, which by definition is a rights violation (it involves pedophilia, the denial of education, health problems resulting from pregnancy at an early age etc.)? Or is it more like monogamous or same-sex marriage, which may produce rights violations such as domestic violence, but not intrinsically so? If some practice by definition violates rights, it should obviously be prohibited. If the practice only does so by accident and exceptionally, then it should in general be protected, especially when the practice itself is a human right. I claim that there is nothing inherently wrong with polygamy, as long as it’s not set up in such a way that it violates rights – as long as in most cases the wives consent (in an informed way), children are left alone, boys aren’t ostracized, and the practice isn’t so widespread that men can’t marry or that women feel they are second class citizens.
In this respect, polygamy is similar to hate speech. In the case of hate speech we are also dealing with a presumptive right, but one that can be abrogated when its exercise becomes too widespread with negative consequences for the rights of others. When a small black minority for instance is overwhelmed by hate speech, to such an extent that black people can’t go outside for fear of constant insult, then their right to freedom of movement should trump the speech rights of the haters.
For a more pessimistic view on polygamy, go here. Below a map showing the prevalence of polygamy/polygyny:
Senator Rob Portman (Republican from Ohio) in June 2012: says he doesn’t believe it should be illegal to fire someone for being gay because making this type of bigotry illegal would also make businesses less “comfortable” and less willing to hire (source).
Senator Rob Portman in March 2013: has renounced his opposition to gay marriage, telling reporters from Ohio newspapers Thursday that he changed his position after his son Will told the Ohio Republican and his wife Jane that he is gay (source).
Better dubious progress than no progress you may say. I say it’s a pity that this is what it takes.
More posts in this series are here.
Here are some serious people making serious versions of these arguments:
For those of you who have clicked on any – or, God forbid, all – of the links above, I’m truly sorry I made you do it and I forgive you if you take this as sufficient reason for not visiting my blog ever again.
Let’s assume that the likelihood of a successful revolutionary overthrow of an authoritarian regime depends on how many people are involved in anti-government protests. (That’s a reasonable assumption, given the fact that mass opposition can grow so wide that repression becomes too costly. We’ve seen that recently in Egypt and elsewhere. See also here). If that is correct, then political freedom and respect for human rights (the latter almost always resulting from the former) depend on large numbers of individuals participating in protests. (It also depends on many other things, obviously. Democratization is a hugely complex process).
The next question is then: when will large numbers of individuals actually participate in protest and a revolution? A single individual will decide to participate after he or she has analyzed the possible costs involved. One element of the cost is the chance of being arrested, beaten up by the police or getting shot. The more people participate in the protests, the lower the probability for each individual of incurring this cost. It’s simply less likely that you get arrested, beaten or shot when there are many people surrounding you. In order to get many people involved, it’s therefore important that every individual has the impression or conviction that many people will be involved. This conviction can be encouraged by social networking websites, such as Twitter or Facebook. Communication about the protest through these media helps to spread the conviction that large numbers will be participating, which will encourage large numbers to participate.
One could argue that something similar happens in cases of racism, discrimination or bigotry. For example, when large numbers of gays and lesbians are allowed to marry, people who initially frowned upon same-sex marriage are now confronted with lots of married gay couples and may start to realize that their initial fears were unfounded. On the other hand, the close proximity between slave holders and large numbers of slaves didn’t reduce racism. Likewise, a larger number of immigrants usually – but not always – leads to more widespread and more intense anti-immigrant feelings rather than less.
Something more positive happens with the numbers involved in gendercide. When the number of sex-selective abortions reaches a certain point, the remaining women may start to escape their inferior position which was the original cause of gender selective abortions. They may do so because their bargaining power will increase: the gender ratio is now 1:<1 rather than the natural 1:1, and men – the majority of whom will still want a wife, I assume – will conclude that it’s necessary to make concessions to women as a means to gain the upper hand in their increasingly competitive struggle for mates.
When reporting of rape is taboo, rape will remain common. But when more and more women start to report rape, the stigma will move from the victims to the perpetrators. Also, when large-scale reporting makes people aware that rape is a widespread phenomenon, women will increasingly adapt their behavior so as to limit the risks. On the other hand, common knowledge of the widespread occurrence of rape can give (certain) men the impression that the practice is normal and acceptable.
More collections of human rights images are here.
The large increase in 2008 in the numbers for the US (the green area, pushing up the yellow area for South Africa, where the numbers did not actually rise in 2008), followed by a similarly large decrease was due to the recognition by California courts of same-sex marriages, and the following reversal resulting from “Prop 8“, a popular vote that abolished the right. (The most recent turn of events is that Prop 8 has been judged unconstitutional by a Californian Court).
More on same sex marriage rights here and here. Some data on public opinion regarding this matter are here. A discussion of the conflict between same-sex marriage and religious liberty is here and here.
Both straight and gay adoptive parents [in the U.S.] are likely to exhibit racial and sex-based biases when applying to adopt a child, a new study finds. … The authors found that girls are consistently preferred to boys. For non-African-American babies, for example, the probability that a prospective adoptive parent expresses interest in such a baby is 11.5 percent if the baby is a girl and 7.9 percent if the baby is a boy.
Interestingly, in many cultures the preference for biological children runs in the opposite direction, with parents strongly preferring boys instead of girls. The authors suggest that this preference for girls in cases of adoptive children may be because adoptive parents “fear dysfunctional social behavior in adopted children and perceive girls as ‘less risky’ than boys in that respect.”
Additionally, Caucasians and Hispanics are consistently preferred to African-Americans. The probability that a non-African-American baby will attract the interest of an adoptive parent is at least seven times as high as the corresponding probability for an African-American baby. The desire for white babies can be partly, but not fully, explained by the fact that most of the adoptive parents in this data set were white; previous research has found that adoptive parents often want children who look similar to themselves. …
In some ways, gay adoptive parents were more “selective”. Somewhat ironically (at least considering the continued social prejudice against their own family structures), same-sex couples and single women appeared to exhibit even stronger prejudice in favor of girls and against African-American babies than their opposite-sex couple counterparts. (source)
This paper finds that the cost of adopting a black baby needs to be $38,000 lower than the cost of a white baby, in order to make parents indifferent to race. Boys will need to cost $16,000 less than girls (source). The latter point seems to contradict the son preference for live births in many countries (leading even to gendercide).
For me, as an agnostic, the question of the place of religion in a democracy is an important one, although I believe the question would be just as important if I held a religious belief or if I were an atheist. There’s no doubt in my mind that the full protection of human rights and civil liberties for all citizens can be jeopardized by misconceptions about the proper role of religion. Take, for example, the rights of homosexuals, the rights of non-believers or adherents of other religions, women’s rights etc.
At the most basic level, this is a problem of tolerance. We should not impose our beliefs, moral values and practices on others if these others don’t inflict harm, even if we think other people act immorally from the point of view of our religion. And neither should we discriminate people when they act or speak or think in ways that are incompatible with our own beliefs. These two prescriptions are based on the need for respect. We would show disrespect for other people if we were to force them to act according to our own beliefs. And the need for respect is, in turn, based, on the importance of freedom. Other people value their freedom to act according to their own beliefs. Let’s take two examples:
But the problem goes beyond the level of relations between citizens. The question about the proper place and role of religion in a democracy isn’t limited to the problem of how we treat each other in our daily lives, how we treat our wives and children, our gay or “infidel” neighbors or employees etc. In a democracy, the people translate their beliefs in legislation and government policy. Hence we should ask to what extent people can use their religious beliefs as the basis or reason for legislation.
Here I take a nuanced position between the two extremes: between a complete lack of restrictions on the role of religion in democratic legislation, and a complete exclusion of religion from democratic legislation. So the question becomes one of degree: to what extent can religion be the basis of law? When is it allowed, and when is it no longer allowed for religious reasons to be the reasons for government coercion?
I think that the problem arises when the legal coercion resulting from religious reasons violates the human rights and civil liberties of individuals, and that any religiously inspired legislation that stops short of such violations is acceptable. Some would say that even legal coercion based on religious reasons that doesn’t violate the rights of individuals is reprehensible, but I don’t agree. An argument in favor of this more restrictive approach could go as follows. Legislation based on religion automatically implies disrespect for people of other religions and for non-believers, since the religious reasons used as a basis for this legislation are likely to be exclusive to a particular religion. Only religious reasons which are sufficiently vague so as not to be exclusive to one religion can then be acceptable religious reasons for legislation. An example: charity can be an acceptable religious reason for legislation, because it’s not a reason that is exclusive to one religion, perhaps not even to religion as such. Laws regarding the sabbath, on the contrary, would not be an acceptable reason for legislation, even if it produces legislation that doesn’t violate anyone’s rights. Or the argument could be that only a law that is supported at the same time by religious reasons and non-religious reasons is acceptable, and that laws that are supported only by religious reasons are unacceptable, even if they don’t violate anyone’s rights.
I think that goes too far. Disrespect should be avoided, but I don’t see why the avoidance of disrespect should automatically override legitimate religious concerns. It’s not even clear to me that there’s necessarily disrespect involved in the use of exclusive religious reasons as a basis for legislation. It’s certainly not the case that such legislation necessarily means forcing one religion on people of other faiths or of no faith. If that would be the case, we would have legislation that violates the rights of individuals (namely the freedom of religion). And that would violate my own rule stated above.
However, legislation that is based on exclusive religious reasons does involve coercing people on the basis of a doctrine that they don’t accept. But, again, if this coercion doesn’t result in rights violations I can’t see what would be wrong with it. Laws by definition force people to do things they don’t accept or to abstain from doing things that are essential to them. I don’t see why there should be laws in any other case.
To summarize, religious people can advocate and – if they are in the majority - implement laws on the basis of their own, exclusive religious reasons, as long as the human rights and civil liberties of all are respected. A religiously inspired law banning same-sex marriage would therefore not be acceptable; a law instituting a religious holiday on the contrary would be acceptable. In the words of Habermas:
The liberal state must not transform the requisite institutional separation of religion and politics into an undue mental and psychological burden for those of its citizens who follow a faith. (source)
More here. On the other hand, religious people should also refrain from imposing a burden on the rights of their fellow citizens.
Some would say that even my rule is too restrictive on religion. For religious people, religion is not only a personal and private conviction but also the law of humanity. Forcing them to forsake the legal implementation of their religious views means taking away their identity, forcing them to be what they don’t want to be. Their religious beliefs are political beliefs and always trump opposing political beliefs. It’s intolerable for them to be forced not to implement their beliefs by way of legislation, or to submit to political decisions that are not based on their religious reasons. It’s indeed a good question: can religious people really accept democracy, given that God cannot be in the minority and God’s commands are absolute and trump opposing majority decisions? Democracy seems to be unacceptable from a religious point of view. However, catering to this view would mean forfeiting democracy, majority rule, the free choice of others, respect for others, freedom of religion, and human rights, and replacing all this by absolute theocracy. I don’t think that’s a price many are willing to pay, and not even many religious people as I argued here.
Other, older posts on the proper role and place of religion in a democracy:
The geniuses who wrote Texas’ gay marriage ban may have accidentally banned all marriage in the state, according to one Houston lawyer. Subsection B of the ban, a constitutional amendment ratified in 2005, states, “This state … may not create or recognize any legal status identical or similar to marriage”. The intent was to prevent even civil unions for gay couples—but it doesn’t actually specify the “gay” part.
The wording essentially “eliminates marriage in Texas”, Barbara Ann Radnofsky, the Democratic candidate for state attorney general [says]. (source)
I explained what I mean by “omitted variable bias” in a previous post in this series, so go there first if the following isn’t immediately clear. (In a few words: you see a correlation between two variables, for example clever people wear fancy clothes. Then you assume that one variable must cause the other, in our case: a higher intellect gives people also a better sense of aesthetic taste, or good taste in clothing somehow also makes people smarter. In fact, you may be overlooking a third variable which explains the other two, as well as their correlation. In our case: clever people earn more money, which makes it easier to buy your clothes in shops which help you with your aesthetics. Nonsense, I know, but it’s just to make a point).
I gave a few examples in the previous post, but found some others in the meantime. This one’s from Nate Silver’s blog:
Gallup has some interesting data out on the percentage of Americans who pay a lot of attention to political news. Although the share of Americans following politics has increased substantially among partisans of all sides, it is considerably higher among Republicans than among Democrats:
The omitted variable here is age, and the data should be corrected for it in order to properly compare these two populations.
News tends to be consumed by people who are older and wealthier, which is more characteristic of Republicans than Democrats.
People don’t read more or less news because they are Republicans or Democrats. And here’s another one from Matthew Yglesias’ blog:
It’s true that surveys indicate that gay marriage is wildly popular among DC whites and moderately unpopular among DC blacks, but I think it’s a bit misleading to really see this as a “racial divide”. Nobody would be surprised to learn about a community where college educated people had substantially more left-wing views on gay rights than did working class people. And it just happens to be the case that there are hardly any working class white people living in DC. Meanwhile, with a 34-48 pro-con split it’s hardly as if black Washington stands uniformly in opposition—there’s a division of views reflecting the diverse nature of the city’s black population.
Homosexuals, or LGTB, are a minority that faces different kinds of discrimination, varying from rather moderate forms such as discrimination in family law, over hate crime, to outright criminalization (see here as well) and even capital punishment, depending on the country and the circumstances. Gays suffer rights violations even in countries where human rights normally receive ample protection by the courts and the governments.
Globally, the U.S. does a pretty good job: homosexuality is no longer illegal, and some states allow homosexuals to get married and receive the same benefits as heterosexual married couples. Depending on the survey, many Americans now believe that homosexuality shouldn’t be illegal and that homosexuals should be allowed to marry.
Regarding the public’s acceptance of homosexuality as such (independent of criminalization and marriage rights), the data are still a bit disappointing. A large minority wouldn’t vote for a homosexual presidential candidate, for example. Again depending on the survey, only a small majority or a large minority thinks homosexuality is morally acceptable. But public opinion is growing more tolerant over the years:
Same-sex marriage as well is becoming more acceptable:
This graph may be a bit hard to read but it tracks popular support for same-sex marriage at different points in time, for the different states of the U.S., and it indicates whether same-sex marriage is or isn’t allowed in those states.
Gay marriage has increased in popularity in all fifty states. No news there, but what was a surprise to me is where the largest changes have occurred. The popularity of gay marriage has increased fastest in the states where gay rights were already relatively popular in the 1990s.
Policies on gay marriage are highly congruent with preferences – pretty much, gay marriage is legal where more than 50% of the people support it, and illegal where the policy has less than 50% support. (source)
I often have the impression that people transform the right to free expression into a duty to free expression. And I don’t think that’s a good thing. For example, Muslims in western countries are often told that they should distance themselves from the more violent members of their religion. We require them to speak out against Muslim terrorism.
Another example: politicians, especially in the U.S., are required to speak out on a number of subjects, e.g. abortion, same-sex marriage, their faith in God etc. As if it would be a disaster to elect a politician who happens to doubt about abortion. After all, many people do (myself included).
A somewhat exaggerated view on democratic transparency is undoubtedly a small part of the explanation for this. Democracy can’t function without public knowledge of politicians’ opinions, or without some sense of what our fellow citizens believe (part of democracy is group formation, and group formation is based on discussion and persuasion; and you can’t persuade someone if you don’t know what he or she believes).
But the most important cause of this “duty of expression” is, I think, the manichean nature of contemporary politics. Every issue is painted in black and white, good and evil, for or against. Much of the blame for this lies with former President Bush and his style of politics, although of course he wasn’t the first, nor will he be the last. We force people to express themselves on issues so that we can see if they are with us or against us. And if someone expresses him or herself in a nuanced way we automatically assume that he or she takes a position opposite from our own. For example, if Muslims reject Islamic terrorism but at the same time point to the situation in Palestine, we assume that they really think terrorism is OK, or justifiable given certain circumstances. We can’t accept muddled or nuanced middle ground positions, or positions which change according to the circumstances. Gray isn’t an option.
Clarity, simplicity and certainty are important human objectives, but often they aren’t appropriate in thinking. Of course, sometimes manicheism is the only possible position: you either believe in the holocaust or you don’t; there’s no middle ground, and those who don’t believe in it are either stupid or evil. But when it comes to political or moral opinions (rather than facts), those who really think about them often find themselves occupying a gray, complex and uncertain position.
I suspect that the difficulty to let go of manicheism and to accept uncertainty and nuance has something to do with the nature of democratic politics. It’s hard to vote for nuance, and easy to vote for or against a clear and simple proposition. And simple propositions get more attention, sell better and make it easier to mobilize large constituencies (see the cartoon below). But then again, when we look at political reality, manicheism is much more common in autocratic societies. The public debate on issues which is made possible by democratic societies forces nuance to appear.
The difficulty to let go of manicheism also has something to do with the fear of the other extreme: the paralysis that follows from endless nuancing and thinking. Politics is a realm where decisions have to be taken, contrary to philosophy where thinking is unending in principle.
However, it doesn’t follow from this that decisiveness has to be manicheism. Decisions can be based on nuanced thinking. The risk of paralysis is averted by the realization that our decisions, often taken under the pressure of urgency, are necessary yet provisional, based on the best thinking available at the time, and open to revision when time has improved our thinking.
The (in)famous Prop 8, banning same-sex marriage in California, was approved by a democratic majority. This raises the interesting question whether democracy means something more than majority rule. Does democracy mean that a majority can decide whatever it wants? I don’t think so. That would not be a democracy but a tyranny of the majority. Democracy is much more than simple majority rule. (By the way, dictatorships can also have majority approval, but that doesn’t make them democracies).
The decisions of a majority have to take place within a framework of rules. These rules have two functions.
If a democratic majority decides to enact laws or policies that violate the human rights of minorities (or individuals, or even majorities), then courts have to step in and enforce the rules of the game. This is not judicial activism by anti-democratic and elitist judges infringing on the democratic rights of the people. It’s judges enforcing democracy, but democracy as something more and better than tyranny of the majority.
We have a clear example of all this in the case of Prop 8 (unfortunately, the courts don’t seem to be playing their constitutional role, yet):
It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution. The constitution protects individuals’ basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation. Ted Olson (source)
There is some discussion on whether the courts should be playing a role in this. Some gay rights advocates insist that it is better to work on public opinion and hope for a general public approval of same-sex marriage in the decades to come. Of course this is a useful strategy, if perhaps somewhat naive (who knows what would have happened to the civil rights movement had the same strategy been applied then). However, the dismissal of any role for the courts, for example because of the fear of a popular backlash against equal rights enforced by unelected courts, amounts to a profound misunderstanding of democracy.
From someone on the political “right”:
Changes in the law that bring a little happiness, resolve some painful practical injustices (from hospital visitation rights to the ability to benefit from the spousal Death Tax exemption) and help take the previously marginalized deeper into “regular” society should, probably, be seen as a Good Thing.
The role of the Right should be to shape the way that this change takes place, by building in, for example, free speech and “conscientious objection” protections to those who do not go along. If that’s the aim, a position of outright opposition is not the best place to begin. Andrew Stuttaford (source)
This view on same-sex marriage is a welcome change. Unfortunately, many in the religious right still adopt prejudiced and bigoted opinions regarding gays (which doesn’t mean that all on the right are prejudiced or that prejudice is the monopoly of the right). Of course, everyone is entitled to his or her opinions, bigoted or not. That’s a fundamental freedom. And when these opinions are grounded in religious morality, the issue is not only free speech but also religous liberty. The problem arises when people want to impose their opinions and morality on others by way of the law.
If a Christian believes that gay sex, gay marriage etc. are immoral, then he or she has strong reasons not to engage in such activities. And also to communicate these reasons to others and to try and persuade them to be “moral”. What this person should not be allowed to do is to use the power of the state and the law to force others to be “moral”. The role of the state and the law is not to impose one particular view of morality or religion, but to guarantee a maximum degree of freedom and equal treatment to all citizens.
Religiously wrong, a motive of legislation which can never be too earnestly protested against. Deorum injuriae Diis curae. Injustices to the gods are the concern of the gods. It remains to be proved that society or any of its officers holds a commission from on high to avenge any supposed offense to Omnipotence which is not also a wrong to our fellow creatures. The notion that it is one man’s duty that another should be religious was the foundation of all the religious persecutions ever perpetrated, and, if admitted, would fully justify them … A determination not to tolerate others in doing what is permitted by their religion, because it is not permitted by the persecutor’s religion. It is a belief that God not only abominates the act of the misbeliever, but will not hold us guiltless if we leave him unmolested. John Stuart Mill.
So we should outlaw only an offense to Omnipotence which is also a wrong to our fellow creatures: there have of course been attempts to describe homosexuality among consenting adults as something that can produce harm to others (e.g. children adopted by gay couples etc.), but in my view no successful attempts. (More on the “harm-principle” here).
To come back to the first quote: the “conscientious objection protections” that are mentioned are indeed useful. Proponent of same-sex marriage such as I should take into account the genuine fears of religious people. When we abolish the laws that refuse same-sex couples the right to marry - and hence abolish one instance of the law being used to impose one person’s morality on another – we should make sure that we respect people’s freedom of religion. For example, we should not make it illegal for a Cathholic priest to refure to marry a same-sex couple, or for a Christian adoption agency to refuse to place children with same-sex couples etc. If we were to make such refusals illegal, we would be needlessly limiting the freedom of religion of those people. I have a detailed post here on the need to balance the rights of gays with the rights of religious people.
The graph below shows that public opinion in the U.S. is becoming less opposed to same-sex marriage. In fact, for the first time in a long while (or for the first time ever?) there is a plurality (not yet a majority) in favor of legalizing it. In fact, support is even higher among people in their twenties (mirroring higher levels of acceptance of homosexuality as such among young people; see here), which gives hope for the future.
I have a legal and philosophical defense of same-sex marriage here and here (including a discussion on the possible conflicts with religious liberty). So it’s encouraging to see that public opinion is shifting. Let’s hope it’s not a temporary outlier.
I already stated my position on gay marriage rights here and here. I’m opposed to all forms of discrimination and I’m a staunch defender of equal rights, so same-sex marriage to me is a no-brainer. Although international human rights law doesn’t explicitly grant gays and lesbians the right to marry, the notion of equal rights can be used to counter discrimination of homosexuals, including discrimination of marriage rights. Article 2 of the Universal Declaration states that everyone is entitled to all the rights set forth in it, without distinction of any kind. And the right to marry is recognized in article 16.
Furthermore, article 7 outlaws discrimination. On the basis of articles 2 and 7, many countries have enacted anti-discrimination legislation which outlaws racial discrimination, gender discrimination, sexual orientation discrimination and sometimes other types of discrimination as well. Such legislation punishes citizens who discriminate other citizens, for example restaurant owners refusing access to homosexuals, Jews, African-Americans etc.
However, the Universal Declaration and many constitutions also grant the right to religious liberty. Article 18 states that everyone has the right to freedom of thought, conscience and religion. Now, I think it’s fair to admit that freedom of religion and anti-discrimination laws can sometimes clash with each other (although the importance of such conflicts is often artificially inflated by opponents of same-sex marriage, see here for example). Anti-discrimination laws can force people to do things that violate their religious beliefs, if these beliefs require them to discriminate. Such laws can, if we stick to the previous example, force restaurant owners, who believe that homosexuals and Jews are sinners, to open their doors to homosexuals and Jews. When people are forced to act against their religious beliefs – no matter how bigoted these beliefs – it is fair to say that their religious freedom and freedom of conscience and belief are violated. These freedoms are not contingent on the quality of beliefs. All beliefs and religions, even the most bigoted ones, deserve protection (as long as they don’t cause harm to others of course).
It is not uncommon to see contradictions in the system of human rights. This system is not a harmonious whole. I’ve covered this problem extensively here and here. Rights are not always compatible, in which case one has to decide which of the conflicting rights has priority (or “trumps the other”). The normal (but not the only) rule is the extent of harm caused by a limitation of one right or the other.
In the case of discrimination of people on the basis of their sexual orientation, anti-discrimination laws based on article 2 of the Universal Declaration (or relevant articles of a national constitution) come into conflict with religious liberty (based also on the Universal Declaration or constitutional provisions). Both rights are very important (and I say this as a non-religious person), so the decision in favor of one or the other will never be an easy one.
Take again the example of the restaurant owner. At first sight, the answer seems obvious: let the restaurant owner refuse entry. The harm done by forcing him to grant access is clearly greater than the harm of forcing homosexuals to find another place to eat. On top of that, the restaurant owner can rightfully claim that not only his religious liberty and freedom of belief would suffer from forced access, but also his right to property (and to use it as he pleases). However, on closer inspection, things aren’t so clear. The harm done to homosexuals is likely to be much greater than just a dinner inconvenience. If a restaurant owner is allowed to discriminate, then this sends a signal to others that discrimination is OK. Choosing the side of the restaurant owner is in fact choosing the side of discrimination and legitimizes discrimination, causing harm that is potentially very widespread. After all, in a great majority of cases of people refusing to do something because of their discriminatory beliefs, there is someone else available to do what they refuse to do. So allowing people to refuse in one case because there is someone else who will not refuse (another restaurant), opens the door to a great number of refusals, and hence to widespread discrimination.
Furthermore, many cases are much more complicated than the restaurant case. How about a doctor refusing fertility treatment to a lesbian couple (married or not)? Or a Muslim doctor refusing to treat a female patient? Or a Christian university refusing to grant a gay person a place in its dormitory? Or a Catholic adoption agency refusing to place children with same-sex couples (married or not)? It’s clear that in many of these cases, the rights of those discriminated should take precedence over the freedom of belief of those discriminating because the harm done by discrimination is greater than the harm done by outlawing discrimination.
We should also distinguish between refusal by private persons and refusal by public officials. It seems much less acceptable for the latter to refuse to grant their services to certain types of people. The government should never discriminate people on the basis of religious belief. Governments should be religiously neutral as much as possible, and should respect the separation of state and church.
Anyway, sometimes anti-discrimination laws will trump other rights such as the freedom of religion, and sometimes not. So equal rights for gays, including the equal right to marry, will not “kill” religious freedom as some on the right believe. If we can convince opponents of anti-discrimination in general and same-sex marriage in particular that the concerns of religious beliefs are taken seriously and are not systematically deemed of lesser importance compared to equality, then they may give up some of their opposition. After all, even in those cases in which the concerns of equality are deemed to outweigh the concern of religion, the harm done to religion is not of catastrophic proportions. No one will ever force a priest to marry anyone, or a church to modify its doctrine, or someone wishing to express a preference for “traditional marriage” to shut up. In all these discussions on same-sex marriages, it’s important to keep things in perspective. Hysteric reactions on either side aren’t helpful at all. Compared to other rights violations, this problem is a minor one.
Much of this concerns discrimination in general, not just discrimination in the application of the right to marry. It just happens to be the case that the ongoing efforts to reduce marriage discrimination seem to cultivate the fears of many religious people that anti-discrimination laws will impose even further restrictions on religious liberty when same-sex marriage is recognized by law. These fears, however, are not substantiated by the evidence of countries or states which have, sometimes long ago, recognized same-sex marriage. Another reason to put things in perspective, something which is clearly captured by this quote:
While marriage and religious belief are one creature in the minds of many people, they are separate things in the law. Catholicism and Orthodox Judaism, for example, refuse to recognize secular divorce. But few argue that we should refuse to let people divorce for this reason. One can be divorced under the law but married in the eyes of the church. The statuses can be separated without a diminution of religious liberty. And nobody thinks that this de-linking of the two constitutes official oppression or the obliteration of religious freedom. Similarly, in principle, it should be possible to have a regime in which same-sex couples are married under the law but not married in the eyes of a given religion – all without extinguishing religious faith. Dale Carpenter (source)
UPDATE: As these things can evolve quite rapidly, here’s an updated version of the US map, dated January 2010:
This map takes into account the California repeal of 2008 (California is still partially colored in purple in the first map above), as well as the granting of marriage rights in Iowa in 2009 and in some East coast states.
Here’s another version, comparing the degrees of restrictions on the rights of same sex couples in the different states of the U.S. (there’s a lot of variation between the extremes of a total refusal to grant couples any sort of recognition and a legal right to marry):
UPDATE: and this is the situation dd. Februari 2012:
This is a very detailed map:
UPDATE: during the Presidential election today, November 7th 2012, Maine and Maryland also voted on ballot initiatives regarding same-sex marriage. Majorities of voters in both states approved it.
UPDATE: here’s an animated map for the years up to 2013:
Do homosexuals have a right to marry according to the international human rights standards? Not explicitly. They do not even have the explicit right to be homosexual, but jurisprudence has established that homosexuals should not be discriminated. First of all, all human beings, whatever their convictions, practices, behavior etc., have the same rights. So killing or torturing or arbitrarily imprisoning people is always wrong. And if this is done because these people are homosexuals or something else is irrelevant.
Homosexuality is also protected by the right to privacy. Article 12 of the Universal Declaration of Human Rights:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence… Everyone has the right to the protection of the law against such interference or attacks.
And nothing is as private as sexuality.
Regarding the right to marry, article 16 states:
Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Sexual orientation is not mentioned as an unwarranted limitation. So the use of this article is a weak defense of gay marriage. But Article 2 states:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The “such as” clause signifies that there may be other types of unwarranted distinction. See also Article 7:
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
And, as pictured in the cartoon: gay marriage is not necessarily a threat to the institution of marriage. A gay couple can be as serious about marriage and about raisong children as a heterosexual couple. Those of us who care about the importance of marriage have much graver threats to deal with.