Same-Sex Marriage and Equality
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- Williams, R. Ethic Theory Moral Prac (2011) 14: 589. doi:10.1007/s10677-010-9261-8
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Some argue that same-sex marriage is not an equal rights issue because, where same-sex marriage is illegal, heterosexuals and homosexuals have the exact same right to marry—i.e., the right to marry one adult of the opposite sex. I dispute this argument by pointing out that while societies that prohibit same-sex marriage equally permit individual heterosexuals and homosexuals to marry one adult of the opposite sex, same-sex couples in such societies are denied an important right that opposite-sex couples enjoy—i.e., the right to marry. I argue that the right to marry is fundamentally, not an individual right, but a couple’s collective right, analogous to assembly rights.
KeywordsSame-sex marriage Equality Discrimination Individual rights Collective rights Marriage rights
[Defenders of same-sex marriage] want to legitimize the right to marry persons of the same sex. But since heterosexuals lack that right too, this cannot be the proper formulation of the right which they claim to be justified on grounds of equal rights. In the civil rights movement, black persons wanted rights which white persons already had and women wanted rights which men already had. So these groups could legitimately claim that they deserved these rights as a matter of equality. But since no one has the right to marry persons of the same sex, the . . . demand for the right to same-sex marriage is not analogous to the blacks’ demand for the right to study at the same schools as whites or a woman’s demand for the right to vote (McDonough 2005, 52).
McDonough’s argument is important because people often defend same-sex marriage on grounds of equality. In ‘The Case for Gay Marriage’, for instance, The Economist has proclaimed: ‘The case for allowing gays to marry begins with equality, pure and simple. Why should one set of loving, consenting adults be denied a right that other such adults have and which, if exercised, will do no damage to anyone else?’ (2004, 9)
Jeremy Garrett has recently defended a view that he calls ‘marital contractualism’, which applies Nozick’s general defense of the minimal state to the institution of marriage. According to Garrett, marriage should be primarily a ‘private affair worked out between or among partners’, with minimal government involvement (Garrett 2009a, 161; 2009b, 261). Specifically, Garrett contends, the government’s role in marriage should be that of enforcing marital contracts that private citizens freely enter and enforcing any ‘general laws’ that are relevant to those contracts—e.g., regarding property, torts, and crimes that can occur within a marriage (ibid).
In 1967, when the Supreme Court ruled antimiscegenation laws unconstitutional violations of equality, it did so on the ground that such laws were “measures designed to maintain White Supremacy.” A future Court should declare civil-union schemes violations of equality on the ground that they are measures designed to create and maintain Heterosexual Supremacy (Mohr 2005, 91–92).
My review of the literature on same-sex marriage has revealed no replies to McDonough’s argument, despite its potential for undercutting any defense of same-sex marriage that relies on the notion of equality. This paper offers a reply. I argue, contra McDonough, that denying same-sex couples the right to marry is violation of equality. My argument has two basic premises.
First, I argue that marriage is best seen, not as an individual right like free speech and voting rights, but as a collective right—i.e., a right that cannot be exercised by a single individual and thus properly belongs to a social unit that consists of more than one individual: namely, to couples. In this way, I argue, the right to marry is akin to assembly rights, which are collective in the sense that they cannot be exercised by a single individual, since one cannot assemble by oneself.
Second, I argue that while it is true that where same-sex marriage is illegal, individual heterosexuals and homosexuals are equally entitled to marry one adult of the opposite sex and no members of their own sex, same-sex couples in such societies are denied an important right that opposite-sex couples enjoy: the right to marry. The implication is that McDonough’s case against seeing same-sex marriage as an equal rights issue fails because McDonough wrongly assumes that marriage is an individual right. Before developing this argument, however, a qualification must be made.
One may be immediately skeptical of my argument because of its reliance on the notion of ‘collective rights’. Historically, after all, the literature on rights has proceeded on the assumption that rights properly belong to individuals. Thomas Nagel, for instance, argues that ‘rights are a nonderivative and fundamental element of morality’. He continues: ‘They embody a form of recognition of each individual’s value which supplements and differs in kind from the form that leads us to value the overall increase of human happiness and the eradication of misery’ (emphasis added) (Nagel 1995, 87).
Christopher Heath Wellman has more recently discussed Joel Feinberg’s influential paper, ‘The Nature and Value of Rights’ (Feinberg 1980), and Wellman’s discussion also reveals how much analyses of rights tend to presuppose that they belong to individuals (Wellman 2005). Wellman writes, ‘In general, rights theorists agree that (1) only relative duties correlate to rights; and (2) the person to whom the duty is owed is the right-holder’ (emphasis added) (Wellman 2005, 216).
B has a right if and only if B can have rights, and her status as a right-bearer, together with an aspect of her well-being are individually necessary and jointly sufficient for holding some other person(s) to be under a duty; and
an individual can have rights if and only if she is an equal member of the moral community (emphasis added) (Lazar 2009, 291).
Although the literature on rights has been framed predominately in terms of individual rights, my argument is not the first to employ the notion of collective rights. Allen Buchanan, Avishai Margalit and Joseph Raz published on collective rights in the 1990s (Buchanan 1994; Margalit and Raz 1995). In addition, Miodrag Jovanovic has recently argued that ‘collective entities, as potential holders of rights, already exist’ and ‘are not mere bodies of associated individuals’ (Jovanvic 2010, 31).
Jovanovic shares Buchanan’s view that a right is collective when a social unit, or collective, is the primary beneficiary of the exercise of the right (ibid.). On this view, then, a right can be collective even if individuals exercise it qua individuals: even if individuals exercise the right for the sake of their own interests, rather than on behalf or as representatives of the collective. So long as a collective is the primary beneficiary of the exercise of a given right, Jovanovic and Buchanan take the right to be a collective right.
This paper will use the notion of collective rights in a stronger sense, according to which a right is collective when it cannot be exercised by a single individual. While my primary aim is to use the notion of collective rights to refute McDonough’s case against seeing same-sex marriage as an equal rights issue, I hope that my use of collective rights will motivate additional reflection on the concept of collective rights as well.1
2 The Argument
It is tempting just to dismiss—out of hand—the idea that same-sex marriage is not an equal rights issue. Though it is true that where same-sex marriage is illegal heterosexual and homosexual adults are equally entitled to marry one adult of the opposite sex, and though heterosexuals can no more marry a member of their own sex in such societies than homosexuals can, marrying someone of the opposite sex tends to be no more viable an option for homosexuals than is marrying someone of the same sex for heterosexuals. Single homosexuals do not ask their friends if they ‘know any available members’ of the opposite sex, any more than single heterosexuals ask their friends if they ‘know any available members’ of their own sex.
With this in mind, it is tempting to see a marriage institution that grants heterosexuals and homosexuals the same right to marry one adult of the opposite sex as akin to a policy that allows everyone the same right to a transfusion of blood types A, B, and AB. One might object that such a policy would violate equality by discriminating against people with type-O blood. After all, this policy would effectively bar persons with type-O blood from receiving blood transfusions, which those with blood types A, B, and AB would be entitled to receive. Following McDonough, however, one could take such a policy not to violate equality because according to the policy everyone would be equally entitled to receive a transfusion of blood types A, B, and AB. Even persons with type-O blood would have this right; it just would not benefit them.
Regardless of whether one sees it as compatible with or a violation of equality, I take it that this blood transfusion policy would be unacceptable because those with type-O blood would not really be permitted to receive a transfusion if they needed one—i.e., a transfusion of the only blood type that could benefit them. Moreover, given that persons with type-O blood are just as deserving of blood transfusions as anyone else, a policy that did not really permit them to receive blood transfusions would be unjust. This comparison, however, is too strong because one cannot live without blood. To deny persons with type-O blood the right to transfusions of type-O blood would be to reduce their life prospects. This is not true of marriage: One can live without a spouse. We thus need another thought experiment.
Suppose that nation N extended to its citizens the right to assemble but with a proviso. The proviso is that all citizens of N are equally entitled to assemble but not with members of their own ethnicity. According to this policy, then, a Muslim, for example, would be entitled to assemble with a Sikh and a Buddhist and a Hindu (etc.); such a collective could demonstrate and protest as much as it desires. No Muslim, however, would be entitled to assemble with another Muslim, no Sikh would be entitled to assemble with another Sikh, and so forth.
Such a policy would be a logistical nightmare on any realistic understanding of N because nations are heavily populated, which would make it difficult for citizens of N to assemble independently of members of their own ethnicity. For the sake of discussion, though, suppose that N has a very small population and that a logistically viable right to assemble in N would not entail bringing together members of different ethnicities.
[Defenders of same-sex marriage] want to legitimize the right to marry persons of the same sex. But since heterosexuals lack that right too, this cannot be the proper formulation of the right which they claim to be justified on grounds of equal rights. In the civil rights movement, black persons wanted rights which white persons already had and women wanted rights which men already had. . . . [S]ince no one has the right to marry persons of the same sex, the . . . demand for the right to same-sex marriage is not analogous. . . (McDonough 2005, 52).
In my thought experiment, Muslims, Sikhs, and all other citizens of N are equally entitled to assemble with individual members of other ethnicities; and all citizens of N are equally prohibited from assembling with members of their own ethnicity. Following McDonough, then, one could take N to equally grant all of its citizens the right to assemble. But there is a problem here.
While one could argue that, given McDonough’s understanding of equality, all citizens of N have an equal right to assemble, on a deeper level the right to assemble sketched above denies all ethnicities any right to assemble. To apply McDonough’s sense of equality to the right to assemble, one must construe the right to assemble as an individual right—i.e., as a right that individuals have qua individuals. For on this understanding one can say that a Muslim and a Sikh, for instance, each has an equal right to assemble so long as each of them assembles with individual members of other ethnicities. Moreover, given that this right extends to every individual Muslim and Sikh, one can claim that it extends to ‘Muslims’ and ‘Sikhs’. On a deeper level, though, the right to assemble sketched above does not entitle Muslims or Sikhs to assemble. For it does not entitle even a pair of Muslims to assemble with each other, and it does not entitle a pair of Sikhs to assemble with each other.
On inspection, what this right does is to entitle every individual member of every ethnicity to assemble with certain other individuals while prohibiting every ethnicity from itself assembling. The problem is that assembling is an intrinsically collective action because one cannot assemble by oneself. Given that assembling is an intrinsically collective action, in turn, the right to assemble is best seen as an intrinsically collective right—i.e., as a right that properly belongs to a social unit, or collective, which is composed of more than one individual, not to the individual constituents of the collective qua individuals. For an individual cannot exercise the right to assemble as an individual, or independently of another individual.
Permitting individual Muslims to assemble with individual members of other ethnicities no more grants Muslims a genuine right to assemble than permitting individual members of a family to assemble with nonrelatives would grant the family the right to assemble. The right to assemble is an intrinsically collective right that cannot be exercised by a solitary individual, and the right to marry is such a right as well.
I can no more marry by myself than I can assemble by myself. Marriage is an intrinsically collective institution, as assembling is an intrinsically collective action.2 Indeed, while the same-sex marriage debate sometimes degenerates into protracted discussions of polygamy, both proponents and opponents of same-sex marriage see marriage as an institution that couples enter; so strictly speaking, ‘married’ more accurately describes couples than individuals.
Given that marriage is an intrinsically collective institution that couples enter, the right to marry is best seen as an intrinsically collective right that couples exercise. For, again, one cannot marry by oneself; and one thus cannot exercise the right to marry by oneself. Moreover, seeing the right to marry as a collective right that couples exercise renders intelligible the idea that same-sex marriage is an equal rights issue. For while it is again true that where same-sex marriage is illegal, individual heterosexuals and homosexuals are equally entitled to marry one adult of the opposite sex and no members of their own sex, it is also true that same-sex couples in such societies are denied the right to marry, which extends to opposite-sex couples.
One could object to my claim that ‘married’ more properly applies to couples than to individuals, for we obviously describe individuals as married. When we describe an individual as married, though, it is understood that he or she is married to someone: as it is understood that an individual who assembles necessarily does so with another. That is, it is understood that such individuals are members of a social collective. Given this, in turn, it makes more sense, strictly speaking, to see such individuals as exercising their right to marry or assemble, not as individuals, but as members of a collective.
One could also object that my treatment of the right to marry as a couple’s right weakens my case for seeing same-sex marriage as an equal rights issue because couples do not have to marry to live and function collectively as couples: even as committed couples. The question here is: Why extend to same-sex couples the right to marry, or to become spouses, when they can live and function as couples where same-sex marriage is illegal? Two points, however, must be noted here.
First, my aim in this paper is not to show that same-sex couples should be granted the right to marry. That is a stronger, and logically subsequent, claim than the thesis for which I am arguing. My aim is to offer an account of the right to marry that shows it to be a right that does not equally extend to opposite-sex couples and same-sex couples where same-sex marriage is illegal. I have provided such an account above, and my argument is consistent with the idea that the right to marry should not equally extend to same-sex couples. What my argument is inconsistent with is McDonough’s thesis that same-sex marriage is not an equal rights issue, from which it would follow that defending same-sex marriage on grounds of equality is a non-starter.
Under federal laws [in the United States], benefits that apply to married couples do not apply to civil unions. Among these are the following: Social Security survivor benefits, hospital visitation rights, tax-free inheritance benefits, spousal immigration rights, durable power of attorney rights when a partner is in a terminal medical condition, and protection against mutual incrimination that derives from the Fifth Amendment (Stroll 2009, 350).
Moreover, such differences between opposite-sex marriages and same-sex civil unions are not unique to the United States. In Switzerland, for instance, same-sex ‘registered partnerships’ do not confer on couples adoption rights that marriage confers—e.g., the right to adopt children as a couple or the right to adopt a child that one’s partner has from a previous relationship (Leybold-Johnson 2010).
As McDonough points out, though, those who defend same-sex marriage by highlighting such differences between opposite-sex marriages and same-sex civil unions presuppose that those who enter these institutions should be treated equally. In this way, then, these arguments for granting same-sex couples the right to marry assume the logically prior claim that same-sex marriage is an equal rights issue. They do not defend this assumption against McDonough’s argument, as this paper does.
McDonough argues that same-sex marriage is not an equal rights issue because where same-sex marriage is illegal heterosexuals and homosexuals are equally entitled to marry one adult of the opposite sex, and they are equally prohibited in such societies from marrying someone of their own sex. I, however, have argued that same-sex marriage is an equal rights issue. For while individual heterosexuals and homosexuals are equally entitled to marry one adult of the opposite sex where same-sex marriage is illegal, and while such societies equally prohibit individual heterosexuals and homosexuals from marrying members of their own sex, opposite-sex couples that live where same-sex marriage is illegal enjoy an important right that same-sex couples in such societies are denied: the right to marry.
I have supported my thesis by arguing that it makes more sense to see the right to marry as a collective right that properly belongs to couples than as an individual right. My reason for treating the right to marry as a collective right is that, like the right to assemble, the right to marry cannot be exercised by a single individual. One must exercise the right to marry with another, as part of a couple, because marriage is an institution that one can only enter with another.
If I am correct in treating the right to marry as a collective right, then arguments for same-sex marriage that rely on the notion of equality cannot be dismissed as non-starters on the grounds that McDonough presents. Furthermore, if the right to marry is best seen as a collective right, arguments for same-sex marriage that rely on the notion of equality will no longer proceed on the assumption that McDonough’s case against such arguments is unfounded, without its being proven thus.
I am grateful to Marya Rafiq, a philosophy major at California State University, Bakersfield, for research assistance on this article, and to two very helpful anonymous referees for Ethical Theory and Moral Practice.