Sherif Girgis, Ryan T. Anderson and Robert P. George (who I’ll call “Girgis” for short) write:
In short, marriage unites a man and woman holistically — emotionally and bodily, in acts of conjugal love and in the children such love brings forth — for the whole of life. [...]
Nor did animus against any group produce this conclusion, which arose everywhere quite apart from debates about same-sex unions. The conjugal view best fits our social practices and judgments about what marriage is.
I agree with what Girgis says here. The definition of marriage as between a man and a woman (or between a man and multiple women, in many cultures) arose apart from animus against lesbians and gays, because the idea of marriage precedes modern conceptions of homosexuality.
At the same time, I think – and perhaps I’m mistaken – that Girgis, by saying that, intends more than just describing historic sequence. I think they want readers to conclude that because the historic definition of marriage was formed without animus towards lesbians and gays, therefore a modern-day exclusion of same-sex couples from marriage has nothing to do with prejudice against lgbt people.
I don’t think that conclusion is warranted.
Imagine a country in which absolutely everyone is Christian or atheist. In fact, in this country, they’ve never even heard of people who aren’t Christian or atheist.1 This country always schedules elections on Saturday, because the large majority of people have Saturday off from work and Church obligations.
I think it’s fair to say that the decision to hold elections on Saturdays, in this country, has nothing to do with anti-Semitism.
But then a population of devout Jews – large enough to constitute two or three percent of the total population – immigrates to that country. Those Jews, whose religion forbids them from handling pen, paper, or machinery before sundown on Saturday, request that elections to be moved to another day of the week, or replaced with a two-day election weekend.
At this point, circumstances have changed. Although the initial decision to hold elections on Saturdays was not antisemitic, to continue holding elections exclusively on Saturdays, thus excluding Jews from being equal members of society, would be antisemitic.
Note that this would be true even if the “traditional election day” defenders included many people who didn’t bear any personal animus against Jews. What makes the law antisemitic is not what’s inside the hearts of the people defending the law (how could we know what’s in their hearts?), but that it discriminates against Jews, and makes Jews into second-class citizens.
Girgis might respond, quoting their essay, that “Equality forbids arbitrary line-drawing.” They could argue that Saturday-only elections, in my fictional country, are antisemitic because they are arbitrary. But the reasons for holding elections on Saturday – “the large majority of people have Saturday off from both work and Church obligations” – are not arbitrary.
The Saturday election policy is prejudiced, not because it is arbitrary, but because it is indifferent to the legitimate needs of Jews.
This points to a problem with Girgis’ view of equality. If equality merely means a lack of arbitrary line-drawing, then all sorts of prejudiced and unjust results will result, as long as they combine non-arbitrary rationals with prejudicial outcomes.
Real equality is not compatible with laws which unjustly make a large group of people into second-class citizens by depriving them of an essential right, whether it’s the right to form a new family through marriage, or the right to vote.2
- How is this possible, you ask, since the Bible mentions many people who aren’t Christian or atheist, and as Christians they’ve surely read the Bible? And I answer, oy vey! Stop bothering me with these nit-picks and just go with my silly example for the sake of argument, already! [↩]
- Note that certain groups, such as convicted criminals, may justly be treated as second-class citizens. [↩]
- Why Courts Are Reluctant To See Marriage Discrimination As Sex Discrimination
- New Hampshire Votes To End Exclusionary Marriage Laws
- Same-sex marriage and gun laws
- Galios: Sex Discrimination and Sexual-Orientation Discrimination Are The Same Thing
- Court Rules That Anti-Trans Discrimination Is Sex Discrimination