pragmatics first

Hey, why would someone like me be more invested in building a legal defense of gay marriage specifically and a larger lattice of rights to defend gay people generally? Why, maybe because of things like girls getting kicked out of their private high schools because the administration of said high school believes them to be lesbians.

This is why I am concerned with legality, rights and government first. Because right now, today, gay people are the subject of explicit, systematic discrimination. As we have said several times, these are of course connected phenomena, and I want to change both law and culture. But the difference between cultural change and legal change is that, while a lack of cultural change might have left these two young women the subject of social ostracism, they would still have been in school, getting their degrees along with every other student at that school. As it stands, they were kicked out and can now only appeal for restitution after the fact. Similarly, while a legal right to marriage won’t change the neighbors next door who quietly hate their gay, married neighbors, it will leave gay husbands and wives with access to their spouses medical insurance, improved tax status, guarantees to their spouses property in the probation of a will, improved claims to custody of a spouse’s children in the event of death….

The push for gay marriage is not some philosophical flight of fancy; it’s not some airy concern to be hashed out in the mind alone. It has consequences, major consequences, for thousands or even millions of people, and every day the lack of a legal institution of marriage creates hardbreak and headaches for gay people.

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23 thoughts on “pragmatics first

  1. At the risk of sounding like a complete asshole, is it really beyond the pale for a religious school to expel students who violate core moral guidelines? Many religious conservatives are wary of legitimizing gay relationships precisely because they fear legal protections will eventually extend to prohibiting all forms of private discrimination. This example seems to validate their concerns.

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  2. I’m so vain, I probably think this post is about me. but yes, this is the sort of detail i asked for in comments to one ofyour earlier posts on this issue.

    that said, most of the rights you’ve enumerated (if they can be appropriately described as “rights”, at all) are not fundamental, at least legally speaking. that is to say, they are not implicit to the concept of ordered liberty in a civilized society. the rights to which you refer are not analagous to the right to vote, co-habitate, use contraception, etc.

    Let’s unpack these rights:
    1) access spouses medical insurance- having health insurance is, of course, vitally important, but gays in civil unions still have access to their own health insurance through their employer. if they are unemployed , they can get medicaid.
    2) improved tax status- not necessarily so. just wiki marriage penalty.
    3) guarantees to their spouses property in the probation of a will- already available. just draft a will. same goes for life insurance… just add a beneficiary.
    4) improved claims to custody of a spouse’s children in the event of death– you may have a point here. but this is more of a case for amending state law to recognize gay adoption.

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  3. Sorry, I think things like being banned from certain jobs, owning or renting certain pieces of property, or attending certain schools because you are gay are all the sorts of things that we should have legal anti-discrimination laws to protect against, just as we do for race.

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  4. is it really beyond the pale for a religious school to expel students who violate core moral guidelines

    Is being gay a violation of moral guidelines? Where’s the behavior, there? What act would you be punishing them for? What about seeming gay, which is what they were actually expelled for?

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  5. I tend to think race-based anti-discrimination laws are justified by specific historical circumstances. As to your second comment, I think a private, religiously-oriented institution has the right to define what behaviors it considers acceptable. I admit I don’t know where to draw the line between legitimate anti-discrimination laws and giving private organizations and individuals sufficient leeway, but this particular example reveals something of a legal gray area. For example, I find the idea of forcing traditionalist pastors to marry gay couples pretty disturbing. If we allow congregations to exclude certain individuals from marriage ceremonies, why shouldn’t religious schools have similar privileges?

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  6. Quick addendum: This isn’t so much an argument as it is an attempt to clarify my own thoughts on the subject. Tolerance, in my view, requires a certain amount of restraint on both sides of the culture war. If we’re going to legislate equality, social traditionalists need to retain the ability to define their own communities of faith.

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  7. “I find the idea of forcing traditionalist pastors to marry gay couples pretty disturbing.”
    Also, stop with the sillie calumny that churches would EVAH be forced to marry gays. You know that simply isn’t true.
    I am not sure you are Mathic at all at this point.

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  8. I couldn’t agree more that what the school did is morally reprehensible. But the problem is that within the scope of the law is it is written today, it was within its rights to act as it did. A public school is a different story entirely. But we’re not talking about a public school here. (Nor are we talking about adults, which means we have to take the rights and preferences of the parents into account, too; they sent their girls to this school for a reason.)

    Freddie, you are suggesting that we alter the law so that a private school would not be able to (legally) expel these girls. That means that society as a whole is telling a private school that it cannot decide who it will or will not educate, and that goes a little further than I would be prepared to in terms of balancing a law that actively polices against discrimination (which I generally applaud) and some basic freedoms that I’m not prepared to dispense with (even if some people use those freedoms to do things I object to).

    I also take issue with your implication that these girls will not get their degrees. They will have to go to a different school but there is little reason to think that because they were expelled from one private school that they cannot go to a different school later. At worst, they will have to go to a public school. Stipulated that this is a setback to their educations, but it is hardly a fatal one.

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  9. That means that society as a whole is telling a private school that it cannot decide who it will or will not educate

    We already decide that schools can’t segregate on the basis of racial discrimination. I don’t think this is materially different.

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  10. I get the argument about racial segregation.

    But should a religious school be able to discriminate against non-religionists? In this case, it was a Lutheran school, and it charged higher tuition to non-Lutherans who attended. Can’t a Catholic school legitimately say, “This school is for Catholics,” and exclude non-Catholics?

    What you’re saying is that if a Catholic school did that, it ought to be subject to a lawsuit and a court order requiring that the school admit a non-Catholic student. Is that correct, or is there some principled way you can distinguish between religion on the one hand and race on the other, and find perceived sexual orientation to be more similar to race than religion?

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  11. We already decide that schools can’t segregate on the basis of racial discrimination. I don’t think this is materially different.
    * * * *
    The material difference is that this is a PRIVATE, RELIGIOUS school. The latimes article you cited does a great job of explaining the legal basis for allowing a religious institution to limit its membership as it sees fit.

    Also, check out the Kamehameha schools decision out of the 9th Circuit, which ruled that private schools may discriminate on the basis of race under certain circumstances.

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  12. But should a religious school be able to discriminate against non-religionists?
    Yes, because religious affiliation is a choice.
    A student could convert.
    Race and gender and sexual orientation are not choices.

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  13. Matako, while I agree with you that sexual orientation is not a choice, other people would disagree with us. There is also a distinction between sexual orientation and behavior. Finally, some people insist that their religious beliefs are not something over which have conscious control. (Could you really change your religious beliefs just to get into a better school? If so, you probably never took them very seriously to begin with.)

    Respecting civil liberties means giving people breathing room to think, say, and do things that you dislike. These girls are the victims of bigots. It kind of sucks, but at some point, bigots have a right to their keep and act upon their bigoted beliefs. I hope you’d agree that they have the rights to be bigots in their own homes. I would agree that they do not have the right to be bigots when hiring and firing employees. Somewhere in between is a gray area, and this case falls into that third category.

    I respect your position and the moral force behind it. But I disagree with your conclusion.

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  14. jake, your continued insistence on pressing that marriage penalty argument is off the mark. Just because some married couples pay more because of that quirk, does not mean all suffer. Obviously some, maybe most, benefit. So asserting that gay couples do not suffer because they are not allowed to take advantage of federal tax rules is just wrong. Some gays would benefit, some would pay the penalty. I know you will not change your opinion regarding same sex marriage, but jesus, please argue in good faith.

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  15. Bob,

    you wrote:
    Just because some married couples pay more because of that quirk, does not mean all suffer.
    * * *
    Show me where I said ALL married couples suffer from the marriage penalty. As I stated in my comment, it is “not necessarily” the case that married couples attain “improved tax status.”

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  16. But I disagree with your conclusion.
    Try this then.
    Until someone(anyone) can give a valid secular reason that either homosexual orientation or behavior is damaging to society, then your ability to swing your religious fist leaves off exactly where my citizen nose begins.

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  17. Jake, I am referring to your comment #2 above, here it is in full,
    “2) improved tax status- not necessarily so. just wiki marriage penalty.”

    I am not saying you claimed “all” benefit from federal tax regulations regarding marital status. I only pointed out that denying gay couples the right to equal status under the rules is, well, unequal treatment. And your statement is totally disingenuous. I don’t know how I could be any clearer. But let me try once again, some couples win, some have the penalty. And tax rules should not discriminate because of sexual orientation.

    Here is my original comment, read carefully.

    jake, your continued insistence on pressing that marriage penalty argument is off the mark. Just because some married couples pay more because of that quirk, does not mean all suffer. Obviously some, maybe most, benefit. So asserting that gay couples do not suffer because they are not allowed to take advantage of federal tax rules is just wrong. Some gays would benefit, some would pay the penalty. I know you will not change your opinion regarding same sex marriage, but jesus, please argue in good faith.

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  18. this has officially become a pissing match. we’re saying the same damn thing.

    “some couples win, some have the penalty. ”

    yes, that was my point. and it’s not something you appeared to understand until i pointed it out in a separate comment. some gay couples are better off being taxed as individuals, some are not. if you’re desparate to have gay couples treated the same as hetero couples for tax purposes, great, but I have a feeling many gay couples would appreciate maintaining the status quo.

    “I only pointed out that denying gay couples the right to equal status under the rules is, well, unequal treatment. And your statement is totally disingenuous. ”

    No, you didn’t “only” point this out in your last post. You see how the second sentence belies the first? You also accused me of not arguing in good faith because. God only knows why, but it’s probably because I’m reaching a conclusion contrary to yours.

    And if your “only” point was that treatment of people differently is unequal treatment, then congratulations on such a fresh new idea.

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