by Micah Tillman
Apparently it’s 1849 all over again. Genderless marriage certificates just became available in California, and Lisa Neff’s AP article on the subject got titled, “Gay couples rush to get married in California” on Yahoo! News.
“Rush,” eh? Perhaps of the “gold” variety? A Canadian relative of mine recently told me:
“Up here, people are reacting with annoyance to this decision in California — because it means that Toronto probably won’t be North America’s number-one gay wedding destination anymore. There’s good money in that sort of thing!”
But sometime Tuesday evening Neff’s headline was changed to, “Hundreds of same-sex couples wed across California.”
I thought the image of trekking to CA hoping to find a richer life was better. But in lieu of that, imagine finding something else instead:
Imagine you are the Federal Government, and you find the Bill of Rights lying around somewhere. You pick it up, wondering what a “right” is. But instead of a definition, you find a bunch of “don’ts”:
“Congress shall make no law . . . abridging [x, y, z].”
“The right to [x] shall not be infringed [or ‘shall not be violated’].”
“No soldier shall [x, y].”
“No person shall be compelled to [x].”
Etc.
Most of our rights in the Bill are “conservative” — if, for the sake of argument, we assume that conservatives are for “limited government” and against “entitlements.” Our rights are governmental limitations rather than governmental obligations.
The only “liberal/progressive” rights — if ,for the sake of argument, we assume that liberals/progressives are for “government assistance” and for “entitlements” — are in Amendments VI and VII. It’s not that government has to stay out of your way if you want a speedy trial by jury and a lawyer. It’s that it has to give those things to you.
In general, the expression of rights as limitations, rather than obligations, runs throughout the Amendments. But with the first wave of post-CA-Supreme-Court-Decision same-sex marriages under way, it’s Amendment XIX that should be on everyone’s mind.
In Amendment XIX one would expect to find “the woman’s right to vote.” Instead, what one discovers is yet another governmental limitation. “The woman’s right to vote” is of the conservative variety.
What the XIXth says is that government can’t keep people from voting because of their sex. That’s it. It could have made voting a liberal entitlement: “Both appropriately-aged male and female citizens of the United States have the right to vote, and that right shall be guaranteed by Congress.”
But it didn’t. It just said, “Government, stop paying attention to voters’ genders.”
And with the passing of the XIXth Amendment — framing voting as a conservative right — the outcome of the gay marriage debate became a foregone conclusion.
That was 1920. But nobody noticed. And as I wrote two weeks ago, even the most prominent of those who argue in favor of same-sex marriage still haven’t noticed.
But once a democratic government has been instructed by its founding document to ignore its citizens’ genders when it comes to the most foundational — one might even say generative — aspect of their citizenship, how could anyone expect it not to go “gender-blind” in every other area?
After all, we show up to our government first and foremost as voters. And once we’ve shown up to it as genderless — once you’ve given up your sex in exchange for getting to vote — it wouldn’t be very consistent to ask for your gender back later.
We’re citizens now, and citizens are sexless.
As such, government shouldn’t notice our genders when we ask for marriage licenses. It can notice our species, number, and age (so no one needs to be worried about legalized bestiality, polygamy, or child-marriage), since we don’t give up the fact that each of us is one human, born on a certain date, to become citizens.
But we do give up our ethnicities and genders to our conservatively-Constituted government.
And that means if government is going to be in the marriage business, it’s going to have to conduct its operation in a color- and gender-blind manner. And that means same-sex marriage is going to eventually become legal, just as interracial marriage has.
For those conservatives who aren’t happy about this, the most reasonable remedy is not to bring gender into the legal definition of marriage. That would be the “positive,” “progressive,” “liberal,” “entitlement” approach to law.
The conservative remedy would be to get government out of the marriage business altogether. That would constitute the ultimate “limitation” of government in this arena.
(And no matter how you feel about conservatism or homosexuality, there are three good reasons for wanting to de-legalize marriage.)
But if conservatives aren’t willing to push for this, they’re going to have to accept that “conservative” rights often have “liberal” results. That’s the cost of a “smaller” government: more people get to legally do more things.
But lest the progressives/liberals think the inevitable progress of gender-blindness is a victory for them, consider what must one day happen to gender- or ethnically-oriented initiatives like WIC and Affirmative Action. It’s not just “typical” conservative “pet positions” that are endangered by the conservative approach to formulating legal rights.
But what remedy would the progressive/liberal have to combat this encroachment? The liberal/progressive approach to formulating rights (the “entitlements” approach) would require sex and race to be legally encoded. It would force government to recognize your gender and ethnicity — and this would lead to government getting a green light to treat people differently because of their genes.
(Perhaps they could change the Ist Amendment into a progressive right while they’re at it: legalize religion, make it part of our identities as citizens . . . .)
Surely everyone can see the dangers here, so pick your poison carefully.
But do let’s try to be consistent.
Micah Tillman (micahtillman.com) is a lecturer in the School of Philosophy at The Catholic University of America, and curator of the Weeding Awards.