"The person as such has been rendered androgynous."
Why can’t people just be tolerant of those with different sexual orientations? This basic question must be pondered by anyone who considers the issues swirling around the current “gay rights” movement. Indeed, the gist of this question was raised last year by the Deputy Prime Minister of Spain, when she wondered aloud why protesters of the new law allowing gay marriage and adoption rights should be so concerned. She observed that the new law “does not oblige anyone to do anything they do not want to do.” The new law does nothing more than open up existing rights to a new minority, she suggested. It does not detract from the rights already enjoyed by the majority.1
For many, perhaps most people, the argument latent in our opening question has an almost compelling force to it. What is this argument? It begins in the presupposition that any objection to “gay rights” generally—and to “gay marriage” in particular—must be based on a morality grounded in private opinion. Because each of us must determine for himself what sort of life would be best, the goal of society and of its juridical structures is to maximize the freedom of individuals to make this determination. Of course, limits on individual freedom would be necessary where the use of that freedom begins to harm someone else or society as a whole. But judgment about any harm to society cannot be grounded in “private morality.
Once moral objections are shown to be grounded in a conflation of the public and private domains, the rest of the analysis falls into place along the lines of standard liberal analysis. “Homosexuals” constitute a particular group in society, whether by choice, immutable predisposition, or a combination of these. This group—again, once private morality is taken out of the equation—is not in any essential way different from other analogous minorities, such as racial or ethnic groups,2 as far as legal and political considerations are concerned. If these minority groups are entitled to protections and the benefits of the majority, why shouldn’t “sexual minorities” also be so entitled?
1. “Gay Marriage Bill Draws Madrid Protest,” The Washington Post (Saturday, 18 June 2005), reported by Ciaran Giles. We find a similar statement from Congressman Barney Frank, in a response to Congressman Henry Hyde: “How does [same-sex marriage] demean your marriage? If other people are immoral, how does it demean your marriage?” (quoted in Michael Warner, The Trouble With Normal: Sex, Politics, and the Ethics of Queer Life [Cambridge, Mass.: Harvard University Press, 1999], 81).
2Both explicit and tacit comparisons of race and “sexual orientation” are ubiquitous in academic and popular literature, as well as in political and legal discourse (Goodridge v. Department of Public Health, 798 N.E. 2d 941, 965, 971 [Mass. 2003]). Legal arguments for gay marriage regularly draw on Loving v. Virginia, 388 U.S. 1 (1967), in which the Supreme Court struck down Virginia’s anti-miscegenation law. Reliance on Loving has nevertheless recently encountered resistance in the courts: cf. Andersen v. King County, Wash. S.C. slip op. 75934-1, at 58 (Wash., 26 July 2006); Hernandez v. Robles, N.Y. slip op. 5239, at 17–18 (2006), although the discussion typically continues to presuppose a framework in which heterosexuals and homosexuals are seen as alternative social categories or “types” and therefore as a “sexual majority” and a “sexual minority.”
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