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Gay Rights: A Question of Fairness
John Draeger considers pairing and parenting; discomfort and discrimination.
The sight of two men walking hand in hand down the street is still likely to raise a few eyebrows. In the minds of many people, same-sex relationships are abnormal, unnatural, just plain gross. This may be understandable given the way most of us have been raised, but discomfort doesn’t justify discrimination. In ‘Lawrence v. Texas’ (2003), for example, the U.S. Supreme Court ruled that anything heterosexual couples are legally allowed to do in bed should be permitted for homosexuals as well (539 U.S. 558). In ‘Goodridge v. Massachusetts Department of Public Health’ (2003), a Massachusetts court extended marriage rights to homosexual couples, arguing that all citizens are presumed to have equal protection under the law (440 Mass 309). The power of such arguments comes not from the fact that courts have issued these rulings; after all, they could have ruled otherwise. Rather, the force of the argument comes from a basic principle of fairness: individuals in similar situations deserve similar treatment unless there is some legitimate reason to treat them differently.
This moral principle isn’t terribly controversial. Most of us believe that voting rights should not depend on being male, and that religious freedom should not be limited to a small set of dominant traditions. The principle of fair treatment seeks to ensure that no one be allowed to take excessive advantage of dumb luck. Men, or members of dominant religious traditions, should not benefit simply because they happened to be born into a system that favors these sets. Things could easily have been otherwise. Indeed, if they had been born into a situation in which they were denied rights on the same grounds, they would object to the arbitrariness of it all. Fairness as similar treatment under similar circumstances is meant to factor out arbitrary differences. It shifts the argumentative burden to those favoring differential treatment by saying ‘you must show why this feature is sufficient to justify different treatment’. Our question, therefore, is whether homosexuality provides a reason to justify different treatment.
In most of our day-to-day activities a person’s sexual orientation doesn’t seem relevant. When I go to buy my morning coffee, for example, I neither know nor need to know anything about the sexual preference of the person selling it. I expect hot coffee, prompt service, and correct change. Little else matters. On my way to work, I want drivers to follow the rules of the road. When I get to work, I want my co-workers to be competent. There is no doubt that gay folks can be lousy drivers and awful co-workers; but it isn’t as if there’s a gay gene interfering with a person’s ability to perform on the road or in the workplace. It is the poor performance that is the source of my irritation, and anyone can exhibit these failings. Similarly, a person’s performance in a wide variety of ordinary situations is independent of her sexual orientation. Because this is true of everyone, sexual preference will not warrant differential treatment in these ordinary circumstances.
Normal Sexuality?
Most of the discomfort surrounding homosexuality probably stems from its association with what some consider aberrant forms of sexual expression. As someone once put it to me: “You wouldn’t put pizza up your nose, would you?”
The claim seems to be that oral and anal sex constitute a misuse use of one’s genitalia. But is that complaint meaningful? Many body parts have multiple functions. Noses can be used for holding up one’s glasses as well as taking in air and filtering its contents. Elbows can be used to hold open a door, turn on a light, and nudge a friend; and I see no reason to suppose that a woman’s breasts must be used for the singular purpose of feeding her offspring. Moreover, such objections to oral and anal sex are at least a little disingenuous, given that many heterosexuals enjoy these activities.
Other objections to homosexuality stem from worries about procreation. The argument goes something like this: the continuation of the species depends on heterosexual intercourse, and the perpetuation of the species is good. Therefore, heterosexual intercourse is good.
Both premises are true, but without further information, this argument is misleading. Humanity faces overpopulation, famine, and disease. Thus the world might be better off if people were having less procreative sex. Thus, heterosexual intercourse should not itself be seen as an unmitigated good. Moreover, there is nothing conceptually incoherent about a world populated exclusively with gay men and women willing to come together (in some fashion) to produce offspring. If the goal is the perpetuation of the species, then this could be achieved in a variety of ways. Not everyone is comfortable with non-traditional forms of reproduction, such as in vitro fertilization or surrogate mothers. Sexual orientation, however, has little bearing on such concerns. If these reproductive alternatives were shown to be ethically problematic, then no one, gay or straight, should be allowed to take part in them: if not, then they should be available to all. Moreover, if the argument favoring heterosexual intercourse seeks to show that sex is legitimate when and only when it is intended for reproduction, then all non-reproductive sex would be morally prohibited, regardless of sexual orientation. This would rule out all forms of recreational sex. Surely this is an unhappy result.
Beyond the issues of recreation and procreation, sex can foster emotional bonds between two people. Yet there’s no evident reason to insist that sexual intimacy be of any particular type. Imagine a heterosexual couple married thirty years. Although limited in variety, sex for this couple was always an intimate expression of their love, trust and friendship. If, however, an automobile accident leaves one of the partners paralyzed from the waist down, it seems reasonable to suppose that they would find alternative sexual ways of showing their devotion. Their new sexuality may not be ‘normal’ or ‘traditional’, but it seems hard to object to it when both partners feel that the new activity is an expression of their continuing love for one another. It is even possible that this new form of expression represents a more powerful emotional bond than their previous more traditional form of expression, because it represents their attempt to carry on together despite life’s many obstacles. And if these two heterosexuals can express themselves in whatever way they see fit without justifiably being considered deviant, then the same should be said of homosexuals who deepen their own emotional attachments through similar activities. In both cases, it is the fact that love is expressed that seems most relevant, and not the form of expression. Because both groups are in similar circumstances, they deserve similar treatment.
Good and Bad Parents
Conventional wisdom may suggest that even if homosexuals should be allowed to engage in various forms of sexual expression, they should not raise children. Perhaps the worry is that gay parents can’t provide the kind of loving home children need.
I invite you to think back to your childhood and consider the most loving and nurturing person in your early life. When you were a child, there were many things that you presumably did not know about this person. It is possible that they were a closeted homosexual. But none of this would matter from the point of view a child oblivious to her caregiver’s sexual activities. Rather, the question is, ‘Was I loved?’ If the answer is affirmative, then it doesn’t much matter what caregivers were doing after hours with other consenting adults. If the answer is negative, then the child has a legitimate complaint; but the complaint is that the guardian failed to give the child proper love and attention. Either way, the caregiver’s sexual orientation isn’t morally relevant.
Lurking in the background are assumptions about the ability to parent. Women are thought to be more nurturing than men, and heterosexuals are assumed to be natural parental material. Notice that if gender is the prime criterion, and women are to be preferred to men in matters of childrearing, then a single gay woman may be better than a single straight man. On the other hand, if the heterosexual orientation of a parent is more important than gender, then the conclusion is reversed.
Conventional wisdom also tells us that two parents are better than one. One assumption is that a child’s primary caregiver should be a woman married to a man who is also living in the home. While that model offers gender balance, many children are raised in wide variety of family structures (as children always have been). The fact is that children can succeed in all sorts of environments, and there is probably no universal answer to the question of how many parents a child needs or what a parent should look like. Rather, the relevant question is always “Is this particular child getting what she needs psychologically?” Moreover, people can turn out to be bad parents for all sorts of reasons. In his essay, ‘Licensing Parents’ (1980), Hugh LaFollette argues that governments ought to be concerned any time there is the potential for people to be harmed. This is why they license drivers, doctors, and pharmacists. While no licensing procedure is perfect, the process can weed out those likely to perform badly. LaFollette argues that licensing requirements should extend to parenting, because the potential harm to children is so great. Anyone concerned with child welfare ought to ensure that parents have the wherewithal to raise them. In fact, the form of licensing he has in mind would be less restrictive than the current licensing of adoptive parents.
If some of the debate over gay marriage is the result of concern for child welfare, then parental licensing might be a way forward. Parental licenses would go some way towards protecting children from incompetent or deficient parents, regardless of their parents’ sexual orientation. If we want to avoid licensing parents in what amounts to a parental competency lottery, then there’s no reason to exclude homosexuals from childrearing. Again, the moral principle at work here is that anyone in a similar circumstance deserves similar treatment. If it can be shown that a particular homosexual person lacks the wherewithal to raise a child, then she should not be a parent. But again, this tells us little about sexual orientation. Anyone lacking the ability to raise a child should not be allowed to be a parent. This is true of everyone, and there are no legitimate grounds for differential treatment of homosexuals.
It is a question of fairness. People in similar situations ought to be treated in similar ways unless there is some legitimate reason to treat them differently. In particular, this means there is no reason to exclude gay individuals from state-sanctioned marriages, the adoption of children, or access to reproductive technologies. This is not a legal argument, but a moral one.
I doubt that most opponents of gay rights will object to the principle of fairness, but some may seek to show that it doesn’t apply to homosexuals. It is for this reason that I have argued that there are no relevant differences between homosexuals and heterosexuals with regards to sexual expression, parenting, or the ability to function in most any other circumstance (as drivers, co-workers, and so on). This means there is no reason to discriminate on the basis of sexual orientation. The argumentative burden is on the opponent of gay rights to demonstrate a difference sufficient to warrant differential treatment.
© John Draeger 2011
John Draeger is Associate Professor of Philosophy at Buffalo State College and is writing a book on respect and disagreement. He would like to thank Jason Grinnell and Kathy Gaye Shiroki for comments.