Anti-Micegenation is a Bad Analogy – and here’s why

Gay marriage is an interesting issue from a rhetorical point of view. I can think of few others where the gulf between what seems superficially convincing and what is actually convincing on closer examination is as great.

Take the analogy between anti-micegenation laws and law prohibiting gay marriage. As an argument with a friend over the last few days has underlined, this is the gay lobby trump card. And, at first glance, it would seem to be quite convincing. Once upon a time there were laws prohibiting people of different races from marrying, and we all regard that as unfair. Therefore, laws prohibiting gays marrying are also unfair. Seems to work, right? Which is why it’s sort of startling to see how quickly it falls apart on examination.

Therefore, laws prohibiting gays marrying are also unfair. Wait, what laws? Is there even a single law in the United States – indeed, has there ever been even a single law in the United States – which criminalizes gay marriage? There are none that I’m aware of. And yet, anti-micegenation laws routinely actually criminalized interracial marriage. As in, go-directly-to-jail criminalized them. The prohibitions against gay marriage simply define marriage as recognized by the government in a particular way. Which is to say, they are not prohibitions in any meaningful sense of the word. You are still free to have a ceremony and live as a gay couple, forsaking all others, till death do you part. The government just declines to recognize what you’re doing as a "marriage." You may consider that unjust, but comparing it to the actual go-to-jail criminalization of micegenation papers over some hugely important distinctions.

Once upon a time there were laws prohibiting people of different races from marrying, and we all regard that as unfair. Yes, once upon a time. The friend I was arguing with labors under what appears to be a common delusion among supporters of gay marriage: that anti-micegenation laws were considered routine and normal, and that they existed everywhere. A quick examination of the historical facts is sufficient to put the lie to that impression. My friend cheats a little by wanting to restrict discussion of anti-micegenaton laws to the settlement of America – as though the entire basis for American civil law weren’t inherited from England. But even if we buy this artificial restriction, the argument doesn’t work. 5 of the original 13 colonies (New York, New Jersey, Rhode Island, New Hampshire, Vermont) never had anti-micegenation laws of any kind, and NONE of the original colonies started out with them. Moreover, the first colonial anti-micegenation laws (Virginia and Maryland in the 1660s) only pertained to marrying slaves and servants; marriage of free blacks remained legal. Point being, interracial marriage was legal and accepted before it wasn’t. Again, that’s an important distinction. Anti-micegenation laws are instances of governments taking away recognition of rights that previously existed – removing from the official definition of marriage marriages which were commonly agreed by force of tradition to be legitimate. Not recognizing gay marriage now doesn’t take away rights that were there before, nor does it declare illegitimate that which tradition and general opinion had previously accepted as legitimate.

Of course, the gay lobby isn’t going to let these obvious inconsistencies stand in the way of playing Civil Rights Movement. The "you’re a bigot!" trump card is so powerful in modern American discourse that giving it up voluntarily is like signing over right to an oil well on your property to a neighbor. But again, if you think about it for a bit, even the discrimination part of the analogy doesn’t work. Anti-micegenation laws, at their heart, weren’t about mean-spiritedness so much as fear of racial mixing. It wasn’t something done to punish blacks for being black so much as to keep blacks separate from whites. So, the proper analogy for a present-day law would actually be a law that prohibited gays from marrying straights, and not a law that reocgnized gay and straight marriages separately. No one is advocating laws that keep gays separate from straights or prohibit gay-straight mingling. Quite the contrary – what the most conservative among the participants in this debate seem to want is for gays to marry straights and pretend to like it. They want gays marrying their daughters, as it were. By analogy, it’s as if they were advocating laws prohibiting blacks from marrying each other while privately encouraging them to marry whites instead! And no, I’m not being (entirely) flippant: the distinction with wanting to keep a portion of the poplation separate and downtrodden is an important one.

Now, of course what gay activists are focused on in constantly calling everyone who disagrees with them a bigot is the idea that rights that they are entitled to are not being extended to them merely because of their sexual orientation. But that is of course the crux of the debate – whether the thing they are claiming a right to exists in the first place. Interracial marriage did. It was widely recognized as legitimate. It was not a separate category of marriage until government so decided. Gay marriage, by contrast, is a recent invention, and so saying that failing to recognize it denies anyone anything that they had before is at best a stretch of the word "denial."

As with so many other things, the focus on the analogy with racist marriage laws is an attempt to shift the burden of proof. Gay marriage is a new institution – created, admittedly, by analogy with an old one, but undeniably a new institution. Government recognition of new institutions is not extended by default or as a matter of course, but only after justification and deliberation. If opposition to gay marriage is simply support for anti-micegenation laws by another name, we can skip that step. But the analogy is deeply flawed in the ways I’ve just shown. So, sorry, but I think we need an actual case for gay marriage before recognizing it. If one cannot be supplied – and I do not believe one can, but I am open to hearing one – what we should instead be talking about is extending property rights that marrige straights currently enjoy to everyone, regardless of marital status or sexual orientation.

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