Chief Justice George Was Right (Though Horribly Wrong)

by Micah Tillman

As June 17th approaches, when California's first same-sex marriage licenses will become available, it's time to say the following:

The argument is simple, the conclusion easy to reach. But Ronald George, Chief Justice of the California Supreme Court, took the scenic route through collectivist depersonalization and illogic.

What he should have said is this:

No government ever denies a citizen's marriage license application because of his or her sexuality. Governments deny applications because of the applicant's sex. E.g., "Given the gender of the person you're applying to marry, your gender is incorrect."

But discrimination on the basis of gender is illegal. Therefore, it is illegal for the government to deny a man a marriage license simply because his gender matches that of the person he is applying to marry. And it is illegal for the government to deny a woman a marriage license simply because her gender matches that of the person she is applying to marry.

The argument is simple. Gov. Jim McGreevy wasn't denied a marriage license because he is a "gay American." His gender was fine, so his application was processed. Cole Porter wasn't denied a marriage license because he was homosexual. He was allowed to marry Linda Lee Thomas because their genders were opposite.

But instead of taking the obvious path, the one on which everyone would likely agree — the one which says, "Gender discrimination is something the government is barred from doing, everyone knows it, and denying marriage licenses to a couple based on their both having the same sex is gender discrimination" — Chief Justice George said the following (if I understand him correctly).

Californians have the constitutional right to marry. And "we find it appropriate and useful to refer to the right to marry as a right possessed both by each individual member of the couple and by the couple as a whole" (PDF of majority opinion, pg. 53, n. 34).

Since government cannot discriminate on the basis of sexual orientation, a homosexual couple cannot be denied its right to marry. Therefore, the constitutional right to marry which individual Californians have, includes the right to marry persons of the same gender.

What this is, is a move from individual rights to corporate rights through the fallacy of composition, and then from corporate rights back to individual rights through the fallacy of division.

The insanity of the reasoning can be seen by asking, "If a 'couple as whole' has the right to marry because both its members do, to what does it have the right to get married? Another couple? A rock? One of its own members?"

And beyond the logical problems, there are the personal. To buy Chief Justice George's reasoning you have to buy the reification of groups. You have to believe that the whole is greater than its parts, even when the parts are persons. You have to accept the claim that groups are something above and beyond their members.

In other words, even if you could ignore the two fallacies which Chief Justice George uses, you still have to swallow the subordination of persons to collectives.

Instead of basing his conclusion on the respect for persons — on the acknowledgment that a person's personhood is not dependent on her or his gender — Chief Justice George bases his conclusion on the elevation of groups over persons, and on the derivation of personal rights from corporate rights.

But if you read further in the text of the decision, you'll find that this assault on personhood continues. It is no accident.

Chief Justice George's second attack consists of his insistence that "the family" or "marriage" is the "'basic unit' or 'building block' of society" (pp. 55, 58).

The danger of this mantra is that it entails the claim that a person's value to society consists in his or her group-membership. If the family is the atomic unit of a society, then persons are not parts of society. They only show up to society through the filter of their family.

Once again, the person derives value from the group, for Chief Justice George.

Finally, and perhaps most hideous, is Chief Justice George's insistence that government recognition "is often of crucial significance to the individual's happiness and well-being" (pg. 59).

In fact, government's being there to recognize the "marriage relationship provides an individual with the ability to invest in and rely upon a loving relationship with another adult in a way that may be crucial to the individual's development as a person and achievement of his or her full potential" (pg. 59).

For Chief Justice George, it seems that loving relationships and personal fulfillment are made possible by government.

Evidently, persons are by nature government-dependent.

So not only does Chief Justice George portray persons as subordinate to groups by (a) deriving the personal right to marry from the corporate right to marry and (b) hanging a person's value to society on her family-membership, but he portrays government as that in which we live, and move, and have our being.

How Chief Justice George was able to turn a decision supporting the dignity of persons into one of the most staggering attacks on personhood in recent memory is beyond comprehension.

So, congratulations to Californians on the cessation of gender-discrimination by your government in one more area of life. But please accept my condolences for your having such an irrational ruler.

Micah Tillman (micahtillman.com) is a lecturer in the School of Philosophy at The Catholic University of America, and curator of the WEeding Awards.