A Stitch in Haste

Noted conservative economist Thomas Sowell has penned one of the most bizarre, indecipherable attacks on same-sex marriage that I have seen in a long time:

The "equal protection of the laws" provided by the Constitution applies to people, not actions. Laws exist precisely in order to discriminate among different kinds of actions.

What kind of incomprehensible gobbledygook is that? "Actions" are undertaken by "people" — how can you partition the two? Moreover, rather than say that the Fourteenth Amendment "applies to people," one might more properly say that it "protects people." But that wouldn't help Sowell's thesis much. Go figure.

Of course, in the final analysis the Fourteenth Amendment, like the rest of the Constitution, applies to neither "people" nor "actions," but to laws. Is a law constitutional, yes or no?

Next step: a hopelessly silly straw man ("straw action"?) argument:

When the law permits automobiles to drive on highways but forbids bicycles from doing the same, that is not discrimination against people. A cyclist who gets off his bicycle and gets into a car can drive on the highway just like anyone else.

Oh my goodness.

Of course, the reason bicycles are excluded from the highway is because it is rational, for objective reasons, to exclude them (i.e., safety).

Here's a far more appropriate analogy: A law banning two-seat cars, and only two-seat cars, from the highway.

Why should the legislature pass such a law — what rational basis could it have?

And now suppose that the response, once the law is challenged in court, is that the legislature might have wanted to encourage the transportation of children — and children are, we will guess, best transported in a four-seat car. We have no evidence of that; we're relying on "common sense" and "tradition."

We don't require four-seat cars to carry children; we acknowledge that children can travel in two-seat cars; but that's our story and we're sticking to it.

Oh, and judges should show great deference to us. "Will of the majority" and all that.

Suddenly the Sowell paradigm becomes its own worst enemy. Go figure.

Laws — regardless of whether they apply to "people" or "actions" or whatever — must be rational. Discriminatory laws even more so. Discriminatory laws that relegate an insular minority to second class citizenship even more so than that. Discriminatory laws that relegate an insular minority to second class citizenship by denying them a fundamental right...well, you get the idea.

Finally, Sowell — who is black — feels compelled to brush off the anti-miscegenation argument:

Analogies with bans against interracial marriage are bogus. Race is not part of the definition of marriage. A ban on interracial marriage is a ban on the same actions otherwise permitted because of the race of the particular people involved. It is a discrimination against people, not actions.

But race was part of the definition of marriage — that was the whole point pre-Loving, and the whole problem. Sowell's argument is facially preposterous as a matter of history. And again, the "people/action" dichotomy is absurd. The people were discriminated against because the action was proscribed. The two are inseparable.

And just in case you thought it couldn't get any worse:

Wives, for example, typically invest in the family by restricting their workforce participation, if only long enough to take care of small children.
...
In the absence of marriage laws, a husband could dump his wife at will, and she could lose decades of investment in their relationship. Marriage laws seek to recoup some of that investment for her through alimony when divorce occurs.

Those who think of women and men in the abstract consider it right that ex-husbands should be as entitled to alimony as ex-wives.

Of course, "those who think" that way include the Supreme Court — see Orr v. Orr, 440 U.S. 268 (1979) — and anyone who doesn't live in an antediluvian Kinder-Kueche-Kirche delusion.

One last fisk:

There is no reason why all those laws should be transferred willy-nilly to a different union, one with no inherent tendency to produce children or the inherent asymmetries of relationships between people of different sexes.

No reason except common decency and every notion of fairness, equity and justice. In any event, if there's one thing the struggle for equal treatment for gays has not been and will not be, it's "willy-nilly."

It's one thing to see undiluted stupidity from professional bigots such as Maggie Gallagher or Pat Robertson. To see it from an icon of academia is downright chilling.

Cars or bikes, two doors or four, the road is long...

(Via Good As You.)