The shell game of the marriage debate

In the same manner of my post on Friday, an engaging discussion has led to the following rebuke of my advocacy:

Your logical error is so close to a frequently heard fallacious argument that I’m treating it as the same thing. It’s formulation goes, “Gays and lesbians can get married anytime they want to, as long as it’s to someone of the opposite sex.” Well, typically, the person making that argument doesn’t realize that they’ve done a bait and switch. The motivating question is whether gays and lesbians can marry a person of the same sexual orientation, it’s not whether they can marry someone of the opposite sex–everyone knows they can and this isn’t at issue. It’s an obvious truism, and no sophistries can skate around it, that same sex couples can’t legally marry in many areas. Claiming that they can, but only if it’s to someone of the opposite sex, is not entirely honest and a little bit slippery.

First I want to acknowledge and thank the author for what the author got right. It is obvious that gays and lesbians can get married even when the government expects a marriage to comprise a man and a woman. And, I'll add that the author is correct that when someone's been sold on same-sex marriage being a license that comes with the word "marriage" on it for them as well as couples with both genders, then using the term to describe only aspects of marriage is a bait and switch on them.

I'm not conceding that I'm baiting and switching. However, I am acknowledging that from that point of view, anything less than the license and the word for a same sex couple is cheating them out of something they feel they deserve. That is completely understandable, I think we would all feel the same way in the same situation.

I think the author misses a few points in rephrasing the argument. There's more than one way that we can say that gays can get married even when we expect both genders when issuing marriage licenses. I count three ways that it can be said, and only one requires them to marry someone of the other gender.

Each way represents a way to repackage the arguments and definitions. Each can shell misused by both sides to obfuscate the communication in the debate with a bait and switch. I'll call them the three shells, as in the three shells to hide the facts in a more grand shell game of the marriage debate. A quick shift of a single shell and the perspective changes greatly.

1. Gays can marry, they can marry someone of the other gender.
2. Gays can marry, they can exercise every liberty to every action or behavior that we associate with marriage (i.e. having a wedding ceremony and living together, etc...).
3. Gays can have the benefits and recognition of their relationships too, they can even have that arrangement recognized by private and public entities. For example, some cities in Minnesota keep Domestic Partnership registries.

So in short, a gay or lesbian can get married with everything -- to someone of the other gender. Or they can find someone of the same gender and have it mean everything to each other that a marriage does. They can even get benefits and recognition through various government institutions for their marriage. And beyond that it is possible with some legislative work to recognize those relationships with every right and benefit that marriage has, but that is just another version of the same third option.

The first shell seems obvious, even as the author pointed out above. So where is the confusion come from? It comes from the difference between a gay person and a gay couple. Since a gay person is defined by their relationship with someone of the same gender, it is easily to shift the shell on that inference. On that line you can almost slip and slide between the two contexts effortlessly. I've seen people often do it within the same sentence, starting with a premise about gay couples but winding up with a conclusion about gay individuals.

The second shell shifts on marriage being a behavior that we can understand and recognize socially rather then legally. The institution is the license, the recognition and benefits, the check mark on official documents that says "married". The behavior is the life long commitment and love, the wedding, the announcing yourselves as being together at social events, and such. That inference between the two is so strong that some states have a de-facto marriage law for people simply behaving like a married couple even when they have never gotten a marriage license. It is usually called "common law marriage".

The third shell shifts on a similar ambiguity, but along a different dimension. If you consider marriage a behavior, and the institutional recognition and benefits you expect are important, you still call your relationship a marriage in spite of what the government calls it. It is everything a same-sex couples expect a marriage to be, but the title on the license is "Civil Union" or "Domestic Partnership".

That the potential to game these inferences exist, I don't deny. However I will contend that the hand manipulating those shells is not mine. My hope is that when we better understand the inferences we can see opportunities for compromise, or at least lock down these frames of inference, to tie the hand moving the shell enough to keep it from shifting before we fully understand either frame.

Here's how I see it.

First, someone advocating same-sex marriage claims that gays can't marry and that violates the constitution. I point out, and the author above agrees, that is false because a gay can marry someone of the other gender. They can have everything marriage is meant to give, have every access to all of its privileges and benefits that way. Did I shift shell or was it the person who said "gays can't marry" when what they meant was "gays can't get a marriage license with someone of the same gender". The distinction between an individual right, and a right of association is an important distinction in determining violation of rights enumerated in the constitution.

Second, someone advocating same-sex marriage claims that it is illegal for a gay couple to get married, which invokes the misleading imagery that their behavior and romance is criminalized. I point out that they have all the liberty to exercise that they need to do everything that married couples naturally do. Did I shift the shell, or was it the person who tried soup up their language with charged adverbs like "illegal" when really meant to say, "a gay couple cannot get a marriage license". I've never seen "illegal" every used in a context to describe some behavior that was completely allowed, but simply not recognized, except in this debate. I've never seen "illegal" ever used to describe something that was recognized with benefits and privileges like same-sex marriage is recognized with Civil Unions. I think the term "illegal" is supposed to mean to them a situation that is "not legally recognized, though not forbidden", but that is a unique and new use of the term.

And that leads us into how, thirdly, someone advocating same-sex marriage may say that they need marriage to have access to certain benefits that married people have. I point out that any benefit can be conferred through means other than marriage licenses. Am I doing the shift of the shell, or is it the person who made benefits seem inaccessible. Was it me or the person who really meant to say, "marriage is one of many ways gays can receive benefits that help them support each other". Why omit that there are many ways to obtain the benefits they seek?

Now, up to this point an advocate such as a pamphleteer or an editor will survey the linguistic ground of ambiguity presented here and see (as I and the author have seen) a game of bait and switch or a shell game. A diplomat, however, might look at it and see opportunities for compromise in each of those three levels. At any point we can satisfy the demands that seem to be violated in each phrasing of the issue with certain minor fixes.

From where I sit, I'm not shifting the shells -- I'm locking them down so they don't move anymore. Or at least offer compromise.

Saying anyone can marry someone of the other gender can, and does, satisfy any individual right to the institution. Saying any couple can engage in the domestic partnership that we associate with marriage satisfies the need to express an individual freedom of association and express mutual trust and support. And saying that we can recognize such arrangements with benefits and privileges satisfies the need for social support and recognition of that arrangement.

But, I still recognize the other side of this debate. And as the author stated, for a same-sex couple who's motivation is to receive a marriage license it is just a bait and switch. Or in the terms of diplomacy, it appears none of these ways of looking at the issue offer an acceptable compromise to the same-sex couple already promised the shells in a certain alignment.

And that is probably the nature of the debate itself. While there are three basic shells to shift, at the heart of the debate is its own ambiguity. It is itself a shell or a bait and switch on the word "marriage" itself. One last move to change the definition such that it seems to be the same thing, but no longer is. One last ambiguity for the diplomat to hide in rather than compromise.

Because even for the diplomat, when no compromise seems possible the best thing to do is to make both sides think they get what they want. Where is the harm? What possibly could go wrong? Well if we are ready to debate this change of definition on its merits, then we might have just begun a real discussion on the heart of the matter. What is marriage, why do we recognize it the way we do, and from there we can see what is lost by neutering the reference to "man and woman" in its definition.

When we put down the distracting shell games, then we are ready to see the 800lb gorilla that has been standing in the room the whole time. We are ready to discuss what marriage is, and should continue to be recognized as, and why.