Wednesday, October 10, 2012

The Law: No Place For Genetics

Just read an interesting article on "defense of marriage" laws, originally written four years but recently updated. Here's the gist:

The biggest problem is that laws like the California initiative will make the courts decide who is male and who is female — and all available decision criteria create unavoidable miscarriages of justice that will, or should, dismay initiative proponents.
That is, it's impossible, says Rick Moen, the author of the article, to give a biological definition of "man" or "woman", and therefore, impossible to define marriage as between a man and a woman. It's a cute idea, and I get why it would come from a site called LinuxMafia because it no doubt appeals to engineers who like precise definitions, but doesn't really work for a variety of reasons.

First of all, legal definitions are not the same as biological ones. I don't see why it's necessarily the case that, as Moen asserts, someone who has been a woman all her life, but is at some point tested and found to have XY chromosomes, must immediately have her marriage annulled and be permitted to marry a woman. The law is not, in fact, biology, and it has some give in it. It seems eminently reasonable that in a case like this, this person would (or could) still be legally considered a man. That may sound absurd, but it certainly doesn't to transsexuals, who may have some external anatomy changed but retain the same chromosomes.

Second, and even more problematic for Moen's argument, if this sort of test were that problematic, we'd already be drowning in "kudzu" (the article's basic metaphor is that marriage laws have unintended side effects like the introduction of kudzu to the American South has had). There are already all sorts of laws, regulations, rulings, etc. that differentiate between sexes and races. Questionable sexual identity is pretty rare. Questionable racial identity is extremely common, because it's almost impossible to test. And yet we have federal regulations mandating, e.g., that a certain percentage of contracts be awarded to businesses run by minorities. How can this possibly work, given that there is no feasible test that could be given that would verify the minority status of a given person?

So while marriage laws may and do have other pros and cons, we don't really need to worry ourselves about Moen's points. There's no kudzu about to overwhelm our legal system.

1 comment:

  1. First, I nowhere said it was impossible to define marriage as between a man and a woman. (In fact, I said the exact opposite.) What I said was, such a definition using any available pragmatic criteria will inevitably create legal side-effects that are not only unjust but also directly contrary to opponents' intentions.

    (By the way, I am not 'an engineer who likes precise definitions'. I am a longtime student of pragmatic legal problems, starting even before I took several years of law classes in preparation for the CPA exam. is my personal Internet domain. Why? Because catchy, isn't it?)

    Second, I certainly nowhere said legal definitions are the same as biological ones. Nor did I assert that a woman tested and found to have XY chromosomes would necessarily immediately have her marriage annulled and permitted to marry a woman. What I said was that any of the several ways the law could work, using any of the available criteria, not only permits peculiar situations that proponents of these statutes would hate, but furnishes a template for cranking them out. (This leaves out the fact that the concept of a person being 'XY' is itself problematic for a number of reasons I detail, e.g., CAIS, XXY, XYYY, mosaicism, Swyer syndrome, gonadal dysgenesis, etc.)

    I detailed all that quite specifically. You seem not to have paid attention. Too bad.

    Third, I deny your assumption that we are not drowning in 'kudzu', and assert that we already are. The nature of the difficulty is not yet apparent because genetic testing isn't yet sufficiently pervasive, but it gets cheaper by a large percentage each year, e.g., is down to $99, and that's bundled with a rather major online service with no expiration date. As gene testing becomes more pervasive, many, many more cases like the Howdens and the Wickses will pop out -- unless sanity prevails and the 'defense of marriage' statutes get rolled back, which seems actually rather likely at this point.

    Best Regards,
    Rick Moen