Stardate 20040717.1315

(On Screen): Anatole France is credited with this observation:

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.

Is this truly equality? It depends on how you look at it, I guess. Objectively speaking, it is equality. Those acts are indeed forbidden to everyone. (Whether the law is applied equally is another matter, of course.)

But the obvious point France was trying to make was that the rich don't actually want to do those things. Subjectively speaking, those laws aren't really equal, because they prevent the poor from doing the things they want to do, without similarly impeding the rich.

His observation is wry and witty. But should the law be written in objective terms, or in subjective terms?

We have chosen in some cases to include subjectivity in the law (e.g. justifiable homicide). However, in general, our legal system attempts to be objectively equal, not subjectively equal. It proscribes acts which are described in objective terms, and does not usually take into account the feelings of the person performing the act.

The law forbids both honest men and embezzlers equally to steal from their employers. It forbids both honest men and liars equally to commit perjury. And Anatole France's sarcasm notwithstanding, I would claim that the law is equal if it forbids both rich men and paupers to sleep under bridges.

Of course, that's an idealized view of our system, and the practice is not so clean. In times past the practice has not even come close. The apartheid laws in force in some states when I was born were certainly not objectively equal.

Some tried to argue that they were. White children could attend schools designated as being for whites, and black children could attend schools designated as being for blacks. It's the same, right?

I don't think so. A specific school could be attended by white kids but not by black kids if it was "white only". A particular drinking fountain could be used by whites but not by blacks if it was similarly labeled. That's not objectively equal. That's discrimination.

Note that neither of those arguments, claiming equality or denying equality, is based on desire. I think segregated schools would be discriminatory even if no black kid wanted to attend a particular white-only school, and even if no black ever wanted to drink from a particular white-only fountain. Those laws were discriminatory because in objective terms some people were permitted to do particular things and others were forbidden to do those same particular things, irrespective of whether the latter group had any urge to do them, and irrespective that the latter group could do analogous things.

I am very cautious about making any kind of absolute ideological statement about any political issue. I have seen far too many people who have let absolute ideological principles lead them off the edge of a cliff. So I present ideological statements as generalizations and emphasize that there will always be exceptions. Thus it is here: in general it is desirable for laws to be objectively equal, which means that such laws will forbid certain acts both to those who want to do them and those who do not.

When we debate a particular law, we debate whether certain actions should be forbidden, usually without reference to the motivation behind those actions. We should debate whether we think that our society would be better off overall if we choose to permit such acts or legally forbid them. (That then gets into an entirely different discussion about the "law of good" versus the "law of right". I, myself, strongly favor "law of right", but many do not.)

The reason our system places legislative power in bodies whose members are elected is to permit us as a citizenry to debate these kinds of questions and to influence the laws which are made. It's an imperfect solution, but none better has ever been found.

I started thinking about this stuff when I read this post by Andrew Sullivan, where he responds to arguments made by Rich Lowry. They are debating gay marriage: Should it be legally permitted? Should it be legally forbidden?

I believe that it should be legal. I explained my reasons in this essay from March of 2001. So on the basic question, I side with Andrew. But I don't find Andrew's argument compelling.

Andrew makes five numbered points. The first is a distraction, an empirical disagreement about an irrelevancy.

Andrew's second point relates to interpretation and consequences of one particular proposed statute. That is not irrelevant, and Andrew convinced me that Rich is being disingenuous about it. However, that's not the central question.

Andrew's third point is another distraction. He questions the motives of those behind a particular law passed in Virginia. He claims that the law "was rooted quite clearly in animus against gay co