Sex, Marriage and Bathrooms

With the California Supreme Court hearing the opening arguments today on the validity of Proposition 8′s passage, Dennis Prager played a clip on his radio show today of San Francisco Mayor Gavin Newsome in which the mayor tries to appeal to emotion by arguing that he thought America was beyond believing that “separate but equal” was equal. Mayor Newsome was well-spoken, non-belligerent and his argument is likely to enamor many, but it is fundamentally flawed.

For a lengthier argument on why gay marriage is not the equal of heterosexual marriage and therefore not entitled to the same recognition, see my earlier post here. But Mr. Prager highlighted a specific example of where “separate but equal” is still practiced and has a very legitimate purpose. Prager’s analogy of separate bathrooms for males and females makes the point quite clearly upon a little reflection. The separation of bathrooms based on color was in fact “non-equal” because the very purpose of those types of laws were to elevate whites above blacks. In other words, blacks were not considered worthy (or clean enough) to share the same facilities as whites. But the male / female division of bathrooms has a very different purpose that illustrates the difference between the male / female arrangement we call marriage and the same-sex union currently called “domestic partnerships” in California. The pertinent issue in both cases is sex (or gender). In the case of bathrooms, having males and females share the same bathroom space is asking for trouble so we have “Male” and “Female” restrooms. Gender is central to the issue. In the same way, gender is central to the issue of marriage, whereas color is less than trivial on the order of eye color or shoe size. Heterosexual couples and same-sex couples can never be the same thing because the pairings are different in a very particular way, a way that matters immensely.

It is legitimate for a society to maintain separate bathrooms based on gender, but not on color. In the same way, society has a vested interest in maintaining the distinction between the heterosexual marriage union and “domestic partnerships” among gays.