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My Wedding Ring—A Commentary by Ian Ayres ’86

The following commentary was published in The New York Times on October 15, 2008.

My Wedding Ring
By Ian Ayres ’86

With great joy, I decided to put my wedding ring back on my finger this past weekend.
I had stopped wearing my ring because I was slightly embarrassed to live in a state where people like my sister couldn’t marry the people they love.

But I have no reason now to be embarrassed on this score, because on Friday the Connecticut Supreme Court struck down the statutory exclusion. You can read Justice Palmer’s opinion here. (Disclosure: An amicus brief was filed in the case on behalf of me and other Connecticut law professors, and my spouse, Jennifer Gerarda Brown, was the co-author of another amicus brief.)

I view the legal exclusion of gay people from marriage as morally wrong; a form of invidious discrimination. Many people hold different substantive views about marriage equality.

But in this post, I want to focus on a different question: How should people respond to the legal option of taking a benefit that is invidiously denied others? It’s a question that transcends the specific issue of same-sex marriage. You can also ask, for example, whether it would ever have been appropriate for whites to drink from a “whites only” water fountain.

When I ask my students the water fountain question, very few whites say they would drink. But at the same time, heterosexual students who strongly oppose the marriage exclusion nonetheless, like me, choose to take the benefits of marriage that are, to our minds, denied others.

Jennifer Brown and I devote an entire chapter to this question in our book Straightforward: How to Mobilize Heterosexual Support for Gay Rights.

One of our central conclusions is that people ignore intermediate responses and mistakenly focus on all-or-nothing responses. Instead of refusing to marry, it’s possible to renounce (for consequential or non-consequential reasons) some of the trappings of marriage.
I not only took off my wedding ring, but until Friday, I’ve tended to refer to Jennifer as my partner instead of my spouse.

But there is also another under-appreciative alternative; the simple algebraic logic of what Jennifer and I call pro-rata sharing:

Here’s a simple monetary (and therefore quantifiable) example. If a person takes a $100,000 college scholarship that is invidiously denied to 20 percent of qualified beneficiaries, we believe that, at a minimum, the person should give up 20 percent of the scholarship. In this example, there are four beneficiaries for every victim. If the four beneficiaries each surrender $20,000, then both the beneficiaries and the victim end up with a nondiscriminatory allocation of $80,000. (Straightforward, P. 165)

Pro-rata sharing is an attractive moral response because it makes the moral duty literally proportional to the magnitude of the harm:

It would be bizarre to require people to give up all the benefits of a scholarship, regardless of whether 1 percent or 90 percent of the qualified beneficiaries were unfairly excluded …

In many contexts, it’s not feasible to identify and effect a direct transfer to the victims of the discrimination. But it is useful to keep in mind when we are the beneficiaries of invidious discrimination, and then to “disgorge” a portion of those benefits by devoting some of our time or making a cash contribution to remedy the situation.

By the way, lest you think my scholarship hypothetical is unrealistic, I received thousands of dollars of support for both college and law school from the Victor Wilson Scholarship, which to this day invidiously excludes women. (Again, my sister was shut out, but this time solely because of her gender.) I took the money, but now feel honor bound to engage in pro-rata sharing.