Skip to comments.The Marriage Debate I: Confusions about ‘Equality’ and ‘Discrimination’
Posted on 01/09/2013 9:37:06 AM PST by NYer
The Supreme Courts decision to hear arguments about the constitutionality of the federal Defense of Marriage Act (DOMA) and Californias Proposition 8 guarantees that the debate over marriage will be at the forefront of American public life for the foreseeable future.
DOMA defines marriage as the legal union of one man and one woman for purposes of federal law (it says nothing about what states may or may not define as marriage). Prop 8 was a voter-initiated correction of the California Supreme Courts interpretation of that states constitution as containing a right to same-sex marriage. Irrespective of whether the U.S. Supreme Court takes a narrow approach to these cases, or tries to find a right to same-sex marriage in the U.S. Constitution that would be binding on all the states, the marriage debate will continue. Indeed, if the Court preempts the political process, the marriage debate will likely intensify, just as the right-to-life argument intensified after Roe v. Wade eliminated the abortion laws of every state, forty years ago this month.
All the more reason, then, to try and clarify some of the issues here.
Laws authorizing same-sex marriage have been successfully promoted as the equivalent of civil rights laws that ban racial discrimination. Indeed, thats a large part of the power of the marriage equality movement: It has battened onto the one available public moral reference point for Getting It Right in twenty-first-century American politicsthe civil rights movement of the 1950s and early 1960s.
For almost two centuries, equality before the law had been denied to Americans of African descent; that blatant injustice was challenged by a movement of moral persuasion and legal maneuver; the movement was ultimately vindicated by a change of hearts, minds, and statutes. If then, on matters of race, why not now, on the question of who can marry? Thats the argument; it has considerable emotive power.
But its wrong.
In their recent book, What Is Marriage? Man and Woman: A Defense (Encounter Books), three Catholic thinkers with Princeton connectionsRobert P. George (who holds Woodrow Wilsons old chair at that eminent university) and two of his former students, Sherif Girgis and Ryan Andersonargue persuasively, and on grounds of reason, that America cant arrive at a serious answer to this questionShould government redefine marriage to include same-sex partnerships?by appealing to equality.
Why not? Because every marriage policy in every polity known to history draws boundaries, excluding some types of relationships from marriage. Parents cant marry their children. Brothers and sisters cant marry. People beneath a certain age cant marry. People who are already married cant marry.
In other words, governments, whether autocratic, aristocratic, monarchical, or democratic, have always discriminatedi.e., made distinctionsin their marriage laws. And in that sense, there is no equality issue in marriage law similar to the equality that racial minorities rightly sought, and won, in the civil rights movement.
If marriage law is always going to involve distinctions, the moral (and legal/constitutional) question is whether the distinction inflicts a discrimination that is arbitrary or invidious. Or does the distinction inhere in the very nature of marriage and serve a genuine public good?
In twenty-first-century post-modern culture, its hard to make an argument from the nature of anything. Try this, though. When the November 2, 2012, issue of Entertainment Weekly refers to Lincoln screenwriter Tony Kushner as the husband of Entertainment Weekly columnist Mark Harris, arent you jarred? Doesnt something seem, not just unfamiliar, but mistaken? Do you have the same instinctive reactionSomethings awry herewhen reading a London Daily Mail headline from last October 23: Ellen Degeneres receives comedy award as her gorgeous wife Portia De Rossi looks on?
For millennia, governments have legally recognized the nature of marriage as the stable union of a man and a woman, both because thats what it is and for good public policy reasons, including the well-being of children and the promotion of family life. Does that recognition involve distinctions? Yes. Does it result in injustice? No.
People say that what two individuals choose to do in the privacy of their bedrooms is nobody else's business. This implies that marriage is a sexual relationship. Do people go to city hall to apply for a license to have sex? I don't think so.
Some say that people should be allowed to marry the person they're in love with. This implies that marriage is the relationship you enter into when you love someone. Is that correct? Again, I don't think so. As a man who has been married 31 years I have loved a lot of both men and women in that time, and my wife knows this. And I didn't go to city hall to apply for a license to love her.
Is it a relationship of convenience, as the Libertarians say? If so, why have it at all? Just run into the nearest bar or restaurant and shout, "Hey, everybody, Paula's just agreed to be my girl. Now I'm the happiest man/woman in the whole world." (Feel free to break into a musical number.) What more do you need? Do couples apply at city hall for a license to announce their relationship?
Marriage is more. But I think we've forgotten what it is. We need to remember, and soon, or it will cease to exist.
When people who stop dating refer to their status as "single again" it may already be too late.
I think a large part of the problem is that people so often think of equality as “sameness”. Men and women have equal value in the sight of God, but they are not the same.
Unfortunately, our feelings are not at all reliable when it comes to judging between right and wrong. Discovering a virginal 50-year-old might strike some people as "jarring." Lifelong marital fidelity might strike some people as not only unnatural, but awry and impossible.
Feelings don't count for everything --- especially in a social milieu which has been ripped right off of its natural moorings for all of our adult lives.
The bottom line is that the state --- the government --- has no public interest in regulating or licensing relationships (friendships, partnerships, associations, amours) between two consenting adults, because two consenting adults are assumed to be able to negotiate their own relations by means of personal agreements and/or (if goods and services are involved) contract law.
The state only has a public interest when there is a possibility that a sexual partnership will result in the creation of a third, dependent party --- a child ---- whose rights, complex and necessary as they are, are defended by the state.
The state has a legitimate public good in view when it acts to recognize, and stabilize, the man-woman union, because this is the only kind of sexual union that can result in the transmission of life to another generation.
The state can't demand to see whether the man and the woman are actually in fact procreative: that would require medical surveillance which is far, far beyons what a government can or should do. But it can build on the reasonable, objective fact that this kind of sexual partnership, alone, is the only sort that CAN or COULD beget offspring.
The offspring cannot, unaided, define or insist upon the duties of their natural parents toward their safety, support and well-being.
Hence, the public interest.
I agree with you entirely. Thanks for the post and ping.
I’ve been absent from FR a lot lately (and haven’t seen wagglebee in a long time) but will be back and hope to ping out this article.