Monday, September 29, 2008
I would like to explore the question about the meaning of equality in the framework of the challenging American political and legal debate that generates passion among participants, i.e., same-sex marriage, since both Prof. Doug Laycock and Rick mention it. I begin by proffering the view that precision in the use of language in general, and legal language in particular, is critical to understanding the nature and substantive content of an argument—particularly one made in the name of Catholic legal theory. There should be no exception to this when the language addresses questions dealing with equality and marriage. Many, perhaps most, people would conclude that the word “equality” has a relatively clear meaning for virtually everyone. The same sentiment could well apply to the meaning of the term “marriage.” But the meaning of language can be manipulated by some interpreters who are not so much interested in objectively explaining its meaning as trying to convince others to adopt their subjective sense or impression of what is being addressed. As Lewis Carroll’s Humpty Dumpty told Alice, “When I use a word, it means just what I choose it to mean—neither more nor less.”
This is evident in the present day when equality and marriage are discussed in the context of same-sex relationships. But the subjective approach of Humpty Dumpty when used to define, explain, and interpret legal meaning is a perilous course to pursue, especially in the context of the present-day campaign for legal recognition of same-sex marriage.
The equality argument cannot sustain the legal justification for same-sex marriage which lawyers and courts, such as the Goodridge majority, offer. In support of my conclusion, I present an argument that the equality of human beings exists at certain fundamental levels—the most basic would be something guaranteed, albeit vaguely, in the essential equality of the multi-faceted right to be born, to live after birth, and to flourish (albeit in a variety of expressions). I believe that the understanding of the framers of the Declaration regarding equality is essential for making any equality argument that is legally justifiable in the American context—and most likely beyond this context considering the American influence on other legal systems. While most legal arguments require some flexibility regarding their meaning, as the common law tradition demonstrates, the argument from equality does not possess the unrealistic elasticity required to substantiate the quest for legal recognition of same-sex unions.
The basing of a legal argument on the claim of “equality” cannot guarantee that the manifestation or exercise of equivalence is the same for every claimant. Otherwise, the competition for who would be considered the best person in any particular field could never be determined. Nevertheless, each claimant who relies on an equality argument with some goal in mind should be able to present a coherent case that he or she is entitled to be the equal of all others in the right to be born, to live, and to seek what is needed to thrive until one’s natural death. Each person can also enjoy the equality to remain free from unwarranted, i.e., unreasonable, intrusion into one’s existence as long as this exercise does not interfere with anyone’s fundamental claims to enjoy a parallel human existence. Having made this last point, I must point out that there are contexts which may enable some claimants a right to pursue certain activities whereas others may not. For example, a company that is awarded a government contract to manufacture munitions would be entitled to fabricate explosive devices whereas a cell of anarchists or terrorists would not, because on several important fronts they are not the “equal” of the candidates to be government contractors.
In this regard, an individual claimant cannot expect that societies and their norms must be compromised on every front to reflect or adopt the equality argument advanced by some members of the community in which their claims cannot be factually and rationally supported. This, I submit, is especially true in the realm of public policy issues defining the meaning of marriage and the arguments advanced for recognizing same-sex relationships as marriages. By way of illustrating this point, when Chief Justice Margaret Marshall set the stage in Goodridge for the recognition of same-sex marriage in Massachusetts, her remarks that marriage is “a vital social institution” and the “exclusive commitment of two individuals to each other nurtures love and support” carefully avoided the claim that a couple comprised of two people of the same sex are equal to or the same as a couple consisting of a man and a woman in all regards.
Knowing that I am discussing a topic that bears great sensitivity among many people, I want to express clearly that it is not my intention to insult, demean, or marginalize anyone and the dignity that inheres to everyone. To disagree with someone with different views on any subject is not to insult, to demean, or to marginalize those with whom one disagrees. The nature of disagreement is, rather, to enter a debate with reasoned analysis and objective commentary supported by factual analyses. Thus, my objective is to demonstrate that for people to be the equal of one another in the context of marriage, there is a compelling need to analyze clearly the nature of marriage, as it has been understood and legally recognized, as the union of a man and woman and why certain relationships, including those between two people of the same sex, cannot constitute a marriage. As a consequence of Lawrence, a same-sex couple may be a private relationship that is protected by the law, but it would be inappropriate to confer on this relationship the status of marriage. While the associations of two persons of the same sex or opposite sex are relationships, the same-sex couple lacks something essential for the relationship to be a marriage that is constitutive of the family, the basic unit of society.
I am aware that there are those who disagree with me on this point. For example, Professor Mark Strasser has stated in one of his several commentaries on Lawrence that since “those with a same-sex orientation have a right to privacy with respect to other matters of family life including fundamental rights with respect to the children that they are raising, then they too should be given the right to enter the relationship that is the foundation of the family in our society.” In making his argument, he improperly relies on the Supreme Court’s decision in Loving v. Virginia. In that case, the Court concluded that Virginia could not deny interracial couples the right to marry because, according to the state, they had the right to marry as long as it was not someone of race different from their own. But Professor Strasser asserts that the argument is no more convincing in the same-sex context than it was in Loving. When it comes to marriage issues involving the propriety of same-sex relations, it is evident that any man, regardless of his sexual orientation, has the same ability and faces the same restrictions to marry a woman. And similarly, any woman, regardless of her sexual orientation, can marry any man regardless of his orientation. In this they are equal. However, Professor Strasser implies that under the rationale of Loving v. Virginia, the Supreme Court would have to conclude that no state could deny same-sex couples the right to marry by saying that such individuals had the right to marry, just not someone from the same sex.
But Loving v. Virginia does not have the application to same-sex relationships that advocates for same-sex unions, such as Professor Strasser, wish it to have. Loving addresses a man marrying a woman or a woman marrying a man; however, the difference in races of opposite-sex couples, according to Virginia law that was eventually struck down, precluded the marriage from taking place. Under Loving, the complementarity of the sexes was understood, respected, and honored by the courts involved with that litigation. In the drive for recognition of same-sex versus interracial marriages, the issue of complementarity is not considered in the same fashion. In addition, under Constitutional law, race has played a particular role in adjudication of cases dealing with due process and equal protection claims. In the quest for the legalization of same-sex unions, the race of the partners is immaterial because the prohibition of same-sex unions under state law does not consider racial composition but sexual complementarity. It is same-sex, not race, which is the driving force in the present day debate. But should this matter come before the Court, it may be that Lawrence will serve as an indicator of where the Supreme Court may go on the question of same-sex unions: the Court in Lawrence suggested that it will not go where same-sex union advocates want it to go, i.e., while private consensual adult sodomy is constitutionally protected, same-sex marriage is not.
Insisting through legislation or adjudication that one thing is equal to something else does not in fact make it so—for there must be some foundation based on facts and reason that can justify the claim. If this factual-rational foundation is lacking, the claim must necessarily fail unless the legal mechanism is a purely positivist one. This is patent when the physical differences of male and female and their biological complementarity essential to the continuation of the human race are taken into account. To promote as “legal argument” contradictions of reason and fact destabilizes the integrity of a legal system and its supporting substantive law. Reliance on an “equality” argument to advance legal schemes to recognize same sex-marriage does not make relations between two men or two women the same as the complementary relation between a man and a women when reason and fact state that they are equal in certain ways but not in other ways that are crucial to the institution of marriage. While the sexual relations between same-sex couples and opposite-sex couples may generate physical pleasures through sexual intimacy, they are substantively different in that the latter exemplifies the procreative capacity that is the foundation of the human race based on the ontological reality of the nuclear family (the fundamental unit of society) whereas the former is sterile from its beginning and cannot achieve this objective.
But let us assume for the moment that I am wrong and that the relationship between two men or that between two women is the equal of the marriage between a man and a woman. What conclusions do we then reach, considering the questions surrounding marital context, about equality claims made for other relationships in which proponents argue that these relationships can also be marriages if the relationship of same-sex couples can become a marriage, and that denying the marital status to the partners of these other relationships is a violation of equality? A list of such affiliations might include these: a collective of men or women—or a mixture of both sexes—who claim the right to be equal and therefore married in a polygamous context; an affiliation of someone in age-minority and someone in age-majority who claim the right to be equal and therefore married in spite of current prohibitions on age limitations; a relationship of closely related persons who, in spite of legal prohibitions due to degrees of consanguinity, claim the equal right to marriage; or any combinations of human beings who wish to associate with other biological entities who (at least the humans) insist that their relation is or should be considered the equal of a marriage between a man and a woman. When the state confers the legal recognition of marriage on the relationship of a same-sex couple and grants them the state-sanctioned benefits of marriage, are not these other citizens denied equality when their relations are not recognized as marriages?
As we begin to comprehend that the claim of equality has limitations necessitated not by personal choice but by reason and fact, no one should consider himself or herself free to assert that the law can make us precisely equal in every context—for that would be pushing beyond any limit the guiding force of the law which is reason itself. And, objective reason is the fundamental principle of the law in most legal traditions with the primary exception of the positivist system. The law simply cannot go beyond the limits of reason without entering the dangerous realm of becoming a tool in a totalitarian, positivist system. The differences and distinctions that exist among human beings are real and unmistakable and should not be forced into some kind of strained, artificial, irrational, and unsustainable notion of “equality.”
The positivist mentality that is regulated solely by the mind of the lawmaker and conditioned exclusively by what the lawmaker considers to be the end of the human purpose typically reflects the “dominant prejudices of the moment” and militates against the objective and moral compass that is essential to guiding democratic societies as Christopher Dawson once argued many years ago when several totalitarian systems that brought much harm during the twentieth century were beginning their offensive against the rule of law. Such positivism disregards longstanding tradition; it ignores legal history; it defies logic and reason; and, it contravenes facts including the reality of distinctions that make people not alike in some important regards.
The only way to equate opposite-sex and same-sex unions is to rely on a peculiar understanding of “equality” that relies not on fact and reason but on exaggerated legal positivism. But such a venture leads us into that problematic Orwellian dominion where all the animals in the barnyard are deemed equal; but, as it turns out, one day it becomes clear that some are more equal than others. In other words, the “equality” expected by same-sex marriage advocates will not likely be transferred to other interest groups seeking the public recognition and support of their relationships. The “equality” sought by those seeking the recognition of polygamous relationships, under-aged relationships, and relationships involving closely related family members, e.g., brother and sister; first cousins, will most likely be disappointed. It must be understood that the crusade for legal recognition of same-sex marriages is founded on a false notion of equality. But when the problematic rationale for justifying same-sex marriage is condoned by the law, the important idea of authentic equality is deprived of its meaning. And that is what the campaign to justify same-sex marriage has regrettably accomplished.