Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, November 5, 2011

Equality and the Rule of Law


Today The New York Times has a powerful editorial entitled “Edging Toward Equality.” [HERE] The objective of the editorial is to encourage the U.S. Senate to begin measures that would repeal the Defense of Marriage Act (DOMA) which the Times identifies as “deplorable” because it bars national recognition of same-sex marriage and “denies lawfully married same-sex couples benefits granted other married couples.” Although an editorial in any newspaper cannot get into long justifications presenting detailed reasoned argument, this editorial demonstrates an inherent weakness in its presentation on the idea of equality and the failure of the DOMA to provide equality as the Times editorial board understands the concept.

The Times asserts that the DOMA is both incoherent and unjust. But is it? Might it be just and coherent?

 The DOMA defines for Federal purposes marriage as the “legal union between one man and one woman as husband and wife.” The word spouse is defined as “a person of the opposite sex who is a husband or wife.”

The editorial relies, in part, on the argument that if “don’t ask, don’t tell” can be repealed, so should DOMA. The editorial also assumes that contemporary litigation challenges against DOMA will succeed; therefore, the Senate should cave in and begin the repeal of DOMA. The final point of the Times argument is that there is a growing public sentiment to reject “this shameful discrimination.” The thrust of the editorial’s principal argument relies on the equality claim and DOMA’s denial of equality. But something is missing from the editorial’s presentation, and that is a clear and objective understanding of what is equality.  

A consideration of the nature of equality might start with Kurt Vonnegut’s story of “Harrison Bergeron” where the tale begins with this anecdote:

The year was 2081, and everybody was finally equal. They weren’t only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger than anybody else. All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.

We might also consider Noah Webster’s commemoration of the Declaration of Independence when he said:

if by equality, writers understand an equal right to distinction, and influence; or if they understand an equal share of talents and bodily powers; in these senses, all men are not equal. Such an equality would be inconsistent with the whole economy of nature. In the animal and vegetable world, however strong the general resemblance in the individuals of a species, each is marked with a distinct character; and this diversity is one of the principal beauties of creation, and probably an important feature in the system. There are, and there must be, distinctions among men . . . they are established by nature, as well as by social relations. Age, talents, virtue, public services, the possession of office and certain natural relations, carry with them just claims to distinction, to influence and authority.

Vonnegut and Webster were onto something about human intelligence and intelligible reality.

It is human intelligence grasping the intelligible reality of the world that surrounds us that leads to the inescapable conclusion that some folks are more adept at debate and discourse; others possess a clear superiority in sports and other physical activities; still others excel in musical talents while others cannot. The self-evident truths about human equality do not deny genuine human equality, but these same truths would acknowledge differences that do exist between and among people. This includes the fundamental distinction between couples of the same-sex and those of opposite-sex.

It is evident that the Times editorial must discuss equality in a legal sense as the proposed repeal of DOMA requires a legal understanding of the matter. After all, the repeal of DOMA sought by the Times concerns a law that is founded on the intelligible reality of human equality and the intelligible reality of human inequality.

This necessitates an understanding of the physical and metaphysical nature of human beings—in short, an understanding of human ontology is in order. For the term equality to have durable meaning in the context of well reasoned human law, equality must be understood within the framework of human nature—its diversity, its restrictions, its capacities, and its imperfections. To ignore these points would facilitate caprice not only in an idea but also in an important legal concept cherished by anyone who treasures the concept of the rule of law.

Genuine equality demands that school-age children (regardless of their race, color, creed, or ethnicity) be protected by laws that permit them to obtain an education that is the equivalent of their peers. Equality demands that men and women (regardless of their race, color, creed, or ethnicity) be entitled to choose their own spouse as the DOMA defines this term. However, the law that is reasonable and protects an ordered liberty can restrict selection of a spouse based on considerations of age and degrees of consanguinity.

For laws to make distinctions—to categorize— divisions must be just and reasoned. What constitutes this justice and this reason?

Well a few requirements quickly come to mind. One is that a just and reasonable law cannot simply reflect the will of the lawmaker, a particular lobby, or a majority. If the law did this, it would be purely positivist. I think this is what the Times has in mind: the law repealing DOMA would be a pure exercise of the will of the law maker, lobbies, or even a majority of the citizenry. The intelligible reality of marriage that is knowable by the intelligent human mind matters little. But this approach does not make good law that can endure. The law, and I suggest DOMA as one example, should state principles that reflect intelligible reality of the nature and essence of the human person, human society, and the posterity of humanity. The law that is just and reasonable needs to correlate facts and objective reason so that the norm can be generally applied.

When the debate, such as the one presented by the Times, concerns just laws dealing with human equality issues, each person should be equal to the other in having aspirations for the future and for the opportunities to fulfill these hopes. There must also be some sense of equality in the ability to make claims to the common stock of the things which are essential to sustaining human existence. But, we are not equal in how we perceive these objectives; moreover, we are not equal in possessing the talents and skills that enable us to pursue the many activities found within human existence, for some of us may have to expend a great effort to attain what it might take another little if any exertion. Moreover, there may well be a sound basis for saying that two people are unequal in certain regards. This is the intelligible and objective reality that underlies licensing schemes related to who gets to be a doctor, lawyer, pharmacist, plumber, electrician, etc.

It is the rational principle—reason tempered by empirical fact and the metaphysical nature of the human person—that demonstrates that there are distinctions between opposite-sex couples and same-sex couples. This critical distinction makes these couples unequal when the suggestion is made that for purposes of marriage they are equal. And this inequality is an exercise of justice that is true, not an injustice that is false. The source of the truth about human equality is beyond human definition and control, but it is knowable by the human person. However, this truth can be recognized by citizens and their legislators should they take the time to realize that this truth about marriage is something that transcends their ingenuity and control but can still be known by them as intelligent persons. Let us pray that the Congress of the United States will understand and accept this distinction that is crucial to the rule of law and the enduring validity of the DOMA.


RJA sj


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