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.

Wednesday, March 27, 2013

The Proposition 8 Case and the Equality Argument


Yesterday’s oral arguments on the California Proposition 8 case disclosed many interesting thoughts about the meaning of marriage not only in California but everywhere else. Today’s oral arguments which should be underway by now will likely do the same. The scope of my posting today is limited to the very first remarks made by Theodore Olson arguing on behalf of the Respondents (those seeking to legalize same-sex marriage in California, and elsewhere) and the Solicitor General Donald Verrilli, Jr. who argued in support of the Respondents’ position. Mr. Olson opened his argument with this:

[Proposition 8] walls-off gays and lesbians from marriage, the most important relation in life, according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay.

In his opening words, General Verrilli said this:

Proposition 8 denies gay and lesbian persons the equal protection of the laws.

Both of these opening remarks are important and expected claims; however, both of them are untrue. Proposition 8 does not deny equality to anyone. Rather, it levels the playing field so that any person is treated the same when it comes to marriage. No one is stigmatized. No one is second rate. No one is unequal. All persons—heterosexual, homosexual, bi-sexual, transgendered, questioning, etc.—are in the same boat under Proposition 8; therefore, all are treated equally. There is no denial of equality; there is no instantiation of inequality by Proposition 8’s operation.

Knowing that I am entering a topic that bears great sensitivity, I want to express clearly that it is not my intention to insult, demean, or marginalize anyone and the dignity that is inherent to everyone. I think that there must be equal access to the claim of dignity which does not imply or require the further conclusion that all persons are equal in all respects nor must their ideas and positions be judged equal in all respects. To disagree with someone with different views on any subject—including same-sex marriage—is precisely that, to disagree—a disagreement that is based on intelligence comprehending and intelligible world. The nature of disagreement is to enter a debate with reasoned analysis and objective commentary supported by factual analyses. To disagree is not to demean; to debate is not to insult; to contradict with objective reasoning is not to marginalize or unjustly discriminate.

By insisting through legislation or adjudication that one thing is equal to something else does not in fact make it so (our human intelligence and our understanding of the intelligible world lead us to this conclusion)—for there must be some foundation based on facts and reason that can justify the equality claim (once again, our human intelligence and our understanding of the intelligible world inexorably lead us to this second conclusion). If this factual-rational foundation is lacking, the equality claim must necessarily fail unless the legal mechanism considering the claim 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. The promotion of “legal argument” that attempts to justify same-sex unions as being the equal of opposite-sex marriage is a contradiction of reason and fact which destabilizes the integrity of a legal system and the substantive law that undergirds it. 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 both generate physical pleasures through sexual intimacy, these two kinds of sexual relations 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 in error on other pertinent issues regarding same-sex unions and that the relationship between two persons of the same sex is the equal of the marriage between a man and a woman. What conclusions do we then reach as further considerations surrounding the marital context are pursued? These considerations include: 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; moreover, by denying the marital status to the partners of these other relationships is there also 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; a sexual 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 sexual 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.

The equality argument supporting same-sex marriage runs into difficulty when one considers that the heterosexual marriage partners, because of their biological nature, are typically capable of reproducing with one another but the homosexual partners are not. It is absolutely essential to take stock of the indisputable about the physical nature of the human being and its bearing on marriage. A homosexual man and a heterosexual man are presumed equally capable of inseminating any woman, and a lesbian and a heterosexual woman are presumed equally capable of being inseminated by any man. Why? Because intelligence and the intelligible world demonstrate this conclusion to be true. But no man, heterosexual or homosexual, can inseminate any other man. Nor can any woman, heterosexual or homosexual, inseminate another woman without the assistance of artificial means. Neither judicial nor legislative fiat can alter this biological reality of human nature. Any man can deposit his semen and sperm in another man, but this does not lead to fertilization of human eggs and procreation. No woman can produce sperm-bearing semen and inject it into another woman thereby leading to the fertilization of the second woman’s egg. The procreation argument against same-sex unions works not because of legal fiction or artifice but because of biological reality that is inextricably a part of human nature that has been a part of the traditional definition of marriage that the majority in Goodridge could not dispute. Again, human intelligence and the intelligible world are working in tandem when these conclusions are reached. Put simply, the Goodridge majority and others making similar claims ignore these crucial points about reality, and ignoring reality does not make for wise and sound law except for the steadfast positivist whose will typically overcomes the intellect. The only way to overcome this obstacle to the same-sex marriage campaign is to put aside the natural and historical definition of marriage and manufacture a new one that suits the needs of same-sex marriage advocates.

The final point I’ll offer today is this: heterosexual, homosexual, bi-sexual, transgendered, and sexually questioning persons share the same position under Proposition 8 which treats all alike. No heterosexual man can marry another man regardless of his orientation. No homosexual man can marry another man regardless of his orientation. No heterosexual woman can marry another woman regardless of her orientation. No homosexual woman can marry another woman regardless of her orientation.

This is not inequality; rather it is equality pure and simple. This is another reason why Mr. Olson’s and General Verrilli’s assertions are without merit.


RJA sj



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