The Marriage Debate I: Confusions about ‘Equality’ and ‘Discrimination’
Jan 9, 2013
George Weigel
The Supreme Court’s decision to hear arguments about the constitutionality of the federal Defense of Marriage Act (DOMA) and California’s 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 Court’s interpretation of that state’s 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, that’s 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 politics—the 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? That’s the argument; it has considerable emotive power.
But it’s wrong.
In their recent book, What Is Marriage? Man and Woman: A Defense (Encounter Books), three Catholic thinkers with Princeton connections—Robert P. George (who holds Woodrow Wilson’s old chair at that eminent university) and two of his former students, Sherif Girgis and Ryan Anderson—argue persuasively, and on grounds of reason, that America can’t arrive at a serious answer to this question—Should 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 can’t marry their children. Brothers and sisters can’t marry. People beneath a certain age can’t marry. People who are already married can’t marry.
In other words, governments, whether autocratic, aristocratic, monarchical, or democratic, have always “discriminated”—i.e., made distinctions—in 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, it’s 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,” aren’t you jarred? Doesn’t something seem, not just unfamiliar, but mistaken? Do you have the same instinctive reaction—Something’s awry here—when 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 that’s 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.
George Weigel is Distinguished Senior Fellow of the Ethics and Public Policy Center in Washington, D.C. His previous “On the Square” articles can be found here.
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Comments:
1.9.2013 | 8:23am
Robert McCann says:
Mr Wiegel: Your claim for why society should continue to restrict marriage to opposite sex couples is that excluding state recognition of the relationships of same-sex couples as marriages "promotes the well-being of children and the promotion of family life." How so? In jurisdictions where same-sex marriages are recognized, approximately 99% of marriages licenses continue to be issued to opposite-sex couples. The well being of their children, along with their family life, is completely unaffected by the other 1%. Meanwhile, to the extent that a marriage commitment on the part of the heads of an opposite-sex household enhances the well-being of THEIR children and THEIR family life, it surely does the same for households headed by same-sex couples. So, again, I ask you: How so?
1.9.2013 | 9:13am
Pat says:
To that point then, shouldn't any and all "special considerations" given to "marriage" just be eliminated? Shouldn't it be changed to be rights and privileges afford to the person "to whom you point at"? Why would you continue the bigotry associated with granting special rights "only to the married"?
If marriage is only about the person to whom you want to associate with, sexually or otherwise, so that you can take advantage of certain privileges, then why marriage at all? Why not just point?
If marriage is only about the person to whom you want to associate with, sexually or otherwise, so that you can take advantage of certain privileges, then why marriage at all? Why not just point?
1.9.2013 | 10:03am
Guest says:
A billion years of evolution has so ingrained the idea that two people of the same sex don't fit together in the same way that people of the opposite sex do that no amount of state indoctrination will ever change it.
This is really a silly debate. Even if the entire world redefines marriage to mean any two or three or whatever people it will still not change the reality that only 2 people of the opposite sex can actually get married, become a couple rather than a pair, fit together corporally without violating basic biological rules.
Plus, a husband will always imply a wife. Even children at very young ages know there's some wrong (I have personal experience to this effect) that they have to ask their parents whether two men can really marry. They never doubt that men and women can and do. But confronted with 2 men or women they ask can that happen? It's very innocent but it's a powerful clue as to what the state is trying to impose on nature.
If the state imposes a radical definition on 330 million people, it will be directly responsible for increasing tensions and animosity for generations to come. Language will be the first victim and then who knows. Everyone, including the most strident activists know what marriage is and what it isn't but alas ideology trumps reality and decency.
This is really a silly debate. Even if the entire world redefines marriage to mean any two or three or whatever people it will still not change the reality that only 2 people of the opposite sex can actually get married, become a couple rather than a pair, fit together corporally without violating basic biological rules.
Plus, a husband will always imply a wife. Even children at very young ages know there's some wrong (I have personal experience to this effect) that they have to ask their parents whether two men can really marry. They never doubt that men and women can and do. But confronted with 2 men or women they ask can that happen? It's very innocent but it's a powerful clue as to what the state is trying to impose on nature.
If the state imposes a radical definition on 330 million people, it will be directly responsible for increasing tensions and animosity for generations to come. Language will be the first victim and then who knows. Everyone, including the most strident activists know what marriage is and what it isn't but alas ideology trumps reality and decency.
1.9.2013 | 10:58am
Nicole Resweber says:
"When the November 2, 2012, issue of Entertainment Weekly refers to Lincoln screenwriter Tony Kushner as “the husband of Entertainment Weekly columnist Mark Harris,” aren’t you jarred? Doesn’t something seem, not just unfamiliar, but mistaken?"
If "it sounds weird; must be wrong" is really the best argument against cultural change, it's a wonder that we've seen any social advancement at all. The tautological claim that marriage must be between a man and a woman because marriage is between a man and a woman, whatever else it may be, is simply not good logic.
If "it sounds weird; must be wrong" is really the best argument against cultural change, it's a wonder that we've seen any social advancement at all. The tautological claim that marriage must be between a man and a woman because marriage is between a man and a woman, whatever else it may be, is simply not good logic.
1.9.2013 | 12:01pm
Kent says:
The PBS series on slavery currently being broadcast makes it very clear that "logic" and "reason" were essentially completely ineffective in convincing anyone that slavery was wrong. The appeals that carried the day (on both sides) were completely emotional. (One can encapsulate this by saying, "People are not logical but psycho-logical, with the emphasis on 'psycho'".)
Therefore any assertion that "homosexual rights" imply and will necessarily cause trampling on First Amendment freedom of religion rights will pail before unelaborated shouts of "equality!" and "justice!" And nobody wants to be told that these so-called "rights" are really no more than a call for societal approval of mutual masturbation. Indeed my mere mentioning of this is probably going to be brainlessly dismissed as "hate speech", even though I truly intend it as a presentation of fact - I try very hard not to hate anyone, only the evil that is done.
Therefore any assertion that "homosexual rights" imply and will necessarily cause trampling on First Amendment freedom of religion rights will pail before unelaborated shouts of "equality!" and "justice!" And nobody wants to be told that these so-called "rights" are really no more than a call for societal approval of mutual masturbation. Indeed my mere mentioning of this is probably going to be brainlessly dismissed as "hate speech", even though I truly intend it as a presentation of fact - I try very hard not to hate anyone, only the evil that is done.
1.9.2013 | 12:34pm
Richard says:
Yes, when I read about the fellow in Entertainment Weekly and his partner, another male, I am indeed jarred. It really doesn't make a lot of sense to me. I just don't think it is any of my business. And if those people want to join together and have legal benefits accorded to the normal married couple, why not? I just don't think that will lead to the destruction of our culture. And those that do are speculating and have no business telling everyone what the "truth" is.
1.9.2013 | 1:04pm
Michael PS says:
Traditionally marriage has always had a vertical dimension, as well as a horizontal one.
In his evidence to the Pécresse Commission of 2006, Archbishop of Paris André Vingt-Trois expressed this very well, "Even though it has not taken the modern form familiar in our civil legislation, there has always been a means of handing things down from generation to generation, which is the very basis of continuity and stability in a society. This transmission between generations is primarily effected by the family. It is the legal framework of family life that structures the transmission of life and shapes the future of society.”
Marriage is about the relations between generations, legal and social, in a way that civil unions and unregulated cohabitation are not.
In his evidence to the Pécresse Commission of 2006, Archbishop of Paris André Vingt-Trois expressed this very well, "Even though it has not taken the modern form familiar in our civil legislation, there has always been a means of handing things down from generation to generation, which is the very basis of continuity and stability in a society. This transmission between generations is primarily effected by the family. It is the legal framework of family life that structures the transmission of life and shapes the future of society.”
Marriage is about the relations between generations, legal and social, in a way that civil unions and unregulated cohabitation are not.
1.9.2013 | 2:25pm
gentlemind says:
There is an important follow-up point that often goes unmade (as in the article above) with regard to "distinctions". The ways in which marriage is regulated (minimum age, consanguinity, etc) all make sense within the context of procreation and parenting. The only restriction that (arguably) makes sense where procreation is not possible (in principle) is that of "one marriage at a time.
The distinctions are the line that draws the shape of marriage. The shape, clearly, is omean and one woman.
The distinctions are the line that draws the shape of marriage. The shape, clearly, is omean and one woman.
1.9.2013 | 2:57pm
Mary says:
Unfortunately, I must agree that the argument from a typical reaction to the report of two men as "married" proves nothing, except our cultural conditioning. In the nineteenth century, it was "jarring" to see a woman in slacks; not so now. Of course, the fact that we are culturally conditioned to expect marriage to be between a man and a woman also does not prove that this is not a sound moral rule. We are also culturally conditioned no longer to react with distaste to co-habiting unmarried couples; yet research seems to show that such co-habitation does not provide stability to family units to the same extent as committed (married) unions and many moral codes still condemn the relationship, at least in theory.
The question of whether "discrimination" (making a difference between situations) is unjust is, however, susceptible to a reasoned argument. And whether the same-sex marriage debate is legitimately like the civil rights movement for racial equality is a question that can be logically discussed. Illegal discrimination usually has meant that the basis for making a difference is, in fact, irrelevant to the difference being drawn. For example, refusing to hire a black person for a job on the basis of skin colour is unjust because we now understand that skin colour has nothing to do with how well an individual can perform in employment. Once the idea that people who were not white were morally and intellectually inferior was discredited, discrimination on that basis became obviously unjust.
Traditional marriage draws a distinction on the basis of an established fact: biological differentiation between men and women. For all efforts in some quarters to challenge that differentiation, it remains a general fact, attributable to the vast majority of human beings. Thus, "discrimination" by restricting marriage to a man and a woman and prohibiting it to members of the same sex is not unjust discrimination, at least not in the same way that racial discrimination was unjust. This does not necessarily settle the question of whether same-sex "marriage" should be the law or not; but it does undercut the emotional appeal that this is the civil rights issue of the 21st century as racial discrimination was for the 20th.
The question of whether "discrimination" (making a difference between situations) is unjust is, however, susceptible to a reasoned argument. And whether the same-sex marriage debate is legitimately like the civil rights movement for racial equality is a question that can be logically discussed. Illegal discrimination usually has meant that the basis for making a difference is, in fact, irrelevant to the difference being drawn. For example, refusing to hire a black person for a job on the basis of skin colour is unjust because we now understand that skin colour has nothing to do with how well an individual can perform in employment. Once the idea that people who were not white were morally and intellectually inferior was discredited, discrimination on that basis became obviously unjust.
Traditional marriage draws a distinction on the basis of an established fact: biological differentiation between men and women. For all efforts in some quarters to challenge that differentiation, it remains a general fact, attributable to the vast majority of human beings. Thus, "discrimination" by restricting marriage to a man and a woman and prohibiting it to members of the same sex is not unjust discrimination, at least not in the same way that racial discrimination was unjust. This does not necessarily settle the question of whether same-sex "marriage" should be the law or not; but it does undercut the emotional appeal that this is the civil rights issue of the 21st century as racial discrimination was for the 20th.
1.9.2013 | 4:39pm
Nancy D. says:
There is no correlation between denying personhood due to ancestry, and discriminating between a sexual relationship that respects the inherent personal and relational Dignity of the human person and a sexual relationship that does not.
1.9.2013 | 6:11pm
Ken Zaretzke says:
A pro-same-sex marriage decision by the Supreme Court will probably be based on liberty or equality or the right to privacy--and conceivably justice, but not very likely.
A liberty or privacy basis for same-sex marriage would have the startling implication of making no-fault divorce nothing less than a constitutional right, one that *must* be permitted by the government. The same reasons that mandate public recognition of same-sex marriage will mandate the legal permissibility of no-fault divorce. By contrast, if the equal protection clause is the basis for recognizing same-sex marriage, then there is no constitutional right of no-fault divorce, and states will be able to ban no-fault divorce if they so choose.
Unless the supporters of SSM know that Justice Anthony Kennedy supports a constitutional right to no-fault divorce (and they surely don't know that), then they will want to emphasize an equality basis for same-sex marriage--ignoring or downplaying the liberty and privacy bases. They will be staking everything on the risky claim that sterile and aged heterosexual couples are in exactly the same boat as homosexual couples.
The opponents of same-sex marriage should make it clear that, in talking about procreation in the context of marriage, they mean the general fact of procreation--or some similar description concerning marriage "writ large"--as opposed to procreation simpliciter. This will help them explain why sterile and aged opposite-sex couples are not in the same boat as same-sex couples.
A liberty or privacy basis for same-sex marriage would have the startling implication of making no-fault divorce nothing less than a constitutional right, one that *must* be permitted by the government. The same reasons that mandate public recognition of same-sex marriage will mandate the legal permissibility of no-fault divorce. By contrast, if the equal protection clause is the basis for recognizing same-sex marriage, then there is no constitutional right of no-fault divorce, and states will be able to ban no-fault divorce if they so choose.
Unless the supporters of SSM know that Justice Anthony Kennedy supports a constitutional right to no-fault divorce (and they surely don't know that), then they will want to emphasize an equality basis for same-sex marriage--ignoring or downplaying the liberty and privacy bases. They will be staking everything on the risky claim that sterile and aged heterosexual couples are in exactly the same boat as homosexual couples.
The opponents of same-sex marriage should make it clear that, in talking about procreation in the context of marriage, they mean the general fact of procreation--or some similar description concerning marriage "writ large"--as opposed to procreation simpliciter. This will help them explain why sterile and aged opposite-sex couples are not in the same boat as same-sex couples.
1.9.2013 | 7:11pm
David Draper says:
Take a look at Elton John and his husband holding their baby. (And look, they're pregnant again!)
http://blog.music.aol.com/2012/03/29/elton-john-new-baby/
http://blog.music.aol.com/2012/03/29/elton-john-new-baby/
1.9.2013 | 9:28pm
Don Roberto says:
Mr. McCann, Richard: the law is a teacher (as are all who express opinions), and sin always impacts others, because we are all part of the Body of Christ. We are all sinners, but Kushner , Harris, Degeneres and De Rossi (and Oprah and Obama and Biden and Brown—and *all* who advocate for sodomy) *teach* that evil is good. "Woe unto him through whom temptation comes."
"
I was in the hospital visiting my mother and saw on "prime time" a comedy show about two men living together in what appeared to be "marriage." I guess you'd say "if you don't like it, don't watch it." What about the naked people legally walking the streets of SF? What about the new sex-ed courses in public schools that include "gay is okay" teaching, and encourage children to "experiment" to "find their true selves"? What about the enormous costs AIDS has imposed on society?
Sodomy is behavior—learned behavior. We should not encourage its teaching. Evil impacts all of us and we must resist it.
"
I was in the hospital visiting my mother and saw on "prime time" a comedy show about two men living together in what appeared to be "marriage." I guess you'd say "if you don't like it, don't watch it." What about the naked people legally walking the streets of SF? What about the new sex-ed courses in public schools that include "gay is okay" teaching, and encourage children to "experiment" to "find their true selves"? What about the enormous costs AIDS has imposed on society?
Sodomy is behavior—learned behavior. We should not encourage its teaching. Evil impacts all of us and we must resist it.
1.9.2013 | 11:45pm
Randy McDonald says:
"There is no correlation between denying personhood due to ancestry, and discriminating between a sexual relationship that respects the inherent personal and relational Dignity of the human person and a sexual relationship that does not."
But _how_ does a same-sex relationship disrespect the inherent personal and relational Dignity of the human person? Presumably the participants and supporters disagree.
But _how_ does a same-sex relationship disrespect the inherent personal and relational Dignity of the human person? Presumably the participants and supporters disagree.
1.10.2013 | 1:24am
Don Roberto says:
Randy, it does so in the same way any habit of sin (perversion) does—same as fornication, gluttony, substance addiction, sloth, etc. And public recognition of perversion as "equal" to something good and holy (real matrimony) is truly wicked, insofar as it flies in the face of God's Word and teaches the innocent (of all ages) that evil is good.
1.10.2013 | 4:02am
Michael PS says:
Ken Zaretzke
The question of infertile opposite-sex infertile couples is really a red herring.
Such couples may be infertile because one or both of them are suffering from a range of pathologies, or they may be too old, or it may be simply a question of volition. Some of these conditions may appear to be irremediable, whereas others are plainly not. Besides, some conditions that, in the past, were irremediable are now treatable and it would be a bold legislator who attempted to anticipate such advances. To establish a screening process would be burdensome, expensive, intrusive and litigious, especially given current advances in reproductive medicine and assisted reproduction.
Moreover, an opposite-sex infertile couple can make as if they have procreated; that is, by adoption, they can present to the child, and to the wider community, the model of the natural (procreative) family, which, some experts assert, makes the establishment of the parental bond between the adopters and the adopted child easier and spares adopted children the additional difficulty of having to integrate into a “non-standard” family, however loving.
The question of infertile opposite-sex infertile couples is really a red herring.
Such couples may be infertile because one or both of them are suffering from a range of pathologies, or they may be too old, or it may be simply a question of volition. Some of these conditions may appear to be irremediable, whereas others are plainly not. Besides, some conditions that, in the past, were irremediable are now treatable and it would be a bold legislator who attempted to anticipate such advances. To establish a screening process would be burdensome, expensive, intrusive and litigious, especially given current advances in reproductive medicine and assisted reproduction.
Moreover, an opposite-sex infertile couple can make as if they have procreated; that is, by adoption, they can present to the child, and to the wider community, the model of the natural (procreative) family, which, some experts assert, makes the establishment of the parental bond between the adopters and the adopted child easier and spares adopted children the additional difficulty of having to integrate into a “non-standard” family, however loving.
1.10.2013 | 5:45am
Nancy D. says:
Randy, Marriage exists for the Good of the husband, the Good of the wife, and thus the Good of the Family that is created when a man and women are united as husband and wife. The question is, how do same-sex sexual acts, which are demeaning, serve the Good of those who engage in same-sex sexual acts?
1.10.2013 | 9:46am
Kim says:
I find Weigel's appeal to being "jarred" by the notion of a "woman and her wife" a very flawed approach. No one is jarred by this idea anymore. Why? Because Catholics are no longer "jarred" by the pervasive, non-medical use of contraceptives in their marriages, which wipes out the procreative (and "open to life") aspect of "natural" marriage (one of the two necessary components of a "natural" marriage). If Weigel wants people to be "jarred" by the idea of a "man and his husband", maybe Weigel better explain why Catholics should be "jarred" by the pervasive, non-medical use of contraceptives within marriages, and further clarify why Natural Family Planning is not a contraceptive (despite the fact that couples can, and sometimes do, use it with a contraceptive mentality). That would help clarify for Catholics what a "natural" marriage is, and then they would likely be jarred by the idea of same-sex "marriage!
1.10.2013 | 12:41pm
Heidi H. says:
Ken, you misunderstand the equal protection argument in favor of allowing same-sex couples to marry and its relationship to the issues of liberty and privacy. It is not necessarily tied to comparing which couples are fertile and which are sterile. Instead, Supreme Court precedent supports the following analysis:
1. The right to marry is a fundamental right of a citizen, protected by the substantive right to liberty in the 14th amendment due process clause, and any burden on that right must pass constitutional muster.
2. Adult voluntary decisions about intimate relationships, procreation, contraception, abortion to a limited extent, and childrearing are also fundamental rights that are protected by the rights of privacy and liberty that are inherent in the substantive component of the due process clause.
3. Individual adult citizens who would like to exercise their fundamental right to marry another willing and otherwise eligible adult citizen of their (private) choice are fully protected under state and federal laws if their chosen partner is of the opposite sex.
4. Individual adult citizens who would like to exercise their fundamental right to marry another willing and otherwise eligible adult citizen of their (private) choice are not fully protected under state and federal laws if their chosen partner is of the same sex.
5. Thus, the applicable state (marriage eligibility) and federal (DOMA) laws discriminate between adults who may marry the adult of their choice and adults who may not marry the adult of their choice and burden the fundamental right to marry of the latter group.
1. The right to marry is a fundamental right of a citizen, protected by the substantive right to liberty in the 14th amendment due process clause, and any burden on that right must pass constitutional muster.
2. Adult voluntary decisions about intimate relationships, procreation, contraception, abortion to a limited extent, and childrearing are also fundamental rights that are protected by the rights of privacy and liberty that are inherent in the substantive component of the due process clause.
3. Individual adult citizens who would like to exercise their fundamental right to marry another willing and otherwise eligible adult citizen of their (private) choice are fully protected under state and federal laws if their chosen partner is of the opposite sex.
4. Individual adult citizens who would like to exercise their fundamental right to marry another willing and otherwise eligible adult citizen of their (private) choice are not fully protected under state and federal laws if their chosen partner is of the same sex.
5. Thus, the applicable state (marriage eligibility) and federal (DOMA) laws discriminate between adults who may marry the adult of their choice and adults who may not marry the adult of their choice and burden the fundamental right to marry of the latter group.
1.10.2013 | 1:51pm
Ken Zaretzke says:
Michael PS,
I agree. The so-called “sterility objection” raised by supporters of same-sex marriage is misguided. Sexual complementarity is ordered to procreation. Success in the *achievement* of sexual complementarity (intercourse), alongside perpetual failure in the *results* of sexual complementarity (non-pregnancy), remains ordered to procreation. Sterile and aged opposite-sex couples have what same-sex couples lack.
My point was that if privacy or liberty constitutionally guarantee that intimate sexual relationships encompass civil marriage for same-sex (non-complementary) couples, then the same liberty and privacy must guarantee to such relationships the availability of no-fault divorce. Otherwise the courts will be taking away with their right hand what they give with their left hand, by expanding the entry but limiting the exit of intimate sexual relationships, and making arbitrary determinations about the liberty and privacy supposedly central to those relationships.
In other words, as a constitutional corollary of same-sex marriage, no-fault divorce is a no-brainer--but also a disaster. It puts a spotlight on the unintended consequences of same-sex marriage. Supporters of same-sex marriage should probably ask SCOTUS to rule for same-sex marriage on equality grounds, where the no-fault divorce dilemma doesn’t arise, and under the terms of which no-fault divorce can--as it is now--be permitted but does not have to be permitted.
Now, I believe you would agree that equality implies similar-situatedness, and that it’s counterintuitive to regard opposite-sex and same-sex couples as similarly situated in terms of sexual complementarity. Marriage rationally assumes sexual complementarity.
I would add that an equality basis for SSM will find no special support from *Casey* and *Lawrence*, unlike (arguably) a privacy or liberty rationale. Another little problem for the advocates of “marriage equality.”
I agree. The so-called “sterility objection” raised by supporters of same-sex marriage is misguided. Sexual complementarity is ordered to procreation. Success in the *achievement* of sexual complementarity (intercourse), alongside perpetual failure in the *results* of sexual complementarity (non-pregnancy), remains ordered to procreation. Sterile and aged opposite-sex couples have what same-sex couples lack.
My point was that if privacy or liberty constitutionally guarantee that intimate sexual relationships encompass civil marriage for same-sex (non-complementary) couples, then the same liberty and privacy must guarantee to such relationships the availability of no-fault divorce. Otherwise the courts will be taking away with their right hand what they give with their left hand, by expanding the entry but limiting the exit of intimate sexual relationships, and making arbitrary determinations about the liberty and privacy supposedly central to those relationships.
In other words, as a constitutional corollary of same-sex marriage, no-fault divorce is a no-brainer--but also a disaster. It puts a spotlight on the unintended consequences of same-sex marriage. Supporters of same-sex marriage should probably ask SCOTUS to rule for same-sex marriage on equality grounds, where the no-fault divorce dilemma doesn’t arise, and under the terms of which no-fault divorce can--as it is now--be permitted but does not have to be permitted.
Now, I believe you would agree that equality implies similar-situatedness, and that it’s counterintuitive to regard opposite-sex and same-sex couples as similarly situated in terms of sexual complementarity. Marriage rationally assumes sexual complementarity.
I would add that an equality basis for SSM will find no special support from *Casey* and *Lawrence*, unlike (arguably) a privacy or liberty rationale. Another little problem for the advocates of “marriage equality.”
1.10.2013 | 7:08pm
David Draper says:
"But _how_ does a same-sex relationship disrespect the inherent personal and relational Dignity of the human person? Presumably the participants and supporters disagree."
For example, when a man enters another man's rear end and all that that entails, it disrespects the inherent personal and relational dignity of the two human persons involved.
For example, when a man enters another man's rear end and all that that entails, it disrespects the inherent personal and relational dignity of the two human persons involved.
1.11.2013 | 5:06am
Michael PS says:
Heidi H
“another willing and otherwise eligible adult citizen of their (private) choice.”
But “otherwise eligible” raises a great many questions. One would have to examine the rationale of the prohibited degrees, for example. Do they tell us anything about the kind of relationship that marriage is, or about family structure? Are there different reasons for the different prohibitions?
“another willing and otherwise eligible adult citizen of their (private) choice.”
But “otherwise eligible” raises a great many questions. One would have to examine the rationale of the prohibited degrees, for example. Do they tell us anything about the kind of relationship that marriage is, or about family structure? Are there different reasons for the different prohibitions?
1.11.2013 | 7:20am
LHF says:
For decades now the left has worked to undermine the biologically related family. The primary goal of the left is to establish and maintain a powerful central government - strong, biologically related families are the best defense against an overambitious state.
Whether homosexuals realize it or not, they are being used. The left has moved on to openly advocating legalizing all manner relationships for the purpose of obtaining economic benefits. See beyondmarriage.org, where the clear agenda of a collection of prominent leftist academics and social activists is clearly described.
Don't get me wrong - the notion of two men or two women "marrying" is a ludicrous joke, arguments for which are easily defeated by biology. However, permitting genderless marriage serves a longterm goal of the left and it will serve that purpose by encouraging removal of all restrictions on who may marry, leading to the elimination of marriage entirely.
Whether homosexuals realize it or not, they are being used. The left has moved on to openly advocating legalizing all manner relationships for the purpose of obtaining economic benefits. See beyondmarriage.org, where the clear agenda of a collection of prominent leftist academics and social activists is clearly described.
Don't get me wrong - the notion of two men or two women "marrying" is a ludicrous joke, arguments for which are easily defeated by biology. However, permitting genderless marriage serves a longterm goal of the left and it will serve that purpose by encouraging removal of all restrictions on who may marry, leading to the elimination of marriage entirely.
1.11.2013 | 8:18am
gentlemind says:
Hi Heidi H
3. Individual adult citizens who would like to exercise their fundamental right to marry another willing and otherwise eligible adult citizen of their (private) choice are fully protected under state and federal laws if their chosen partner is of the opposite sex.
4. Individual adult citizens who would like to exercise their fundamental right to marry another willing and otherwise eligible adult citizen of their (private) choice are not fully protected under state and federal laws if their chosen partner is of the same sex.
5. Thus, the applicable state (marriage eligibility) and federal (DOMA) laws discriminate between adults who may marry the adult of their choice and adults who may not marry the adult of their choice and burden the fundamental right to marry of the latter group.
Note the interplay between the individual (a citizen/person) and the relational. All individual citizens have the right to marry (form the relationship of marriage). Since marriage gives the right to found a family, and since the human body exists only in the form of a physically permanent union of two other bodies (one man and one woman), only one relationship is a marriage.
The legal recognition of the unique physical ability of marriage does not impinge on other relationships. However, giving the right to found a family to relationships that are not marriages does impinge on the legal recognition (protection) of marriages. Even if 98% of people chose to form relationships that were not one man and one woman, the law would still have a duty to protect the natural rights of the 2% who formed marriages.
3. Individual adult citizens who would like to exercise their fundamental right to marry another willing and otherwise eligible adult citizen of their (private) choice are fully protected under state and federal laws if their chosen partner is of the opposite sex.
4. Individual adult citizens who would like to exercise their fundamental right to marry another willing and otherwise eligible adult citizen of their (private) choice are not fully protected under state and federal laws if their chosen partner is of the same sex.
5. Thus, the applicable state (marriage eligibility) and federal (DOMA) laws discriminate between adults who may marry the adult of their choice and adults who may not marry the adult of their choice and burden the fundamental right to marry of the latter group.
Note the interplay between the individual (a citizen/person) and the relational. All individual citizens have the right to marry (form the relationship of marriage). Since marriage gives the right to found a family, and since the human body exists only in the form of a physically permanent union of two other bodies (one man and one woman), only one relationship is a marriage.
The legal recognition of the unique physical ability of marriage does not impinge on other relationships. However, giving the right to found a family to relationships that are not marriages does impinge on the legal recognition (protection) of marriages. Even if 98% of people chose to form relationships that were not one man and one woman, the law would still have a duty to protect the natural rights of the 2% who formed marriages.
1.11.2013 | 3:17pm
Ken Zaretzke says:
Heidi H,
You're conflating equal protection constitutional rationales with liberty and/or privacy rationales. (These last two are not the same, although both are rooted in the political value of personal autonomy, which happens to be the key jurisprudential value of the "Decider," Justice Kennedy.) Substantive due process is a liberty/privacy rationale. Constitutional scholars disagree about which of the basic rationales is best for arriving at a pro-SSM decision.
The equal-protection rationale, as I implied, boils down to the supposed inequality of permitting sterile and aged opposite-sex couples to marry but not same-sex couples. There is another equality rationale, the one offered in *Baehr* (traditional marriage is "gender discrimination"), but it is considered extreme and implausible even by pro-SSM scholars such as Evan Gerstman. It has no chance of making it past the current Supreme Court, so I ignored it
You talk about fundamental rights in a constitutional void. The Supreme Court originally, in the early '70s, regarded abortion as a fundamental right, but then later retreated to regarding it as a "liberty interest." Since the putative right to abortion is based on liberty and privacy (the physician-woman relationship) rather than on equality, this is a problem for those who want to use *Casey* and its progeny, *Lawrence,* to support a pro-SSM decision.
Needless to say, I don't think there are any sound, or impartial, reasons for regarding SSM as a constitutional right.
You're conflating equal protection constitutional rationales with liberty and/or privacy rationales. (These last two are not the same, although both are rooted in the political value of personal autonomy, which happens to be the key jurisprudential value of the "Decider," Justice Kennedy.) Substantive due process is a liberty/privacy rationale. Constitutional scholars disagree about which of the basic rationales is best for arriving at a pro-SSM decision.
The equal-protection rationale, as I implied, boils down to the supposed inequality of permitting sterile and aged opposite-sex couples to marry but not same-sex couples. There is another equality rationale, the one offered in *Baehr* (traditional marriage is "gender discrimination"), but it is considered extreme and implausible even by pro-SSM scholars such as Evan Gerstman. It has no chance of making it past the current Supreme Court, so I ignored it
You talk about fundamental rights in a constitutional void. The Supreme Court originally, in the early '70s, regarded abortion as a fundamental right, but then later retreated to regarding it as a "liberty interest." Since the putative right to abortion is based on liberty and privacy (the physician-woman relationship) rather than on equality, this is a problem for those who want to use *Casey* and its progeny, *Lawrence,* to support a pro-SSM decision.
Needless to say, I don't think there are any sound, or impartial, reasons for regarding SSM as a constitutional right.
1.11.2013 | 5:07pm
AKO Webmail says:
@Nancy D.
"How do same-sex sexual acts, which are demeaning, serve the Good of those who engage in same-sex sexual acts?"
In the same that that kissing your daughter or hugging your dad serve the good of the family unit. Just because sexual acts doesn't mean that both a family and love can not exist in such an environment. Being able to marry is optional, however if that right is removed, the minority are being suppressed by the majority. Suppressing the minority has never been a good thing throughout history.
"How do same-sex sexual acts, which are demeaning, serve the Good of those who engage in same-sex sexual acts?"
In the same that that kissing your daughter or hugging your dad serve the good of the family unit. Just because sexual acts doesn't mean that both a family and love can not exist in such an environment. Being able to marry is optional, however if that right is removed, the minority are being suppressed by the majority. Suppressing the minority has never been a good thing throughout history.
3.19.2013 | 6:44pm
Don Roberto says:
AKO: To say that sodomy is the same as kissing my daughter is like saying that murder is the same as spanking my wayward toddler. And no serious person thinks they can "suppress" sin. But the gay movement (filled with people who self-identify with their sin) is, to be frank, especially evil, in that it seeks to normalize sin—to teach that run-of-the-mill evil is good.
Discouraging sin (in this case, behavior that places physical desire unconnected with a higher good, i.e., the bonding and union of two human beings in order to procreate) is *always* good.
And for those who do not believe in Christian docrine (e.g., materialists), I would say that sexual union between those of the opposite sex is inevitably more pleasurable than sexual union between those of the same sex (or between those of different species). Evolution has refined the organs with great precision.
Discouraging sin (in this case, behavior that places physical desire unconnected with a higher good, i.e., the bonding and union of two human beings in order to procreate) is *always* good.
And for those who do not believe in Christian docrine (e.g., materialists), I would say that sexual union between those of the opposite sex is inevitably more pleasurable than sexual union between those of the same sex (or between those of different species). Evolution has refined the organs with great precision.
The long standing legal concept of comity was established for citizens in Article IV, Section 2, Clause 1 of the U.S. Constitution - the Privileges and Immunities clause - which provides:
"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
Section 2 of the Defense of Marriage Act, 28 USC § 1738C, provides:
"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."
Consequently, DOMA purports to permit a state to refuse to recognize a same-sex marriage valid under the law of another state. DOMA does not prohibit a state from recognizing the validity of same-sex marriage, but is does say "something" about what states "may or may not define as marriage" within their borders. While governments may "have always 'discriminated'—i.e., made distinctions—in their marriage laws" as Mr. Wiegel asserts, American courts have often - but not always - refused to countenance distinctions contrary to a specific constitutional provision.
Mr. Wiegel may recall that there were many Americans that found "something awry" with "miscegenation" prior to Loving v. Virginia, 388 U.S. 1 (1967). Being "jarred" is hardly a solid ground for an argument about the nature of "anything." He should perhaps "try" again.