Sunday, May 8, 2011
Though the arguments of those who are opposed to marriage equality are mostly based not upon logic and reason but instead upon religious concepts of right and wrong, one argument in particular is quite elegant and deserves a detailed response. Because of its power, I have been seeing it used more often in the debate over marriage equality. Those who are opposed to granting civil marriage rights to gays and lesbians claim that gays and lesbians are not being discriminated against because they are free to marry someone of the opposite sex. Though this argument may seem ludicrous to any gay or lesbian person, it deserves a thought out response.
First, as many know, the Supreme Court of the United States struck down such logic in the Loving v. Virginia case of 1967. This case dealt with interracial marriage, and those who were for banning such marriages said that it did not violate the Equal Protection Clause of the Constitution because it treated all classes as equal. It did not allow blacks to marry whites, and it did not allow whites to marry blacks. Whites were only allowed to marry whites and blacks were only allowed to marry blacks. This was logic that pervaded the United States in the late 19th/early 20th centuries, and was even upheld by the Supreme Court in Pace v. Alabama in 1883. In the Pace decision,the Court affirmed that because the law applied to whites and blacks equally, it did not violate the Equal Protection Clause.
In the Loving decision, the Court dramatically switched course from its previous decisions, and instead of upholding Virginia's interracial marriage ban, struck it down, stating in so many words that "equal application" is not the same as equal protection of law. Though I realize that the case dealt with race, and the higher scrutiny afforded to race based distinctions, the logic still applies. Equal application does not necessarily mean equal protection.
Those who hold to this equal application concept also do not recognize that they are advocating an interpretation of law with the end result of equality of outcome. How so, you might ask? To one who believes in the logic being discussed, the sexual orientation of the marriage partner does not matter because all men can marry women and vice versa. Thus, the outcome of every marriage is equal - man/woman. To one who believes this, the means and reasons by which people get married are not worth considering - the end result is all that matters. Who cares if the marriage is arranged, forced, or one of love - it gives the end result of man/woman marriage. This type of equality is also known as "formal equality".
A more nuanced version of equality, on the other hand, takes into account more than just the outcome and the end. In this version of equality, the opportunities of the individuals pursuing marriage are taken into account. And if this more nuanced approach to the discussion is taken, it can be seen that the "heterosexual" definition of marriage does not give equal opportunity to gay and lesbian citizens. Gay and Lesbians do not have the ability to fall in love or find sexual satisfaction with someone of the opposite sex, so therefore keeping marriage heterosexual denies these individuals the opportunity to pursue a relationship that would end in matrimony. The type of equality that recognizes this, and affirms that the means to an end are just as important as the end itself, is known as "substantive equality".
Thus, under the simplistic formal equality of outcome model, gays and lesbians do have the same rights as heterosexuals. But that model cheapens what marriage is about. Marriage is not just some formal mechanism of one man and one woman. If that is the case, any means to achieve that end is legitimate. Instead, Western society rejects this notion and says that the means matter in marriage. That is why the latter view of a more substantive equality of opportunity is more nuanced, elegant, and applicable in modern society than any formal mathematical marriage formula.
As always, I would love to hear your thoughts!