A reader of the Mirror of Justice has posed three questions to me regarding the challenge to California’s Proposition 8 that is currently being challenged in Federal District Court in San Francisco. The three questions are these:
1. Is there a right to marriage? (Loving v. Virginia recognized a civil right to marriage, but is there a difference between a civil right and a natural right to anything?),
2. Is there such thing as marriage equality?, and
3. How are we supposed to understand equality, and the Equal Protection Clause of the 14th Amendment of the US Constitution?
I have discussed the relationship between Loving v. Virginia and the claims seeking the recognition of same-sex marriage here at MoJ and elsewhere. My efforts in discussing this pressing issue are based on the view that Catholic legal theory has something to say on the matter and that its perspective is applicable to the general public, Catholic or not, in furtherance of the common good. Here are some preliminary responses to our reader’s questions on the general issue of same-sex marriage and a few particulars about the Perry case.
1. In Loving the Supreme Court of the United States held that the laws of the Commonwealth of Virginia prohibiting marriage between a man and a woman of difference races violated the Constitutional rights of interracial couples consisting of one man and one woman. Does this mean that all prohibitions against marriage between two people come under the purview of Loving? I think that common sense, biological facts, general Constitutional doctrine, and Catholic legal theory would say no to this question: not all prohibitions against marriage infringe on the rights conferred by Loving on interracial couples. By way of illustration: polygamous groups, couples where one or both persons is or are young minors, and couples who are closely related by blood cannot claim the right conferred by the Loving doctrine. I contend that Catholic legal theory supports the argument that same-sex couples are in the same boat as polygamous groups, minors, and closely related blood relatives. Why? The claims made by an interracial couple are substantively different from those made by a same-sex couple—just as they are different from those of polygamous groups, young minors, and close blood relatives. I further contend that civil and natural rights must have some basis in facts that permit some distinctions but not others between or among people. This is why Catholic social thought relies on the distinction between “discrimination” and “unjust discrimination.”
2. The question “is there such a thing as marriage equality?” is too broad for a prudent answer without examining contexts of application. As my response to the first question suggests, there are some important facts that can justify distinctions that need to be considered regarding claims to “marriage equality.” Having read the Complaint in Perry v. Schwarzenneger, I acknowledge that the claim to equality is vital to the case which the plaintiffs present. But, are they in fact truly equal to opposite-sex couples? Let me pose a hypothetical to which I think both the civil law and Catholic theory would have the same response regarding the Complaint’s allegations about equality: two planets capable of sustaining human life are colonized by human beings from earth. To the first planet only opposite-sex couples who are “married” are sent. To the second planet, only same-sex couples who are “married” are sent. Let us assume that there are no sexual relations in either grouping outside of the partnership established by the “marriage” and that neither planet has the capacity for technology-assisted births. Assuming no further contact with the planet Earth and its inhabitants, in one hundred years which planet will likely still have human life? The answer should be clear. It is easy to declare something equal with something else, but in fact it may well be not.
3. I submit at this point that my responses to the first two questions shed some light on how the third is and must be addressed. However, I will offer this thought here: the law restricting marriage to opposite-sex couples applies equally to all people regardless of their sexual orientation. Any man can marry any woman—taking into consideration such factors as age and blood relation—and, any woman can marry any man taking stock of the same considerations just mentioned. This norm applies across the board equally. This is an important point that the Complaint does not choose to acknowledge. It insists, however, that “gay and lesbian individuals are therefore unable to marry the person of their choice.” Yet the same prescription applies to close relatives and to persons below a certain age who are also denied marrying “the person of their choice.” The further claim that California law “treats similarly-situated people differently” is false because opposite-sex and same-sex couples are not and never will be similarly-situated notwithstanding claims to the contrary. In this regard, all share the same rights and face the same prohibitions. This is equality pure.
RJA sj
BC's dean, John Garvey, has this to say on conscience rights in the context of tomorrow's U.S. Senate race in his state.
