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
Following up on Michael's post regarding Andy Koppelman's review of George et al.'s book (phew!) . . . here's a piece by Prof. Steven Smith, with whose work I imagine most of us are familiar, from Public Discourse, called "The Red Herring of 'Marriage Equality.'" As both the George et al. book and Andy's review of it remind us, it is not possible to avoid, in the argument / debate / conversation about same-sex marriage and whether its legal recognition is constitutionally or morally required, the question of what "marriage" is. And, I'm inclined to agree with Steve that, often, the appeal to "equality" (as in "marriage equality") in this context unhelpfully skips past this question, or assumes a contestable answer to it. (And, Andy would say, in response, that those who oppose legal recognition of same-sex marriage do the same thing.)
This sometimes happens, of course, in the abortion debate, too, when the question is framed as "why shouldn't a woman have the right to decide what to do with a part of her body?" when, after all, those who abortion would agree that (generally speaking) we all have a right to decide what to do with a "part of [our] bodies" -- the right question is, "is the unborn child, for purposes of answering a question about what we may do to him or her, a person?"
Tuesday, March 26, 2013
Northwestern law prof Andy Koppelman reviews, in the new issue of Commonweal, the book What Is Marriage? Man and Woman: A Defense, by Sherif Girgis, Ryan Anderson, and Robert P. George. The book is the basis of an amicus curiae brief that Robert George et al. have submitted to SCOTUS in the two "gay marriage" cases being argued before SCOTUS this week. Read Andy's review and see whether you agree with his evaluation of the book, which ends with this:
"That claim’s most fundamental difficulty is
the short distance from premise to conclusion. The union of the married
heterosexual couple is uniquely good because...well, because the union
of the married heterosexual couple is uniquely good. This raw intuition
comes decorated with a complex theoretical apparatus, but that apparatus
does no work. It’s like one of those old trick math problems, which at
first glance seems to require complex computations:
7 + 8,398.14 × B ÷ √55 - 8,398.14 × √55 ÷ B = ?
Look again, and it’s clear that all the complexity cancels itself out, and that you end up right back where you began.
The publication of What Is Marriage?
is a public service. It advances understanding of a perspective that
many (though fewer and fewer) Americans share, but it is unlikely to
persuade anyone who doesn’t already agree with its claims. It is a lucid
window into a disappearing worldview."
The entire review is here.
Here is a link to the welcome decision by the Indiana Supreme Court upholding the constitutionality of the state's voucher program. http://www.in.gov/judiciary/opinions/pdf/03261301bd.pdf
Richard M.
... is the title of yet another
insightful essay by Erika Bachiochi, this time on the Public Discourse today. She presented these remarks at a recent meeting of the United Nations Commission on the Status of Women. This work is part of an effort by the newly-organized
Catholic Women's Forum, a group spearheaded by Helen Alvare, which Helen describes as "a body of women
scholars, lawyers, and other professionals devoted to the holistic advancement
of women and girls by contributing research, publications, and presentations in
public and international venues, particularly the United Nations."
I've tried to dial back our society's emerging presumption that "discrimination" is always bad, as have others (including Rick). Re'em Segev has a new paper offering a working definition of "wrongful discrimination" that might shed more light than heat:
Discrimination is a central moral and legal concept. However, it is also a contested one. Particularly, accounts of the wrongness of discrimination often rely on controversial and particular assumptions. In this paper, I argue that a theory of discrimination that relies on premises that are general (rather than unique to the concept of discrimination) and widely accepted provides a plausible (exhaustive) account of the concept of wrongful discrimination. According to the combined theory, wrongful discrimination consists of allocating a benefit that is not supported by a morally significant fact (a valid reason), or in a way that involves distributive injustice, or both.
