“Sometimes the grossest discrimination can lie in treating two things that are different as if they were alike.” In this 1974 statement, the Supreme Court summarized the case against a constitutional equality right to same-sex marriage.
Supporters of a same-sex marriage right appeal to the Fourteenth Amendment’s Equal Protection Clause. There are two ways to violate equal protection: one is by treating two things that are alike as different, such as the racist practices of the Old South; the other, noted by the court in the passage above, is by treating two different things as alike, such as treating minors as adults or non-citizens as citizens.
In the same-sex marriage debate, either same-sex couples are or are not relevantly similar to opposite-sex couples. According to the principle of equality, if they are similar, they should be treated similarly; if not, they can be treated differently.
This dispute does not primarily involve equality—everyone assents to the basic principle—but whether the two types of couples are relevantly similar. Equality does not tell us if they are similar. It only tells us that we must treat them similarly if we have first assessed them as similar. It tells us nothing regarding the crux of the issue: are same-sex and opposite-sex couples relevantly similar? The answer to this most pertinent question depends on one’s answers to more fundamental questions.
Every Form of Marriage Discriminates
There are many possible marriage statutes. We could limit marriage to couples; to couples in love; to sexually intimate couples; to opposite-sex couples; to human couples; to couples not closely related; to legal adults. Note that each of these discriminates: against polygamous relationships; against couples not in love, not sexually intimate, same-sexed, of mixed species, consanguineous, and minors.
The limits we favor, which characteristics are relevant to marriage, depend on our view of relationships, sexuality, and human nature. Is exclusivity relevant to marriage? For many people it is, but not for polygamy supporters, who think numbers are irrelevant to loving relationships or view marriage as a social construct. Is gender relevant to marriage? For many it is, but not to same-sex marriage proponents, who disdain traditions or view gender as irrelevant to marriage. Should parents be free to marry children? It depends on one’s view of family relationships and sexuality. Must marriage partners be human? Not to those who think animals retain the same moral status as human beings. Whether any of these (and other) factors are relevant to the right to marry depends on one’s more fundamental philosophical, anthropological, and sociological views.
The constitution cannot resolve these differences of opinion regarding human sexuality, relationships, and marriage. In fact, the judiciary engages in contradiction by recognizing a novel form of marriage. Because each person thinks his or her view of this very personal issue is correct, each feels stigmatized and discriminated against by marriage rights that violate his or her view of marriage. In upholding same-sex marriage in the name of equality, the judiciary violates the equality of offended polygamy and incestuous marriage proponents, as well as the equality of opposite-sex couples opposed to same-sex marriage. In this instance, bigotry is experienced either by those whose view is prohibited (polygamists) or by those whose view of marriage is judged as equal to one they think relevantly different (opposite-sex couples).
Here’s How Gay Marriages Hurt Natural Marriage
Supreme Court Justice Elena Kagan was oblivious to this fact in the oral arguments in Hollingsworth v. Perry. She asked the counsel defending opposite-sex marriage what harm these couples would suffer by a right to same-sex marriage. The California law in dispute gave same-sex couples every right and privilege of opposite-sex couples except the title of “marriage.” The only harm they suffered was mental suffering or stigma. Blinded by her liberal ideology, Kagan failed to realize that opposite-sex couples opposed to same-sex marriage would suffer the legal and political insult of having their marriages equated with ones they viewed as discrepant and inferior to theirs. They would suffer what the Supreme Court has described as the grossest discrimination—being treated equally with those who are relevantly different.
This mental harm endured is similar to that which physicians would experience if the judiciary, in the name of equality, granted homeopathic doctors the same medical license as physicians, or that which the most heroic soldiers would endure if the judiciary required the government to bestow the Medal of Honor on all soldiers. Both physicians and Medal of Honor recipients would feel treated unfairly by the depreciation of something they value. Of course, medical licensing boards and the federal government could make such allowances, but neither homeopathic doctors nor soldiers could cogently claim an equality right to such recognition.
To claim a constitutional right to same-sex marriage is to assert that the Constitution privileges a particular view of human sexuality and relationships over many other possible forms of partnering. It does not. Nor do tradition, custom, common law, or precedent; in fact, they weigh against it. For the court to privilege this novel form is to discriminate against the others and insult them. Judicial recognition of a right to all types of marriage would still create inequality: those who esteem a specific type of marriage, such as proponents of opposite-sex monogamy, would suffer the grossest discrimination of having their view treated as equal to one they view as relevantly different. (Originalist judges, who look to legal understandings extant at the country’s founding rather than contemporary trends, are not subject to this contradiction.)
There Are No Non-Discriminatory Laws
There is no neutral marriage statute. Every marriage law will violate some citizens’ equality, and in fact most legislation does. Any political minority can suffer stigma. Prostitution statutes treat prostitutes’ view of human sexuality and commerce with contempt. Laws banning exhibitionism stigmatize proponents’ beliefs about sexuality. Dog-fighting bans treat with animus those with divergent views of entertainment. All of these citizens can claim they are being treated unequally vis-à-vis other citizens who are able to fulfill their sexual and entertainment lifestyles. But to recognize rights to these banned activities is to demean participants in non-commercial sex or those who treat animals humanely. It robs these latter activities of their significance.
If we cannot discern a specific form of human relationships and sexuality that the Constitution privileges, then constitutional equality is not implicated by traditional marriage statutes because we cannot assess the relevant similarity of all possible marital forms. We cannot determine what equal protection requires, namely, that we treat similar cases similarly, if we do not know whether the cases are similar. And if we do not know if they are similar, we do not know whether gender, exclusivity, consanguinity, and a host of factors are relevant to marriage, because we cannot say a particular view of relationships, human sexuality, or human nature is correct. For judges to recognize a particular view that they favor violates the democratic citizenry’s right to decide these essentially political issues. They would be imposing their view of what is right, that is, their morality, on citizens.
There is no equality right to same-sex marriage because the principle of equality and the Equal Protection Clause are silent on both the same-sex marriage right and on which forms of partnering are relevantly similar to opposite-sex marriage. The pluralism inherent in the fundamental issues of human relationships and sexuality begets disagreements better resolved by legislatures and state referenda, which our democratic constitution privileges, rather than the judiciary. State legislatures—not the federal judiciary—should have jurisdiction over marriage law, as acknowledged even by Laurence Tribe, the preeminent liberal constitutional scholar of our age: “Marriage, unlike other manifestations of intimate association, is a contract controlled by the state—and like any other institution—it is subject to the control of the legislature.”
Democracies can address changes that are necessary. After all, it was democratic processes, not the judiciary, that established racial equality in the Equal Protection Clause and the Civil Rights Acts. Moreover, states have already legislated novel views of sexuality and relationships through democratic means. When the judiciary usurps the right of citizens to resolve these important cultural and political issues, it creates contradiction, perverts the Constitution, and subverts democratic self-government.