THE ERROR OF GAY MARRIAGE
One thinks at times that one has fallen into a rabbit hole, and wonders if Lewis Carroll’s novel for children, Alice’s Adventures in Wonderland, may not have been prophetic. The on-going controversy over same sex marriage might very well demonstrate this, as it proves to be every bit as fanciful as anything Mr. Carroll could have invented.
The Inevitability of Sexuality
What is interesting about the case for “gay” marriage is that, whereas the Equal Protection Clause of the U.S. Constitution had been applied to those who suffered discriminatory treatment for what they are by simply having certain physically inherited traits, the homosexual activists would further the idea to encompass what is basically, behavior and more importantly personal conviction; that is, equal protection would be accorded by reason of what one does, and aberrantly, what one feels. The distinction is crucial, and while it cannot be reasonably denied that someone actually may feel sexual attraction towards another of his own gender, this alone should not make that person a homosexual, no more than just wanting to kill someone should make one a murderer.
While it is often repeated that homosexuality is not a choice, and that one is born “that way”, this could also apply to any sexual orientation or behavior in general. Sexual behavior arises, then, from a fundamental human need, the fulfillment of that need being satisfied by particular choices conditioned by personal desires; the same way, for example, as when one is hungry one may inexplicably prefer caviar to pizza. However, while the sexual attraction may not be a choice, nevertheless, for homosexuals to embrace the “gay” identity as a consequence of how they define or feel about themselves is a personal choice entirely, though a not unlikely reactionary one with respect to the expectations of society.
Homosexuals have, thus, developed strong, almost tribal, group identification and by this have constituted a class on this basis alone. However, this means nothing in itself as classes are invented for an occasion by selective criteria conforming to the needs of a desired objective. That is, if homosexuals are a class, so are surfers, stamp collectors, over-eaters and soccer fans who like caviar and dance the tango. They would make unique classes as well if there were ever a necessity for such classifications. The point here is that classifications are imaginary and are shaped by their criteria, and that it is inadvisable to legally classify people according to questionable criteria such as supposedly intrinsic qualities or self-defined collective identities. That may be acceptable for sociologists and psychologists, but it is questionable for the law, and it raises serious issues. At what point does one stop being black and start being white, for mixed-race individuals? Where does one stop being straight and start being gay? What makes one French rather than English, and so on and so forth? In each case a member of any of those classifications can claim that he “just feels that way”. Does there exist any objective criteria, or must the law be continually mired in labels?
Therefore, since one can never know what someone else is really feeling, a person can only be objectively defined by the criteria of behavior. To define and label oneself a homosexual, then, requires a personal, subjective judgment, which may be susceptible to change, but would not constitute an objective state of being. The written law, also, not considering subjective states of mind, personal feelings or the self-pronouncements of individuals, but only acts, assumed in principle to be of free will, can only be applied to behavior. Homosexuality, therefore, cannot be legally considered an immutable or inexorable condition. So while the law does recognize sexual acts, by contrast, sexual orientation continues to remain legally vague and undefined except as acts, insofar as there is no limit as to what may orient a sexual attraction or provoke a sexual response in people at any given moment. This means that people may be sexually attracted to different things at different times, and that a classification based on subjective, supposedly permanent states of mind is not addressing the reality of sexuality. Someone may find himself in one class on one occasion, and in another class on some other. The only objective criteria for classification that should logically concern the law would be statistical patterns of behaviors. A sexual preference or orientation may be rationally defined, then, by the statistical pattern of one’s choices of sexual partners. In this manner, one may be more or less “gay” or “straight”, or whatever other sexual practice or orientation there might be, based on whom he had relations with, and not on how he was feeling at the moment. This would be a more objective and logically consistent way to classify people for the situation in which homosexuals find themselves; otherwise, the law would be giving people the option of deciding for themselves how they should be classified, and this happens all the time. By way of example, there was the case of a young Caucasian man who sued to be legally classified as black, because that was how he “felt”. The court, sanely this time, rejected his claim. The court’s ruling, however, was inconsistent with other case law establishing classifications of identification concerning religious, political and ethnic affiliations or creeds as well as sexual orientation.
That homosexuals have been identified as a class in some jurisdictions and established in case law testifies more to their successful lobbying efforts than any logical imperative, and perhaps also, a lack of intellectual vigilance — or even bias — on the part of the judges deciding these things. The Massachusetts ruling is an example of this. Judges are not infallible. The point must also be made that legal classifications by these criteria are equally racist, or sexist, or whatever other “isms” one could care to imagine, and their adoption leads to perverse effects every bit as much as ordinary “isms”. The US legal system has headed down that road, however, and by that has created a lot of employment for lawyers.
The Confusion of Classes
All individuals in democratic societies are, in principle, equally bound to the same legal requirements of the law regardless of preferences, sexual or otherwise. The law, rightly, does not consider an individual’s feelings or opinions about himself. That a person’s desire is coincidently to have sex with someone of his own gender and not for dancing the tango, let us say, may be unfortunate in the case of marriage, but the law is the law, and no denial of equal treatment can be claimed. But the reasoning of “gay” rights activists invents a distinct class characterized by an avowed sexual preference in opposition to another class with supposedly different sexual preferences, and enjoying privileges denied to the former on this basis alone, purportedly creating a situation of unequal treatment before the law. If a heterosexual has the right to marry another heterosexual, so the reasoning goes, then equal treatment under the law should permit a homosexual to marry another homosexual. Basically, then, “gay” rights activists are arguing that the marriage law was made by heterosexuals for heterosexuals, thus maintaining the social and legal supremacy of heterosexuality over homosexuality; and that the legal requirement that men marry only single, unrelated women is unfair to men who would prefer to marry other men, their mother or the family pet. The Massachusetts Judicial Supreme Court majority stated, for example:
"For no rational reason the marriage laws of the Commonwealth discriminate against a defined class;"
The idea put forward of one class being denied a right enjoyed by another is utterly contrived, because it depends heavily on the legitimacy of those classifications. Furthermore, while that right might be denied to some imaginary class, nonetheless, it is not being denied to any real individual; that is, every person has the right to marry, and this is only denied should a person choose to classify himself within a deniable class. It is not uncommon even for homosexually orientated persons to marry their sexual opposites and raise families. It is not the right to marry then, that is denied, but the right to marry the person of choice that would be denied if this were contrary to the law. But how legitimate are those classifications from a constitutional standpoint?
The Confusion of Same-Sex Relationships and Homosexual Relationships
Many people mistakenly assume that persons who would marry someone of their own gender are necessarily homosexual. This confusion of two orders of classes, really, is understandable, but these are not the same. The majority of persons who may want to marry someone of their own gender may be incidentally homosexual, but homosexuality, or any sort of sexuality, need not be presumed for same-sex relationships, since this model is basically non-sexual. Because of substantive due process, this sort of marriage would even have to be legally void of any such presumption of sexuality. Same-sex marriage, basically, eliminates gender and sex as the legal basis for marriage and institutes sentiment in its place. It would permit friends or any relationship of the same sex to marry and not necessarily just homosexual ones.
The traditional marriage between a man and woman is, however, the finality of the human mating ritual, where there is the rightful presumption that the nature of this relationship is sexual, this nature being primarily defined by its potentially procreative function, and the implication of sexual acts. This situation creates, then, the unequal and contestable legal dilemma of presuming there exists a sexual nature for opposing-sex couples, but none for same-sex couples. To suppose a sexual nature, also, for same-sex relationships would violate due process and privacy, since the law would neither require a sexual relationship as a condition for marriage, nor verify that marriage partners do, indeed, engage in sexual acts. But, in turn, to make no presumption of sexuality for opposing-sex relationships by the denial of gender considerations would then deny the marriage institution of the “rational basis”, that is, any legitimate governmental purpose for most of its remaining requirements, and exclusivity, non-consanguinity and restrictions on minority could likely fail rational basis review. The only reason there are currently such interdictions is precisely due to this presumption of sexuality, and lacking this, a denial to those who would marry in these situations may no longer be warranted.
Just as important, if same-sex marriage were permitted, there would be no compelling reason for continuing to base the institution of marriage on the opposing-sex model; it could be based just as well on the same-sex model. There would be no reason to invest the marriage ceremony with the rituals or traditions of the heterosexual union, for the solemn exchange of vows, the ceremonial kiss. There would be no reason for marriage to be considered a sexual union or to even call it “marriage”. Marriage would become merely a contract regulating a domestic arrangement between persons, devoid of sanctity or specialness. Contrast that with the wishful and pompous assertion of the Massachusetts Judicial Supreme Court majority opinion ruling in favor of same-sex marriage when it says,
“Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries. But it does not disturb the fundamental value of marriage in our society.”
It just overturns it completely! To preserve any of the remaining enunciated legal requirements, it would be necessary to establish them by judicial or legislative fiat, but in the absence of any rational basis, and the ruling gives intimations of that very eventuality:
“We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.”
No reason is offered as to why it is construed this way, why all others must be excluded and by what right the court has to define what marriage shall be. The restriction, then, on same-sex marriage actually denies the right to the class of “persons who would marry someone of their own gender”, and only incidentally concerns homosexuals to the extent that they may want to do this. This is why, constitutionally, one can speak only of “same-sex” marriage, and never of such a thing as “homosexual” or “gay” marriage. The classification of sexual orientation does not prove to be legitimate in the manner it is intended. The truly defined class against whom “the marriage laws of the Commonwealth discriminate” would be men or women, and not homosexuals as implied.
Equal Treatment for Men and Women
“A man can marry a woman, but a woman cannot. A woman can marry a man, but a man cannot. Each sex is being denied a right permitted to the other.”
The arguments of the same-sex advocates continue to nurture confusion between relationships based on gender with ones based on sexual orientation. The current marriage laws, however, only prevent women from marrying women, and men from marrying men; they say nothing about sexual orientation. Otherwise, there would be no good reason not to allow someone to marry his mother or the family pet, also, if sexual orientation or choice were the criteria.
And what exactly is this right — if, indeed, it even is a right — and is it really being denied to some and permitted to others? Is it simply the right to marry? Or is it the right to marry whomever one chooses? When analyzed correctly we see that no one is being denied the right to marry, but rather, one is being denied the right to unrestricted choice of marriage partner. But, this is true for all people, not just some, and also pertains to things other than gender. It pertains to age, consent, marital status and parentage also.
Or might it be the right to equal treatment under the law? Should men and women be treated — absurdly, one is compelled to add — as suspect classes and granted minority protections the same as some races, as the analysis seems to imply? This argument leads to a quick dead end.
What Marriage Is All About
Marriage is exclusively about two classes of people: the class of men and the class of women. It is not about the class of light-skinned people or dark-skinned people; it is not about the class of short people or the class of young people; it is not about the class of people who prefer others of the same sex, or those who prefer the opposite sex. It is about the sort of relationships that men and women have. When homosexuals argue that they should have the same rights and privileges as others, whom do they have in mind? Men? Women? Or is one compelled to infer from this argument the absurd assumption that homosexuals constitute a third sex? This is where their reasoning fails them. The idea that the world is divided into two classes — gays and straights — is one that exists in their imagination only. The idea that there are two kinds of couples — gay couples and straight couples — is one that engages them only.
The Equality of Relationships
We have seen that classifications of sexual orientation pertaining to marriage are not constitutionally valid, but for the sake of argument, let us assume they are. We hear, then, the recurrent demand of “gay marriage” advocates for the same, equal treatment of homosexual couples with respect to heterosexual couples. The plausibility of this argument relies on the comparative analogy that because a homosexual couple may live together like a husband and wife do; and because they may engage in sexual activities somewhat like a husband and wife do; and because they may have a sentimental relationship like a husband and wife might, then their relationship is no different from that of a husband and wife. All that is missing are the blessings of society. This is called the “emotional intimacy, sharing, love, partnering and emotional interdependency” argument, and the underlying fallacy of it supposes that there are no real differences between men and women, as though a man is just another sort of woman, and vice versa, and that the relationship between two men or two women is the same as that between a man and woman by the simple fact that they might engage in sexual acts together or share emotional bonds and living quarters. This is a little bit like saying the neighborhood school is no different from Harvard University because they both serve fish on Fridays and have a sports program.
People do many things in common, though, without this making them essentially similar in other ways. Though “emotional and affective” bonds may certainly exist between homosexual couples also, this would still be insufficient to make a valid comparison because there is no way of telling what anyone really feels, whether the emotions a homosexual couple may have for each other is at all like that between a man and woman, or the real reasons why anyone wishes to marry. Furthermore, sexual or emotional relations need not exist exclusively between adults, or between one human being and another. Would this make the relationship, then, should it exist between an adult and child, master and pet, or man and object equal to that of a man and woman based solely on the aforementioned criteria? Though people often advance the reason of love when they marry, this has never had legal value even for heterosexual couples. It is only necessary that couples fulfill certain objective requirements in order to marry.
Some, however, accept the validity of such arguments based on the sole judgment and testimony of the interested parties, reasoning, basically, that because two people say they love one another, or have long lasting, seemingly committed relationships, this would be sufficient that they be permitted to marry. This reasoning, however, ignores the very dynamics of the relationship between men and women and its wholly distinct and fundamentally sexual nature, and though such an appreciation may have to invoke philosophy and faith, nevertheless, if technical criteria were demanded, then objective differences do, indeed, exist. Men and women are, with respect to physique and function, not the same, and the relationships they form are fundamentally different from the friendships that characterize homosexual ones.
The institution of marriage, based on the reality of the relationship between men and women to accomplish a very specific purpose, is not merely a “love license”. While the counter-examples raised concerning infertile couples, couples past child bearing age or couples who have willingly decided not to have children, have been used as a rationale for same-sex couples to marry under similar circumstances, it must be emphasized that the marriage statutes are not conceived in function of particular cases, but rather in function of the model exemplified by the opposing-sex relationship. If the criteria established by the model are satisfied, then marriage must be allowed to all couples meeting those criteria by all standards of due process and constitutional law.
The Equality Of Same-Sex Relationships And Opposing-Sex Relationships
The question, then, would not be whether the model of the homosexual relationship is similar to that of the heterosexual one, but more pertinently, whether the same-sex relationship is similar to the opposing-sex relationship, since this would be really one constitutional issue of concern. One of the dissenting MJSC judges catching the flawed reasoning pointed out that:
“The classification is not drawn between men and women or between heterosexuals and homosexuals, any of whom can obtain a license to marry a member of the opposite sex; rather, it is drawn between same-sex couples and opposite-sex couples.”
In reviewing this question it must be determined whether the people classified by the law are, in fact, "similar" or "dissimilar". Are the relationship models equal? Are the partners in these respective models similar? Is the relationship between a husband and wife similar to that between two good “beer buddies”? No reasonable assessment would answer in the affirmative. At any given moment, one member of a same-sex couple is dissimilar to at least one member of an opposing-sex couple. Unless one sees no difference between men and women, one would think this should be sufficient to conclude that the couples are dissimilar. Would the potential to procreate, which is inherent in the heterosexual model, constitute another significant dissimilarity? Again, one would think so. The MJSC majority opinion asserts, however,
“The ‘marriage is procreation’ argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage”
This “unbridgeable difference” is far from insignificant, however, and would not be the essence of marriage only if marriage were merely a legalized sentimental relationship, as our "Wonderland" majority justices evidently see it when they go on to say:
“While it is certainly true that many, perhaps most, married couples have children together… it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.”
Now this is strange. Why, in the absence of children, “the exclusive and permanent commitment of the marriage partners to one another” should continue to merit special consideration on the part of society, or even have any importance at all, is a mystery. What would qualify the relationship between two people as a compelling enough state interest that government should institutionalize it, if it were not to provide a proper environment for the begetting and rearing of children? Marriage has traditionally been a legal situation concerning a human activity preceding even government, which is solely motivated by the procreative, sexual forces animating human beings. People do not mate because an institution has been created to permit it, but rather the institution of marriage arose to regulate a pre-existing activity; marriage is the lawful context in which the matings between men and women occur, and has everything to do with pro-creation. If not for this, marriage would have never existed, and would have no reason for continuing to exist. Why it should be applicable to the relationships of non-procreative models is a logical aberration. This is dismissed, however, in the court’s reasoning, and in its opinion the dissimilarities are not significant enough, in spite of the fact that there is a difference in the composition of the couples, a difference in their capacities, and a difference in the very natures of the respective relationships. One may criticize its logic here, but it is the quality of appreciation—or lack of it— that is significant. The MJSC has thus transformed a legal institution regulating a sexual relationship into one regulating a sentimental relationship. Wonderland logic!
The Confusion of Mixed-Race Couples and Opposing-Sex Couples
Homosexuality and heterosexuality may be more logically considered as patterns of behavior, and not as attributes like race or gender, as some arguments drawing the parallel between the restrictions on same-sex marriage, inter-racial marriage and the struggle for civil rights of a few years ago suggest. The Massachusetts majority opinion stated, for instance:
“Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race.”
“The equal protection infirmity at work here is strikingly similar to (although, perhaps, more subtle than) the invidious discrimination perpetuated by Virginia's antimiscegenation laws….”
Those types of comparisons suggest that the two marriage restrictions are similarly unjust, and that the partners of a couple are like those of different races, though this is not clear. However, to assume that men are like one race, and that women are another would quickly lead to an “inter-racial” marriage ban of this sort to be prohibitive for men and women to marry each other, and actually permit only same sex marriage! This is quite the opposite point the same-sex marriage advocates are seeking with this argument, which would have been valid had the laws been “miscegenation” laws restricting people to marry only races other than their own. But the same-sex marriage advocates explicitly make this point, that people can only marry someone of a gender not their own; but then, they miss the whole point of marriage altogether. The argument may be stated something like this:
At one time, a white could marry a white, but a black could not. A black could marry a black, but a white could not. Each race was being denied a right permitted to the other; just as today a woman is denied the right to marry a woman, and a man the right to marry a man.
The analysis, while convoluted, almost seems persuasive on first reading, and one is supposed to conclude from this that it is just as wrong to use gender as a basis to determine allowable marriage partners, as it is to use race. However, there are the flawed presumptions here that gender is no more pertinent to marriage than skin color; that the distinction between men and women is not important in any meaningful way that concerns the law; and that we are only concerned with people in general. If these were true, then, yes, a right is being denied to men and women.
The relationships between light-skinned and dark-skinned people, however, are not comparable to the relationships between men and women. Men and women engage in specific behavior and activities relative to each other, and it is upon this basis that the marriage relationship is realistically defined. No specific behavior and activities, however, define the relationships between light-skinned and dark-skinned people — or any other physical classifications of people in general — that can be comparable to the relationship between men and women. To define marriage as “a legal union between one person and another”, as the MSJC ruling did, is to refer to no specific relationship. It would not be realistic or even meaningful, then, for marriage to be defined as a union between a black person and a white person, or a fair-haired person and a short person, or any other combination of physical characteristics or lack of them, because none of those criteria can ever serve as a basis for marriage and still make sense. Nor should they; skin color, hair color, weight and other characteristics of people, are not pertinent to any specific relationship.
Gender is! Equating race and gender is erroneous precisely because it treats gender as just as unimportant to the marriage relationship as race would be. It would be equivalent to saying that the shape of a triangle is no more important to the triangle than its color. Gender defines the marriage relationship, while other physical characteristics really have nothing to do with it at all.
The Confusion of Class and Sub-Class
A simple example might explain other reasons. Among the class of shapes, there are sub-classes of shapes such as squares, triangles and circles. But anything that can be said about one shape — circles, for example — could not necessarily be said about the entire class of shapes. Summarily, properties applicable only to sub-classes are not necessarily applicable to the general class. Where marriage is concerned, race is secondary to gender, and those two classes would not be on a comparable footing; therefore, any strict comparison is bound to be wrong. Treating men as one race and women as another leads to the absurdity above.
Conversely, any property that defines a class is necessarily true for any of its sub-classes. Let us say that one of the defining properties of the class gender is that men and women enjoy the right marry each other. But when we find this not to be true in one of its sub-classes where black women are not permitted to marry white men and vice versa, a contradiction is created between a class and one of its sub-classes because of a clear violation of a defining property. The only thing that must be retained is that if it is true that men and women have the right to marry each other for the class of gender, then it must true for any of its sub-classes as well. Hence, anti-miscegenation laws were also a violation of logic.
Let us consider the case if gender were a sub-class of race. Let us say that one of the properties of race is that races do not inter-marry. This property would apply then to gender. Effectively, black women would not marry white men and vice versa. But, women in general would still marry men in general. If the ban on interracial marriage was wrong, it was precisely due to the inherent contradiction to the principal definition of marriage: that men and women marry each other. When people do marry each other, it is not as a function of race that they do so, but as a function of gender.
What the proponents of same- sex marriage overlook when they make their comparison is that the anti-miscegenation laws more pertinently prohibited a form of opposing-sex marriage; that is, the traditional definition of marriage is still assumed in the case of the inter-racial marriage ban, and any infringement of constitutional rights still retains the context of a man and woman who would otherwise be eligible to marry if not for a racially discriminatory measure; whereas, the case of the same-sex marriage ban would necessarily require a re-definition of marriage if the same situation of unequal treatment were to exist for same-sex couples. A dissenting MSJC judge made the following observation:
“…only by assuming that "marriage" includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the "right" of same-sex couples to "marry."
Equal governmental treatment would be constitutionally guaranteed to similar individuals, but any consideration of similarity would be with respect not to the one choosing to marry, but to the one being chosen for marriage. Therefore, an infringement of constitutional rights would exist in the case of a man prohibited by law from marrying a woman of another race because a woman — white, Asian or black — is still a woman, and thus similar in this way to every other woman. But this would not be true with respect to gender, and no reasonable assessment would consider a man as similar to a woman under the same circumstances, and vice versa. It would be necessary to eliminate gender distinctions to create a legal similarity (the consequences of which are discussed further on), and consider men and women as simply genderless persons as the MSJC did:
“We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.”
To define marriage as “the voluntary union of two persons as spouses ”, however, makes reference to no specific relationship, nor does it imply any realistic assessment of the nature of any other relationship except — by use of the word “spouse” — that of the male-female relationship. Otherwise, there are no references to any characteristics of behavior and activities that might define the relationship other than it is voluntary, and that the persons are considered “spouses” — whatever that might now mean — and not business partners, for example. In every instance, the argument against gender implicitly makes reference to the male-female relationship all the while challenging the validity and legal existence of that relationship. So, rather than an institution existing as a consequence of a realistic situation, we would have an imaginary situation existing as a consequence of an institution. As it pertains to marriage, the above definition is meaningless, another creation of Wonderland logic.
Final Notes on the Subject
What is often overlooked in the case of the inter-racial marriage ban is that a discriminatory injustice existed precisely due to unwarranted classifications of individuals. One could favorably argue that the principle of equal treatment had been respected, since the prohibition applied equally to whites, as well as non-whites. That argument, however, would apply equal treatment to classes and not to individuals, something the Constitution does not guarantee. The law in question could only have existed commensurate with racial classifications.
This, again, is entirely the opposite of one of the arguments the same-sex marriage advocates make, who are implicitly demanding the very thing that was wrong in the first place with the law banning inter-racial marriage; that is, the application of equal treatment to classes, in this case, homosexuals with regards to heterosexuals. The current marriage laws stipulate certain requirements, but make no classification or distinction concerning a person’s sexual orientation, which is really at issue here, the same-sex terminology notwithstanding. Sexual orientation, however, is not a condition for exclusion in the United States, unlike race once was. One can still legally marry regardless of sexual orientation. There would be no reason to make an exception to the opposing-sex requirement unless, of course, it is to yield to homosexual demands.
Though homosexual activists frame their cause as a civil rights issue, again there is another important difference —a diametrically opposed one, even— with respect to that movement and the gay rights movement. The civil-rights activists were asking that every individual receive equal treatment without regard to his race. But if sexual orientation can be likened to race as it is suggested, then ironically where marriage is concerned, homosexuals would already be receiving equal treatment without regard to their “race” — that is, sexual orientation — since no marriage law makes this distinction as some had done with skin color. To make an exception based on this distinction, however, would create a privilege and violate the very principle of equal treatment.
The Rational Basis for Marriage
The Massachusetts Judicial Supreme Court had made its ruling on the constitutional issue as to whether the legislative imposition of the opposing-sex requirement might not violate the constitutional rights of individuals with respect to the choice of marriage partner, and finally had less to do with sexual orientation, or any hypothetical similarity of homosexual and heterosexual couples, and more with the allowance of the gender distinctions that are inherent in the marriage statutes. To make a gender classification that fails “rational basis review”, thus serving no legitimate governmental purpose would constitute, thereby, an infringement of the constitutional rights of individuals to marry their chosen partners. In the court’s opinion, no gender distinction could be rationally justified, and the equality of individuals would, thus, be absolute.
“This right [to marry] is essentially vitiated if one is denied the right to marry a person of one’s choice.”
"Absolute equality before the law is a fundamental principle of our own Constitution."
The MSJC rejected the dissenting arguments on definition, linguistic convention, history, tradition, societal effects, flawed reasoning, wrong assumptions, faulty premises, constitutional law, procreation, family, child rearing and perhaps, good sense. The court made its ruling, really, on a revolutionary premise and a whim: because civil marriage is a creation of the governing bodies, these can define marriage as they will, and defining marriage as the union only between a man and woman was simply wrong.
MSJC: “We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution.”
The court decided that civil marriage must be unrelated to any relationship between a man and woman, that it is no part of the human mating ritual, and that it has nothing to do with procreation or sex. The question of choice of marriage partners turned on a particular concept of marriage, deforming it from its traditional understanding to now include, perhaps, anyone and quite possibly anything. Whimsically, they could see no harm in permitting same-sex couples to marry.
“Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage.”
But this is effectively what has been done. It is surprising that there are people — legal experts no less— who seem to not know, or perhaps, to have forgotten, that what is of concern here is not a semantic debate over the definition of marriage, but the legal status of the relationship existing between a man and a woman. No other relationship is concerned here.
The ruling relied on two principle arguments: the absolute equality of individuals before the law without distinction, in this case, to gender; and that a gender classification under rational basis review was unjustified; that is, no legitimate governmental purpose was found for creating such a classification. The court, in suppressing gender, had essentially argued that there is no legitimate governmental purpose for the legal existence of the male-female relationship, replacing the traditionally understood meaning of marriage with a legally understood one. By attempting to “elevate” the relationships of same-sex couples to those of opposing-sex ones, it has had the perverse effect of erasing the legal existence of the latter, substituting in its place the less specific “relationship between persons”, and changing the sexual nature of this relationship to the status of a friendship. What remains in essence is the commonly understood “domestic partnership”.
“That the classification is sex based is self-evident. The marriage statutes prohibit some applicants… from obtaining a marriage license, and that prohibition is based solely on the applicants' gender.”
Rational basis review, however, implicitly acknowledges in a legal or constitutional manner the fact that individuals are not really the same or equal in real life, and permits classifications in order to take into account the differences, should these pose problems for an orderly society. This is why there are separate toilets and changing rooms for men and women, why minors are treated by other legal standards, why insanity pleas work and why affirmative action legislation could be enacted. But is the court’s contention, that there is no rational basis for the opposing-sex requirement and gender distinctions reasonable?
The Law’s Real Intent
While same-sex marriage advocates speak of the ban on same-sex marriage, it is important to point out that no local, state or federal law has ever banned same-sex marriage. It just never happened. The language and intent of the law was always to promote opposing-sex marriage. This is quite different. The legitimate and compelling state interest has always been to promote the production of healthy, productive, future citizens, and the opposing-sex relationship is the only model that satisfies this interest. Same-sex relationships fail miserably, because this has never been its function. People who wish to marry someone of the same gender simply do not meet the established criteria designed to promote this interest; no more so than does someone who would want to marry the family pet. Failing to meet criteria in no way constitutes a ban, though one could twist logic to have it come out that way. (One could argue that being denied acceptance into the university of one’s choice because of poor grades also constitutes a ban…. on mediocrity.) When marriage criteria were established, it was in function of the most desirable goal for society, not the least desirable one. It has never been a legitimate state interest to promote private relationships that had no special socially useful purpose. A gender classification promotes this interest; eliminating this classification does not; completely the opposite of the Massachusetts court ruling. For this reason there is no compelling state interest to promote same-sex relationships in the same way that there are reasons for promoting opposite-sex relationships
The Slippery Slope?
The pro-creative capacity inherent in the opposing-sex relationship, then, serves the worthwhile and legitimate social goal of developing and maintaining populations and training citizens. But the inevitable contradictions and inconsistencies risked by eliminating gender distinctions from marriage would occur to the body of law, itself, with potentially significant economic and social consequences particularly with respect to the remaining requirements. Excepting the legal nightmare of much legislative tinkering and case-by-case rulings, the genders even of close relatives who wished to marry could very well have to be ignored if the constitutional equality of persons were to be fully upheld.
Here, the case can be made that the spouses in these situations would be, by the court’s definition, merely sexually undifferentiated “persons”, where there could be no presumption of sexuality. But there is a legitimate purpose for society to prevent these sorts of unions in the event that offspring are produced in complete legality. Since marriage would now have nothing to do with sex, polygamous or group marriages could be performed and considered as associations or private clubs, perhaps. Though it is argued that the likelihood of such things happening is remote, it must be remembered that the same could have been said of same-sex marriage just a few decades ago. It was only after a concerted lobbying effort over many years to change attitudes about homosexuality from one of tolerance to one of acceptance that homosexual activists felt confident enough to start pushing their agenda. Polygamy, incest, communal marriage and other “alternative sexualities” are not in the forefront as is homosexuality because their unpopularity continues to keeps their practitioners “in the closet.” With an agenda to change attitudes, however, there is no reason not to expect the same thing from these classes in the future. But more than likely, a lobbying effort by these other classes may not even be necessary once the precedent of “alternative sexuality” is accepted, the homosexual activists having blazed the trail.
This legal institution would regulate at the same time, then, and in various combinations, a socially important relationship whereby children are produced; a relationship of mere legality and hollow symbolism; another where gender distinctions would be crucial and socially important; and others where gender distinctions would be not at all important. This institution would be thorough mess and a legal nightmare open to constitutional challenges on all fronts; a one-size-fits-all legal garment, and it would fit just as well.
The Error with Gay Marriage
Why this has become an issue at all is evidently due to the successful lobbying efforts of homosexual rights activists, the arguments of whom are founded upon the grossly false assumptions and the faulty premises treated in this essay, and which fundamentally underlie all the confusion about the natures of same-sex and opposing sex relationships, having mixed these up with homosexual and heterosexual ones. This has to do also with the inapplicable and confused comparisons between these categories, and different, competing concepts of the nature of marriage, itself, one being a union of a profoundly sexual nature defined by the genders, as opposed to one that would be a mere contract regulating a sentimental relationship. The comparison often fails to distinguish between the differing natures of the homosexual relationship and the same-sex relationship — upon which the homosexual one is based — confusing the two, and inadvertently implying at times that both are sexual, whereas, they are not. It assumes that homosexual and heterosexual unions are both healthy alternative versions of the same relationship, whereas, they are not. It assumes that homosexuality and heterosexuality are intrinsic qualities, whereas, they are not. It assumes an equality between the two, whereas, there is nothing to equate. Homosexuality is not an alternative to the procreative heterosexual model. The relationships formed are not alternative mating models. The partners of these relationships are not alternative husbands or wives. Homosexuality may be a component of an identity, or it may not be. The opposing-sex relationship is fundamentally sexual; the same-sex relationship is fundamentally amicable or hostile, and where sex is involved, only superficially sexual. The partners of opposing-sex relationships are husbands and wives; the partners of same-sex ones are friends. The opposing-sex model is reproductively capable; the same-sex model is reproductively useless. The opposing-sex model is useful to society; the same-sex homosexual model is useless to society. All of the erroneous assumptions have led to aberrant court decisions and laws, which employ the same misguided principle as the inter-racial marriage ban, effectively promoting equality between classes, though with the reverse intention; that is, to include this time, rather than exclude, one class into another where it does not logically or naturally belong. Can the use of a defective principle, though, even for “noble causes”, ever be fair or achieve just results?
Conclusion
The same-sex marriage controversy is of the lineage of a well-orchestrated campaign that began not too long ago with the push to have homosexuality accepted as a normal, though alternative, form of sexuality, and the present case is simply the natural heritage of that objective. The idea has evidently gained ground, since just a few years ago the natural supposition would have been that there is something wrong with homosexuality; now the supposition is that something is wrong with the law. This controversy illustrates how bad logic and manipulation of the Equal Protection Clause can serve the ideological and political agenda of special interests, confusing everyone in the process. The same-sex marriage advocates, really, have not made one sound argument, and their method is reduced merely to an emotional claim for a privilege. One understands that government may justifiably create classes for the “advancement of legitimate governmental purposes”, but for the MSJC ruling one is at a loss here to understand just why a classification— gender— should have been suppressed, and for what legitimate purpose, insofar as the classification does serve a compelling state interest. The court’s re-definition of marriage has been not only anti-sexual, but also anti-intellectual insofar as it has entailed an impoverishment of legal concepts.
It is important to understand how impressionable minds can be manipulated by a rabbit-in-the-hat trick to accept that a class, entirely invented for the occasion, should become an unshakable reality; how people can accept uncritically that something is true, such as the claim that homosexual couples are no different from heterosexual couples, just because it is said often enough; that the word “discrimination” has acquired such a negative connotation that it must be necessarily evil and unconstitutional; that anything one feels about oneself must be a true, objective fact; and that something as worthy as the civil rights movement seeking equality for all, and its unworthy contradiction, demanding a privilege for the few, should perversely, both be “noble causes”. But most importantly, it is the entire concept of equality before the law that is called into question. There exist contradictory objectives that would claim everyone is equal as though there were no differences at all, and the necessity to recognize and classify according to differences in order to create the conditions of equality for all. Wise and honest governance recognizes the solid principles that would guide it in its reasoning, and the careless or dishonest use of that reasoning for purely political ends. The quality of our government finally depends less on mechanisms or lofty principles, and more on the moral and intellectual integrity of the men and women charged with responsibilities. But also, one must weigh the consequences of the decisions made today. Alice could as well have had her adventures in the “Wonderland of the 21st century. If one makes decisions according to ”Wonderland logic”, then one can expect a truly more bizarre and more confused future.
please seeThe Journal of UnCommon Sense for another version of this essay.
One thinks at times that one has fallen into a rabbit hole, and wonders if Lewis Carroll’s novel for children, Alice’s Adventures in Wonderland, may not have been prophetic. The on-going controversy over same sex marriage might very well demonstrate this, as it proves to be every bit as fanciful as anything Mr. Carroll could have invented.
The Inevitability of Sexuality
What is interesting about the case for “gay” marriage is that, whereas the Equal Protection Clause of the U.S. Constitution had been applied to those who suffered discriminatory treatment for what they are by simply having certain physically inherited traits, the homosexual activists would further the idea to encompass what is basically, behavior and more importantly personal conviction; that is, equal protection would be accorded by reason of what one does, and aberrantly, what one feels. The distinction is crucial, and while it cannot be reasonably denied that someone actually may feel sexual attraction towards another of his own gender, this alone should not make that person a homosexual, no more than just wanting to kill someone should make one a murderer.
While it is often repeated that homosexuality is not a choice, and that one is born “that way”, this could also apply to any sexual orientation or behavior in general. Sexual behavior arises, then, from a fundamental human need, the fulfillment of that need being satisfied by particular choices conditioned by personal desires; the same way, for example, as when one is hungry one may inexplicably prefer caviar to pizza. However, while the sexual attraction may not be a choice, nevertheless, for homosexuals to embrace the “gay” identity as a consequence of how they define or feel about themselves is a personal choice entirely, though a not unlikely reactionary one with respect to the expectations of society.
Homosexuals have, thus, developed strong, almost tribal, group identification and by this have constituted a class on this basis alone. However, this means nothing in itself as classes are invented for an occasion by selective criteria conforming to the needs of a desired objective. That is, if homosexuals are a class, so are surfers, stamp collectors, over-eaters and soccer fans who like caviar and dance the tango. They would make unique classes as well if there were ever a necessity for such classifications. The point here is that classifications are imaginary and are shaped by their criteria, and that it is inadvisable to legally classify people according to questionable criteria such as supposedly intrinsic qualities or self-defined collective identities. That may be acceptable for sociologists and psychologists, but it is questionable for the law, and it raises serious issues. At what point does one stop being black and start being white, for mixed-race individuals? Where does one stop being straight and start being gay? What makes one French rather than English, and so on and so forth? In each case a member of any of those classifications can claim that he “just feels that way”. Does there exist any objective criteria, or must the law be continually mired in labels?
Therefore, since one can never know what someone else is really feeling, a person can only be objectively defined by the criteria of behavior. To define and label oneself a homosexual, then, requires a personal, subjective judgment, which may be susceptible to change, but would not constitute an objective state of being. The written law, also, not considering subjective states of mind, personal feelings or the self-pronouncements of individuals, but only acts, assumed in principle to be of free will, can only be applied to behavior. Homosexuality, therefore, cannot be legally considered an immutable or inexorable condition. So while the law does recognize sexual acts, by contrast, sexual orientation continues to remain legally vague and undefined except as acts, insofar as there is no limit as to what may orient a sexual attraction or provoke a sexual response in people at any given moment. This means that people may be sexually attracted to different things at different times, and that a classification based on subjective, supposedly permanent states of mind is not addressing the reality of sexuality. Someone may find himself in one class on one occasion, and in another class on some other. The only objective criteria for classification that should logically concern the law would be statistical patterns of behaviors. A sexual preference or orientation may be rationally defined, then, by the statistical pattern of one’s choices of sexual partners. In this manner, one may be more or less “gay” or “straight”, or whatever other sexual practice or orientation there might be, based on whom he had relations with, and not on how he was feeling at the moment. This would be a more objective and logically consistent way to classify people for the situation in which homosexuals find themselves; otherwise, the law would be giving people the option of deciding for themselves how they should be classified, and this happens all the time. By way of example, there was the case of a young Caucasian man who sued to be legally classified as black, because that was how he “felt”. The court, sanely this time, rejected his claim. The court’s ruling, however, was inconsistent with other case law establishing classifications of identification concerning religious, political and ethnic affiliations or creeds as well as sexual orientation.
That homosexuals have been identified as a class in some jurisdictions and established in case law testifies more to their successful lobbying efforts than any logical imperative, and perhaps also, a lack of intellectual vigilance — or even bias — on the part of the judges deciding these things. The Massachusetts ruling is an example of this. Judges are not infallible. The point must also be made that legal classifications by these criteria are equally racist, or sexist, or whatever other “isms” one could care to imagine, and their adoption leads to perverse effects every bit as much as ordinary “isms”. The US legal system has headed down that road, however, and by that has created a lot of employment for lawyers.
The Confusion of Classes
All individuals in democratic societies are, in principle, equally bound to the same legal requirements of the law regardless of preferences, sexual or otherwise. The law, rightly, does not consider an individual’s feelings or opinions about himself. That a person’s desire is coincidently to have sex with someone of his own gender and not for dancing the tango, let us say, may be unfortunate in the case of marriage, but the law is the law, and no denial of equal treatment can be claimed. But the reasoning of “gay” rights activists invents a distinct class characterized by an avowed sexual preference in opposition to another class with supposedly different sexual preferences, and enjoying privileges denied to the former on this basis alone, purportedly creating a situation of unequal treatment before the law. If a heterosexual has the right to marry another heterosexual, so the reasoning goes, then equal treatment under the law should permit a homosexual to marry another homosexual. Basically, then, “gay” rights activists are arguing that the marriage law was made by heterosexuals for heterosexuals, thus maintaining the social and legal supremacy of heterosexuality over homosexuality; and that the legal requirement that men marry only single, unrelated women is unfair to men who would prefer to marry other men, their mother or the family pet. The Massachusetts Judicial Supreme Court majority stated, for example:
"For no rational reason the marriage laws of the Commonwealth discriminate against a defined class;"
The idea put forward of one class being denied a right enjoyed by another is utterly contrived, because it depends heavily on the legitimacy of those classifications. Furthermore, while that right might be denied to some imaginary class, nonetheless, it is not being denied to any real individual; that is, every person has the right to marry, and this is only denied should a person choose to classify himself within a deniable class. It is not uncommon even for homosexually orientated persons to marry their sexual opposites and raise families. It is not the right to marry then, that is denied, but the right to marry the person of choice that would be denied if this were contrary to the law. But how legitimate are those classifications from a constitutional standpoint?
The Confusion of Same-Sex Relationships and Homosexual Relationships
Many people mistakenly assume that persons who would marry someone of their own gender are necessarily homosexual. This confusion of two orders of classes, really, is understandable, but these are not the same. The majority of persons who may want to marry someone of their own gender may be incidentally homosexual, but homosexuality, or any sort of sexuality, need not be presumed for same-sex relationships, since this model is basically non-sexual. Because of substantive due process, this sort of marriage would even have to be legally void of any such presumption of sexuality. Same-sex marriage, basically, eliminates gender and sex as the legal basis for marriage and institutes sentiment in its place. It would permit friends or any relationship of the same sex to marry and not necessarily just homosexual ones.
The traditional marriage between a man and woman is, however, the finality of the human mating ritual, where there is the rightful presumption that the nature of this relationship is sexual, this nature being primarily defined by its potentially procreative function, and the implication of sexual acts. This situation creates, then, the unequal and contestable legal dilemma of presuming there exists a sexual nature for opposing-sex couples, but none for same-sex couples. To suppose a sexual nature, also, for same-sex relationships would violate due process and privacy, since the law would neither require a sexual relationship as a condition for marriage, nor verify that marriage partners do, indeed, engage in sexual acts. But, in turn, to make no presumption of sexuality for opposing-sex relationships by the denial of gender considerations would then deny the marriage institution of the “rational basis”, that is, any legitimate governmental purpose for most of its remaining requirements, and exclusivity, non-consanguinity and restrictions on minority could likely fail rational basis review. The only reason there are currently such interdictions is precisely due to this presumption of sexuality, and lacking this, a denial to those who would marry in these situations may no longer be warranted.
Just as important, if same-sex marriage were permitted, there would be no compelling reason for continuing to base the institution of marriage on the opposing-sex model; it could be based just as well on the same-sex model. There would be no reason to invest the marriage ceremony with the rituals or traditions of the heterosexual union, for the solemn exchange of vows, the ceremonial kiss. There would be no reason for marriage to be considered a sexual union or to even call it “marriage”. Marriage would become merely a contract regulating a domestic arrangement between persons, devoid of sanctity or specialness. Contrast that with the wishful and pompous assertion of the Massachusetts Judicial Supreme Court majority opinion ruling in favor of same-sex marriage when it says,
“Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries. But it does not disturb the fundamental value of marriage in our society.”
It just overturns it completely! To preserve any of the remaining enunciated legal requirements, it would be necessary to establish them by judicial or legislative fiat, but in the absence of any rational basis, and the ruling gives intimations of that very eventuality:
“We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.”
No reason is offered as to why it is construed this way, why all others must be excluded and by what right the court has to define what marriage shall be. The restriction, then, on same-sex marriage actually denies the right to the class of “persons who would marry someone of their own gender”, and only incidentally concerns homosexuals to the extent that they may want to do this. This is why, constitutionally, one can speak only of “same-sex” marriage, and never of such a thing as “homosexual” or “gay” marriage. The classification of sexual orientation does not prove to be legitimate in the manner it is intended. The truly defined class against whom “the marriage laws of the Commonwealth discriminate” would be men or women, and not homosexuals as implied.
Equal Treatment for Men and Women
“A man can marry a woman, but a woman cannot. A woman can marry a man, but a man cannot. Each sex is being denied a right permitted to the other.”
The arguments of the same-sex advocates continue to nurture confusion between relationships based on gender with ones based on sexual orientation. The current marriage laws, however, only prevent women from marrying women, and men from marrying men; they say nothing about sexual orientation. Otherwise, there would be no good reason not to allow someone to marry his mother or the family pet, also, if sexual orientation or choice were the criteria.
And what exactly is this right — if, indeed, it even is a right — and is it really being denied to some and permitted to others? Is it simply the right to marry? Or is it the right to marry whomever one chooses? When analyzed correctly we see that no one is being denied the right to marry, but rather, one is being denied the right to unrestricted choice of marriage partner. But, this is true for all people, not just some, and also pertains to things other than gender. It pertains to age, consent, marital status and parentage also.
Or might it be the right to equal treatment under the law? Should men and women be treated — absurdly, one is compelled to add — as suspect classes and granted minority protections the same as some races, as the analysis seems to imply? This argument leads to a quick dead end.
What Marriage Is All About
Marriage is exclusively about two classes of people: the class of men and the class of women. It is not about the class of light-skinned people or dark-skinned people; it is not about the class of short people or the class of young people; it is not about the class of people who prefer others of the same sex, or those who prefer the opposite sex. It is about the sort of relationships that men and women have. When homosexuals argue that they should have the same rights and privileges as others, whom do they have in mind? Men? Women? Or is one compelled to infer from this argument the absurd assumption that homosexuals constitute a third sex? This is where their reasoning fails them. The idea that the world is divided into two classes — gays and straights — is one that exists in their imagination only. The idea that there are two kinds of couples — gay couples and straight couples — is one that engages them only.
The Equality of Relationships
We have seen that classifications of sexual orientation pertaining to marriage are not constitutionally valid, but for the sake of argument, let us assume they are. We hear, then, the recurrent demand of “gay marriage” advocates for the same, equal treatment of homosexual couples with respect to heterosexual couples. The plausibility of this argument relies on the comparative analogy that because a homosexual couple may live together like a husband and wife do; and because they may engage in sexual activities somewhat like a husband and wife do; and because they may have a sentimental relationship like a husband and wife might, then their relationship is no different from that of a husband and wife. All that is missing are the blessings of society. This is called the “emotional intimacy, sharing, love, partnering and emotional interdependency” argument, and the underlying fallacy of it supposes that there are no real differences between men and women, as though a man is just another sort of woman, and vice versa, and that the relationship between two men or two women is the same as that between a man and woman by the simple fact that they might engage in sexual acts together or share emotional bonds and living quarters. This is a little bit like saying the neighborhood school is no different from Harvard University because they both serve fish on Fridays and have a sports program.
People do many things in common, though, without this making them essentially similar in other ways. Though “emotional and affective” bonds may certainly exist between homosexual couples also, this would still be insufficient to make a valid comparison because there is no way of telling what anyone really feels, whether the emotions a homosexual couple may have for each other is at all like that between a man and woman, or the real reasons why anyone wishes to marry. Furthermore, sexual or emotional relations need not exist exclusively between adults, or between one human being and another. Would this make the relationship, then, should it exist between an adult and child, master and pet, or man and object equal to that of a man and woman based solely on the aforementioned criteria? Though people often advance the reason of love when they marry, this has never had legal value even for heterosexual couples. It is only necessary that couples fulfill certain objective requirements in order to marry.
Some, however, accept the validity of such arguments based on the sole judgment and testimony of the interested parties, reasoning, basically, that because two people say they love one another, or have long lasting, seemingly committed relationships, this would be sufficient that they be permitted to marry. This reasoning, however, ignores the very dynamics of the relationship between men and women and its wholly distinct and fundamentally sexual nature, and though such an appreciation may have to invoke philosophy and faith, nevertheless, if technical criteria were demanded, then objective differences do, indeed, exist. Men and women are, with respect to physique and function, not the same, and the relationships they form are fundamentally different from the friendships that characterize homosexual ones.
The institution of marriage, based on the reality of the relationship between men and women to accomplish a very specific purpose, is not merely a “love license”. While the counter-examples raised concerning infertile couples, couples past child bearing age or couples who have willingly decided not to have children, have been used as a rationale for same-sex couples to marry under similar circumstances, it must be emphasized that the marriage statutes are not conceived in function of particular cases, but rather in function of the model exemplified by the opposing-sex relationship. If the criteria established by the model are satisfied, then marriage must be allowed to all couples meeting those criteria by all standards of due process and constitutional law.
The Equality Of Same-Sex Relationships And Opposing-Sex Relationships
The question, then, would not be whether the model of the homosexual relationship is similar to that of the heterosexual one, but more pertinently, whether the same-sex relationship is similar to the opposing-sex relationship, since this would be really one constitutional issue of concern. One of the dissenting MJSC judges catching the flawed reasoning pointed out that:
“The classification is not drawn between men and women or between heterosexuals and homosexuals, any of whom can obtain a license to marry a member of the opposite sex; rather, it is drawn between same-sex couples and opposite-sex couples.”
In reviewing this question it must be determined whether the people classified by the law are, in fact, "similar" or "dissimilar". Are the relationship models equal? Are the partners in these respective models similar? Is the relationship between a husband and wife similar to that between two good “beer buddies”? No reasonable assessment would answer in the affirmative. At any given moment, one member of a same-sex couple is dissimilar to at least one member of an opposing-sex couple. Unless one sees no difference between men and women, one would think this should be sufficient to conclude that the couples are dissimilar. Would the potential to procreate, which is inherent in the heterosexual model, constitute another significant dissimilarity? Again, one would think so. The MJSC majority opinion asserts, however,
“The ‘marriage is procreation’ argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage”
This “unbridgeable difference” is far from insignificant, however, and would not be the essence of marriage only if marriage were merely a legalized sentimental relationship, as our "Wonderland" majority justices evidently see it when they go on to say:
“While it is certainly true that many, perhaps most, married couples have children together… it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.”
Now this is strange. Why, in the absence of children, “the exclusive and permanent commitment of the marriage partners to one another” should continue to merit special consideration on the part of society, or even have any importance at all, is a mystery. What would qualify the relationship between two people as a compelling enough state interest that government should institutionalize it, if it were not to provide a proper environment for the begetting and rearing of children? Marriage has traditionally been a legal situation concerning a human activity preceding even government, which is solely motivated by the procreative, sexual forces animating human beings. People do not mate because an institution has been created to permit it, but rather the institution of marriage arose to regulate a pre-existing activity; marriage is the lawful context in which the matings between men and women occur, and has everything to do with pro-creation. If not for this, marriage would have never existed, and would have no reason for continuing to exist. Why it should be applicable to the relationships of non-procreative models is a logical aberration. This is dismissed, however, in the court’s reasoning, and in its opinion the dissimilarities are not significant enough, in spite of the fact that there is a difference in the composition of the couples, a difference in their capacities, and a difference in the very natures of the respective relationships. One may criticize its logic here, but it is the quality of appreciation—or lack of it— that is significant. The MJSC has thus transformed a legal institution regulating a sexual relationship into one regulating a sentimental relationship. Wonderland logic!
The Confusion of Mixed-Race Couples and Opposing-Sex Couples
Homosexuality and heterosexuality may be more logically considered as patterns of behavior, and not as attributes like race or gender, as some arguments drawing the parallel between the restrictions on same-sex marriage, inter-racial marriage and the struggle for civil rights of a few years ago suggest. The Massachusetts majority opinion stated, for instance:
“Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race.”
“The equal protection infirmity at work here is strikingly similar to (although, perhaps, more subtle than) the invidious discrimination perpetuated by Virginia's antimiscegenation laws….”
Those types of comparisons suggest that the two marriage restrictions are similarly unjust, and that the partners of a couple are like those of different races, though this is not clear. However, to assume that men are like one race, and that women are another would quickly lead to an “inter-racial” marriage ban of this sort to be prohibitive for men and women to marry each other, and actually permit only same sex marriage! This is quite the opposite point the same-sex marriage advocates are seeking with this argument, which would have been valid had the laws been “miscegenation” laws restricting people to marry only races other than their own. But the same-sex marriage advocates explicitly make this point, that people can only marry someone of a gender not their own; but then, they miss the whole point of marriage altogether. The argument may be stated something like this:
At one time, a white could marry a white, but a black could not. A black could marry a black, but a white could not. Each race was being denied a right permitted to the other; just as today a woman is denied the right to marry a woman, and a man the right to marry a man.
The analysis, while convoluted, almost seems persuasive on first reading, and one is supposed to conclude from this that it is just as wrong to use gender as a basis to determine allowable marriage partners, as it is to use race. However, there are the flawed presumptions here that gender is no more pertinent to marriage than skin color; that the distinction between men and women is not important in any meaningful way that concerns the law; and that we are only concerned with people in general. If these were true, then, yes, a right is being denied to men and women.
The relationships between light-skinned and dark-skinned people, however, are not comparable to the relationships between men and women. Men and women engage in specific behavior and activities relative to each other, and it is upon this basis that the marriage relationship is realistically defined. No specific behavior and activities, however, define the relationships between light-skinned and dark-skinned people — or any other physical classifications of people in general — that can be comparable to the relationship between men and women. To define marriage as “a legal union between one person and another”, as the MSJC ruling did, is to refer to no specific relationship. It would not be realistic or even meaningful, then, for marriage to be defined as a union between a black person and a white person, or a fair-haired person and a short person, or any other combination of physical characteristics or lack of them, because none of those criteria can ever serve as a basis for marriage and still make sense. Nor should they; skin color, hair color, weight and other characteristics of people, are not pertinent to any specific relationship.
Gender is! Equating race and gender is erroneous precisely because it treats gender as just as unimportant to the marriage relationship as race would be. It would be equivalent to saying that the shape of a triangle is no more important to the triangle than its color. Gender defines the marriage relationship, while other physical characteristics really have nothing to do with it at all.
The Confusion of Class and Sub-Class
A simple example might explain other reasons. Among the class of shapes, there are sub-classes of shapes such as squares, triangles and circles. But anything that can be said about one shape — circles, for example — could not necessarily be said about the entire class of shapes. Summarily, properties applicable only to sub-classes are not necessarily applicable to the general class. Where marriage is concerned, race is secondary to gender, and those two classes would not be on a comparable footing; therefore, any strict comparison is bound to be wrong. Treating men as one race and women as another leads to the absurdity above.
Conversely, any property that defines a class is necessarily true for any of its sub-classes. Let us say that one of the defining properties of the class gender is that men and women enjoy the right marry each other. But when we find this not to be true in one of its sub-classes where black women are not permitted to marry white men and vice versa, a contradiction is created between a class and one of its sub-classes because of a clear violation of a defining property. The only thing that must be retained is that if it is true that men and women have the right to marry each other for the class of gender, then it must true for any of its sub-classes as well. Hence, anti-miscegenation laws were also a violation of logic.
Let us consider the case if gender were a sub-class of race. Let us say that one of the properties of race is that races do not inter-marry. This property would apply then to gender. Effectively, black women would not marry white men and vice versa. But, women in general would still marry men in general. If the ban on interracial marriage was wrong, it was precisely due to the inherent contradiction to the principal definition of marriage: that men and women marry each other. When people do marry each other, it is not as a function of race that they do so, but as a function of gender.
What the proponents of same- sex marriage overlook when they make their comparison is that the anti-miscegenation laws more pertinently prohibited a form of opposing-sex marriage; that is, the traditional definition of marriage is still assumed in the case of the inter-racial marriage ban, and any infringement of constitutional rights still retains the context of a man and woman who would otherwise be eligible to marry if not for a racially discriminatory measure; whereas, the case of the same-sex marriage ban would necessarily require a re-definition of marriage if the same situation of unequal treatment were to exist for same-sex couples. A dissenting MSJC judge made the following observation:
“…only by assuming that "marriage" includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the "right" of same-sex couples to "marry."
Equal governmental treatment would be constitutionally guaranteed to similar individuals, but any consideration of similarity would be with respect not to the one choosing to marry, but to the one being chosen for marriage. Therefore, an infringement of constitutional rights would exist in the case of a man prohibited by law from marrying a woman of another race because a woman — white, Asian or black — is still a woman, and thus similar in this way to every other woman. But this would not be true with respect to gender, and no reasonable assessment would consider a man as similar to a woman under the same circumstances, and vice versa. It would be necessary to eliminate gender distinctions to create a legal similarity (the consequences of which are discussed further on), and consider men and women as simply genderless persons as the MSJC did:
“We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.”
To define marriage as “the voluntary union of two persons as spouses ”, however, makes reference to no specific relationship, nor does it imply any realistic assessment of the nature of any other relationship except — by use of the word “spouse” — that of the male-female relationship. Otherwise, there are no references to any characteristics of behavior and activities that might define the relationship other than it is voluntary, and that the persons are considered “spouses” — whatever that might now mean — and not business partners, for example. In every instance, the argument against gender implicitly makes reference to the male-female relationship all the while challenging the validity and legal existence of that relationship. So, rather than an institution existing as a consequence of a realistic situation, we would have an imaginary situation existing as a consequence of an institution. As it pertains to marriage, the above definition is meaningless, another creation of Wonderland logic.
Final Notes on the Subject
What is often overlooked in the case of the inter-racial marriage ban is that a discriminatory injustice existed precisely due to unwarranted classifications of individuals. One could favorably argue that the principle of equal treatment had been respected, since the prohibition applied equally to whites, as well as non-whites. That argument, however, would apply equal treatment to classes and not to individuals, something the Constitution does not guarantee. The law in question could only have existed commensurate with racial classifications.
This, again, is entirely the opposite of one of the arguments the same-sex marriage advocates make, who are implicitly demanding the very thing that was wrong in the first place with the law banning inter-racial marriage; that is, the application of equal treatment to classes, in this case, homosexuals with regards to heterosexuals. The current marriage laws stipulate certain requirements, but make no classification or distinction concerning a person’s sexual orientation, which is really at issue here, the same-sex terminology notwithstanding. Sexual orientation, however, is not a condition for exclusion in the United States, unlike race once was. One can still legally marry regardless of sexual orientation. There would be no reason to make an exception to the opposing-sex requirement unless, of course, it is to yield to homosexual demands.
Though homosexual activists frame their cause as a civil rights issue, again there is another important difference —a diametrically opposed one, even— with respect to that movement and the gay rights movement. The civil-rights activists were asking that every individual receive equal treatment without regard to his race. But if sexual orientation can be likened to race as it is suggested, then ironically where marriage is concerned, homosexuals would already be receiving equal treatment without regard to their “race” — that is, sexual orientation — since no marriage law makes this distinction as some had done with skin color. To make an exception based on this distinction, however, would create a privilege and violate the very principle of equal treatment.
The Rational Basis for Marriage
The Massachusetts Judicial Supreme Court had made its ruling on the constitutional issue as to whether the legislative imposition of the opposing-sex requirement might not violate the constitutional rights of individuals with respect to the choice of marriage partner, and finally had less to do with sexual orientation, or any hypothetical similarity of homosexual and heterosexual couples, and more with the allowance of the gender distinctions that are inherent in the marriage statutes. To make a gender classification that fails “rational basis review”, thus serving no legitimate governmental purpose would constitute, thereby, an infringement of the constitutional rights of individuals to marry their chosen partners. In the court’s opinion, no gender distinction could be rationally justified, and the equality of individuals would, thus, be absolute.
“This right [to marry] is essentially vitiated if one is denied the right to marry a person of one’s choice.”
"Absolute equality before the law is a fundamental principle of our own Constitution."
The MSJC rejected the dissenting arguments on definition, linguistic convention, history, tradition, societal effects, flawed reasoning, wrong assumptions, faulty premises, constitutional law, procreation, family, child rearing and perhaps, good sense. The court made its ruling, really, on a revolutionary premise and a whim: because civil marriage is a creation of the governing bodies, these can define marriage as they will, and defining marriage as the union only between a man and woman was simply wrong.
MSJC: “We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution.”
The court decided that civil marriage must be unrelated to any relationship between a man and woman, that it is no part of the human mating ritual, and that it has nothing to do with procreation or sex. The question of choice of marriage partners turned on a particular concept of marriage, deforming it from its traditional understanding to now include, perhaps, anyone and quite possibly anything. Whimsically, they could see no harm in permitting same-sex couples to marry.
“Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage.”
But this is effectively what has been done. It is surprising that there are people — legal experts no less— who seem to not know, or perhaps, to have forgotten, that what is of concern here is not a semantic debate over the definition of marriage, but the legal status of the relationship existing between a man and a woman. No other relationship is concerned here.
The ruling relied on two principle arguments: the absolute equality of individuals before the law without distinction, in this case, to gender; and that a gender classification under rational basis review was unjustified; that is, no legitimate governmental purpose was found for creating such a classification. The court, in suppressing gender, had essentially argued that there is no legitimate governmental purpose for the legal existence of the male-female relationship, replacing the traditionally understood meaning of marriage with a legally understood one. By attempting to “elevate” the relationships of same-sex couples to those of opposing-sex ones, it has had the perverse effect of erasing the legal existence of the latter, substituting in its place the less specific “relationship between persons”, and changing the sexual nature of this relationship to the status of a friendship. What remains in essence is the commonly understood “domestic partnership”.
“That the classification is sex based is self-evident. The marriage statutes prohibit some applicants… from obtaining a marriage license, and that prohibition is based solely on the applicants' gender.”
Rational basis review, however, implicitly acknowledges in a legal or constitutional manner the fact that individuals are not really the same or equal in real life, and permits classifications in order to take into account the differences, should these pose problems for an orderly society. This is why there are separate toilets and changing rooms for men and women, why minors are treated by other legal standards, why insanity pleas work and why affirmative action legislation could be enacted. But is the court’s contention, that there is no rational basis for the opposing-sex requirement and gender distinctions reasonable?
The Law’s Real Intent
While same-sex marriage advocates speak of the ban on same-sex marriage, it is important to point out that no local, state or federal law has ever banned same-sex marriage. It just never happened. The language and intent of the law was always to promote opposing-sex marriage. This is quite different. The legitimate and compelling state interest has always been to promote the production of healthy, productive, future citizens, and the opposing-sex relationship is the only model that satisfies this interest. Same-sex relationships fail miserably, because this has never been its function. People who wish to marry someone of the same gender simply do not meet the established criteria designed to promote this interest; no more so than does someone who would want to marry the family pet. Failing to meet criteria in no way constitutes a ban, though one could twist logic to have it come out that way. (One could argue that being denied acceptance into the university of one’s choice because of poor grades also constitutes a ban…. on mediocrity.) When marriage criteria were established, it was in function of the most desirable goal for society, not the least desirable one. It has never been a legitimate state interest to promote private relationships that had no special socially useful purpose. A gender classification promotes this interest; eliminating this classification does not; completely the opposite of the Massachusetts court ruling. For this reason there is no compelling state interest to promote same-sex relationships in the same way that there are reasons for promoting opposite-sex relationships
The Slippery Slope?
The pro-creative capacity inherent in the opposing-sex relationship, then, serves the worthwhile and legitimate social goal of developing and maintaining populations and training citizens. But the inevitable contradictions and inconsistencies risked by eliminating gender distinctions from marriage would occur to the body of law, itself, with potentially significant economic and social consequences particularly with respect to the remaining requirements. Excepting the legal nightmare of much legislative tinkering and case-by-case rulings, the genders even of close relatives who wished to marry could very well have to be ignored if the constitutional equality of persons were to be fully upheld.
Here, the case can be made that the spouses in these situations would be, by the court’s definition, merely sexually undifferentiated “persons”, where there could be no presumption of sexuality. But there is a legitimate purpose for society to prevent these sorts of unions in the event that offspring are produced in complete legality. Since marriage would now have nothing to do with sex, polygamous or group marriages could be performed and considered as associations or private clubs, perhaps. Though it is argued that the likelihood of such things happening is remote, it must be remembered that the same could have been said of same-sex marriage just a few decades ago. It was only after a concerted lobbying effort over many years to change attitudes about homosexuality from one of tolerance to one of acceptance that homosexual activists felt confident enough to start pushing their agenda. Polygamy, incest, communal marriage and other “alternative sexualities” are not in the forefront as is homosexuality because their unpopularity continues to keeps their practitioners “in the closet.” With an agenda to change attitudes, however, there is no reason not to expect the same thing from these classes in the future. But more than likely, a lobbying effort by these other classes may not even be necessary once the precedent of “alternative sexuality” is accepted, the homosexual activists having blazed the trail.
This legal institution would regulate at the same time, then, and in various combinations, a socially important relationship whereby children are produced; a relationship of mere legality and hollow symbolism; another where gender distinctions would be crucial and socially important; and others where gender distinctions would be not at all important. This institution would be thorough mess and a legal nightmare open to constitutional challenges on all fronts; a one-size-fits-all legal garment, and it would fit just as well.
The Error with Gay Marriage
Why this has become an issue at all is evidently due to the successful lobbying efforts of homosexual rights activists, the arguments of whom are founded upon the grossly false assumptions and the faulty premises treated in this essay, and which fundamentally underlie all the confusion about the natures of same-sex and opposing sex relationships, having mixed these up with homosexual and heterosexual ones. This has to do also with the inapplicable and confused comparisons between these categories, and different, competing concepts of the nature of marriage, itself, one being a union of a profoundly sexual nature defined by the genders, as opposed to one that would be a mere contract regulating a sentimental relationship. The comparison often fails to distinguish between the differing natures of the homosexual relationship and the same-sex relationship — upon which the homosexual one is based — confusing the two, and inadvertently implying at times that both are sexual, whereas, they are not. It assumes that homosexual and heterosexual unions are both healthy alternative versions of the same relationship, whereas, they are not. It assumes that homosexuality and heterosexuality are intrinsic qualities, whereas, they are not. It assumes an equality between the two, whereas, there is nothing to equate. Homosexuality is not an alternative to the procreative heterosexual model. The relationships formed are not alternative mating models. The partners of these relationships are not alternative husbands or wives. Homosexuality may be a component of an identity, or it may not be. The opposing-sex relationship is fundamentally sexual; the same-sex relationship is fundamentally amicable or hostile, and where sex is involved, only superficially sexual. The partners of opposing-sex relationships are husbands and wives; the partners of same-sex ones are friends. The opposing-sex model is reproductively capable; the same-sex model is reproductively useless. The opposing-sex model is useful to society; the same-sex homosexual model is useless to society. All of the erroneous assumptions have led to aberrant court decisions and laws, which employ the same misguided principle as the inter-racial marriage ban, effectively promoting equality between classes, though with the reverse intention; that is, to include this time, rather than exclude, one class into another where it does not logically or naturally belong. Can the use of a defective principle, though, even for “noble causes”, ever be fair or achieve just results?
Conclusion
The same-sex marriage controversy is of the lineage of a well-orchestrated campaign that began not too long ago with the push to have homosexuality accepted as a normal, though alternative, form of sexuality, and the present case is simply the natural heritage of that objective. The idea has evidently gained ground, since just a few years ago the natural supposition would have been that there is something wrong with homosexuality; now the supposition is that something is wrong with the law. This controversy illustrates how bad logic and manipulation of the Equal Protection Clause can serve the ideological and political agenda of special interests, confusing everyone in the process. The same-sex marriage advocates, really, have not made one sound argument, and their method is reduced merely to an emotional claim for a privilege. One understands that government may justifiably create classes for the “advancement of legitimate governmental purposes”, but for the MSJC ruling one is at a loss here to understand just why a classification— gender— should have been suppressed, and for what legitimate purpose, insofar as the classification does serve a compelling state interest. The court’s re-definition of marriage has been not only anti-sexual, but also anti-intellectual insofar as it has entailed an impoverishment of legal concepts.
It is important to understand how impressionable minds can be manipulated by a rabbit-in-the-hat trick to accept that a class, entirely invented for the occasion, should become an unshakable reality; how people can accept uncritically that something is true, such as the claim that homosexual couples are no different from heterosexual couples, just because it is said often enough; that the word “discrimination” has acquired such a negative connotation that it must be necessarily evil and unconstitutional; that anything one feels about oneself must be a true, objective fact; and that something as worthy as the civil rights movement seeking equality for all, and its unworthy contradiction, demanding a privilege for the few, should perversely, both be “noble causes”. But most importantly, it is the entire concept of equality before the law that is called into question. There exist contradictory objectives that would claim everyone is equal as though there were no differences at all, and the necessity to recognize and classify according to differences in order to create the conditions of equality for all. Wise and honest governance recognizes the solid principles that would guide it in its reasoning, and the careless or dishonest use of that reasoning for purely political ends. The quality of our government finally depends less on mechanisms or lofty principles, and more on the moral and intellectual integrity of the men and women charged with responsibilities. But also, one must weigh the consequences of the decisions made today. Alice could as well have had her adventures in the “Wonderland of the 21st century. If one makes decisions according to ”Wonderland logic”, then one can expect a truly more bizarre and more confused future.
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posted by A Voice in the Wilderness at 4:50 PM
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