The Failure of the “Equality” Justifications for Same Sex Marriage

VI. Conclusion

What are we to conclude about the equality justifications for same-sex marriage as they make their current manifestation in Goodridge? We have witnessed an interesting evolution of the rationales advanced for the legalization of same-sex marriage and unions. At first, the proffered justification was the privacy argument that had its basis in Casey and Lawrence v. Texas. While the privacy argument may work for the decriminalization of private consensual sexual acts between adults of the same sex under the rationale of Lawrence v. Texas, it fails to achieve the goal of same-sex marriage advocates because marriage is a publicly recognized institution. Thus, a substantially different basis for justifying same-sex marriage had to be pursued. The equality argument became the standard bearer for the cause of same-sex marriage.

The Failure of the “Equality” Justifications for Same Sex Marriage

V. The Goodridge Decision

At the outset of the majority opinion in Goodridge, Chief Justice Margaret Marshall makes two important points which, by themselves, appear to reflect widely held non-controversial views. The first is that marriage is a “vital social institution.” Her second is the recognition that the “exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society.” However, a few short phrases later, the majority opinion in Goodridge unflinchingly declared that the Commonwealth of Massachusetts “has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.” This supplies the need to go back and reexamine her claim regarding the “exclusive commitment of two individuals” in marriage. What appeared to be an innocent statement is not.

By emphasizing the Massachusetts constitution’s affirmation of “dignity and equality of all individuals,” the majority acknowledged that it was engaging in a radical departure of legal norms when it asserted that its “decision marks a change in the history of our marriage law.” From the very outset, this decision does not, as the majority contended, foster human dignity and equality. Rather, it artificially manufactured a rule conferring marital status and its attendant benefits that is a revolutionary alternative to the tradition and convention of marriage, i.e., the legally recognized association of two persons of the opposite and complementary sex.

The Failure of the “Equality” Justifications for Same Sex Marriage

IV. The Unstable Foundation: Casey and Lawrence

While the source of genuine equality extends beyond the control of human authority, it is within the competence of human understanding, through the exercise of reason, to acknowledge and comprehend the truth about equality. The self-evident truth about equality is based on the human person’s ability to exercise right reason—a reason which takes the thinker beyond self-interest, bias, and the constriction of isolated autonomy endorsed by the problematic dicta from Casey: there is “a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” But the liberty of which the Casey Court spoke is not ordered; rather, it is self-defined and free from external and objective definition that leads to a skewed conception of equality, which in turn becomes untenable. The Casey Court invigorated the growing problem of disordered rather than ordered liberty when it concluded that, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” The liberty and equality promoted by the dicta of Casey regrettably leads to disorder and exaggeration about rights entitlement and the inevitable conflict between rights claimants.

The Failure of the “Equality” Justifications for Same Sex Marriage

III. Equality Reconsidered—The Framers’ Perspective

The strong, positivist mentality (the law is what the law maker says it is) that energizes same-sex marriage advocacy stands in blunt contrast to the insights and understandings of the Framers who established our republican democracy and the legal institutions that sustain it. The Framers understood that equality possesses rational and factual conditionings that reinforce the soundness of equality claims, and the law of equality must acknowledge this. By way of illustrating an essential contrast pertinent here, the positivist mind may claim that a lump of coal and a flawless diamond are the same since they are both forms of carbon deposits; but does this assertion about equality hold when one considers the fact that qualitative, ontological distinctions exist? It is impossible to contend that the diamond and the lump of coal are equal in all regards. With the guidance of reason and fact, the inescapable conclusion one will reach about these two manifestations of carbon deposits is that they are not equal in all regards—in spite of what the positivist legal mind may assert.