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.

But for the equality argument to be taken earnestly in the development of marriage jurisprudence in the area of same-sex relations, the physical difficulties of equating same-sex relations with opposite-sex relations must be overcome. The only way to accomplish this task is to rely on an understanding of “equality” that relies not on fact and reason but on exaggerated legal positivism. But such a venture leads us into that problematic Orwellian dominion where all the animals in the barnyard are deemed equal; but, as it turns out, one day it becomes clear that some are more equal than others. In other words, the “equality” expected by same-sex marriage advocates will not likely be transferred to other interest groups seeking the public recognition and support of their relationships. The “equality” sought by those seeking the recognition of polygamous relationships, under-aged relationships, and relationships involving closely related family members, e.g., brother and sister; first cousins, will most likely be disappointed. It must be understood that the crusade for legal recognition of same-sex marriages is founded on a false notion of equality. But when the problematic rationale for justifying same-sex marriage is condoned by the law, the important idea of authentic equality is deprived of its meaning. And that is what Goodridge has regrettably accomplished.

As we have seen in the context of the claims made on behalf of same-sex marriage, there is an unsatisfying distortion in the meaning of equality. This kind of “equality” is false and dangerous because the law is enticed to ignore fact and replace it with a flimsy legal fiction; moreover, the effort needed to make “equal” that which cannot be because of the reality of human nature and the rigorous application of logic will inevitably doom the crusade for same-sex marriage to failure. For any claim to equality to be authentic, sincere, and just, its content and practice must be accurately reflect the nature of the human person—for this is what makes people like one another in some ways and different from one another in other ways. And this is what the drafters of the Declaration intended equality to be when they said that all are created equal—in fundamental ways, yes, but in other ways based on the character of the human person, no.