Alexis de Tocqueville begins his great work, Democracy in America, by asserting the centrality of equality in America’s life and self-understanding:

Among the novel objects that attracted my attention during my stay in the United States, nothing struck me more forcibly than the general equality of condition among the people.  I readily discovered the prodigious influence that this primary fact exercises on the whole course of society;  it gives a peculiar direction to public opinion and a peculiar tenor to the laws; it imparts new maxims to the governing authorities and peculiar habits to the governed….[I]t creates opinions, gives birth to new sentiments, founds novel customs, and modifies whatever it does not produce.[i]

This equality of condition and the desire to extend it produce a passion for equality which has not abated in the United States since the 1830s and 1840s.

In recent years one of the newest purported extensions of egalitarian principles has sought to alter sentiments, customs, and laws concerning marriage.  In particular, the movement to normalize and legitimize homosexual behavior has presented itself in egalitarian terms as a desire for ‘marriage equality’.  By deploying a rhetoric closely tied to the central American passion for equality, the movement in question made a brilliant decision.  In effect the movement said, ‘Whatever you feel about this kind of sexual behavior, it is unfair to deny its practitioners the right to marry:  you’re treating us differently from everybody else.  We just want to be treated the same.  We just want to enjoy equal rights and equal treatment.’

In this post I prescind from the question of the morality of the sexual practices in question in order to concentrate on the narrower issue of marital equality.  Is the embrace of egalitarian rhetoric by the movement justified?  Are those who support the redefinition of marriage really pursuing equality?

To begin with my conclusion:  No.  I will argue that the Obergefell versus Hodges (2015) and United States versus Windsor (2013) decisions of the United States Supreme Court, which imposed changes to most state and federal marriage laws, did not establish equality among various possible domestic arrangements and did not provide for equal state treatment of those arrangements.[ii]  What the court decisions in fact did and do is to reshuffle government benefits for various kinds of domestic arrangements.  Some people gained and some lost, but equality is not the result.

The court decisions lessened the relative government support for one kind of domestic arrangement, namely for relatively monogamous and stable heterosexual domestic units.  Simultaneously, the decisions increased government support for relatively monogamous and stable homosexual domestic units.  If these two were the only kinds of domestic arrangements, then indeed the decisions in question might be interpreted as egalitarian in their effects.  That is, the removal of special advantages from one kind of domestic arrangement and the simultaneous increase of special advantages for a second kind did equalize those two arrangements in relation to each other.  The proponents of Obergefell and Windsor emphasize this single effect alone and assert that it established marriage equality.

This assertion is, however, seriously misleading; so misleading as to be false.  There are in fact many more than two kinds of domestic arrangements, and relative changes in state treatment of only two of those many kinds leave all the other kinds in a relatively altered, and effectively more disfavored and worse, position.  Indeed, recent legal changes, far from establishing an equality amongst all domestic arrangements, instead has made more acute the different, unequal, and relatively negative treatment of a large variety of actually existing domestic relationships.

How so?  Well, consider the two kinds of domestic relationships already mentioned, and simply alter any of their defining elements in order to see how narrow they truly are.

First, both of the currently favored domestic relationships mentioned involve legal monogamy.  That is, the relationships involve couples only.  Why?  Why should monogamous sexual relationships, and domestic groupings built upon them, be favored by law or state action?  There are answers, of course, to that question, but those answers tend to rely on the same kind of religious and natural law principles that Windsor and Obergefell effectively exclude.  By failing to embrace polygamy, polyandry, and ‘group marriage’, the court-imposed policy is inconsistent in its supposed egalitarianism.  The policy seems to be, ‘All families will be equal, provided they fit into one of the two now favored categories.’  Since the new orthodoxy is in fact inegalitarian, all of the rhetorical strategies and arguments used to undermine legal advantages for monogamous heterosexual marriages now can be deployed to attack the unequal favors granted to monogamous unions in general.  Indeed, why should the state favor couples and their families as opposed to single persons or other domestic groups?

Secondly, both of the currently favored domestic relationships mentioned include the element of stability.  There are fairly obvious reasons why stability in households is desirable, particularly given the value of stability in the raising of children.  But children also tend to benefit from being raised by their own biological parents, which is an argument for uniquely favoring heterosexual marriage.  Once the close connections between procreation and state-favored marriage are broken, as they have been by the Supreme Court, there seems no reason for the state to favor stable domestic units over shifting ones.  An economic value in mobility argues against any government favoring of stable households.  Likewise, if one excludes traditional religious or natural law considerations, there seems no compelling reason for the state to counteract through marriage laws the undeniable desire of many people for sexual variety.  What is the rational basis for state favors to long term, stable sexual relationships once traditional and religious principles are excluded?

Thirdly, there are many domestic arrangements that are not at all, or not significantly, sexual in their nature.  Why should the state favor and subsidize domestic arrangements that are sex-based, whether the sexual activity in question is heterosexual or homosexual?  Why, for instance, give tax and legal advantages to a homosexual couple and not to single persons or to siblings living together?  Why give a heterosexual couple and their offspring tax and legal advantages that are not given to a religiously-based community of celibates?  or to cohabitating members of a basketball team? or to cohabitating vegans or video game fanatics?  Again, there are traditional answers to such questions, which answers are rooted in society’s interest in a stable setting for procreation and child-rearing.  Those traditional answers favor monogamous, traditional families beginning with a heterosexual couple.  But once the natural base of families in procreation and child-rearing is abandoned as the essential rational foundation for marriage law, there seems no state interest in subsidizing sexually-based relationships as opposed to domestic relationships with other foundations.  If Jane and her brother, John, choose to live together in old age for the sake of mutual support and comfort, why should they be put at a relative disadvantage as compared either to two men or to a man and a woman or to two women living together in a sexually active household?  Why should single persons be discriminated against in favor of typically more affluent, sexually active couples?  Sexual activity requires no state subsidy:  it will do fine on its own.

Now some may resist the idea that expanding ‘marriage’ to include homosexual couples necessarily puts other domestic arrangements at a relative disadvantage.  A moment’s consideration, however, will demonstrate their error and the real resulting disadvantage.  In the United States legally married persons enjoy survivors’ benefits under the government-sponsored (and -enforced) social security system.  Similar benefits are not enjoyed by single persons or by siblings who live together or by monks living in community or by polygamous households.  Because the whole of American society supports the social security system, benefits bestowed unequally are benefits subsidized by those less favored.

In short, ‘marriage equality’, as imposed by the Supreme Court and Mr. Justice Kennedy, is no such thing.  Rather ‘marriage equality’ in the United States means government-sponsored favors given to some kinds of households, namely those that tend to center on two persons in a stable, governmentally-licensed, sexual relationship.  There is, in Anthony Kennedy’s breezy term, ‘no rational basis’ for such government favors, and certainly the system in question is neither egalitarian, nor traditional, nor in service of the best interests of children.

There seems no willingness in the United States to alter the Court’s action.  Since traditional marriage is now deemed unworthy of special favors from the state, the only consistent and truly egalitarian alternative is for the government to remove itself entirely from playing favorites in regard to domestic arrangements.

True ‘marriage equality’ requires an end to the legal category of marriage.  Marriage should be left entirely in the realm of private association or contract.  State ‘marriage’ is now effectively meaningless or grossly unfair.  Marriage should now be governed by individual choice, by freely-chosen religious or social groups, and by private contracts.

Alternatively, the government might establish true equality among domestic arrangements by permitting all persons to choose any domestic arrangements pleasing to them, with all such arrangements treated equally under the law.  The current American system, however, has not established marriage equality:  it has merely extended an existing inequality while removing the traditional, rational basis for that inequality.

[i] New York:  Vintage, 1945.  Volume 1, page 3.  Henry Reeve text, Francis Bowen revision, Phillips Bradley edition.

[ii] Careful readers will perceive that I now am using ‘domestic arrangements’ as a virtual synonym for ‘marriage’.  I understand that there are differences between the two terms.  The changes in law effected by the Supreme Court, however, have so altered traditional definitions of marriage, that the term now means little more than ‘legally favored domestic arrangements usually involving an amorous element’.  One point of this essay is to show some implications flowing from this effective redefinition.  The proponents of ‘marriage equality’ seek to extend ‘marriage’ to include a broader class of domestic arrangements but do so at the price of so altering the category of ‘marriage’ as to make it arbitrary and inconsistent.

2 thoughts on “Equality, Marriage Equality, and the Courts

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