In a recent exchange at the University of San Diego, a public interest lawyer told me that his organization was litigating in behalf of “marriage equality.” “So, if I’m opposed to same-sex marriage,” I asked, “I suppose I must be either against marriage or against equality?”In the current debate over marriage, Smith observes, the idea of "equality" is particularly misleading.
It was a clever response—but also a misguided one. And utterly question-begging, in an all too familiar and unfortunate way.
To see how, think for a moment about the meaning—and the rhetorical uses and abuses—of equality and inequality. Do we treat blind people unequally by denying them drivers’ licenses when others are permitted to drive? Do we treat convicted felons unequally by putting them in jail when other people are free to move about as they wish? In the purely descriptive sense of different treatment, inequality is ubiquitous. Thank goodness. But we have something different in mind, obviously, when we talk about equality and inequality in political contexts.
Here, as Aristotle long ago observed and as Michigan law professor Peter Westen explained some years ago in a much-discussed article in the Harvard Law Review, equality has a more normative sense. It means that like cases (or, as lawyers say, “similarly situated” instances, or similarly situated classes of people) should be treated alike.
But in that normative sense, equality is wholly uncontroversial—and entirely useless. Everyone favors equality: Everyone thinks that like cases should be treated alike. Nobody argues, “These groups are alike in all relevant respects, but they should be treated differently.” So when people disagree about legal or political issues, they aren’t arguing for and against equality. Instead, they are disagreeing about whether two cases, or two classes of people, actually are alike for the purposes of whatever is being discussed.
With respect to that sort of disagreement, though, no answers can be squeezed out of the idea of equality, as Westen’s article explained. Instead, we have to refer to our political philosophies or our moral views or something of that sort. Something more substantive than the unassailable but substantively empty proposition that “like cases should be treated alike.”
Which brings us back to “marriage equality.” Unlike the advocates of “racial equality” or “gender equality,” an advocate of “marriage equality” is clearly not saying that marriage is irrelevant for some purpose. Quite the contrary. In this respect, the advocate of “marriage equality” is no different from the proponent of traditional views of marriage: Both place a high value on marriage. Nor do the opposing sides differ about the imperative of equality: Both sides agree that “like cases should be treated alike.” Pretty much everyone, in short, is in favor of “marriage equality.”
So the real disagreement is not about equality, but rather about what marriage is, or what it should be thought to include. Among the vast spectrum of human relationships, many of them valuable or ennobling, which ones should be classified under the heading of “marriage”? On that question, there are various views. Some think marriage is a relationship between one man and one woman. Some think it can include relationships between two committed adults, regardless of sex. Some would not limit marriage to only two persons. Some would not limit it to adults.
Reasonable people can debate these views in good faith and in various vocabularies—cultural, psychological, political, theological. So there are important debates to be had, and important decisions to be made. But the debates will only be cluttered up, and the decisions confounded, if the issue is framed in the question-begging terms of “marriage equality.”