Two California gay couples recently scored a victory in federal district court in the case of Perry v. Schwarzenegger. The case, which is now in appeal, is based on the argument that Proposition 8 violates the Equal Protection and Due Process clauses of the U.S. Constitution and impermissibly creates a disfavored legal status for gays and lesbians. Some argue that the principle of equality before the law should trump politics, that it represents the core of America’s character.
The irony of the argument is that you have to assume a definition of marriage that has never existed (or perhaps has only emerged very recently) to accept this. If you say marriage is just a way the state gives its imprimatur to adult desires, then you can say that it ought to be given to any adult regardless of the nature of those desires.
By contrast, if you accept – as our law has from the beginning – that marriage has a necessary connection to children and to greater social interests, then the ideal of equality must coexist with the reality of sex difference. In other words, if there is something unique about the relationship between a man and a woman, then it is not inequality before the law for the law to act on the reality that there are differences in different types of relationships. Specifically, that a relationship that can result in children and give children a mother and father is different from a relationship in which a third party has to be involved for children to be introduced to the relationship and where those children would be intentionally motherless or fatherless.
This argument taps into a deeper argument about what the Framers and their faithful followers thought equality before the law meant. There is a line of thinking that says equality is uniformity or sameness. If everyone’s not in the same position, in terms of material resources, a sense of dignity, etc., then equality is being denied. The other idea is that the Framers believed that every individual should have the same access to courts and the legislature but are not guaranteed the results they desire. (There is another take that is more controversial – that the Framers thought nothing about equality and that the reference to equality in the Declaration of Independence only meant that every nation has an equal right to choose its own form of government.)
Perhaps a shorter way of saying some of this is that equality means treating things that are alike the same, but it is unjust to treat different things alike. If there is a real difference between the two kinds of relationships (as there is) then treating them differently is justified. This is kind of obvious when we think of some other marriage regulations. For example, the relationship of three people is different from that of two, or the relationship of an adult and a child is different, or a relationship between relatives, and so on.
Differences in relationships matter, and government should consider these differences when crafting family policy.