Same-Sex Marriage and Political Symbolism

A whole bunch of blogs have been touting this Washington Post/ABC News poll—claiming that “support for gay marriage has grown to 53 percent today”—as a sign that Americans have now embraced “marriage equality.”  Putting aside for purposes of this post the question of same-sex marriage itself, that commentators are claiming a victory for “marriage equality” generally should give pause.  Indeed, this has become the accepted term for rhetorical engagement on the issue, simply for the reason that “equality” has such great purchase on the American political soul.  Most Americans are reflexively in favor of the concept of equality because the word is so commonly coupled in political and historical discourse with “racial,” or “religious,” or “political.”  Those campaigns for equality concern egregious historical abuses concerning the most fundamental of rights, which abuses were extinguished only at great cost.  It is good and right that we exalt concept, such as equality, as overarching symbols of the American political order; such symbols serve as a means of expressing our hard-fought fundamental values as a people, and of forefending threats that might still be lodged against them.

Beyond a few relatively narrow areas, however, “equality” as a political symbol bears little application to “equality” as a legal standard.  No one seriously believes, for example, that doctors and janitors are entitled to equal pay, that Best Buy and Circuit City are entitled to equal market share, or that the Yankees and the Red Sox are entitled to an equal number of World Series championships.  On these questions, we expect and demand protection of unequal results corresponding to the input of unequal talents and efforts.

We also demand inequality on other types of questions—e.g., who is qualified for employment as a police officer or a fire fighter; who is allowed to drink alcohol; whether gardeners and nuclear power plant operators should be equally regulated.  When it comes to such questions concerning the public health and welfare, the equality principle is significantly circumscribed.

Equality, then, is a strange concept, as it at once guarantees and threatens liberty depending on the subject matter.  There is no doubt that liberty cannot endure when, for example, racial minorities are arbitrarily deprived of protection of fundamental rights.  But neither can there be any serious doubt that liberty cannot endure when everyone is deprived of protection of fundamental rights so that an equal menu of positive rights can be offered up in exchange.  Thus, the way in which some individuals are deprived of personal, political, economic, and property rights in order to promote social and economic equality poses a substantial threat to classical liberty generally.  Similarly, it cannot be seriously doubted that the state cannot serve its necessary function to protect the public health and safety if it must yield in all cases to a mandate of absolute equality.  Equality, then, is a lancet, not a sledgehammer.

Advocacy of a general notion of “marriage equality” poses its own kind of threat:  It incites us to demand urgent remediation of a perceived injustice, yet provides no guidance for evaluating the nature of the purported injustice, or why similar instances of social inequality should not also be subsumed in the demand.  The Religion News Blog, for instance, recently reported that a Canadian civil rights group “has filed a final argument in B.C. Supreme Court against [Canada’s] polygamy law, saying it is a Victorian-era statute that should be ‘relegated to the scrap heap of history.’”  Similarly, Andrew Sullivan recently passed along this story reporting that Switzerland is considering abolishing its “obsolete” laws criminalizing incest.  Matthew Franck likewise has argued that the U.S. is already surprisingly close to announcing “a constitutional right to incest.”  Most advocates of “marriage equality,” of course, have no intention of supporting these reforms.  But why shouldn’t the same symbol of equality, conscripted into advocacy of same-sex marriage, also compel equality for these other types of social arrangements?  Is there not something irresponsible and perhaps deceptive about demanding “marriage equality for all” if what is really meant is something other than “equality” and something less than “all”?

I’ve argued previously that were same-sex marriage judicially imposed, there would be no logical stopping point before judicially obliterating all morals legislation, such as suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, adult incest, public nudity, profanity, stem cell research, human cloning, and so on.  On that basis, I’ve concluded that this question must be decided by the normal democratic process, who are not limited by strict logical application of legal principle.  The “marriage equality” rhetoric, however, compromises that process by putting voters to a false choice by insisting on strict adherence to the equality principle.  In other words, it is a distinct possibility that many Americans have changed their attitude about same-sex marriage based on an implicit threat that, if they don’t, they will be branded as enemies of equality and share space in the pages of history with racial bigots and merciless dictators.  Same-sex marriage advocates’ ubiquitous citation to the inapposite racial discrimination case of Loving v. Virginia, for example, makes this threat unmistakable.

Members of a democratic society must live with the duly expressed choice of the majority on social questions like those concerning the social institution of marriage.  It is disconcerting that consensus is quite conceivably being achieved by confusion, misconstruction, or misrepresentation concerning the fundamental symbol of equality and thus putting voters to a false choice between their political and social values.  Same-sex marriage advocates neglect to correct this misunderstanding since it works in their favor.  The resulting false pretense in the political discourse concerning same-sex marriage is quite possibly responsible, in some measure, for the increased likelihood that Americans will tell pollsters same-sex marriage should be legal.