LeCounte: Equality is measured by rights

In his recent article (“Better Arguments Needed”), Michael Wayne Harris challenges the notion that argument over marriage equality is sufficiently persuasive to advocate marriage rights for homosexual couples. He asks, quite reasonably: on what grounds do we — the proponents of gay marriage — claim that equal rights and protections are denied to homosexual individuals?

The column is right, of course, in stating that gay individuals have the same marriage rights as any straight person (in states where marriage is specifically defined as a heterosexual union), as the restrictions and privileges of marriage are applied equally. The piece goes further, challenging the notion that we necessarily have the constitutional right to marry whomever we choose. Thus, Harris seems to claim that the marriage equality movement has nothing at all to do with actual legal equality.

As recently as 41 years ago, many states — mainly in the south — used similar reasoning to justify anti-miscegenation and other, related laws aimed at perpetuating racial endogamy, and it initially held up in the Supreme Court (Pace v. Alabama, 1883). Strictly speaking, it is consistent to argue this way, so the question becomes more pressing. How is marriage equality, at least with respect to individuals, really about equality?

Pondering the question of legal equality, I’d like to reflect a bit on the reasoning behind the aptly-named Loving v. Virginia case of 1967. In the decision, the Supreme Court declared marriage to be among the “basic civil rights of man” that “cannot be infringed by the State” on the basis of race, as such restrictions were untenable and fundamentally opposed to the Equal Protection Clause. Put simply, the Court found that there was no “rational foundation for the [racial] discriminations.” So one must wonder, with regards to the modern marriage equality movement: is sex a similarly untenable basis for the restriction of basic rights?

In affirming the lack of sound legislative basis for restricting individual rights or criminalizing individual action on the basis of race, our highest justices declared that the Equal Protection Clause of the Fourteenth Amendment served to protect the individual from the capricious and irrational prejudices of the State. Restrictively legislating with respect to race is thus a violation because it is nothing more than invidious prejudice.

So what is the basis for discrimination by sex? Put another way, on what grounds can one argue that marriage is an inherently heterosexual union and that “gay marriage” is not a question of equal rights but instead something new?

The only reasonable bases would be religion, tradition and procreation. As has been argued well before, legal marriage is no longer fundamentally about procreation (in which case sex would be eminently relevant), but rather it is about love, commitment and social interaction, and, importantly, it comes with legal benefits. That said, the counterargument that legal marriage inherently implies heterosexuality cannot be true, as the courts would not rationally be able to do as the high courts of Massachusetts, California and Connecticut have done in affirming the rights of gays to marry.

Further, legal marriage is a legal and not a religious institution (so churches need not be forced to perform marriages that are against church doctrine), and thus alleged divine disapproval is irrelevant to the discussion. The Loving v. Virginia decision struck down any argument from tradition, so there is no rational sound basis for restricting any of the legal rights and privileges of marriage from any union on the basis of sex under the Fourteenth Amendment. Prejudice is prejudice, and the irrational whims of the state, or even its population, should not be able to infringe upon the rights of individual citizens.

The movement for marriage equality is so called for good reason. Our laws are not yet equal.

Anthony LeCounte is a sophomore in Timothy Dwight College.


  • Stephanie

    Nicely written. This, to me, is a non-issue. If you don't agree with marriage equality, don't marry someone of the same sex! As a school teacher, I don't ever recall reading/citing the words…"with liberty and justice for ALL" and seeing the word, "except". Separate but equal does not, has not and should not work. We can not "eenie meenie miney moe" through our neighborhoods and point to who is allowed marriage or not. As a christian and American, I am for equality, love, and acceptance to all human life. God bless, Stephanie

  • yawn

    Call it whatever you want.

    A man + A man or

    A woman + A woman or

    A man + A dog or

    2 guys + a girl + a pizza shop

    It isn't a marriage.

    Sex is the issue!

    Whatever gay couples do- it isn't sex.

    It isn't unitive nor procreative.

    Gay "marriage" will never be judged valid in my mind and I will never support a law that functions as such.

  • bigger yawn

    What do you call sex with with a man with a vasectomy?

    I suppose you'll save unitive, but someone that seems to actually fit any type of sex you want.

    Anyway, don't bother getting old …

  • sleepy

    Well, I'm against contraception so…

  • eyebrow raise

    Can someone please enlighten me as to what definition of "unitive" you people are using?

    The physical expression of love (or, at least, mutual attraction) between two consenting individuals is always unitive as far as I can tell.

  • Gotcha

    The unitive aspect refers to the necessary sexual complementarity of heterosexual intercourse.

    If I may be frank:

    A penis and an anus

    A vagina and a tongue

    These are not sexually complementary.

    They lack the natural compatibility of a penis and a vagina.

    Also, homosexual relations are by their NATURE closed to life, closed to the procreative aspect of human sexuality.

    You can never get pregnant with a man and a man, nor a woman and a woman. Not because either party is sterile, but because the nature of that relationship is incapable of producing life.

    In old age or sterility, the openness to life is retained in the nature of the relationship between the penis and the vagina. (although of course we understand that their efficacy may be impaired under certain conditions)