Stephen Silva’s recent column (“A right means we can choose”) contains what has become a typical argumentative move by those advocating one’s right to marry a member of the same sex: the assertion that homosexuals are not granted the “equal” rights that heterosexuals enjoy. (The necessity of scare quotes will quickly become apparent.) It is this move that gives the homosexual marriage advocacy argument its urgency, and, without commenting on whether homosexual marriage is desirable (my opinion on that matter is irrelevant to the issue I wish to raise here), I’d like to propose that this argument does not rest on ground as solid as its proponents would like it to be.
This column first invokes the idea of “equality” by asking, “Is the savior of equality in the Constitution?” Equal protection principles basically amount to the idea that individuals in similar conditions should be treated similarly. This ostensibly raises the problem, though, of determining which conditions are relevant (implying sexual orientation is an irrelevant difference).
What interests me, however, is the assertion (the crux of this kind of argument) that they are treated differently. Marriage laws typically state that one is entitled to marry someone of the opposite sex. A denial of equal protection, then, would mean that the law prohibits gay men from marrying women. I seriously doubt there is a legal ban anywhere from gays entering into heterosexual marriage. A gay man has as much entitlement to marry a woman as I do. To put it another way, I, a straight man, have equally little (in three states, equally much) opportunity to marry another man as a gay man does.
I might be accused of throwing my lot in with the “dissenters” who invoke not the law but the traditional definition of marriage. The definition I’m appealing to, however, is legal — the one to appeal to when questioning whether persons are equally protected under the law. The only way to use the argument that there is no equal protection under the law is to, well, ignore the content of law that is supposedly being unequally applied. This is different than a black person being denied a job a white person would get. Everyone — gay or straight — is allowed a heterosexual marriage, and everyone is equally denied a homosexual marriage.
The assertion, then, that gays want equal rights in general is problematic. That move is the same and its response is the same: Gays do have as equal an opportunity to marry as anyone else. If homosexual marriage becomes allowed, it becomes allowed for everyone, even those who wouldn’t invoke the privilege.
Arguments like Silva’s construe the issue not as whether everyone has the same privilege, but instead as whether everyone has a privilege that matches his preference. To put it another way, the argument relies on the reading of the Constitution that says everyone has the right to marry who he wants, not that everyone has the right to marry someone of the opposite sex. This is a dangerous formulation because the Constitution requires that everyone have the same legal privileges, not that everyone have a fit between his privileges and preferences.
Requiring that, in order for true equality, everyone must have a privilege that matches his preferences is too much work to ask the word “equality” to do. I also worry that concern over the fit between privilege and preference is not a legal question but a legislative question — a question over what the law should be, not what the law is. I don’t think the argument would carry in the context of the United States Constitution. This species of argument seems to be misplaced both theoretically (by dressing up questions about what the law should be in terms of what the law is) and practically, for the current Supreme Court would be unlikely to interpret the Equal Protection Clause to be sufficiently robust.
This argument shouldn’t be taken as an opposition to gay marriage, but merely questioning. On what grounds should “equal protection” be invoked? Does the right actually hold in this case? Different understandings of the problem might be more appropriate and productive.
I challenge the recent argument we have heard, as I do not believe it answers these questions adequately.
Michael Wayne Harris is a senior in Branford College.