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.