Posted by
TheChair on Monday, August 18, 2008 3:46:21 AM
The refrain, the leitmotif is equality. Yet the use of that word "equality," the American gospel-in-a-nutshell, is entirely out of place in the same-sex marriage context. In the law, equal protection is due persons who are similarly-situated. If they are not similarly-situated, there is no equal protection issue. Same-sex couples are not similarly situated to normal, heterosexual couples. Same-sex union does not perpetuate the human race, but instead dilutes the one institution indispensable to that end... normal marriage.
In college, before I understood the "similarly situated" component of the equal protection doctrine, I once argued that progressive taxation violated equal protection. I wrote an editorial to that effect in the college paper. I thought that it violated equal protection for the state to tax one citizen at a higher rate than another. This was wrong, I later learned in law school. The higher and lower earners are not similarly situated. One earns more money than the other. This is how legislatures justify the higher tax rates.
Well, same-sex couples are not similarly-situated to heterosexual couples. (At least they were not seen that way until this year's Marriage Cases decision.) They do not procreate and are utterly dependent on heterosexual union to adopt children. Children are better off, generally, with both a mother and a father, not two of one or the other. Thomas Sowell explains this principle in his unique, common-sense-sounding way.
http://townhall.com/Columnists/ThomasSowell/2006/08/15/gay_marriage?page=full&comments=true (Hat tip to California Marriage Defense blog.)
The "equal protection of the laws" provided by the Constitution of the United States applies to people, not actions. Laws exist precisely in order to discriminate between different kinds of actions.
When the law permits automobiles to drive on highways but forbids bicycles from doing the same, that is not discrimination against people. A cyclist who gets off his bicycle and gets into a car can drive on the highway just like anyone else.
Defining marriage as only between a man and a woman does not discriminate against people, but instead singles out one kind of behavior for state blessing, normal marriage. It's good, so do more of it, the state says. It makes more people. It leads to economic growth. It raises children better. It civilizes men. Less women are poor. Etc. But same-sex couples now seek the same blessing without providing the same benefit to society. They can't do it because they aren't similarly situated.