Equal Treatment and the State’s Interest in Marriage

The U.S. Supreme Court has now heard oral arguments on a case to determine whether it will strike down state laws that grant marriage licenses to opposite-sex couples but not same-sex couples. The main issue is whether denying marriage licenses to same-sex partnerships violates the obligation to provide all groups equal protection of the law. According to the Constitution, no person “shall be denied equal protection of the law.” Is it unjust discrimination, are the laws being applied unequally, when a state grants a marriage license to John and Sally but not to Jim and Steve?

We won’t know what the court will assert until June. But the answer should be: No, because John and Sally, but not Jim and Steve, are able to form the kind of relationship marriage is, and the kind that the state has an interest in promoting and regulating. The state is not in the business of promoting and regulating every sexual-romantic relationship. Nor should it categorize all child-raising arrangements as marriages—think of orphanages or elderly sisters raising abandoned nieces. However, the union of a man and a woman—bodily, emotional, and spiritual—of the kind that would be naturally fulfilled by conceiving and rearing children together (even though in some instances that fulfillment is not reached) is marriage. And this union uniquely provides a crucial benefit the state has an interest in promoting.

The need for such a union is discovered and appreciated somewhat differently by individuals and by societies or states acting on behalf of societies. Individuals typically discover the need for such a union in the following way. Young men and women fall in love and long for union with each other, eventually a union that is bodily (sexual) as well as emotional (the sexual union being not just for gratification but to embody their love). Hence they come to see the need for a more encompassing and enduring personal union as the appropriate context for their love and the sexual acts that express it, and for children that may come from those sexual acts.

Societies see the need for such a union by recognizing the particular benefit it provides to children. Every society recognizes that sexual promiscuity among men and women severely harms children and their mothers (and eventually fathers and all of society as well). And every society encourages young men and women to confine their sexual acts to the community that provides a safe haven for the children those acts might produce. Children need the love and care of their fathers as well as their mothers; and fathers as well as mothers have a responsibility to them. So, societies encourage men and women considering sexual relations to unite and form a stable home for the children they might have.

Is it unjust discrimination for the state to recognize and promote this type of sexual-romantic relationship as marriage and not others? Not at all. Treating different groups differently is not unjust if the difference between them is relevant to a reasonable purpose of the law. For example, it is not unjust to forgive student loans for inner-city school teachers while not doing so for other college graduates, because the difference between those groups is relevant to a reasonable purpose of the law. It is not unjust to grant a driver’s license to those who pass a driving test while not giving one to those who don’t pass. In the same say, the difference between men and women who have formed the kind of union naturally fulfilled by procreation, on the one hand, and other romantic relationships, on the other, is relevant to the quite reasonable purpose of marriage laws.

All states deny marriage licenses to polyamorous people who form sexual threesomes or foursomes (refraining from recognizing their sexual partnerships as marriages), and deny marriage licenses to twelve year-olds (requiring valid consent for a marriage). These denials are not unjust because threesomes, foursomes, and twelve year-olds cannot form the kind of union that marriage is. But the same is true of same-sex couples.

Not granting a license to such a relationship does not mean it becomes illegal. Talk of a “ban on same-sex marriage” is highly misleading. It is not illegal in any state for a same-sex couple to have a relationship they view as marriage, nor to have a minister or some other authority pronounce (mistakenly, in my view) it as a marriage. What’s at issue is whether we as a political community will be compelled to endorse same-sex partnerships as marriages.

It is often objected that if same-sex couples are unable to marry because their relationship is not intrinsically oriented to procreation, it would also follow that infertile opposite-sex couples could not marry, and yet no one holds that. However, marriage is intrinsically oriented to procreation as its natural fruition, not as a mere means toward an extrinsic end. The union between the spouses is both good in itself and shaped by its intrinsic orientation to conceiving and rearing children together.

The state does not create marriage, but finds it already existing among its members, having a basic structure grounded in human nature or the complementarity of the sexes. The state’s interest in marriage is narrowly focused on the benefit marriage provides of connecting fathers to their children and mothers. But to receive that benefit the state must not obscure what marriage is. If the state treated infertility as an impediment to marriage, it would deny that the union of the husband and the wife is good in itself, and imply that it is a mere means in relation to procreation. On the other hand, if the state redefines marriage to apply it to same-sex partnerships, it will obscure the nature of marriage by denying that marriage involves a bodily, as well as an emotional and spiritual union, and that it is the kind of union that would be naturally fulfilled by procreation.

Some also object that the intrinsic relation of marriage to procreation cannot distinguish opposite sex couples from same-sex couples because some same-sex couples also raise children, and can have children through artificial means. But this argument is flawed. Genuine marriage is intrinsically prolonged and fulfilled by the spouses conceiving and rearing children together, extending and fulfilling the union they began on their wedding day. By contrast, the alliance same-sex partners might form to raise a child (from a previous marriage, adopted, or artificially reproduced) is not continuous with, or intelligibly related to, their sexual arrangement. Moreover, every child has a need and a right to the love and care of both her mother and her father. But conceiving or raising children in the context of same-sex partnerships necessarily deprives the child of her biological mother or father. Thus the state should not take the position that such partnerships are appropriate contexts for procreation. Clearly, all sorts of couples or groups can volunteer—whether wisely or not—to adopt children; but that does not make their relationships marriages.

Proponents of same-sex marriage often compare the conjugal view of marriage (as between a man and a woman) to laws against interracial marriages in the early part of the last century. States once forbade interracial couples from getting married, but we came to see that was based on bigotry. In the same way, it is argued, we once held marriage could only be between a man and a woman but now we can see that position is based on prejudice and bigotry.

However, the two cases—excluding interracial marriages and confining marriage to opposite-sex couples—are entirely different. Race has nothing to do with the purpose of marriage; it has no effect whatsoever on a couple’s ability to form marital union. That is why treating interracial couples differently from others was transparently part of the larger system of white supremacy and exploitation designed precisely to keep African-Americans in a position of social inferiority. 

However, a couple’s being of the same sex is an intelligible difference fully relevant to the quite reasonable purpose of marriage laws, for the same-sex couple cannot form a union of the specifically marital type. They cannot become one body—mere spatial juxtaposition is not the same as real biological unity—and they cannot form the kind of union that would be fulfilled by the procreation and education of children. 

Marriage is a specifically distinct type of union, and a realistic view of its nature is extremely important for our culture in general and for young men, women and their children in particular. We should not, in order to endorse the lifestyles of those in different types of relationships, obscure the nature of marriage by confusing it with something it is not. Such are the stakes in Obergefell v. Hodges.