Two commenters lately have been telling me that same-sex marriage (SSM) is a moral and/or legal necessity because of the importance of providing equal protection under the law.
I’m not sure how that explains it. Here’s why.
Equal protection means the law guarantees equal access to what society and law provide with respect to common goods, for example, housing, employment, voting, and so on. Now it’s clear that housing means the same thing to every person, regardless of color, creed, or sex. So does employment. So does voting. So when equal protection is granted, that means equal access to equivalent rights and privileges. It doesn’t mean equal access to dissimilar rights and privileges, for example equal access to apple orchards and bank vaults. That’s what equal protection under the law is all about, as I understand it.
So then, does marriage for same-sex couples mean the same thing as marriage for opposite-sex couples? Is same-sex marriage (for gay and lesbian couples) fundamentally equivalent to opposite-sex marriage (for straight couples), in the same way that voting is equivalent to voting, or housing is equivalent to housing, or employment is equivalent to employment (for all races, creeds, etc.)?
That’s what’s in dispute. Some say yes, some say no. If there’s one thing that’s indisputable in this debate, that’s it: that there’s dispute over the equivalence of man-woman marriage and same-sex marriage.
Now, if the two forms of relationship really are equal, then equal protection must surely apply.
If, on the other hand, I understand equal protection correctly, and if the two forms of relationship are not equivalent, then there’s no reason to think the law should afford persons equally protected access to them, any more than the law should guarantee equal access to our previously mentioned orchards and vaults.
So we have a dispute over whether opposite-sex marriage is equivalent to same-sex marriage. If my understanding of equal protection is correct (and please let me know if I’m wrong), then that entails that we have a dispute over whether the law should afford equal access to both kinds of relationships.
Thus when SSM advocates tell us that we should consider it a good reason to accept SSM, what they’re saying in effect is this:
“It seems to us that equal protection under the law means that we should grant SSM a status equal to opposite-sex marriage. Of course, for equal protection to be relevant in this case, SSM and opposite-sex marriage must be equal entities; otherwise equal protection wouldn’t apply. In order to build our case upon an equal-protection argument, then, we must assume that SSM and opposite-sex marriages are equivalent in all the relevant wasys. Given that set of assumptions, we can then move on to demonstrate that SSM and opposite-sex marriages are equivalent in all the relevant ways.”
That’s begging the question in the most extreme and obvious way possible.
The logical form of that refutation is valid. The only point at which it might be vulnerable is in my layman’s understanding of equal protection under the law. I’m no expert, so I could have gotten that wrong. If I’ve made some error there, please let me know so I can correct my misunderstanding and repudiate the argument I’ve built here upon it.
If, however, my analysis of equal protection is anywhere near accurate, then it seems an inescapable point of logic that using the equal-protection argument as a reason to adopt SSM is as question-begging as it could possibly be, and that persons who value rationality must drop it on pain of practicing manifest and wanton irrationality.
(I should make it clear what this post is not about. I have said nothing here about whether same-sex-married persons should be afforded equal protection under the law. My position on that is that I do believe in equal protection for persons in legally established unions. The law is the law. I am not sure equal protection has always been applied equitably, but to explain that would be to start a new topic, whereas I try to keep my posts on one topic as far as possible. This post is about whether an equal-protection argument can serve as a good reason to make same-sex marriages legal. )