Topic: Constitutional Issues
Marriage is Not A School: Gay Marriage's Flawed Analogy The California Supreme Court's majority opinion for "marriage equity" concludes that, based on an analogy that compares marriage as an institution to educational institutions, separate is unequal. The analogy is incorrect because one must posit, assume, postulate what one concludes, and because marriage is not a school.by Paul Benedict
(Libertarian)
Saturday, July 19, 2008
So argues the majority of justices in the ruling of the Supreme Court of California on pages 103-104 in "re: Marriages":
"In this regard, plaintiffs (those same sex couples seeking marriage licenses) persuasively invoke by analogy the decisions of the United States Supreme Court finding inadequate a state's creation of a separate law school for Black students rather than granting such students access to the University of Texas Law School (Sweatt v. Painter (1950) 339 U.S. 629, 634),67 and a state's founding of a separate military program for women rather than admitting women to the Virginia Military Institute (United States v. Virginia (1996) 518 U.S. 515, 555-556)."
This analogy is flawed because it posits what it concludes. In issues of prejudice because of racial diversity, the constitutional truth is that all men are created equal. Hence, when we recognize racial diversity, we legislate against prejudice because no matter what the race, we are all humans. When we see gender inequity based on prejudice, we have recourse to the same words and to the same principle. No person should be refused access to the social good that they merit based on gender because we are all people. The basis for a similar ruling evaporates when the law moves from individuals to couples. To say that all couples are equal before the law, we must say that marriage is not between a man and a woman. The court goes on to say that we must say marriage is is what does the Court say marriage is? Let's go with this: The Court defined marriage as "any undefined congress of Party A and Party B" because, since marriage is not between a man and a woman, all are equal before the law.
However, the court's most profound error is in equating marriage and institutions of public education in any manner. Marriage is an education, but it is not a school. Unlike the equal access to an education, the only equal access to marriage is that which is duly clothed in commitment and free choice. Schools on the other hand, are primarily about the access men and women have to the opportunities provided by society at large. This Court errs grievously by comparing what a marriage is primarily to what a school, a public school no less, primarily, is.
Schools are primarily social in function. Teaching may be more fundamental to human life in the context of a family, but a school by definition is social. Marriage, in contrast, is a very specific and complete access to another person based solely on the commitments and choices of those two individuals. One can easily conceive of marriage as a fundamental building block of society and, therefore, as a liberty, prior to society and its governments. This is impossible in envisioning a school, especially a public school. The caricature of marriage that emerges from the Court's attempt to draw parallels between these two unlike institutions is grotesque and offensive. The Court again degrades all humanity by arguing that what we are as people exists, like a school, primarily because of the good graces of government.
What is absurd on its face reveals greater errors in its specifics. The Court also erred in the arcane reasoning it based upon its grotesque analogy. Here is more from pages 103-104:
"As plaintiffs maintain, these high court decisions (Texas Law School and Virginia Military School) demonstrate that even when the state grants ostensibly equal benefits to a previously excluded class (a class that had been denied access, not because of their abilities, but a history of prejudice) through the creation of a new institution, the intangible symbolic differences that remain often are constitutionally significant."
The two high court decisions alluded to are fine, but their analogy to marriage is ridiculous. No one can blame the plaintiffs for arguing it; that's what a decent lawyer is supposed to do. However, the idea that the Supreme Court accepted this analogy is both hilarious and tragic. It's tragic because it is a true reflection of what we have become as a society. Nothing in our public life matters. Anything goes. Judges should know better, but who really cares? Here are the differences that make the analogy of marriages and schools, let's just say, inadequate:
The ability to marry comes from what we are as people, male and female, more than it is about who we are as people. This is also true of other essential human liberties. Because of what we are as people, we can speak. What we say determines "who we are," or what kind of person we are. We also have the freedom to worship. This is part of the nature of what we are as people. Who we worship determines who we are as people. The content of one's character doesn't enter into the ability to have access to marriage, or more specifically, the access which is marriage.
Unlike the analogies at Virginia Tech., and, we hope, to the public high school at issue in Brown vs. The Board of Education, meeting certain qualifications (passing examinations, excelling at one's coursework) has nothing to do with the right to marry. Hence, when the Court says these two people meet the qualifications we (the Court) set as those necessary to be "married" (they are of the correct age, they can form informed consent, etc), they cannot say that, therefore, these two must have equal access to marriage. Two people cannot merit marriage. Hence, what one merits is not being withheld by society because of prejudice. How two people behave once they are married determines whether or not the marriage has merit. If this is a civil rights case, it is not a civil rights case that is related to the decisions in Brown vs. the Board of Education, Virginia Tech., or the Texas Law School. Marriage is not a school.
Indeed, if it is a civil rights case, then it is far more analogous to the equal access granted or denied women, as women. Oddly, this is the analogy the Court, in footnote 65, decided did not merit consideration.
"For example, the establishment and maintenance of separate women's collegiate athletic teams to address the long-standing discrimination against women in the allocation of athletic resources has been found to be constitutionally valid. (See, e.g., O'Connor v. Board of Education of School Dist"
In these cases, the discussion came down not to an unwillingness to recognize the abilities of women to excel in sports. These cases weren't about denying women the access that they merited simply because of a prejudice against gender itself. All agreed that merit existed and access was deserved. Instead, the issues in these cases came down to problems of access posed by the problems that exist by virtue of what we are as men and women. In civil rights cases of this type, merit and prejudice are not the issue. Instead, we are nonetheless confronted by what we are as people, male and female. Any disregard of who we are as people would have resulted, in these instances, in an injustice to all.
Same sex marriage is not a civil rights issue relating to race, since homosexuality is not a race. Same sex marriage is not a civil rights issue related to religion because it is not a religion. Nor is same sex marriage a civil rights case based on gender for homosexuality is not gender specific. However, if same sex marriage is a civil rights issue, there are cases of resolving inequity in access to society's benefits that arise for other reasons. However, bringing these analogies up might be offensive to some. Nevertheless, the Supreme Court of California erred: marriage is not a school.
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2008 Paul Benedict, all rights reserved.
Published: Saturday, July 19, 2008
Last modified: Saturday, July 19, 2008
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So you're disagreeing with Barry Morris Goldwater on what is a Constitutional right?
"The big thing is to make this country, along with every other country in the world with a few exceptions, quit discriminating against people just because they're gay. You don't have to agree with it, but they have a constitutional right to be gay. And that's what brings me into it."
Governments should not be in the business of licensing marriage to begin with, at any level. This includes the practise of granting privileges to persons based upon their marital or parental status. It is a judicial function to enforce contractual agreements, and this is the only place where the government should be involved.
All I can say is that is pure, unmitigated conservative rubbish pretending to be libertarian. It most certainly is not remotely close to libertarian thinking in the conclusion or the logic use -- which sounds vaguely Catholic.
Posted By: Wolfgang E. B.
Date: 2008-07-21 08:46:19
I find it amusing that everone who disagrees with the CA Supreme Court ruling has to resort to ridiculously sophistic dissenting arguments, while the Court decision itself is so brillinatly straightforward and sensible.
Paul Benedict wrote, "The basis for a similar ruling evaporates when the law moves from individuals to couples."
Is a couple not made up of two individuals? The law doesn't move from individuals to couples. Any mention of "couples" necessarily concerns individuals. The Court ruled that individuals have a right to marry the person with whom they are in love. Marriage is an institution that benefits two individuals.
Posted By: Paul Benedict
Date: 2008-07-21 10:14:29
I've spent a good deal of time talking about the problem this court decision makes for constitutional law. It is wrong to assume that because I disagree with its outcome that I'm anti-gay... whatever that means to you...The court decision is so flawed that even those who voted against Prop. 22 in California should vote for prop. 8. Governments and courts that are out of control are a danger to everyone. Last week, there was a good discussion at the bottom of "Dehumanizing Marriage" about the more libertarian position of no marriage licenses whatsoever. I wouldn’t mind continuing the discussion if you’d like. It would help if you picked a specific post to respond to and then we went from there.
I will commend you on explaining why you think the analogy used by the Californian Supreme Court was an error. It really was well thought out. However, in your comment stating that those that voted against prop22 should vote for prop 8 is silly! We talked about this in relation to the Log Cabin Republicans voting for prop 8. Once again you either miss the point and or you are cheerleading for prop 8. No matter if one disagrees with the reasoning of the CA Supreme Court decision voting for prop 8 will do nothing to correct that reasoning. It will forevermore be precedent; so those that did not support prop 22 have no reason to support prop 8.
Posted By: Wolfgang E. B.
Date: 2008-07-21 16:41:12
Paul Benedict wrote, "Last week, there was a good discussion at the bottom of "Dehumanizing Marriage" about the more libertarian position of no marriage licenses whatsoever."
I agree with that position. Government shouldn't have any involvement in marriage. As some have pointed out in other forums, the current marriage system discriminates against single people in some ways, especially in regard to taxation. But until we can get the government out of marriage, the institution must be equalized. Being opposed to marriage in its present form is no excuse to deny it to same-sex couples.
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2008 Paul Benedict, all rights reserved.