Does barring same-sex “marriage” violate equality under the law?

Michael V. writes:

I was speaking to a fervent gay marriage advocate and he said that he’s for gay marriage because conservatives are for equality under law. Hence, his pro gay-marriage position was actually conservative. How do you defeat this equality under the law argument from a conservative standpoint?

LA replies:

Your interlocutor’s argument is a typical example of the way leftists shamelessly claim that their radical positions are really conservative. (Of course, equality under the law is really an old liberal concept, but today we refer to old liberal concepts as “conservative.”)

Equality under the law means equal treatment of people in the same situation. For example, the law in certain respects treats people who have been convicted of a felony in one way, it treats people who have not been convicted of a felony in another way. It treats the two classes differently. Similarly, the law treats persons under the age of consent differently in some respects from the way it treats people over the age of consent.

Marriage law treats a couple consisting of man and a woman differently from the way it treats a couple consisting of two persons of the same sex. Since marriage is by definition the legally recognized union of a man and a woman, a same sex couple cannot be married. Far from the fact of a same sex couple not being able to marry being a violation of equality under the law, it is an expression of equality under the law.

Now if, as your interlocutor argues, the prohibition on (or rather the logical and legal impossibility of) the marriage of a same sex couple is a violation of equality under the law, then it would also be the case that the prohibition on a man marrying a five year old girl would be a violation of equality under the law. In reality, of course, it is not a violation of equality under the law, because in relation to marriage a five year old girl belongs to a different class than a female who is over the age of consent.

Similarly, if the prohibition on the marriage of a same sex couple is a violation of equality under the law, then the prohibition on a man marrying a female dog would also be a violation of equality under the law. But of course it is not a violation of equality under the law, because dogs and human beings belong to different classes under the law, and different laws apply to them. For example, you cannot murder a dog. You can only murder a human being. Killing a dog under certain circumstances may be a crime, but it is not the crime of murder. In the same way, a man cannot marry a dog, because marriage means the union of a male and a woman.

So one possible argument to use with your acquaintance is to say to him: “The law bars a man from marrying a five year old girl. Is this a violation of equality under the law?” If he says it is not, then you can point out that the bar on same sex marriage is also not a violation of equality under the law. If he says it is a violation of equality under the law, then he has revealed himself as a person who wants to make it possible for men to marry children, and has exposed himself as the freak that he is.

Posted by Lawrence Auster at March 11, 2011 09:55 AM | Send