In the last of the 5-week series, MUR is going over the FAQ #10 in Section 3: But isn’t it unjust discrimination to not allow two men (or two women) to marry?
The word “discrimination” is most often used to speak of the unjust treatment of persons based on race, sex, age, or disability. Indeed that has become the first definition of the word today, according to the Merriam-Webster Dictionary (and others). We are taught from a young age that it is wrong to discriminate and that we should always seek to be inclusive and aware of our biases or prejudices. While unjust discrimination is still a serious problem in the U.S., the question of redefining marriage is unrelated to it.
Like most words, discrimination has multiple meanings. Marriage law always contains a certain type of discrimination because it makes distinctions. The second definition of discrimination is: “the ability to understand that one thing is different from another thing.”[i] That certainly describes noting the distinction between marriage and any other type of sexual relationship. There is a difference, and this difference is worthy of recognition by everyone, including the government. Acknowledging the real and essential differences between types of sexual relationships is not discriminatory.
It is not discrimination if a person who cannot swim is rejected for a position as a lifeguard or swim instructor. It is not discrimination when a man who cannot lift 25 pounds is not hired as a piano mover. And it is not discrimination when a man is not permitted to play in a women’s tennis tournament. In the same way, noting that two men or two women cannot be the procreative, comprehensive union that marriage is, is not (unjust) discrimination.
Only a man and a woman are capable of sexual activity that may yield children. The government has a strong interest in protecting the right of those children to a mother and a father and in reducing the likelihood that those children will become wards of the state. The civil law of marriage (until recently) served both these interests by legally bonding adult couples to any children they may create, and to each other.
On the other hand, the sexual activity of two persons of the same sex never yields children, so the government does not have a very compelling interest in getting involved. The government does not care who your best friend is; you don’t need a license for friendship or cohabitation. It would be eminently reasonable, and in no way unjust, for law to distinguish between same-sex and opposite-sex relationships.
Likewise, it is reasonable that a professional serving a customer can distinguish between activities that express approval for same-sex sexual behavior and those that do not. The cases discussed in the next section deal with people who happily served each of their customers, with no thought to the person’s “private” life, until they were asked to do something directly celebrating their sexual relationship. These people simply declined to celebrate what they consider to be immoral behavior.
[i] “Discrimination.” Merriam-Webster Dictionary. http://www.merriam-webster.com/dictionary/discrimination (accessed February 3, 2016).
Note: This post is second in a series of posts about what we can learn from the Supreme Court’s June 2013 DOMA decision, and how that can help us better promote and defend marriage. This series is based on a July 2013 talk by staff of the USCCB Subcommittee for the Promotion and Defense of Marriage.
PART ONE: What we can learn from the Supreme Court
Post #2: Unspoken assumptions & reframing the debate
In the marriage debate, there are many, many unspoken assumptions. It’s often the case that the most important questions go unasked and thus unanswered, chief among them the most important question of all – What is marriage?
For example: the opening line of the majority opinion says, “Two women then resident in New York were married in a lawful ceremony in Ontario, Canada in 2007” (p. 1). It goes on to argue that it was wrong of the U.S. federal government not to recognize this marriage and grant the attendant federal benefits.
The assumption hidden here is huge: the Court has taken it as a given that if these two women were “lawfully wed” in Canada, then they’re married. End of discussion. A marriage is a marriage is a marriage because the government (or a governing body) says it is. But for those of us who believe that marriage’s meaning is rooted in the meaning of the human person, created male and female (see Catechism, nos. 1602 – 1605), the question is: “Is it even possible for two women to be married? Is marriage the kind of thing that can actually exist between two persons of the same sex?” But the Court elides those questions, taking for granted that these two women – Edith and Thea – were lawfully, actually married, no question.
We can dig down deeper and uncover other hidden assumptions: assumptions about the body, assumptions about children and procreation, assumptions about freedom and the meaning of rights, and so forth.
So here’s tip number one: We must bring to light what is hidden in the dark by uncovering hidden assumptions and offering alternative readings that do justice to the human person. In other words, we must reframe the arguments to get at the deeper questions, questions that go all the way to the root: Who is the human person?
As another example, the Court argues that the real issue at stake in the marriage debate is equality. The Court doesn’t mince words here. It says, “DOMA writes inequality into the entire United States code” and the “principal purpose” of DOMA is to “impose inequality” (p. 22). In contrast, allowing two persons of the same sex to marry gives them a “status of equality” (p. 14).
The looming, unasked question here is: are these two situations really identical, such that equality demands identical treatment? The Court assumes that the marriage of a husband and wife and the “marriage” of two persons of the same sex are exactly the same thing. (And “assumes” is the right word – the Court does not make an argument that this is the case but just presents it as such).
But we can only address the question of equality after first addressing the question of marriage, a question that is going both unasked and unanswered. In our conversations and communications, we must insist on bringing the debate back to the fundamental question: What is marriage? (see FAQ #3) A phrase we use in our work is: “Treating different things differently is not discrimination.” We can make a case for the uniqueness of marriage between a man and a woman by pointing out that only a man and a woman can form a one-flesh communion and can give themselves fully to each other, including on a bodily level (see FAQ #8). Only a man and a woman are capable of welcoming new life into the world, even though there are times, sadly, when this doesn’t happen for reasons beyond their control. And so forth.
Reframing means not accepting the terms of the debate as given, but digging deeper to get at the real issues, the real questions. So if someone asks you, “Are you for marriage equality?” an answer could be: “Well, what do you think marriage is?” or, less Socratically, “I’m for equality, sure – but I think marriage is unique and needs both a man and a woman; it’s not wrong to treat different things differently,” etc.