by James W. Skillen
The much disputed question of whether same-sex relationships are morally good or bad, healthy or unhealthy, is beside the point at this stage of legal consideration. The first question is about identity and difference. This is the material legal matter of properly recognizing and identifying what exists and distinguishing between marriages and auto clubs, between schools and banks, between friendships and multinational corporations. It has nothing to do with civil rights.
To recognize in law the distinct character of a marriage relationship, which entails sexual intercourse, involves no discrimination of a civil rights kind against those whose bonds do not include sexual intercourse. Those who choose to live together in life-long homosexual relationships; or brothers and sisters who live together and take care of one another; or two friends of the same sex who are not sexually involved but share life together in the same home—all of these may be free to live as they do, and they suffer no civil rights discrimination by not being identified as marriages. There is no civil rights discrimination against an eight-year-old youngster who is denied the right to enter into marriage. There is no civil rights discrimination being practiced against a youngster who is not allowed the identity of a college student because she is not qualified to enter college. There is no civil-rights discrimination involved when the law refuses to recognize my auto club as a church. A marriage and a homosexual relationship are two different kinds of relationships and it is a misuse of civil rights law to use that law to try to blot out the difference between two different kinds of things.
The question behind marriage, in other words, is a structural one that precedes lawmaking. The argument about the structural identity of marriage is not a legal argument about how people should be treated within the bonds of that structure. Rather, it is about whether homosexual relationships should be identified as having the structure of marriage, and only after that can civil rights considerations emerge about how citizens should be treated fairly with respect to marriage.
Those who want homosexual relationships to be redefined as marriages say that many aspects of their relationships are like marriage—having sexual play, living together, loving one another, etc.—and therefore they should be allowed to call their relationships marriages and should be recognized in the law as marriage partners. But this cannot be a proper legal matter until the empirical case has been made that a homosexual partnership and a marriage are indistinguishable. Otherwise, the appeal amounts to nothing more than a request that homosexual partners be allowed to call themselves what they want to call themselves regardless of the differences that exist in reality. The answer they want is for law making and adjudicating authorities to change the law based on the principle that reality is defined by the will and declarations of individuals, all of whom should be treated without discrimination.
But here, you see, is the sleight of hand. The appeal now being made for homosexual marriage rights is not an appeal for judges and lawmakers to reconsider past empirical judgments about similarities and differences between heterosexual and homosexual relationships. Rather, it is an appeal for judges and lawmakers to ignore those distinctions in order not to deny citizens the right to call things what they want to call them. It is a version of an appeal for the protection of free speech, and in this case it is a demand that the speech of particular persons carry the authority to define the structure of reality without regard to the basis of past legal judgments. The antidiscrimination principle is appealed to not in order to show that some married couples have previously been denied the recognition of their marriage. Rather the antidiscrimination principle is being used to ask that no citizen be denied the right to call something what he or she wants to call it.
If homosexual relationships are, in this manner, legally recognized as marriages, no realities will change. Heterosexual marriage partners will still be able to engage in sexual intercourse and potentially procreate children; homosexual partners will still not be able to engage in such intercourse. Pregnancy will still be possible only by implanting a male sperm in a female egg, whether that is done by sexual intercourse inside or outside of marriage, or by in vitro fertilization, or by implanting male sperm in the uterus of a woman not married to the man whose sperm are being used. The only thing that will change is that the law will mistakenly use the word "marriage" to refer to two different kinds of sexually intimate human relationships.
If this happens, we will need to pay close attention to the consequences. Judges and public officials will then be required to recognize as a marriage any sexually Intimate bond between two people who want to call themselves married. Which means that there will no longer be any basis for distinguishing legally between a heterosexual union and a homosexual relationship. Which means henceforth that there will be no legal basis for restrictions against a homosexual couple obtaining children in any way they choose, for such restrictions would constitute discrimination. And it will mean that when a mature mother and son, or father and daughter, or trio or quartet of partners come to the courts or to the marriage-license bureau to ask that their sexually active relationship be recognized as marriage, there will be no legal grounds of a non-arbitrary kind to reject the requests. Because if it is now arbitrary and unjust to recognize heterosexual marriage as something exclusive and different from homosexual relationships, then it will be arbitrary and unjust not to grant the request of other partners to call their sexually intimate and enduring relationships marriage.
But, of course, since legal declarations cannot turn reality into something it cannot become, a variety of conundrums, contradictions, and anomalies will inevitably arise. And the only way to resolve them will be to revise the law so it squares with, and does justice to, reality. If, that is, anyone is interested in crafting the law to do justice to reality.