The Failure of the “Equality” Justifications for Same Sex Marriage

III. Equality Reconsidered—The Framers’ Perspective

The strong, positivist mentality (the law is what the law maker says it is) that energizes same-sex marriage advocacy stands in blunt contrast to the insights and understandings of the Framers who established our republican democracy and the legal institutions that sustain it. The Framers understood that equality possesses rational and factual conditionings that reinforce the soundness of equality claims, and the law of equality must acknowledge this. By way of illustrating an essential contrast pertinent here, the positivist mind may claim that a lump of coal and a flawless diamond are the same since they are both forms of carbon deposits; but does this assertion about equality hold when one considers the fact that qualitative, ontological distinctions exist? It is impossible to contend that the diamond and the lump of coal are equal in all regards. With the guidance of reason and fact, the inescapable conclusion one will reach about these two manifestations of carbon deposits is that they are not equal in all regards—in spite of what the positivist legal mind may assert.

And what about human beings and their equality regarding most issues which they encounter during life, including marriage? I wish to reiterate that when it comes to members of the human family, each person is equal to everyone else in having aspirations for the future and for the justifiable opportunities to fulfill these aspirations which are held in common. I contend that this view is consistent with the idea of equality that the Founders promoted. Moreover, there must be the ability to make claims to the common stock of the things which are essential to sustaining human existence for individuals and the natural social groups—especially the biological, nuclear family—that emerge from authentic human nature. This is a truth about human nature which the drafters of the Declaration asserted when they said that “all men are created equal.”

Although the principal contributors to the founding of the American republic held differing views (sometimes complementary, sometimes conflicting on matters of general principles, race, sex, privilege, and property), their thoughts intersected on fundamental points providing a common ground for understanding the meaning of equality. Their shared consensus about equality is that it must reflect the reality of human nature that people (men and women; members of different races and social and economic classes) are different in many ways but alike in certain fundamental ways. The Declaration is clear about their similarity when it speaks of each person being endowed by the Creator—not by any human being, not by society, not by the state, not by special interest groups, not by political parties, not by corporations, not by international organizations—to inalienable claims and rights that include “Life, Liberty and the pursuit of Happiness.” Moreover, this endowment is a self-evident truth that exceeds human bias or partisanship. It is true and self-evident because its source, its guarantor, is an objective, transcendent and moral standard that escapes the vagaries of human whim or caprice. With the exercise of right reason, the human being can come to recognize the truth about human equality and the limits that logically apply to it.