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

IV. The Unstable Foundation: Casey and Lawrence

While the source of genuine equality extends beyond the control of human authority, it is within the competence of human understanding, through the exercise of reason, to acknowledge and comprehend the truth about equality. The self-evident truth about equality is based on the human person’s ability to exercise right reason—a reason which takes the thinker beyond self-interest, bias, and the constriction of isolated autonomy endorsed by the problematic dicta from Casey: there is “a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” But the liberty of which the Casey Court spoke is not ordered; rather, it is self-defined and free from external and objective definition that leads to a skewed conception of equality, which in turn becomes untenable. The Casey Court invigorated the growing problem of disordered rather than ordered liberty when it concluded that, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” The liberty and equality promoted by the dicta of Casey regrettably leads to disorder and exaggeration about rights entitlement and the inevitable conflict between rights claimants.

To avoid this problem, there needs to be considered other aspects of equality, which include the ability to be free to come, know, and enjoy the truths about human nature, including the truth to live in the midst of others and be respected as a member of the same human family where differences and distinctions do exist among people. There is also the need to consider the role of equality as the guarantor of expectations, opportunities, and claims that people make not only for themselves as individuals but for their families and for their posterity. Love and companionship fall into the realm of these fundamental benefits. But love and companionship alone do not a marriage make.

Casey and Lawrence, which brought a new level of problems with those inherent in Casey, have become the troubled laboratory in which experimentation in liberty and equality produce capricious understandings of these important elements of our social and legal structures. These decisions combine to formulate an artificial human existence that contravenes the biological reality of the sexual relationship that is essential to marriage, which needs to be between and woman and a man if the human species is to prosper naturally. But incessant litigation has become the laboratory in which the famous Casey dicta have become the ongoing legal experiment.

In evaluating Casey for the purpose of ascertaining the extent of its contribution to Lawrence and then to Goodridge, it is essential to keep in mind that anyone who contends that same-sex couples are entitled to be “equal” to opposite-sex couples has failed to take into account the physical differences between these two categories that bear on their inability to replicate the functions of opposite-sex couples. In their joint decision, Justices O’Connor, Kennedy, and Souter asserted that their “obligation is to define liberty for all, not to mandate our own moral code.” Assuming that this was in fact their goal, they did precisely what they said was not their intention or objective by establishing an exaggerated subjective moral code which is at the heart of the strained understanding of equality pronounced in Goodridge.

The “moral code” they produced emerges from their conclusion that, “It is conventional constitutional doctrine that, where reasonable people disagree, the government can adopt one position or the other… That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty.” It then followed that some of those influential voices who argue against majoritarian morality are quite open to substituting their own which they demand will be protected.

But a principal flaw in Casey, perhaps unforeseen at the time this case was decided, is that it would be used to substantiate the problematic claim of Goodridge that there is an “equality” right, based on personal liberty, justifying the recognition of same-sex marriage. This contention central to Goodridge fabricates and imposes a moral decision by overriding tradition and the morality on which the tradition is founded and redefines what is constitutive of marriage and the family that ensues. Reliance on the Casey-Lawrence duet imposes the moral acceptability, through the dictate of positive law-making, of same-sex marriage and, at the same time, undermines the recognition and protection of opposite-sex marriage. It must not be forgotten that the Casey decision replaces the conventional morality, which is based on right reason, with an artificial morality, which is founded on a disordered “liberty” contained in “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Casey is not a tested recipe for liberty that justifies a legitimate claim to equality; rather, it is a path to confusion.

If advocates for consensual same-sex relationships were satisfied with the decriminalization of homosexual acts, which was achieved through Lawrence, and not the institutionalization of marriage or civil unions that are intended to be the equivalent of marriage, the equality argument that undergirds the drive for same-sex marriage would disappear. But since the campaign to redefine marriage based on pseudo-equality of same-sex couples has been forcefully promoted, its supporters demand the imposition of their “moral code” on the rest of society through their quest for redefinition of marriage. And, only by re-defining marriage with the words they choose can their goal be achieved. This is not ordered liberty Americans have come to expect and enjoy but something else not conducive to orderliness in the exercise of liberty. The concepts of existence, the meaning of the universe, and the explanations of the mystery of life, which are simulated and do not reflect human biology and anthropological complementarity, become norms that the rest of humanity must accept when the one judicial vote needed for a majority is achieved.

Nevertheless, the new standard for liberty and equality judicially crafted for pregnant women who wished to terminate their pregnancies and articulated in Casey became the standard for liberty and equality used to redefine acceptable, legally protected sexual relationships in Lawrence v. Texas. The principles of equality addressed in Lawrence were stated by the majority to apply only to the activities of consenting same-sex adult couples acting in private. In particular, the Lawrence majority concluded that the Texas statute prohibiting homosexual sodomy violated the fundamental right of consenting adults to engage in private sexual conduct and relations. But, an idea recognized in one case can generate life of a related but new idea in another case later on. It cannot be overlooked that the Lawrence Court carefully restricted the legal protection to be given to consenting same-sex couples and noted that they were not questioning or evaluating laws denying legal recognition of same-sex relationships or unions.

As the Lawrence majority stated,

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

In her concurrence, Justice O’Connor consciously placed a limitation on the degree to which the principle could be extended. As she stated, “That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”

Indeed, the formulation about privacy developed in Lawrence, which relies on Casey, cannot and should not be extended to the public conferral of licensing and granting publicly guaranteed marital benefits to same sex couples. Having said this, influential commentators on Lawrence have argued that this decision has achieved precisely what the majority said it would not, i.e., justification for the legalization of same-sex marriage. But, in spite of this expressed qualification, this is what the Goodridge majority did contrary to the limitation expressed in Lawrence.

We know from legal history that constitutional proclamations made in one era can have life beyond the cases in which they are developed. By way of example, it must be remembered that the claim to use contraception by married couples that became protected by Griswold v. Connecticut was extended to non-married couples in the subsequent case of Eisenstadt v. Baird. It is clear that the Lawrence majority was imbued with the jurisprudential outlook of Casey that the Court’s obligation “is to define the liberty of all, not to mandate our own moral code.” In relying on Eisenstadt v. Baird, Justices O’Connor, Kennedy, and Souter in Casey contended that judicial precedent respects “the private realm of family life which the state cannot enter.” But their judicial precedent paved the way to do just that by enabling the state and its legal mechanisms to publicly acknowledge the private relationship of a same-sex couple and declare it a marriage via the Goodridge decision.

The “liberty” and “equality” thesis based on the Casey-Lawrence formulations further imposes on the rest of society, including those who do not countenance abortion or same-sex unions. The imposition includes but is not limited to financial support by taxpayers or employers who must confer benefits to those who share a same-sex relationship. Casey and Lawrence are not without their significant social implications and do, contrary to what Justices O’Connor, Kennedy, and Souter avowed, impose a moral code on all of society by destroying a traditional but objective moral code and replacing it with a problematic and subjective one that nevertheless has immense public implications.