Proposition 8 and Discrimination: Marriage on Trial at the Supreme Court

The point is that while discrimination against gays and lesbians as persons is inappropriate, discrimination against same-sex couplings may be entirely appropriate if the coupling does not meet the necessary conditions of marriage. If reasonable distinctions are found between a same-sex coupling and a marital union, such that the coupling does not qualify to enter matrimony, then Prop 8 does not discriminate unfairly.

Of course, to make a coherent case that Prop 8 does not discriminate wrongly requires us to consider further the definition of marriage. Walker regards marriage as something malleable—something that has evolved over time such that “gender is no longer relevant” and “no longer forms an essential part of marriage.”

But if that’s true, then, as Sherif Girgis, Ryan Anderson, and Robert George have argued persuasively, we may rightly ask just what remains relevant in marriage if gender is no longer relevant. In this view marriage is a social convention; there is nothing intrinsically valuable in it beyond its construction by human beings at any point in history.

By contrast, in the historical view of marriage, it is a pre-political institution, an intrinsically valuable, basic human good rooted in human nature, not human will. As the Court said in Baker v. Nelson, “[t]he institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.”

Indeed, Aristotle noted that the very foundation of the polis is the coming together of man and woman to create a family—the first fruits of society. Conversely, he was highly critical of homosexual conduct, believing it to be harmful to individuals and to the public good.

Among the late classical pagan writers, Plutarch perhaps expresses best the intrinsic goodness of marriage. In the Solon, he notes the public good of marriage and has high praise for laws that encourage love, honor, equality, and chastity between the spouses. And in his Erotikos (Dialogue on Love), he elevates the qualities of marital love: the heterosexual reciprocity, the equal status of the spouses, and the unitary aspects of the marital union.

It should not be lost that the ancients in no way regarded marriage as a social convention. They recognized marriage as the cornerstone of civilization. Greg Koukl states it well: “The truth is, it is not culture that constructs marriages or the families that marriages begin. Rather, it is the other way around: Marriage and family construct culture. As the building blocks of civilization, families are logically prior to society as the parts are to the whole.”

What is prior to society, then, cannot be changed, reinvented, or redefined by society. Walker may view same-sex unions as a social construct, but his view of marriage as a social convention is at odds with history.

Read more at Public Discourse.