In his Second Inaugural Address, President Obama declared that “if we are truly created equal, then surely the love we commit to one another must be equal as well.” Headlines and blogs around the country proclaim that the Supreme Court is ready to tackle the issue of “marriage equality.” If that’s the issue—“marriage equality”—then the correct outcome seems irresistible, doesn’t it? But is “marriage equality” really the issue?
In a recent exchange at the University of San Diego, a public interest lawyer told me that his organization was litigating in behalf of “marriage equality.” “So, if I’m opposed to same-sex marriage,” I asked, “I suppose I must be either against marriage or against equality?”
He grinned. “You might be against both.”
It was a clever response—but also a misguided one. And utterly question-begging, in an all too familiar and unfortunate way.
To see how, think for a moment about the meaning—and the rhetorical uses and abuses—of equality and inequality. Do we treat blind people unequally by denying them drivers’ licenses when others are permitted to drive? Do we treat convicted felons unequally by putting them in jail when other people are free to move about as they wish? In the purely descriptive sense of different treatment, inequality is ubiquitous. Thank goodness. But we have something different in mind, obviously, when we talk about equality and inequality in political contexts.
Here, as Aristotle long ago observed and as Michigan law professor Peter Westen explained some years ago in a much-discussed article in the Harvard Law Review, equality has a more normative sense. It means that like cases (or, as lawyers say, “similarly situated” instances, or similarly situated classes of people) should be treated alike.
But in that normative sense, equality is wholly uncontroversial—and entirely useless. Everyone favors equality: Everyone thinks that like cases should be treated alike. Nobody argues, “These groups are alike in all relevant respects, but they should be treated differently.” So when people disagree about legal or political issues, they aren’t arguing for and against equality. Instead, they are disagreeing about whether two cases, or two classes of people, actually arealike for the purposes of whatever is being discussed.
With respect to that sort of disagreement, though, no answers can be squeezed out of the idea of equality, as Westen’s article explained. Instead, we have to refer to our political philosophies or our moral views or something of that sort. Something more substantive than the unassailable but substantively empty proposition that “like cases should be treated alike.”
Read more at Public Discourse.
Read more at Public Discourse.
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