A fair difference


By Frank Wessling

The American legal system is operating in a relentless manner to dissolve the historic, universal, traditional understanding of marriage.

That is not its direct aim but our courts, influenced by traditions of legal language, precedent and some of our unfortunate history, are like a freight train speeding in that direction. The immediate cause is the desire of homosexual people for equal standing in the law with heterosexuals, including equal access to the status of marriage.

As a result, in court case by court case, we come closer to swallowing the pretense, the fiction, that no significant difference exists between the pair Harry and Mary and the pair Harry and Larry.

The most recent case is last week’s ruling in a federal district court that California voters could not prohibit same-sex marriage because doing so violates the Constitution’s guarantee of equal protection in the law. That ruling was very much like the one issued by Iowa’s Supreme Court in April of 2009, and similar to court actions leading to same-sex “marriage” in New Hampshire, Connecticut, Massachusetts and Maine.


There are complex legal distinctions and arguments behind this development, but a large part of what keeps it alive is our memory of an ugly experience with “separate but equal.” After the Civil War, southern states were forced to provide education to their black populations. They kept black children in separate schools and devised the cynical argument that this was constitutionally OK because the black schools, though separate, were equal to white schools.

There was no intention to make them equal and in fact they were not near equality in any way. But this fiction was allowed to stand for more than half a century, until the 1954 Supreme Court decision known as Brown vs. Board of Education. In that case, a brilliant lawyer named Thurgood Marshall convinced the court that a “separate” education, even a good one on par with anything offered to white children, was inherently damaging to the minority group because it implied that they were not good enough in some way to share what the dominant group had.

Now the same appeal is used to insist that homosexual couples must be allowed to share the name “marriage.” It won’t do to give them legal status as civil unions or domestic partnerships.

It is a fascinating irony in this story that President Obama, a constitutional lawyer and a man considered to be black because his father was a black African, has supported the idea of civil union status for homosexual couples, with the same civil rights available to married couples, but not marriage itself.

Most people do not want homosexuals to suffer any unfair discrimination. If asked to vote on giving homosexual couples the status President Obama supports — civil union recognized in law with rights and privileges the same as married couples — a strong majority would agree almost everywhere. But the title “married” is different.

Is it an unfair difference? No. The pairings are obviously different on a common sense level, with a different fundamental potentiality that simply can’t be shared. Put Harry and Mary in a room and in nine out of 10 cases the human race is kept alive. Put Harry and Larry in a room and we die out.

Not that Harry and Larry, or Mary and Sherry, are not good people capable of adding to our life together. They may even do a better job of parenting healthy children than a great many natural parents. But they are not equal as a symbol of ongoing human life. We would not send a probe out into the universe bearing an image of Harry and Larry to give other life forms an idea of what we’re like.

They lack the polarity, the otherness in union, that keeps humanity open to a future. And that is a difference always privileged with the name Marriage.

The Catholic Church sees this openness of marital union as including the way to God. We see a deep significance here, a sign value, part of our sacramental intuition that notices and celebrates what is most essential, lasting, most durable in life; what points to the sacred eternal. But the legal system doesn’t have to accept religious insight. There is enough to see in a clear-eyed secular view of the human condition.

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