The buzzword flying around the debate regarding same-sex marriage is the phrase “marriage equality.” What does that phrase mean, however? Steven Smith, Professor of Law at the University of San Diego offers a word on that issue in an article posted at the Public Discourse. Here are some of the highlights:
[T]hink 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 are alike for the purposes of whatever is being discussed.
Smith goes on to explain his illustration of the blind person and a driver’s license:
Consider an example. We would treat blind people differently either by denying them the right to vote or by denying them drivers’ licenses. But we would treat them unequally only in the first case, not in the second. That is because an ability to see is not a relevant qualification for voting, but it is a relevant qualification for driving. We know this, though, not by applying the idea of “equality,” but rather by thinking about the nature of voting and of driving. Probably there is no disagreement about these particular conclusions. But if you did happen to encounter a good-faith disagreement, you would not be saying anything helpful if you thumped the table and declared that “blind people should be treated equally.” You would only be begging the question.
Ultimately, Smith argues that the use of the language of equality in the same-sex marriage debate is a red herring. It draws on emotion and rhetorical power without addressing the real issue. He states:
Even so, the rhetorical power of “equality” arguments is plain enough. An advocate who frames arguments in terms of “equality” can get rhetorical mileage out of the descriptive sense of inequality—after all, people are being treated differently—and even more rhetorical mileage out of the irresistible injunction to “Treat like cases alike!” Meanwhile, the real substantive disagreements are kept mostly out of sight. Concealing the hard questions while free riding on truisms can be a powerful rhetorical strategy.
I encourage you to take a few minutes and read the entire article. It will be worth your time.
Steven Smith, “The Red Herring of ‘Marriage Equality,'” The Public Discourse, March 27, 2013.