it is pushed on society because of a little thing called “equality”.
There is no general requirement for equality. To wit:
“The salient fact of our society at the present day is that we are engaged in a culture war. It is a war between our cultural elite, the intelligencia, the dominant force in our universities and media of communication, on the one hand, and the ordinary American citizen on the other.
"The average citizen holds views on a wide range of issues of basic social policy that are anathema to our cultural elite. The difficulty with our system of representative self-government, as they see it, is that everyone gets to vote, with the result that the views of the unenlightened masses are likely to prevail.** The function of constitutional law, in the view of our cultural elite, is to keep this from happening.**
"Constitutional law has become essentially a device or ruse for policymaking by judges. Such policymaking is much preferred by our cultural elite to policymaking by the elected representatives of the people because judges, given a free hand in policymaking, can generally be relied on to serve as the mirror, mouthpiece, and enacting arm of liberal academia in general and liberal legal academia in particular. Law professors, overwhelmingly well to the Left of the American public, are to judges as
The New York Times drama critic is to a playwright.
“The second thing necessary to a full understanding of constitutional law is that rulings of unconstitutionality overwhelmingly serve the policy preferences of those on the extreme Left of the American political spectrum. If one wishes so radically to change the meaning of marriage as no longer to require the presence of a man and a woman, one has virtually no chance of succeeding by appeal to an American legislature. The prospect of success is enormously enhanced, however, if the issue can somehow be removed from the control of legislators and decided instead by judges using the magic and mystery of constitutional law.
“This magic and mystery is nicely illustrated in the
Tanner and
Baker decisions, each holding that some or all of the benefits bestowed by law on marriage must also be bestowed on certain arrangements between same-sex couples.
In each case the judges wrote opinions purporting to explain the basis of their decisions. [H]owever, the judges faced an impossible task. This task is to show that their rulings constitute an exercise of the judicial rather than the legislative function, that they resulted from the application of law – pre-existing authoritative rules – rather than from nothing more than the judges’ own personal policy preferences. That, however, is almost always patently false.
What legal, as opposed to purely personal, justification could the
Tanner and
Baker judges possibly offer for their decisions? In each case, the judges purported to interpret and apply a provision of their state constitution so as to create and impose
a general requirement of equality. These provisions are taken to replicate or parallel and usually to extend the Equal Protection Clause of the United States Constitution [and various state constitutions]. These provisions, however,
do not create a general requirement of equality. The law does not and cannot treat all persons – young and old, weak and strong, rich and poor, male and female, and so on – as equal in all regards.
The very purpose of law is to classify (discriminate among) people for different treatment; for example, blacks, women, and 18-year-olds have the right to vote, while aliens and felons do not, not because of any principle or requirement of equality (or “equal protection”), but because they were given the right by the Fifteenth, Nineteenth, and Twenty-Sixth Amendments, respectively.
“When judges decide that some homosexual unions have the same legal status as marriage, they
are not, as they invariably claim, enforcing a legal or constitutional requirement of equality – there is none. What they are doing instead is legislating for homosexuals’ rights other than those granted by the legislature.
“Decisions extending marital rights to homosexual unions do so on no other basis or authority than the fact that full societal acceptance, if not endorsement, of homosexuality is the current
cause celebre in today’s academia.
The primary function of judicial opinions explaining these decisions is to deny or conceal this fact.”
“Single-Sex ‘Marriage’: The Role of the Courts”
by Lino A. Graglia** A Dalton Cross Professor in Law, University of Texas School of Law, Austin, Texas.
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