When the Constitution was penned, women had no vote and African Americans could not enter the contract of marriage.*
Is your point that women should be relieved of the right to vote, and that all marriages entered by African Americans should be annulled?
How can you compare SS’M’ rights to the legitimate struggle of African Americans for equality or by women in their movement to secure voting rights?
Sexual behavior or orientation, the latter a recent construct, is not equivalent to skin color pigment and sex as distinction between men and women, the basis that blacks and the fair sex had been separated as a class to discriminate.
The civil right of equal treatment cannot constitute social reality by declaration. Civil rights protections function to assure every citizen equal treatment under the law depending on what the material dispute in law is all about. Law that is just must begin by properly recognizing and distinguishing identities and differences in reality in order to be able to give each its legal due.
To argue that two same sex people who have not in the past been recognized as marriageable should now be recognized as marriage partner eligible, you must demonstrate that marriage law (not civil rights law) has overlooked or misidentified something that it should not have overlooked or misidentified.
Marriage law for thousands of years has concerned itself with a particular kind of enduring bond between a man and a woman that includes sexual intercourse—the kind of act that can, not always, lead to the woman’s pregnancy. A homosexual relationship, regardless of how enduring it is as a bond of loving commitment, does not and cannot include sexual intercourse leading to pregnancy. Thus it is not marriage.
Political scientist James Skillen explained: to recognize in law the distinct character of a marriage relationship, which entails sexual intercourse, involves no discrimination of a civil rights kind against those whose bonds do not include sexual intercourse. Those who choose to live together in life-long homosexual relationships; or brothers and sisters who live together and take care of one another; or two friends of the same sex who are not sexually involved but share life together in the same home—all of these may be free to live as they do, and they suffer no civil rights discrimination by not being identified as marriages. A marriage and a homosexual relationship are two different kinds of relationships and it is a misuse of civil rights law to use that law to try to blot out the difference between two different kinds of things.
The question behind marriage is a structural one that precedes lawmaking. The argument about the structural identity of marriage is not a legal argument about how people should be treated within the bonds of that structure. Rather, it is about whether homosexual relationships should be identified as having the structure of marriage, and only after that can civil rights considerations emerge about how citizens should be treated fairly with respect to marriage.
Homosexual activists say that many aspects of their relationships are like marriage—having sexual play, living together, loving one another, etc.—and therefore they should be allowed to call their relationships marriages and be recognized by law as marriage partners. But this cannot be a proper legal matter until the empirical case has been made that a homosexual partnership and a marriage are indistinguishable. Otherwise, the appeal amounts to nothing more than a request that homosexual partners be allowed to call themselves what they want to call themselves regardless of the differences that exist in reality. The answer they want is for law making and adjudicating authorities to change the law based on the principle that reality is defined by the will and declarations of individuals, all of whom should be treated without discrimination.
Gays appeal for judges and lawmakers to ignore distinctions between homosexual and heterosexual relationships in order not to deny citizens the right to call things what they want to call them. It is a version of an appeal for the protection of free speech, and in this case it is a demand that the speech of particular persons carry the authority to define the structure of reality without regard to the basis of past legal judgments. The antidiscrimination principle is appealed to not in order to show that some married couples have previously been denied the recognition of their marriage. Rather the antidiscrimination principle is being used to ask that no citizen be denied the right to call something what he or she wants to call it.
If this happens, we will need to pay close attention to consequences. Judges and public officials will be required to recognize as a marriage any sexually intimate bond between two people who want to call themselves married. There will be no legal basis for restrictions against a homosexual couple obtaining children in ways that they choose. It will mean that when a mature mother and son, or father and daughter, or trio or quartet of partners come to the courts or to the marriage-license bureau to ask that their sexually active relationship be recognized as marriage, there will be no legal grounds of a non-arbitrary kind to reject the requests. Because if it is now arbitrary and unjust to recognize heterosexual marriage as something exclusive and different from homosexual relationships, then it will be arbitrary and unjust not to grant the request of other partners to call their sexually intimate and enduring relationships marriage.
Since legal declarations cannot turn reality into something it cannot become, a variety of conundrums, contradictions, and anomalies will inevitably arise.
Society as a whole needs to answer if SS’M’ would be doing justice to reality and wishes to face the consequences.
