Heterosexual & Homosexual Unions, A Standard of Identity Issue

North Carolina recently became the thirtieth state to pass a constitutional amendment banning homosexual, or gay, marriage and civil unions. This represents the cumulative verdict of 60 percent of America by states on this issue. The vote was hardly close: 61%-39%. 93 out of the State’s 100 counties voted for the amendment. These figures mask some telling details, but the bottom line is that by a significant majority, the people of North Carolina, following 29 earlier examples, expressed their collective judgment, or at least their feelings, on this social and civil issue. Throw in the other nine states that have passed restrictive legislation in this connection and the verdict climbs to a resounding 78%! So what?

So listen to the people!

In our liberal democracy, the majority rules. That is the democratic standard.  Now this is certainly not unfettered majority rule; in our country, the Constitution circumscribes majority rule, and properly so. But such circumscription does not mean—or at least should not mean—bowing to the wishes and whims of each and every tiny minority that wants things its own way. That’s subversive to society. That isn’t saying minorities have no rights. But it is implying that a minority, and especially a less than significant minority, should have no priority, no inherent license—morally or legally—to impose its will on a disapproving majority . . . unless that majority is clearly acting in an unconstitutional manner.

The issue(s) of recognizing, or not, homosexual unions, and then classifying such unions as traditional marriages is such a case. I emphasize that the matter discussed here is the classification of homosexual union as traditional marriage, not the issue of the unions themselves.  Historically, and today, there is strong and visible majority support against both such recognition and their classification as a marriage—78 percent of states taking measures to prevent this, not counting California which has twice in the past 12 years voted to adopt such restriction.

Is the push by a minority—a small but organized and vocal minority (see below)—for the right to legally establish homosexual unions and then define the legal formalization as marriages in the same sense that legal heterosexual unions are almost universally represented as a “marriage” constitutionally supportable? Well, in time no doubt this question will be considered by the final judicial authority, the Supreme Court. The Court will, as it properly should, determine if the “political will of the majority” is overstepping its bounds and unacceptably infringing on a Constitutional right, or protection, of a minority group. That is all it can and should rule upon. The issue here, as generally understood, is one of a claimed discrimination, or supposed inequality of treatment or condition.

But the issue itself really encompasses two separate considerations: The constitutionality of the civil right, if any, to form and have legally recognized such a union and, secondly, whether or not a homosexual union has an undeniable right, under the Constitution, to be classified as a marriage, traditionally understood. The court will no doubt consider two significant points. First, whether or not the ability to enter into a matrimonial-type union (of any nature), implies a fundamental right, and secondly, that, historically, the definition of marriage has not been a federal issue. Traditionally, family-law issues like marriages have been decided at the state level.

As the Court has historically up-held fundamental issues, this is a key point: Is the right to form a civil union (contractually) between two consenting adults a fundamental right? If it is, then on the basis of equal treatment, the question of the (legal) recognition of homosexual unions could well (probably would) be decided in favor of this minority group. On the issue of this historically being a states’ right to determine, there is precedence for the federal government to override state law. In 1967 Virginia argued that it could ban interracial marriage under the `10th Amendment. The Supreme Court disagreed, holding that antimiscegenation laws, then effective in 16 states, violated 14th Amendment requirements to provide “due process” and “equal protection of the laws” to everyone. This is probably sufficient ammunition for the Court to uphold homosexual civil unions on the same or similar basis.

Now this leaves the second consideration: are/should such unions be classified as marriages, traditionally understood?

At issue is the idea of government managed, or at least defined and condoned, marriage—a social institution that dates from the 1600’s and has long been considered one of the foundations of the social structure of civilization—being redefined. Such redefinition would expand the traditional civil acceptance of the underlying requirements to consider a union as a marriage and, in the aftermath of such a redefinition, compel society at large (the majority) to accept the change. By the civil (political) action of at least thirty-nine of the fifty states, and the federal government, such minority group demanded change is being strongly resisted, and the minority-group is attempting to by-pass the political process for change and appeal instead to the judicial. It is their right to do so. It is also their responsibility to abide by the eventual decision. It should be highlighted that two recent federal court rulings in favor of certain rights for homosexual unions/partnerships reached their rulings on narrow grounds that did not address the issue of any right of “Marriage” itself.

That some thirty-nine states and the federal government, by means of the 1996 Defense of Marriage Act (DOMA), have seen fit to legislatively and/or constitutionally clarify just what a civil marriage means in the United States is certainly persuasive. Is it justifiable? Politically it certainly seems to be. But, is it constitutionally acceptable? Yes, the facts and circumstances reasonably support that it is. The majority has not over-stepped its prerogative.

Several considerations that the Court will most likely consider are relevant in arriving at this conclusion. First of all, does the so called lesbian, gay, bisexual and transgender (LGBT) population represent what might be considered a significant minority? Questionably: According to the Williams Institute, a think-tank devoted to LGBT research at UCLA, an estimated 9 million Americans, or just under 4% of the total (18 and over) population say they identify as lesbian, gay, bisexual or transgender.  By the numbers: +/- 9 million   LGBT vs. +/- 225.6 million non-LGBT. Assume this estimated 9 million LGBT group is understated by 50 percent, that still makes it but 6 percent of the 18 and over population. This is not to minimize the significance of this issue. There are strongly held positions on both sides. However, the salient point here is it appears that some portion of 9 million is insisting on something that at least the majority of some 225 million see as adamantly unacceptable. Socially—or civilly—this is not a factor that can or should be disregarded. It isn’t a matter of right vs. wrong, but of acceptability or unacceptability. In a social context this is a crucial factor not to be minimized, in the best interests of the community, as seen by the community itself. Today, perhaps unfortunately, our judiciary tends to over-weigh the interests of the individual as opposed to those of the community in its never-ending quest for “fairness,” or justice, as some might describe it (See Madisonian dilemma below).

A second consideration is, does this minority group represent what is legalistically termed a “suspect classification?” In American jurisprudence, a suspect classification is any classification of groups meeting a series of criteria suggesting they are likely the subject of discrimination. These classes receive close scrutiny by courts when an Equal Protection claim alleging unconstitutional discrimination is asserted. The Supreme Court has mentioned a variety of criteria that, in some combination, may qualify a group as a suspect classification, but it has not declared that any particular set of criteria are either necessary or sufficient to qualify. Some of the criteria cited include:

  • · The group has historically been discriminated against and/or has been subject to prejudice, hostility, and/or stigma.
  • · They possess an immutable and/or highly visible trait.
  • · They are powerless to protect themselves via the political process
  • · The group’s distinguishing characteristic does not inhibit it from contributing meaningfully to society.


This issue of a suspect classification is relevant, and highly so, in a Madisonian dilemma context. Such a situation is where the Supreme Court, having the final word on Constitutional interpretation, is forced to strike a balance between majority rule and minority rights. If it tilts too much in one direction or the other it risks either a tyranny of the majority in which minorities have little legal protection from the majority will, or a tyranny of the minority in which such minority dictates national priority through the courts. That’s no small issue!  The significance here is the amount of weight to give in arriving at a balance (harmony), even if the balance is forced.  The more a group is seen to be a suspect class, the more likely it is that the courts will give greater weight to it than to a majority outlook.

At the state level, California courts classify sexual orientation as a suspect class. Connecticut and Iowa—where homosexual “marriage” is legal—consider it as a quasi-suspect class. In Massachusetts, where homosexual “marriage” is also legal, such recognition was not based upon the issue of being a suspect classification.  Given our current highly liberal public civic philosophy in support of individual rights—at almost any cost to society, it seems—and the more likely the LGBT community is seen to be a suspect classification, the more likely the judicial balance here is going to be “tipped” in their direction, as opposed to a greater good of society, as expressed in the majority will.

It should be noted that a recent ruling by a mid-level appeals court in New York says it is no longer slander (in New York, at least) to falsely call someone gay. The decision found that there is no longer defamation in being referred to as such; that the historical understanding of such title (gay) is now “based on a false premise that it is shameful and disgraceful to be described as lesbian, gay, or bisexual.”  The court’s conclusion may not yet be embraced by society as a whole, but it may well indicate a generally improving picture of, if not acceptance at least greater tolerance, for this minority’s visibility within society.  That would tend to support the proposition that being LGBT does not, in itself, justify such a minority being classified a suspect classification.

A third and critical consideration is the understanding of the generally accepted term marriage. As this has been extensively debated, we won’t go into much detail about it here, aside from the fact (the fact), that upon examination it certainly appears that a homosexual union—as committed, as affectionate, as enduring , as fulfilling and as potentially contributing to the community as it might be—is incompatible with the generally excepted and widely understood meaning and use of this term, which is: marriage is an institution universally recognized as between one man and one woman which, in all its understanding can only be fulfilled by a man and a woman. Most today would contend that legally recognized marriage results from positive law, that is, one established by government. Some may contend there is an inalienable (fundamental) right for two (or more) persons to establish a union, or personal relationship, but that is not the same as a legal marriage. All law, or at least all law recognized and defendable by rights, is governmental in nature.

This recognized institution of marriage amounts to observing a standard of identity. What is a standard of identity?  It is a strict (legal) adherence to what comprises, or goes into producing, an item, a “product,” if you will, such that that item can be described or labeled as such. Items or products similar to but not produced strictly according to the (legally) established standard cannot be so described, or claimed to be. An example (bear with me here):  Mayonnaise is mayonnaise if and only if it is made with a mix of stipulated ingredients. At least one major US food company makes a popular mayonnaise-like product that is very similar to and competitive with mayonnaise, but, according to the (legal) standard of identity requirements, is not, and cannot be called, labeled or promoted as “mayonnaise.” The same standards of identity are held for any number of (food) products which may look, act, and even closely resemble the original. But, be this as it may, you can’t legally call or promote them as the original.   That’s considered both misleading and illegal.

Now it may seem a stretch to liken marriage to food products, but the principle of identity is the same; it has been legally established by government(s) and understood and accepted by almost everybody.  A heterosexual union we identify as a marriage has a standard of identity that cannot be exactly duplicated by the inputs of a homosexual union.  Close, perhaps, but not the same thing.

There are collateral economic, social and even personal considerations that accompany a state of matrimony which today may be limited (or even unavailable) to relationships not legally recognized. It would certainly seem, in recognition of fairness and equality (and the 14th Amendment!), that many such considerations should not be denied to the partners in legally recognized formal civil unions that in and of themselves do not fully qualify for the legal term/classification of marriage. This should hold at both the state and federal levels of government and government in so far as practical, applicable and reasonable.  To continue the above analogy with standards of identity, this is completely consistent with how both the authorities and the general public accept “almost identical food products and analogues:” they tend to be found in the same sections of the market with little or no discrimination evident. Following this logic, the 1996 federal DOMA legislation may well deserve to be reconsidered (a political responsibility).  A US District Court ruling in California of late (“Ruling orders CalPERS to allow enrollment of same-sex partners in long-term health insurance plan”) seems to support this, even if it did occur in California.

Well, you might say, if we eliminate the major differences between the rights and responsibilities, the collateral economic, social and personal aspects of heterosexual versus homosexual unions, why not just call them both “marriages?”  For two good and sufficient reasons: First, is that standard of identity issue:  homosexual unions do not comport with the established components (ingredients) of marriage as between one man and one woman and cannot fulfill all of the normally assumed and expected aspects of a heterosexual union: procreation. This is simply a fact that cannot be argued away.  This latter is a difference, if possibly the only substantive one.

Secondly, because, today, the vast majority of American society is not in favor of or disposed to accepting the claim, let alone the legality, of homosexual unions in the same light as traditional heterosexual unions. Listen to this! This says something important about the norms, the fabric and preferences of contemporary society that should not be lightly ignored.  In fact, it should not be ignored at all: Heterosexual relationships are the expected “marriage-norm;” homosexual relationships are the exception. The numbers indicated above clearly confirm this—less than 4 percent of the American adult population identify as LGBT. While this may be looked upon by some as an issue of right and wrong, it isn’t, and shouldn’t be.  It is simply an issue of indisputable difference and for the LGBT group to try and wish, or in this case adjudicate, this difference away is not only futile, it is irrational. While few wish to be, or to be considered to be, different, the fact is in sexual matters, they are. This is a fact, not a condemnation.

It is right and proper for democratically elected government to (1) defend the norms, fabric and preferences of society as a group while at the same time (2) recognizing the threat of overt public discrimination, public prejudice and inequality before the law this group may potentially be subjected to, absent rules and regulations addressing these issues. They are in no way, nor should they be considered, second class citizen. Aside from that surrounding their sexual preferences they are no different from anybody else. They are capable, in many instances more than capable, of contributing meaningfully to society.  There is no discrimination in calling a rose a rose, or in defining marriage as it currently is, and as a majority prefers it to be.

Johns Hopkins University professor of sociology Andrew Cherlin has opined that the battle over same sex marriage isn’t about rights anymore; it’s about being allowed to have a first-class social status.  Who doesn’t, but most would agree that such a status is earned, not awarded.

The final consideration in this matter is that of equal protection. The 14th Amendment provides that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Explicitly, the 14th Amendment Equal Protection clause applies only to state governments, but the requirement of equal protection has been read to apply to the federal government as a component of Fifth Amendment due process. So, we have coverage across the playing field.

What is it that the LGBT community would seek under this provision? Equal protection of the law?  Not exactly. What it appears they seek, using a claim of unequal protection, is to force the redefinition of the meaning, and accepted understanding of the American institution of marriage—the standard of identity— to compensate for their inability to otherwise fully qualify for it. This is questionably seeking equal protection. This is attempting to use the judiciary to replace the legislative branch of government to achieve their political ends. Their leadership, and they must have a leadership or such a persistent and on-going movement for change would be improbable, understands that, today, their cause has little to no chance of success via the democratic legislative process—where an issue of such  social significance belongs (more on this leadership point below).

Many are no doubt all for extending equal protection under the law (change parts of DOMA, for example; recognize a fundamental civil right to form unions). However, the majority, obviously, is less inclined to allowing a small minority to redefine the traditional meaning of marriage to satisfy their own feelings of status in the face of over-whelming (majority) disagreement. That’s not seeking equal treatment; that’s seeking special treatment.

There‘s probably little doubt in most people’s minds that negative attitudes and potential discrimination regarding the LGBT minority still exist. They do differ from most, if only in a sexual context. But attitudes and practices surrounding sex in our culture are a major societal consideration.  To deny this difference seems unsupportable, no matter how hard it may be pushed by this group. A greater sympathy and understanding of the LGBT community seems to be underway. There is also probably little argument that negative attitudes towards LBGTs are less today than they were only a decade or two ago. Most if not all would call that social (and group) progress. Opinion polls are put forth to show a changing public attitude. Maybe so, and time will tell. For this very small minority to force this issue, to demand not only legal recognition of their unions, but by implication respect for it as a “marriage” seems more than most are comfortable with today. And I suggest for this group to achieve its objective(s), society over-all is going to have to be comfortable with it. It’s probable that more progress can be made in improving the LGBT community’s civil union recognition situation by focusing on those collateral matrimonial issues that homosexual unions are presently excluded from. There is good and proper reason for wide-spread approval for this, and through the proper political channel; legislative as opposed to judicial action. It needs to be said that lobbying for such legislative goals has been a long-term effort by this community.

The Human Rights Campaign (HRC) is the largest LGBT-rights advocacy group and political lobbying organization in the country, typically spending over $1 million a year for this purpose. HRC spent over $7 million in its “year to Win” campaign during the 2008 elections.  It ranks among the biggest spenders on lobbying for “human rights.” According to the HRC, it has more than one million members and supporters—out of an estimated 9 million base supporter-pool (Note, however, an HRC spokesperson stated that its membership includes anyone who has donated at least $1). The HRC lobbies Congressional and state and local officials for support of pro-LGBT bills, and mobilizes grassroots action amongst its members. Local activities are carried out by local steering committees, of which there are over 30 throughout the US. In addition to the HRC, there are numerous other mostly local LGBT organizations spread across the country, such as the American Foundation for Equal Rights, in California, opposing the State’s initiative Proposition 8.

The purpose of democratic government is to provide the greatest good for the greatest number under, in our case, a Constitutional rule-set. Unfortunately, it seems historically true that you can’t please all the people all the time, about anything, let alone everything. This is certainly a case in point.  But that doesn’t mean there always has to be winners and losers. In many instances of contentious matters there is usually a solution that is positive, or acceptable for the moment (even if not completely satisfactory), to all parties, if there is a willingness to consider more than one side to an issue. Sometimes a straight line is not the shortest distance between two points.  If, however, ideological principles becomes the driving motivator in negotiations, little positive or comforting may result. We see this as the situation at our federal level of government today. Politically, there seems only one acceptable answer to an issue: mine!

e look to government to satisfactorily deal with issues of national concern. A real threat of governmental inaction is societal dissatisfaction. That seems rampart today. The matter of LGBT unions is one of these issues, but it seems no one in our federal government is willing, politically, to take the lead in proposing how to deal with it with “the greatest number” in mind. Yes, politically our Liberal President and Vice President have expressed their personal thoughts on the issue of “gay marriage.” But they also know that their Conservative political opposition will have no part in legislating the legality of such relationships. Today that simply won’t happen. It seems therefore that such a public position is suspect for short term political gain in an election year.

Perhaps a more honest and productive political approach—conservative or liberal— would be to publically honor and support society’s present majority view of these unions while championing  the fact that—different as they are viewed by most—such relationships are a fact of life; they aren’t going away. And as such those who choose this lifestyle are no less entitled to the pursuit of happiness and the generally recognized civil benefits and privileges, economic and otherwise, that are generally afforded to recognized heterosexual unions we call marriages. While this may be tainted with a whiff of separate but equal, it recognizes the generally accepted facts of life, and marriage, and provides those choosing this minority lifestyle much of what they do not presently enjoy. That’s hardly a win-lose outcome, and they are perfectly free to continue educational and lobbying activities on their own behalf. In time their situation may improve further in the direction they desire.

But today, listen to the people! While LGBTs are certainly not second-class citizens, and may in fact be “family,” there is an established standard of identity here they cannot meet.  When a majority is clearly in favor of changing the standard, then will be the time to do so, and do so politically. Given the facts, that time is obviously not at hand.

It is a country’s political system that draws together, or integrates, society. Within the political system, decisions are made that are binding upon the whole of society. It is unwise and socially destabilizing to attempt to short-circuit this system.  Our present Attorney General, Eric Holder, has gone on record saying he sees “no hard evidence of social harm caused by same sex marriage.” That’s a pretty short-sighted view. One would hope this and other potentially unsettling social issues—difficult as they may be— could be resolved in a mutually acceptable if not completely satisfactorily manor before the situation advances to “hard evidence of social harm.” I would contend that that is part of government’s responsibility to all the people at least most of the time, and to most of the people all of the time.  That seems to be a problem now days in D.C.


Thomas Richard Harry
May 2012

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