Steven Smith argues that appeals to "marriage equality" are question-begging and prevent us from addressing the real issue in the marriage debate: the question of what marriage is.

The Red Herring of "Marriage Equality"

by Steven Smith

Debates about marriage will only be cluttered up, and decisions confounded, if the issue is framed in the question-begging terms of "marriage equality."
In his Second Inaugural Address, President Obama declared that "if we are truly created equal, then surely the love we commit to one another must be equal as well." Headlines and blogs around the country proclaim that the Supreme Court is ready to tackle the issue of "marriage equality." If that's the issue--"marriage equality"--then the correct outcome seems irresistible, doesn't it? But is "marriage equality" really the issue?
In a recent exchange at the University of San Diego, a public interest lawyer told me that his organization was litigating in behalf of "marriage equality." "So, if I'm opposed to same-sex marriage," I asked, "I suppose I must be either against marriage or against equality?"
He grinned. "You might be against both."
It was a clever response--but also a misguided one. And utterly question-begging, in an all too familiar and unfortunate way.
To see how, think 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.

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Read more: www.thepublicdiscourse.com

My appearance last night on Piers Morgan was, let's be honest, a bit rough. CNN hasn't posted the full video, but here's what they did post: http://piersmorgan.blogs.cnn.com/2013/03/26/suze-orman-and-ryan-anderson-respectfully-disagree-on-the-issue-of-same-sex-marriage/  

If that was "respectfully disagreeing" I'd hate to see disrespectfully disagreeing!  You can watch full video here:http://www.iqmediacorp.com/ClipPlayer/default.aspx?ClipID=45b5d160-24a4-4b14-a2eb-1d5190d4d2a4&PN=knAdm5ZmNA9ignlucXtDRA%3d%3d    

I more or less walked into set up. A good description here: http://www.dennyburk.com/how-not-to-have-a-debate-about-gay-marriage/  another take here: http://blog.heritage.org/2013/03/26/video-ryan-anderson-debates-marriage-with-piers-morgan-suze-orman/ 

my comments in front of SCOTUS yesterday here: http://www.youtube.com/watch?v=qu-2hBGYiOM&feature=youtu.be