Commentary on So-Called Same-Sex
Justice requires that equals be treated equally and
unequals unequally. Discrimination is a distinction or the differential
treatment based on such a distinction. Whether discrimination is justified
depends on the answer to what Aristotle calls "the difficult question":
equals and unequals in what? Unjust discrimination either fails to
ask the right question or fails to act on the right answer.
In contemporary political discourse the term
discrimination itself has come to signify injustice. While this reflects
the truth that all human beings have equal dignity simply in virtue of
belonging to the human species, it can obscure the fact that human dignity
also requires recognition of the truth that, though equal, not everyone is
To deny driving licenses to the blind does not assume that
they do not deserve equal respect and consideration as persons, but that
they are different from other persons in respects relevant to driving.
Some countries have introduced, and others are
considering, the extension of the legal recognition and social benefits of
marriage to persons in homosexual relationships, in order to "put an end
Are homosexual relationships equal to marital
The first and most ambitious argument from discrimination
proposes that homosexual relationships are equal to marital relationships
in those respects that justify the privileged treatment of marriage.
Exclusivity, dependence, duration and sexual nature are
not the relevant aspects why marriage is privileged by the State. They are
only the conditions of those aspects that make marriage unique: the vital
function of procreation and the socializing functions of bridging the
male-female divide and raising children.
When the State uniquely privileges marriage it takes the
position that it is in the best interest of society for children to be
born and raised in a community where they experience the cause of their
biological and historical identity as a loving union preserved by each
parent placing the needs of others over their own. By promoting marriage
to be the exclusive union between one man and one woman, the State not
only protects the rights of children but encourages the values of
commitment, restraint and diversity that are needed to preserve community
One objection to this is that not all marriages lead to
children. Of course, the State cannot anticipate whether or not couples
will have children, but it is clear that only one man and one woman
together can be the biological parents of a child and can raise it with
the complementarity of motherly and fatherly love. Marital acts are
procreative in character, even if non-behavioural conditions do not allow
The other objection is that marriages fail, to the
detriment of children, spouses and families at large. But if individual
marriages are in crisis, the correct inference cannot be that social
policy should institutionalize this failure rather than counteract it.
Through marital benefits the State promotes rather than rewards ideal
conditions for procreation and socialization.
When the State uniquely privileges marriage, homosexual
relationships are in no way singled out for "unequal treatment". There are
any number of relationships that do not qualify for the benefits of
marriage. The question then is why homosexual relationships should
be treated as uniquely analogous to marriage.
The aspect that differentiates homosexual unions from
other non-marital relationships of dependence and duration is their
particular sexual nature, and it is not clear why this should single them
out for governmental support. Preferential treatment of this sort would
discriminate against all those in dependent relationships of a non-sexual
nature: an unmarried woman who cares for her aging mother or two widowed
sisters who share a household could not claim privileges and protection
from the State.
In France the perception of this problem has led to a more
liberal model of civil unions, open to any two citizens. Even this model
discriminates against some, as it provides no justification why groups or
singles should be financially and socially disadvantaged.
Crucially, in an open-to-all policy marriage loses the
uniquely privileged position it deserves for practical and symbolical
reasons. The extension of marriage privileges to non-marital unions
inevitably diverts resources, dilutes meaning and diminishes status of
marriage as traditionally understood. Rhetorical efforts to maintain some
distance between marriage and homosexual unions cannot hide this fact.
A minimalist version of the argument for homosexual unions
suggests that with "legal recognition" nothing more is at stake than the
formal registration of a social phenomenon. In most cases, though, such
"legal recognition" does in fact confer to homosexual relationships
privileges previously reserved to marriage. This involves a re-evaluation
of what contributes to the common good, how social benefits should be
distributed and what the rights of children are.
But even if no benefits and privileges were involved, to
single out the social phenomenon of homosexual relationships for formal
registration is either arbitrary or it suggests an analogy to the only
other legally recognized relationship, which is marriage.
In an attempt to justify this analogy, proponents resort
to the category of "committed relationships" to describe both homosexual
and marital relationships. This falsely suggests that commitment in
relationships is worthy of privileges for its own sake, while in fact the
privileges promote the vital and social functions of marriage, for which
commitment is only the condition.
Consequently, for the State to promote a homogenized
vision of "committed relationships" amounts to the decision no longer to
encourage ideal conditions for procreation and socialization.
Conferral of marital status to homosexual unions?
The second argument from discrimination takes a different
approach. Now the contention is not that homosexual unions are equal to
marriage in relevant aspects but that the disadvantages homosexual persons
suffer in society ought to be compensated for by conferring marital status
to homosexual unions.
Because only homosexual persons are disadvantaged in this
particular way the question whether the State should extend the privileges
to other non-marital relationships does not arise. The burden of proof
then no longer lies with homosexual unions and their contribution to
society in comparison to marriage, but with individual homosexuals and the
disadvantages they suffer.
Naturally, the argument will encounter less sympathy if
these sufferings are in any way self-inflicted
hence, the importance of shifting responsibility away from those who share
the homosexual identity to others who by their actions allegedly make it
The argument from identity often assumes a unique advance
in knowledge and understanding of human nature and elevates contemporary
perceptions and practices to a normative status. Different perceptions,
such as the traditional heterosexual model of marriage envisaged by Plato
and Aristotle, are explained by their relation to an inferior
understanding of the "facts" about homosexuality. Their objection to
homosexuality, based on the notion that homosexual persons engage in
unnatural and therefore immoral acts, now can be dismissed because we
"know" that homosexuality is a "natural condition" and ought to be treated
as an "identity".
But are these established facts?
While so far there is no empirical evidence that
homosexuality is biologically predetermined and unchangeable, there seem
to be biological factors that can contribute to the development of
homosexual inclination, just as there are in the case of aggressiveness or
athleticism. However, the claim of a biologically determined and clearly
delineated homosexual identity is rendered problematic in theory by
Foucault's sexual constructivism and in practice by the bisexual and
paedophile fringes of the category.
Regardless of whether sexual orientation is chosen,
biologically determined or psychologically enforced (as it seems to be the
case with many victims of abuse), no account of the origins of
homosexuality can establish that the inclination must constitute an
Next to the identity claim, the argument for compensation
has to rely on the perception that the disadvantages homosexual persons
face are substantial.
In this regard there can be no doubt that the feeling of
being ostracized or persecuted among many homosexual persons is real, even
if the truth of the feeling is increasingly difficult to establish as a
truth of fact. Homosexual persons enjoy the full protection of the law,
and in many countries additional antidiscrimination laws are in place that
single out sexual orientation for particular protection. They enjoy above
average professional success and financial power (in the U.S. almost twice
the average household income) and are present in high proportion in
politics and among opinion-shaping elites.
This is not to say that they do not face very real
problems, but so far it has been impossible to show that they are related
to societal discrimination. The significantly higher rates of mental
illness, substance abuse, domestic violence and suicide among homosexual
persons seem to be independent not only of HIV status, but there is no
reduction in these rates among those who live in a social milieu where
homosexuality is widely accepted and legally recognized.
If social acceptance does not affect these problems, it is
unclear how increased social status could remedy them.
Opposition to homosexual unions does not mean lack of
Thin evidence for societal discrimination weakens the
compensation argument, as the discrimination for which marriage is
supposed to compensate appears to consist mostly in the fact that
homosexual persons cannot marry. Because this is true for any number of
relationships, the question returns why homosexual persons should be
singled out for preferential treatment.
Here emerges the perhaps most problematic aspect to the
compensation argument. If it turns out that the discrimination to be
compensated for consists not so much in acts that unjustly discriminate
against homosexual persons but simply in the fact that homosexual
behaviour is morally controversial, this raises questions of freedom of
Is the introduction of homosexual unions ultimately to
symbolize that there is no right to freedom of conscience on the matter of
homosexual acts and that conscientious objectors are to be marginalized in
Already the appeal to conscience in any matter pertaining
to homosexuality risks being dismissed as "homophobia". Understood as a
pathological fear, this disqualifies the position of opponents as an
entirely irrational stance.
Beyond that, it has also come to imply an indifferent or
even hostile attitude. Because the condemnation of homosexual behaviour
objects to acts, not to persons, the conclusion that any opposition to
homosexual unions indicates lack of respect and care for people is a
If the line of reasoning is that homosexuality is so
central to the human person that it is impossible to morally disapprove of
homosexual acts and not thereby discriminate against the person, then by
the same token conscientious beliefs central to the human person could not
be contradicted without discriminating against the person.
The exhortation that "religious belief must not lead to
the discrimination of homosexual persons by refusing them the right to
marry" sets up a false problem. Not all arguments made by religious
believers can be reduced to their religious beliefs or are justified on
the basis of their beliefs alone, and not all the reasons why the State
should uniquely privilege marriage depend on the immorality of homosexual
The contribution of religious believers to the public
debate on homosexual unions cannot be dismissed as inherently irrational
and biased without denying them equality as citizens.
Moral objections to sexual orientation are not necessarily
irrational, and it is only unjust to discriminate on the basis of these
objections in areas where the sexual orientation of the individual is irrelevant.
It cannot be allowed that in political discussion pathological
irrationality, bad motives or even hatred are freely ascribed to opponents
of homosexual unions, disregarding basic rules of evidence.
The same is true for the voice of the Catholic Church:
Scripture and Tradition are unequivocal in the condemnation of homosexual
behaviour, but the difference between homosexual relationships and
marriage has not been invented by Christianity, nor is it upheld only by
If in the name of truth rational arguments can be
dismissed because they accord with conscientious beliefs, and in the name
of justice conscientious belief can be silenced, then freedom is not for