Not all equalities are equal

Steven Smith, who teaches law at the University of San Diego, explains how rhetorical appeals to “equality” obscure rather than illuminate public debate. Citing a Harvard Law Review article by Peter Westen (“The Empty Idea of Equality”), he observes that everyone is for equality if it is defined as “like cases should be treated alike.” No one argues, he claims, “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.”

With regard to the marriage debate, the issue is not equality but “what marriage is”: “Among the vast spectrum of human relationships, many of them valuable or ennobling, which ones should be classified under the heading of ‘marriage’? On that question, there are various views. Some think marriage is a relationship between one man and one woman. Some think it can include relationships between two committed adults, regardless of sex. Some would not limit marriage to only two persons. Some would not limit it to adults.”

Smith wants these debates to happen, and to happen “in various vocabularies – cultural, psychological, political, theological.” But he pleads for clarity about the issue: “the debates will only be cluttered up, and the decisions confounded, if the issue is framed in the question-begging terms of ‘marriage equality.’”