Thursday, August 5, 2010

Because They Aren’t the Same (And a Judge’s Ruling Can’t Make Them So)

“We learn pretty early in life that most basic difference between men and women: Men have penises, and women have vaginas. But more fundamentally, our cells contain different chromosomes—women are dealt two X chromosomes, men an X and a Y—and, therefore, many different genes. Most genes on one of the female X chromosomes are silenced so that there's only one functional copy of each, but there are exceptions; and while many Y chromosome genes direct testis development, others influence hormones and the brain. Even the genes we share are made into proteins at different rates: A study published in July 2006 in Genome Research compared the levels of gene expression in male and female mice and found that 72 percent of active genes in the liver, 68 percent of those in fat, 55.4 percent of the ones in muscle, and 13.6 percent of genes in the brain were expressed in different amounts in the sexes.”

(Quoted from “Women aren't properly represented in scientific studies” by Melinda Wenner Moyer. Published on;, July 28th, 2010)

The ability of our laws to reflect common sense by distinguishing one sort of thing from another has largely evaporated. I say “largely” because our law still distinguishes those who might need special assistance and extra protections from those who don’t, such as the differently-abled or the economically disenfranchised. But because our law, when it DOES distinguish one thing from another, distinguishes the so-called disadvantaged from “the rest of us”, the tendency is to see such distinctions as a declaration of relative value—as if the difference being recognized is a declaration that one thing is less than another thing.

One may argue that laws ensuring special help for the disadvantaged do no such thing and of course in theory that’s true. These laws don’t suggest by implication that one thing has less value than another and they certainly don’t explicate it. But right or wrong, our commons sense tells us that it’s better to be healthy and have the use of one’s own faculties than otherwise and that it’s better to be provided for out of one’s own efforts than to be dependent on the alms of another. The result is that at some level we do see these laws as distinguishing between what is better and what is worse.

Elsewhere, though, our laws are explicit in stating that one thing is of less value than another and should therefore be treated differently. I’m speaking in particular about those laws which afford the newborn child every possible protection while permitting the destruction of the child still in the womb.

In each of these cases, whether intended or not, the distinction recognized by our law is seen as a declaration that one thing is less than another and is for that reason entitled (or doomed) to different treatment.

Where a law recognizes what is believed to be a real and relevant distinction the law is considered just. When such a relevant and real distinction is NOT believed to exist, the law is considered unjust, offensive, those who support the law are scorned as misguided or even evil, and pressure mounts for the law’s repeal.

Those who support the creation of laws that would make it illegal to terminate the life of a child still in the womb are offended by laws that recognize a difference where they don’t believe any real or relevant difference exists. They further believe that science and philosophy are on their side. Pro-abortionists should understand that this is the reason anti-abortionists want to curtail and ultimately deny the “right” of women to terminate their pregnancies. It’s got nothing to do with being backward or draconian or because they aren’t sensitive to the dangers of “back alley abortions”. It’s because they don’t see a real or relevant difference between the child before it’s born and the child after it’s born and since one enjoys the protection of the law so should the other.

Abolitionists were similarly and rightly offended by laws enacted to protect the “right” of white people to keep black people in the manner of cattle. It’s plainly evident to us that no real or relevant difference existed between slave and slave holder but at that time it was a matter of unsettled belief. It was the belief in the essential similarity of African and European which caused laws protecting the legal rights of slaveholders over against the inalienable rights of slaves held to be considered unjust just as it was a belief in the essential dissimilarity between Whites and Blacks that gave those laws their force for so long.

As a consequence of this baggage we’re loathe to have our laws make distinctions of any kind at all. We’re just too prone to seeing differences or distinctions codified by our laws as declarations that one thing is inferior to another.

So the question that ultimately must be decided when evaluating whether certain laws are just or unjust is whether the law is recognizing a real distinction or a false one and for many years the error has been on the side of being willfully blind to real and relevant differences that DO exist as a misguided protection against the potential injustices which might be caused by the opposite error.

One of the results of this forced myopia is that school’s for boys are shuttered or forced to accept girls (and vice versa) because no real or relevant difference is recognized between girls and boys. A consequence of this forced blindness is that some jurisdictions have trouble finding legally justifiable reasons for separate bathrooms and changing facilities even when children in middle-school are concerned.

So accustomed have we become to willfully ignoring the very real and legitimate differences between the sexes that we’ve finally come to the point where half the country doesn’t understand why our laws continue to distinguish committed same-sex unions from their supposed analog in the marriage of husband and wife. Advocates for expanding the definition of marriage contend that there is no difference—or no essential difference—between the two. They contend that what makes it a marriage has nothing at all to do with the genders of the people involved while those on the other side contend that gender has everything to do with it. They who take the position that the gender of the people involved really matters a great deal are loudly accused of bigotry and unjust discrimination by those who think otherwise and to make their point those who favor an expanded definition of marriage compare their opponents to the bigots who were at one time against mixed-race marriages.

But the two issues are not the same.

Where interracial marriage was prohibited by law, it was due to the erroneous belief that white people really were different from black people in necessary essentials. This was also the motivating factor behind Jim Crow laws and myriad other injustices visited upon blacks in so many parts of our country for so long. Of course the reason these laws were unjust is because there isn’t an essential difference between one man and another no matter the color of his skin and the “race” of the people involved has nothing to do with the essential nature of marriage--with what a marriage really is.

But a marriage between two men or two women, if it could be called a marriage, WOULD be an essentially different kind of thing from the marriage of one man and one woman. When our law distinguishes a same-sex union from a marriage the law is recognizing a real and relevant difference between two different things. And further, our marriage laws, in recognizing marriage for what it is, do not treat things that are essentially the same as if they were different.

No matter a man’s sexual preferences, all men are essentially the same and our current law has the positive effect of treating them that way. Any man may marry any women he likes provided certain generally applied conditions are met: That the women in question be of an age to give her consent; that she does, in fact, give her consent; that the women is not already married to another man; and that the women isn’t too closely related to him. These conditions apply to all men indiscriminately.

The push to normalize same-sex monogamous unions by changing the law to recognize them as marriages is operating under the specious presupposition that differences between the sexes are less important, less essential, and less foundational than they really are. It makes the related mistake of believing that changing the name of a thing can change the essential nature of the thing itself and make of something what it is not.

It is undeniably true that wherever laws have recognized women as different from and complementary to men there have been abuses. These abuses and injustices have been contrary to the good that was willed by such recognition. And nearly one-hundred percent of the time the abuses have been to the advantage of men and the disadvantage of women. In the unfortunate course of human history, women have most usually been treated as something essentially less than a man which is to say less-than-human. They were, as a matter of law, denied essential human dignity and respect.

This was wrong in the past and it’s wrong, where it still occurs, in the present. But be that as it may, where laws treated women differently from men it’s because the lawmakers recognized essential differences that can’t be wished or willed away. It's the misapplication of a valid truth and not the truth itself that has so often been the cause of so much evil.

But in our own culture, the war against this evil has swung the pendulum entirely too far the other way. The old injustices have been replaced with new injustices so that on balance the situation we find ourselves in is as bad as what came before. In denying the differences between men and women we have denied our very humanity. The solution to the problem was to set our laws right but instead we’ve denied the differences and pretended they don’t exist. Generations of children have grown up in the environment thus created and have, in the process, lost themselves. A general identity crisis has been the result and the effect has been disastrous for our culture overall.

At the present there is hardly a person alive anywhere in the country who was not raised in an environment which declared men and women identical in every essential respect. The effects of this error are even felt in the areas of human study that should be the most immune to them such as the physical sciences. Men and women are treated as if one is identical and interchangeable with the other.

Can it be any wonder, then, that after generations have been indoctrinated with a false and therefore pernicious philosophy so many are advocating for a change in marriage laws. The changes being sought would merely reflect what they sincerely believe to be true. That if there is no essential difference between men and women—just as there is no essential difference between a black man and a white man—than why should a man be prohibited from marrying another man? Why should gender have anything to do with whether a committed union can legitimately be called a marriage?!?

Our answer must be AND CAN ONLY BE that there is a difference and to our great advantage we can point to the evidence all around us. All of us are either male or female and whether we were blessed to know them or not we all had a mother and a father. We all know how new humans get made and we know it cannot happen unless two very different yet complimentary things are brought together in a certain way. Nature declares what we know by common sense and what can be denied only through the concentrated deceptions of the present age.

Again, I do not wish to exaggerate the differences between men and women. Nor do I intend to invent differences that do not exist.

But what differences do I mean?

On one level, men and women are essentially the same and no one should be able to deny that. We are essentially human. All of us at that level—men and women alike—share certain inherent and inalienable rights which are ours merely by virtue of our common humanity. We share a common origin and we look ahead to a common destination. Our way in this world is necessarily joined and one cannot do without the other for very long. Because I believe this level to be the most important level—the constitutional level—I will refer to this as the superessential level.

At another level, though, men and women are clearly different. We are not the same thing and though those differences may go no further than biology we have yet to mark the outer edges of how those biological differences affect us. At this secondary level, which I will refer to as the essential level, men and women are different.

I think regardless of what we as a society have seen fit to recognize by our laws over the course of the last century or two, and regardless of what many of us profess to believe, the majority of us are aware of these very real differences and understand them perfectly well so that I don’t need to go into great detail explaining them. I would wager, for example, that self-identified homosexuals, as a group and as individuals, are more fully aware than most that those differences go much deeper than biology. A man who prefers men prefers MEN and not merely the male anatomy. This is so because our differences go much deeper than anatomy. And I think it true in my own case that if my desire was for a man rather than my wife it would be a desire for the whole man and not merely a desire for that which made him anatomically different from a woman.

I believe it true that if the majority of us could simply be honest with ourselves, we could all come to a similar conclusion. Our husbands, our wives, and our life partners are either women or men and we love them AS women or men. We are aware, we understand, we recognize the differences between men and women and as much as some of us pretend those differences don’t exist or that those differences are merely incidental, we all know they’re there and what they are. And I think what we say and what we claim to believe (in most cases) are contrary to how we know reality to be. I believe that both our current laws and what we say are contrary to what we, at some level, know to be true. We KNOW that there are essential differences between men and women but because we fear that recognizing those differences may result in their codification in unjust laws and unjust treatment we pretend to ignore them or we say they don’t exist.

And those differences, which AREN’T relevant to voting, driving, working, etc., ARE relevant to the institution of marriage.

Our current laws prohibiting the recognition of same-sex unions as “marriage” recognize that however much males and females may be alike, they are formed for different functions and they recognize that it is through marriage that those functions find their most complete expression. Through marriage men can become fathers and husbands, women can become mothers and wives. These connote differences, not just of role, but of the essential nature of the thing itself. A husband is one thing and a wife is another. Each title grows out of the essential nature of the title-holder.

A marriage is a husband and a wife who may, in theory if not always in practice, become a father and a mother. For it is thus that the different functions of man and woman can reach the fullness of their potential.

Those of us who oppose artificially expanding the definition of marriage to include a thing which it is not contend, not only, that a union in the form of a marriage between two men or two women would be a different sort of thing than a union between a man and a women, but we contend that a supposed marriage between two members of the same sex is impossible. Marriage is the union of husband and wife. And just as a man can't be a woman and words can't make him so, a man can't be a wife or mother nor a woman a husband or father. Our words are powerless to change that reality.

I understand the motivation to not have our law distinguish between a same-sex union and an opposite-sex union. None of us want to be treated as different and therefore less than something else. But our laws, in recognizing differences, need not be making declarations of relative worth. And calling by the name of “marriage” that which is not of its nature a marriage would simply be nonsense. Once our laws sustain nonsense the structure on which they depend is reduced to nonsense as well.

So that our society may not descend into utter nonsense, may we recognize things as they are, differences and all and, hopefully, common sense and reason may prevail.

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