The Milner's

Note to Svend Robinson
By MARGARET SOMERVILLE

As published in the Globe and Mail
July 9, 2003

Dear Svend,

Your recent article in these pages makes me acutely aware of the mixed emotions I face in opposing same-sex marriage. You, and many others, regard such a change as an essential recognition of the dignity, worth and rights of homosexual people, and opposition to it as a declaration to the contrary. In writing of the discrimination suffered by homosexual people, you evoke powerful feelings that we all must "right the wrongs." But, despite those feelings, I must challenge your arguments in favour of same-sex marriage.

First, there's a difference between separate-but-equal and different-but-equal. Separate-but-equal means that two entities are inherently the same, but are treated as separate. That's discrimination, and you rightly reject it. Different-but-equal means that two entities are not inherently the same, but are treated equally. That's the antithesis of discrimination. Separate-but-equal is second-class citizenship. Different-but-equal is not.

The question is: Are homosexual and heterosexual unions inherently the same, in which case they should constitute one group of unions, or inherently different, but should be treated equally?

The answer depends on which characteristics of the unions we choose to focus.

If we focus on adult individuals' commitment to each other and public recognition of that commitment (as the courts have done), we can conclude that restricting marriage to opposite-sex unions and having a separate but equal institution for same-sex unions would be discrimination. If, however, we focus on the inherently procreative nature of an opposite-sex union and the absence of that feature in a same-sex union, we can regard the two types of union as different but equal.

You argue previous changes in marriage are precedents for changing marriage to include same-sex couples, citing the fact that husbands once could beat their wives, and interracial marriages and divorce were illegal. These are not relevant.

Institutions have both inherent and collateral features. Inherent features define the institution and cannot be changed without destroying the institution. Collateral features can be changed without such impact. We rightly recognized that women must be treated as equal partners with men within marriage. While that changed the power of husbands over their wives, it simply changed a collateral feature of marriage. Recognizing same-sex marriage would change its inherent nature.

As for interracial marriage, it symbolizes the inherently procreative relationship between a man and a woman and the only reason for prohibiting it is racial discrimination. Same-sex marriage expressly negates this symbolism. That is the reason for denying same-sex partners access to marriage, not their sexual orientation.

Divorce is not analogous. The issue is not whether opposite-sex couples attain the ideals of marriage; neither is the issue whether marriage is a perfect institution.

The issue is whether society needs marriage to institutionalize the inherently procreative relationship between a man and a woman. I believe we do, and maintaining it should take priority. You believe recognizing homosexual people's claims to access to marriage should come first.

The conflict at the heart of our disagreement - as is so often true in ethical dilemmas - is whether societal needs or individual rights should prevail. Important as individual rights are, we can do serious harm in assuming that they should always trump society's needs.

Sincerely, Margo.

Margaret A. Somerville is Samuel Gale Professor of Law at the McGill Centre
for Medicine, Ethics and Law at McGill University.

click to comment
0 comments links to this post