Seeking a coherent argument against gay and lesbian equality II

Some conservatives are so dogmatically opposed to GBLT equality that they end up missing the point of their own arguments. A commenter at Smogblot links approvingly to an article by Thomas Brewton in The Conservative Voice, in which the author critiques the following line in a New York Times editorial:

"The New Jersey Supreme Court brought the United States a little closer to the ideal of equality yesterday when it ruled that the state’s Constitution requires that committed same-sex couples be accorded the same rights as married heterosexual couples."

For Brewton:

The Times editorial implicitly presumes that the "ideal of equality" means entitlement to actual equality in all respects. Same-sex marriage is just the latest in a long list of socialist intellectuals' demands that judicial pronouncement, if not statute law, mandate equality of condition, rather than equality of opportunity.

The editorial presumes no such thing, but we'll get to that in a minute. Let's have a closer look at the distinction Brewton draws between "equality of condition" and "equality of opportunity." On the one hand, the distinction is valid: the government can provide universal health care, but it can't prevent you from getting sick; and the government can provide free or affordable education, but it can't guarantee that you will one day become a billionaire or win the Booker Prize. On the other hand, the distinction between "equality of condition" and "equality of opportunity is pure conservative cant, since many of those measures undertaken by governments and other entities--such as safety nets, public education, universal health care, affirmative action, progressive taxation, etc.--that Brewton would decry as "mandating equality of condition," are actually intended to maximise equality of opportunity.

Brewton, however, is talking specifically about same-sex marriage; and he argues that those who advocate it (we'll pass over the "socialist intellectual" ad hom. in silence) are trying to get the law to "mandate equality of condition"--by which I suppose means "equality of condition between same-sex and heterosexual marriages." In other words, advocates of same-sex marriage are--as he sees it--trying to get the law to make it so that same-sex and heterosexual marriages are the same thing. And on the face of it, this is ridiculous. Of course same-sex and hetero marriages are not the same thing--the one involves a same-sex couple, the other involves a coupe made up of different sexes--and no same-sex marriage advocate is suggesting otherwise. To be fair to Brewton, however, I imagine he would maintain that the differences between same-sex and heterosexual marriages go much further than that--so much so that they warrant a continuing legal ban on same-sex marriages.

Do they? Brewton never makes the case that they do (and it must be stated that on the conservative side of this debate the case is rarely ever made: it is only asserted). Instead, he draws a second distinction, and this is where he runs into trouble:

Our nation was founded on a completely different understanding of equality. [. . .] English political traditions brought to North America in the early 17th century remained the founding traditions of the United States in the 18th century, when the Constitution was written. In that framework, equality meant only that everyone was entitled to equal treatment under the law, that the ruler, as well as the ruled, was subject to a higher law of God-given morality.

Leaving aside the theocratic nonsense about "God-given morality," it is precisely upon the notion that everyone is entitled to equal treatment under the law that the argument in favour of legalising same-sex marriage is based. It is precisely according to the notion that everyone is entitled to equal treatment under the law that sodomy laws have been repealed. It is precisely this notion of equality that the New York Times editorial is idealising when it celebrates the decision of the New Jersey Supreme Court to award same-sex and heterosexual couples the same rights. What else could it be? The New Jersey Supreme Court decision won't guarantee that people will always treat non-heterosexuals fairly and justly, but it does ensure that the law will.

Hence, if the notion of equality as equal treatment under the law is the only notion of equality Brewton believes judges and legislators in a liberal democracy should be upholding, then he really has no case against the New Jersey decision. In the interests of logical consistency, he should back it. That he does not back it--nor any other measures aimed at ending discrimination against non-heterosexuals--and instead dishonestly portrays supporters of such measures as "socialist intellectuals mandating equality of condition," suggests that he only supports the concept of equality under the law to the extent that some people are more equal than others.

To demonstrate the force of this last point, have another look at Brewton's piece, and decide for yourself whether his argument would shift all that much if you were to replace "same sex marriage" with "interracial marriage," or "women's suffrage," or "desegregation," or "the abolition of slavery."