Related Posts

Share This

On Justice, Equality, and Gay Marriage

[This is a re-post of an Article that I originally wrote in July of 2014.  Note its anticipation of the “dignity” basis for the gay marriage decision.  What does such a basis mean for concepts of justice and equality?  The below article answers that question.]

Why Talk About Justice?

If everything was always just, no doubt we would take it for granted and hardly ever speak of it.  But we speak of justice because we perceive injustice all around us, and because we want to reason together and unite in our attempt to deal with it.  We hope to build consensus as to what justice is and how it is brought about in society.

On Justice and Equality

Philosophers have debated the proper definition of Justice for centuries.  Many agree on the following definition: “Justice is to render unto others what is their due.”  This definition can apply to most philosophies as long as they accept the premise of merit and reward (i.e. what is due).  Having accepted this premise, the discussion then moves to the question of what is meritorious and what is not, and then to the question of how to reward, punish, or redistribute accordingly.  Equality is clearly implied in a justice that recognizes merit.  Where merit is equal, the reward should be equal.  Where merit is unequal, the reward should be correspondingly unequal.  Equal things should be treated alike, while unequal things should be treated differently.  Today the question of equality is spoken of even more frequently than the question of justice.  These two terms are nearly synonymous in modern society.  And so long as equality continues to concern itself with merit then equality will rightly remain synonymous with justice.

The Basis of Merit

You might be surprised to learn that every word in our definition of Justice (above) has been debated heavily the world over.  The choice of the words “unto others,” for example, is meant to reveal what must be the standard in our assessment of merit.  An unjust Ruler, for example, would enact laws and take actions that were only meant to bring about his own personal kind of justice with respect to what he felt was due to himself, without regard for his subjects.  A just Ruler, on the other hand, would enact laws and take actions that were meant to bring about a universal kind of justice that would bring “others” and even “all of society” what it was due.  In short, a just Ruler must “uphold what is best for all the rest.”  This requires an objective standard of justice, which then permits objective reasoning about what is really good for the collective interest.  A just Ruler does not rule by whim and fancy and is not motivated by self-interest and emotional caprice.  Thus the merit of a law must be based on objective standards.  (Objective means that it is fundamental enough to be independent of what any single individual or group may think.)

Various Objective Standards of Merit

What are the standards of merit?  There have been plenty.  As the values of society change, so does its analysis of merit.  For example, a shift in values towards capitalism might place special emphasis on profitability as an indication of merit.  A shift in values towards science might place special emphasis on hard facts and rigorous comparison as a warrant for merit.  In any case, the ascertaining of merit is based on objective standards upon which society at large generally agrees.  This is because society cannot avoid judging between two or more options when making laws — it is inherent in the process itself.  Society only needs a common basis or standard for assessing the merit of those options.

But what if society began adopting a value system which disconnected Justice and Equality from an objective, merit-based standard altogether?  What if society’s concerns over injustice and inequality began to arise from a feeling that merit-based reward and punishment was unfair, because it implied somebody somewhere might be wrong?  What if society began to feel that the very premise of right and wrong, better and worse, was an offense to human dignity?  Would not this reflect a fundamental change, not only in how society defines equality but also in how it defines justice itself?  In such a case, what laws in existence would not make some citizen somewhere feel that the law makes them a second-rate citizen?  What law could endure such a standard?  But what could that new standard be?

Non-merit-based Standard

It should seem incredible that a system of justice could even operate on a premise of non-merit.  Merit seems an inevitable implication of the very concept of Justice and Law, which deal primarily with notions of right and wrong, better and worse, and the general welfare.  Nonetheless, a movement is beginning which dons the garb of a merit-based movement [1], but in all reality, and in ultimate effect, it is a movement which completely undermines the merit-based analysis.   The foundation of this standard is to not judge legal claims based on their social merit, but instead to judge them with a focus almost entirely based on the inherent worth and dignity of the individuals making the claim, because some aggrieved individuals take offense to being judged on a particular point.  Sounds great right?  We can all be free of judgment of others right?  But what are the implications of such a standard for “all of society”?  Ask  yourselves the following questions:

  • Who doesn’t have inherent worth and dignity?
  • Doesn’t every law reflect a choice of what is better or worse among various options?
  • What would happen if every person or special interest group who ever disagreed with the implications of a law simply made the claim that such law should be abolished because it “violates their inherent dignity”?

Isn’t the dignity standard too broad and indiscriminate to really be a standard at all?  And what of the opinion of those who prefer this dignity standard?  Can’t it be said that the dignity opinion is an offense to the dignity of those who disagree with it? In other words, if the dignity standard is held to its own test, doesn’t it fail its own test?  In other words, isn’t it true that anybody can employ this standard for any reason to achieve any end, good or evil?  In fact, wouldn’t the dignity standard only result in endless and arbitrary changes to the law based upon who can yell “OFFENSE!” the loudest?  Wouldn’t such a standard make every person a law unto him or herself, reduce justice to an arbitrary caprice, plunge society into anarchy, and ultimately leave human dignity and liberty in a lurch? [2]

What this movement fails to see is that human dignity is best served by rational, objective analysis of merit between two competing claims. Otherwise there can be no collective, social justice at all.  Let’s take Obamacare as an example.  If Obamacare offends those who believe in self-reliance as a better long-term strategy, should the offended group claim that Obamacare is unjust “because it offends their human dignity” or “makes them second-class citizens” be disagreeing with their values and views?  Or should they be compelled to marshal all of their objective evidence and the best rational arguments they can come up with in order to combat the perceived evil?  Of course, they should be expected to bring objective, rational arguments, rather than simply pretend that their dignity alone should prevent government from performing acts it otherwise thinks wise and prudent for all of society. In short, the “dignity” argument is often a mere cop-out for those who cannot produce coherent rational basis for why their position is better than another.   This is not “giving unto others what is their due.”  This is “getting what I want because I want it.” [3]  This is not justice.  [In the gay marriage decision the justices cast the age-old “rational basis” test out and relied on this whole new legal concoction of dignity as a basis for judging laws.]

The Gay Marriage Movement

Isn’t the gay marriage movement [and the new supreme court opinion] essentially suggesting that , “If you don’t give homosexuals what they want, or if you disagree with them about the role of marriage, then you are denying them their inherent worth and dignity.”  Or “If you even compare the gay lifestyle to the straight lifestyle [a merit-based analysis], and begin to think that the straight lifestyle is better for society, then you are a bigot.” And doesn’t the movement believe that they are justified in taking the most profound offense to anyone who would suggest that traditional marriage deserves more social esteem?  Is this not the very non-merit-based philosophy that has just been described?  Does it not prove itself an enemy to the merit-based analysis, when it proclaims reasoning, discerning people to be bigots.  Are there not ample claims for why Traditional Marriage is more beneficial to society at large?

The Proper Standard and Analysis

So how should the merit-based analysis be applied to the question of gay marriage?  Applying the merit-based standard of justice to the question “Should traditional marriage and gay marriage be treated equally?” requires that the two institutions be placed side-by-side in order to compare the merits of traditional marriage in contrast with the merits of gay marriage, paying special attention to the respective benefits each provides “to others” or “to society at large,” not the benefits or detriment to a particular special interest group.  (This is precisely what gay marriage proponents so adamantly try to avoid.)  This is justice.  If the social merits are equal, then they must be treated equally; if not, then treat them differently.  Under this standard, a side-by-side comparison of the two institutions would make clear that the benefits to society provided by Traditional Marriage far outweigh the benefits provided by a gay marriage (for a more detailed analysis of why, read my article “As the Sun and the Moon Differ“).  By redefining traditional and gay marriage to be the same thing, an injustice is done to Traditional Marriage, because its unique and transcendent societal role is being diminished (along with its due esteem, respect, and dignity) in order to make it appear equal with an inferior institution which covets that same esteem, respect, and dignity.  This is neither justice nor equality.

I see clearly two tendencies in equality; one turns each man’s attention to new thoughts, while the other would induce him freely to give up thinking at all.

There is indeed a manly and legitimate passion for equality which rouses in all men a desire to be strong and respected. This passion tends to elevate the little man to the rank of the great. But the human heart also nourishes a debased taste for equality, which leads the weak to want to drag the strong down to their level, and which induces men to prefer equality in servitude to inequality in freedom.

–Alexis de Tocqueville

Non-merit Based Standard Debunked

So how must the new non-merit based standard be dealt with?  This proposed new definition of justice should be judged on its merits and quickly debunked.  Under the dignity standard, any claim for justice, regardless of merit, would have to be awarded,  resulting in equal legal status among unequally meritorious claims.  Of course this is ridiculous, so in effect, dignity will just become the call-word to automatically allow whatever claim of justice is most popular or trendy (or some other arbitrary standard besides merit) to become the new law.  As mentioned earlier, the effect of such a broad, indiscriminate standard would be to undermine civil society altogether.

The primary equality of which societies can hope is for equality in “access” to the refining and discerning democratic processes, not special treatment for each every individual [3].  Therefore the new interpretation of justice, equality, and marriage, as promoted by the gay marriage movement, must be rejected as being a threat to ordered liberty, due process of law, and true equality, and thus without merit.

Courts Avoidance of Merit-based Standard

For reasons that should be clear to us, the courts and the gay movement have carefully avoided the application of the merit-based standard in the gay marriage question.  Why?  Gay marriage simply cannot win based on that standard.  They avoid the merit-based standard in primarily two ways: 1) by focusing on legal definitions rather than social implications (which gives an appearance of some kind of comparative analysis, but certainly not a merit-based one), and 2) by adopting as the entire moral force of their argument the moving emotional plight of the homosexual.  There is nothing inherently wrong with the second, except when it dons the garb of objective, indifferent reasoning, and demands the respect of a conclusion born of both compassion and reasoning, although only born in the former.  Justice is brought into the world only by the interaction of both Compassion and Reasoning [4].  Reasoning implies practical, reality-based analysis and comparison, not abstract legal sophistry and emotional pleas.  True compassion implies due regard for the long-term success of, not just one party, but of all parties, so that all may achieve social happiness, none at the expense of another.  The gay marriage movement does not strike this healthy balance between rationality and emotionality, because it would not get it what it wants if it did so.

On Discrimination

Most people don’t realize that Justice and Law necessarily result in inequality.  Most people don’t realize that any definition, standard, or law by its very existence necessarily results in inequality.  It is a state of nature.  The existence of any thing implies the existence of everything that it is not, and places the world into at least two categories — the favored and the unfavored.  For example, Justice, as a definition, divides the world into two camps – the just and the unjust, as based by some objective standard (i.e. merit).  And law, being a standard, also divides society into two camps – those that obey (and are therefore worthy of reward) and those that disobey (and are therefore worthy of punishment) [5].  Law can also, when used as a social policy, divide society into relative camps of various higher- and lower-value social institutions based on the values behind the policy.  Is this division in society just or unjust?  Is it discrimination?  If so, then justice, law and judgment are all inherently evil, for they are the same.

Discrimination can have two definitions.  One definition for discrimination is any act prompted by a perceived difference between two things.  If this definition were adopted, then nearly every human act must necessarily be one of discrimination.  Obviously the better term for this definition would be “discernment.”  Another definition for discrimination is to treat two equal things unequally, or to treat two unequal things equally.  Under this second definition, the word discrimination is basically synonymous with inequality or injustice.  Under the second definition, it could not be said that Justice and Law are discriminatory, unless they begin to act contrary to their purpose and, instead of treating equal things equally and unequal things unequally, they begin to treat equal things unequally and unequal things equally.  The truly discriminatory part of society is the one that ignores real differences or places too much emphasis upon them.  Thus, the gay marriage movement is more discriminatory than its merit-based adversaries, because it attempts to make unequal things equal.


[1] The reason for donning a merit-based garb is simple: the movement donned the clothing of a merit-based argument for purposes of winning.  The movement simply could not win under a merit-based argument, nor could it win if it were clear that it was moving away from a merit-based argument.  Further, the movement itself has probably not fully considered the long-term effects of their employment of such spurious means, because they are so entirely focused on one thing —  “winning at any cost, because they so believe their cause is just.”  In other words, the ends justify the means mentality is a predominant aspect of this movement.  Thus this movement has erected, and continues to promulgate, a whole new standard of justice.

Indeed many in the movement do make seemingly merit-based arguments (what else is argument if not merit-based), but it is not merit that drives their arguments.  The most obvious evidence of this ulterior motive is that, when merit is discussed it is discussed through a game of definitions, rather than of qualities and characteristics.  For example, the arguments surround not the raw side-by-side qualities and characteristics of the options, but rather, how they should be “defined” by society.  In the gary marriage movement, for example, (because they want a chance to win) the gay marriage proponents advocate for a definition of traditional marriage so narrow (and exclusive of the unique characteristics of traditional marriage) that the two institutions suddenly seem equal, by definition, and to unsuspecting society at large the two institutions suddenly seem to have the same merit, when, in fact, this is still not the case in reality.  For an article that makes more clear the real and undeniable distinctions between traditional and gay marriage, read my article “As the Sun and Moon Differ.”

[2] Ironically, the constitutional provisions being argued by the gay marriage movement as most supporting their cause — the due process and equal protection clauses — are meant to uphold the following public policy interests:  For due process, to protect those rights “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”  I think I have shown in this article how adopting the non-merit based standard required to justify gay marriage as equal with traditional marriage tends to threaten the very existence of ordered liberty and justice, and therefore is in violation of the due process clause.  For equal protection, the policy is “that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.”  “The Clause places no limitation on a state’s power to treat dissimilar people differently.”  I have already shown how this standard must employ a merit-based standard, not a contrived redefinition that only carries the appearance of merit-based analysis but really applies a human dignity non-merit based standard.  Employing the redefinition approach and the human-dignity-based standard reduce equality to a meaningless antic of the upset minority.  Thus, the gay marriage arguments should be struck down by these constitutional provisions, not upheld by them.

[3] [I add this footnote after the gay marriage decision, and only point out that Chief Justice Roberts also recognizes that the majority theme is “marriage is desirable and petitioners desire it,” with no reference to merit and no real analysis of larger social implications — only a focus on the special interest group making the petition — paradigmical non-merit based analysis.]

[4] Equal treatment under the law, obviously, does not mean that each special interest group gets their own set of laws and their own way with the law.  Equal treatment can only mean, in civilized society, that once a law is made it is applied equally to all individuals, based on the merit of the citizens with respect to that law.  In other words, the law must treat equal things equally, and unequal things unequally, where equality is judged based on merit-based distinctions.  This in fact does more to promote human dignity than to destroy civilization by making each “dignified” person a law unto themselves.

[5] In Sophocles’ play Antigone, Creon and Antigone each go to the extreme ends of Justice and Mercy until they destroy each other and undermine Rule of Law altogether.  Rule of Law cannot be maintained except that both Justice and Mercy are acknowledged and respected and kept within their own spheres of jurisdiction.  In the case of gay marriage, it goes too far by narrowing the definition of traditional marriage for its own selfish purposes — a true injustice.  In the case of Traditional Marriage, it goes too far if it does not respect the gay plight and attempt to accommodate its needs — a true dis-compassion.  No amount of compassion can justify an injustice, such as to ignore the truth of equalities and inequalities.  And no amount of justice can justify mercilessness, such as to ignore the truth of human dignity.  The most human dignity can ask for is for mercy; it cannot deny the principle of justice (for there is no mercy without the concept of justice first).  The most justice can ask of humanity is for open and true acknowledgement; it cannot deny humanity the principle of mercy.  But in both cases the truth cannot be ignored, marginalized, or redefined, either in the plight of the homosexual or in the superior social benefit of traditional marriage.   The Creons and the Antigones of our day are not meeting in the proper middle-ground, but are in fact still acting in a manner which will ultimately undermine civil society altogether.  The proper balance was struck when gays had the civil union (an admittedly inferior institution for the inferior social benefit), and the rest of the world still had its traditional marriage (the superior institution for the superior social benefit).

[5] Hence the Christian faith and the need for a Christ, to bring human dignity to a race of men inherently unjust, but still wanting the right and opportunity to progress and become better.   In the Christian faith, human dignity is restored through Christ, and fulfilled by obedience to his commandments (laws about better and worse).