Smitty at the Other McCain suggests a return to first principles, and a re-examination of what the institution was for in the first place. We have just completed such an examination here, in our autumn debate on polygamy, so it is not necessary to do it again; if you want to revisit the discussion, though, Elise has kindly gathered all of my posts and her own
into a category.
I do want to say something about the bias in the law, though, because I find this particular bias to be an interesting one. I think it represents a real challenge to our idea that equality before the law is a goal towards which we should strive: this seems to me to be a clear case in which equality before the law would be wrong.
First, though, we need to narrow the field a bit. There are so many different ways in which men and women are treated differently by the law in family matters that it would be wise to choose a couple of clear-cut cases, with minimal ambiguity, so that we don't end up lost in anecdotes. I can think of two examples that are paradigms of unequal treatment by the law, and that illuminate the problem well.
The first is the law of termination of parental responsibility. The woman has a legal right to abortion in this country that is essentially unfettered; she may thus terminate her duties at will, and for any reason, up until the moment of birth (and even afterwards, in the case of partial-birth abortion). The man has no right to demand the termination of the baby; whereas the
patria in ancient Rome made the call on exposure and infanticide, in America it is the mother.
There remains some disparity after birth. In cases in which the child is born, in 49 states and Puerto Rico, it is lawful to abandon the child for adoption at a recognized safe haven. However,
in four of those states only the mother can do it.
That is the first matter. The second -- a law currently under discussion, rather than actualized, but a good and illuminating example -- is
this proposal to restrict mens' right to stop living with a woman they have gotten pregnant if he is doing so to try to compel her to have an abortion.
HB 5882 [CAPA] actually makes it a crime for a man to "change or attempt to change an existing housing or cohabitation arrangement" with a pregnant significant other, to "file or attempt to file for a divorce" from his pregnant wife, or to "withdraw or attempt to withdraw financial support" from a woman who he has been supporting, if it is determined that the man is doing these things to try to pressure the woman to terminate her pregnancy.
What would we get out of equality before the law in the first case? Something rather worse than what we have now: a situation in which fathers were either empowered to demand the death of a child they didn't want (as mothers already are); or, failing that, the right to abandon responsibility for a child that they sired, leaving the woman financially alone to raise it. One thing seemed to agree on with Aquinas' philosophy of matrimony, which we encountered in our discussion of marriage and polygamy, is that the principal end of marriage is procreation -- not merely in the sense of having a child, but seeing that the child is raised to achieve its capacity to fulfill a role as a member of, and defender of, our civilization. Equality before
this law would only further damage that principal end.
The first case is a case in which equality before the law is wrong because the law itself is wrong. Asking for an equal right to perform an injustice is to ask for more injustice. That is against reason.
It might be possible to ask for equality in the other direction without violating reason -- i.e., by limiting access to abortion. However, at least so far the Supreme Court has refused to entertain almost any such limits. Unless the Court changes its mind, or we change the Constitution, we do not have that option. We have only the option of asking for more injustice, or accepting inequality before the law. Of these options, inequality before the law is the wiser, and the morally better, choice.
What do we get out of equality before the law in the second case? Should we accept a situation in which a man is free to try to force a woman to kill her child by starvation or poverty? It's the same problem we had in the first case. Of course it should not be legal to abandon your child or its mother. Since our country has abandoned the requirement of marriage, naturally this is going to intrude upon those who go about siring children without bothering to marry.
Yet can we ask for equality in the other direction here? Can we morally state that a woman is not free to leave a man who has gotten her pregnant? Of course not: especially if he is furious about the business of the child. It may put her in terrible danger, and the baby as well. Her freedom to leave is necessary.
Thus we have a situation in this case in which inequality before the law is actually necessary for justice. If justice is -- as Aristotle put it -- to treat relevantly similar cases similarly, the sex divide presents us with a very relevant difference. Inequality before the law is thus necessary for a just result.
But let us return to the image above. True justice between men and women lies not the in the law, but in chivalry: in that willful, loving sacrifice of self for the beloved other. This, at least, is a symmetrical relationship: both the man and the woman must be ready to give of themselves for the other for it to flourish. When it does, however, it is the glory of the world, and the joy of life.
So, is it right to speak of marriage to the young man? Surely so, if the boy has the guts for the big game: for a love that speaks to thunder, and answers the principal end. And if he doesn't, well, what's the point of living at all? A man dies soon enough. Why wrap anyone else up in it, if you don't have what it takes to play for the real thing?
