Amidst the flurry of commentary following yesterday’s Supreme Court decisions in Hollingsworth v. Perry (California’s Prop 8 case) and Windsor v. United States (DOMA’s constitutionality), I may as well toss in two cents on one small aspect of this discussion. To be clear, I’m not speaking about the many, many, important issues that these cases raise (federalism, the ends and limits of law, the role of equality in the 5th Amendment, etc.). Instead, I want to reflect briefly and rather un-originally on the classical notion of distributive justice.
Aristotle’s familiar account of distributive justice in Nicomachean Ethics focuses on equality: it is distributively just to treat equals as equal and unequals as unequal, according to the proper standard of merit. The distribution of goods or honors in a polity is “just” when it follows such a scheme. This is why we don’t bat an eyelash when a serious athlete consumes quantities of calories that would put a sedentary academic on the fast-track to obesity. The proportionality of feeding the marathoner more than the professor communicates truth about caloric needs: it would be unjust to treat unequals as if they were equal.
It is just this sort of argument that undergirds the reasoning of important civil rights cases like Brown v. Board of Education. When the “standard of merit” for access to goods in a community is inextricably tied to simply being human, then legally imposed segregation is deeply unjust because it treats equals as if they are unequal. It communicates falsehood through its disproportion.
I think it is this sort of assumption that animates the equal protection aspects of yesterday’s decision about DOMA (and as a disclaimer, I have only read portions of the decision). But the Court goes further than this and clouds the justice issue. Justice Kennedy, citing D.O.A. v. Moreno, writes: “The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” (Windsor, 20). Kennedy continues, arguing that there is “strong evidence” of DOMA “having the purpose and effect of disapproval of that class [homosexual couples].” (Windsor, 20-21). What I find interesting (and indeed problematic) is Kennedy’s insufficient attention to when and why social approval or disapproval may be justified. His opinion in Lawrence v. Texas made a similar move: moral disapprobation of particular behaviors was, ipso facto, treated as irrational prejudice.
It seems that there is a need for discussions about access to marriage (and indeed about most morality policy issues) to be clearer and more explicit about the standards of merit relevant to the sorts of goods at issue. (To be clear, raising this question the way I am in the context of Windsor requires tabling the state law questions that are actually central to Kennedy’s argument.) Because many laws differentiate between groups of people defined according to some discriminating criterion (tax brackets based on income, those who drive through red lights vs. green, etc.), clarity on this is essential.
Is Windsor a “win” for justice? I think Aristotle would answer that it depends on whether it treats equals as equal and unequals as unequal according to the relevant standard of merit. If moral norms and historical social practices must be excluded as “standards of merit” when assessing the behaviors and legal relationships surrounding marriage, then Windsor (and its expected social and political progeny) should clearly be counted as a win. If such exclusions are too sweeping (and I think both sides, if pushed, would agree that they are), then more clarity on relevant standards—such as shareable norms like those of natural law—will be needed in order to wisely assess it.