One thing that will never change is that “the two sexes are not fungible.” Those are the words of the U.S. Supreme Court, uttered in 1946, reflecting a known truth that has endured from the beginning of humanity. The high court on Friday would have done well to respect the freedom of Americans to recognize that time-tested truth.
The full quote of the Supreme Court from the 1946 decision is worth considering:
“The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables … [A] flavor, a distinct quality is lost if either sex is excluded.”
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In that case, Ballard v. United States, the Supreme Court rebuked the historic practice of all-male juries, and it was right to do so. Juries embody the very idea of justice in a free society. Yet a respectable democracy cannot exclude half of humanity from the administration of justice. As a trial attorney, I’ve impaneled many female jurors and always appreciate the special perspective that they bring to a case.
The Ballard case came on the heels of the enactment of the 19th Amendment to the U.S. Constitution, securing suffrage rights for women. Since the Ballard case, the Supreme Court, Congress and legislatures across the country have seriously embraced the principle that both sexes, men and women, matter in all elements of society. As the Supreme Court stated in that case, “inherent differences between men and women, we have come to appreciate, remain cause for celebration.” Thus, from politics, to education, to the workplace, and other arenas, our country has made great strides to celebrate and honor both sexes.
The Supreme Court, in its Obergefell v. Hodges decision, seemed to miss that, effectively equating any “two-person union … [of] … committed individuals” to a man and a woman, or a mom and a dad.
Thus, it is with a profound sense of irony that so many that support gender equality simultaneously promote same-sex marriage. Marriage, like a jury, is hinged to the premise that “the two sexes are not fungible.” Certainly, an all-male or all-female jury can decide a case. Both men and women have the ability to see exhibits, listen to the witnesses and draw conclusions. But that’s not what the Supreme Court was talking about. It was talking about the “imponderables” — the differences that can’t be seen, heard, or measured, but are nonetheless so profound that all of us feel and experience them every day.
Advocates for same-sex marriage contend that same-sex couples can successfully raise children. They point to recent scientifically flawed studies to support their position. Yet, like those that defended all-male juries, advocates for same-sex marriage fail to see their blind spot. Sure, same-sex couples can form families and rear children, but advocates of same-sex marriage fail to acknowledge that the best environment for childrearing is also the best environment for the administration of justice — an environment that is gender diverse. Many of the “inherent differences between men and women” cannot be fully measured by science or studies. They are among our society’s great mysteries.
We experience the distinctions between the sexes in mostly emotional terms. The “inherent differences” between men and women are often felt more than seen, and so the truth of that diversity typically resonates within our hearts more than our minds. In as much as love has no particular scientific signature, neither do many of the wonderful and beautiful variations between the sexes. Therefore, we express and experience these differences in our relationships, poetry, music, artwork and life journeys.
This is why even if a child cannot articulate, in measurable terms, the importance of having both a mother and a father, that dynamic is nonetheless very real to that child — something that is felt, known and lived.
So while our society continues to debate and discuss the essence and meaning of marriage, let us remember that the subtle interplay of men and women is among the “imponderables.” It cannot be fully calculated, exhaustively defined, or legally re-authored. And because marriage is our most important societal institution, this subtle interplay in marriage should be more important to us than any jury, election or school.
So as we continue to advance, experience and celebrate gender diversity throughout our culture, let’s not forget to also celebrate it in marriage.
Austin R. Nimocks is senior counsel with Alliance Defending Freedom, which filed a friend-of-the-court brief in the marriage cases at the U.S. Supreme Court. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
