[Maggie Gallagher (guest-blogging), October 18, 2005 at 1:59pm] Trackbacks
The Legal Marriage Debate:

The same-sex marriage debate is really three debates: a legal debate, a social policy debate and a moral debate.

Of course people's views on these things are intertwined, but intellectually the failure to separate these three related but distinct inquiries is one reason that exchanges of views on this topic are so often circular and futile, rather than progressing towards better mutual understanding.

When you make a point on the social policy question, people will often jump horses to the legal question, and vice versa.

So let me focus for a moment just on the legal debate. I'll try to keep it brief.

When marriage has lost in court, we're mostly losing on the rational basis test. This is really hard to do, and also quite insulting. It is a declaration by the court that only madness or malice can possibly explain why 60 to 70 percent of Americans today see marriage as the union of husband and wife.

Here's how it looks from my side: You want to strip from the law of marriage the one feature that has been practically universal in human experience: and you can't imagine even one reason why a person of sound mind and good will might object? Gee, Horatio, maybe there are more things on heaven and earth . . .

If courts really are applying a rational basis test, then marriage easily meets the test.

The classification used in marriage (sexual union of male and female) is clearly substantively related to a legitimate state purpose ("procreation and paternity" or creating the only kind of sexual unions in which men and women can make babies and raise them together).

The fact that not all married couples have children does not make their marriage unrelated to this state purpose. At a minimum no married couples who lives up to their vows will produce out of wedlock children, so all unions of male and female serve these state purposes in a way that no same-sex couple can. The only practical way a couple can guarantee that all the children they conceive will have this benefit is to first enter an exclusive faithful sexual union.. (People who want the data on the prevalence unintentional pregnancy in male-female sexual unions can consult the link to the U of Thomas essay listed below. It has lots of footnotes).

(BTW, under the rational basis test, it is not even necessary to provide the evidence I've offered below that the one of theprimary purposes of marriage has long been understood to be procreation. The court must consider any conceivable rational reason the legislature may have had.)

Many folks in this debate want something else than a rational relation: they want direct evidence of the harm that would come to this purpose of marriage by including gay couples. That is an important question for a state legislature, but it is not (or should not) be necessary to justify our marriage laws under a rational basis test. (Some better scholar than I might want to contemplate what the idea of "substantive rational relations" is going to do to our constitutional theory)

Every classification used by law excludes some people who could be included without obviously harming that law's purpose. (e.g. If the purpose of speed limits is safety, then "drivers who do 56 mph" could be included without harming the state interest at stake. )

As the Goodridge dissent noted some undisclosed form of heightened scrutiny on some undisclosed suspect class must be being brought to bear. The Goodridge majority are the people with some motive here they do not want to disclose.

On strict scrutiny, I'm not going to delve deeply into this. I think it's not hard to show the interests at stake in marriage are compelling, but figuring out what "narrowly tailored" means in this instance reveals a certain oddity of the structure of the pro-SSM argument. The remedy SSM advocates seek is not to tailor marriage more narrowly to this interest, but to widen it, to make the classification employed by the law even less related to this compelling state interest.

(I think the actual role of the fact that some marriage couples have no children in the structure of the pro-SSM legal argument is to suggest that procreation is not now, nor has ever been, one of the primary purposes of marriage, and those who suggest this are hiding some other motive. I also think this argument is pretty hard to sustain, if reason prevails).

On the gender equality issue, here I think there are sharp differences between marriage as the union of husband and wife and bans on interracial marriage (Loving v. Virginia). Marriage plays an integrative function with regard to gender: its a mixed sex institution. Moreover unlike bans on miscegenation (which were formally equal but substantively served to help keep the races separate so that one race can oppress the other), marriage not only formally, but substantively furthers gender equality, by helping reduce the likelihood that women as a class will bear the high and gendered costs of parenting alone.

(Orientation has not yet been declared a suspect class subject to strict scrutiny, to my knowledge.)

Ok, next, onto the question: What am I worried about? What's the possible harm of SSM?