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[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?

Cold Warrior:
On this -- the legal -- point, I agree.

I believe there is a rational basis on which the legislature(s) may choose to limit marriage to opposite sex partners.

Likewise, there would be a rational basis for limiting marriage to those who could "pass" a fertility test.

Just be careful: don't mix that up with the S.Ct.'s decision in Lawrence. Lawrence found -- correctly -- that the State of Texas could not articulate any rational basis for outlawing homosexual sodomy while leaving (actually, making) heterosexual sodomy legal.

Now, I don't think restrictions such as a pre-marital fertility test would be good social policy. I also don't believe that limiting marriage to opposite sex partners is good social policy.

But it is constitutional. Stupid, but constitutional.
10.18.2005 3:09pm
Grant Gould (mail):
You've made a bit of a concealed logical jump from "raising children" (for which you allege opposite-sex couples in a married relationship are best) to "producing children" (for which for the most part opposite-sex sex but not a marriage is necessary). In doing so, you've written adoption entirely out of the picture, which I don't think is entirely justified by any part of your argument so far.

This is a fairly crucial move, since many couples do adopt, and you seem to have ruled out marriage for any of them. (Well, just the gay ones, but your argument so far still hasn't differentiated between gays and infertile straights, so I think you still have to argue from the wider position.)
10.18.2005 3:13pm
Dilan Esper (mail) (www):
I don't think Ms. Gallagher realizes what the LEGAL definition of "rational basis" is. A rational basis doesn't mean "any purpose that the rational mind can conceive" but a facially LEGITIMATE purpose.

The courts that reject Ms. Gallagher's position find that the purpose of policing whether people are directing their sexual relations towards procreation or not is wholly illegitimate, i.e., not something that the government has any legitimate purpose in doing. Once that interest is eliminated, the remaining interest served by prohibiting same-sex marriage is homophobia.

But the courts are not saying that a rational person couldn't wish to control whether couples procreate— only that the government has no business enacting Ms. Maggie Gallagher's Social Statics.
10.18.2005 3:17pm
Choosing Sides 2:
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.

Declaring that there is no sex/gender issue because marriage is a "mixed sex institution" begs the question.

If Lisa A files an application for a license to marry Jane B, that license will be denied because of Lisa A's sex. That denial is discrimination on the basis of sex.
10.18.2005 3:18pm
Dave Hardy (mail) (www):
A note: my own state prohibits marriages between first cousins and any closer relations, no matter how much they may be in love, and no matter how they wish to dispose of their property, unless one or the other can show themselves incapable of siring or bearing children. Then it's OK. Obviously, the concern is about reproduction and recessive genetic traits in the offspring.
10.18.2005 3:21pm
Tito (mail):
"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."

Actually, at a minumum no same sex couples who live up to their vows will produce out of wedlock children either. If marriage=monogamy and the legal purpose of marriage is to ensure children are produces in wedlock (a pair of dubious assertions, but we'll go with it for the sake of argument) then same sex couples should no less be able to marry than infertile heterosexual couples.

And for that matter, intentional infertility (tube tying &vasectomies) should be illegal for married couples to get, unless they have already produced children.
10.18.2005 3:21pm
Word Up:
"Lawrence found -- correctly -- that the State of Texas could not articulate any rational basis for outlawing homosexual sodomy while leaving (actually, making) heterosexual sodomy legal."

The state needn't articulate any such basis. Often the Court constructs rational basis arguments that were not articulated by the state nor explicitly contemplated by the legislature.

And there most certainly IS a rational basis for the distinction--homosexual sex is more dangerous than heteterosexual.
10.18.2005 3:25pm
Cold Warrior:
Dilan Esper wrote:

A rational basis doesn't mean "any purpose that the rational mind can conceive" but a facially LEGITIMATE purpose.

And this is a good point.

The racial miscegenation cases were really quite out of place in the context of Ms. Gallagher's previous posts.

But there is a good argument that they are right on point here. Imagine the state's purpose is maintaining the purity of the races. One can readily see how limiting marriage to members of the same race could further this purpose. But some purposes are so offensive as to be illegitimate.

So I certainly understand the argument, although I still believe that the same sex marriage issue is different; here's where I agree with Gallagher. People of different races (whether genetically-determined or socially constructed)can still produce children without any outside assistance. Members of the same sex cannot.

But nonetheless, the point is arguable.

And it needs to be addressed by Ms. Gallagher.
10.18.2005 3:26pm
jrose:
Gallagher: 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 elderly or infertile fall into the same category as same-sex couples. Depending on how you read Romer, this underinclusiveness might be evidence of impermissable animus towards gays.
10.18.2005 3:26pm
Nunzio (mail):
Loving v Virginia was about race. Miscegnation laws were passed to ensure the "superiority" of the white race out of fear that Dalton Ames would ruin the Compson family by impregnating Candace. Striking down anti-miscegnation laws was striking down race-based gov't animus against blacks.

Same-sex marriage bans have almost nothing to do with sex or gender-based animus. They may be anti-gay, but they are not anti-gender/anti-sex.
10.18.2005 3:28pm
True Federalist:
The reason it's hard at this point to take very seriously the Gallagher position is that, boiled down, the claim is an empirical one--that ending discrimination in marriage will produce ill effects--but, right now, this empirical claim is not supported by any empirical evidence, and so it remains merely a hypothesis.

We have now an experiment going on in Massachusetts, the exact thing federalism is meant to encourage, so let's see what the result is.

Is Gallagher prepared to say today that she will end her opposition if, in ten or twenty years, all the doom and gloom she predicts doesn't result in that state?

If she isn't, it's hard to see all of her energy to this issue as anything but prejudice masquarading as policy.
10.18.2005 3:29pm
Choosing Sides 2:
To further illustrate that defining marriage as between a man and a woman is sex discrimination and not orientation discrimination:

If Lesbian A wants to marry Lesbian B, we say no.
If Lesbian A wants to marry Gay Man B, we say yes.
If Lesbian A wants to marry Straight Man B, we say yes.

Repeat the exercise for Gay Man A.

Lesbians and Gays are allowed to marry. They just can't marry the people of the same sex. The discrimination is on the basis of sex and should be subject to heightened scrutiny (not a rational basis test).
10.18.2005 3:30pm
Cold Warrior:

And there most certainly IS a rational basis for the distinction--homosexual sex is more dangerous than heteterosexual.

You mean to say that the State of Texas might have found that homosexual sex is more dangerous, such that there is some possible rational basis supporting the Texas statute.

But this is a particularly weak argument. Lesbians have the lowest rate of dangerous STDs, but were not excluded from the statute criminalizing homosexual sodomy.

So the rational basis test does know some bounds.
10.18.2005 3:30pm
Word Up:
"But it is constitutional. Stupid, but constitutional."

There is a basis for claiming that traditional marriage is a "fundamental right" that is "deeply rooted" in our cultural and legal framework. Certainly more fundamental, than, say homosexual sodomy.
10.18.2005 3:31pm
Matthew Patterson (mail):
Maggie, you say that 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 still don't feel like you have substantially established that procreation *is* now the primary purpose of marriage. And no, a string of more or less random citations without any sort of coherent argument that goes with them is not "establishing the point," nor is a discussion in a comment thread in which you haven't posted much. Going on the merits of your own posts, this point is still insufficiently established, and I really wish you'd talk in a more coherent fashion about it. In particular, I really wish you'd address the issue of modern reproductive technologies, because this *does* have a substantial impact on the way people view marriage and procreation today, and it *is* something that's never come up in any society prior to this point in history. And certainly it is plausible to say that if the nature of the procreation of children has recently undergone substantial change, then the nature of an institution based on procreation might also undergo substantial change. Of course you may not think that the nature of procreation *has* changed, but you haven't shown this.
10.18.2005 3:31pm
jrose:
If Lisa A files an application for a license to marry Jane B, that license will be denied because of Lisa A's sex. That denial is discrimination on the basis of sex.

I don't agree. If Lisa were somehow able to change her gender, but not her sexuality, she would still not be able to marry her lover (who would no longer be a woman). On the other hand, if Lisa changed her sexuality but remained a woman, she could marry her lover (who would again no longer be a woman). Thus, its sexual orientation discrimination, not gender discrimination.
10.18.2005 3:34pm
Aaron C. (mail):
Encouraging procreation is not a legitimate public purpose. The choice of whether or not to have children is a private decision made by private parties. Of all the areas that should be immune from state intervention, surely such a deeply private decision is near the top of the list.

Furthermore, there is absolutely no relationship between encouraging procreation (the ends) and restricting marraige rights (the means). After all, if we want to encourage procreation, why not simply people who are already married to make babies? How restricting marraige to heterosexual couples encourages heterosexuals to marry is frankly beyond me.

What a ridiculous
10.18.2005 3:34pm
Dilan Esper (mail) (www):
Choosing:

Your argument is like saying that the law prohibits the rich as well as the poor from sleeping under bridges. If you are prohibited from marrying the person you want to marry, you are prohibited from marrying.

And in this respect, the analogy to miscengenation statutes is exact. Blacks, after all, were perfectly allowed to marry other blacks. They just weren't allowed to marry whites.
10.18.2005 3:35pm
Roger Schlafly (www):
Gallagher is getting the better of this argument. It would be a massive invasion of privacy for the state to require couples to pass a fertility test or to certify that couples are directing their sexual relations towards procreation. These silly hypotheticals are also impractical and imprecise. Determining sex is something that the state can do in our society.

If people want to compare our marriage laws to some possible alternate, then it would help to pick something that is actually feasible. It is easy to make the case that rational people can conclude that traditional marriage law is superior to the goofy alternatives that have been suggested here.
10.18.2005 3:36pm
Cold Warrior:
Word Up says:

There is a basis for claiming that traditional marriage is a "fundamental right" that is "deeply rooted" in our cultural and legal framework.

Don't you just love "traditionalists" who manage to "find" hidden constitutional rights?

I imagine those "traditional" fundamental rights are found in the penumbra emanating from various Constitutional amendments, Word Up?
10.18.2005 3:36pm
Antonin:
Gallagher is right that sexual orientation hasn't been declared a suspect classification yet, but that doesn't change the fact that it ought to be. And since it ought to be, the rational basis test should be inapplicable.
10.18.2005 3:36pm
Word Up:
Cold Warrior,

True about the lesbian thing. I am unfamiliar with the Texas AG's arguments. Bowers' reliance on traditional sexual morality as a legitimate state interest seems to be reasonable. I can't fault the Texas AG if he leaned too heavily on it, though I am sure he suspected Bowers was going to overturned.
10.18.2005 3:37pm
Word Up:
I didn't invent fundamental rights jurisprudence, Cold Warrior. But it is certainly more defensible than brand-spanking-new rights jurisprudence (see Lawrence, Roe v. Wade).
10.18.2005 3:39pm
Choosing Sides 2:
jrose, you raise a good point, but I offer two rejoinders.

First, courts have managed to deny both sex change scenarios under existing law. Some courts have held that when a man who becomes a woman and marries a man there is no valid marriage. These courts have held that sex is defined at the time of birth (and gloss over the tough cases there). Other courts, have said a man who becomes a woman cannot marry a woman. These courts believe that the appearance of two woman together married is contrary to the purposes of the law. Changing sex has not been a means for people to escape the marriage law restrictions.

Second, see my 2nd post. Gays and lesbians can marry - just not for the same sex. Marriage in our society has no requirement that you actually have an orientation toward your spouse. You can marry out of friendship or companionship if you like. However, you can never marry the same sex.

I have no doubt that anti-gay animus drives these laws, but facially, I believe they must be read as sex discrimination. There may ALSO be orientation discrimination, but the sex discrimination is there by the way the law defines the parties (a "man" and a "woman," not a "straight man" and a "straight woman") in the marriage.
10.18.2005 3:41pm
Cold Warrior:
Roger Shlafly says:

It would be a massive invasion of privacy for the state to require couples to pass a fertility test or to certify that couples are directing their sexual relations towards procreation.

Why?

If the State's interest in limiting marriage is based on the State's interest in encouraging the birth and maintenance of babies, it seems a pretty minor intrusion to ask the parties for a doctor's certificate stating that they are capable of creating children.
10.18.2005 3:43pm
Choosing Sides 2:
Dilan,

Try this analogy. If a law said Catholics can only marry Jews, would it be discrimination on the basis of religion? Absolutely. Similarly, if a statute said blacks can only marry whites, it would be discrimination on the basis of race. The fact that we are talking about homogeneous vs. heterogenous types is not relevant under Equal Protection analysis.

You argue that this is different because lesbians only want to marry lesbians. While that is not universally true (see bisexuals and marriages for reasons other than sex and love), I will accept it for purposes of this argument. Where in Equal Protection text or law do you get the notion that sex discrimination is ok if it is between homogenous types?
10.18.2005 3:46pm
SAC (mail):
Can somebody explain what legal basis exists today for preventing any two brothers or two sisters from marrying in Massachusetts?
10.18.2005 3:52pm
jrose:
First, courts have managed to deny both sex change scenarios under existing law.

I am not saying Lisa changed sexes as an adult. I am saying, what if at birth she were a male instead of a woman, yet still gay.

Marriage in our society has no requirement that you actually have an orientation toward your spouse. You can marry out of friendship or companionship if you like.

Notwithstanding the cases where friends marry, the liberty interest at stake is not the right to marry, but the right to marry your lover. If you are correct, then Lawrence could have been decided on gender discrimination. I don't think the plaintiffs so argued, nor any amici, nor O'Connor in her concurrence, nor The Court in their brief Equal Protection analysis.
10.18.2005 3:56pm
Cold Warrior:
SAC:

I see no legal basis for preventing marriage in Massachusetts between cousins, brothers, sisters, etc.

I think that is the danger of achieving social goals -- even goals I think are generally worth achieving, such as same-sex marriage -- through court decisions.

Under Mass. law under their recent Supreme Court decisions, I see no rational basis at all for limiting marriage to parties with some arbitrary biological distance.

I think there are good, defensible reasons for doing so, but the Massachusetts Court embarked on a very ill-considered course ...
10.18.2005 3:58pm
tdsj:
"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."


I think you are right in focusing on the formal/substantive equality distinction. But the claim that marriage furthers gender equality is certainly debateable.

Note also that as a legal matter, many Equal Protection cases (of the Adarand, Croson variety) focus almost entirely on formal equality and not at all on substantive equality. EP analysis is mostly anti-discrimination analysis, not anti-subordination analysis.

Loving's mixed focus on both sorts of equality was something of an anomaly... but of course it will be revived by courts in rejecting arguments that EP requires same-sex marriage.
10.18.2005 4:03pm
Choosing Sides 2:
jrose,

I am not saying Lisa changed sexes as an adult. I am saying, what if at birth she were a male instead of a woman, yet still gay.

I misunderstood then. In that case, I would return to my second post. Gays and lesbians are allowed to marry - they are just not allowed to marry people of their own sex. That makes it sex discrimination.

Notwithstanding the cases where friends marry, the liberty interest at stake is not the right to marry, but the right to marry your lover. If you are correct, then Lawrence could have been decided on gender discrimination. I don't think the plaintiffs so argued, nor any amici, nor O'Connor in her concurrence, nor The Court in their brief Equal Protection analysis.

First off, there does not need to be a liberty interest if we are talking about sex discrimination. That means the motives for marriages are irrelevant.

Second, Lawrence is indeed a curious case from all perspectives. The reason, however, that it is distinguishable from the gay marriage case is the way in which the parties were defined. In existing marriage statutes, the parties are clearly marked as a "man" and a "woman."

I admit my reasoning here means heightened scrutiny MAY NOT be applicable if the statutes actually attempted to include orientation by defining the parties more carefully. However, facially as they are written currently, I don't think they can be read to escape heightened scrutiny on the basis of sex discrimination.
10.18.2005 4:05pm
tdsj:
"If you are correct, then Lawrence could have been decided on gender discrimination. I don't think the plaintiffs so argued, nor any amici, nor O'Connor in her concurrence, nor The Court in their brief Equal Protection analysis."

but note how gender and orientation get mixed in other contexts such as employment. See Oncale, Rene v. MGM, etc.
10.18.2005 4:06pm
Elliot123 (mail):
Ms. Gallagher promises to take up the idea of what harm stems from SSM. Good. That question has yet to be answered.

One of the points anti-SSM people make is that SSM will damage heterosexual marriage. But, what is meant by "damage?" Damage is a general term that must be supported by particulars. So let me offer some particular damages to marriage which are not dependent on any particular source.

1. Fewer people form marriages
2. More divorces
3. More infidelity

Now, I'd like to know how SSM will cause any of the above. What is the particular causal link between SSM each of the above? (There may be other particular and specific phenomena that would be classified as damage.)
10.18.2005 4:08pm
Choosing Sides 2:
but note how gender and orientation get mixed in other contexts such as employment. See Oncale, Rene v. MGM, etc.

That is a good point which I neglected to mention. Would anyone here say it is ok for a man to repeatly make sexual overtures (rising to the level of harassment) to a lesbian? Does the fact that she is a lesbian mean it is ok to do so under Title VII?

Title VII and EP are different beasts, but the harassment cases illustrate that the distinction between sex and orientation is often lost and it is best just to stick to the text of the statute in these cases. In this case, the statutes are on written on the basis of sex.
10.18.2005 4:12pm
Houston Lawyer:
The only part of our constitution that prohibits discrimination based upon sex is the amendment granting women the right to vote. All case law that holds otherwise merely consists of a majority of the justices determining what in their view is good sex discrimination and therefore permitted and what is bad sex discrimination and therefore prohibited. Proponents that want "orientation" to be a suspect class are really trying to build castles in the air on top of this already unconstitutional interpretation. Just how do we go about determining who the members of this purported class are anyway?

If current marriage laws discriminate in an unconstitutional way, then so must laws regarding single sex bathrooms, single sex prisons and separate sporting facilities and competitions for women.
10.18.2005 4:15pm
Daniel Chapman (mail):
All this in 6 minutes... it has now become impossible to read the comments. Perhaps a restriction to one comment per hour would not be out of line.
10.18.2005 4:16pm
Sydney Carton (www):
Daniel,

Despite the fact that I am posting and currently reading the comments on these threads, the sheer number of comments here does not make reading them impossible.

What makes them impossible are the ridiculous arguments in favor of destroying marriage as an institution for the satisfaction of the vanity of sodomites.
10.18.2005 4:19pm
Randy R. (mail):
Marriage today, at least, has no relation or basis in procreation. Why? Simply because there is no test in any state to determine the procreation abilities of engaged couples, nor is there any requirement that they promise to make babies. The ONLY requirement for getting married is a desire on both parties to GET married. (Even that is dubious -- in Nevada, Britney Spears can get drunk one night and get married to a guy without either one of them knowing exactly what they were doing, and then divorce the next day.)

Now, if two opposite sex couples can get married without any inquiry as to their desire or ability to produce children, why shouldn't same sex couples be held to the same standard?

Further, opponents of same sex marriage always raise the "what about the children" argument. Well, what about them? I know many gay couples who have children, either through artificial insemination, previous marriage, or adoption. So if you are really concerned about these children, don't you want them to grow up in a stable monogamous-oriented family? What better way to induce that than to encourage marriage between the parents? Promote families -- isn't that the conservative mantra? Here's an example -- a child is adopted by Gay Man A, who is an longterm relationship with Gay Man B. Gay Man A is also the bread winner of the family, while Gay Man B stays home and raises the child. Gay Man A dies. To whom does the child belong now? Without marriage, the issue is doubt. Gay Man B and the child are not eligible for B's social security benefits, since they are not married. Even if B leaves his entire estate to A, it is taxable, there by reducing it's value. Married couples can pass their entire estate tax-free. This all actually harms the family and the child directly. And by the way, every single study about children of gay parents in the US and Britain show that they are as well adjusted as children of hetero parents, and there is only a slightly greater chance that the children are gay or bi-sexual. So again, where is the harm to children?

Prohibing gay marriage isn't going to make this issue go away, it only intensifies it.
10.18.2005 4:19pm
Cold Warrior:

True about the lesbian thing. I am unfamiliar with the Texas AG's arguments. Bowers' reliance on traditional sexual morality as a legitimate state interest seems to be reasonable. I can't fault the Texas AG if he leaned too heavily on it

The Lawrence oral argument transcript is available on the Supreme Court website. It is worth reading. Regardless of one's opinion on the issue, it is hard not to empathize with the Texas DA forced to come up with ever more contrived arguments in support of the law. Here is the biggest stretch:


[Discussion about the DA's argument that Texas has the right to legislate to prohibit what is widely-considered deviant sexual behavior -- namely, sodomy]:

Court: But if that's the reason for it, why doesn't Texas prohibit the conduct in a heterosexual relationship?

[Series of brief exchanges follows]

Mr. Rosenthal [the DA]: But it [heterosexual sodomy] can also lead to marriage and procreation. And that's -- and that's a legitimate state interest.


I take it this is also Maggie Gallagher's argument. Heterosexual sodomy -- even outside marriage -- is not as objectionable because it could simply be a 21st-century version of traditional courting behavior.
10.18.2005 4:22pm
Randy R. (mail):
One of the arguments that opponents of same sex marriage have made is that it will "destroy" marriage. Massachusetts now allows same sex marriage. How exactly is marriage destroyed there? Are all previous marriages declared null and void? Have people stopped getting married? Have monogamous marriages suddenly all gone adulterous? Specifically, will someone tell me how they treat their spouse differently now that gays get married in one state?

Believe me, we gays have no desire to destroy the very thing we want to join!

Oh, and by the way, the the World Health Organization estimates that 80% of the world's AIDS cases came from heterosexual conduct. In addition, lesbians as a group have the lowest incidence of AIDS of any group in the US. Therefore, hetersexual sex is far more dangerous than gay sex. Perhaps as a national health policy, we should therefore be promoting lesbian sex?
10.18.2005 4:26pm
jrose:
The Texas statute reads: a person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. Sexuality is no more defined in this statute than it is in current DOMA statutes. Both are defined in terms of gender.
10.18.2005 4:28pm
Choosing Sides 2:
The Texas statute reads: a person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.

It's been a while since I read the Texas statute and I don't have it readily available. I'll take your word for it and stand by my other arguments. The fact that the case was not argued as a sex discimination case does not mean there wasn't a potential sex discrimination issue. I seem to recall a reason why that case was different, but my mind isn't what it used to be.
10.18.2005 4:31pm
Word Up:
"Sexuality is no more defined in this statute than it is in current DOMA statutes. Both are defined in terms of gender."

Does prohibiting same-sex marriage disadvantage one gender more than another? Answer: No! Isn't that the heart of the equal protection question? If a statute does not favor one gender over another, how can it be said to be "gender discrimination?"
10.18.2005 4:38pm
Randy R. (mail):
MG<>

This is by far the most laughable statement Maggie G. has made in this post! Well let's see -- we have had marriage for at least two thousand years. Just when exactly did we gender equality, Maggie? Not at least until the last few decades.

You have is exactly opposite! Marriage was defined for centuries as a union between man and woman, where the woman disappears completely. Only recently has a married woman been entitled to keep what she inherited; previously all she owned was transferred to her husband, thereby making her MORE dependent upon him, not less. Until the middle of the 20th century or so, women had few options -- get married, or become a midwife, schoolteacher or nurse/nanny. Most opted for marriage, even if it meant a horrible marriage, because at least that gave them some financial stability. Today, because we have better gender equality, women may work to support themselves, and they have greater rights as to their bodies (legal freedom from rape, for instance) and their earnings. This in turn means that women no longer must get married for financial stability, but rather may marry for love.

And that is the bottom line. For the first time in western civilization, people may marry for love -- not financial stability, not gender equality, not for procreation, not to keep the ancestral trust funds in tact, but simply because two people decide that they would like to share their lives together. If two opposite sex couples may marry for love, why cannot two same sex couples, especially if that is the only standard? If we allow opposite sex couples to marry even if the DON'T love each other, that they do it only for money, for entrance into a higher social class, for beauty, or simply because they got drunk one night, why should gay couples be denied simply because you don't like it?
10.18.2005 4:39pm
Randy R. (mail):
Opps! Meant to quote from Maggie. Here is the laugable quote: "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."
10.18.2005 4:41pm
Word Up:
I seem to recall a reason why that case was different, but my mind isn't what it used to be.

Different than Bowers?

Bowers dealt with a statute that penalized heterosexual and homosexual sodomy whereas Lawrence penalized only homosexual. This is how I remember it (am I wrong, anyone?). O'Connor was in the majority in both cases and wrote a concurrence saying, more or less, a sodomy statute that affects both homosexuals and heterosexuals would be constitutional. But she was a lone voice. I guess she didn't have to admit she was wrong in Bowers while still being on the "good" side.
10.18.2005 4:46pm
Unamused:
Randy:

Why do the rest of us and the state care about your love? Why do you need state recognition of love between two people? What does the state get out of it?
10.18.2005 4:46pm
Elliot123 (mail):
We have heard much about the historical model of one man and one woman raising a child. But was that the model? What was the role of the extended family in the past and in many cultures today? Is the nuclear family of man/woman/child the norm or is it relatively new as society has changed and the family has changed with it?
10.18.2005 4:48pm
Randy R. (mail):
Unamused<< Why do the rest of us and the state care about your love?>>

I assume you don't care about my love. I don't care about yours, either, but I am then I'm not trying to stop you from marrying the person you choose. If you don't care about my love, then please go to the logical extention and say you don't care if whom I marry.

But we need the state sanctions because there are over 1500 federal laws, and many more state laws that provide benefits to married couples. We should have access to those same rights.

What does the state get out of it? I don't know. What does the state get out of your marriage?

Let me give you a hypo: Couple A, a man and a women, hold a press conference and declare that they will be married in a month. The man states he is getting married only because the terms of his trust find state he must marry a women before age 30 to inherit his millions. The women states that the only reason she is marrying the man is to help him get the millions, and then she will be rich -- she states she is in it only for the money. Both announce they have no intention of having children or adopting any, and they had medical procedures to prohibit any sort of procreation.

The state allows them to marry one month later.

Couple B, a man and man, hold a press conference stating that they plan to get married next month for no other reason than they are in love, want to share their love together, and start a family. They intend to adopt children and have their own through various medical procedures.

The state prohibits them from marrying.

Please, tell me what is the state interest in allowing a sham marriage with no hope of procreation, but probiting one that will take children out of foster care? And what does the states get out of each scenario? And why should you care about either?

I know this is an extreme example, but we all know these sorts of situations occur.

For Elliot: The historical model of a family has changed drastically over the centuries and from culture to culture. For anyone to claim that one one culture at one time is the "correct" model is being very selective. In some situations, grandparents raised the children, at others the whole village raised the children. In ancient Sparta, all boys were taken from their parents and raised communally from about age 5.
10.18.2005 6:04pm
Randy R. (mail):
In Lawrence, the sodomy laws were struck down, not on equal protection reasons, as everyone assumed, but under due process, which no one had anticipated. Basically, the majority of the Supreme Court held that you cannot deny a basic right, such as having consensaul sex, without due process of law. They also said they would strike it down under equal protection, but that was an afterthought.

This is significant, because the Court actually went further to expand gay rights than anyone had even suggested. What it means is that gays don't have to prove that we are burdened more than straights, but rather that we aren't being treated as every other citizen. A fine point, perhaps, but it really raised the debate into a realm that we are first class citizens like everyone else, and any laws targeting us or our rights are immediately suspect.
10.18.2005 6:10pm
Chicago lawyer (mail):
I'm sure I'm going to get branded the white-bread bigoted reactionary given some of the comments above.

I'm against "SSM" for the moment, for two reasons.

On the legal angle, I consider it to be a perversion of the term. Marriage, by definition, is between a man and woman, and to me, a judge saying that it is merely just about any two people is no different than saying in Orwellian fashion that 2+2 = 5. And I don't see how you can then avoid saying that a minimum age threshold for marriage is not "age" discrimination (so why can't my 2 year old daughter marry 62 year old man), why prohibitions on polyamory are not discriminatory, etc.

On the social/culteral angle, gays can't have it both ways. (Yeah, go ahead, make the jokes). Follow the Andrew Sullivan logic, he seems to demand the "right" to marry to prove his outside-the-norm relationship is nevertheless "normal" and thereby be socially "validated." Yet walk through my Lakeview neighborhood, particularly that stretch of Halsted known as "Boys' Town," and it is the antithesis of "normalcy," and a lot of socially destructive behavior is justified on sexual orientation grounds (i.e., those in the gay community are different and have different needs from those uptight straight folks).

So which is it - same, or different? If you want "same" treatment, then the "gay community" must decide to lose the moniker and live by the rest of those oh-so-oppressive Middle America values and standards. Do that, and I'll be persuaded that a civil institution recognizing homosexual relationships won't be socially destructive, and would probably vote in favor of such a measure.

But that ain't happening. (Oh, and to all those asking why they should believe that deconstructing marriage will have bad effects, look no further than the devastating effects of no-fault divorce a generation later.)

Institutions are not supposed to be all amout me and my selfish needs. They serve a larger societal purpose, across multiple generations. Thus far all the arguments I hear in favor of SSM are all about "me me me" rather than protecting and strengthening a vital institution to civilization.
10.18.2005 6:21pm
Shawn:
Choosing: You might switch from "sex discrimination" to "gender discrimination" in your argument. I believe that is what you mean and I believe others are misunderstanding that.

If John cannot marry Mark because of John's gender, that is gender discrimination. (With no comment on whether or not that is legal)

If John White cannot marry Cindy Black because John White is the wrong race, that is race discrimination. (Which is clearly illegal after Loving v Virginia.)

It didn't matter that neither race in Virgina was more or less burdened than the other. Nor does it matter if one gender is more or less burdened than the other.

Legally, the only substantial difference between these two instances is that gender discrimination on this level is very likely legal. We have no national ERA.

I do not think anyone is really making a legal argument for SSM based on gender discrimination. Most of the arguments appear to be based on equal-access arguments.
10.18.2005 6:24pm
Shawn:
Roger Shlafly says:
It would be a massive invasion of privacy for the state to require couples to pass a fertility test or to certify that couples are directing their sexual relations towards procreation.

As 4 states currently require fertility tests for certain marriages, and most states require some type of blood test. This "massive invasion of privacy" already appears to be the norm.
10.18.2005 6:32pm
Jesurgislac (mail) (www):
Chicago: Marriage, by definition, is between a man and woman

Well, except in Spain, in the Netherlands, in Belgium, in Canada, and in the state of Massachusetts - and that's just covering examples of marriage between same-sex couples in this culture (western Europe/North America) and the present day. So, marriage is "by definition" between a man and a woman - but it's also, "by definition", between two men and between two women.

And I don't see how you can then avoid saying that a minimum age threshold for marriage is not "age" discrimination

To me that's kind of like arguing that because the army is legally forbidden to discriminate on the grounds of "race, color, creed or national origin" that means there's no reason for the army to discriminate on the grounds of age. Congratulations, your 2-year-old daughter can now join up and get all the military benefits of education, healthcare, and foreign travel! It's a child's life in the army!

We agree that under a certain age children are not allowed to enter into legal contracts. We agree that under a certain age, children are protected by statute from adults having sex with them. There are actual, real, physically justified reasons why we protect children from adults having sex with them: unlike the hypothetical and unsupported reasons offered for possible damage that might happen to marriage if same-sex couples can get married.

If you want "same" treatment, then the "gay community" must decide to lose the moniker and live by the rest of those oh-so-oppressive Middle America values and standards

If you feel that would be a good thing, then you surely must be in favor of same-sex marriage. After all, how much more proof can the gay community offer that they want to live by what you see as "Middle America values and standards" when the current major political fight going on in the gay community is about getting married. Right?
10.18.2005 6:34pm
Jesurgislac (mail) (www):
Maggie: 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?

Actually, I can. If anyone was seriously arguing that the law of marriage ought to forbid mixed-sex couples getting married - since I assume that you are erroneously arguing that mixed-sex coupling is "the one feature that has been practically universal in human experience" - then I think there are many reasons why people of sound mind and good will would object to that.

But those are the same reasons that people of sound mind and good will are using to argue that it's wrong to forbid same-sex couples from getting married. And all you appear able to offer in rejection of those arguments is the usual tautological or illogical or homophobic miscellany.
10.18.2005 6:38pm
Choosing Sides 2:
Choosing: You might switch from "sex discrimination" to "gender discrimination" in your argument. I believe that is what you mean and I believe others are misunderstanding that.

I understand the two terms create confusion. I use sex, because it is a binary describing physical characteristics. Some people use "gender" to include a broader category of concepts such as transgendered people and/or orientation. I didn't want to confuse things by bootstrapping orientation into my word choice. However, it appears I've confused things anyway. Point taken.

I do not think anyone is really making a legal argument for SSM based on gender discrimination. Most of the arguments appear to be based on equal-access arguments.

There are quite a few authors, scholars, and activists who have argued that gay marriage should be framed as a sex/gender discrimination issue under equal protection. It is not the most commonly articulated view, but it is still prevelant. And while there may be strategic reasons for rejecting it, I think textually (which is something that should appeal to most of the readers on this site), it is a VERY powerful argument. And Ms. Gallagher has dismissed it with a form of question begging. And that, I believe, is a mistake.
10.18.2005 6:52pm
Randy R. (mail):
Chicago Lawyer:

So I guess my rights are dependant upon how all gay men act, right? So if every single gay man were to act in the middle class manners you find so preferential, you would allow us to marry? Methinks you will find some other reason to deny us our rights.

Yes, there are gay men who are jerks, And straight men who are jerks. But what about all those adulterous married men -- by definition they are violating their marriage vows. According to you, then all straight men should be prohibited from marriage, since some act badly and violate it's sanctity.

No, what comes clear from your post is that you find gay men disgusting, and so you can't imagine us as normal human beings. ARe you friends with any gay men? I am -- and some are the most wondeful loving people I could imagine. Others are idiots. But by painting all of us as engaging in "socially destructive" behavior you inded invite the label of bigot. Most gay men do not hang out in Halstead on weekends. Most lead perfectly normal lives. I myself am an attorney with the UD Department of labor here in Washington, and I hold several titles in the ABA and other organziations. yes, I'm out to everyone. I own my own house, and have never been in an orgy. So do you love me now? What else do I have to do to prove that I am a individual worthy of respect

What I suggest that you do is get out in the world and learn that it is comprised of a lots of different people, and that there is room for all of us on this planet. You don't have to love everyone (unless, of course, your profess to follow the teaching of Christ), but you do have to live with us all, and we you.

Be not afraid, dear one! your world will not crumble if gay men live the lives that they choose. We've been doing it for centuries -- it's just that now you know a little bit more about us!
10.18.2005 7:20pm
DSC (mail):
I don't understand how she so quickly dismisses the gender argument. If equal protection protects individual rights, then to say Jane can marry Joe, but Mike cannot marry Joe, then you are discriminating on gender, not orientation. The test is a much higher level of scrutiny.

Second, I would be interested to know how she feels about some states that allow first cousins to marry only if they cannot procreate, or why people in all states over the age 65 are able to marry (it's simple to eliminate the procreators from marriage rights). Doesn't seem like it involves procreation when giving these married couples particular rights.

Third, marriage offers couples 1000s of rights, some of which could hardly be said to do with procreation. Would same-sex couples have a better argument if they argued that a particular right granted was not denied, and that right has nothing to do with SSM?

Fourth, the statistics about how many disapprove of SSM are little out of context. Interracial marriage was not accepted by the majority of society until well after the Loving cases (say 25 years). Yet, we would all agree they got it right then.
10.18.2005 11:41pm
Victor Davis (mail) (www):
Choosing Sides 2 and Shawn (and/or others): I am not sure I follow the gender discrimination argument.

Extending Loving to a hypothetical context, say schools, for a moment, can we say that the logic in that decision is consistent with a statement that statutes banning racially mixed schools violate the Equal Protection Clause? If so, the question before us would then be: can we say that statutes banning same-race schools violate the EPC? I think this result does not follow clearly; it may be correct, but you will have to find other grounds. To rephrase: a statute requiring mixed races in schools is not discriminatory, per se.

Likewise, by extension, a hypothetical statute requiring mixed races [gender] in marriage would not violate the EPC, at least not for racial [gender] discrimination reasons.

Further, the racial discrimination in Loving was clearly motivated by animus toward a particular race, a situation which is not parallel here insofar as there is no clear animus toward a particular gender. I'm not a lawyer, but surely such a point has some force. (Note: I am not arguing that the statutes about same-sex marriage don't have animus; I am simply arguing that they aren't predicated on animus toward a particular gender).

Lastly, Loving was rationalized by an appeal to the procreative aspects of marriage. Explicitly calling that logic here seems to reinforce the anti-same-sex marriage argument rather than weaken it.

Interesting comments, regardless, and I appreciate the rational discussion. I apologize if I have botched any legal argument; I am not lawyer and will defer to the many experts on this forum.
10.19.2005 12:11am
Randy R. (mail):
You are right - the animus is not towards any gender. The animus is towards gays and lesbians.

Why, I don't know. I didn't ask to be gay, nor did I choose it. Yet there are plenty of people who hate me just because I am gay. They seek to deprive me of rights that everyone else, the right to be hired and fired not on my sexual orientation but on my job performance, to not be discriminted against in housing or loans, or any other things that don't matter. And yes, even in the ability to marry the person I want to spend the rest of my life with.

But I guess it freaks some people out that I might have a decent life.
10.19.2005 12:38am
Cornellian (mail):
Hmm, nothing on the face of the 14th Amendment restricts its application to race. You wouldn't be engaging in any of that judicial activism stuff to read down the 14th Amendment to suit your policy preferences would you? Perish the thought.

The only part of our constitution that prohibits discrimination based upon sex is the amendment granting women the right to vote. All case law that holds otherwise merely consists of a majority of the justices determining what in their view is good sex discrimination and therefore permitted and what is bad sex discrimination and therefore prohibited. Proponents that want "orientation" to be a suspect class are really trying to build castles in the air on top of this already unconstitutional interpretation. Just how do we go about determining who the members of this purported class are anyway?
10.19.2005 12:45am
eratosthenes (mail) (www):
The equal protection question glazed over by Gallagher and others is actually quite acute:

Bans on same sex marriage are formally equal and substantively unequal, just like bans on interracial marriage. It is the human characteristic that is different.

What we really ought to address is a) whether homosexuality should be a suspect class under EP doctrine and b) even if it shouldn't be, why is the burden on those who want equal legal rights to show that their new "privilege" won't harm existing straight marriage as an institution?

With regard to part b, there is no evidence, as in none, that gay marriage causes straight marriage to fall apart. Gallagher has failed to produce it. What's more, it's the same sort of argument advanced against mingling races--it will cause the existing social order to be disrupted. Well, in that case, good! Disrupt it a little. This idea that the state should encourage the production of babies really does smack of at least mild eugenics or social engineering, even if it is far-fetched to attribute fascist motives to Gallagher and her ilk.

With regard to part a, how different is sexual orientation from race, for purposes of EP analysis? It's immutable, at least to some degree or for most who think of themselves as homosexuals, on the basis of the best available neutral science. Homosexuality is a characteristic on which people have historically heaped scorn, with little asserted justification other than feelings of disgust. Why is the parallel so different?

These are important issues, indeed, the real ones at the heart of any constitutional or policy examanation of gay-marriage bans. Gallagher must rigorously engage them for anyone to take her arguments seriously.
10.19.2005 12:59am
Marriage Advocate (mail):
As usual, ssm advocates are picking at straw men and at the margins of Maggi Gallagher's arguments.

I note that no one has even addressed the issue of narrowly tailored remedies.

The Goodridge majority chose a sweeping and coercive "remedy" to a non-existent "problem."

Let's pretend for a moment that there actually was a constitutional right to marry "the person of one's choice."

Even if Ms. Goodridge had the constitutional right to marry her female partner, this did not require the sweeping change in the law that the court demanded. The court could simply have declared Ms. Goodridge or her partner "constructively male."

Courts use fictional constructs like this to accomodate what they see as exceptional cases, without screwing up a law that works perfectly well for the vast majority of the population.

But instead, the Goodridge majority rewrites the rule around the exception. Sorry, kids, but marriage is no longer about your interests. The state of Massachussets no longer cares if you have a healthy childhood with a mother and father, because the state's interest now is promoting "love."

What are the legal elements of love, anyway?

And why is love between sterile couples so much more important than love between couples that can beget children, that we've rewritten marriage around the sterile ones?

-Peter
10.19.2005 2:38am
Marriage Advocate (mail):
There's no such thing as a "ban" on ssm, any more than there's a ban on male lesbianism. SSM is a contradiction in terms. You can't "ban" something that does not exist.

This talk of ssm "bans" is just another example of how the cultural nihilist movement has hijacked the black civil rights movement. Loving v. Virginia involved an actual marriage BAN. Virginia made it a criminal offense for a black man to marry a white woman, punishable by jail time.

To "BAN" a marriage, the state has to recognize that the marriage exists. Here, the complaint of ssm advocates is that the states don't recognize what isn't there. Randy wants the courts to legislate reality for him, and make him able to marry a man. Realistically, the only person that could do that for Randy is a very skilled surgeon. If the courts hand Randy a paper that says "married," that's about as effective as the Wizard of Oz giving the scarecrow a diploma instead of the promised brain.

The sad thing is that the MA courts have scarecrowed the entire state, and redefined marriage for everyone. Let's keep an eye on that state's illigitimacy rates for the next 25 years, as the marriage culture in Massachusetts loses the ability to communicate its ideals to the next generation, just so Randy can feel normal.

Randy -- this isn't about you, or about gays. I don't fear gays -- I fear a generation of heterosexuals raised without even knowing about the traditional marriage ideal. I fear for their haphazardly spawned children, most raised without fathers, as humans revert to primate-like serial monogamy, as is already happening in some inner cities.

As for you, Cornellian, it's not "judicial activism" to examine the context of the civil war amendments to determine the meaning. Just because Justice Scalia does not like looking at historical context, does not make it "judicial activism" to contemplate context to determine what was meant. Cornellian, the 14th Amendment also says you can't deny voting rights on any basis other than age, sex,, citizenship, and criminal record. By your reasoning, the 14th amendment gives dead people a constitutional right to get married and vote. This is marvelous news to necrophiles and Democratic candidates from Chicago.
10.19.2005 3:23am
Marriage Advocate (mail):

But we need the state sanctions because there are over 1500 federal laws, and many more state laws that provide benefits to married couples. We should have access to those same rights.


Really, Randy?

Obviously you haven't read all 1500 of them, or you would not call them all "rights."

Does it even occur to you that some of those 1500 laws might not make sense, or even be compatible with a male-male relationship?

If your partner has a fling and gets some woman pregnant, you think the law should presume you the legal father of the child? That's called the presumption of paternity. Supreme Court upheld it in Michael H. v Gerald D. It makes sense in real marriages. It has some pretty stupid and dangerous results when you apply it to same-sex couples.

If you don't like it, then you should not pretend that you want that package of rights, responsibilities, privileges and liabilites that we call marriage.

I think some of you are straining to ask Maggi Gallagher to take your arguments seriously, when you haven't even read the package of laws that you are asking to apply to same-sex couples.

Honestly here. How many of the 1500 have you read and talked over with a lawyer? If you haven't done this, then you are chasing a fad, and you don't even know if this is something you want.

Yes, there are a lot of men and women that jump in together, and find they don't like some of the new rules and responsibilities. But marriage is designed to fit their situation, for the benefit of potential children.
10.19.2005 3:35am
Challenge:
Marriage Advocate raises some good points. Also, I am not sure how much the gay community (gay males, specifically) accept the monogamous ethic that is part of Judeo-Christian marriage. Andrew Sullivan famously wrote of the recognition in the gay community of the need for "extra-marital outlets."

The male-female bond in marriage has the affect of taming or containing male sexual desire into that union. Gay males are promicuous at least in part because males view sex differently than females. Sexual habits are drastically different between hommosexual and heterosexual communities, and I see no reason for this difference to disappear if gay marriage equality existed.

For this and other reasons, I think if gay marriage makes sense at all, it makes sense more for lesbians than gay men.
10.19.2005 5:04am
Chairm (mail):

It's immutable, at least to some degree or for most who think of themselves as homosexuals, on the basis of the best available neutral science.

Could someone please unpack that statement?

* * * * *

When a social institution purposefully combines the two sexes, in equal number, that is not gender inequality. When the state recognizes marital status and gives it a preferential standing, that is not gender inequality. The point of elevating marital status is to distinguish it from other types of relationships which are outside the social institution.

That there is a personal choice in mating and in marriage does not mean that adult consent makes any and all choices ethical, let alone worthy of marital status. There are various marital regulations that proscribe combinations of male and female.

We could hunt along the edges of these regulations for discrepencies.

For example, there is usually a waiting period after a couple has received a license to wed. This waiting can be waived for compelling reasons, most reflect euphemisms for mating or pregnancy. But in some places a person who is on their deathbed may be granted a waiver and the waiting period would be skipped to expedite the wedding. So healthy man-woman couples are discriminated against by such a criterion.

Sandra and Harry are prohibited from marrying despite good health, having already conceived a child, and otherwise being law-abiding citizens. They are too-closely related to mate, procreate, and to marry.

At the discretion of a judge, and usually with stipulated guidance from lawmakers, an underaged person may marry. Again, special circumstances usually revolve around premarital intercourse and/or pregnancy. Does that mean that other underaged couples are being discriminated against? Sure, and many would be subject to statutory rape laws, too.

The man-woman criterion of marriage could be regulated to be more inclusive or more exclusive, but to discard it would be to switch recognition of marriage for recognition of some other thing. And that other thing may be worth the radical reform, however, the case needs to be made for the change. The onus is on the would be reformers.
10.19.2005 5:17am
Medis:
Just an aside, but if The Sopranos is any indication, the gay community is not the only community that "recognizes a need for extra-marital outlets". Insofar as marriage law tries to discourage such attitudes, I'm not sure why this counts as an argument against gay marriage. Indeed, if one of the purposes of marriage has been to promote monogamy (and even Maggie seems to concede that), then a resistance to monogamy in a certain community is a reason TO encourage marriage in that community, not a reason AGAINST allowing marriage in that community.

Anyway, as I see it, the legal situation is difficult to analyze precisely because of a disconnect between the substantive purpose of the policy and the legal form of the policy.

The substantive purpose of the policy is to extend marriage only to straight couples, but not to gay couples. In that sense, the substantive classification is about the kind of relationship the marriage would be "recognizing" (or fill in your favorite action word), and people who oppose gay marriage do not want to "recognize" gay relationships in the same way that they "recognize" straight relationships.

But formally, the laws enacting the policy, as others have noted, are based on gender classications, in the exact same way that anti-miscegenation laws were based on racial classifications. But unlike anti-miscegenation laws, as noted, I do not think the substantive purpose has a close fit with the legal form.

That makes this a somewhat unusual and analytically complicated legal issue. In most equal protection cases, the unconstitutional discrimination and the classifications in the law are facially related, or the classifications in the law are potentially part of a "pretext" for an underlying discrimination. Here, the "pretext" classifications would actually trigger heightened scrutiny in a normal case!

Frankly, I'm not sure how to unentangle all this under the existing constitutional doctrines. Ultimately, I do think this is about whether we have a legitimate reason to fear gay marriage, and I don't think we do, but I am not sure how, if it all, the courts should be involved in setting and applying a burden of proof to those who insist gay marriage is something to be feared.

In other words, how does one go about proving that all this mumbo-jumbo about "social meaning" and the improbable threats to the reproductive health of the species are just rationalizations, and that the opponents real reasons for opposing gay marriage are based on animus, thus making the policy a result of unconstitutional discrimination? Is it enough simply to point out how bad those rationalizations end up being, and how the same arguments are waived as long as we aren't talking about gay people?
10.19.2005 5:54am
Just Another Guy:

The substantive purpose of the policy is to extend marriage only to straight couples, but not to gay couples.


Yeh, there is some of that on both sides of the issue. That is to say, some defenders of the man-woman criterion and of the conjugal relationship known as marriage, oppose public endorsementn of homosexual behavior.

And on the other side some want to make the entire issue to be about queers, acceptance of gay identity, and so on. For them it is not so much about tolerance as about approval, even if only an implicit approval, of gayness and lesbianism (quite distinct from same-sex attraction).

But sexual orienation is not the center of the issue. The crux is marriage itself.

Here's an example, imperfect but illustrative.

Today two buddies, one a man and another a woman, could marry but the social institution discourages that due to the presumption that married couples mate with each other and that marriages will be procreative. And most are, in practice.

But should we replace the man-woman criterion with the criterion of adult consent, the norms of the social institution would be put aside in favor of this new substitute.

Gay or straight, buddies can marry for the 1,000 bennies, or for the supposed protections that marital status would give to their children, and so forth. If 97% of the adult population would be marriageable, but sees marriage as some tawdry piece of paper or some social program for government goodies, then, SSM will become very popular with straight buddies. It is just one more taboo to vanquish.

If the man-man combo is indistinguishable from the man-woman combo, why should it matter if two divorced dads unite their households even if they are straight and have no interest or intention of engaging is sex play together, or being monogamous with each other, or meeting the basic expectations of the social institution of marriage?

It might even strengthen a divorced dad's claim for joint or sole custody of his children, if the wife is single. Open marriages, buddy unions, could become a legitimate refuge for unwed mothers, as well. And if two buddies could unite, why not three or four?

Not that long ago, about 98% of adults eventually married, and had children. That has declined to about 85%. That portion of the population is going to be influenced by the devolution of the social institution. Sure people can procreate outside of marriage, and buddy unions, I think, would encourage that. It would thus undermine the state's interest in "marital status" and weaken the supposed protections that marriage extends to children.

Today, 97% of the homosexual adult population does NOT reside in same-sex households with children. Most of these children come from previously procreative relationships -- about 90% or so. Perhaps 10% of the adutl homosexual population currently resides in same-sex households which may or may not resemble the protypical SSM or would convert to SSM. Where SSM has been enacted, a tiny portion of the newly eligible have bothered to partake in it. So the influence on the small population of self-identified gays and lesbians will be very slight and if it grows, it would do so very slowly.

Combined with buddy unions this would mean that SSM would translate more into the flattening of marriage than the increase in acceptance of homosexuality.

The tilting point for marriage may be the enactment of SSM, followed by the further devolution of marriage as a public policy vehicle for strengthening the already battered social institution.

Can this scenario be predicted with certainty? Of course not. But given the existing trends in our society, and the lack of countervailing forces in popular culture and the education of the lawyer class, and the general SSMer attempt to marginalize the influence of religion, the trend lines point in this direction.
10.19.2005 6:52am
Public_Defender:
Other than in the millions of heterosexual divorce cases, when has "marriage lost in court"?
10.19.2005 6:57am
Victor Davis (mail) (www):
Randy R -- I respect your desires, and am sympathetic to them as political objectives. The initial post by Gallagher, however, dealt with the legal case, which appears to be interpreted as whether or not gay marriage should be allowed via court action as opposed to legislative.

I do not question that Section 5 of the 14th amendment gives the US Congress the power to correct a defined equal protection violation. Nor do I question the power of states to regulate (or not) institutions like marriage for the good of their own people. Appropriate remedies in either of those venues are, I think, straightforward.

eratosthenes -- What concerns me here is exactly your point (a) -- why do courts have the unchecked ability to declare sexual orientation a protected class? If they have that unchecked ability, what other unchecked abilities do they have?

Further, "formally equally but substantively unequal" laws are commonplace. That language is an artful description, but I don't fully understand how it is precise enough to help me define exactly when court intervention is required and when it is not.

I also question the wisdom of settling Constitutional doctrine based upon the best available biologic or social science. In an absolute sense, we really know very little about our world, and this is especially true of our knowledge of the human animal (b/c of appropriate moral restrictions on experimentation). Historically, court deference to such science has led to what we now perceive to be obvious evil. This is not to say that science has no role, but when discovering fundamental protections in the Constitution, I question whether the Courts are the proper venue for either interpreting that science, or enforcing supposedly obvious conclusions that scientific research discovers. Legislative error can be corrected with limited long-term damage; the damage done to the Court's reputation because of Plessy, for example, is much more severe because the Court, for better or worse, stakes its reputation partly on an appeal to being a higher moral authority. One would think that if the scientific arguments and subsequent political implications were truly incontrovertible, that the clearer and less controversial legislative remedies would eventually win out, at least in part.
10.19.2005 10:00am
jrose:
Choosing: You might switch from "sex discrimination" to "gender discrimination" in your argument. I believe that is what you mean and I believe others are misunderstanding that.

I did not misunderstand Choosing. Although current marriage laws classify by gender - not sexual orientation - they are nonetheless an example of sexual orientation discrimination - not gender discrimination.

1) The purpose of the laws is to disfavor gays (gays are unable to marry their lovers while straights can). Neither the laws purpose nor effect disfavor either men or women as a class.

2) If current marriage laws are gender discrimination, so too must the Texas sodomy statute at issue in Lawrence. Yet, I know of no one who argues that statute discriminated on the basis of gender (not the plaintiffs, not amici, not O'Connor, not The Court).
10.19.2005 10:27am