The New York Marriage Decision, Due Process, and Defining Fundamental Rights:

The New York marriage decision raises many interesting questions. I plan, over a few posts, to deal with some of them: (1) the due process claim; (2) the equal protection claim; (3) the legal rationality of excluding same-sex couples from marriage; and (4) some implications of the decision for the future of gay marriage. First up, due process.

The plaintiffs argued that there is a fundamental "right to marry" guaranteed by the state constitution's due process clause (which New York courts interpret more broadly than the analogous federal clause), and that this right applies to same-sex as well as opposite-sex couples. Thus, their exclusion should be subjected to strict scrutiny, which hardly anyone seems to think a state could satisfy. The Court of Appeals held that while there is a fundamental right to marry, there is no fundamental right "to marry someone of the same sex," (p. 11) and thus that only rational basis scrutiny applies. It differed from the Massachusetts court in 2003 in Goodridge by holding that the exclusion of gay couples from marriage is rational.

The doctrinal key in these fundamental rights/substantive due process cases has long been the proper way to characterize the right at stake. Much academic commentary has been offered on this issue. Where courts characterize the right at stake broadly (e.g., "this case is about 'the right to privacy'") plaintiffs win (see e.g., Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, Casey v. Planned Parenthood, and Lawrence v. Texas) because their activity can always be said to partake of the broad right. Where courts characterize the right at stake narrowly (e.g., "this case is about the 'right of nonmarital biological fathers to visitation with their children adulterously conceived'" or "this case is about the 'right to engage in homosexual sodomy'") plaintiffs lose (see e.g., Bowers v. Hardwick, Michael H. v. Gerald D., and Washington v. Glucksberg), because there is rarely the kind of historical and traditional support for a narrow right that would allow it to be ranked as fundamental. In every due-process case, it is possible to articulate the claimed right very broadly, very narrowly, or somewhere in between.

So the issue is largely decided, doctrinally, at this initial stage of characterizing the right. The rest of the analysis is usually straightforward, though there have been exceptions (e.g., where a law meets strict scrutiny or fails rational basis review). To its credit, the New York court recognized the tensions in the precedents on this issue, with courts sometimes choosing broad characterizations and sometimes narrow ones. The U.S. Supreme Court has never given us a methodology for choosing the level of generality, which has led to the strong suspicion that the cases in this area are result-driven.

Which path to follow in a gay-marriage case, that of Glucksberg and its narrow conception of the claimed right, or that of Lawrence and its broad conception of the claimed right? The question is not a hypothetical one; it will confront every court at the state and federal level that deals with a gay-marriage claim grounded in due process. The New York court offers this methodology for making the choice: "The difference between Lawrence and Glucksberg," reasoned the court, "is that in Glucksberg the relatively narrow definition of the right at issue was based on rational line-drawing. In Lawrence, by contrast, the court found the distinction between homosexual sodomy and intimate relations generally to be essentially arbitrary." (p. 12) Thus, the New York court chooses the Glucksberg model and rejects the Lawrence model. (Yet another indication, if we needed more, that Lawrence is not leading courts quickly to gay marriage.)

The New York court's approach is a novel, but I think unsatisfactory, way to resolve the level-of-generality dilemma in due process cases. It resolves the problem only by deciding the result. Thus, in Glucksberg, under the New York court's approach we would choose the more specific level of generality ("this case is about a narrow 'right to physician-assisted suicide' rather than a broad 'right to die'") only after deciding that the law meets the very test likely to be applicable to a right characterized at that specific level: it is rational for the legislature to ban physician-assisted suicide so we characterize the right as involving only the very narrow practice that it is rational for the legislature to ban, not some broader principle of human liberty, like a "right to die with dignity," which the legislature could not deny.

In a gay-marriage case, we have to choose between characterizing the exclusion of gay couples from marriage as implicating either (1) a "right to same-sex marriage" (narrow), or (2) a "right to marry" (broad). We make this choice, according to the New York court, by first deciding whether the exclusion itself is rational. If it is rational (as it is in the case of gay marriage, the court concludes), then we'll choose the narrow characterization of the right implicated (#1), which will mean that rational-basis scrutiny applies (since there is rarely sufficient historical support for rights narrowly conceived, and thus they aren't "fundamental"), and we've just decided that the exclusion is rational. It can't be argued with a straight face that there is a traditionally recognized "right to same-sex marriage." It follows like the night the day that gay-marriage plaintiffs lose under the New York-style due-process analysis

On the other hand, if the New York court had found — as the Massachusetts court did in Goodridge in 2003 -- that the exclusion of gay couples from marriage was arbitrary/irrational, then it presumably would have characterized the claimed right at a broader level of generality ("this case is about the 'right to marry'"), since the exclusion would not be based on "rational line-drawing"; then it would have found that the case implicated a fundamental right to marry; and hence it would have applied strict scrutiny, which the exclusion would fail, since the court already would have found it irrational.

The New York court thus gives us an approach to the level-of-generality problem in substantive due process cases that, if taken seriously, is both circular and eviscerates fundamental rights. The result in every case is practically determined by the initial analysis about the law's rationality. If the law is determined rational at the outset, it will probably be constitutional. If not, it probably won't be. But this makes a (further) mess of the fundamental rights doctrine, the underlying point of which is to say that some rights are so important they cannot be denied even if the government has rational reasons to do so.

I do not want to be too hard on the New York court on this point. The judges deserve credit for recognizing the problem and honestly attempting to grapple with it; not all courts do. It's equally possible for a court to assume that gay marriage implicates the "right to marry" without ever recognizing this issue, and thus uphold a gay-marriage claim in an equally conclusory fashion.

A less abstract way to approach the problem of choosing a level of generality would be to ask how courts have tended to characterize the right at issue in other marriage cases. Here, the most obvious precedents to look at would be the canonical marriage cases -- Loving v. Virginia, Turner v. Safley, and Zablocki v. Redhail. In all three cases, the U.S. Supreme Court chose a broad level of generality, not a narrow one. Thus, in each case, the right at stake was the "right to marry," not the "right to marry a person of another race" (Loving), the "right of prison inmates to marry" (Turner), or the "right of deadbeat parents to marry" (Zablocki). This would suggest that the right at stake in the New York case was the "right to marry," not the "right to same-sex marriage." Surprisingly, the court doesn't even mention Turner and cites Zablocki only for an unrelated point.

But this, too, would be an unsatisfactory approach. What, after all, is the content of the "right to marry"? It surely cannot mean a fundamental right to marry anyone or anything, regardless of number of partners, age, consanguinity, or even species -- a right that could only be denied if the government could satisfy strict scrutiny. "Marriage" in the fundamental rights context must have some substantive content, some underlying purpose, which would help us to distinguish the claim of an adult, unrelated gay couple from the claim of Joe to marry Fido.

I have no problem distinguishing same-sex marriages from inter-species marriages, because I have an underlying idea of marriage and the purposes it properly serves that includes the claims of the former and excludes the claims of the latter. But my view of the underlying point of marriage is sharply contested, since for many people in almost all times marriage has meant something -- uniting people whose sex procreates — that excludes gay couples.

There are good arguments against their view -- among them, that it has been for at least a century a largely anachronistic vision of marriage -- but I'm hardly so confident that I'm correct that I want courts deciding the issue at this point as if it's a settled matter of "fundamental rights." And if I were to brief this point for the anti-gay-marriage movement in a good lawyerly way, I'd have plenty of room to argue that the cases in this area seem implicitly and sometimes explicitly to link marriage to procreation, conceiving "marriage" and thus the fundamental "right to marry" as necessarily involving a man and a woman.

One could argue for a wholly different approach to protecting rights under the due process clause, one that is not tethered to long-recognized practices and traditions, or one that wholly eschews a distinction between fundamental rights and other liberties. Under such an approach, a gay-marriage claim might be upheld even though gay marriage has no grounding in our history and tradition. But, despite the powerful arguments of my co-blogger Randy Barnett and a few others, I do not believe that the Supreme Court has moved to an alternative approach. Nor have I yet seen an alternative approach that would be better than the maddening one we now have.

So it seems to me that, at this point in our history and in the development of doctrine, the New York court reached the right result on the due proces claim for rather unconvincing reasons.

Steven Horwitz (mail) (www):
This is an excellent piece of analysis Dale. One question: at what point must/will the Court begin to look at marriage in the way they seemed to look at homosexual sex in Lawrence, i.e., that our understanding of what it is and what it means has changed throughout time. The Lawrence decision seemed to take quite seriously the briefs by historians and other who argued that the Court got its history wrong in Bowers. The result seemed to be that Kennedy and the others were willing to accept the changed social context as a reason to overturn precedent (the juvenile death penalty cases might be similar). Isn't it possible that in the relatively near future, especially as the younger generation who is much more accepting of same-sex marriage ages, we'll see a very similar argument from the Court that admits the social understanding of "marriage" has changed in a way that would see "the right to marry someone of the same sex" as a settled matter of fundamental rights?
7.6.2006 10:15pm
SAC (mail):
IANAL, so this question may be naive: is the right to marry really a right of individuals, or is it more a right of pairs of people? Without a willing partner, there's no way to exercise the right to marry (yes, and a desert need not respect out right to water, but I don't think it's the same thing.) And the idea that certain rights exist primarily in aggregate is not obviously stupid - e.g., freedom of association. Does this affect any of the arguments in a way that isn't hopelessly abstract?
7.6.2006 10:25pm
James B. (mail) (www):
Is there really a fundamental right to a state sanctioned marriage?

What if the New York legisalture followed the advice of some Libertarians and separated government and marriage by repealing any acts that recognize marriage (reformed the tax code, inheritance laws etc.)? It seems to me barring some provision of the NY State Constitution that I am not familiar with, this could be done. And if so, how can state sanctioned/recognized marriage be a right let alone a fundamental one.
7.6.2006 11:04pm
Along with Steven, I think it is interesting to think about how these ideas might apply going forward. I suspect that many judges would be inclined to look to outside sources for an indication of whether gay marriages participate in the "broader" right to marry. So, for example, I think that churches recognizing gay marriages would help a lot of judges conceive of gay marriages as being part of the broader tradition.
7.6.2006 11:44pm
Grand CRU (mail):
In a gay-marriage case, we have to choose between characterizing the exclusion of gay couples from marriage as implicating either (1) a “right to same-sex marriage” (narrow), or (2) a “right to marry” (broad). We make this choice, according to the New York court, by first deciding whether the exclusion itself is rational.

DEAD WRONG! In all due respect, Professor Carpenter (and I mean that sincerely), I think you misinterpret the opinion.

The decision that the right should be narrowly construed was based on the history of the legislation and the history of the claim to same-sex marriage. Therefore, it is consistent with Lawrence's methodology. Lawrence examined the history of anti-somody legislation and found that general anti-sodomy legislation had a historical pedigree, but anti-homosexual sodomy statutes were of relatively recent vintage: so the powers of the Legislature, historically-speaking, may include some power to forbid sodomy in general, but not specifically to homosexuals. The reason homosexual sodomy may not be prohibited, then, is that we have arrived at the point when heterosexual sodomy may no longer be prohibited. Our society has evolved. In other words, no good for substantive due process reasons as to heterosexuals, therefore no good for equal protection reasons as to homosexuals because substantive due process must apply equally.

Look at the NY Court of Appeals opinion again. The claim of the right to same-sex marriage is of relatively recent vintage, so the claim is not a part of the claim to marriage generally, historically-speaking. Since substantive due process under the NY Constitution has not evolved to the point of permitting same-sex marriage, there is nothing to apply. So, the question-- in a vaccum -- is whether the statute is rational. Sure, in a vaccum, it is rational. Conceivably, there is a justification. So, go back to the legislature.

In other words, if Lawrence can parse the history of the scope of the legislative power, we can parse the history of the scope of the claim, too. That is not begging the question; it is the Lawrence methodolgy taken to its logical conclusion. Unconvincing? So was Lawrence.
7.6.2006 11:55pm
Grand CRU (mail):
Oh, and if your reply is, why didn't they look to the scope of the power instead of the scope of the claim...Lawrence doesn't say you can't do the latter, and there is no caselaw that says you must do the former. Why not look at the claim itself? Plaintiffs always have the burden.
7.6.2006 11:58pm
Grand CRU (mail):
Oh! And I think the Court of Appeals soundly rejected Medis' "taboo" argument.
7.6.2006 11:59pm
RMCACE (mail):
What is the point of a "right to marry" if the it is not the right to marry the person of your choice (providing the other person consents)?

You can arbitrarily narrow the marriage right with any classification. Do you hav e aright to marry someone 20 years your senior? A right to marry someone of another race, religion, or nationality? A right to marry a communist? A right to marry a blonde?

Right to marry has no meaning if it is not the person of your choice. That's like having a right to vote without the right to vote for the candidate of your choice.
7.7.2006 12:07am
Dale Carpenter (mail):
Steven Horwitz: Thanks for a thoughtful comment/question. If the Court's past approach to due process/fundamental rights is any guide, here's one possibility. The Court will avoid a ruling in favor of same-sex marriage until its decision will have the effect of essentially consolidating an already achieved national consensus in favor of gay marriage, as reflected in state laws, bringing the dissenting states into line with the new tradition. Thus, the Court struck down interracial marriage bans in Loving v. Virginia when only 17 states still banned them. It upheld state sodomy laws when half the states still had them (Bowers) but struck them down when only 13 states still had them (Lawrence). Contrary to populist critiques of the Court as activist, it is usually quite timid in substantive due process cases (the modern exception is Roe). At the risk of false precision in an inherently fluid and discretionary area, I think we'd need well more than half the states recognizing gay marriages before the Supreme Court ventured an opinion that same-sex marriage is a fundamnetal right and thus that the remaining dissenting states could not exclude gay couples from marriage. If that's right, we are a very long way from any such decision.
7.7.2006 12:21am
I think Dale is right about how "timid" the U.S. Supreme Court is likely to be in this area (and the federal courts in general). But I am less sure about state courts always being so timid, as in fact we have seen already.
7.7.2006 12:36am
Brian G (mail) (www):
Oh please spare us. You are disguising your politics by citing legal precedents. This is a legislative issue. If you don't like it, too bad. The NY Supreme Court got it exactly right.
7.7.2006 12:48am
Truth Seeker:
RMCACE: What about the right to marry two women (who consent)? The right of a 30 year old to marry a 17 year old? A 15 year old? A 13 year old? They all consent, who is to say at which age should consent be "legal"? The right to marry one's sister, no children are planned but they are really in love. What about the right to marry a sheep, which by all outward indications consents?
7.7.2006 1:13am
Grand CRU (mail):
If that's right, we are a very long way from any such decision.

Maybe the decision will never happen. If we're going to rely on Foucault for our history lessons, why not rely on Lyotard for our position on progess? (It is an outdated meta-narrative.) Why not perpetuate democratic dissent by allowing the legislatures to endlessly debate the issue?
7.7.2006 1:14am
Smithy (mail) (www):
Oh please spare us. You are disguising your politics by citing legal precedents. This is a legislative issue. If you don't like it, too bad. The NY Supreme Court got it exactly right.

Amen. I found especially persuasive the argument that once you allow man on man marriage, you will inevitably allow man on dog marriage as well.
7.7.2006 1:51am
Forget man on dog marriage. What about woman on snake marriage? We're there already! Damn homosexual agenda...
7.7.2006 3:49am
randal (mail):
Oh please spare us. You are disguising your politics by citing legal precedents.

I think you're right. But I think that's what the NY Supreme Court did too. That what everyone's doing. I agree with Dale - there's no compelling framework within which to analyze this question. It's pretty much gut versus gut.

From reading the opinions, everyone agrees that the "right to marry" is "fundamental". The question is, what are the contours of that right? I agree with Dale - it's scary to use "rational basis" to figure out how to limit fundamental rights. There's a rational basis to limit rights in any number of ways that would betray the idea of the right being fundamental. [Second-amendment types should be up in arms - lol - considering the considerably rational bases for limiting that right to exclude all sorts of groups, such as Southerners.]

I agree with the dissent that future generations will conclude that the fundamental right to marry includes homosexuals. Personally, I'd like it if that were the test: a fundamental right should be construed as broadly as future generations are likely to construe it. Such a rule would have brought the correct result in past cases, and would rejoin the slippery-slope arguments pretty well. No future generation will likely believe that there's a fundamental right to marry animals.

Of course, it wouldn't be a popular standard, nor substantially more practical than the de facto "gut standard" we have today.
7.7.2006 4:22am
BobN (mail):

The NY Supreme Court got it exactly right.

So it's true that heterosexual relationships with children are inherently unstable compared to same-sex relationships with children?

Gosh, I wish the heteros would be more responsible so my partner of 26 years and I could get hitched.

Come on, guys! Snap to it!!!
7.7.2006 4:41am
So the issue is largely decided, doctrinally, at this initial stage of characterizing the right.

I thing this presentation is somewhat disingenuous. I have come to the conclusion that in many (most?) cases the members of the court choose a result first, and then makes the characterization that makes the desired result easiest to justify. The USSC examples cited by Prof. Carpenter seem to strengthen this perception. Thus I don't think there's a serious intellectual issue of "how to choose the right level of generality".

Truth Seeker: What about the right to marry two women (who consent)?

I'd say we should treat marriage as any other contract (more-or-less the Jewish tradition). If people wish to enter into a marriage contact with multiple parties, why should we care? Does anyone know any other form of contract where the number of parties (or the sex of the parties) is limited by law?

Truth Seeker: The right of a 30 year old to marry a 17 year old? A 15 year old? A 13 year old?

Well, as you point out our society limits the ability of 13,15 and 17-year olds to enter into contracts, on the theory that they may be too young to make decisions for themselves. I think this rationale eminently applies to marriage contracts. As a practial question, IANAL but I believe that in many jurisdictions when people reach majority they have a short period of time when they are allowed to repudiate contracts they have entered into as minors. Do you agree with this policy? Do you think it should apply to marriage contacts?
7.7.2006 5:36am
Bottomfish (mail):
Call me an ignoramus but I say "the fundamental right to marry" as stated in cases like Zablocki v Redhail and others is nonsense. Let's overturn a couple of Supreme Court Decisions. What right do you have to get married? Why not have good reasons for getting married?
7.7.2006 6:46am
Rion (mail):
James B: you make a good point that there's no "right to marry" per se, since the legislature could just repeal marriage wholesale. What gay couples are arguing for is the same right of marriage as heterosexual couples, which is why I think this issue is better decided by an equal protection analysis than a due process analysis.

Gay marriage will not lead to all sorts of bizarre arrangements, like dogs marrying people. Marriage is a contract, like Lior recognized, and dogs, children, etc. do not have the capacity to enter into contracts. I admit that the rationale behind gay marriage (letting consenting adults arrage their own private lives) might well lead to multiple-party marriages, though I fail to see the problem. Humanity has had polygamous families before, and they've done just fine as family units. If the social scientists can come up with data showing that monogamous marriages are better, then the legislature can prohibit polygamous marriages.

Incidentally, the "rational basis" to forbid gay marriage that the NY Court of Appeals cited--that heterosexual couples raise kids better than gay couples--has zero support in the psychological literature.
7.7.2006 7:56am
RMCACE (mail):
Truth Seeker,

The difference between the consent/marriage of 13 year old (or 17 year old) and gay marriage is that legislature has passed laws thate expressly state that it is not possible for a 17 year old to consent. The legislature cannot pass a law that says it is not possible for a homosexual to consent.

The differnece between gay marriage and polygamis marriage is that there is already a regulatory structure in place for two persons. The tax brackets, estate law, benefits law, and family law are already been in place for two persons.

And a sheep that outwardly consents? I am not sure that requires a response.
7.7.2006 9:05am
Ivan (mail) (www):

Oh please spare us. You are disguising your politics by citing legal precedents. This is a legislative issue. If you don't like it, too bad. The NY Supreme Court got it exactly right.

Hesitant as I am to engage here, I wonder what kind of principled line you care to draw as to what's solely a legislative issue and what's not. Is everything involving marriage a legislative issue? If so, Loving was wrongly decided and states should have been left alone to ban or allow miscegenation.

Are gay rights a legislative issue? If so, Romer and Lawrence were wrong, and states should be free to ban sodomy and prevent local governments from banning sexual orientation discrimination.

Or, and I suspect this is closer to the truth, is it a legislative issue when we agree with the legislature, and a legal issue when we don't? In this case, every wrong legal decision is judicial activism.

My point is that it's not easy to draw a line and Prof. Carpenter here is applying legal precedent to a legal problem. This is so because (and this answers a question above) the rights involved under substantive due process are individual ones and the province of the judiciary is to protect individual rights. Even equal protection, which involves preventing discrimination across classes, protects individuals rather than groups.

In terms of gay marriage and substantive due process, I agree with Prof. Carpenter that I would be hesitant to place gay marriage along with the fundamental right to marry of Loving, Zablocki, and Redhail. In those cases, the right to marry was implicit in the right to procreate and have a family, drawn from cases like Skinner.

I'm not sure whether that should be the grounds for the right to marry, as opposed to some intimate association with others, but we can't choose our precedent. I think the precedent we have does not provide a ground for applying the fundamental right to marry to same-sex marriage, so the Supreme Court would either need to recharacterize those cases, or state courts would need to find alternate grounds for finding a fundamental right to marry a person of the same sex.

Of course, I still think that heightened scrutiny should apply under the Equal Protection clause, but that's unnecessary because gay marriage bans shouldn't pass the rational basis test, but those discussions are for another day.
7.7.2006 9:24am

Nice analysis. Do you think the Court of Appeals decision implies that a law which prohibits post-menopausal women from marrying would trigger rational-basis review (it can be argued that only the narrow right to a non-procreative marriage is at stake, preferring fertile couples is rational, and thus rational-basis review applies) and thus survive?
7.7.2006 9:33am
James G.:
The real issue isn't the institution of marriage, its the benefits marriage bestows. The battle (among other things) is for the right to spousal election, the right to top billing in the rules of intestate succession, the right to social security and pensions and so on. If there is a fundamental right to the benefits of marriage, then marriage begins to take on the attributes of (among other things) an estate planning tool rather than the traditional framework of stabilizing the electorate. If the estate planning "rights" of marriage are fundamental, I fail to see how age, number or consanguinity can be a limitation on such a fundamental right.
7.7.2006 9:49am
Duncan Frissell (mail):
If the estate planning "rights" of marriage are fundamental, I fail to see how age, number or consanguinity can be a limitation on such a fundamental right.

James B,

'Number' definitely enters into the 'social welfare' aspects of marriage.

France faced this problem a few years ago. It recognized plural marriage and so men on public assistance were writing back to their villages with $50 and a plane ticket to buy and transport new wives. The stream of housing and income benefits for each new wife was much greater than her cost. They eventually had to crack down.
7.7.2006 10:40am
Andrew Hamilton (mail):
I think part of the problem is that "marriage" is a portmanteau word involving at least (1) intimate relations between a couple with attendant legal rights reflecting their mutual interests in each other's welfare (2)procreation and (3) a bundle of rights and obligations with respect to offspring. There have been some efforts to establish a "domestic partner" status in law that would separate the intimate relations aspects of "marriage" from the procreative and child welfare aspects. Similarly, it is possible in many places for gay couples to adopt children and exercise the rights and responsibilities of the child welfare aspects. That leaves procreation as the main aspect of marriage which is barred to gay couples, not by law, but by nature. The state clearly has an interest in promoting procreation. Why not disaggregate the bundle of rights and obligations under marriage so that gay couples can participate in marriage to the maximum degree while heterosexual couples that actualy do procreate have separable and unique rights and obligations not available to gay couples? New ceremonies to follow.
7.7.2006 10:58am
What most people are forgetting is that Marriage cannot be between 2 members of the same sex , that simply is not what Marriage is. Therefore even if there is a fundamental right to Marriage 2 members of the same sex still can't be married.
7.7.2006 11:05am
Hans Gruber (www):
"'Number' definitely enters into the 'social welfare' aspects of marriage."

Pure sophistry. Gay marriage proponents have to come up with some reason why gay marriage is a "fundamental right" but polygamy is not, so they dream up stuff like, "polygamy is a tax burden." Though this would be a cost (not that gay marriage is not without its costs as well), but this sort of argument ignores why we ban polygamy. We ban it because it's gross, because it's icky, because we just don't like it. We don't think it's a healthy way to raise a family. It's not our way, it's not within our tradition (which, most of us think, has served us pretty well). This is all familiar territory. The reasons we ban polygamy are pretty much the reasons we are starting to ban homosexual marriage.

Whatever one's belief on gay marriage per se, one should question the rationale behind the judicial push--that morality is an insufficient basis for the law. Where will this lead us?

The legislative path is not free from the perils of the slippery slope, but it's infinitely preferrable to bogus legal reasoning which will lead to a whole host of undesirables. Even if the courts don't follow up on their cleansing of morality from public policy, the damage is done--the judiciary is once again exposed as a fraud, doing what it wishes to do with the rule of law always an afterthought.
7.7.2006 11:05am
A Berman (mail):
"The result in every case is practically determined by the initial analysis about the law’s rationality. If the law is determined rational at the outset, it will probably be constitutional. If not, it probably won’t be. But this makes a (further) mess of the fundamental rights doctrine, the underlying point of which is to say that some rights are so important they cannot be denied even if the government has rational reasons to do so."

Rights without rationality simply doesn't make sense. After all, the effect of a new right on society influences the measure of that right's importance, right?
7.7.2006 11:09am
Andrew Hamilton (mail):
I see I have overlooked the procreative possibilities available to gay women and men that don't fit the normal model of procreative activities carried on by a married heterosexual couple. I am thinking of methods like the use of surrogate mothers, sperms banks, and artificial insemination that allow
individuals without a partner of the other sex to pass along their genes. It seems that the more you disaggregate the marriage bundle, the more complicated it gets. But doesn't that argue against a legal approach that takes marriage as a fundamental right?
7.7.2006 11:12am
Ivan (mail) (www):

I happen to think there are reasons to keep polygamy banned entirely separate from gay marriage (primarily the long and seemingly inseparable association with misogyny), but that's not the point here. If there are arguments that gay marriage is not desirable (beyond the ickyness to some), now is the time to air them. When we're debating whether polygamous marriages should be legal, then there will be time to discuss the shortcomings of those. Arguing that gay marriage is bad because polygamous marriage is bad doesn't advance the debate. They're separate issues and should be discussed as such. (On a side note, it's morally problematic as well to use the slippery slope argument in this context. It's saying to gay people, "You can't get married so we can keep multiple people from marrying each other," simply using gay people--and denying them entry into such a fundamental institution as marriage--as a means to an end rather than treating them as an end in themselves.)

SeaLawyer, definitions of words can change over time. Thirty, fifty, a hundred years ago, marriage could only take place between people of the opposite sex. With people of the same sex now getting married in Massachusetts and abroad, what good is it to say that they can't be married? It's a legitimate debate as to whether the fundamental right to marry includes same-sex marriage, but unless we come up with another word for what's going on in Massachusetts (and no, 'perversion' is not what we're looking for), it's pretty useless to say that two "members of the same sex still can't be married."
7.7.2006 11:51am
Andrew Hamilton,

As an aside, gay people can also procreate simply by having straight sex. For some reason, people seem to assume that being gay necessarily means never having straight sex, whereas we know that is untrue (just as being straight does not necessarily mean never having gay sex).

Anyway, we obviously disaggregate the intimate-relationship aspects and the child-welfare aspects already to some degree--think dependent child tax credits which actually require having a child as a dependent, but do not require the taxpayer to be married.

So, one simple way to start disaggregating procreation itself would be to simply do something like give people a tax credit (or even a cash payout) for producing a child, whether or not they actually raise that child or are married.

Of course, I think that idea strikes a lot of people as a horrible one. Which does raise, I think, an interesting question about how serious we are when it comes to this idea of the government actually promoting procreation, as opposed to promoting stable intimate relationships and child welfare.
7.7.2006 11:58am
On group marriages:

As always, I think this is a sufficiently different issue such that there is no real reason why we have to resolve it now. But I think it is worth noting that we do not in fact prohibit group cohabitation and group child rearing. Moreover, we do in fact legally recognize a limited set of what are effectively group child rearing arrangements--namely, cases in which the child's parents are cohabitating or married to others and yet share custody of the child.

But as I noted, I think it is just a different issue.
7.7.2006 12:03pm
Hans Gruber (www):
"Arguing that gay marriage is bad because polygamous marriage is bad doesn't advance the debate. They're separate issues and should be discussed as such."

The general argument against these laws is that they are unconstitutional because promoting traditional morality is not a legitimate state interest. If promoting traditional morality is not a legitimate interest then a whole host of laws we all like--bestiality, bigamy statutes, etc--are in jeopardy. If the gay marriage proponents don't want to conflate these issues, then they should choose their arguments more carefully.

If we left these decisions to legislatures, rather than the courts, then the questions would be indeed quite separable.
7.7.2006 12:10pm
Andrew Hamilton (mail):

You are, of course, right about the degree of disaggregation that exists, and about the ambiguity of the state interest in procreation. But the idea of a birthright grant isn't all that outrageous. Some have proposed it as a partial substitute for the way social security works today.
7.7.2006 12:11pm
PK (mail):
Prof. Carpenter,

You're correct about the lack of any coherent method of identifying the level of generality in substantive due process cases. As far as I know, the only person to come up with a non-arbitrary method is Scalia in Michael H. v. Gerald D., in which he argued that you should characterize the right in the most specific terms that the law has historically dealt with the issue, e.g., if the law historically distinguished between the rights of non-marital parents and marital parents, the the right at issue is the rights of non-marital parents. This certainly seems like a sensible method IF you believe the proper substantive due process test is Glucksberg's history and tradition test, but since almost nobody seems to like that test, we're stuck with arbitrary levels of generality. A similar degree of arbitrariness surrounds which groups become suspect classifications for equal protection analysis.

I would also like to point out that, despite the criticism of many, the NY Court of Appeals properly applied the rational basis test to the question of whether the state could rationally conclude that heterosexual couples raise better parents than gay couples, even if there is no scientific support for the claim, because the rational basis test requires THE PLAINTIFF to demonstrate that the government's action is irrational. It does not require the state to demonstrate that its action is rational. As the Court pointed out, there simply is not enough evidence to answer the question either way, thus the plaintiffs failed to meet their burden and the state wins. To argue that the state must prove rationality is to apply some sort of heightened scrutiny test. Perhaps this case does deserve heightened scrutiny, but that's a different question than whether the court properly applied the rational basis test.
7.7.2006 12:16pm
David Matthews (mail):

"So, for example, I think that churches recognizing gay marriages would help a lot of judges conceive of gay marriages as being part of the broader tradition."

I think I see your point, in the careful way you worded it, but doesn't it still stray a ways up on the wall of separation between Church and State? I mean, I'd think there would be significant condemnation were the Courts to say "Since a majority of Churches ban same sex marriages, we agree that it can't be seen as a fundamental right;" how does a change in the opposite direction not fall afoul of the same charge?
7.7.2006 12:37pm

First, I don't think it is true that such an anti-traditionalism argument is the only argument in favor of gay marriage. Indeed, Dale has done some interesting work on how gay marriages may serve very traditional ideas.

Second, eliminating pure traditionalism as a legitimate state interest does not wipe out all other legitimate state interests. So, insofar as the state does have other legitimate reasons for, say, not extending marital rights to group marriages, that practice could still be justified.

So, your argument depends on assuming that the ONLY reason for our marital laws, including our (actually somewhat untraditional) restrictions on group marriages, is pure traditionalism. And I don't think that is a remotely accurate characterization of how we determine marital law, or family law in general, in our society. Indeed, at a minimum, we have also determined family law in our society in light of what we take to be the best interests of both spouses and children. So, those are large fields of possible justifications which do not necessarily depend on traditionalism.
7.7.2006 12:41pm

Just to be clear, I was making a descriptive point, not a prescriptive point. So, such considerations may well implicate First Amendment concerns, but judges might go ahead and think in such a fashion anyway (whether or not they write it down in an opinion).

That said, I'm not entirely sure such thinking is improper, as long as it is not exclusively based on religious institutions, and does not depend on any assumptions about the validity of the religious beliefs. As I see it, if the question is whether the claimed right is part of a broader tradition, judges have to look outside the parties before them to make such a determination. And it seems to me that while judges could not give special weight to the views of churches simply because they were religious institutions, they certainly could consider churches as part of society as a whole, and as a significant part with respect to the tradition of marriage.

In that somewhat carefully defined sense, I see no problem with judges looking to how churches are dealing with gay marriages as part of a general inquiry into whether gay marriages are part of the broader tradition of marriage in this country. Of course, I wouldn't suggest that churches get to decide the issue--indeed, I would suggest that properly conceived, it should take only some churches, and not all or most churches, recognizing gay marriages before we have evidence of this connection between gay marriages and the broader tradition. But I wouldn't have a problem with judges recognizing that religious institutions are in fact important participants in this broader tradition, provided that is not to the exclusion of other important participants (e.g., such as secular employers).
7.7.2006 12:56pm
Not to sound repetitive, but while there may be a right to marry, the government has limited that right over the years to:
A) Only 1 person who is not already married.
B) A person who is of the opposite sex.
C) A person who is not related to you to some close degree (which is itself a secondary assumption of a strictly heterosexual basis to marriage)
D) A person of the same race.

(This is of course assuming consenting human adults as both parties, which is a logical assumption for any contract/covenant).

Now, one of those limitations has already been ruled unconstitutional. So the question I ask the pro-SSM crowd who also accept the rest of these existing limitations is, why is there some constitutional basis to toss out solely rule B (especially a basis that is equal or superior to the reasoning that invalidated D) that should not apply to the rest of the rules above?

The most common response I've seen is "I'm not like those people, which I have made a value judgement that they are morally wrong, I'm just gay/support gay rights". I doubt that the average libertarian would hold much support for that reasoning.

And again, I'm mildly pro-SSM. But any reasoning that validates SSM should also validate polyamorous and incestuous marriages, and find the only pro-SSM argument to be more standard Democratic nonsense that finds only the views that they agree with to be right.
7.7.2006 1:05pm
A question: if same-sex marriage is permitted, can the government have even a rational basis for prohibiting same-sex marriages between siblings? Between non-custodial parents and children? Yes, it's "icky," but we seem to be rejecting "ickiness" as a rational basis for outlawing anything.
7.7.2006 1:21pm

I think you have the argument turned around. Suppose my constitutional argument against (B) is simply that (B) does not sufficiently serve a sufficiently weighty state interest, and therefore should be discontinued.

Why does this argument automatically invalidate (A) or (C)? To address (A) and (C) using the same test, we would have to ask whether they sufficiently served a sufficiently weighty state interest. It is entirely possible that both (A) and (C) can pass this test, but (B) (and also (D)) cannot.

Or perhaps (A) and/or (C) cannot pass this test. But we simply don't have to decide those issues when applying the test to (B).
7.7.2006 1:22pm
You Know Who:
Dale: At the risk of false precision in an inherently fluid and discretionary area, I think we'd need well more than half the states recognizing gay marriages before the Supreme Court ventured an opinion that same-sex marriage is a fundamnetal right and thus that the remaining dissenting states could not exclude gay couples from marriage. If that's right, we are a very long way from any such decision.

How long? Most states have already enacted statutory bans on same sex marriage; many states have enacted constitutional bans on same sex marriage; many more have constitutional amendments (limiting marriage to a man and a woman) on the ballot in the near future; and most (if not all) of the ballot amendments will probably pass by comfortable margins.

These state level laws (which vary but typically define marriage as between a man and a woman and limit the benefits only to such couplings) will be difficult to reverse later on, even if some percentage of the population grows more liberal in its outlook on gay marriage.

Those waiting for change in people’s perceptions about marriage may be waiting a long time. And the constitutional amendments enacted now will do much to shape future generation’s perceptions of marriage later, or, at the very least, make it more difficult for future generations to re-shape marriage.

An irony is that the current drive to settle the debate about same sex marriage in court has made it easier to enact statutory and constitutional bans of same sex marriage today that will be difficult to reverse in the future (when the population may be more liberal).

7.7.2006 1:26pm

Sure. The argument would just have to depend on some other legitimate state interest, rather than "it's icky". In same-sex incest cases (or for incest in general, in my view), I think the best arguments are based on the state's interest in protecting children from sexual abuse (which actually applies to incest among adults, on both a norm-reinforcement theory and an anticipation theory).

But again, we need not decide these issues today, because clearly the "ick" factor simply is not our only consideration when determining family law.
7.7.2006 1:29pm
This resolves into a basic question that I don't think has been grappled with enough: why shoud libertarians support the concept of marriage at all? All it is is the government offering a bunch of goodies to people in order to get them to structure their relationships a certain way.

If all of Wombat's restrictions fall, what's left? The requirement that you marry (a) human being(s)? I'm not convinced-- I'm sure there are plenty of people out there who would want to marry corporations or other legal persons, and I bet that many corporations would just love that.
7.7.2006 1:31pm
You Know Who:

Actually, from the data collected by AEI, it seems like people's attitudes on gay marriage are changing pretty rapidly as these things go. Of course, that perhaps means doube-digit years before a majority favors gay marriage, rather than months or single-digit years. Still, from a broader historical perspective that may not seem like a long time.

Of course, you are right that current state laws and constitutions will provide some friction. But perhaps not too much--most state constitutions are not nearly as hard to change as the federal constitution.
7.7.2006 1:33pm
SAC (mail):

I think the best arguments are based on the state's interest in protecting children from sexual abuse (which actually applies to incest among adults, on both a norm-reinforcement theory and an anticipation theory)

Hold on - can you please spell out in more detail how legal theories based on "norm-reinforcement" and "anticipation" justify treading on the rights of consenting adults, in a way that doesn't generalize to other contexts?
7.7.2006 1:41pm

I think many libertarians could support civil marriage on a default-contract model. The basic idea would be to give people a low transaction cost way of getting pretty much the contract most of them would want, while allowing individual people to vary the contract as they see fit through explicit modifications. Call it the UCC model of civil marriage (indeed, we could even put it in the UCC).

Whether that approach could be extended to providing additional state benefits to marriages is a different question. I can't speak for strict libertarians on that issue. As a self-styled mild libertarian, however, I am fine with the state providing economic benefits to married couples insofar as married couples in turn lower other burdens that would de facto fall on the state (even if in a libertarian paradise, they would not).

So, for example, if marriage decreases the amount of money that the state would end up paying for Social Security and Medicare (which I think is quite likely), I'd be fine with the government paying people to get married in order to lower these entitlement costs.

Again, a strict libertarian would probably argue that this whole structure should go. But as a self-styled mild libertarian, I am willing to confine myself to the realm of what is plausible.
7.7.2006 1:42pm

To summarize, the norm-reinforcement argument would be that to allow adults to have sex with members of their family once they became adults would undermine the norm against having sex with members of their family while they are still children.

There clearly is a danger of generalizing this argument--for example, one could argue that all consensual sex among adults undermines the norm against sex with children, which in fact is probably true (see NAMBLA). So, to limit this argument, one would have to assess relative benefits and costs. For example, banning all consensual sex among adults would be a much greater burden than merely banning incest among adults. Conversely, incestual child abuse represents a disproportionately high percentage of overall child abuse. So, it is plausible that the balance of burdens and benefits flips when one moves from banning only incest to banning all consensual sex.

The anticipation theory is that adults (and other children, in fact) might attempt to abuse children in their families in anticipation of the ability to have legal sex with them once they become adults. This abuse could, of course, include actual sexual abuse, on the theory that the abusers could hope to not get caught before the child became an adult.

Again, I'm sure this argument could be generalized in all sorts of dangerous ways. Indeed, aside from thinking about sex, one could, for example, consider commercial relationships between family members, and how anticipation of such relationships might encourage bad behavior with respect to children. Again, though, we could consider relative burdens and benefits.

To summarize, the limited scope of these arguments does in fact depend on a few crucial conclusions about burdens and benefits in this specific area. Again, the most prominent of these conclusions would be that an adult incest ban is not a particularly high burden, and that incestual child abuse is a disproportionately large problem, such that in these circumstances, a rule of this nature is warranted.
7.7.2006 2:00pm
Bob Van Burkleo (mail):
Wombat, the reason b) is different is we have a great deal of evidence to indicate that there are citizens who can only reasonably be expected to want to build a life with someone of the same gender so B) leaves them with a selection pool of of zero, effectively proscribes them from getting state recognition of their marriages. As far as we know there are no citizens that are similarly proscribed by A or C, i.e. even though a few potential candidates have been removed from their pool they still have literally billions of other opposite gender candidates in it to search for someone to marry that is acceptable to both them and will qualify for licensing the state contract.

What has changed is the notion that 'b', like a and c, merely limits a citizen's personal choice when we now know which gender you are attracted to is an innate characteristics of the citizen that they can not be voluntarily changed in the vast majority of citizens.

Regulation vs proscription of recognition of a citizen exercising their fundamental right to marry.
7.7.2006 4:08pm
Bob Van Burkleo (mail):

Gay marriage proponents have to come up with some reason why gay marriage is a "fundamental right" but polygamy is not,

the polygamist already has a right to license the state contract of marriage, i.e. he can license it with someone he would actually like to marry - that he would like to marry MORE is obviously a different issue than being allowed to marry at all.

Contrast with the gay citizen who is being told that EVERYONE they might want to marry is proscribed. The are effectively being blocked from any reasonable right to marry anyone, let alone have multiple contracts or more than one spouse in the contract. Those are both totally different issues.
7.7.2006 4:13pm
IAmNotALawyer, I'm just an amateur. I'll note, however, that the court did recognize the right to marriage is fundamental, but it does not appear that the issue I raised in a previous discussion on the topic was addressed: that a marriage between a homosexual a member of the opposite sex may be inherently invalid ab initio. If the right to marriage is fundamental, but the option of heterosexual marriage would be inherently invalid, isn't "rational basis" for excluding gay marriage insufficient and "strict" or "heightened scrutiny" required?

I'm also bothered by the court's argument:
A person's preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State's interest in fostering relationships that will serve children best.
While a compelling state interest in the welfare of children is hard to argue, the compelling state interest in the birth of children is less solidly grounded; and sexual activity is only logically linked here to birth, not welfare. With that logic gap, one of the presented rational bases is badly undermined. (Perhaps a compelling Federal interest in the birth of children might be argued from the current structure of Social Security, but that's another matter.)

The rejection of the amicorum evidence about gay parenting is also bothersome, in that what the court characterizes as "common sense" is from the standpoint of science indistinguishable from "unconsidered prejudice". The experimental testing has been unable to find a difference between gay and straight parent pairs within limitations of measurement; presuming "common sense" is correct (or incorrect) is not rational. From the standpoint of the scientific method, there is at this time insufficient evidence to support either hypothesis. And, in that case, I can see no "rational" basis for calling the state interest "compelling".

I'll ignore the blather about legalizing gay marriage on an equality basis leading to polygamy; other discussion from the previously linked post seemed to cover that. I will note, however, that it would hypothetically increase the likelihood of inter-species marriage... provided such species would be sentient (EG: Vulcans, or gene-mod furry anthromorphs), and thus capable of contributing comparably to the welfare of a child. However, the whole can of worms that non-human biological (as opposed to corporate) persons would crack open would leave the marital questions only a very small nematode in the tin. Creation of a genetic hermaphrodite variant human (similar to Betan herms in Bujold's Vorkosigan series) would similarly throw a major monkey wrench into the law. Fortunately, both such possibilities look to be at least 50 years into the Fiction aspect of Science Fiction.
7.7.2006 4:16pm
Most states have already enacted statutory bans on same sex marriage; many states have enacted constitutional bans on same sex marriage; many more have constitutional amendments (limiting marriage to a man and a woman) on the ballot in the near future; and most (if not all) of the ballot amendments will probably pass by comfortable margins.

This point is well taken. There's a certain irony in it though, because while the factors you enumerate will certainly undermine a substantive due process claim under Glucksburg, those same factors may simultaneously strengthen a future Equal Protection argument for heightened scrutiny for gay Americans.
7.7.2006 4:17pm
logicnazi (mail) (www):
Thankfully, O'Connor gave a list of benefits that marriage might provide and in virtue of which is a fundamental right not to be denied in Turner v. Safley. Moreover, I have yet to hear a plausible argument about the purpose of marriage that would exclude gay people but include sterile inmates serving life without possibility of parole, a class presumably protected in Turner v. Safley.
7.7.2006 5:09pm
Hans Gruber (www):
"The polygamist already has a right to license the state contract of marriage, i.e. he can license it with someone he would actually like to marry - that he would like to marry MORE is obviously a different issue than being allowed to marry at all."

Please. Gays say they cannot marry how they want to marry, and polygamists say the same thing. In both cases the preference is denied. Your argument here is not all that different from the retort that gays CAN marry, they just have to marry somebody of the opposite sex, therefore no discrimination is occurring.

Which is worse off under the law, polygamists or gays, is a matter of opinion. Yours is that the polygamist can still marry a single person of the opposite sex and that this is a good substitute for polygamy. I'm sure most polygamists would disagree. And even if one accepts your premise, we're still talking about a difference of degree, not of kind. The preference for polygamy among polygamists is probably comparable to that of gays. As the saying goes, why would anybody choose a life subject to discrimination and, at least for polygamists, legal jeopardy?

And if subsitutes are good enough, why can't gays do with marriage on their own terms? Isn't a personal contract almost as good as a civil? If anything, the polygamists have the worse deal here, they can't technically live in peace--polygamy is still criminalized.
7.7.2006 5:17pm

There is a compelling interest in preventing congenital/birth defects caused by two close relatives marrying. That doesn't apply to two men marrying or two women marrying because such problems would never arise.


I would have thought sexual abuse would be far more prevalent in heterosexual marriages, yet the state has no compelling interesting in preventing heterosexual marriages.
7.7.2006 6:32pm
JPS3L (mail):
Prof. Carpenter:

I enjoyed reading your thoughtful analysis of yesterday’s N.Y. Court of Appeals decision regarding gay marriage. Your comments raised a few questions, however, that I would be grateful if you would address.

My first question concerns whether this topic is even justiciable, both because it lacks a judicially discoverable and manageable standard for resolving the issue and because Section 5 of the 14th Amendment would seem to empower the legislative branch to enforce the protections afforded by the liberty clause? My understanding is that the Court’s justiciability inquiries begin with the Carr standard, which states:

“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

Baker v. Carr, 369 US 186, 217 (1962).

As your analysis discussed, courts have struggled to articulate a meaningful definition of the “fundamental right” that same–sex couples are trying to obtain in the context of marriage. I suppose an initial question may be whether same-sex couples are arguing for state sanctioned legal unions that confer the same benefits as marriage or whether the argument is to change the definition of marriage itself to include same-sex couples? I raise this point because I believe that the marriage rights that the courts have previously dealt with have all involved one man and one woman who are not already related to each other. Indeed, the only marriage case that I am familiar with that dealt with a different formulation of marriage was United States v. Reynolds, in which the Court declined to extend Constitutional protection to polygamous couples. With either strategy (i.e. marriage functional equivalency or changing the definition of marriage altogether), the conundrum remains the same: how does a court contrive a legal standard that is broad enough to include same-sex couples while being narrow enough to exclude polyamory? It strikes me that if too broad a definition is adopted, polyamory and incest would be included; while too narrow a definition would impermissibly discriminate against polygamous and incestuous couples. Put another way, the court could not announce a judicially discoverable and manageable standard that would meaningfully distinguish same-sex marriage from polyamory and incest. Justice Scalia alluded to this problem in Casey.

“The right to abort, we are told, inheres in “liberty” because it is among “a person's most basic decisions;” it involves a “most intimate and personal choic[e]:” it is “central to personal dignity and autonomy;” it “originate[s] within the zone of conscience and belief;” it is “too intimate and personal” for state interference; it reflects “intimate views” of a “deep, personal character;” it involves “intimate relationships” and notions of “personal autonomy and bodily integrity;” and it concerns a particularly “ ‘important decisio[n].”…But it is obvious to anyone applying “reasoned judgment” that the same adjectives can be applied to many forms of conduct that this Court has held are not entitled to constitutional protection-because, like abortion, they are forms of conduct that have long been criminalized in American society…Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally “intimate” and “deep[ly] personal” decisions involving “personal autonomy and bodily integrity,” and all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are proscribable. It is not reasoned judgment that supports the Court's decision; only personal predilection.”

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 983-984 (1992) (Scalia, J. Dissenting).

Thus, it would seem plausible that a conservative court may very well hold an issue like same-sex marriage to be non-justiciable precisely because of the difficulty associated with articulating a judicially discoverable and manageable standard. But even if a court articulates such a standard (however problematic it may be), such as Massachusetts did, there is still another argument to support the non-justiciability of this issue. The Carr Court also stated that “the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government” would serve as another justification for holding an issue non-justiciable. Thus where an issue presents a question that both the legislative and judicial branches share a responsibility for resolving, the Court should not decide the issue in a political vacuum that ignores the input of the co-equal branches of government. In this case, the Constitution states, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const. amend. XIV, Sec. 5. Thus, Congress has the power to enforce the requirements of the due process clause and equal protection clause of the 14th Amendment, and not the Court alone. To the extent that Congress has already defined marriage as, “the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife,” then is seems that a Court decision to the contrary would express a lack of respect for the coordinate legislative branch. 1 U.S.C. Sec. 7. (While I understand that the NY decision raised a state constitutional issue, this question is designed to inquire as to the constitutionality of a SCOTUS decision that discovered a fundamental right to same-sex marriage.) Whether the Court were to approach its justiciability analysis under the judicially discoverable and manageable standard rubric or according to it concern for respecting the constitutional obligations of a coordinate branch of government, it would seem that there is a strong argument that same-sex marriage raises a political question that is best left to the elected representatives.

My second question may actually touch more upon your forthcoming equal protection analysis, though I thought I would ask the question anyway because it also applies to the substantive due process issue. Where rational basis analysis is employed, does a state’s obligation not to discriminate against the perceived fundamental rights of other citizens serve as a rational basis for not amending a questionable statute? To the extent that the question of legislative animus towards a demographic minority is resolved at the time of legislative enactment, then it would follow that state statutes defining marriage before the notion of same-sex marriage was even contemplated by society are not facially invalid as serving an improper purpose. Moreover, even if the statute still needed to pass the rational basis test, the societal norms that justified the statute at the time of its adoption should be sufficient to pass this test. Indeed, the same concepts of family stability desired for the purpose of procreation and childrearing that informed the Supreme Court’s Reynolds decision should be sufficient to justify a state’s decision to define marriage as being between a man and a woman. Additionally, the rational basis inquiry is inherently one of legislative intent; it is designed to ascertain whether the enacting legislatures had a legitimate interest in achieving an objective and whether the means sought to achieve that end were rational (i.e. not arbitrary and capricious). If we were to test old statutes against current notions of rationality, in view of current viewpoints, then we will have eviscerated the contribution of legislative intent to judicial review. Thus, testing elderly statutes against contemporary norms for purposes of satisfying a rational basis inquiry would appear to contradict the very purpose of the rational basis test in the first place.

The question, it seems to me, would then become what obligation the state has to amend a statute that arguably trespasses upon a group’s fundamental rights? Because the Supreme Court has not yet declared homosexual conduct or same-sex marriage to be a fundamental right or held gays and lesbians to be a suspect class (See generally, Romer v. Evans; Lawrence v. Texas), then wouldn’t a state legislature be justified in declining to broaden the definition of marriage to include same-sex couples for fear that such a law would discriminate against other non-traditional forms of marriage (i.e. polygamous and incestuous couples)? In other words, absent an express judicial finding that gay and lesbian fundamental rights were indeed being chilled by current statutory definitions of marriage(e.g. Massachusetts), if a state were to change its definition of marriage to include same-sex couples but not other non-traditional marriage formats, then wouldn’t the state be leaving itself open to a Mormon challenging the newly constituted statute as being underinclusive for failing to include polygamous couples? After all, polygamy has a stronger tradition in American and cultural history than does same-sex marriage. Why would a state be rationally justified in protecting same-sex marriage while excluding polyamory? (Is there evidence that children do better in a same-sex marriage than in a polygamous marriage?) Unless a court has already distinguished same-sex marriage as being a fundamental right while contemporaneously rejecting the idea that polygamy does not enjoy similar protection, then it seems to me that any legislative broadening of the definition of marriage would lend itself to an equal protection challenge. However unlikely, the possibility of such a challenge would also appear to provide a rational basis for states to not expand their statutory definitions of marriage.

At any rate, those were the questions that I had. Any thoughts that you would share regarding these questions would be fantastic.

[To the extent that readers feel I am unfairly trying to link same-sex marriage to polygamy or incest for the purpose of further impugning gay marriage, that is not the case. Nor am I building a slippery-slope argument. My purpose has been to buttress my argument that (i) a legal inability to meaningfully distinguish same-sex marriage from polygamy with an objective legal standard could lead to a conclusion that the issue is not justiciable and (ii) to argue that amending state laws to include same-sex marriage while continuing to exclude polygamy could violate the guarantees of equal protection. In the context of the latter argument, I have also argued that avoiding an equal protection challenge to new state statutes that provide for same sex marriage while excluding polygamy provides a rational basis for not changing existing laws. I have tried to stay away from subjective characterizations altogether, both because they tend to inflame an already emotional topic and because they are not a factor in the Court's analysis.]
7.7.2006 7:09pm

I'm not sure I understand your comment to me. I was drawing no connection whatsoever between gay or straight marriages and child abuse.

But I think one point is worth clarifying. One of the limiting principles for the adult incest arguments depended in part on the idea that incestuous child abuse was "disproportionate". And to be sure, it probably would reduce incestuous child abuse somewhat to prohibit all marriages, insofar as that might break apart families in general.

But the other limiting principle looked at the burdens, or costs, associated with the rule. And here I think the costs associated with a general ban on marriage would be extraordinarily high. In contrast, our ban on incestuous marriages is obviously far less costly, and handily is targeted far more closely at the particular interest in question.

Incidentally, all this is just a sketch of an argument. The point is just to show that each of these issues is subject to many different considerations, and therefore there is no reason to assume that knocking out one of the many possible considerations--such as pure traditionalism, or the "ick" factor--would lead to the exact same result in each case.
7.7.2006 10:50pm
Bob Van Burkleo (mail):
Hans, that doesn't make sense to me as the difference is clear cut.

Can a potential polygamist license the contract with someone they would actually want to 'build a life with?' YES

Can a gay citizen outside of Massachusetts? NO.

In one case the state is regulating the expression of a fundamental right by a citizen, the other they are effectively proscribing it. The situations aren't remotely similar.

As to your idea that polygamists wouldn't think they had access to marriage, you are overlooking that the VAST majority of US polygamy is biblical/middle eastern in nature; they start out with ONE wife, and then marry more. So yes even a polygamist would have to begrudgingly admit they were being given license to the civil contract of marriage, license the gay citizen doesn't have at all.

There are no people known that can ONLY be married to multiple spouses, e.g. I loved my 2 wives, but one died so now I can have no feeling for the remaining one. There are people who can ethically only marry someone of the same gender.
7.7.2006 11:23pm
The Divagator (mail) (www):
JPS3L, This is a brilliant piece of work. Thanks much for putting it together. It will give me much to ponder. Regards.
7.8.2006 3:04am
hjgu (mail):
7.9.2006 9:52pm