For gay-marriage litigants, July has been the cruelest month. Prior to today’s 5-4 Washington Supreme Court decision in Andersen v. King County, there were two substantive state marriage decisions against them (New York and Connecticut), one quasi-substantive federal decision against them (the 8th Circuit, whose broad dicta went beyond the state constitutional ban at issue), and three procedural decisions against them upholding the propriety of ballot initiatives (Massachusetts, Tennessee, and Georgia).
But this may turn out to be the hardest day of all. Andersen is the most careful, closely reasoned, and comprehensive judicial opinion to date rejecting constitutional claims to gay marriage. It is much better, as a matter of conventional legal analysis and craftsmanship, than the New York Court of Appeals decision in Hernandez v. Robles rejecting gay-marriage claims a couple of weeks ago. Since the principles and arguments on this issue from state-to-state, and even in the federal courts, are not that different, the Washington decision will deserve close attention from other courts. Among the courts next to consider claims for gay marriage, the New Jersey Supreme Court in particular should grapple with Andersen.
There is a bright spot in Andersen for gay couples. The court practically invites future litigation and legislation resulting in a Vermont-style civil unions resolution, granting the benefits and protections of marriage to gay couples without the status of “marriage.” This seems the likely direction for future litigation and legislative action in Washington and elsewhere. I'll say more about this below.
Since I addressed many of the constitutional issues in earlier posts reacting to Hernandez v. Robles I won’t go over all that territory again. Instead, I’ll address here some of the distinctive features of the Andersen opinion.
(1) While there was some speculation about possible political motivations for the 17-month period to issue the opinion, it seems in retrospect that the justices were simply taking the time to be very careful on an opinion they knew history would judge them for: writing and re-writing sensitive passages, negotiating with each other, trading drafts among the chambers, waiting to see how other courts might come out. The close result, and the opening paragraphs in particular, chiding not just the dissents for the usual abandonment of legal principles but also the concurrence for needlessly extending the opinions, suggests a court that was sharply divided over how to proceed and struggling to reach broader consensus. Yes, judges can be political and Machiavellian; but sometimes they’re just doing their job as conscientiously as they can. In general, I’d be wary of the conspiracy theories about courts that spring up from the populist resentment of judicial activism.
(2) Unlike the New York Court of Appeals, the Washington court dealt substantively with the question of suspect-class status for gays under equal protection principles. It also avoided the bizarre contextualized analysis of the issue the New York court gave us, and instead dealt with the question whether gays generally constitute a suspect class.
The Andersen court is more confident about the elements of the suspect-class analysis (history of discrimination, immutable and usually irrelevant trait, and political powerlessness) than I think is justified, but its rejection of heightened scrutiny is certainly defensible under the precedents. It acknowledges, as every court addressing the issue has, a history of discrimination against gays. But it says the trait defining the class is not immutable, and seems to hold that immutability is essential to heightened scrutiny. Both halves of this holding are questionable. The Andersen court isn’t clear what it thinks the “defining trait” of this class is – homosexual acts or homosexual orientation – and this ambiguity muddies things a bit. If homosexuals acts are the “defining trait,” it’s not immutable; if homosexual orientation, the best evidence is that it is immutable or very close to immutable. It’s also not clear that immutability is even required, as opposed to one factor among many to be weighed, in the analysis of which groups get heightened scrutiny.
The Andersen opinion also shows how legislative advances for gays are a double-edged sword in litigation over marriage. Some courts upholding gay-marriage or civil unions claims have cited legislative progress – eliminating sodomy laws, making adoptions more widely available, passing employment non-discrimination laws – as evidence that times and attitudes are changing and as support for the idea that the legislature has no very good reason to withhold this last bit of progress from them.
In Andersen, by contrast, the court cites legislative progress as a reason to deny gays suspect-class status, on the dubious theory that a truly powerless group wouldn’t have made such democratic progress. This part of the analysis is questionable, since historical work by William Eskridge and others has shown that groups tend to get heightened scrutiny only after they’ve made legislative progress. And once they’ve gotten suspect class status, they don’t lose it simply because the legislature begins to take their concerns seriously.
I have always thought there was room for a good suspect-classification argument, but there’s no doubt the weight of precedent is on the side of the Andersen court.
(3) On whether the plaintiffs have a fundamental right to marry, the Andersen opinion is also better than Hernandez. It avoids directly resolving the level-of-generality problem, i.e., is the issue a “fundamental right to marry” or a “fundamental right to marry a person of the same sex”? Instead, it resolves the issue in good lawyerly fashion by looking closely at the Supreme Court’s cases dealing with the fundamental right to marry, including cases the New York Court of Appeals ignored, like Turner v. Safley (involving marriage for prison inmates). Andersen reads these cases as linking marriage to procreation. That’s not the only way to read the precedents and it doesn’t make much sense of the modern conception of marriage, but as an interpretation of doctrine it’s defensible and perhaps the best view.
(4) Once it rejected any reason to apply heightened scrutiny to the exclusion of gay couples from marriage, the Andersen court applies a standard rational-basis review. The court rightly describes this form of review as “extremely deferential” and granting the state “nearly limitless” power to make policy as it sees fit. Here, the court does a much better job than did Hernandez explaining why it’s constitutionally rational for the state to create a special status for heterosexual couples. The underinclusiveness and overinclusiveness of the classification in relation to the claimed interests – promoting procreation and child welfare – are very poor policy reasons to exclude gay couples from marriage, and the court implicitly recognizes this at several points in the opinion. But they’re sufficient for traditional rational basis review, absent some good indication of animus. The court explains – unlike the New York court — that the issue is not whether excluding gay couples from marriage advances these interests in any way (the exclusion of gay couples does not plausibly advance them) but whether including straight couples in marriage advances these interests (it clearly does).
(5) Andersen quickly, and I think correctly, dismisses the claim that due process “privacy” interests command the inclusion of gay couples in marriage. Marriage is not a purely private matter, though important aspects of the marital relationship are private and it is an intensely personal experience for couples and families. Marriage is full of public benefits and privileges that make it a public investment and a matter of public concern.
(6) The Washington opinion also rejects the sex-discrimination argument much more convincingly than did the New York court. Andersen does as good a job as I’ve seen in a judicial opinion of refuting “the Loving analogy,” which suggests that excluding same-sex couples from marriage is constitutionally analogous to excluding interracial couples from marriage. Moreover, the opinion deals not just with the formal aspects of the sex-discrimination argument (marriage laws classify on the basis of sex) but also with the sociological claim (that marriage laws have the impermissible purpose or effect of perpetuating gender stereotypes). The sociological claim about gender stereotypes seems a crabbed view of marriage, its public purposes and effects.
(7) Finally, there’s a potentially significant passage in the middle of the opinion that might get overlooked on a first read:
We do not dispute that same-sex couples raise children or that the demographics of "family" have changed significantly over the past decades. We recognize that same-sex couples enter significant, committed relationships that include children, whether adopted, conceived through assisted reproduction, or brought within the family of the same-sex couple after the end of a heterosexual relationship. We do not doubt that times have changed and are changing, and that courts and legislatures are increasingly faced with the need to answer significant legal questions regarding the families and property of same-sex couples. (Citations omitted).
We are also acutely aware, from the records in these cases and the briefing by the plaintiffs and the amici supporting them, that many day-to- day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples. A married person may be entitled to health care and other benefits through a spouse. A married person's property may pass to the other upon death through intestacy laws or under community property laws or agreements. Married couples may execute community property agreements and durable powers of attorney for medical emergencies without fear they will not be honored on the basis the couple is of the same sex and unmarried. Unlike heterosexual couples who automatically have the advantages of such laws upon marriage, whether they have children or not, same-sex couples do not have the same rights with regard to their life partners that facilitate practical day-to-day living, involving such things as medical conditions and emergencies (which may become of more concern with aging), basic property transactions, and devolution of property upon death.
Lest you think these are just crocodile tears from a gutless court delivering gay families to the tender mercies of the heartless legislature, the court continued:
But plaintiffs have affirmatively asked that we not consider any claim regarding statutory benefits and obligations separate from the status of marriage. We thus have no cause for considering whether denial of statutory rights and obligations to same-sex couples, apart from the status of marriage, violates the state or federal constitution. (emphasis added)
This qualification is repeated at the end of the opinion, along with another recitation of the ways the denial of marriage harms gay families and with a strong suggestion that “the legislature may want to reexamine the impact of the marriage laws on all citizens of this state.”
To the state legislature, the message seems to be this: “Get moving on addressing the hardships faced by gay couples and their children, some of which we’ve listed for you. You don’t have to give them marriage and maybe not even all of the rights of marriage, but something needs to be done. If you don’t act, we might.”
To gay-marriage litigants, the message seems to be this: “Go to the legislature and see what can be done about the sorts of problems you’ve identified and that we agree exist. If the legislature is unresponsive, come back to us not with a claim for the status of marriage, but with a remedial claim for the benefits and protections of marriage for your families.”
My guess is that this dual message was necessary to get the five votes needed to uphold the state’s marriage laws.
I’ve said before that courts confronting gay-marriage claims may now see three choices: (1) ordering full marriage (Massachusetts); (2) denying the claims (New York); and (3) compromising on civil unions, with instructions to the legislature to decide on implementation (Vermont). Choice #3 involves many complications and permutations.
Though superficially opting for #2, the Washington court would like very much to give #3 a try. It’s a sensible direction for litigants, legislatures, and courts.
Related Posts (on one page):
- The hardest day of the cruelest month:
- Washington High Court Upholds Exclusion of Gay Couples From Marriage:
- The Road to Gay Marriage After New York:
- Is it rational to exclude gay couples from marriage?
- The New York Marriage Decision and Equal Protection:
- The New York Marriage Decision, Due Process, and Defining Fundamental Rights:
- New York High Court Rejects Gay Marriage Claim:
And Hawaii and Alaska.
Suppose, for sake of argument, the legislature passed a law that said, "Notwithstanding any provision of this state's criminal code to the contrary, it's OK to punch people named Frank(*) in the face." The rationale for the law is that it will encourage the public, by the example of all the poor bruised Franks out there, to remember to weave when someone tries to punch you in the face. Franks are not a suspect class, of course. Under the extremely deferential form of rational basis review adopted by the majority here, is there any reason this law violates equal protection?
(* Sorry to the Franks out there; I picked this name entirely arbitrarily.)
In any case:
1. You can change your name from "Frank" if you want.
2. Your name isn't tattooed on your forehead.
3. Do you honestly think that sexual orientation is as irrelevant to behavior and public policy as a first name?
What you really mean -- and what I really believe happened -- is that they were waiting for a negative result from another court. Four courts had found FOR same-sex marriage (activists all, no doubt). Only Arizona had disagreed and it didn't even hear arguments. The Washington court HAD TO wait for someone else to take the leaps of illogic that the NY court did. Up until two weeks ago, they were unwilling to do so, perhaps out of embarrassment.
Of course, it would probably violate the free exercise clause for the state to REALLY ban someone from getting married... it can only choose to not recognize the marriage civilly. As Homer Simpson realized... anyone can get married if they can find a minister to do it.
IMO, today's ruling demands that a law denying marriage licenses to the elderly and infertile be found Constitutional. Yet, I find it hard to believe that courts would do so - and would instead be left to logical gymanstics to distinguish the two cases.
Do you really think the law would be UNconstitutional? If so, which provision?
But I'd tweak your analysis in the following respects...
(2) Perhaps you give the justices too much credit by suggesting they are consciously navigating the orientation-conduct distinction. My hunch is that they are conflating orientation with conduct and are saying they can't decide whether orientation is immutable. If that's the correct reading, they deserve more criticism than you level at them because they are not only ignoring the best available scientific evidence but are also disregarding and thereby delegitimating the self-reported experiences of the vast majority of gays and lesbians.
(3) I wouldn't say Anderson has the better reading of Turner v. Safely. If a state legislature decided to take the procreation excuse seriously and banned marriages by couples over age 60, courts would fall all over themselves to find that ban on non-procreative marriage to be a prima facie infringement of the fundamental right to marry. (And courts would have to use a fundamental rights theory because age discrimination doesn't trigger heightened equal protection scrutiny.)
(4) First, I agree that true rational basis is very deferential, but neither Anderson nor Hernandez adequately confronted the reality that neither Romer nor Lawrence can be justified under standard rational basis review. (E.g. Protecting religious dissenters by banning gay-rights laws was obviously rational, if grossly overinclusive, in Romer.) Those precedents establish that the standard of review is a bit more probing than regular rational basis review, as Justice O'Connor correctly admitted in her Lawrence concurrence. That factor, though not mentioned by the Massachusetts court, makes its putative rational basis decision more defensible than it otherwise would be.
Second, the Anderson plurality is incorrect to say it must find only a rational basis for the marriage law. That ignores what the plaintiffs challenged. The court has to find a rational basis for the classification that the plaintiffs have challenged. That marriage helps procreating straight couples isn't enough because the court also has to identify the rational basis for the exclusion of same-sex couples. Otherwise, the court's opinion is simply non-responsive. Under deferential rational basis review, however, the justification is something like efficiency--i.e. preservation of state resources by targeting them toward the procreating couples. That step is missing from both Anderson and Hernandez. But, of course, efficiency may be insufficient under the more vigorous rational basis review that Romer and Lawrence require. (See above)
(6) My major disagreement, as always, is with your dismissal of the sex discrimination argument. Justice Bridge got that one right in her dissent. Counterarguments reject the sex argument only by reconstructing Loving v. Virginia into a group-based, Marxian extravaganza with no basis in either the Loving opinion itself or the broader body of our highly formalistic equal protection law. See, e.g., Adarand Constructors v. Pena, in which the Court required strict scrutiny of race classifications in affirmative action programs, even though they obviously designed to achieve group-based equivalance, not promote "[Black] supremacy."
There is no such fundamental right. The state is not obligated to legally recognize any form of inter-personal relationship.
But the fact that we as a society choose to officially recognize and license one type of human relationship, the unique male-female intimate relationship, in no way obligates us to recognize other types of relationships, let alone equate other types by calling them the same word "marriage".
If you are correct about sex discrimination, then both Lawrence and Limon were also examples of sex discrimination. Yet, neither SCOTUS nor the Kansas Supreme Court said so.
Opposite-sex relationships are fundamentally different from same-sex relationships; it is perfectly reasonable for our laws to recognize that fact.
Opposite-race relationships are fundamentally different from same-race relationships; it is perfectly reasonable for our laws to recognize that fact.
Sorry.
In brief, the author argues from institutional economics that marriage, as an institution, has evolved a set of rules to accomodate the competing incentives of males and females in terms of both mutual interaction and procreation. As such, he argues, it may be unwise to expand the institution of marriage to cover same-sex couples who don't face the same set of incentives (see, e.g., the comments of Andrew Sullivan and other gay marriage advocates that gay men in committed relationships don't require the same levels of fidelity as opposite-sex couples often do); same-sex couples may not be well served by such rules. He further argues that expanding the current institution of marriage to include same-sex couples may weaken the rules designed for opposite-sex couples as same-sex couples seek legislative and/or judicial modifications of those rules to better fit their own needs.
Certainly, this argument would carry much greater weight in the pre-no-fault-divorce era, but it has at least the air of plausibility to it. Am I missing something? I'd be interested in hearing arguments on either side, and, no, by argument, I do not mean allegations that I or the author of this piece is a raging homophobe. Dale, I would appreciate your insight as well, should you be so inclined.
They are able to marry subject to the exact same limitations as everyone else.
And of course, the ability to procreate is not the only distinction between same-sex and opposite-sex couples. There's nothing wrong with society's laws recognizing the fact two different things are different. We are under no obligation to pass laws stating that apples are oranges.
Lawrence wasn't an equal protection decision, so it says nothing about the nature of the discrimination one way or another. (Maybe you meant Romer?)
At any rate, if a court can invalidate a statute on (regular or intensified) rational basis grounds, it need not even reach the question whether the classification triggers intermediate or strict scrutiny. SCOTUS clearly doesn't want to openly embrace full heightened scrutiny for sexual orientation. But the Court has also never squarely said sexual orientation triggers only rational basis and, more importantly, has never offered any justification or even discussion of that question. As I read the cases, the question remains open.
Ultimately, I think sex works within existing equal protection principles, but sexual orientation doesn't, because of the orientation-conduct distinction.
Tolerance is a good libertarian virtue. Celebration is hive-think. Guess which one is over-playing ones hand?
Why am I permitted to marry, but my next door neighbor who is gay cannot if neither of us is willing or able to procreate?
The procreation arguemnt is bunkum.
Granting marriage rights to same-sex couples is not "celebration." The government need not applaud gay couples or even morally approve of them; it merely needs to grant them equal access to marriage.
One thing that makes a person human is the ability to put oneself into someone else's shoes and see what the world is like from that person's point of view.
A gay man's right to marry a woman, or a gay woman's right to marry a man, is valueless. "Editors": if you were gay, what would you think of the right to marry someone whom there was no possibility you could love?
The law is nothing if it lacks empathy. I don't mean sympathy. I mean empathy.
They don't have to be the same thing. The underlying rationale (or in this case lack thereof) behind the two arguments works with equal weight.
That construction only works in the abstract. In the flesh and blood world, I should have the exact same rights as my sister. If she can marry Fred, I should be able to do so, as well.
Apparently, not.
The procreation arguement is bunkum.
If that's the case, then the most common expression of the 'equal protection' argument -- that gays cannot marry those they love, while straights can -- is also fundamentally invalid, since the state doesn't care if you love (or even like) the person you're marrying.
Or do these evasions only count when they're in favor of gay marriage?
A court is not required to reconcile its decision with a contradictory decision that exists only in the hypothetical.
Tinmanic:No possibility you could love, or no possibility you could have any sexual interest in?
The point is that there are different categories of discrimination, and accordingly there are different methods of acceptable redress. Gender discrimination, for example, is not directly comparable to racial discrimination. Racially segregated restrooms and locker rooms are an abomination. Do you really want to make the argument that therefore all public restrooms should be unisex? As a male I am skeptical that if I insist on showering in the women's locker room at my local health club that I will be hailed as a new Rosa Parks. Racially segregated athletic leagues were a travesty. Is that really a good reason to open up the WNBA to guys like Shaq?
Rather than make easy and facile comparisons ("Substitute 'woman' for 'black'", "Substitute 'gay' for 'black'", etc.) the energies of advocates of gay marriage would be better spent in explaining how exactly a decision like Loving v. Virginia is an analogue for gay rights.
This ignores a critical point. Both those cases were decided based in part on the Constitutions that applied to them. Neither of them were dealing with a Constitution that included the Equal Rights Amendment.
The dissent clearly ripped the plurality opinion for completely ignoring that. Federally, there is not the same level of sex-based protection. But in Washington State, they clearly have precedent that making sure that the genders are treated equally outweighs state interest in maintaining something that discriminates.
In Washington state, if not federally, the logic that if Adam can marry Eve, but Amy cannot, for the sole reason that Amy is a woman, with no other factor different, then it is unconstitutional sex discrimiation, has to be taken into account, and it was utterly ignored.
For the same reason that Loving, which applied marriage to the (essentially, newly) protected race class, shot down "everybody has the same restriction to a part of the pool", Anderson should have done the same given the heightened requirements of the Washington constitution.
So why didn't it?
I'll concede that it's possible to love someone - although not in the same way - regardless of that person's gender. But a vast majority of people will tell you that sexual attraction is a vital component of a happy marital relationship. And we should maximize people's happiness unless there's a good reason not to.
Are you arguing for seperate but equal restrooms? Because I can tell you most men's rooms are anything but equal to women's restrooms. Nor is very fair for the women to wait in a large line, when the men's room is practically empty. Many universities have gone to unisex bathrooms without problems, so I'm not sure what value the current archaic system provides.
For the same reason that Loving, which applied marriage to the (essentially, newly) protected race class, shot down "everybody has the same restriction to a part of the pool", Anderson should have done the same given the heightened requirements of the Washington constitution.
So why didn't it?
Again, gender discrimination is not entirely comparable to racial discrimination. Banning restrooms or showers segregated by race does not require banning restrooms or showers segregated by gender.
Secondly, is the gay marriage issue really about gender discrimination or discrimination against sexual orientation?
Why not allow men to use the women's restroom in that case when the men's is full? Why not allow men to use the women's shower facilities when theirs is full or out of commission? I feel pretty comfortable with legislation that outright bans racially segregated locker rooms. Do you feel comfortable banning health clubs from having locker rooms segregated by gender?
Why restrict men from entering into the WNBA or women's professional tennis? It's true that the end result be would be that the "women's" leagues would be filled with also-rans who couldn't cut in the NBA, PGA, men's tour, etc. but isn't that better than overt discrimination?
Issue: Many states allow non-adults to marry - perhaps subject to parental approval, although not always. One state allows same-sex people to marry; one allows them civil unions. Admittedly, no state allows polygamy. And to my knowledge, every state allows you to marry relatives if they're far enough removed (i.e., second cousins).
Simply put, people in every state have different rights than people in every other state. You cannot simplify things so much.
I agree. And if Fred can marry my sister, I should be able to do so as well.
Case closed, I guess . . . right?
Wow--this is a lot of fun.
As a policy matter, I don't have a huge problem with letting incestuous couples get married. I think it will have almost no effect on the rate of actual incest (social taboos will have a stronger effect here, anyway). I'd rather regulate consanguinity problems directly by outlawing procreation between very closely related people, than with such distant factors as a marriage exclusion. Also, keep in mind that the actual rate of birth defects is not that much higher than it is for many existing married couples with a heightened rate of genetic disease -- I think the increase in risk is on the order of 5-10%.
So I think your reductio is less absurd than you might wish. Nevertheless, I think there are valid constitutional reasons not to extend constitutional protection to incestuous couples (the immutability issue being key), but that is different from the policy issue.
Under the latter, less protective approach, the analogy to segregated restrooms still fails. Restrooms either are or can be made substantively fungible, with only de minimis differences, in the way that VMI and the new Virginia Women's Leadership Institute could not. Very few people--straight or gay--would say that the difference between marrying a man and marrying a woman is de minimis. Sexual attraction is too central to marriage for such a claim to succeed. Straight defenders of Anderson and Hernandez wouldn't make that argument if the roles were reversed, opposite-sex marrage was illegal, and they were told there was no sex discrimination because everyone was allowed to marry a homosexual lover. The sex of one's spouse isn't fungible as a toilet seat is. And because it isn't fungible, it is sex discrimination to permit men to marry only one sex and women to marry only the other, just as it was sex discrimination to steer men to one military school and women to the other. Again, JEB suggests not even this approach is available and that the equal application defense is simply not a part of sex equality law. (By invalidating the VMI/VWIL distinction, the Court did not have to decide the question whether separate and truly equal would be permissible in sex equality law.) See Stephen Clark, Same-Sex But Equal: Reformulating the Miscegenation Analogy, 34 Rutgers L.J. 107 (2002).
A more useful analogy is the rare attempt by a court to award custody of children, whenever possible, to a parent of the same sex as the child based on some role-modeling theory. When a mother is told she cannot have custody of her son because they are not the same sex or a father custody of his daughter, the correct answer is that the custody rule is a sex-based classification, subject to skeptical scrutiny (and is probably invalid as sex stereotyping). I'd be surprised to see a court trot out the equal application defense in that situation and uphold under rational basis review.
And, yes, courts do have an obligation to consider how the principles they adopt in one case would work when generalized to others. That is so because courts have an obligation to offer impartial, reasoned, and consistent decisions, not ad hoc judgments that are, however subconsciously, influenced by the personal political preferences of the judge. Applying general principles is one strategy for minimizing the influence of those preferences. If the "equal application" defense applies only to cases touching on sexuality, it is unprincipled and is inconsistent with the idea of the rule of law, to the extent we can still hope to achieve that.
In the New York Court of Appeals' decision, however, I'm willing to say that something worse was going on. Some of the legal propositions in the plurality opinion are so clearly incorrect--like the bizarre idea that suspect-class status is situational--that it is more than subconscious inconsistency or honest mistake about the law. I would literally give a third-year law student about a C- if she produced that opinion as a work product because some of the legal mistakes are so blatant. Coming from the Court of Appeals, however, I don't believe those are mistakes; I assume they are deliberate manipulations. And my objection is not principally to the result. There is a strong argument that the issue of same-sex marriage should be left to the democratic process. But however open I am to that result, I can't square it with generally applicable principles of equal protection law, whether one takes the sex view or possibly even a sexual orientation view. Nor did the New York plurality persuasively square it with equal protection law. As I see it, Judge Smith began with the result he wanted--deference to the political process--and worked backwards, producing an opinion that is transparently manipulative and result-oriented. That's called conservative judicial activism, and it undermines the rule of law just as much as liberal judicial activism can. It also means lesbian and gay New Yorkers have not yet had a fair day in court on this issue and have little obligation to accept Hernandez as a correct, legitimate, or final statement of law.
In fact, it seems that the question of immutability in this context is a red herring. You're characterizing my hypothetical desire to marry my sister as incest-orientation, a characterization that strikes me as tendentious, value-laden language. Why is it not just a manifestation of my heterosexuality and of my desire to marry a person I love? Why do you have to bring your pre-conceived notions of sexual morality to bear on my choice of a partner?
As to the question of barring reproduction between incestuous couples, your proposal is nothing if not overinclusive and underinclusive: it ignores the far greater number (though lower percentage) of children with birth defects born to non-consanguinous couples and would prevent--as you suggest--the 90-95% of consanguinous couples who would not produce defective offspring from reproducing. How is that not unconstitutional? A more narrowly tailored approach would surely be to require all couples to undergo pre-natal testing and abort defective fetuses, no?
Your servant in the relentless subjection of human life to the rigors of logical reasoning.
Perhaps they should. The Constitution does, at the very least, outlaw criminal punishment based on "corruption of blood"--a kind of kinship-based discrimination. And I'd be willing to say kinship, like illegitimacy, is sufficiently non-volitional to satisfy any immutability-type requirement that may exist. (Dale is correct that the Anderson court overemphasized the existence of such a requirement.)
On the other hand, it may be that there is very little history of kinship-based discrimination (post the corruption-of-blood era) to justify strict scrutiny. One also would be hard-pressed to say--generally--that people with relatives face animus or prejudice that prevents their interests from being fairly addressed in the democratic process. (To ask whether would-be incestuous spouses would face animus, which they would, would commit the same mistake the New York Court of Appeals did--treating the suspect-class inquiry as contextual or situational.) Compare Massachusetts v. Murgia (age is not a suspect trait because people expect to pass through all stages of the life cycle and thus can be expected not to discriminate unfairly on the basis of age). Lots of people have relatives and even siblings, so why would they support a law that *unfairly* discriminates against people with relatives? And so far as I know, there is no public stigma attached to having a sibling. So probably "no" is the answer to whether kinship-based classifications trigger heightened equal protection scrutiny.
Of course, none of this has anything to do with sex, sexual orientation, or same-sex marriage, except for your hope to draw an analogy between same-sex marriage and incest as a scare tactic. The mistake is to take something that works as a TV sound bite for popular consumpation and to try to assert it as a credible equal protection argument. In other words, you should more wisely choose your forum for incest-baiting.
But I will give you this: things are different outside the equal protection context. Ironically, it would seem to me that the Anderson and Hernandez courts, if principled, would have to subject your ban on incestuous marriages to strict scrutiny under the fundamental right to marry, since those courts have said the critical question for applicability of that constitutional right is whether the relationship in question is procreative, as an opposite-sex, sibling marriage could be. (In my view, however, the fundamental rights argument fails here as well as in the case of same-sex marriage, but for completely different reasons.)
Thanks for your thoughtful reply to my hypothetical. It was not my intent to engage in "incest-baiting"; rather, I was simply highlighting the inanity of much of the thread that preceded my post. One would think that, after Eugene's thoughtful post a few days back about the problem with the "everyone should have the right to marry the person they love" argument, commenters would at least think twice about asserting positions that lead logically to results they might not endorse. But no, the general trend seems to run toward uttering inanities such as, "In the flesh and blood world, I should have the exact same rights as my sister. If she can marry Fred, I should be able to do so, as well," and thinking the issue has thus been settled.
My other goal was simply to highlight the absurdity of the relentless use of logic to evaluate the social mores and institutions that have developed over generations. If it can be applied ruthlessly to an institution such as traditional marriage, why on earth stop there? To your credit, you attempted to explain why the rule might plausibly be different in the hypo I set forth; unfortunately, your response appears to be quite unusual.
Finally, I thought it would be interesting to compare responses to my initial post, which I wrote in a genuine desire for substantive critique and comment, with a tongue-in-cheek post that engaged in the same type of casuistry most of the preceding commentors had exhibited. The results suggest one of the following: advocates of gay marriage (among the commenters here) are so blinded by their conviction that opponents are motivated by nothing more than bigotry, that they cannot (or will not bother to) respond to thoughtful, original arguments for why we should be cautious--it's so much easier to rant about how everybody should be able to marry Fred; or, blog comment threads reward, and therefore inexorably tend toward, the lowest, most inane, forms of argument.
More importantly, the Court remanded Limon back to Kansas with instructions that it be decided not inconsistent with Lawrence. In response to Lawrence, the Kansas Supreme Court reversed itself and invalidated (actually re-wrote) the so-called Romeo-and-Juliet statutory rape law (which gave a much lesser punishment to opposite-sex statutory rape than same-sex statutory rape when the adult was 19 and the child 15) based on sexuality discrimination, not gender discrimination. Had there been gender discrimination, the Kansas court would have invalidated the law the first time around.
If you can't marry your sister, there are plenty of other "fish in the sea" for you. In contrast for a gay person, they can't marry any of the fish in their sea.
No, of course the scope of marriage is not reducible in that way. But state definitions of marriage must comply with the equal protection clause, which I think should keep the state from discriminating on the basis of immutable traits without a very, very good reason. That's why immutability is important to the analysis.
I am far from certain about how the clause should apply to religious discrimination. Probably it should, since most people find it enormously difficult to just change their religion because the state tells them to, and there is a huge history of religious discrimination. On the other hand, the constitituon does already offer explicit protections of religious freedom, which might actually sort out your hypo without any resort to the EP clause.
Also, there is an argument to be made that, at this point in history, the right to get a civil marriage to any person of the opposite sex who is not a close relative has become so broadly recognized as to become an unenumerated right. Indeed, the Loving holding was alternatively grounded in the Due Process clause on a fundmantal rights rationale. I'm not a big fan of unenumerated rights generally, but I wouldn't be that startled if the courts used such an approach to protect against novel restrictions on the definition of marriage.
That is why I framed my response in terms of an "incest orientation" -- the only way to make the analogy work is to posit people who cannot be attracted to anyone other than their own siblings or other near relatives. Pretty far-fetched, if you ask me.
Why ONLY gay couples? A lot of alternative families don't receive the benefits of marriage. Two sisters raising a deceased brother's children, for example. Obviously single individuals are discrimated against, too. Should the legislature get started on relieving their plight?
IMO, the state should have the power to define what the benefits of marriage are supposed to encourage. If it's to encourage single people to settle down with a lifemate, then gay couples are in and sisters are out. If it's to encourage the raising of kids by a man and a woman, then gay couples are out. But, then the state could also deny the infertile marriage benefits. There is no way that restriction would be upheld in court, so how can you justify leaving gay couples out?
You've just proved my point. Currently, the state doesn't care one whit if a couple seeking to get married wants to procreate. They also don't care a whit if people love each other. So...why not allow two men and two women to marry? Without a valid procreation or love arguement, why prevent two people from the same gender to marry?
That said, I don't think the fundamental rights theory works. First, it at least has to be recharacterized as an equal protection theory--fundamental interests equal protection (a nearly moribund constitutional doctrine). Otherwise, the claim has to be that the constitution affirmatively requires government to create civil marriage and attach benefits to it. That is inconsistent with a number of holdings rejecting the idea that the Court's fundamental rights jurisprudence places affirmative obligations on government to provide positive rights. See DeShaney v. Winnebago County (1989) (no constitutional obligation to remove an abused child from home); Harris v. McCrae (1980) (no constitutional obligation to fund even medically necessary abortions). States could constitutionally abolish civil marriage tomorrow, except perhaps for the *possibility* of some kind of takings claim by couples who are already married. If there is no constitutional obligation to provide opposite-sex marriage, there is no constitutional obligation to provide same-sex marriage. (Note Loving is different because it involved a criminal prosecution, not the mere denial of positive rights.)
As with voting, however, once the state offers the fundamental benefit to some, its refusal to offer it to others may trigger strict scrutiny under the equal protection clause. That may include marriage. (See Zablocki's references to equal protection and equal protection cases.) So the theory still may work as a matter of fundamental interests equal protection.
But there is at least one other problem. Simply citing Loving, Zablocki, and even Turner and applying strict scrutiny to same-sex marriage isn't completely satisfying to me. Everyone knows that the Court has its most difficult time when trying to figure out which unenumerated rights to constitutionalize. Just extrapolating from precedents and constitutionalizing same-sex marriage seems to me to do an end-run around other important inquiries in this area, such as whether same-sex marriage is supported by history and tradition or whether it is at least consistent with the contemporary conscience of the people. The answer to both inquiries is clearly "no" today. As a result, formalistic reliance on Loving, Zablocki, and Turner has the feel of boot-strapping to me. Such reliance is one way to guard against judge's relying on subjective political preference, but so are the tradition and contemporary conscience inquiries.
True, the Court didn't ask about either tradition or contemporary conscience as to the particular restrictions at issue in Loving, Zablocki, and Turner. Still, the fundamental rights part of Loving was just a one-paragraph afterthought with equal protection as the primary grounds for the decision. At any rate, by 1967, 2/3 of the states had authorized interracial marriage, which is good evidence of contemporary conscience or, in the words of Lawrence v. Texas, an "emerging awareness" of the unjustness of the ban at issue. Zablocki and Turner may be similar, but they also involved little more than petty administrative regulations at the margins of marriage law, not major public policy fights specifically about our understanding and definition of marriage itself.
While none of those explanations is completely satisfying, same-sex marriage does strike me as significantly different. There is no serious tradition of same-sex civil marriage, nor is recognition of same-sex marriage demanded by the contemporary conscience of the people--not yet, anyhow, but that "not yet" may be key. The restrictions are not low-profile, petty, marginal administrative regulations (Turner) or indirect attempts to enforce some unrelated public policy (Zablocki). Bans on same-sex marriage are the subject of widespread discussion and deliberation focused squarely on the issue, and the idea of same-sex marriage remains controversial and hotly contested. Those factors provide a very good basis, in my opinion, for concluding that, constitutionally speaking, same-sex marriage is different (right now) in a relevant way from Loving, Zablocki, and Turner, and is sipmly not yet ripe for constitutionalization and the Roe v. Wade-style preemption of the democratic process. Those factors have limited, if any, relevance in an equal protection inquiry, which may make this entire fundamental rights discussion academic. But when the question is whether a court should constitutionalize an unenumerated right as fundamental, I think those factors are relevant, and they explain why bans on neither polygamous nor consanguineous marriages trigger strict scrutiny under a fundamental rights approach.
Justice White got many things wrong in Bowers v. Hardwick, but he was right that the Court comes nearest to illegitimacy in discovering new unenumerated rights. His response was to stop identifying such rights at all. I wouldn't go that far, but I think courts must be extremely restrained in identifying unenumerated fundamental rights. Lawrence provides a nice model the gay-rights movement fighting from state to state to reform sodomy laws, creating a sufficient national consensus that the Court could constitutionalize the right with, actually, very little controversy over the specific right itself. (Where is the President's proposal for a Federal Sodomy Recriminalization Amendment?) It may be that the gay-rights movement must effectively "earn" recognition of same-sex marriage as a right, as with sexual privacy, by making far greater progress outside the courts in public opinion and state-level legal reform than it has so far done.
While those factors may be very relevant to the fundamental rights claim, they are not, to repeat, legally relevant to the equal protection claims. My suspicion, however, is that judges are willing to treat those factors as relevant to the equal protection claims. The result is a series of equal protection analyses that range from less than persuasive ("Golly, we just have no idea whether gay people can choose to stop being gay.") to legally indefensible ("Sexual orientation might be a suspect trait outside family law but not where family law is concerned."). When judges transfer the political arguments for leaving the question to the democratic process from the fundamental rights claim to equal protection claims, the decision becomes unjustifiably result-oriented and an affront to the rule of law.
It may even be the case that the Washington S. Ct. majority effectively saved the gay-rights movement from having yet another state constitutional amendment adopted. Had the court ruled the other way, we would certainly hear screams right now for a state amendment to overturn the decision, and I suspect an amendment would have made it to the ballot in Washington and been approved. (Massachusetts has a constitution that is much harder to amend.) I don't think that was the motive of the majority. But my point is that I could imagine these considerations being made by progressive judges and rejecting a challenge in order to paternalistically protect the gay-rights movement. Regardless, however, these political considerations are illegitimate in response to equal protection claims, even if they play some acknowledged role in an unenumerated rights claims.
On your argument that gays ought to have a separate institution because it better suits their needs, it would likely have to be one institution for gay men and another for gay women. IMO, gay men and women should decide whether they prefer a separate institution after they hear the details - or whether they think the separate institution isn't a good enough fit and view it instead as a second-class status.
And there is a fair amount of evidence that traditional sacramental marriage produces "better" children than casual fornication: compare and contrast educational perfomance and economic success in Newark, NJ and Salt Lake City, Utah.
Combine these two factors and state discrimination in favor of sacramental marriage may be compelling.
Your 2:39 post is well thought out.
I will just add that the lack of "history and tradition" for same-sex marriage misses the right at stake in the same manner that the Bowers court was wrong. It wasn't about same-sex sodomy per se, but about sexual autonomy as one aspect of a personal relationship. It isn't about same-sex marriage per se, but access to benefits the state provdes to encourage single people to settle down with their lifemate. But, your point about the Court's willingness to reformulate the right at stake in Lawrence based on a growing consensus against sodomy laws is well taken. The Court isn't likely to reformulate the right at stake in the current case without a similar growing consensus (even though I still content that logic forces us to reformulate the right). There should be a new effort to pass civil union laws starting in the blue states.
Isn't there generally more economic success and greater educational performance in the Blue States than the Red States?
How would a state discriminate in favor of sacramental marriage and against modern civil marriage? Isn't modern civil marriage what the state offers?
Technically, the majority acknowledged a Romer argument made by counsel and some amici, not as made by O'Connor, although the difference may not be significant. At any rate, you're correct that they said not a word about gender. That's a little suspicious since Justice Scalia felt compelled to devote several paragraph to rejecting the argument in his dissent. At any rate, the Court has not had to reach the question and has avoided saying a word about it, as with the argument that sexual orientation triggers strict or skeptical scrutiny. Negative inferences from mere silence are not a very firm foundation for a legal conclusion and are less reliable than dicta, which is at least an affirmative statement). This is particularly where, as here, the negative inference would be in tension with more general principles the Court has recognized in other cases, such as to sex discrimination as well as to why certain traits trigger strict scrutiny. Besides, pointing out that the Court is being inconsistent is a perfectly legitimate and sometimes highly effective form of legal criticism.
The Kansas Supreme Court never heard Limon before; it denied review, which has no legal relevance. The U.S. Supreme Court took the case directly from the intermediate appellate court in Kansas. At any rate, I fail to see your point. Is it that everything any lower court says (or that you infer from its silence) is a correct and binding statement of law?
I think the most one can say is that the Court has expressed no opinion as to the sex discrimination theory or as to strict scrutiny for sexual orientation.
Duncan: the "argument" you just set forth has causation/correlation problems so big that you could drive an ocean liner through it. It would be ludicrous to try and isolate the changes wrought by sacramental v. civil marriage out from the numerous other social and cultural changes that took place at the same time. How could you even go about making the argument in a credible way? There are just too many independent factors at play for you to credibly assert that the marriage issue is THE cause, or even a signficant contributing cause.
Also, state discrimination in favor of sacaramental marriage would probably violate the Establishment Clause.
Finally, I'd also note that I'm not sure I would agree that increasing the birthrate is yet a compelling interest in our society. We currently have no great problem of shortage of citizens. You'd need to come up with a convincing argument for why increasing the birthrate would tend to increase aggreggate social welfare for me to buy this claim.
Obviously, having better-raised children is a compelling state interest -- but I think that correlation is even less plausible than the birth-rate correlation, which has some intuitive persuasiveness to me, at least for certain religions, like Catholicism.
But that is precisely the point. Separate but equal facilities are absolutely verboten if they discriminate along racial lines, even if the facilities are in fact completely identical. Separate is inherently unequal. On the other hand separate but equal in terms of gender segregation is something that is widely tolerated. That is no small point.
Even if the gay marriage issue actually falls into the category of sex discrimination rather than discrimination targeted at sexual orientation there is no guarantee that the same protections accorded by decisions like Loving will automatically filter down to the gay marriage question. (I admit this is stating the obvious given the spate of recent court decisions.) Does anyone seriously believe I would be able to successfully sue my local health club and force them to consolidate shower facilities using Brown as a basis?
The actions of the Kansas Court and SCOTUS of course don't settle the issue. But IMO, they do weaken your argument. I don't believe any court would conclude the laws in question in Limon and Lawrence are examples of gender discrimination.
That depends on what you think the right at stake is. You assume it is a general right to marry; others assume it is a right, according to the traditional legal definition of marriage, to a "voluntary union of one man and one woman for life to the exclusion of all others." Each sides posits as an unexamined premise the (probably outcome-determinative) characterization of the right. I don't think it's very productive for each side to just say the right simply is x or y. That kind of legal formalism isn't apt to persuade anyone who doesn't already agree. For the pro-gay side, that is a tough way to frame the argument anyhow, because there is an extensive recognition of the opposite-sex definition of marriage in Anglo-American law, and there are plenty of 19th-century and even 20th-century sources that discuss marriage in terms of procreation.
But you do offer Lawrence as something more than just formalistic arguing over what "marriage" means. It may be that the courts are committing exactly the same mistake the Court did in Lawrence of viewing the potential right in exclusively same-sex terms, when it should be viewed gender-neutrally. But that requires the further argument that the sodomy right at issue in Bowers and Lawrence is indistinguishable from the marriage right at issue in Anderson and Hernandez. While heterosexual oral or anal sex may literally be exactly the same act as homosexual oral or anal sex, opposite-sex marriage perhaps isn't exactly the same act as same-sex marriage. Drawing that analogy is the sticking point. Lawrence found little tradition of laws specifically prohibiting same-sex sodomy, suggesting the narrow same-sex characterization of the issue was itself ahistorical, and also found an "emerging awareness" today that these laws are unjust. (I tend to find the latter more persuasive than the former.) The problem is that you can't similarly appeal to either tradition or contemporary conscience in trying to characterize the marriage right gender-neutrally. There is a long tradition of an opposite-sex legal definition of marriage, and it remains the case that 49 states still define marriage that way--many reaffirming that definition through very recent enactments. That provides a way to distinguish Lawrence from Anderson on the basis of two factors that have long been recognized by the Court, even in Lawrence itself, as relevant in determining which unenumerated constitutional rights to recognize: tradition and conscience of the people.
As I said before, there is something too hasty to my mind about reading Loving, Zablocki, and Turner with historical blinders and extending the right to same-sex couples without considering either tradition or at least contemporary conscience. Those factors may not be determinative either, but they weigh against extension of the right to same-sex couples, at least today. The Court has also engaged in moral reasoning, most infamously in Roe and Casey in concluding that the abortion decision, as a matter of political philosophy, should be left to women. I say "infamous" because those decisions rested on little else and moral reasoning strikes me as the most problematic of the Court's factors because it takes the Court closest toward mere implementation of its members own personal political preferences. And while it might support same-sex couples, it is also quite malleable and could even be used by natural-law judges to discover a fundamental right of opposite-sex couples to have same-sex couples excluded from civil marriage, as some argue that fetuses should have a constitutionally enforceable right to life.
Nonetheless, I agree the Court will not reach my conclusion given tradition and contemporary conscience. Tradition and contemporary conscience are illogical given the empirically observed purpose of civil marriage, but they will trump logic in this case.
No, but I do believe that if your local family court judge tried to deprive you of custody of your child solely because you and the child are not the same sex, you could successfully challenge that as sex discrimination, the policy would receive skeptical scrutiny, and you would probably win.
That seems far more on point than equating same-sex partners with toilet seats and shower stalls. I don't think I said Brown extends to sex; indeed, I have argued the opposite in print. But if separate-but-equal is acceptable in the sphere of sex, as I have argued it may be, then the separate opportunities afforded women and men must be substantially equal in all their tangibles and intangibles, or else they must be subjected to skeptical scrutiny. If your dress code requires men to wear business attire and women to wear breast-revealing burlap sacks, as in one notorious Title VII case, that is not a separate-but-equal dress code, and it is illegal. In contrast, if the facilities in the men's locker room and those in the women's locker room are fungible, the sex segregation doesn't trigger skeptical scrutiny, and custom provides a sufficient rational basis for the segregation.
But the abstract right to get custody of some same-sex child if you had been lucky enough to have one or the abstract right to marry some potential opposite-sex single are not fungible with the right get custody of your actual opposite-sex child or to marry your actual same-sex partner. Those opportunities are not substantially equal, particularly not when judged, as they must be, on the individual basis. As a result, those sex segregations trigger skeptical scrutiny, and the "potty analogy" fails--unless the women's shower has such a renown reputation for excellence in the community, such a wide network of alumni supporters, and such a large financial endowment that the newly constructed men's shower can't possibly compete with respect to all those intangibles. :)
What might survive separate-but-equal analysis is a system that allowed Grace to marry Peter but allowed Will to have a civil union with Peter. The question would be whether the legal opportunity afforded Grace and other women (to marry Peter) is substantially equal in all its tangibles and intangibles with the legal opportunity afforded Will and other men (to have a civil union with Peter). I think even that is a hard argument to make, given the reputational difference between marriage and civil union, but I could see a judge go either way.
While I generally agree with that kind of purpose-based approach and it is certainly another factor here, I question your characterization of the purpose of marriage. I think it's more complicated than you're conceding. In what sense is this an empirical, as opposed to philosophical or normative, question? Do we survey married couples and ask their opinion, so that the purpose flows from contemporary social practice or understanding? Or do we seek to figure out what the legislators who enacted the nation's marriage laws understood the purpose of those civil marriage laws to be, in which you may find procreation to the be the correct answer in many states whose laws date back to the 19th-century? If the statutory purpose was originally understood to be procreation, can the social evolution of marriage and the subsequent commandeering (or, one might say, abuse) of the marriage law by opposite-sex couples (and Hollywood) for a companionship rather than procreative purpose change the legal purpose of a marriage statute without additional action by the legislature? Whose understanding of purpose counts when we're trying to define marriage as an unenumerated constitutional right, as opposed to trying to discern the purpose of a positive-law enactment? If the answer is contemporary social views (as opposed to legal tradition), does an existing marriage law enacted in 1896 with a procreative understanding (as is probably the case in New York) somehow violate the unenumerated right of even opposite-sex couples to have a civil marriage institution based on companionship? I think trying to define "marriage" in the unenumerated constitutional right in terms of the purpose of marriage is a very tricky endeavor. That's not to say it is an incorrect approach, just that the answer is not clear to me and is likely to be contestible. In that case, tradition and contemporary conscience may be entitled to decide the issue.
I agree, though, that courts would find a way to strike down a ban on opposite-sex marriage between people older than 60, even though those would be non-procreative, companionship marriages.
That seems far more on point than equating same-sex partners with toilet seats and shower stalls.
Which was never my intention. My original point dealt with Loving and the numerous posts which attempted to link that case with the recent decisions in Washington and New York, and the extent to which case law which deals with racial discrimination can be extended to cover sexual discrimination. I think my point that there are different categories of discrimination and consequently different categories of acceptable redress still stands. "Separate but equal" may well be an acceptable guiding principal for deciding cases based on sexual discrimination but it would be abhorrent to apply it to issues of racial discrimination.
As for gay marriage vis a vis the equal protection principal there is still a question in my mind, and I suspect in the minds of many others, as to whether or not banning gay marriage constitutes sex discrimination or rather discrimination based on sexual orientation. The group in question, as defined, isn't men or women in general. It's a classification that instead includes members of both sexes. Furthermore, if the defining characteristic in question is some immutable property, perhaps genetic, them it seems reasonable to me to point out that that excludes a majority of both sexes which lack that biological/genetic marker or characteristic.
I don't think determining the purpose of marriage is tricky at all. Your acknowledgement that the hypothetical ban on elderly marriage would be struck down is all you need to know.
Sorry, I didn't mean to misread your earlier post.
Good question.
1. Same-sex couples are not allowed to marry, but opposite-sex couples are. So there must be a classification here based on something. The key question is whether it is a classification based on sex or on sexual orientation. The answer offered by the Hernandez concurrence--neither--cannot be correct.
2. My own view--and some disagree with me on this--is that the classification is not based on sexual orientation. Two straight men cannot marry. Two straight women cannot marry. But a gay man can marry a lesbian. Clerks do not ask marriage applicants if they are gay or straight and do not screen on that basis.
Overwhelmingly it is lesbian and gay men who want a same-sex marriage, but that proves only that excluding same-sex couples from marriage has a grossly disparate impact on the basis of sexual orientation. That doesn't make it a classification based on sexual orientation, neither facially nor as a matter of intent.
Establishing a sexual orientation classification here would require showing that the enacting legislature wasn't really motivated by opposition to same-sex conduct (which straight people may engage in, if even as an experiment), but that the enacting legislature was really trying to punish people for having a same-sex sexual orientation (i.e. the predominant inclination of one's sexual attractions toward members of one's own sex). But I find it unpersuasive to suppose that the target of the legislature was homosexual thoughts (sexual orientation), as opposed to homosexual conduct (holding hands, having sex, getting married, etc.).
Chief Judge Kaye in the New York case tried to get around this problem by simply merging orientation with conduct. Her view was that denying same-sex marriage punishes people who desire a same-sex marriage and that desiring a same-sex marriage is a component of sexual orientation. I disagree. Sexual orientation--which seems to have some sort of biological component--precedes social institutions, like marriage. Orientation refers to the direction of one's sexual attractions. It does not refer to some innate compulsion to enter into a civil marriage. Orientation is probably immutable or at least largely beyond one's volitional control. Saying "I do" is not. It is conduct, and that, not orientation, is the legislative target in banning same-sex marriage.
So the classification, in my view, is not based on sexual orientation. But