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Rational Basis and Constitutional Line Drawing in the Same-Sex Marriage Debate:
I am not an expert in the constitutional debate on same-sex marriage, but I was thinking recently about the relationship between the rational basis test and the need for line-drawing, and how that might impact the constitutional arguments in the same-sex marriage debate. My pondering led me to a tentative argument that I haven't seen directly in the opinions I've read, so I wanted to offer it up and see what folks think. Here's the argument: When the state takes on the task of defining who should receive a government benefit, and that definition requires a great deal of complicated linedrawing, it is presumptively rational for a legislature to draw lines in ways that match traditions or common contemporary practices. As the amount of required linedrawing increases, and it becomes harder to justify one specific line over another, it becomes rational for a legislature to simply mirror the status quo rather than craft a new approach.

  I was thinking about this in the context of the same-sex marriage debate because state recognition of marriage seems to require a lot of linedrawing. It is widely agreed that the state has to impose limits on the number of people who can get married (2? 3? more?), the age of the couples (with or without parental consent), consanguinity (whether cousins can marry), etc. It can be hard to justify the exact lines that get drawn. For example, in many states, couples can get married at 18 without their parents' consent but 16 with their parents' consent. The exact line here seems pretty arbitrary. Why 18 years, and not 17 years and 323 days? Why 16 years if a parent consents, and not 16 years, 4 months, and 19.5 seconds? No matter who draws the lines required to define marriage, some parts of the definition are going to be rather arbitrary.

  My claim — albeit only a very tentative claim, as this isn't my area and I haven't looked closely at the cases — is that the fact that some line needs to be drawn, and the legislature unimaginatively drew it in some relatively traditional way, itself helps provide a rational basis for the legislature's approach. It seems sensible for a state legislature tasked with all the line-drawing of defining marriage to stick with the common answers to the problem. Put another way, deference to preexisting practices in areas that require complicated line-drawing is a sensible default even if we lack a clear argument for why those preexisting practices are normatively preferable to other ways of drawing the lines.

  Again, consider the case of age. Drawing the line at 16 instead of 16 years, 4 months, and 19.5 seconds isn't rational because we think the age of 16 is actually better. Rather, it's rational because some line is needed and there is a tradition of using integer years since birth as a yardstick for entitlement to government benefits that we rationally confer based on age. (It might also be rational because it is easier to calculate, but I think the point stands.)

  In the context of the same-sex marriage debate, then, it seems to me that the need to draw lines and the traditional limitation of marriage to opposing sex couples itself helps provide a rational basis for using the traditional definition of marriage as between a man and a woman. A legislature trying to answer the many questions and line-drawing exercises required by any definition of marriage could reasonably adopt the traditional way of doing things rather than have to justify new lines. Adopting the traditional definition in the face of the significant uncertainty of the best way to draw all the lines required by state recognition of marriage becomes a reasonable means -- perhaps not the best means, but a reasonable means -- of achieving the legitimate state interest of all the traditional benefits of the institution of marriage.

  Two caveats apply. First, this argument is only in play if the constitutional standard is mere rational basis scrutiny. If you believe that heightened scrutiny should apply, I don't think this argument is relevant. Second, I should emphasize that this is a constitutional argument, not a policy argument. From a standpoint of policy, I am in favor of laws permitting same-sex marriage. The constitutional question is not whether I favor the law, however, but only whether such a definition of marriage is a reasonable means of achieving a legitimate government interest.

  Anyway, that's my tentative argument. I'm interested in your responses, especially if you disagree.
Dunstan:
I think this argument fails because excluding same-sex marriage doesn't save the legislature, courts, or executive any time or labor.

For exammple, you can justify a bright-line rule on age on the grounds that it would be difficult to define "sufficiently mature" on a case-by-case basis; you'd have to have government employees and/or judges evaluate the maturity of each person applying for a marriage license. So an arbitrary rule can nonetheless be rational because the savings in time and expense are sufficient to make up for the greater number of "errors" (immature people allowed to marry too soon, or mature people whose right to marry is delayed).

But with same-sex marriage, there's no such justification. In fact, you have to add a requirement to the statute ("of opposite sexes"), and that's one more thing for the clerk who issues marriage licenses to check (admittedly, this doesn't seem to be a big issue, although I believe there have been incidents recently of same-sex partners obtaining licenses from clerks who didn't realize they were same-sex). The state doesn't save any time or effort or expense by excluding same-sex marriages.
9.16.2009 12:47am
John Moore (www):

Put another way, deference to preexisting practices in areas that require complicated line-drawing is a sensible default even if we lack a clear argument for why those preexisting practices are normatively preferable to other ways of drawing the lines.

This is a classic conservative (in the intellectual and traditional sense) argument - deference to tradition.
9.16.2009 12:52am
John Moore (www):
But with same-sex marriage, there's no such justification. In fact, you have to add a requirement to the statute ("of opposite sexes"), and that's one more thing for the clerk who issues marriage licenses to check


Not true - the requirement was always there - it's tradition and withing the long (until recently) definition of the very term "marriage."

The position of sticking to tradition in subtle areas, unless there are strong and widely accepted arguments to the contrary, is a good one.
9.16.2009 12:54am
UnknownNamedAgent:
Your logic would seem to question the decision in Loving v. Virgina. Do you think that case was wrongly decided?
9.16.2009 12:58am
Subrosa:
The obvious retort to your analogizing of the same-sex marriage debate to prohibiting people under the age of (in your example) 16 years old is that there is a rational basis for why they attempt to draw that line. In that case, the state has a rational interest in protecting children from entering into legal arrangements that they may not understand. So the question then becomes where to draw the line. As you've described above, the answer can be somewhat arbitrary, but that doesn't mean that there isn't a reason for that line to be drawn in the first place.

In the case of same sex marriage, the state has no analogous rational interest to prevent homosexuals from marrying each other so there is no reason for them to arbitrarily draw the line there, unless you're going to argue pure tradition (which is its own separate unpersuasive argument). There could arguably be an interest in preventing (say) ANYONE from getting married to EVERYONE ELSE, but whatever reasons you could come up with for supporting that position would not apply to two consenting adults who happen to share the same genitalia.
9.16.2009 12:59am
J. Aldridge:
The definition of marriage is not a constitutional question (maybe for activists it is).
9.16.2009 1:02am
josil (mail):
Most of the arguments for SSM seem to apply equally to polygamous arrangements. Are there logical reasons (aside from practicality) that favor SSM but not polygamy?
9.16.2009 1:04am
OrinKerr:
Subrosa,

Why is the question whether the state has a rational interest in drawing that particular line somewhere? Isn't the constitutional question whether the state has a reason to adopt that specific line?

UnknownNamedAgent,
Wrong and no, see the first caveat in the last paragraph of the post.
9.16.2009 1:06am
Avatar (mail):
The state doesn't save time or effort using integer years of age rather than, say, 17 years 180 days (even if we ignore examples with minutes and seconds thrown in, heh.) Yet we're clearly comfortable with such a limit being held as a rational basis.

At the same time, isn't there a stronger rational-basis claim to be had? Certainly "perpetuation of the population" is something the government can claim a compelling interest in; on top of that, the government can easily present data indicating that the "nuclear family" model yields generally superior child-raising results. Marriage, to the extent that the state yields benefits to the married couple, is an easy way to induce men and women to form stable families to raise children, or at least families in which children might plausibly result. Rather than strenuously check each couple's potential fertility, the government takes the easy way out; if the couple has the correct set of reproductive organs for the generation of kids, and enough separation of consanguinity that the kids aren't likely to grow up deformed, eh, they'll call it okay.

This leaves the homosexual couple in much the same position as a 16-year-old demanding the vote. While certainly in the instant case the 16-year-old may well be more responsible and fit to exercise the franchise than many who are extended that by the law, it would take a lot of effort to sort out the cases of unusually mature children from everything else, and the government isn't necessarily under an obligation to do so.

(In this case, "everything else" would be people wanting official recognition of other banned marriages - polygamy, consanguineous, with minors, desperately lonely Japanese guys wanting to marry cartoon characters... you name it.)

I'm liking this metaphor, actually, because it admits the opposite possibility. Even though the government isn't obliged to sort out the borderline cases, it may if it so chooses (much as that the age of majority is automatically reached at 18, but minors in special circumstances can petition the government to be declared legal adults). The government is free to set up a process by which this may occur. A government, in turn, is perfectly free to decide to recognize same-sex marriages by statute, it's just not obliged to do so under grounds of equal protection.
9.16.2009 1:06am
RichR (mail):
The gender restriction is not of the same kind as the others. Six-year olds are not competent to enter into a marriage contract. Generally, 25-year olds are. Where exactly is the line? Who knows, but the legislature has to draw some line.

Consanguinity restrictions have a number of justifications, including genetics, taboo, and the fear of sexual imposition by older family members.

The number of spouses is, obviously, a matter of tradition, but it is also a matter of near universal agreement that polygamy is taboo. However, banning polygamy is also a rational response to the fear that having more than two spouses increases the chances that the parties will not be able to live up to the promise to care for one another and the fear that allowing multiple spouses will unduly tax the government in its provision of benefits.

None of those is based solely on tradition, and it is not clear that mere tradition is a solid argument for the line drawn.
9.16.2009 1:14am
Billsv (mail):
Why not deal with this as a contract. A contract between a man and a woman can have defined benefits and obligations and be called marriage. A contract between a man and a man or other combination can have exactly the same benefits and obligations and called something else. Why get into this semantic argument over the word marriage? Why is it seemingly necessary to redefine a word. This should not be about a word. What are people trying to accomplish? Would it be against public policy to allow a caregiver niece to sign a contract with an aging aunt with the same benefits and obligations and call that contract something else. Living together, contracts and names are not necessarily related to "marriage".
9.16.2009 1:14am
PeteP:
[Deleted by OK on relevance grounds.]
9.16.2009 1:17am
Doc Merlin (mail):

Ideally, marriage wouldn't be governed by the state, but would be a private contract (look at traditional marriage vows, and it has the elements of a common law contract), so people who don't believe in it can ignore and those who are ok with it can accept it.
However, since this isn't going to happen, I think its a good idea to keep its a state's rights issue for the next decade or two for experimentation, and then see how it works out.
9.16.2009 1:17am
Doc Merlin (mail):
I forgot to say, I think this is actually what's going to happen... much like it did for concealed carry over the last couple decades.
9.16.2009 1:18am
Splunge:
The "rational basis" here is the rational apprehension by the legislators and judges in question that if they fail to adhere relatively closely to tradition they might find themselves out of a job -- or hanging from a lamppost.

This argument seems to me unpleasantly neither fish nor fowl. Underlying it is the standard Marxist assumption that one can deduce through pure logic "scientific" organizing principles of society, without recourse to the actual messy psychology and emotionally fraught constitution of actual people.

But it lacks the courage of its convictions. It fails to proceed to the standard logical conclusion: the rule of The Enlightened few for the good of the benighted many.

Instead, the power of tradition is invoked, on purely utilitarian grounds, to distort the theoretically pure deductive process so as to produce a conclusion that -- mirabile dictu! -- does not lie too far from the instinctual traditions of the mob. This is again rather a far cry from any sober republican traditions of popular sovereignty.

I am reminded of the bully who takes the weaker kid's lunch money but then, when confronted with the kid's friends in an angry mob, says oh I was just kidding, I meant to give it back all the time, see? Quickly rationalizing his submission to force majeure.

I think one should either believe SSM is right or wrong on purely objective moral grounds -- and have the intellectual stones to continue to say so even if you are a minority of one against everyone else -- or you should believe that the definition of marriage is rightfully set by majority rule and tradition, full stop.
9.16.2009 1:18am
Doc Merlin (mail):
"However, banning polygamy is also a rational response to the fear that having more than two spouses increases the chances that the parties will not be able to live up to the promise to care for one another and the fear that allowing multiple spouses will unduly tax the government in its provision of benefits. "

No, its more a response to what happens in such societies. The a large percent of men simply cannot get wives in such societies, which causes huge societal turmoil.
9.16.2009 1:20am
OrinKerr:
RichR,
How do you know what is "taboo"?
9.16.2009 1:22am
Cato The Elder (mail) (www):

In the case of same sex marriage, the state has no analogous rational interest

Dunstan,

In fact there is! At least, one could easily formulate an argument that the State has an interest in regulating sodomy -- as it is a primary behavioral vector for HIV transmission -- which it seems to me should then be able to survive the extremely deferential rational basis test. There is a similar logic in the consanguinity prohibitions that evaluate the probable outcomes of incestuous unions to have them similarly become compelling state interests.

N.B.: I support same-sex marriage as a policy matter to be resolved by the legislature.
9.16.2009 1:23am
OrinKerr:
Cato,

I don't see how you square that with Lawrence v. Texas.
9.16.2009 1:29am
Avatar (mail):
Splunge, your analysis totally fails to account for people who support same-sex marriage as a policy but don't agree that it's a matter of a constitutional right. I favor the policy; when we had a vote on that policy in this state, several years ago, I was one of the minority (and certainly a minority of Republicans!) who voted in favor of allowing it.

At the same time, denying that the government can define marriage as a heterosexual couple - denying that the government has a rational basis for such a definition - is pure sophistry. Unfortunately, the Constitution does not demand that I get my way all the time; there are a whole host of issues upon which I have strong opinions, but which are left to the legislative process, not the judicial process. In my opinion, and also in the opinion of most of the nation's jurists, same-sex marriage is such an issue.

As much as I favor the right of homosexuals to marry, I'm certainly not prepared to sacrifice our basic governing principles to gain it. If that means it has to come about the hard way, through the legislature, well, so be it.
9.16.2009 1:32am
John Moore (www):

No, its more a response to what happens in such societies. The a large percent of men simply cannot get wives in such societies, which causes huge societal turmoil.

Ah, but this presumes two things:

1) There is no right to polygamous unions, and

2) Enough people will enter them to cause that problem - i.e. 10-20% or more.

Why not allow polygamy until then?

For that matter, why not allow bestiality?
9.16.2009 1:33am
einhverfr (mail) (www):
OrinKerr:

I think a lot of the specific questions of rational basis end up being structural and fairly fact-centric. A number of rational basis arguments can be made against government recognition of same-sex marriage including interest in procreation, conserving resources, deference to tradition, etc.

However, since the statute is presumptively valid under rational basis review, proving it to be Constitutional isn't really very interesting. In fact a lot of your arguments have parallels in the arguments made in Lawrence v Texas.

From what I have seen, the courts seem to look to rational basis review as a two-pronged test-- it must serve a legitimate government interest, and it must not be structurally undermined by broad public policy in other areas. For example, in the Massachusetts case, the issues were that these rational bases posed were undermined systematically by other state policies.

As for your arguments, I would agree that these have been rational bases in the past, but I would argue that they are fundamentally based in past prejudice against homosexuals, and have been substantially and structurally undermined by
1) A decision that sodomy bans are unconstitutional
2) Widespread hate-crime legislation purporting to protect gays
3) widespread domestic partership laws
4) Intermediate scrutiny being applied to other cases where gays were discriminated against (Romer v. Evans for example)

The fear of community harm from homosexuals living openly as a family unit with their natural or adopted children is a thing which can no longer be justified as a rational basis. While I think your argument may have been valid fifteen years ago, I think subsequent developments have undermined this as a basis of public policy.
9.16.2009 1:38am
NotMyRealName:
I'm not qualified to assess whether Orin's argument holds legal muster. But as a matter of logic, I find it weak. Just because people have always done it that way, doesn't mean it is rational. People have done lots of irrational things for a long time. For instance, for over 2000 people years people thought that all sorts of illnesses were best treated by application of leaches -- even there was no rational basis whatsoever for that practice. I'm sure we could all cite many other examples. Just because it's the traditional way to do it doesn't mean there is a rational basis behind it.

But, look, if the standard is "rational basis", does it really matter? My impression is that "rational basis" is -- to a first approximation -- basically codeword for "the government wins" (or: "if the government can argue with a straight face that there is some reason for the legislation, no matter how far-fetched, the government almost always wins"). Am I wrong?
9.16.2009 1:42am
Oren:



I don't see how you square that with Lawrence v. Texas.


Was LvT a rational basis case? Kennedy never announced what level of scrutiny he applied in deciding the case, so it might fall under the Romers "unfavored minority" scrutiny.

Or it might just be a one-off ...
9.16.2009 1:45am
einhverfr (mail) (www):
Regarding polygamy as legal marriage, these pose structural changes regarding legal benefits that I dont think courts should or will address. For example, if a man with two wives dies, what is the relationship between the wives?

This said I think that Lawrence v Texas fatally wounds the cause for CRIMINALIZING living with multiple individuals in a spouse arrangement without filing for legal marriage. In short I think criminalizing concubinage is more or less on its way out.

Regarding bestiality, this is a complex issue and there is nothing rational about it. Different societies provide different rules here. For example, among the Hittites, bestiality was a capital crime.... Unless, that is, if it was between a man who was not a priest and his mare. Then there are issues like whether performing the Asvamedha (which involves sacrificing a stallion then having the first wife copulate with the dead stallion) is protected under first amendment considerations..... Of how about severed preserved horse phalluses as mentioned in the Saga of St. Olaf?

As I said in another thread, we aren't going to suddenly wake up and have a new rational approach to sexuality just because we think for the last 90 years we know better.
9.16.2009 1:49am
Jon Roland (mail) (www):
What is needed first is to disaggregate and untangle several component issues.

Going back in history, marriage (by whatever name) was the subject of custom and religion. Formal statutory law and government were not involved. During that period, most marriages were arranged by parents, or at least required their consent, unless the children were beyond the age of majority and no longer living at home. But women did live at home until married, often to late ages. (My maternal grandparents were a marriage arranged by the parents of my grandmother, then an adult living at home, and not with her full consent.)

Codification of customary practice served several purposes:

1. It provided a default contract the terms of which couples could invoke by reference without having to negotiate complete agreements that we would today call pre-nuptual.

2. The lines drawn by statute were drawn not so much for providing benefits, as to define what kinds of relationships could be lawfully interfered with. Those that fell within the bounds were allowed, and the rest could be forbidden. That included what we today call same-sex "marriages".

So as a matter of historical derivation, same-sex "marriage" is not so much an issue of whether they should receive benefits, as whether they should be immune from interference. The rational basis for such interference then becomes the issue for our time. In the past, it was considered "sodomy" and a sin to be legislatively forbidden. In our time we have to find a rational basis for such interference, as well as for not conferring the benefits conferred on same-sex couples.

I find no rational basis for interfering, but not a lack of rational basis for withholding some benefits for marriage that may serve a legitimate public purpose related to the special attributes of opposite-sex relationships. For that we need to examine those attributes one by one.

Children? No. Same-sex couples, like singles, can adopt. But they can't procreate with each other. That is the key: the public interest in controlling who may reproduce.

Originally, the main concern, and the basis for things like marriage licenses, was to prevent miscegenation. But it wasn't just about race. Many societies have, historically, tried to legislate non-procreation for subsets of their population. Most often, that has been the poor, those who cannot afford a bride price or a dowry. Most societies, going back to when they were primitive villages, have tried to control their population growth, and done so by favoring procreation by the most fit. In many ways, humans have been more or less consciously breeding themselves since they became a social species, and we today are the results of our ancestors' breeding and population control policies.

Such analysis is no longer politically correct, but if we want to understand where we are we need to understand where we came from.
9.16.2009 1:52am
Intermeddler:
Orin,
I think your argument is certainly fine as far as it goes, but I doubt it will change anyone's analysis b/c it operates on a false premise; namely, that rational basis review indeed applies to categorizations based on (or that have severe disparate impact based on) sexual orientation. Of course, the SCt's cases all stop short of applying heightened scrutiny to such classifications, but I simply don't think the cases make any sense unless one accepts that the Ct is applying some heightened scrutiny sub rosa.

If we really apply rational basis review, your argument works fine, but so do a host of familiar others (public health, family promotion, moral disapproval, etc). On the other hand, if we apply some unspecified level of heightened review based on the status of gay people as a protected class, it is not clear how your argument is sufficient. In short, the argument, while fine, is probably unnecessary for some people and insufficient for the others.
9.16.2009 1:54am
tvk:
Orin, the problem with your argument seems to be that it not only decimates the same-sex marriage argument, but every other rational basis review where the state action is struck down (and where the state acts in accordance with tradition). Thus, in Lawrence where the state is decide who gets a government benefit (the ability to have legal sex), the drew the line at traditional categories of legal sex, i.e. not sodomy. This becomes an argument that the status quo always meets rational basis, which might be a perfectly good thing in the abstract, but certainly doesn't fit within the existing framework of case law (at least the rational-basis-plus cases). Nor does it work to confine the doctrine to benefits as opposed to penalties. First, the distinction seems arbitrary--you provide no reason the legislature can draw lines based on tradition in one case but not the other. Second, I think many penalties can be creatively reconstructed as "benefits" for the traditional beneficiaries.
9.16.2009 2:02am
D.O.:
I am not a lawyer, so excuse irrelevance of my remark if it is irrelevant. Marriage as we know it is not just a state benefit. It is a type of contract between (for now) two people (and god, if you are religious). Governmental benefits are, in fact, incident to that contract. Thus the governmental regulation of marriage is a regulation of who can enter that particular type of contract. Therefore rational basis of denying someone to enter the marriage contract should be based either on consideration that such contract is disruptive to the society (how?) or that the parites are somehow disabled (juvenile exeption) or that the parties can not be expected to adhere to the terms of the contract (if the terms include possibility to bear children than that's the reason). Polygamy, serial marriage and what not probably can be excluded on the basis that states would be flabbergasted to give a meaning to those types of contract in our culture.
This all means that the question is political, not constitutional.
9.16.2009 2:13am
OrinKerr:
tvk,

Thanks for the response. A few responses of my own: First, the argument is about the specific nature of complex problems that demand difficult line-drawing, not reliance on tradition per se. Second, re the criminalization of sodomy, I don't think it's a "government benefit" not to be thrown in jail for your conduct. Given that, I don't think this argument applies in criminal cases. Third, I am not saying that this argument alone would satisfy "rational basis plus," but rather that it is a sensible argument in a case governed by the rational basis standard.
9.16.2009 2:16am
Oren:
Intermeddler, why did you have to go ahead and make my point in logic when I made it perfectly well in snark?!

[ Thanks. ]
9.16.2009 2:29am
chird:
Orin,

I don't think your theory gives you a rational basis to draw a line, only a rational basis for where to draw it if it is otherwise required.

For example, in the case of age there is a rational basis that a line must be drawn somewhere--the state must protect children--so tradition is a fine guide for where to draw it.

With the sex of the participants in the marriage the issue isn't where to draw a line along a continuum when everyone agrees a line must be drawn somewhere. The issue is whether or not there is a rational basis for a line at all. I think the analogy to race is instructive here. As a society we have decided that we need not draw a line to determine how similar the races of 2 people need to be for them to get married. If there was some valid reason for drawing such a line somewhere then maybe tradition would be a rational way to do it, but tradition by itself doesn't justify the need to draw the line in the first place.

Put another way, I don't think pointing to all the "complicated line drawing" in unrelated elements of the marriage definition gets you a free pass to throw up your hands and use tradition to impose otherwise unjustifiable restrictions anywhere they might be made. You are aggregating to much. Each line that is drawn is a decision to exclude a class of people and must be justified on its own merits. You can't say, "because drawing the age line is hard, miscegenation should be illegal."
9.16.2009 3:38am
Tom Farrell (mail):
So, essentially this argument boils down to "making decisions is hard, so we'll just do it the way we've always done it, so that's rational." Uh, no, it isn't. By that logic, slavery should never have been banned, because after all, it had always been legal.

For a law to have rational basis it must show that there is a rational reason for it to be the way it is and not other ways. Since we're discussing a law banning gay people from marrying, it must be demonstrated why it is rational to ban gay people from marrying as opposed to not banning gay people from marrying. The burden of justification is and must always be against laws which restrict people's rights and freedoms, not in favor of them. Your argument is essentially that it's rational to have no rational basis, and consequently, is meaningless.
9.16.2009 4:36am
David Schwartz (mail):
Doesn't this argument apply to any law that has been around awhile? And is the question whether there was an apparent rational for the law or custom when it was enacted or adopted? Or is the question whether there is a basis that is actually rational now?

If the factual basis for a law evaporates, does the law survive rational basis review because it was rational when adopted? And if not, why not if we discover there never was a rational basis or otherwise undermine it?
9.16.2009 4:59am
Splunge:
Splunge, your analysis totally fails to account for people who support same-sex marriage as a policy but don't agree that it's a matter of a constitutional right.

Constitutional rights are things you have by nature, and which government is forbidden to infringe. They are not things that are, or can be, given to you by government. Government has zero power to give me the right to live. It can only decline to interfere with it. Nor can it give me a free will -- the sine qua non of liberty -- it can only decline to interfere with it.

If you want to talk about those kind of "positive rights," like a right to a job or perfect health or a happy marriage to the person of your choice, you need to go rummaging around in the Soviet Constitution, or some other piece of historical garbage in which everything comes from the Crown, the State, the Party, whatever. The Founders thought differently, fortunately for us.

At the same time, denying that the government can define marriage as a heterosexual couple - denying that the government has a rational basis for such a definition - is pure sophistry.

On the contrary, vide supra. Imagining that government can define marriage is intellectual narcissism of a high degree, akin to imagining that government can define the value of pi or whether the Earth goes around the Sun or vice versa (which of course it has attempted to do).

Marriage is an empirical, observable fact: a form of behaviour entered into by men and women since Cro Magnons, and which exists whether or not government does, under any form of government, and indeed would persist secretly even if government did its level best to eradicate it (as at times it has: cf. slave "marriage" in the antebellum South).

You may argue, if you like, that government may attempt to legislate the names of things: to call this "marriage" and this other "cohabitation" or POSSSLQ or what have you. Good luck with that, and while you're at it why don't you legislate that there be no rain until after sundown?

Finally, and practically, it's certainly possible for government to recognize the existing behaviour of humans and legislate the social consequences appertaining thereto -- divorce law, inheritance law, blah blah. But saying this "defines" marriage is like saying that government rules on when organs can be harvested for transplantation "defines" death. A grotesque egoistical overreach.

Every ordinary person actually knows this perfectly well, by instinct, and it is generally the nausea people feel at such egoism that fires the opposition, I think. I doubt there's anything more than a small minority of opposition to single-sex couples having every important legal consequence of married couples. That at which people balk is being told by a Court what to call such a couple: the mere label of "marriage."

I think the activists and lawyers on the pro side have deluded themselves into thinking there's a free lunch available. Hey! Instead of painstakingly convincing people, one by one, in the millions, to call what I have here a "marriage," how about if I just muster up a judicial decision or two that says they MUST do so? What a great time-saver!

Nope, sorry. You can legislate that spades are called dirt implements or splorks as much as you want, and it won't do a damn thing. You'll just be like the East Germans legislating that an East German mark MUST trade at parity with a West German mark, and merely split of a segment of delusion in which you and your fellow travelers live, while the rest of the world goes about its business ignoring you. If you want to change the language, minds must be convinced to alter their thinking, of their own free will, one at a time, since as yet we have no centralized mind-control beams.

So argue all you want about Constitutionality and what the law demands. It doesn't matter one flea's fingernail. Same-sex couples will never be called "married" in any meaningful sense unless and until the broad majority of folks freely think that that's the right name for their situation.

I make no statement about whether this is the way the world "ought" to work. It's just the way it actually does.
9.16.2009 5:03am
AF:
Your argument about complicated line-drawing is interesting, but I don't see how it applies to same-sex marriage. What is the complicated line that needs to be drawn with respect to the sex of who can marry?
9.16.2009 5:28am
Cornellian (mail):
First, what you describe as "traditional marriage" isn't traditional in the sense of marriage as it existed 100 or 500 or 1000 or 2000 years ago. Second, your argument amounts to "we've done it that way before, so we should be able to keep doing it that way" which would pretty much write the rational basis standard out of the jurisprudence and put us back to square one for a workable standard of discerning an equal protection violation.
9.16.2009 7:18am
Arkady:
@Orin


When the state takes on the task of defining who should receive a government benefit, and that definition requires a great deal of complicated linedrawing, it is presumptively rational for a legislature to draw lines in ways that match traditions or common contemporary practices. As the amount of required linedrawing increases, and it becomes harder to justify one specific line over another, it becomes rational for a legislature to simply mirror the status quo rather than craft a new approach.


That's sounds about right (and I'd call it the "Throwing Up Your Hands" approach). And folks, as I read him, Orin isn't arguing that this is what ought to be, only what is. He's doing political phenomenology.
9.16.2009 7:35am
Teller:
I know legal fictions abound but something called rational cannot be supported by the argument that 'we've always done it that way,' at least not in post enlightenment thought.
9.16.2009 8:32am
Cornellian (mail):
it is presumptively rational for a legislature to draw lines in ways that match traditions or common contemporary practices.

Perhaps that framing of the issue obscures the real issue of the degree of the presumption.
9.16.2009 8:33am
Perry Dane:
Orin,

FWIW, I make a similar argument (albeit in the context of a much more extended and, I hope, nuanced, set of arguments) in my recent article, A Holy Secular Institution, 58 Emory Law Journal 1123 (2009), available at http://ssrn.com/abstract=1293946

To wit, at pp. 1175 and 1178:

If "rationality" only requires a considered reason, then maintaining the status quo when there are legitimate stakeholders in that status quo, and when those legitimate stakeholders give voice to legitimate and long-held values and conceptions, must be, if nothing else, rational....

The analysis might be different, however, if such refusal is subject to stricter scrutiny, either by treating gay couples as belonging to a suspect class, or by emphasizing the fundamental character of the right to marry.
9.16.2009 8:37am
Detlef (mail):
For the feds to define marriage to be only between a man and a woman, they also need to define what a "man" is and what a "woman" is. Which doesn't really work.

Do you define a "woman" as having breasts and "man" a penis? Then sex changes and getting married are fine.

Do you define a "man" and "woman" as being what they were born as? Then you are making a quick judgment based on a couple of days. Then Intersex people can't marry, because they may have been determined by doctors to be one sex, when in fact the doctor may be wrong due to the baby having ambigous genetalia.

Do you define a "man" and "woman" by their genes, by XX or XY? If so than can Intersex people who don't fit that definition marry? Some people have mosaic genetics, some genes are XX and some are XY. Some have XXY genes.
9.16.2009 8:40am
John D (mail):
Cato's statement about sodomy needs a slight correction.

Though it's typical to bring up sodomy when talking about gay people, truth is that sodomy (sex other than penis entering vagina) is fairly common among heterosexuals. It has been long documented that heterosexuals practice both oral and anal sex. Lawrence v Texas affirmed their right to do so.

Given the prevalence of heterosexuals, it would seem clear that the majority of sodomy is practiced by heterosexuals. Our current marriage laws seem to be a case of special rights for sodomites, as long as those sodomites are in an opposite-sex pairing.

Cato suggested that there could be a rational bias in preventing sodomy, but this only begs the question of why the state might prefer heterosexual sodomy over homosexual sodomy.

In any case, the marriage laws do as much to prevent sodomy as they do to prevent adultery or global warming.

While I personally feel that the matter deserves heightened scrutiny, I also believe that laws against same-sex marriage fail any question of rational bias.
9.16.2009 8:41am
Rodger Lodger (mail):
I believe there's a fallacy in using the example of round numbers, e.g., 16 to get married with parental consent, as support for line drawing re non-denumerable issues, such as gender required for marriage, but I'm too tired/lazy to explain why. But I know a fallacy when I see one.
9.16.2009 8:46am
martinned (mail) (www):
Reading the OP, I thought you were going somewhere else than where you were actually going. This is what I thought you were going to do:

There is a distinction between cases were there is a rational basis, or even better, for the drawing of some line, and cases where there is no such basis. An example of the former is age, and an example of the latter is gender. It follows that the regulation of marriage is not generally very "random": even though there is no reason why the minimum age should be 16 or 18, there is clearly a rational basis for having some minimum age. From that, it follows that any alleged lack of rationality in setting the age limit, or the number of spouses one is allowed to have, does not justify forbidding SSM. And, vice versa, allowing SSM does not threaten age limits and laws against polygamy.
9.16.2009 9:15am
sk (mail):
The most important problem with your discussion is that you are mixing the two uses of the term 'rational.'

On the one hand, 'rational' in the 'rational basis test' means 'logically, morally justifiable.' In essence, is a law justifiable in a Platonic sense (is it consistent with other laws, is it consistent with constitutional requirements and precedent, etc).

On the other hand, you discuss 'rational' in an economic sense-i.e. minimizing effort and maximizing gain. For instance, if a legislature draws a line with regard to marriage legality at 16 rather than 15 years and 8 months, they are rational to do so because they minimize effort (don't research the exact age line at which humans can typically make informed decisions, don't write a law that recognizes different maturity levels, and requires some effort to define the maturity level of the individual in question, falls back on tradition rather than make up new unestablished tradition, etc).

Thus, the two uses are not merely different, but virtual opposites. If a judge asked a legislator to defend a law based on a 'rational test' (i.e. is it intellecually/logically defensible), and the legislator responds "Of course its rational: I put the minimum effort into it that I could by using a traditional, religious standard," he has answered the judge in the exact opposite manner that the judge wanted (and in fact, argued against his own bill according to the definition of 'rational' expected by the judge), even though both individuals used 'rational' (in their two different but valid meanings).

Sk
9.16.2009 9:16am
Anderson (mail):
Why not deal with this as a contract.

This inevitably reminds me of Kant's notorious definition of marriage as a contract for the mutual exclusive use of each other's genitals. Died a bachelor, Kant did.

... Prof. Kerr's approach is interesting, and might well satisfy rational-basis review.

It makes me realize that I have forgotten how "heightened scrutiny" (as opposed to strict scrutiny) was invented in the first place, and to what categories it applies.

The trend of the law will be, I think, for discrimination against gays to require heightened scrutiny, but we don't seem to be there yet.
9.16.2009 9:25am
Anderson (mail):
this only begs the question of why the state might prefer heterosexual sodomy over homosexual sodomy

A preference I happen to share, but not for any logical reason.
9.16.2009 9:30am
Some dude:
Your argument falls apart if you are suggesting drawing the line a two people with complimentary genital organs instead of the same genital organs is as arbitrary as drawing the line at 16 instead of 16 years, 4 months, and 19.5 seconds.

There is no arbitrary gray line between being different sexes or not like there is an arbitrary gray line between being old enough and not old enough.
9.16.2009 9:51am
Lymis (mail):
I agree with chird that the point, if it means anything at all, has to include the analysis of whether a line needs to be drawn and only then where to put it.

And I do understand that it moves into realms more near strict scrutiny than rational basis, but there has to BE some rational basis to draw the line, doesn't there?

If I understand it the point of rational basis is, in essence, "Sorry that this inconveniences you, but you are an outlier and we need to protect or regulate everyone else."

So, we can have a law that says you can only get married without parental consent when you are 18. I get that. But we can't have a law that says you can only get married without parental consent if you are blonde, or if you are Presbyterian, or if you are over 5 feet tall or if your name is Bob.

It is all very well and good, for example, to claim that the state has an interest in the next generation and providing protections for children. I can understand that (potentially) under rational basis, you can deny marriage to people who cannot procreate together, and that a same-sex couple meets that definition. But how to then justify allowing post-hysterectomy or post-menopausal women or post-vasectomy men to marry?

The "it's too intrusive to ask" argument is absurd. If the whole point of giving the status and benefits is for procreation, it follows logically that as a minimum, a place on the marriage application to state that to the best of your knowledge you are fertile can hardly be out of line, any more than a driver's test is appropriate for that license.

Better yet, if the "whole" point of marriage is procreation, then the state has no rational basis whatsoever to give the benefits to anyone who doesn't already have kids (and adoption is out or same sex couples are in.) Given the percentages, there are more married opposite sex couples without children than there are likely to be same-sex couples at all.

I would buy the rational basis argument if there was a single iteration of it that didn't give some opposite-sex couples a pass for the exact same impediment that supposedly applies to same-sex couples.
9.16.2009 10:03am
SeaDrive:
Orin, I would be a little happier with your analysis if it aligned a bit better with the way humans actually think which is more like pattern recognition than logic. People accept integer ages, for example, because we are used to the pattern of dividing cohorts that way, and we are used to having certain ages (18,21,65) serve as dividing lines.

We also recognize the meme (see http://en.wikipedia.org/wiki/Meme) of marriage as between one man and one woman whether or not we wish to change it for the generations to come.

I agree with your basic conclusion that a court is entitled to interpret the constitution within the cultural context of patterns and memes that were current when the document was written until and unless there are new facts that are forceful enough to trigger a reevaluation. Such new facts are common in technology areas, but less common in human behavior. In the case at hand however, science has provided many new facts in the last 20 years or so.
9.16.2009 10:15am
oxlanv:
Oren -- maybe you could give some examples (aside from relatively arbitrary distinctions of age) where there is significant political debate about the line in question and where tradition is used as a legitimate justification.

It's important to have more examples because tradition is often the last refuge for group animus. Over the last fifty years or so, deference to tradition in constitutional line-drawing has a rather poor history of masking race and sex-discrimination.

Furthermore, we can always ask: why is the tradition of value? If there is a good answer to that question, then there is a rational basis. If there isn't, then the justification collapses. It looks like tradition is almost always a placeholder or proxy for some other set of arguments.

Where the state merely needs some arbitrary tie-breaker (as in the case of distinguishing between some 16 and 17 to define the status of minors), any justification will do -- tossing a coin might be legitimate, if only to economize on the costs of making the decision.

But in the cases where tradition is actually supposed to do some work (and even when heightened review isn't formally applied, e.g., Cleburne, Moreno, Romer), it rarely does.
9.16.2009 10:15am
martinned (mail) (www):

We also recognize the meme of marriage as between one man and one woman whether or not we wish to change it for the generations to come.

Meme alone is not enough justification, unless there is a rational basis for drawing a line in the first place.
9.16.2009 10:26am
Ken Arromdee:
This leaves the homosexual couple in much the same position as a 16-year-old demanding the vote. While certainly in the instant case the 16-year-old may well be more responsible and fit to exercise the franchise than many who are extended that by the law, it would take a lot of effort to sort out the cases of unusually mature children from everything else, and the government isn't necessarily under an obligation to do so.

If the law sets an age limit for voting instead of judging each person's maturity individually, and prevents a mature 16 year old from voting, that error is temporary; a few years later, the 16 year old can vote. If the law keeps a homosexual from marrying, that error is permanent. That's a big enough difference to make the analogy moot. A better analogy would be something like a law that bars people from Kansas from voting on the grounds that they are less mature on the average than the general population. Even if that was true, that would be a bad law.
9.16.2009 10:26am
David Schwartz (mail):
I agree with your basic conclusion that a court is entitled to interpret the constitution within the cultural context of patterns and memes that were current when the document was written until and unless there are new facts that are forceful enough to trigger a reevaluation. Such new facts are common in technology areas, but less common in human behavior. In the case at hand however, science has provided many new facts in the last 20 years or so.
I disagree very, very strongly with this. When the constitution says you have a right to "due process", for example, that means that all you must do is show that some process is in fact "due" and then you have a Constitutional right to it. To argue otherwise is to deny the words in the Constitution their plain meaning.
9.16.2009 10:50am
SeaDrive:

Meme alone is not enough justification,...


I think we are back to OK's proposition. The meme provides a certain "we know who we mean" and the complicated line-drawing is merely clumsy codification.
9.16.2009 10:56am
martinned (mail) (www):
@Sea Drive: Yes, but "we know who we mean" only works if person-by-person selection would be OK, i.e. if there is a rational basis for some line. I have yet to hear on what basis one would decide couple-by-couple who gets to marry and who doesn't.
9.16.2009 11:07am
Anderson (mail):
I have yet to hear on what basis one would decide couple-by-couple who gets to marry and who doesn't.

Credit check, IQ scores, a brief discussion of A la recherche du temps perdu ....
9.16.2009 11:10am
John425:
Your argument still strikes me as specious. Civil society paints in broad general strokes and hair-splitting on behalf of same-sex marriage is a "special interest" vertical.

We don't go for incest, polygamy and the notion of a 45 year old man marrying a 9 year old girl. Allowing such is not the benchmark of an enlightened society.
9.16.2009 11:12am
JPG:
I wonder what would the rational argumentation based on tradition have had to say about interracial marriage before 1967. I reckon there are striking differences between both cases, but I get reminded by the past that tradition should only be regarded with great caution just as much as it should be respected.
9.16.2009 11:21am
LarryA (mail) (www):
When the state takes on the task of defining who should receive a government benefit, and that definition requires a great deal of complicated linedrawing, it is presumptively rational for a legislature to draw lines in ways that match traditions or common contemporary practices. As the amount of required linedrawing increases, and it becomes harder to justify one specific line over another, it becomes rational for a legislature to simply mirror the status quo rather than craft a new approach.
My theory is that if your line-drawing gets that convoluted, your basic premise is flawed. What actually happens is that as the complexity of the law increases, so do the opportunities to game the situation, which requires further line-drawing, which creates more opportunities to game, which...

An example: Several years ago three women approached the county clerk in San Antonio and requested a marriage license. One of them was an attorney friend of mine who was orchestrating the affair, and the other two were her clients, the applicants. The clerk, of course, explained that in Texas two women could not get a license to marry. "True," my attorney friend said. "However, this member of the couple, while she is now a woman, was originally born a man. She has had her gender reassigned through surgery. Therefore, by her DNA, she is still, for the purposes of that law, a man." The clerk, after consultation (and a lot of publicity) was forced to issue the license. I believe there were later attempts to legislatively close that "loophole."

I also note that "tradition" and "common contemporary practices" are often in as much conflict as the laws that try to mirror them. You only have to look down a few entries to the Supreme Court case concerning sex toys. There the government is arguing that devices which kazillions of people willingly purchase somehow also "outrage community moral standards."
Marriage, to the extent that the state yields benefits to the married couple, is an easy way to induce men and women to form stable families to raise children, or at least families in which children might plausibly result. Rather than strenuously check each couple's potential fertility, the government takes the easy way out; if the couple has the correct set of reproductive organs for the generation of kids, and enough separation of consanguinity that the kids aren't likely to grow up deformed, eh, they'll call it okay.
Somehow I think this argument would be completely unpersuasive if the government tried to restrict marriage of women over 40, due to their infertility and the proven likelihood of a greater probability of problem births. SSM opposition is really about homophobia.
No, its more a response to what happens in such societies. The a large percent of men simply cannot get wives in such societies, which causes huge societal turmoil.
You're presuming, of course, that the polymarriages will be one-man-plus-wives, when there is an equal rational for one-woman-plus-husbands.
At least, one could easily formulate an argument that the State has an interest in regulating sodomy -- as it is a primary behavioral vector for HIV transmission -- which it seems to me should then be able to survive the extremely deferential rational basis test.
Except that promoting monogamous marriage relationships between men would be one of the most effective techniques to limit HIV infection.
9.16.2009 11:23am
badlaw (mail):
In the case of same sex marriage, the state has no analogous rational interest to prevent homosexuals from marrying each other so there is no reason for them to arbitrarily draw the line there, unless you're going to argue pure tradition (which is its own separate unpersuasive argument).

The state's interest isn't to necessarily prevent homosexuals from marriage, it is to encourage marriage among heterosexuals. It can be argued that the marriage benefits conferred on married couples (for the sake of argument, assume that intrinsically implies a heterosexual couple) is to incentivize them to procreate and raise their children together because that's generally the ideal standard for children, and traditionally, these benefits were meant to address the specific dynamic between men and women (not just biologically, but socially and economically, considering men work and earn more than women, even today) and that these benefits not only have never relied on the same-sex relationship to propagate the conferral of these benefits, but they weren't necessarily meant to perpetuate a general good that would apply to any romantic relationship, irrespective of its fecundity.
9.16.2009 11:30am
Melancton Smith:
Orin,
Where is the government's interest in restricting it's licensed union (marriage) to opposite sex couples? This is the real question, in my opinion. The only interests I have ever seen offered end up being religious in nature. I don't think the government should be in the business of defining marriage. The Federal government has no business at all (DOMA seems to lack constitutional support). The State governments have an interest in areas you mentioned such as consanguinity, age of majority, and inheritance issues. Bestiality is reductio ad absurdum as it is as irrelevant as child-marriage. Beasts, like children, cannot consent under our law.

States should issue civil unions only and those should specifically be between any 2 consenting adults not too closely related.
9.16.2009 11:38am
SeaDrive:

There the government is arguing that devices which kazillions of people willingly purchase somehow also "outrage community moral standards."


IIRC, Larry Flynt was convicted of violating the community standards of Memphis despite the (tens of?) thousands of copies of Hustler sold there. In too many cases, one has to be wary of outraging the DA's moral standards, no matter the opinion of the larger community.
9.16.2009 11:41am
troll_dc2 (mail):
Is Baker v. Nelson, 409 U.S. 810 (1972), irrelevant to this discussion? The Supreme Court already has a default position on the same-sex mariage issue. It found that no substantial federal question had been raised by the Minnesota Supreme Court's ruling that "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex." Baker v. Nelson, 291 Minn. 310 (Minn. 1971).

Certainly times have changed both in society and in law, but there is the added complication of asking the Court to overturn precedent, which it does not like to do (unless it involves such things as campaign financing).

Of course this discussion concerns only the federal courts; the state courts are free to do what they want using state-law sources.
9.16.2009 11:44am
Gabriel Malor (mail):
I agree with Chird's excellent analysis.

Professor Kerr, the argument avoids the question meant to be answered by equal protection analysis (even rational basis review): why is a distinction being made between groups of people. The answer to that question can never be: because it's convenient to divide them that way.

For example, marriage age requirements do not pass rational basis review merely because because a line has to be drawn somewhere and 18 is convenient or traditional. They pass rational basis scrutiny because the government has rationally determined that minors should not be married. In other words, the "arbitrary" placement of the line at 18 years of age isn't the reason we have marriage age limitations.

Moreover, I agree with the commenters above who note that this line of argument is particularly unhelpful in the gay marriage debate because no one is suggesting (and no one can suggest with a straight face) that the distinction being drawn between opposite-sex couples and gay couples is arbitrary in the way that setting the age limit at 18 is arbitrary.
9.16.2009 12:06pm
Will's Post (mail):
Based on numbers of comments alone, it looks like Prof. Somin's article about the political leanings of Jews in America is garnering more interest than this article regarding the Constitutional and same sex marriage.

Discuss.
9.16.2009 12:23pm
ShelbyC:
It'd probably be helpful in this debate to know why marriage itself passes a rational basis test.
9.16.2009 12:26pm
Gabriel Malor (mail):
Orin Kerr:
In the context of the same-sex marriage debate, then, it seems to me that the need to draw lines and the traditional limitation of marriage to opposing sex couples itself helps provide a rational basis for using the traditional definition of marriage as between a man and a woman. A legislature trying to answer the many questions and line-drawing exercises required by any definition of marriage could reasonably adopt the traditional way of doing things rather than have to justify new lines.


I want to emphasize that this argument misses the point of rational basis review (or any other equal protection analysis). The gloss is the concept "the need to draw lines." He has not suggested any reason for "the need to draw lines" except that they have been traditionally drawn that way. This is merely the "traditional argument for marriage" repackaged with some rationalization that it provides a rational basis for marriage laws because it is convenient.

That traditional argument has been rejected by several courts considering marriage, but the very best discussion of it I have seen is that by Justice Cady of the Iowa Supreme Court. PDF: It starts on page 52.
9.16.2009 12:26pm
zuch (mail) (www):
Prof. Kerr:
Why 16 years if a parent consents, and not 16 years, 4 months, and 19.5 seconds? No matter who draws the lines required to define marriage, some parts of the definition are going to be rather arbitrary.
I think the answer WRT SSM comes from the invidious discriminatory intent, based on the well-established history here.

Cheers,
9.16.2009 12:26pm
einhverfr (mail) (www):
I tried to write a longer piece to bolster Orin's opinion, but I came to the conclusion that the argument breaks down in an important, fundamental way.

The reason why we have many of our protections in the Bill of Rights is that we are supposed to be a pluralist nation. When the government tries to force one group's cultural standards down the throat of everyone else, whether by allotment of benefits, restrictions of speech, or whatever, we should be deeply suspicious. Maintenance of culture for one group should not be a rational basis for any law ever.

Rational basis review is a mechanism to try to separate functional requirements of law from cultural tradition. Merging them becomes problematic.

I don't think that culture or tradition ALONE is sufficient rational basis for anything then. Sure, society should give deference to tradition. And sure, rational basis review would have been passed with flying colors in the 50's.* However, the argument would make it impossible to strike any law off the books that has been there for some time regardless of enforcement pattern.

In thinking this through, I have concluded that this basic interest in pluralistic government is compatible with most of the jurisprudence of most Bill of Rights amendments, but strikingly at odds with the way 8th Amendment jurisprudence has developed.....
9.16.2009 12:30pm
zuch (mail) (www):
NotMyRealName:
For instance, for over 2000 people years people thought that all sorts of illnesses were best treated by application of leaches -- even there was no rational basis whatsoever for that practice.
While I agree with your point, this is a bad example. Recent research shows that leeches may in fact be therapeutic for some medical conditions.

Cheers,
9.16.2009 12:33pm
ShelbyC:

I think the answer WRT SSM comes from the invidious discriminatory intent, based on the well-established history here.


But most laws have an invidious discriminatory intent. Isn't the point of rational basis review to determine when that's OK?
9.16.2009 12:44pm
AF:
I also agree with chird's excellent analysis, except for one thing: I don't think the race analogy is instructive, because race is clearly subject to heightened scrutiny. But the basic point seems pretty hard to refute:

I don't think pointing to all the "complicated line drawing" in unrelated elements of the marriage definition gets you a free pass to throw up your hands and use tradition to impose otherwise unjustifiable restrictions anywhere they might be made. You are aggregating to[o] much. Each line that is drawn is a decision to exclude a class of people and must be justified on its own merits.

I also think Intermeddler's point is basically right: If same-sex marriage really were subject to rational basis review, considerations like family promotion would be sufficient. I take it that Orin was looking for a rational basis that was less socially controversial than the available ones, but I don't think the argument works.
9.16.2009 12:45pm
martinned (mail) (www):

If same-sex marriage really were subject to rational basis review, considerations like family promotion would be sufficient.

a) What about lesbians with kids? Do they get to marry?
b) What about people over, say, 45? Do they get to marry?
9.16.2009 1:06pm
AF:
a) What about lesbians with kids? Do they get to marry?
b) What about people over, say, 45? Do they get to marry?


I think you're saying it's not narrowly tailored to the end of family promotion. But that's the analysis under heightened scrutiny, not rational basis.

To be clear, I believe the Court has been applying de facto heightened scrutiny to anti-gay laws for some time now, and rightly so. For precisely that reason, as Intermeddler pointed out, discovery of a new rational basis to uphold current marriage laws is unlikely to change the outcome of the same-sex marriage challenges.

It's still a worthwhile exercise to come up with the most sophisticated available argument for one side or the other. But I think this particular effort falls short, for the reasons mentioned by chird.
9.16.2009 1:21pm
Anderson (mail):
It'd probably be helpful in this debate to know why marriage itself passes a rational basis test.

Unmarried judges, perhaps?

(Cf. Dr. Johnson's definition of "remarriage" as "the triumph of hope over experience.")
9.16.2009 1:23pm
Randy R. (mail):
"At least, one could easily formulate an argument that the State has an interest in regulating sodomy -- as it is a primary behavioral vector for HIV transmission -- which it seems to me should then be able to survive the extremely deferential rational basis test."

If that were true, then you would have to allow lesbians the right to marry, as their incidence of HIV transmission is far lower than that of heterosexuals.

Jon Roland:"Children? No. Same-sex couples, like singles, can adopt. But they can't procreate with each other. That is the key: the public interest in controlling who may reproduce."

First, lesbians can certainly have children, and birth the children within a SS union. Second, why would the state have any public interest in controlling who may reproduce? Third, if they did, how would preventing SSM achieve that goal? Fourth, the state has an interest in protecting any child, and therefore should allow the parents to get married so that the child can obtain the max amount of benefits and protections.

Splunge: "You can legislate that spades are called dirt implements or splorks as much as you want, and it won't do a damn thing."

Agreed. But if we look at the example of Massachusetts, you see that the courts first imposed SSM, even though less than 50% of the people supported it. Today, now that they have had to live with it for several years, support for is way above 50%. So much so, that petitioners trying to reverse it have gone no where.

So, what that means is that the courts CAN in fact be instrumental in helping shape public opinion.

Badlaw: "The state's interest isn't to necessarily prevent homosexuals from marriage, it is to encourage marriage among heterosexuals"

IF this were true, then why hasn't it worked for the past few hundred years? I still see plenty of heterosexuals who live together and don't get married.
Or are you saying that if gays are allowed to marry, it will somehow diminish marriage among heterosexuals? If so, please explain how that works.
9.16.2009 1:25pm
Brett Turner (mail):
1. For Orin's line-drawing argument to work, there has to be some nexus between the line which can be drawn in many different places and the classification which is being challenged. There any many potential reasonable minimum ages for marriage, so the legislature should get a good bit of deference.

But how does the difficulty in determining the *age* of marriage relate to the issue of *gender*? The gender dispute is bright line, yes or no to same sex marriage. It has no connection to disputes like age in which there are many potentially right answers.

If no one knows exactly where in the Ohio River Ohio ends and Kentucky starts, does that uncertainty justify Ohio in claiming three counties of land presently located in Indiana? (I realize that the Ohio/Kentucky border isn't uncertain; just trying to illustrate how legitimate uncertainty in one dispute does not necesarily justify deference in a unrelated dispute).
9.16.2009 1:43pm
zuch (mail) (www):
ShelbyC:
But most laws have an invidious discriminatory intent.
Really?!?!? Do tell.

Cheers,
9.16.2009 1:55pm
zuch (mail) (www):
FWIW, the so-called "rational basis" test (as implemented by the judiciary), is no such thing. No requirement is made that the policy be shown to be actually rational WRT the means and ends desired (with some few exceptions such as Cleburne v. Cleburne Living Center, which was likely a proxy for striking down invidious discrimination where they didn't want to actually say that is what they were doing). No evidence is required, no rational argument needed that the policy in question is actually rational and/or will do what it is said to be desired. What seems to suffice in most cases is that the lawmakers assert that they believe that such will pertain (and deny that they have other motives, no matter how obvious from the whole history), and such assertions are assumed (because lawmakers said them?!?!? See, e.g., Joe Wilson et al.) to be "rational".

That's hardly Enlightenment thinking, much less suitable for the 21st century.

Cheers,
9.16.2009 2:05pm
einhverfr (mail) (www):
Chird:

I disagree with some elements of your post, most notably this:

For example, in the case of age there is a rational basis that a line must be drawn somewhere--the state must protect children--so tradition is a fine guide for where to draw it.


In fact the lines relating to age of marriage are quite rational in where they are drawn and it isn't just a matter of protecting children.

18, as an age where marriage can be entered into without parental consent coincides with the completion of our basic system of education. Marriage, creating a home, and then possibly having children imposes a burden which can (and often does) preclude further education. The government's very compelling interest in preventing children from growing up to be public charges justifies these rules without resorting to questions of the maturity of the individual in question.

In fact, most cultures draw the line here exactly where we do: Where, on average, most people complete their basic education as required by the culture, whether this is by apprenticeship or formal schooling. The line is drawn where it is for very defensible practical reasons.

In fact, one of the best indicators of future earning power is whether people wait until after college to have kids. Even without kids though, marriage imposes time and opportunity costs on those getting married, and therefore is best approached after formal schooling is substantially completed (yes I am saying parents should counsel kids not to get married while they are attending college).
9.16.2009 2:08pm
Jon Roland (mail) (www):
Randy R.:

Jon Roland:"Children? No. Same-sex couples, like singles, can adopt. But they can't procreate with each other. That is the key: the public interest in controlling who may reproduce."

First, lesbians can certainly have children, and birth the children within a SS union. Second, why would the state have any public interest in controlling who may reproduce? Third, if they did, how would preventing SSM achieve that goal?

No. Procreate with each other, biologically, without the help of a third party. That is not yet technically feasible, although some day it may become feasible.

Historically, most societies have been in a more or less continuous state of war with their neighbors, and had an interest in producing many healthy soldiers and workers who would contribute to the war effort and to producing food, weapons, and other necessities of life. My grandparents came of age on the frontier and were pressured not just to marry, but to have a lot of kids, to develop the land, defend the community against Indians and other enemies, and generally contribute to economic growth that would benefit everyone. That was the environment in which most of our marriage laws were developed. The strongest, the fastest, the bravest, and the smartest were all encouraged to have a lot of kids, and those without such virtues were discouraged from having any at all. Healthy women who would make good mothers were expected to have as many children as they could, even if it killed them, as long as some other woman could step in and raise them.

All this seems strange to folks in 2009 but in the 19th century it was taken for granted. Knowing people from that era and how they thought provides a perspective that one can't get from reading or watching historical movies.
9.16.2009 2:34pm
ShelbyC:
Zuch:

Really?!?!? Do tell.


Well, I'll man up to taking some license with "invidious" there. But even so, I'm not sure that whether or not the legislature disaproves of the behavior that they're trying to regulate has any bearing on a rational basis analysis.
9.16.2009 2:44pm
ShelbyC:

States should issue civil unions only and those should specifically be between any 2 consenting adults not too closely related.


Of course, I'm not sure there's a rational basis for excluding same-sex couples who are closely related.
9.16.2009 2:48pm
ttre (mail) (www):
This is a doctrine that can justify almost anything because there are a wide range of practices and traditions.
9.16.2009 2:58pm
einhverfr (mail) (www):
John Roland:

I agree with this


Historically, most societies have been in a more or less continuous state of war with their neighbors, and had an interest in producing many healthy soldiers and workers who would contribute to the war effort and to producing food, weapons, and other necessities of life. My grandparents came of age on the frontier and were pressured not just to marry, but to have a lot of kids, to develop the land, defend the community against Indians and other enemies, and generally contribute to economic growth that would benefit everyone. That was the environment in which most of our marriage laws were developed. The strongest, the fastest, the bravest, and the smartest were all encouraged to have a lot of kids, and those without such virtues were discouraged from having any at all. Healthy women who would make good mothers were expected to have as many children as they could, even if it killed them, as long as some other woman could step in and raise them.

All this seems strange to folks in 2009 but in the 19th century it was taken for granted. Knowing people from that era and how they thought provides a perspective that one can't get from reading or watching historical movies.


The only problem is that having previously had a rational basis doesn't mean that a law passes rational basis review today.

Everybody hates my perspective, that bans on SSM used to have a rational basis but that this has been undermined to the point where at least in many states it can no longer sustain the law.
9.16.2009 2:59pm
Jon Roland (mail) (www):
To provide another historical insight, in Ireland during and surrounding the Potato Famine of 1845-48, a response to the perceived overpopulation was social pressure, led by the Church, to discourage or delay marriage until one could support children. That had the effect of greatly raising the average age of marriage, factoring in a high number of men and women who never married at all.
9.16.2009 3:02pm
Toby:
Education is the least of the concerns. Traditionally, in this culture, the ages were 18 and 21, tied to diferential maturities for Men and Women. This was only changed by the politics of the Viet Nam war. While women can bear before 18, doing so gives them fewer healthy babies raised to majority--there was some palentologocal geneteics work published last spring that suggests that delaying births until 18 is an across the board population growth optimizer, and a key distinction in differential fertility between humans and chimps...

The brain studies of when males begin to make consistent trational decisions suggest the early 20s...

As to culture, well culture tries to fit the education that it can into someone before they become their own responsibility. The culture comes second...
9.16.2009 3:12pm
Randy R. (mail):
Jon: "Procreate with each other, biologically, without the help of a third party. That is not yet technically feasible, although some day it may become feasible. "

And why should that have any distinction whatsoever? The child still exists and deserves the same rights and protections, unless you can come up with a ration reason why Child A should have them, but Child B should not.

" The strongest, the fastest, the bravest, and the smartest were all encouraged to have a lot of kids, and those without such virtues were discouraged from having any at all"

Really? What laws did we have that discouraged anyone from having children because they weren't as smart or brave? Or what societal pressures were there? In fact, if there were any societal pressures, they were much more complicated than that. Our marriage laws are derived from English law, which dates to the medieval period. People of means, for instance, would likely have many children to spread their influence. Or not, because it would dilute the inheritance. Which is why some aristocrats had many children, and other had few. Some had illegitimate children, and others did not. The fact that the results are all over the place indicates that even if there were laws or societal pressures as you suggest, they certainly were not very effective.

In any case, even if such thinking were once true, it isn't true today. Times do change. Today, we have too many children in foster care, and not enough adoptive parents. Therefore, our laws should encourage adoption by any qualified parents. Since gay people can be qualified parents, then the laws should encourage gays to be married if they wish to adopt, thereby affording the children the best conditions to grow up.
9.16.2009 3:13pm
Randy R. (mail):
Jon: "That had the effect of greatly raising the average age of marriage, factoring in a high number of men and women who never married at all."

And after the plagues decimated Europe in the medieval period, pregnancy rates soared. I don't know if marriage rates increased, but I suspect no one really cared, as there weren't as many priests around to marry people, and you could just call yourself married. Or not, and few people cared -- what they cared about was repopulating the country. I'm not aware of any laws that were enacted to affect these changes, but suspect there were none.

Einverfr: "Everybody hates my perspective"

Not me! I'm loving it!
9.16.2009 3:17pm
ChrisTS (mail):
Joh D and Randy R have both made good points in response to the nonsense about HIV.

Still, I have to observe - once again - how many here presume that SSM is always about males marrying males. There are women who want to marry women and intersex people who want to marry just someone without absurd rigmarole about which of only two sexes they are according to each jurisdiction.
9.16.2009 3:19pm
Randy R. (mail):
"The strongest, the fastest, the bravest, and the smartest were all encouraged to have a lot of kids, and those without such virtues were discouraged from having any at all."

Personally, I think couples should have to pass a test before they plot out children. Too many today are raised by crummy parents, and that causes a lot of problems in our society. I know several gay and lesbian couples that are far stronger, faster, smarter and braver than a lot of straight couples I know. If that were the test, then you'd have to admit that SSM has a lot going for it.
9.16.2009 3:21pm
Jon Roland (mail) (www):
Randy R.:

What laws did we have that discouraged anyone from having children because they weren't as smart or brave?

Most of the laws were incentives to the more fit, such as grants of land to veterans and those able to get to the land and stake a claim. My grandfather got a house and land for teaching school, which enabled him to have seven children.


Or what societal pressures were there?

Read the letters, sermons, news articles, and other evidence from the era. It was very strong. Get the bride prices or dowry rates in various places. Or the discussions of restricting marriage licenses to those able to raise children properly. Land sellers would sell land at a good price to good families and refuse to do to so to "bad" ones. Bankers would discriminate in favor of more promising families in the making of loans. Employers would hire married men with kids and not single men (and there is still a bias for that). Good girls were kept apart from the wrong men. Marriages were arranged between children of good families.

All this still goes on in most of the world today. It is just here in the U.S., after a century of unprecedented prosperity, that we can talk about the luxury of relationships not conditioned by social pressures.
9.16.2009 3:37pm
yankee (mail):
I agree with the others who have pointed out that the opposite-sex requirement bears no resemblance to choosing exactly how old you should have to be to get a driver's license or whether the statute of limitations should be four years or four years, six months.
and intersex people who want to marry just someone without absurd rigmarole about which of only two sexes they are according to each jurisdiction.

And transgender people have the same problem, since some states recognize them as members of their biological sex and others recognize them as members of the sex they identify as. It produces the perverse result that a transwoman (or woman with ambiguous genitalia) who marries a woman may be in a legal "heterosexual" marriage in one state and an illegal same-sex marriage in another.
9.16.2009 3:43pm
Randy R. (mail):
" Or the discussions of restricting marriage licenses to those able to raise children properly."

Discussions, but no laws. You haven't been able to cite to any actual laws that restricted marriage rights to only the 'good' people. Sure, there are laws that provide incentives to people to populate the land, and perhaps that in turn enabled children procreation. But there were many other factors that go into having large families.

But even if this were all true, how is this an argument against SSM today?
9.16.2009 3:47pm
Jon Roland (mail) (www):
Randy R.:

Personally, I think couples should have to pass a test before they plot out children.

In generations previous to my own it was a major part of childrearing to teach them how to be spouses and parents, by assuming more and more of the duties of parents, caring not only for their own younger siblings but those of their neighbors. Both boys and girls were trained that way. By my generation the avereage number of children in a family fell to two or less. I was an only child and never got any of that training in the care of children. Similar story for most of my classmates, who did manage to learn by observing but not by practice. By the next generation, those skills were no longer being systematically propagated.

There was another factor, discussed here: The transition from one-room schoolhouses in which more advanced students helped teach less advanced ones, to grouping students into classes by age. My grandfather when through that transition, and warned that in the latter system kids were too much under the influence of other kids and not under enough influence by adults. he was concerned it would result in immature parents raising children who never fully mature, a nation of adolescents.
9.16.2009 3:52pm
einhverfr (mail) (www):
Jon Roland:

All this still goes on in most of the world today. It is just here in the U.S., after a century of unprecedented prosperity, that we can talk about the luxury of relationships not conditioned by social pressures.


In other words, the rational basis has been undermined by our economic success.
9.16.2009 3:57pm
Randy R. (mail):
Finally, we have total agreement! I never thought about the one room schoolhouse issue, but that actually makes sense.

But of course it does -- in smaller communities, there is much more opportunity and need to learn from each other on parenting and many other issues. We just don't have that today, at least not in most of the US.
9.16.2009 3:58pm
ChrisTS (mail):
yankee:

Good point; thanks for the expansion.
9.16.2009 3:59pm
Randy R. (mail):
" It is just here in the U.S., after a century of unprecedented prosperity, that we can talk about the luxury of relationships not conditioned by social pressures. "

But that's a good thing, in my mind. 100 years ago, gay people were pressured to marry because of society and I hardly think that was good for anyone. Today, there is much less of that pressure -- now we can at least partner up with those whom we like. And if we don't want children, there is little pressure to have any, and that's a good thing too.
9.16.2009 4:00pm
einhverfr (mail) (www):
John Roland:

The transition from one-room schoolhouses in which more advanced students helped teach less advanced ones, to grouping students into classes by age. My grandfather when through that transition, and warned that in the latter system kids were too much under the influence of other kids and not under enough influence by adults. he was concerned it would result in immature parents raising children who never fully mature, a nation of adolescents.


There is actually a movement among at least some private schools to bring back elements of the one-room system. I will take your grandfather's opinion seriously and consider this more than I have in the past.

Thanks.
9.16.2009 4:00pm
Jon Roland (mail) (www):
Randy R.:

Discussions, but no laws. You haven't been able to cite to any actual laws that restricted marriage rights to only the 'good' people.

There were laws against marriage by the "feebleminded", but by and large it was local public policy that was not made explicit in statutes, but those "discussions" were about selective or discretionary enforcement. There has never really been a time in this country when laws have been uniformly applied. I remember even in my own time when the county clerk refused a marriage license to a couple who were of bad reputation, and he had the backing of the community in doing so. There was nothing in the statute defining who was fit, but community standards operated nonetheless. (The couple were not minority members, but had a history of petty delinquency, including drunkenness.)
9.16.2009 4:01pm
einhverfr (mail) (www):
Jon Roland and Randy R:

One other point.... In the past when you retired, you generally moved in with your kids. That is still similar to the way the Amish handle retirement (the kids build their parents a small house next to their own, called a "Grampa House" (translated from Pennsylvania Deutch)).

If you didn't have kids it would be tough-- you couldn't depend on systematic assistance in living in your old age. Throughout much of the world this is the case as well.
9.16.2009 4:05pm
Jon Roland (mail) (www):
einhverfr:

There is actually a movement among at least some private schools to bring back elements of the one-room system.

Yes. I am involved in it. Its method is called the Lancasterian Monitorial System. There are Lancasterian schools in the UK and in Mexico.
9.16.2009 4:07pm
einhverfr (mail) (www):
Yankee:

Good point. But we can expand that even further and point out that of an OSM couple has one member that then undergoes a sex change operation, then depending on state law, the couple may be a legal SSM couple even though SSM is not otherwise legally recognized.
9.16.2009 4:09pm
Tim Nuccio (mail) (www):
This assumes the rampant problems of equal protection in such statutes as DOMA are going to be subjected only to rational basis scrutiny, which I don't find very persuasive. We wouldn't allow rational basis scrutiny in a civil rights act case, so I can't see why we would deny one's 5th and 14th amendment rights under rational basis review, either.
9.16.2009 4:15pm
Putting Two and Two...:
First of all, opening up marriage to same-sex couples isn't about drawing a line, it's about erasing one.

Second, if the government's response to meeting the needs of same-sex couples and "defending tradition" at the same time is to draw literally hundreds of new lines granting some -- but, God forbid, not all -- the rights of marriage with similar but differently restricted rights and responsibilities (fer instance, California's rule that Domestic Partners must cohabit), doesn't that obliterate the argument that the government is taking he easy approach?
9.16.2009 5:12pm
einhverfr (mail) (www):
Randy R:

I figured you wouldn't like my view because it would undermine the idea that just because allowing SSM seems necessary in the US today doesn't mean we should be expecting all other countries in the world to follow our lead, and it doesn't mean suggesting we were wrong in the past either.
9.16.2009 5:15pm
Putting Two and Two...:

Marriage is an empirical, observable fact: a form of behaviour entered into by men and women since Cro Magnons, and which exists whether or not government does, under any form of government, and indeed would persist secretly even if government did its level best to eradicate it (as at times it has: cf. slave "marriage" in the antebellum South).


In other words, marriage is a lot like homosexuality.
9.16.2009 5:17pm
Putting Two and Two...:

The state's interest isn't to necessarily prevent homosexuals from marriage, it is to encourage marriage among heterosexuals.


So it is in the state's interest to discourage homosexuals from marrying heterosexuals, no?
9.16.2009 5:18pm
einhverfr (mail) (www):
Splunge:

Marriage is an empirical, observable fact: a form of behaviour entered into by men and women since Cro Magnons, and which exists whether or not government does, under any form of government, and indeed would persist secretly even if government did its level best to eradicate it (as at times it has: cf. slave "marriage" in the antebellum South).


Of course, in medieval Irish law, one-night-stands were marriage and divorce all wrapped up in one package......
9.16.2009 5:21pm
Bob VB (mail):
Most of the arguments for SSM seem to apply equally to polygamous arrangements. Are there logical reasons (aside from practicality) that favor SSM but not polygamy?
You've framed the question to bias an answer. There is no such thing as 'same sex marriage' there is only marriage. The majority human beings are biologically attracted to a particular gender, not an opposite one. If some citizens have a right to license a contract with a spouse of a particular gender I have never seen a reasonable argument for why all citizens should not have that same right. Without it, some citizens and their spouses are ignored by the state and others are not. In a nation where government is dedicated to serve the individual and that all citizens have an expectation of equal treatment by the government how can such 'special rights for some' be argued? If citizens and their spouses of a particular gender are going to be licensed with the state then all citizens should have that right.

Polygamy is different in that no citizens are allowed to license more than one spouse in all the configurations that might occur. Additionally there are no known citizens who are only able to have a single spouse. So the situations are very different:

That for most people the spouse must be of a particular gender is a given, common knowledge as it were and without the ability to license a contract with a spouse of that gender is basically saying they cannot reasonably license any spouse.

For polygamy it is not common knowledge that there exist any who cannot 'marry' with only a single spouse, and none are being denied licensing a spouse. Add in that few are asking for true polygamy but rather sexist polygyny and it fades as a consideration.

Marriage is a natural state, that comes from our natural attraction to others, usually of only one particular gender. The religious rite and the civil contract are only reactions to this reality, they do not spawn it. We can delay allowing children from indulging it, we can limit the number of people who can do so as a single unit, we can even limit the prospective pool by some few close relatives for the various reasons listed. What we cannot do is make a rule that effectively says a citizen has no present or future prospect to license their spouse with the state if others are allowed to do the same with the exact same individual.

That is what's changed - we aren't attracted to 'opposites', no biological attraction mechanism checks in your 'genes' before being attracted to another. All we have are citizens who are attracted to men or women and if some can license the relationship that grows out of that attraction to a gender than why can't they all?

Washington and California have gotten around the complaining by allowing 2 contracts to be licensed and viewing the contracts themselves as mere 'containers' for rights. While a citizen might have an equal 'right to the rights' they don't have a right to the mere container that holds them.

Simple case of government serving it citizens equally and ignoring the tradition that the urge to marry springs out of some mythical attraction to 'opposites' - its just not true.
9.16.2009 6:14pm
comment reviewer:

Polygamy is different in that no citizens are allowed to license more than one spouse in all the configurations that might occur. Additionally there are no known citizens who are only able to have a single spouse. So the situations are very different:

Special pleading.

Why should bisexual bigamists not have an equally forceful right to their preferred form of marriage? Your line-drawing, which goes a step further but stops at monogamous homosexuality, is arbitrary.
9.16.2009 6:28pm
Lymis (mail):
<blockquote>Most of the arguments for SSM seem to apply equally to polygamous arrangements. Are there logical reasons (aside from practicality) that favor SSM but not polygamy? </blockquote>

Actually, most of the arguments for opposite sex marriage seem to apply equally to polygamous arrangements. Are there logical reasons (aside from practicality) that favor opposite sex marriage but not polygamy?

Given that one of the tenacious arguments people trot out against same-sex marriage is that it doesn't have Biblical or historical cachet, it seems that there are MORE "traditional" arguments for polygamy than for same-sex marriage.

Why saddle same-sex marriage with the responsibility for preventing polygamy? Whatever is keeping it from happening now will keep it from happening if the franchise is extended to all couples.

And to head it off, please don't try to use the same-sex component of polygamy (two of one gender, one of the other) as the basis for the objection, because first, somehow that never comes up, and second, it creates a circular objection to same-sex marriage.
9.16.2009 6:29pm
einhverfr (mail) (www):
Bob VB:

You've framed the question to bias an answer. There is no such thing as 'same sex marriage' there is only marriage. The majority human beings are biologically attracted to a particular gender, not an opposite one. If some citizens have a right to license a contract with a spouse of a particular gender I have never seen a reasonable argument for why all citizens should not have that same right. Without it, some citizens and their spouses are ignored by the state and others are not. In a nation where government is dedicated to serve the individual and that all citizens have an expectation of equal treatment by the government how can such 'special rights for some' be argued?


In the past, I think, the procreative argument would have been sufficient. Nowadays, I don't think it is. If, on the other hand, we didn't have social security, didn't have pensions and didn't have assisted living facilites which were affordable to the majority of retirees, I would suggest that the procreative argument would still be valid, as it would if our economy was constrained by a lack of manpower. As I said in response to Mr Roland, I think that developments over the last centuries have undermined valid rational bases for that distinction. That rational basis though does hold true in most of the developing world however.


Polygamy is different in that no citizens are allowed to license more than one spouse in all the configurations that might occur.


It's also different in another important aspect, as it occurs today. Anti-polygamy laws have two prongs:
1) Denial of marriage benefits
2) Criminalization of concubinage

I think that the second prong is indeed in trouble given Lawrence and in a few decades will be declared Unconstitutional. At that point concubinage would be legal but plural marriage, as a packet of rights, would not be extended to the concubine.

The issue on the first prong though is a practical reason which courts won't want to delve into because it would involve restructuring benefits rather than merely extending eligibility.
9.16.2009 6:34pm
Randy R. (mail):
Jon: "I remember even in my own time when the county clerk refused a marriage license to a couple who were of bad reputation, and he had the backing of the community in doing so. There was nothing in the statute defining who was fit, but community standards operated nonetheless."

I had no idea, but of course I'm sure these things happened. This was before our society got litigious. Or maybe they wanted to, but couldn't find an attorney to handle their case!

(sigh). There are of course a great many societal benefits that we have lost over the years. My sister suffers from a mental illness that I'm sure would never have gotten very far if she had to live in a community where everyone is dependent upon each other. You can't isolate yourself like you can today. I think every family should take in a retired parent (up to the point where they start needing regular professional care in a home) because it benefits the grandkids as much as the grandparents. But anyway, this is way off topic.

Ein: "I figured you wouldn't like my view because it would undermine the idea that just because allowing SSM seems necessary in the US today doesn't mean we should be expecting all other countries in the world to follow our lead, and it doesn't mean suggesting we were wrong in the past either."

There is a difference between the world as I would like it to be, and the world as it is. In the long run (and usually the short run), I find it is best to accept the world as it is and then try to deal with it, or change it as I would like, rather than assuming things that are not true.
9.16.2009 6:37pm
John A. Fleming (mail):
A technical point on precision. If the Legislature specified 16.529 years as the minimum marriage age, I think most people would expect that there was an extremely defensible reason for the 0.529 part. And since there wouldn't be, it would call doubt upon the whole drawn line choice.

Keeping it at whole years, signals that it's a legislatively drawn line, a We the People choice.
9.16.2009 7:54pm
einhverfr (mail) (www):
Randy R:

I think every family should take in a retired parent (up to the point where they start needing regular professional care in a home) because it benefits the grandkids as much as the grandparents. But anyway, this is way off topic.


Completely agreed there. Absolutely no question.
9.16.2009 8:01pm
Bob VB (mail):
]Why should bisexual bigamists not have an equally forceful right to their preferred form of marriage? Your line-drawing, which goes a step further but stops at monogamous homosexuality, is arbitrary.
Only with your special framing. The difference is pretty plain:

Does does a man with who can only be reasonably expected to have a male spouse have ANY opportunity to license that spouse with the state?

The question isn't and never has been 'Should anyone be able to do anything in regards to spouses?' but rather 'should everyone be able to do something in regards to spouses?'

As with the special framing of 'opposites' it is contrary to the reality of the situation - remember laws are mere conceptual tools and are unreal in and of themselves. If they don't reflect the way reality is you toss them not cram to make reality fit law.

In the past, I think, the procreative argument would have been sufficient. Nowadays, I don't think it is.
No not now when we know that 17% of married citizens don't procreate already - fretting over that number going to 18 or 19% is pretty obviously bogus.

2) Criminalization of concubinage
would that be by state? We in Washington don't recognize common law marriage and as long as they didn't have a ceremony a guy can live with as many women as he wants. I know the second wife of an Islamic man here, primary is licensed, second has no exceptation of being.
9.16.2009 8:20pm
hazemyth:
I think Cato the Elder's intellect has declined since his demise:


the State has an interest in regulating sodomy -- as it is a primary behavioral vector for HIV transmission -- which it seems to me should then be able to survive the extremely deferential rational basis test.


The basis would be something along these lines, I take it: 'sodomy' (as he so indelicately puts it) has a higher incidence of HIV transmission, gay marriage promotes sodomy, hence gay marriage should be banned. Cuz, you know, in he eighties, HIV rates were skyrocketing because of all that gay marriage going around. And surely gays would never think of sodomizing each other without a marriage license.

I mean, realistically, this would be an argument in favor of gay marriage, and it's presumptive promotion of sexual monogamy.

Yet, after the Washington decision, I somehow suspect that a court might accept the former argument.

And more generally, what is it going to take to get people to realize that gay couples have kids? It ain't some big secret.
9.16.2009 10:12pm
Randy R. (mail):
It really has nothing to do with HIV, hazemyth. It's all about the damn gays having sex! If we can just figure out a way to get those gays to stop having sex (gay men, that is. Lesbian, especially hot ones, can still have all the sex they want. Provided they videotape it and put it up on Xtube), then we won't be bothered with all their silly demands.
9.16.2009 10:36pm
badlaw (mail):
Randy R.

Badlaw: "The state's interest isn't to necessarily prevent homosexuals from marriage, it is to encourage marriage among heterosexuals"

IF this were true, then why hasn't it worked for the past few hundred years? I still see plenty of heterosexuals who live together and don't get married.
Or are you saying that if gays are allowed to marry, it will somehow diminish marriage among heterosexuals? If so, please explain how that works.

And there are plenty more who live together and do get married.

My point isn't to make that argument (it doesn't particularly make sense to me, either). It's to say that the state confers these benefits for specific, or at least generally specific, purposes. Those who believe the law should be overturned because it doesn't include same-sex couples tend to use roaming logic to justify their position.

You can definitely make the argument that marriage policy that exempts same-sex couples is bad policy, but then the responsibility would be on you to explain why. What I see happening is people attacking the right to define it in the first place -- which, in this context, hasn't been declared unconstitutional, or even socially flawed -- and asking people who believe in the status quo to defend it, even if what they're defending against is an arbitrary, imprecise, and speculative argument.
9.17.2009 12:11am
ReaderY:
Does government have a rational basis for prohibiting same-sex employment (in particular, employers with a same-gender sexual preference)? If so, what might that rational basis be? And why isn't it an equally rational argument as applied to marriage?

Is it rational to favor same-sex marriage but oppose same-sex employment? What is the rational argument for doing so. Why should people who think that ones choice of and choices in vocation represent a form of self-expression and an important life decision, or whose nature simply makes them that way in a manner over which they have no choice, have fewer constitutional rights than people who prefer the bedroom as their place to be self-expressive?
9.17.2009 12:12am
John D (mail):
Badlaw,

The problem with arguments like
the state confers these benefits for specific, or at least generally specific, purposes


is that no one has ever shown that these benefits were conferred for specific purposes or that they have achieved these supposed purposes.

Typically someone will say that "marriage is heterosexual because of X" and then come all the exceptions to X. The problem is that there doesn't seem to be any rational reasons for drawing the line to exclude same-sex couples.

Procreation? (Just to put an oft-cited specific up for examination.) Tell that to my grandmother who remarried at 64. And are out-of-wedlock births a sign that heterosexual marriage is promoting procreation?

And where is the evidence that any legislature considered procreation as they were applying benefits to marriage? Did they even try to exclude infertile couples?

I still vainly wait for a cogent argument against same-sex marriage.
9.17.2009 1:27am
einhverfr (mail) (www):
Bob VB:

No not now when we know that 17% of married citizens don't procreate already - fretting over that number going to 18 or 19% is pretty obviously bogus.


You misunderstand my point about procreation. A hundred years ago, our economy was manpower-contrained and our borders were not secure. Our society did everything it could to increase population including facilitating immigration, etc.

In a system where wide policies are in place to grow the population as quickly as possible, I think that procreation would indeed be a rational basis that would easily pass the test. Some people argue today that we have severe problems with an aging population because of declining procreation, but our government doesn't arguably care, outside the SSM debate that is. Consequently today it sounds either like a legacy of days gone by or like a pretextual basis.


would that be by state? We in Washington don't recognize common law marriage and as long as they didn't have a ceremony a guy can live with as many women as he wants. I know the second wife of an Islamic man here, primary is licensed, second has no exceptation of being.


I suppose it is by state. Maryland on the other hand explicitly requires a ceremony. Massachusetts outlaws concubinage too.

Utah and Nevada are quite specific about cohabitation and unregistered marriages being polygamous whether. In Washington State also the law seems to suggest that as soon as you start telling folks that you are married you have broken the law (wording there is "purports to marry").
9.17.2009 1:33am
Bob VB (mail):
In Washington State also the law seems to suggest that as soon as you start telling folks that you are married you have broken the law (wording there is "purports to marry").
Marriage and concubinage aren't the same thing - a concubine is specifically a woman that a man treats as a spouse that he hasn't licensed the civil contract of marriage with.

Though it is important that no ceremony has taken place in the state - in Washington any ceremony engaged it that would qualify as a marriage IS one in the eyes of the state, doesn't matter if the officiator was unqualified, or they didn't file the appropriate certificate with the state. So if the Islamic couple did have a religious rite of marriage performed in Washington they both would have committing bigamy whether he subsequently refers to her as being married to her or not.
9.17.2009 2:03am
Rick Xiao (mail):
Professor Kerr's tentative argument appears to be based on the legislature's wisdom of "drawing lines"——i.e., creating classifications. As such, the analytical frame of the whole thesis, from a constitutional standpoint, should be equal protection.


Contrary to Professor Kerr's contention, "to draw lines in ways that match traditions or common contemporary practices" is a decidedly insufficient justification for banning same-sex marriage. After all, not long ago in this country, it had been many states' "traditions [and] common contemporary practices" to criminalize interracial marriages. But it is well settled that a State cannot shield its discriminatory laws from constitutional scrutiny on the basis of tradition alone. Indeed, "[i]f a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed." Varnum v. Brien, 763 N.W.2d 862, 898(Iowa 2009).


In the same vein, if the government should, as Professor Kerr has asserted, give "deference to preexisting practices" and "adopt the traditional way of doing things," then marriage restrictions based on minority, bigamy, or consanguinity could be hardly justified as rational because these practices have exited——and still exist——in many countries, cultures, and religions throughout human history.


Therefore, Professor Kerr's tentative argument that "the traditional limitation of marriage to opposing sex couples ITSELF helps provide a rational basis for using the traditional definition of marriage as between a man and a woman" (emphasis added), would not withstand scrutiny even under the rational basis standard.
9.17.2009 2:54am
Lymis (mail):
Sorry, even a rationale of a need to increase the population doesn't count as a basis to deny same-sex marriage, just one to limit it to those couples raising children.

Someday, people are going to acknowledge that being gay does not render someone sterile. There are lots of gay people who have biological children of their own. Straight couples marry all the time and raise children who are the biological child of only one of the pair.

Even if straight marriage is solely about raising children (clearly false based on reality), nobody can seriously claim it is only about raising children produced by the couple, and void or invalid if the couple raises someone else's.
9.17.2009 8:10am
badlaw (mail):
The problem with arguments like [snip] is that no one has ever shown that these benefits were conferred for specific purposes or that they have achieved these supposed purposes.


I'll agree that there is a sort of inductive reasoning that goes into that kind of argument, but it's nevertheless a factual response. We have these benefits for a reason; we can agree on that, right? Even if we don't entirely know for certain why we have these benefits, that doesn't let proponents of SSM off the hook from showing how they're similarly entitled to all the instances of marriage. They can't simply rely on covetous entitlement ("if straight couples get them, we deserve them too") because that does beg the question of how and why they're different, and why they're treated differently.

Typically someone will say that "marriage is heterosexual because of X" and then come all the exceptions to X. The problem is that there doesn't seem to be any rational reasons for drawing the line to exclude same-sex couples.


But that's just it: proponents believe that's the motivating, overarching purpose of defining marriage. The problem is there need to be compelling rational reasons for drawing the line to include same-sex couples. Again, pro-SSM tend to frame the issue in this way that makes them look like they're being "excluded" for irrational, unforeseen reasons, but in reality (and this is why the tradition appeals are so popular), you can't really claim, persuasively that is, that people need a rational basis for excluding you from something you were never included in to begin with. You cannot conflate the active and passive premises here. I understand wanting an explanation for an active exclusion (meaning, something you would be entitled to but for the fact of argument "x" you don't have it), but you're not entitled to the same type of explanation for something that never did include you, unless YOU can make the point as to why you deserve to be included.

Procreation? (Just to put an oft-cited specific up for examination.) Tell that to my grandmother who remarried at 64. And are out-of-wedlock births a sign that heterosexual marriage is promoting procreation?

And where is the evidence that any legislature considered procreation as they were applying benefits to marriage? Did they even try to exclude infertile couples?

I still vainly wait for a cogent argument against same-sex marriage.


Like I said, showing that the purposes of marriage are not absolute doesn't totally negate them. Not every couple will have, or has had, children. We understand that. We haven't concluded that the issue is so important, or so costly, that we need to engage in this careful parsing of benefits. That doesn't mean the inverse is also true, though: that because we haven't taken many strides to tailor these benefits to our intended purposes, that they're actually inconsequential.

I'm guessing procreation had something to do with it when drafting these benefits, because they're intrinsic to male-female relationships. When a man and a woman live together, love each other, and sleep in the same bed, well, they tend to, though not always, have children. I don't think I have to enumerate all the ways that can alter a couple.
9.17.2009 9:03am
Randy R. (mail):
badlaw:" You can definitely make the argument that marriage policy that exempts same-sex couples is bad policy, but then the responsibility would be on you to explain why."

Then you haven't been listening. It's bad policy because:

1. The reason straights wish to get married is because they want to. The reason gays want to get married is because they want to. There is no reason to grant the rights to one group and not the other.
2. Gay couples often have children, either through adoption, previous marriage, or one is the birth mother, or some other method. The children should have the same rights and benefits of having married parents, regardless of whether their parents are gay or straight.
3. SSM is now legal in Massachusetts, Canada, S. Africa, Spain, Belgium, Netherlands, and a few others. No ill effects have been shown and so there is no reason to deny the rights.
4. It is better policy that, as we get older, we have someone to take care of us rather than have us a ward of the state. Therefore , it is better that older couples are married than remain single.
5. Studies have shown that married people live longer and healthier than unmarried people. Why deny these benefits to one group but not another?
6. Gay couples lack that 1300 or so rights and benefits that married couples have, such as the right against testifying against a spouse, the inheritance issues, etc.
7. Many hospitals won't allow anyone but closest kin or spouses to make decisions or even visit at crucial times. Sure, you can take care of that with legal documents in some states (but not all), but who carries these papers around all the time with them? And even then, many hospitals won't recognize them. All striaght people have to do is claim to be the spouse.


Those are just a few of the reasons. However, from your latest post, it is clear that there are simply no reasons you will accept to allow gay couples to get married. Your position is that heteros have always had that right, and unless we have a 'compelling rational reason,' guess what? We don't get the right! You have raised the bar so high that we can never reach it, and you will simply dismiss all the reasons for SSM as nothing special. Yet, I would bet that any straight couple that wishes to get married you will consider an 'important' event in their lives. Gay, eh, not at all.

So let's throw the ball in your court -- what compelling rational reason WOULD you accept to allow SSM?
9.17.2009 11:55am
einhverfr (mail) (www):
Bob VB:

Though it is important that no ceremony has taken place in the state - in Washington any ceremony engaged it that would qualify as a marriage IS one in the eyes of the state, doesn't matter if the officiator was unqualified, or they didn't file the appropriate certificate with the state.


Is it possible to have some sort of contracted ceremony that is other than a marriage? Or are same-sex weddings fraudulant?

Having officiated my sister's official wedding ceremony for the purposes of the state (hence I can say "I married my sister!") here in Washington State, it seems that there are very specific formal requirements to what constitutes a marriage ceremony. As long as references to "husband," "wife," and "marriage" are omitted, it seems not to apply.

For example,

"I take you as my concubine in to have and to hold sickness and health, for richer and poorer, until death do us part"

and
"I take you as my man, to be taken as a concubine, to have and to hold...."

Seems legal.

But if you start later referring to it as a wedding or a marriage, then it seems to fall under the "purports to marry" clause....
9.17.2009 1:11pm
Bob VB (mail):
Well this takes the thread a bit afield so leave it that Washington state law puts much of the responsibility on the individual solemnizing the marriage, they are responsible for filing a certificate, they are the ones who have committed a crime if it is not file (no mention of the marriage being any less authentic because of this 'crime') Solemnization requires that they take each other as 'husband and wife' and there be 2 witnesses and that's about it but if the words 'husband and wife' are missing all bets are off.

Reading through all the statutes its pretty obvious that they weren't written to be examined too closely - these are not fine edged tools.
9.17.2009 1:49pm
Randy R. (mail):
Of course, I forgot the single most compelling reason why we should allow gay couples to get married:

Because they in love and wish to make a public commitment to each other for the rest of their lives.

It's the single most important reason for straight to get married, and the same for gays. Ask any straight married couple if it was important and neceesary for them to get married, they will reply yes! We shouldn't require anything more from a gay couple, if they also believe it is important and necessary to get married.
9.17.2009 2:07pm
einhverfr (mail) (www):
Bob VB:

Certainly the statutes aren't meant to be overly parsed. For example, the fact that I married my sister while married to my wife doesn't make me guilty of either incest or bigamy (since I officiated my sister's marriage ceremony and she wasn't getting married to me).

However, it seems to me that the lines in RCW 26.04.070 are designed to see whether any valid marriage occurred and to limit grounds for annulment to strictly formal criteria (magic words not said, no witnesses present, no official who represented himself as a licensed/ordained minister or justice of the peace, and presumably no consumation).

However, the question also becomes whether "purports to marry" is broader than "marries." In other words even if the marriage could be annulled, it is still bigamous. The question then becomes whether these formal criteria can be dispensed with. My thinking is that "purports to take as concubine" is not bigamous but "purports to take as wife" would be.

Re-reading the statutes though and accepting they aren't intended to be read to closely, it seem to my mind that a ceremony with the magic words (husband and wife) would not be strictly required but a time and place of the marriage would be required. These may look functionally equivalent but I am not sure they are. The question boils down to whether an indictment could say "At some point between the concubinage ceremony on December 12, 1999 and Mr. Miller's statements on January 25, 2009 the purported marriage occurred. Mr Miller was married to another woman through this entire time, with whom he lived and continued to support the family."
9.17.2009 2:28pm
learned intermediary:
Rick Xiao,

Indeed, "[i]f a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed." Varnum v. Brien, 763 N.W.2d 862, 898(Iowa 2009).

Iowa applied heightened scrutiny, not rational basis review.

(Racial classifications would also trigger strict scrutiny under federal law.)

So your comments here are basically inapposite.

Kerr is probably tired of pointing to his caveat; so I shall refer you (and others) to his second-to-last paragraph.
9.17.2009 6:04pm
badlaw (mail):
Then you haven't been listening. It's bad policy because:

1. The reason straights wish to get married is because they want to. The reason gays want to get married is because they want to. There is no reason to grant the rights to one group and not the other.


First of all, I didn't say the responsibility to explain why it's bad policy is on those who wish to change it as an invitation to enumerate those reasons. I was simply making the argument that it is a question of policy, and to give some perspective on who should be making which arguments.

Second, I think you know it's speculation to say there is no reason to grant the rights (if you want to call them that; I don't personally consider marriage incentives rights, anymore than I do any other government entitlement program or subsidy) to one group over the other. Like I mentioned before, proponents rely on baseless covetousness to argue their point, and I don't find it particularly persuasive.

2. Gay couples often have children, either through adoption, previous marriage, or one is the birth mother, or some other method. The children should have the same rights and benefits of having married parents, regardless of whether their parents are gay or straight.


This is another speculative assertion, Randy. I've yet to see a stat that suggests gay couples *often* have children. Of course some of them do, and will, bring children into their relationship, but this argument seems to rely on the idea that there is a substantial social phenomena that demands reform of marriage policy, and I don't think the fact of gay parentage is, at least not yet. And why do these children "deserve" to have married parents?

3. SSM is now legal in Massachusetts, Canada, S. Africa, Spain, Belgium, Netherlands, and a few others. No ill effects have been shown and so there is no reason to deny the rights.


This is a common appeal, but it's fallacious specifically for the reasons I've given in previous posts. The point is show why gay marriage is a good idea. Saying "nothing bad happened in other places that legalized it" helps your argument to an extent, but it doesn't make it. The scale in question (assuming you want a nationwide acceptance of gay marriage) is unprecedented, and then, people could argue the reverse about defining marriage as being a heterosexual relationship.

4. It is better policy that, as we get older, we have someone to take care of us rather than have us a ward of the state. Therefore , it is better that older couples are married than remain single.


You don't need the blessing of the state to maintain a relationship with someone for these aims.

5. Studies have shown that married people live longer and healthier than unmarried people. Why deny these benefits to one group but not another?


This has nothing to do with policy, Randy. If a couple loves each other and want to be together, they can do so with or without a marriage license. And, how do you assume that a study which, I'm assuming, came to that determination based on heterosexual married couples, will laterally apply to homosexual couples, too?

6. Gay couples lack that 1300 or so rights and benefits that married couples have, such as the right against testifying against a spouse, the inheritance issues, etc.


You should understand the relative impossibility of this claim. There are no 1300 or so rights and benefits married couples have. There are around 1100 federal legal instances that may rely on marital status. You cannot broadly claim all, or even most, of these instances will result in a net gain or benefit for a couple, nor can you cherry-pick out of context the benefits you could receive.

7. Many hospitals won't allow anyone but closest kin or spouses to make decisions or even visit at crucial times. Sure, you can take care of that with legal documents in some states (but not all), but who carries these papers around all the time with them? And even then, many hospitals won't recognize them. All striaght people have to do is claim to be the spouse.


This could be a problem, though I don't know to what extent it is, or how it works, but it seems like you're saying legal gay marriage would lessen a certain burden of proof. Hospital policy is usually based on the wishes of the patient or the doctor, depending on the medical situation. That isn't specifically a matter of public policy. It's not as if there are no legal in-roads should this ever become an issue (and I'm thinking it's a relatively small issue), so I think this might be trying to swat a fly with a hammer, if you get my meaning.


Those are just a few of the reasons. However, from your latest post, it is clear that there are simply no reasons you will accept to allow gay couples to get married. Your position is that heteros have always had that right, and unless we have a 'compelling rational reason,' guess what? We don't get the right! You have raised the bar so high that we can never reach it, and you will simply dismiss all the reasons for SSM as nothing special. Yet, I would bet that any straight couple that wishes to get married you will consider an 'important' event in their lives. Gay, eh, not at all.


To be clear, I reject the notion that same-sex marriage is an existing entitlement our society and our governing bodies have merely overlooked or rejected. On historical grounds, on constitutional grounds, on policy grounds, I remain unconvinced of the "this should be legal because we deserve it" argument employed by many supporters of SSM. However, I DO NOT reject the idea of it being legalized based on the legislative process and the acceptance of the people.

So let's throw the ball in your court -- what compelling rational reason WOULD you accept to allow SSM?


If the people vote to institute it, I would accept that. If the legislature voted to institute, I might accept that (provided it's not to do an end-run around a direct vote of the people, as was the case in CA). Because I reject the theory of entitlement of gay marriage does not mean I reject the theory that it could ever be legitimately instituted.

9.18.2009 3:16am
David Schwartz (mail):
But that's just it: proponents believe that's the motivating, overarching purpose of defining marriage. The problem is there need to be compelling rational reasons for drawing the line to include same-sex couples. Again, pro-SSM tend to frame the issue in this way that makes them look like they're being "excluded" for irrational, unforeseen reasons, but in reality (and this is why the tradition appeals are so popular), you can't really claim, persuasively that is, that people need a rational basis for excluding you from something you were never included in to begin with.
Is this supposed to be obviously correct? Because it seems obviously incorrect to me.

Even if the government has always, say, prohibited women from serving in on combat duty, as soon as some woman challenges that, why mustn't the government produce at least a rational basis to justify the discrimination?
9.18.2009 5:11am
badlaw (mail):
I'm not saying those who support, or situate, the status quo are exempt from having a rational basis, but the onus is on, or on moreso, the people seeking to change it.

I don't know why you had to default to analogy given the subject, but I think you're comparing apples and oranges. I can only give you my inductive reasoning as to why we have certain rights and liabilities attached to marriage, and why those have been tailored over the years to the general population, who tend to date, marry, and sleep with someone of the opposite sex; I can't make you actually believe it if you've already concluded they're arbitrary irrational excuses. Again, I don't know that you can make the assumption that the law has always been meant to simultaneously enshrine one definition and actively exclude a distinct group of people for irrational purposes.
9.18.2009 9:54am
John D (mail):
Badlaw has it backwards.
the onus is on, or on moreso, the people seeking to change it


In the now long settled issue of women in the professions, it was not that women had to prove they were competent to become doctors and lawyers. The state had to try to prove that women were not competent to become doctors and lawyers. They failed at this.

Now years later, we have many exemplary doctors and lawyers (and judges) who are women.

It it those who say "no" who must justify to those who say "I want."

Badlaw, you could convince me that they are not arbitrary irrational excuses if you could find one that was not an arbitrary irrational excuses. Most "purpose" arguments about same-sex marriage are circular reasoning. "Marriage is for heterosexuals because only heterosexuals get to marry."

You would need to show a no-exception purpose of marriage that could never, ever apply to a same-sex couple. Further, you would have to demonstrate that the marriage laws were instituted with this purpose in mind. You also have to stick with how we practice marriage today. In the 19th century, women's legal identities were bound up in those of their husbands. Before the Civil War, American women who married foreign nationals lost their citizenship. We don't do that anymore.

Procreation is out. The marriage laws have never been about procreation or we wouldn't allow post-menopausal women to marry.

What do you have that actually fits the bill?
9.18.2009 2:32pm
badlaw (mail):
In the now long settled issue of women in the professions, it was not that women had to prove they were competent to become doctors and lawyers. The state had to try to prove that women were not competent to become doctors and lawyers. They failed at this.


Because they were actively banned from working in professions where objective knowledge (medicine and the law) were essential, and their gender was not. This, however, is not an apt analogy.

Now years later, we have many exemplary doctors and lawyers (and judges) who are women.

It it those who say "no" who must justify to those who say "I want."


Because that was the dynamic in the above example does not mean it applies here. Neither side is exempt from having a compelling rational basis for their claims, but those who wish to implement SSM must present their compelling reasons for wanting to alter the status quo. People can then justify, or reject, the status quo based on their arguments.

Badlaw, you could convince me that they are not arbitrary irrational excuses if you could find one that was not an arbitrary irrational excuses. Most "purpose" arguments about same-sex marriage are circular reasoning. "Marriage is for heterosexuals because only heterosexuals get to marry."


I don't know who has said, or implied, that. That wouldn't correct even if it were being asserted, since homosexual men and women are not actively denied the same right to marriage as heterosexuals.

You would need to show a no-exception purpose of marriage that could never, ever apply to a same-sex couple. Further, you would have to demonstrate that the marriage laws were instituted with this purpose in mind. You also have to stick with how we practice marriage today. In the 19th century, women's legal identities were bound up in those of their husbands. Before the Civil War, American women who married foreign nationals lost their citizenship. We don't do that anymore.


Well, the idea that marriage benefits should be conferred only on those couples that could create children is one that does not, and will never, apply to same-sex couples. I know you'll say that not all couples have children. This is true, but this also means that NO same-sex couples will produce children, because by design (the couple, not the individual) is non-procreative. You could argue that since we accept this fact for heterosexual couples, we should do the same for homosexual couples, but that depends on our magnanimity and not yielding to compelling rational thought. One could argue there's a vast difference in tolerating a naturally-occurring exception in institutionalizing the ideal model, and accepting exceptions to where figure the rule is unimportant. I don't know that we have concluded that.

Procreation is out. The marriage laws have never been about procreation or we wouldn't allow post-menopausal women to marry.

What do you have that actually fits the bill?


That's a false dilemma. Again, we accept that the rule isn't absolute, we don't accept that it's unimportant. So we don't restrict access on that basis (this is of course assuming the state could do that in the first place, on grounds that may or may not have anything to do with marriage, even if the purpose of marriage is in question).
9.18.2009 3:28pm
einhverfr (mail) (www):
badlaw:


Well, the idea that marriage benefits should be conferred only on those couples that could create children is one that does not, and will never, apply to same-sex couples. I know you'll say that not all couples have children. This is true, but this also means that NO same-sex couples will produce children, because by design (the couple, not the individual) is non-procreative. You could argue that since we accept this fact for heterosexual couples, we should do the same for homosexual couples, but that depends on our magnanimity and not yielding to compelling rational thought. One could argue there's a vast difference in tolerating a naturally-occurring exception in institutionalizing the ideal model, and accepting exceptions to where figure the rule is unimportant. I don't know that we have concluded that.


Historically, I think that argument would have carried a lot of weight. Historically, encouraging childbearing and childrearing was a critical element to marriage universally.

At those times, we sought more open borders, to lure immigrants here. We had a multi-pronged policy to increase our nation's population to feed our economy, secure our nation's borders from foreign armies, and so forth.

However, today while we offer benefits to help reduce the economic burden of having children, we do so without regard to marriage. We also have more significantly changed our approach from encouraging immigration to discouraging it. In short, we no longer have a multi-prong policy aimed at growing our population.

We are no longer a nation which states, through public policy,

"Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me.
I lift my lamp beside the golden door."


Under these circumstances can opposite-sex-only marriage laws be based rationally on a procreative interest? I don't think that it can, in the US in 2009.

The above is why I disregard your claims to a rational basis for the restrictions. It is why a COURT should mandate such a change according to current legal principles.

However, for legislatures, the questions are different. Here you are right that a change must be justified by those wishing to make it on policy grounds. Legislatures aren't courts and shouldn't be confused with them.

As for why it would be good public policy to allow SSM. Marriage generally makes separation more difficult by requiring legal processes to separate joint assets and debts. Thus one important element to SSM is that it would require committed same-sex couples to go through a divorce before moving on. This, among opposite sex couples, has a stabilizing impact on society. In many states there are waiting periods for divorce. This represents a good thing because it provides couples a chance to reconcile before making such a separation final.

Extending the state controls for stable domestic relationships thus reduces a number of public health issues such as STD transmission. It also provides greater stability for society generally. These are good things.

Hence I think strong cases can be made both before courts and legislatures about these issues. But they are different cases based on their different roles in our government.
9.18.2009 6:33pm
Randy R. (mail):
So I guess Badlaw is saying there can't ever be compelling reasons to allow SSM. Worse, he thinks that only a direct vote of the people would be legitimate, as though votes by the legislatures are somehow illegitimate.

It's always so easy to deny rights to other people, isn't it?
9.19.2009 12:12am
Anatid:
The population argument (since Badlaw also seems determined to ignore the significant percentage of homosexual couples who have children and function as normal families) gets even more ridiculous when you look at the current adoption and foster care system. Hundreds of thousands of children get milled through foster care every year, and emerge at an elevated risk for crime later in life. We need to give homes to the kids we've got before we encourage people to have even more.

Not only does marriage improve national health by promoting stability and monogamy, but it improves our future as well (oh, won't someone think of the children). Families looking to adopt can provide far better homes to these children than foster parents can. Studies have found that having two stable, devoted parents is better for a child's development than a single parent, and drastically better than having no parents at all - and the same studies found that the genders of the two parents don't seem to make any difference. Not to mention, paying for foster care costs billions of taxpayer dollars annually. Even if we only ease this load a small amount, reduced expenses are reduced expenses.

Much to gain. Nothing to lose.

You seem to think that all this can be easily accomplished by lifelong devotion without that magic word "marriage." No difference, right? All those heterosexual couples wouldn't mind a bit if all marriages, homosexual or heterosexual, were called "civil unions" by law and called marriage only by their religion, right? They don't care about a silly word, right? So why are gays so upset?

... Right.
9.19.2009 5:17am
badlaw (mail):
einhverfr

Historically, I think that argument would have carried a lot of weight. Historically, encouraging childbearing and childrearing was a critical element to marriage universally.

At those times, we sought more open borders, to lure immigrants here. We had a multi-pronged policy to increase our nation's population to feed our economy, secure our nation's borders from foreign armies, and so forth.

However, today while we offer benefits to help reduce the economic burden of having children, we do so without regard to marriage. We also have more significantly changed our approach from encouraging immigration to discouraging it. In short, we no longer have a multi-prong policy aimed at growing our population.


I'm not sure I follow your point. The question was, is there a basis for marriage that could never include same-sex couples and was it relevant when considering these benefits. This so obviously fits that model. Sure, things have changed, but you're still, I think, implying that they have changed so much that the rule (or what many consider to be a core function of marriage) is obsolete to where SSM is an obvious choice. I don't know how you can determine that.

And talk about persuasive arguments, this is a pretty bad one, depending on if the audience thinks part of the problem with marriage is the lack of emphasis on having children and maintaining a familial unit. The subtle implication that gay marriage is a good idea because of how far the institution of marriage has fallen off the rails...isn't going to work in the long run.

Under these circumstances can opposite-sex-only marriage laws be based rationally on a procreative interest? I don't think that it can, in the US in 2009.


I'd disagree.

The above is why I disregard your claims to a rational basis for the restrictions. It is why a COURT should mandate such a change according to current legal principles.

However, for legislatures, the questions are different. Here you are right that a change must be justified by those wishing to make it on policy grounds. Legislatures aren't courts and shouldn't be confused with them.


Not to be petty, but the reverse should be mentioned as well: judiciaries don't legislate, or at least, they shouldn't. This issue is one of policy, not constitutionality.

As for why it would be good public policy to allow SSM. Marriage generally makes separation more difficult by requiring legal processes to separate joint assets and debts. Thus one important element to SSM is that it would require committed same-sex couples to go through a divorce before moving on. This, among opposite sex couples, has a stabilizing impact on society. In many states there are waiting periods for divorce. This represents a good thing because it provides couples a chance to reconcile before making such a separation final.

Extending the state controls for stable domestic relationships thus reduces a number of public health issues such as STD transmission. It also provides greater stability for society generally. These are good things.

Hence I think strong cases can be made both before courts and legislatures about these issues. But they are different cases based on their different roles in our government.



Those are legitimate reasons, though I think you're idealizing a bit. That seems like a good reason for legal recognition of same-sex relationships, but I don't know that it necessarily means marriage.

Randy R.

So I guess Badlaw is saying there can't ever be compelling reasons to allow SSM. Worse, he thinks that only a direct vote of the people would be legitimate, as though votes by the legislatures are somehow illegitimate.

It's always so easy to deny rights to other people, isn't it?


I'm pretty sure I said a direct vote or a legislature vote (sorry I didn't; I meant to), I don't think a compelling reason exists yet for SSM, but that's to say one can't exist in the future, and people are not being denied any rights. They're being denied "their way", you could say, but there isn't a right to any form of marriage you wish, and there never has been.
9.19.2009 9:36am

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