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29 Jun

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The Basic Question Before The Court 

When all emotion and all personal moral preference is put to the side, there is but one simple legal question that has always lied at the heart of the same sex marriage debate. Does an individual state, under our constitution, have the right to establish an institution for the purpose of promoting the responsible procreation and rearing of children? 

The standard that is used for determining the kinds of laws and institutions that a state may establish within its own borders is extremely broad under our federal system. The exact criteria that is used in most cases to determine whether or not a particular state law is an acceptable law, is known as Rational Basis Review. All it requires is for one to show that (a) The law in question serves a legitimate public interest and (b) that it pursues that public interest by rational means. 

Now the promotion of the responsible procreation and rearing of children constitutes a legitimate public interest; few people dispute this point. Second, the legal recognition and benefits associated with marriage promote that interest by rational means. No one disputes that point. For the moment we will keep DOMA laws out of the debate and deal only with the original state marriage statutes which simply don’t provide for anything other than male female marriage. The question is why would such laws fail the Rational Basis test? If we have a legitimate purpose and a legitimate means of pursuing that purpose do we not have a legitimate law? the Federal government does not possess the right to compel a state to expand a legitimate law in a manner not pursuant to the original purpose of that law, even if it alleges that this expansion would not interfere with that purpose.

Furthermore, one cannot accuse an institution of discrimination merely because one would prefer that another kind of institution ( one with a different purpose) exist in its place. One can only charge an institution with discrimination on the basis of its existing legitimate function. There is one significant argument, and only one argument, that has served as the basis for the case against traditional marriage from the very beginning. It is frequently referred to as the non-procreation argument. It contends that promoting the responsible procreation and rearing of children cannot be the true purpose of these state institutions given that they allow for marriages involving the sterile and the infertile. I repeat again for emphasis, that this is the only significant argument against the right of the states to establish an institution for the purpose of promoting the responsible procreation and rearing of children. It is however a quite vulnerable argument.

The best form of the argument was given during the recent trial by Justices Kagan and Ginsberg who stated that to say that marriage is about procreation is to technically open the door to a state law banning marriages involving the infertile, or even dissolving marriages of that description which already exist. They conclude that because we understand intuitively that this is not right, the purpose given for the institution above cannot be correct. But this very same peculiar logic dictates that if marriage is actually about sexuality instead of procreation then technically a state could pass a law declaring that if it discovers evidence of medical impotence it reserves the right to prevent or dissolve a particular marriage. This scenario is just as implausible as the law described by Kagan and Ginsberg. Now we know that both the Justices and the nation as a whole would oppose the law I describe. Putting all practical considerations aside, would Justice Ginsberg be willing to look an irreversibly impotent man in the face and tell him that he has no inherent legal right to marry because marriage is about sexuality? 

If she could not do this, does it mean that marriage is not really about sexuality? And if marriage is not inherently sexual. what is it? Whatever it is, it is clear that if it is no longer a sexual union, the historical justification for laws against close family marriage no longer exists. Two close family members that merely wished to exploit the tax and insurance benefits of marriage and nothing more, would have to be allowed to participate since marriage is not specifically sexual in nature. The end result would be an institution that is unrecognizable and without meaning at all . It would no longer possess any specific social purpose. Rather than the benefits serving a particular purpose, the benefits become the purpose, and the title “marriage” itself becomes meaningless. 

The actual reason that neither procreation nor intercourse is policed is because we live in a free society, and institutions such as marriage are designed to promote not to enforce. Laws excluding same sex “marriages” then can be no more inconsistent then laws banning close family marriage. For a slightly more elaborate explanation of what I mean by a promotive institution here see this piece.

Finally we come to the creation of the DOMA laws, this was a bad move for more than one reason. It is almost always unwise to craft a law using language that is broader than exactly what is required. The original intention behind local DOMA laws was to protect state marriage statutes from activist judges. The most appropriate remedy therefore was not an amendment that explicitly defined marriage but one which merely took the decision out of the hands of the judges. It might have read “The basic constitution of marriage, comprised of the union of a man and a woman, shall not be altered within this state except by an act of the duly elected legislature or by popular referendum”. No argument justifying the explicit exclusion of persons of the same sex would be involved in that case. The original marriage statutes would be narrowly tailored to serve the general group associated with its purpose (men and women) and the amendment in question would merely be designed to protect the sovereignty of the people. Marriage could in theory be redefined by the state but only if the people as a whole decide to do so. 

Excerpts From The Majority Opinion Given By Justice Kennedy.

1) The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time. The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time. For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman. 

There is a difference between a change in the incidental aspects of something and a change in its essential aspects (or in other words, in its definition) . Marriage is historically an institution for the purpose of promoting the responsible procreation and rearing of children across a society, and this has remained a constant in the midst of the particular changes to which Kennedy refers. The “political “ religious ” and “financial” concerns were all pursued within that context. He also writes as though other traditions of marriage were not known to the Romans and to the various other societies he refers to. This is of course not the case. These societies were quite aware of other marriage traditions, and so they recognized the general concept of marriage in whatever society they observed as simply the union of a man and a woman, but they were partial to their own traditions. 

To deny the difference between the incidental aspects of an institution and its essential aspects is to render all political and legal conversation incoherent. It would be like saying for example, that a law changing the level of the premium in the Medicare program (or some other structural aspect of it) is not substantially different from a law that makes Medicare available to 25 year olds. One is an essential change (a change in definition) the other is incidental.

Justice Kennedy: The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time. The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time. For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman. 

But there is a difference between a change to the incidental aspects of something and a change in its essential aspects (or in other words, in its definition) . Marriage is historically an institution for the purpose of promoting the responsible procreation and rearing of children across a society, and this has remained a constant in the midst of the particular changes to which Kennedy refers. The “political “ religious ” and “financial” concerns are all pursued within that particular context. He also writes as though other traditions of marriage were not known to the Romans and to the various other societies he refers to implicitly . This is of course not the case. These societies were quite aware of other marriage traditions, and so they recognized the more general concept of marriage as simply the union of a man and a woman in whatever society they observed it, (although they were partial to their own traditions). 

To deny the difference between the incidental aspects of an institution and its essential aspects is to render all political and legal conversation incoherent. It would be like claiming for example, that a law changing the level of the premium in Medicare (or some other structural aspect of it) is not significantly different from a law that makes Medicare available to 25 year olds. One is an essential change (a change in definition) the other is incidental. Marriage has consistently been an institution for the purpose of promoting the responsible procreation and rearing of children (and the associated concerns)

Justice Kennedy: When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed. In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men. 

Interracial marriage is not a useful analogy. It’s a rather easy task to refute the claim that sex has played no more of a role in the definition of marriage than race has. For starters, look at English lexicography. While there are countless English dictionaries and lexicons throughout the centuries that mention sex in their definitions of marriage, I know not of a single example that mentions race no matter how far back we go. Interracial marriage in Colonial America predated the creation of laws prohibiting it. According to early 18th century French census records over 50% of the marriages conducted in its territories were interracial (1) . In the same state of Virginia in which marriages between Whites and Native Americans would ultimately be outlawed, there was the famed marriage between John Rolfe and Pocahontas. It was not only accepted by the American colonists, but the couple returned to England itself and was welcomed within English high society with great fanfare. There was no sense that the act in anyway violated the definition of marriage. The earliest laws focusing on interracial marriage actually recognized those marriages, but simply penalized them. In the very penal codes themselves the man and woman of different races are referred to as “husband” and “wife” (2). 

Nine states never had any laws against interracial marriage, undermining the notion that race was part of any sort of unanimous social definition of the concept of marriage. There is a difference between something that is merely undesirable to a particular group of people and something that is inconsistent with the definition of a particular thing. Marriage has historically been about family creation which of course is why the sex figure prominently into it. Race has no organic relationship to the purpose of marriage. 

Finally in the 1967 case Loving V Virginia cited by Kennedy to support his arguments, the language in the opinion itself implicitly invokes the reproductive purpose of marriage. The question that was recently before the court was, should a state, if it desires, have the right to uphold this age old definition of marriage. Other states would of course have the right to act as they wished. The question is not “who should be allowed to marry?” but “what is marriage?” and “who should decide that question? Discrimination can only be defined in relation to the intended purpose of an institution. One cannot argue that an institution s discriminatory because one would prefer that another type of institution (one with a different purpose) take its place.

Justice Kennedy: Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.“ 

There are two distinct issues in this quote, first the issue of access to certain tangible benefits and second the right to the word “marriage”. Early on this debate one seldom heard much talk about children, only the adults involved in the debate. As opponents of the movement began to criticize it by discussing children and arguing that it made marriage, in it’s essential nature , about adults rather than children, the movement regrouped and began to tackle the issue of children as well. But just as single people are permitted to adopt and yet singleness has no inherent relationship to child rearing, neither of course do relationships of the same sex. Thus the presence of children becomes incidental and not essential to the character of the institution as a whole. The issue pointed out by Kennedy does not have to do uniquely with gays, it is actually a more general childcare/adoption issue . We did not have a policy that prevented gays from adopting, what we had was a policy that did not recognize any form of joint custody of children aside from husband and wife. If the actual interest here is the well being of children a change to that policy would not be specifically about one group, it would be a law that allowed for all other instances of joint custody (in addition to husband and wife). Two aunts for example left with the care of a minor relative could benefit from the privileges that such a policy might lead to, as would others. This particular concern is best framed as an adoption issue. 

To be continued

1. Susan Sleeper-Smith, Indian Women and French Men. (Amherst: University of Massachusetts Press, 2001), 46

2. (1664 marriage ordinance of Maryland) William H. Browne, ed., Archives of Maryland (Baltimore: Maryland Historical Society, 1883), pp. 533–34

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Posted by on June 29, 2015 in Uncategorized

 

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