Dignity, Dystopia and the Meaning of Marriage
A while ago I had the pleasure of taking one of our younger family members to a party at the home of a girl she knew from school. I had some notice that the girl’s family was not a “traditional family structure” as we, with our orthodox Christian sensibilities, would see it. Despite this, I was glad for the opportunity to see this diversity in the backgrounds of her friends, and perhaps glad even for the healthy challenge it posed for our preconceptions.
And a challenge it is. There was no denying that her friend is a well-brought-up young lady, ensconced in a loving family. Seeing the care and concern showered on her, it struck me how insensitive and wrong it would be to form public policy in a way that demeaned their experience, or tried to belittle the strength of their affection. Was there something wrong in my belief that, loving as this family was, it would be problematic to recognize it in law on a par with the traditional concept of a marriage as a union uniquely between a man and a woman?
Moreover, deep down, I could not truly assure myself that my concerns about the civil status of such arrangements were not heavily influenced by my religious convictions on the nature of marriage. As much as I understand and internalize personally the profound nuptial meaning of marriage in Christian theology, and the unique manifestation of it in the one-flesh, one man-one woman union that has historically underpinned marriage in the Western world, this understanding has not always reigned unchallenged. Whether we look at practice in the ancient world, or at the latest trends of today, family structures like this girl’s have been recognized, informally if not formally, at various times. “One man and one woman” has not always been the case, and isn’t always the case now, yet the sky has not fallen.
Thinking further on the manifest strengths of this family, though, I also saw that many of them did not necessarily depend on, or necessitate co-opting, the traditional definition of marriage. The ability to unite people in larger bonds of association, promoting mutual reliance, care, and concern, is a hallmark not only of traditional marriage, but of more general bonds of kinship, even of friendship. Aristotle viewed true friendship as a higher form of agape than marriage. Now, Aristotle did not embrace the full meaning of marriage in its spiritual dimension, and indeed his praise of perfect friendship over marriage reflected some downright misogynistic overtones in his undervaluing of the male-female relationship. Yet these failings do not detract from his fundamental point that friendship may be a very undervalued concept. Likewise with kinship. I recalled my own experience growing up of having a close-knit extended family. This included a grandfather and two unmarried aunts who formed a household characterized by great love and concern. To see the way my aunts cared for my grandfather in his old age, or to have the certainty, which I did, that if anything had ever happened to my own parents, this same household would have raised and cared for me with all the love it could muster, made me realize that they, like the untraditional family of my daughter’s friend, deserved support and recognition in some way.
Would it demean them to deny them the status of marriage? Only, it seemed, if one took a supremacist view of marriage that deemed it, not only contra Aristotle, but contra common sense, as the only praiseworthy human relationship. Bonds of kinship, such as elderly siblings caring for each other, or extended families, or even bonds of friendship, are all special in their own way. It does not demean them to say that they are different in form from procreative marriage; it rather just states a biological fact.
Yet this girl’s family also contained biological bonds. Why should it be the case that all parents, or members of a recognized “marriage,” have to have biological bonds to all the children of that marriage? Certainly many excellent parents have none—one need only look at the many adoptions where children are blessed to find families with no biological connection to them. In families like this girl’s, the non-biological parents play an important role in the overall upbringing of the children—perhaps more attention, help, and love, from wherever it comes, is always better. And most importantly, if it is really all about the children, as defenders of traditional marriage claim it is, then shouldn’t this girl be entitled to have her family honored as any traditional family would be, with access to civil marriage? Doesn’t the failure to provide such access serve only to shame and humiliate this girl and thousands like her?
Thinking about this girl’s caring family, I realized that as much as we should want to honor it, and honor all the other forms of committed, caring relationships, it is simply not true to call them the same as traditional marriage. Only traditional marriage reflects the truth of our human person that we are created through the unique relationship between a man and a woman. Marriage—at least for the last couple of millennia in the Western world—has been about confirming, as far as possible, through legal and social standing, the biological fact that brought us into existence as people. That fact is the hopefully loving, but in any event unavoidably sexual and complementary union of one man and one woman. Humans are begotten by humans, not produced; marriage cements the linkage of that begetting process to its human roots and protects against the alienation of procreation from its biological basis in a one man-one woman union.
Talk of the “meaning” of marriage can of course have more than a passing whiff of the theological, raising the concern that it is not something that in our pluralistic societies should be legislated, or perhaps even can be constitutionally legislated. But the fact that there are developed religious views that place theological importance on one-man one-woman marriage does not therefore rule out analogous secular concerns, any more than the fact that the explicitly religious framework of Martin Luther King’s Letter from Birmingham Jail somehow delegitimizes the secular rationale for racial equality. As in the case of the struggle for racial equality, the insights and wisdom of various religious world views, like any philosophical system, can illuminate and undergird secular conclusions. This came to seem, more and more, to be the case with this girl’s family: though it should clearly be honored and given some civil protections to support the evident bonds of solidarity they shared, changing the concept of marriage—and it would be a change—to include this structure would move marriage beyond the biological reality that it takes one man and one woman to bring forth new life. Its introduction of other parties extrinsic to the creation of that child into the heart of the marriage would unavoidably undercut the ability of that child to see as a unique intimacy that act that caused her coming into being. The act of her creation becomes something not unique and special to her own mother and father. Among the consequences that flow from that are the weakening of the biological bonds not only between generations, but also among siblings, as that unity one otherwise shares with a sibling—this brother or sister of mine shares the same flesh and blood—this is someone who has the same mother and father I do—becomes impossible. As do broader kinship bonds, which play a vital anthropological role in society.
Of course, even in religious terms, the spiritual bonds of parenthood may be present even absent a biological connection—and we can see this where those in a marriage open their family to children who are orphaned, or the victims of abusive households. But one can value and honor these situations of spiritual parenthood—grace-filled responses to particular tragic situations—without going to the extreme of an almost Manichean rejection of the general norm of biological parenthood. Rejecting as irrational even a general, symbolic preference for such biological norms would have profound consequences indeed for our society, including the premise of our laws that, for custodial rights and much else, biological links are at least relevant to a parent-child relationship.
Yet, in the last few years we have moved to a point where an article in Time prominently features family structures like that of my daughter’s friend, and suggests that their historic disfavor is on the cusp of breaking down. I found myself feeling both a real desire to honor this type of family with protection against unreasonable discrimination, yet also a real concern that its complete recognition throughout the United States and the West as identical to traditional marriage, and the elimination of any special solicitude for one-man-one-woman marriage, would carry negative consequences for society. Certainly, it would be shameful to subject family members like this girl’s to discrimination in the workplace, in the military, in the broader culture. Yet, if marriage itself were redefined to include this kind of family, at the risk of invoking the proverbial slippery slope, how could one deny marriage to other forms of association; to extended family members taking care of each other, to committed groups of friends, perhaps with children, and ultimately to such a variety of broad but caring associations that “marriage” loses its distinct meaning. And in another matter of particular political resonance today, how could one then justify denying marriage to the many loving, committed, and monogamous same-sex couples that have children by adoption or technological means.
Oh, yes: the Time story is from August 6, 2012 (not the cover story of April 8, 2013), the girl’s family was from a Middle Eastern country, and the family structure in question, very much alive today, is polygamy.
The recent Supreme Court oral argument in Obergefell v. Hodges signals the approach of a long-awaited climax to the constitutional litigation around same-sex marriage (SSM). This showdown, anticipated in the summer of 2013 with the Hollingsworth v. Perry case, but deferred, is now coming to an expected conclusion in a matter of days. Despite the undeniable electoral and popular opinion gains for SSM in the U.S., and its advance in Europe almost exclusively by legislation, or even, by Ireland’s recent dramatic example, by popular referendum, it is this constitutional litigation that SSM proponents in the United States are relying on to redefine marriage. As anticipated, oral argument revealed that Anthony Kennedy will likely be the decisive vote on the question of whether the federal Constitution requires all states to redefine marriage to include same-sex couples. Oral argument also crystalized what two of the core themes are in the deliberation of this issue: (1) whether laws limiting marriage to a man and a woman can be consistent with the dignity interests of same-sex couples and the not-insignificant number of children that are raised by them, and (2) whether there is a rational basis for such laws, i.e., whether they plausibly serve any valid government interest, rather than just being designed to harm gays. These are indeed right questions to ask. Any law motivated by a “bare desire to harm” a particular group, whatever the constitutional complexities of the appropriate standard of review, should come with a heavy presumption against it as both a policy and moral matter. And a law that can be seen to serve no valid purpose, but which has a discriminatory effect on a class of persons, similarly must be viewed with suspicion. While these are the right questions, however, the oral argument on April 28 revealed that the answers to these questions are quite different than the ones that the dominant media narrative would suggest. None of the lawyers for SSM could effectively explain, despite repeated questioning, how traditional marriage laws impair the dignity of same-sex couples in a way distinct from that of many other groups that could reasonably lay claim to having an association built on mutual care and support. Likewise, they were unable to establish any plausible rationales for why, should marriage be constitutionally required to be extended to same-sex couples, it shouldn’t be further extended far more broadly. SSM advocates, and many federal judges, are fond of asking: “How does gay marriage harm your heterosexual marriage?,” often asked as if the question were rhetorical and the answer obvious—it doesn’t. Yet as became clear in oral argument, that question proves either too little or too much. One can just as easily ask, “How does polygamy harm your monogamous marriage?”—yet this does not constitute (or at least SSM advocates are not prepared to publicly admit today that it constitutes) an argument for the constitutional right to polygamous marriage. More fundamentally, this question, by focusing on the “trees” (the impacts of SSM on particular heterosexual marriages) rather misses the “forest” (the broader social and anthropological impact of severing marriage and procreation in the collective consciousness).
Conversely, the lawyers defending traditional state marriage laws asserted a rationale for their limitation to one man and one woman, one that was by no means “proven,” and one open to significant debate, but hardly an irrational one: that over time, and over the general population, if the paradigm of marriage were changed from having some connection to biological procreation, to having most emphatically none (and no clearer way could be thought to do this than to expand marriage to a grouping that by its nature has no capability for biological procreation), then marriage would cease to be seen as a necessary concomitant of procreation and child rearing. The ascendance of a new paradigm, seeing marriage as a support structure and badge for a primarily personal emotional/romantic relationship rather than an intergenerational and social bond, would further distance marriage from the symbolic meaning it retains, thus contributing to the ills already wrought by changes like no-fault divorce. This is true not because of any lesser fidelity those in a SSM would have to each other, or any lesser devotion to raising children, any more than concern over similar risks posed by authorizing polygamous marriages would infer the lesser devotion of those in such arrangements. Rather, the risks are occasioned by the paradigm shift under which marriage becomes an ever-broader arrangement that it is irrational to think of as necessarily linked to raising the children that have been uniquely begotten by the marriage partners.
The oral argument was intriguing for at times suggesting that not only Justice Kennedy, but perhaps also Chief Justice Roberts and Justice Breyer, were struggling with the tension between the demand of dignity for same-sex couples and the lack of a clear mandate to undertake, outside the democratic process, so sweeping a change in the definition of marriage, one that has obtained, in the phrasing of several Justices, for “millennia.” Such a redefinition by judicial fiat would indeed be a bold step, and as such, would have to be based on the conclusions both that traditional marriage, as we have understood it, necessarily diminishes the dignity of same-sex couples as a group, and that the limitation of marriage to one man and one woman is not reasonably related to any legitimate government interest. Not only is neither conclusion justified; as will be shown, the consequences of such a constitutional redefinition would hardly be limited to the rights of a relatively small number of gays wishing to marry. Rather, the logic of such a redefinition would progress to change the fundamental role and structure of the family in society—something the most candid SSM advocates admit and indeed urge. Moreover, of concern to readers of this journal, such a redefinition would also ultimately change our society’s understanding of human life. This far-reaching impact of SSM was more honestly engaged in the debates around passage of SSM in France, where opposition to that law involved, besides the traditional religious and conservative elements, significant elements of the Left, often concerned, invoking the anthropology of Claude Levy-Strauss, that obliterating the common biological inheritance of a mother and father would undercut the universalism of French democracy and ultimately humanity. As we shall see, the soothing reassurances that SSM can’t possibly do anything to opposite sex marriages, or to the broader society, are undercut by even the most cursory reading of leading SSM activists and sympathetic officials, let alone by the already growing track record of actual harassment and suppression of religious adoption agencies, among others.
Indeed, although counsel defending traditional marriage rightly invoked the valid state interest of maximizing the chance a child will be born to and raised by his wedded biological parents, if anything they failed to fully describe the social ramifications of a fundamental shift away from biological parenting as at least the paradigm of family: a dystopian future where commercial surrogacy, and the confusion and economic exploitation that accompanies it, is a fully normative means of reproduction; an accelerated attenuation of the social value and legal protection afforded the bonds of motherhood and fatherhood; and most ominously, an unavoidably aggrandized role for the government in determining the structure of the family, including parental rights that will be increasingly seen neither as “natural” nor even presumptively correlated with biological relations, but as totally redefinable as the law chooses. Avoiding this descent into dystopia by retaining the normative ideal of biological reproduction as at least a symbolic aspect of marriage, especially when added to more immediate benefits for children in the present, is hardly an irrational basis for traditional marriage laws. Moreover, neither is such a descent required to duly recognize the legitimate dignity interests of gays or children being raised by them. It is certainly not so required any more than it would be required to protect the dignity interest of children being raised lovingly in polygamous or polyandrous marriages, or by extended family or other broader associations. Instead, a grand compromise can be envisioned where all of these legitimate concerns are addressed. And perhaps a plausible constitutional framework for that compromise might be found in a—to some—surprising place: Justice Kennedy’s opinion in United States v. Windsor.
While his opinion has been criticized by many as vague (even “legal argle bargle” by certain highly critical dissenting Justices), a charitable reading of Windsor reveals a more nuanced approach considering both the dignity interests of gays and the children being raised by them, as well as the federalism interests in protecting the states’ traditional prerogatives in defining marriage. There is nothing in Windsor specifically dismissing the legitimacy of a state’s interest in protecting biological procreation and child rearing through marriage law. But, as Windsor correctly held, Congress has no constitutional business substituting its judgment on such matters, which are reserved to the states. The state can balance the interests of gays and its legitimate interest in preserving biological families and be entitled to constitutional deference, because it has the retained sovereignty to assert such preservation as a state interest; by contrast Congress has no federal interest in preserving certain family structures, and certainly no constitutional authority to actively oppose an interest that a state has articulated, leaving its attempt to do so more vulnerable to a suspicion of animus. Moreover, there is no inconsistency between the “dignity prong” and “federalism prong” of Windsor; they work together to provide a balancing test. Correctly interpreted, Windsor, while prohibiting Congress from imposing burdens on SSM for its own policy reasons, should allow states to continue to limit marriage by the traditional definition of a man and a woman. Yet even here, the dignity prong of Windsor has meaning, for only in protecting a valid interest like preserving biological marriage does the state have the authority to distinguish among classes of people in a way that prejudices them. If other measures would serve the dignity interests at stake, such as civil unions and certain anti-discrimination provisions, and they would not impede the state interest in preserving biological parentage and marriage, these might well be, if not constitutionally required, at least so suggestive of a lack of animus as to be constitutionally relevant to upholding a traditional marriage scheme. It is along these lines that Windsor may offer an opportunity for meaningful dialogue and compromise going forward, towards a solution that protects the legal interests not only of same-sex couples but of all extended groups that put their lot together and, perhaps, raise children, while allowing the state to continue endorsing the special significance of traditional marriage and biological parenting. Indeed, dialogue along these lines could lead to more inclusion and more diversity, in the groups entitled to civil support as they live their shared lives together, than that offered by the approach advanced by the plaintiffs in Obergefell. That diversity would be won not by stretching the definition of marriage to the breaking point, but rather by recognizing that marriage, while critical to protecting the place of biological procreation, need not monopolize all the state’s solicitude.
This reading of Windsor would most faithfully accommodate the interests at stake and our federal and democratic form of government. Yet, we have to be prepared for the possibility of a majority of the Court, and even Windsor’s author, in the coming days expanding Windsor to impose SSM as a constitutional right. Against that possibility, defenders of traditional marriage must prepare to extend the constitutional arguments for the rationality of traditional marriage to the political and also the cultural sphere, to explain to a new generation why traditional marriage most effectively reflects our humanity and resists the ever-growing commoditizing of that humanity, doing the job that should have been done better long ago. No better example of that kind of long campaign will be found, no better source of encouragement both strategic and spiritual, than the efforts waged over four decades by many associated with this journal in defense of human life.
II. The Road to the Supreme Court
The Court’s upcoming decision will rightly dominate analysis of the SSM debate for months and years to come. Yet even as the nation awaits that decision, it is still revealing to review the underlying political and judicial dynamics of how the SSM movement came to focus on a constitutional solution. Such a review reveals the unique standards applied by many federal judges to strike down tradition marriage law, suggesting a rush to judgment that was more politically motivated, more concerned to be “on the right side of history,” than to follow established norms of constitutional interpretation. It also reveals what some of the implications of a final decision imposing SSM on all 50 states might be.
The Dismissal of Perry
In Hollingsworth v. Perry, the Court was to consider appeals from lower federal court decisions that had struck down as unconstitutional California’s Proposition 8 (“Prop 8”). Prop 8, a California state constitutional amendment passed by popular initiative referendum, was the people’s response to a California Supreme Court decision that had declared California law’s limitation of marriage to one man and one woman violative of the California constitution. Prop 8 was intended, and did, restore the law in California to what it had been before the state Supreme Court’s decision. After a challenge to Prop 8 itself on state constitutional grounds was rejected by the California Supreme Court, the federal litigation was commenced. In his opinion finding Prop 8 unconstitutional, District Judge Vaughn Walker wrote not only that gender, the presence of a mother and father, and the biological basis of procreation were irrelevant to the question of marriage and child rearing, but that it was indeed irrational, from a constitutional perspective, to think they were relevant. With Judge Walker relying heavily on contested social science evidence in reaching this conclusion, the decision’s logic carried far beyond the question of marriage. Immediately and inescapably, new human life is removed from treatment as a member of the human family with biological links to—and claims of right on—a mother and father, and instead becomes the object of the asserted rights of unrelated adults. The historic understanding of family law that considered, at least as a prima facie matter, biological links to the child, is now seen as irrational. Walker made it very clear that this was really where he is going, giving complete credence to the position of Prop 8 opponents that there is no evidence of any benefit to a child through being raised by his or her own mother and father, even as a general matter.
After Prop 8 was struck down by Walker, the litigation was complicated on appeal by the refusal of the governor and attorney general of California to defend the state constitutional amendment, despite its having been validly passed by the people. At this point the proponents of Prop 8 stepped forward to appeal the district court decision. Walker’s opinion was affirmed by a divided panel of the Ninth Circuit, which, perhaps itself skeptical of the breadth of Walker’s rationale, ignored almost all of his detailed findings and, not basing its affirmance on a right to SSM per se, based it on the narrower ground that the “change in law” worked by Prop 8 targeted gays without a sufficient basis other than animus. At this point, certiorari was granted by the U.S. Supreme Court. Thus it was that a significant procedural question arose of the standing of those proponents to maintain the appeal. In the much-anticipated Supreme Court decision on Perry, a 5-4 majority of the Court held that the group of Prop 8 supporters who had stepped in to defend their initiative lacked the requisite interest, or showing of specific harm, required to have standing in federal court. The standing decision made for interesting alliances. Chief Justice Roberts, together with Justice Scalia, were clearly unsympathetic to the claims of SSM supporters, as shown by their dissenting opinions in Windsor, striking down the constitutionality of Section 3 of DOMA, released just the day before the decision in Perry. Yet notwithstanding these views, they had little sympathy for the standing rights of the Californians opposed to SSM who worked tirelessly through the political process to put Prop 8 on the ballot. As interestingly, they shared this view with Justices Ginsburg, Breyer, and Kagan, who were in the equally ironic position of being generally supportive of SSM (again, as shown by their majority votes in Windsor) yet ultimately responsible, by their votes on the standing issue, for avoiding a decision that might otherwise have made SSM the law of the land in 2013.
Indeed, Justice Ginsburg’s diminished enthusiasm for a broad ruling in Perry stood out in oral argument in March 2013. Ginsburg openly questioned whether it might be “premature” for a ruling mandating SSM. What is more, she suggested, as it turned out quite controversially for many liberals, that the reason the abortion debate has dragged on for so long was that Roe cut off the natural political evolution towards a prochoice position, hardening opposition because of a heavy judicial hand. Might not a lesson learned be that it would be better to allow the seemingly inexorable political gains of the SSM movement to carry the day, and avoid the charge of judicial activism that could engender a backlash. Coming from another angle, Justice Kennedy, a must-have vote for those seeking a broad ruling, seemed to embrace a go-slow approach by noting that SSM had been around for only about 5 years, and that needed to be weighed against thousands of years of social experience with traditional marriage. And from the surprising direction of Justice Sotomayor came a question that many defenders of traditional marriage ask: “Mr. Olson . . . if you say that marriage is a fundamental right, what state restrictions could ever exist? Meaning, what state restrictions with respect to the number of people, with respect to . . . the incest laws . . . what’s left?”
Between these misgivings about a sweeping ruling and new concerns about the standing requirement being met in the case, it was clear that the Supreme Court had come to regret the Perry case having been taken by the federal courts. Lacking a consensus either to clearly uphold Proposition 8 or to strike it down on sweeping constitutional grounds, the Court went on to duck the issue, dismissing the writ of certiorari as improvidently granted, avoiding any Supreme Court view on the merits.
Next Steps for SSM: Democratic Engagement or Litigation?
The conclusion that might reasonably have been drawn from this diminished enthusiasm for a sweeping ruling in Perry is that such a ruling would indeed be not only premature, but unfounded, and unfounded for the same reasons that Roe was unfounded. As to the Due Process/fundamental rights prong of the argument, a right cannot be “implicit in the scheme of ordered liberty”—which it must be to be ascribed a fundamental right—when it is not present in the text or history of the Constitution, is counter-indicated by the unbroken historical practice of the American people from colonial times until 2004, and was rather the quite recent invention of activist judges. Without the heightened scrutiny afforded curtailments of fundamental rights, traditional marriage laws need only meet a rational basis test, and the preference for children to be raised by their biological mother and father in an intact family, and the relatedness of traditional marriage toward that goal, would hardly seem irrational, unless all human societies throughout history before the Netherlands in 2001 were irrational—a daring claim. Moreover, the recent moves by additional states to allow gay marriage, far from bolstering a constitutional case to require gay marriage, indeed cut against it, showing that supporters of gay marriage are quite able to successfully utilize the political process, thus undercutting the Equal Protection component of any challenge.
However, the lesson that Justice Ginsburg seems to have drawn instead was a rather different one: that if the Court is going to impose a sweeping ruling, it had best wait until more than a mere dozen states have SSM. That could be a purely tactical consideration, with a view to avoiding a Roe-type backlash. But in fairness, there is a substantive, constitutional rationale potentially at work as well. If the Court waited, and over time a great majority of states came to see SSM rights as critical parts of the modern understanding of marriage and changed their laws accordingly, a point might be reached where it could arguably be seen as “implicit in the scheme of ordered liberty” through the evolving traditions of the American people. This kind of dynamic would create a more plausible basis in fundamental rights jurisprudence, as well as being far less open to charges of judicial activism. Some commentators noted at the time that the mere dozen or so states with SSM at the time of oral argument in Perry compared unfavorably with the status of anti-miscegenation statutes at the time of Loving v. Virginia, when only 14 states had such race-based restrictions. But the Loving comparison was wrong for two reasons, one of which was apparent at the time, and one of which has become apparent now. First, Loving was right regardless of how many states had anti-miscegenation statutes because it was based on the central purpose of the Civil War Amendments, certainly of the Equal Protection Clause, to eliminate the legal infrastructure of White Supremacy, and on the consequent well-established precedent subjecting race-based classifications to the highest levels of strict scrutiny, a concern totally lacking in Perry. Second, it’s only reasonable to refer to changing state laws as evidence of evolving standards of fundamental rights when it is actually the American people, through our democracy, doing the changing. That well over half of the 36 states that now have SSM have it only because of federal judicial decisions imposing that result obviously distinguishes the current situation from Loving.
In light of these considerations, one must ask what accounted for the change in Justice Ginsburg’s view, from believing in 2013 that the time was not right for a sweeping constitutional decision but apparently, as we shall see, believing now—a mere two years later—that it is time. Perhaps she thinks that the superficial equivalence of the number of states now with legal SSM to those with no racial restrictions at the time of Loving gives the Court an optical defense to the charge of activism that is good enough, despite the increase having come almost wholly through judicial imposition. Still, given constantly rising poll numbers for SSM, the basis for optimism in the go-slow approach, of achieving the desired end democratically and thus without the Roe-type backlash she feared, would have seemed considerable. In the 2012 elections, SSM cracked its uninterrupted losing streak in popular referenda by winning all three on the ballot—in Maryland, Maine, and Washington State. Rhode Island, Delaware, and Minnesota followed suit by legislative action in 2013. Similar efforts prevailed after some resistance in Illinois. With all of this, with a media narrative, best represented by the Time cover story noted above, crowing about the inevitable victory of SSM, with politically so much seemingly on the side of SSM advocates, why the rather sudden abandonment of the push to win democratically at the state level? Perhaps it is a view motivated by justice: that if you belief SSM is a fundamental right now being denied, any delay works a serious harm (though certainly that was equally true in 2013). Why, then, the refocus of effort on constitutional litigation, conveniently coinciding with a flip-flop by justices who now think the time for a sweeping ruling is ripe? Could there be an alternative explanation both for the change in SSM advocates’ strategy and for the willingness of justices previously sensitive to charges of activism to now charge ahead?
Can SSM Be Secured without the Court’s Intervention?
Shortly after Perry, numbers whiz Nate Silver in the New York Times helpfully explained how, if then-current trends continued, by 2016 or certainly 2020 SSM would be winning referenda in a majority of states, eventually taking all but the Deep South. A good statistician, Silver caveated that this assumed current trends continued, and also that there was not some other factor, such as a religious revival among young voters, that would counter this trend.
Given that these successes made the political process seemingly so promising for SSM, the ambivalence of many activists towards a longer-term political engagement is telling: Was there something to be feared in a more robust and ongoing dialogue about the role of marriage and family, a dialogue that would inevitably force defenders of traditional marriage to improve their to-date woefully inadequate job of articulating the rationales for giving social preference to the biologically-based parenting model underlying traditional marriage?
It turns out that the “inevitability” of an onward progression toward acceptance of SSM might not have been that bought into by its own advocates; they may not have been quite as assured as the Board of Time that traditional marriage supporters are on the wrong side of history. You could hear it a bit in the hesitation even of such sanguine prognosticators of SSM victory as Frank Bruni in the New York Times, when he noted in 2013 the reality “that while the count of states with same-sex marriage has risen fleetly, dozens of states expressly prohibit same-sex marriage, with bans on it written into their constitutions in many cases, and there may soon come a point when the tally I mentioned earlier abruptly stops increasing.” Linda Greenhouse was even more explicit, defending Roe as an absolute necessity, disparaging the hopes of Ginsburg and others that abortion rights might have gradually been secured by a political strategy. Indeed, Greenhouse observed that political conflict over abortion was escalating before the Roe decision, and that state progress on decriminalization “had reached a standstill in the face of opposition from the Roman Catholic Church.” Was there a fear that after such initial success, a more effective movement could do the same with SSM?
Silver may have conditioned his prediction of ultimate SSM victory in a majority of states on current trends continuing, but couldn’t one safely assume that those trends will continue? After all, polls have shown increasing support for SSM—why wouldn’t they continue? While it may be forgotten now in the most recent polling advances for SSM, in 2013, some liberals were worried that such trends had already ceased to continue, with one striking exception. This from Charles Blow in the Times:
Much has been made of the growing acceptance of same-sex marriage in this country, but a Pew poll last month found that that the change is driven mainly by millennials. Theirs was the only generation in which a majority (70 percent) supported same-sex marriage; theirs was also the only generation even more likely to be in favor of it in 2013 than in 2012, as support in the other generations ticked down. The longer-term picture is even more telling. Support for same sex-marriage among Generation X is the same in 2013 as it was in 2001 (49 percent). But among millennials, support is up 40 percent since 2003, the first year they were included in the survey.
Of course, some change could be expected given the well-funded and executed grass roots education efforts by SSM advocates, undertaken in connection with various elections, enjoying a roughly 5:1 spending advantage over traditional marriage defenders. Pew data suggesting that acceptance of gay marriage had hit some resistance among voters over 30, while surging among millennials, may also reflect the particular focus on efforts to turn out usually low-propensity millennial voters.
Into 2014 and 2015, polling data continued to be ambiguous, some indicating continued gains for SSM, including a Gallup poll just out this May showing support for SSM at an all-time high of 60 percent, a AP-GfK poll out just days before the Supreme Court argument in Obergefell showing support at 48 percent, both increases from previous surveys, but Pew, in September 2014, finding a statistically significant 5 percent decrease in support from 54 percent to 49 percent. The most recent Pew survey this month, however, showed an increase in this Boomer cohort as well. With regard to age cohorts, all confirmed the critical role of millennials in driving support for SSM. At first blush, this might seem an enviable position for the SSM cause. Have they not “won the future” by capturing an outsized proportion of the youngest voters? One reason for caution, however, is that a movement that turns on changing attitudes about what marriage means, is in fact making disproportionate progress with the groups that have the least experience of marriage.
While the most recent polling data may be more optimistic for SSM supporters, there were certainly reasons to think that Blow and other liberals could have been onto something in worrying, in the immediate aftermath of Perry and Windsor, about whether we could be at a high-water mark for SSM support, one brought on by a combination of a woefully inadequate public engagement by defenders of traditional marriage, a spectacularly unlevel financial playing field, and a popular culture and academic and media elite working efficiently to build a superficially appealing case for SSM while stigmatizing rival views. What would happen if there were a sustained, coherent presentation of a persuasive philosophy of marriage, defending the traditional contours of sexual complementariness, and stripped of the unworthy, homophobic attitudes that one must admit have intruded into the parlance of many opponents of SSM. We will turn to this possibility in the final section, but it suffices here to say that there is good reason to believe that the judicial and political partisans of SSM did not switch to a litigation strategy just because they thought the “country was ready” for a sweeping judicial opinion, but also because they concluded there would be no other way to achieve their goals.
The Reversion to Litigation
Despite what seemed technically like a non-decision on SSM in Perry, the social, media, and political discussion surrounding Perry and Windsor drove the manner in which the “marriage debate” was framed over the ensuing months. For the reasons above, or other reasons, SSM advocates moved quickly from their promising democratic strategy to a litigation strategy, and have been to all appearances vindicated in that choice by the courts. The lower federal courts to consider state marriage laws post-Windsor have pretty much unanimously ruled in the same way as Perry, and in doing so, they have adopted most of Perry’s flaws.
The cases divide into those striking down traditional marriage laws under strict scrutiny, and those purporting to apply a rational basis test. In almost all the cases the result was the same, and for the most part, a statement that a court was applying a mere rational basis test was belied by actual application. Take Bishop v. United States ex. rel. Holder, one of the first federal cases to be decided post-Windsor. Although Judge Terence Kern of the U.S. District Court for Oklahoma found sexual orientation not to be a suspect class in the Tenth Circuit and hence applied no heightened scrutiny but merely a rational basis test, he went on to find that the rationality of the Oklahoma constitutional provision’s exclusion of same-sex couples as a means to support natural procreation was undercut by its “failure to impose the classification on other similarly situated groups (here, other non-procreative couples).” But surely this imposes a level of narrow tailoring that goes well beyond what is traditionally required in a “rational basis” test. As seen with Judge Walker’s opinion in Perry, the eagerness to find that traditional marriage laws were not even rational led to the creation of a special kind of rational basis test that was heightened scrutiny in everything but name. If a law uses the male-female complementariness as a proxy for procreative reproduction, traditional rational basis would look at whether that proxy is reasonably correlated with the goal being sought. It should be more than enough under this analysis that (1) the vast majority of male-female couples are very likely capable of reproduction at some point, (2) absolutely no same-sex couples are capable of reproduction, (3) inquiries into willingness to procreate could be rationally omitted both owing to unreliability and so as not to invade marital privacy, and perhaps most importantly, (4) a small number of non-procreative couples being allowed to marry does far less to undermine the paradigm of marriage as a symbolic support and encouragement for natural procreation than does a declaration that it is irrational to treat marriage as if procreation and gender were even relevant to it, which is of course exactly what these courts were doing.
Likewise, Senior Judge Bernard Friedman of the Eastern District of Michigan allegedly was applying a deferential rational basis standard in DeBoer v. Snyder, yet incredibly thought it fatally undermined the rationality of Michigan’s traditional marriage law that it did not provide in the licensing process a requirement to show the prospect of achieving certain outcomes for childhood success, nor provide for annulment in the case of inability to have children or of poor academic outcome. Indeed, the court, thinking that it was destroying the state’s case, said its purported rationale of promoting optimal child welfare should lead it to conclude that “only rich, educated, suburban-dwelling married Asians may marry,” which would be crazy. In fact, all the court destroyed with this reverie was any cover that it was really applying a rational basis test. All that a state need show on a rational basis test, with regard to this one (among several) justifications for that law, is that a child being raised by its own biological parents is arguably preferable as a general matter to being separated from one or more of its biological parents. Failure to narrowly tailor the law so only breeders of super-children may marry hardly then bars states from having other criteria that correlate well, if not perfectly, with asserted goals.
Justice Orlando Garcia of the Western District of Texas fretted in De Leon v. Perry that Texas’ procreation rationale “threatens the legitimacy of marriages involving post-menopausal women . . . ,” yet again showing how the eagerness to invalidate traditional marriage law led these courts to import notions of narrow tailoring wholly inappropriate to a rational basis test.
But one gets the idea. There was little of a serious attempt to apply traditional rational basis analysis, and much enthusiasm to reach the result that a universal practice of human societies for millennia, with a strong basis in the social and indeed existential need to regulate procreation, with nary a thought of animus against homosexuals, was after all irrational. Indeed, what is striking is the degree to which so many decisions, purportedly applying rational basis review, got into detailed examinations of social science evidence, critiques of the methodologies of various studies, and even the academic pedigrees of researchers, as if the role of a federal court in such matters were to review de novo the public policy decisions of the legislature. Its role is nothing of the kind. Perhaps the legal defenders of traditional marriage could be faulted for being too ready to be dragged into this debate, often basing their defense on studies purporting to show the superior academic achievements, lower delinquency rates, etc., of children raised in households with their married biological mother and father. If that is the constitutional criterion of family policy, and courts are free to consult the best “social science” and make their own policy determinations under the premise of enforcing constitutional ”Due Process,” then it is not clear why they would limit themselves to such a narrow band of choices as traditional marriage and SSM. There might be as much reason to look sympathetically at Plato’s Republic, and give a hearing to raising children (or at least the best children) communally by a group of the most virtuous citizens. Or perhaps the advantages of raising children by assignment to appropriate families, as portrayed in the book and movie The Giver by Lois Lowry, should be considered, if judges find such open-ended second-guessing of legislative policy appropriate as part of constitutional review. Then again, if constitutional review of marriage and parenting regimes turns on successful outcomes as defined by whatever social science judges like to consider, then it is not clear why there are any legal rights of a biological parent to have prima facie custody of their biological children. Certainly studies would (or could be designed to) show that removing children from “disadvantaged” parents in infancy and transferring them to wealthy adopters—heterosexual or gay, couples or singles, or communes—would result in those children performing better on standardized tests and having superior career prospects.
The point of indulging these ideas, ideas that one hopes are—for the time being at least—absurdities, is to recognize how far off the rails these so-called rational basis reviews of traditional marriage laws went, and how at times even the defenders of traditional marriage fell into the trap of conceding that the case should be about which social science school of child raising is “correct,” as if the court should have the last word on that. At least under rational basis review, it is enough to say: So long as our society accords certain prima facie rights and duties to biological parents as it now does, then it is presumptively rational for society to wish to channel procreation and child rearing preferentially toward biological parents. To serve this end, a marriage regime that privileges the one-man-one-woman couple as the norm of parenting is manifestly reasonable. Only the one-man-one-woman model will reinforce the normative nature of biological parenting, and will obviate the need for government to get involved, as a regular matter, in complex decisions about custody. Conversely, any other marriage structure will inevitably draw the government to get more involved in intimate family decisions, whether through the machinery of adoption, the civil enforcement of surrogacy, or artificial sperm donation contracts. And this will be done not as the exceptional case, but increasingly as a norm of how typical families should be composed. Only the male-female union organically unites the two parties that have these natural biological relationships and, under existing law, natural rights, with respect to their offspring. Only the male-female union can, as a general matter, avoid the need for government intervention to change rights established by virtue of that biological connection. By contrast, same-sex unions by their nature cannot avoid that need for government intervention, for by definition they always and everywhere require the termination of rights established by biological relationship. Minimizing the need for government to get deeper into these family decisions is a valid rationale in itself for wishing to promote, facilitate, and extol the one-man-one-woman marriage model.
It must be stressed, however, that noting the rationality for due process purposes of promoting traditional marriage need not and should not conflict with providing some analogous means of support for non-traditional family structures with children. The plaintiffs in DeBoer are moving examples of this. By all accounts, April DeBoer and Jayne Rowse are excellent, indeed heroic, adoptive parents, who have taken upon themselves the care of special needs children. All of them were born into tragic situations—one to a mother who was a drug-addicted prostitute—from which they were rescued by DeBoer and Rowse. The biological mothers whom traditional marriage advocates extol were dysfunctional people all too happy to give up their children to DeBoer and Rowse, and what a blessing for those children that they did. Should such heroic adoptive parents be forbidden from adopting in such a tragic case? The answer should be a resounding no. And quite interestingly, the DeBoer litigation started with plaintiffs’ challenge not to the Michigan Marriage Amendment, but rather to the adoption statute, which, while allowing single people to adopt, precluded unmarried people from adopting each other’s children. It was only when Judge Friedman “suggested” to the plaintiffs that their injury was not traceable to enforcement of the adoption restriction but rather to their inability to be married that plaintiffs amended their complaint to attack the marriage law itself. What strange advice: The adoption restriction was clearly the most direct and immediate source of plaintiffs’ injury. One can be forgiven for wondering whether Friedman’s suggestion was meant to perfect the celebrated case that it has obviously become.
Yet, the critical point here is that while denying heroic caregivers like DeBoer and Rowse the right to adopt may indeed seem irrational, it would seem no more irrational than denying that right to any other loving, competent person or persons willing to step into this tragic situation to raise these children. It would seem as irrational to deny such adoption by the polygamous family noted in the prologue. It would seem as irrational to deny such adoption by two maiden aunts of the biological mother who were living together as a household. It would seem as irrational to deny such adoption by any number of individuals or groups who might demonstrate the level of responsibility and stability and determination to raise these children, yet do any of those situations require the state to therefore concede that all of these individuals or groups must be allowed to be married? Such a view would adopt what we have already described as a “supremacist” view of marriage that seems to say two (or more) people can’t do anything socially worthy together without having to be able to “tie the knot.” This view fundamentally misunderstands the purpose of marriage, at least as a civil matter. It is not to “monopolize the field” of worthy collective endeavor, which it can’t, nor to provide metaphysical or spiritual ennoblement, which a secular state should leave to religious or cultural celebrations of marriage rather than civil recognitions, but rather, far more modestly, to channel biological parentage into the one structure that minimizes rather than creates conflicting claims on the child, conflicts that inevitably require more government intervention to resolve.
The courts applying rational basis review erred by second-guessing legislative judgments that should have been left to the democratic process. Likewise, the courts purporting to justify a higher level of scrutiny were also so keen on their goal as to ignore the basics. In Bostic v. Schaefer, Judge Arenda Wright Allen of U.S. District Court for the Eastern District of Virginia applied strict scrutiny to Virginia’s marriage law after finding that it denied homosexuals the “fundamental right to marry.” Allen cites the Supreme Court’s opinion in Washington v. Glucksberg for the general rule that courts will uphold regulations rationally related to a legitimate state interest, and then goes on to say that, nonetheless, strict scrutiny is applied when fundamental rights are involved. So far so good, until she then finds that since “marriage” is a fundamental right, therefore the exclusion of same-sex couples must meet strict scrutiny. This is incredible, for she never even applies the test mandated by the Supreme Court in Glucksberg itself to determine at what level of generality the alleged fundamental right must be defined. Any fair reading of Glucksberg would recognize that the right to marry, which indeed is a fundamental right, cannot be read to include more broadly the right to marry anyone you want, given not only the long-standing reservation of marriage to male-female couples, but the many other restrictions on marriage, such as bans on marrying one already married to another person, bans based on consanguinity, age, etc. Indeed, Allen’s judicial activism seems to have been exactly the sort against which Glucksberg warned:
“Our Nation’s history, legal traditions, and practices thus provide the crucial guideposts for responsible decisionmaking that direct and restrain [judicial] exposition of the Due Process Clause.” . . . Second, identification of fundamental rights “require[s] … a careful description of the asserted fundamental liberty interest.”. . . These principles are intentionally strict, for “extending constitutional protection to an asserted right or liberty interest . . . to a great extent, place[s] the matter outside the arena of public debate and legislative action” and may thus “pretermit other responsible solutions being considered in Congress and state legislatures.” citing District Att’y’s Office v. Osborne, 557 U.S. 52, 73 (2009). . . Courts “must therefore exercise the utmost care whenever . . . asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences” of judges. Glucksberg, 521 U.S. at 720 (internal quotation omitted and emphasis added).
It is hard to know if Judge Allen’s ignoring of Glucksberg was based on true ignorance of the applicable test for defining fundamental rights, or just the understandable time pressure she was under. You see, February 14 was approaching, and the publicity factor of getting the opinion issued on Valentine’s Day was clearly paramount. Playing fast and loose with the fundamental rights analysis was not the only flaw chalked up to Valentine haste; Bostic was also the opinion where a federal judge confused the Constitution and the Declaration of Independence in invoking the phrase “all men are created equal.”
Moving to the Appellate Level
The district court decisions wound their way to the appeals courts through the course of 2014. Decisions in most federal circuits struck down state marriage laws that excluded SSM. It was in response to this situation that Justice Ginsburg continued, even in mid-2014, to see no “need” for the Supreme Court to rush in, and joined presumably with other liberals and at least one conservative to deny review of these pro-SSM appellate decisions. One could see why this approach would appeal to Justice Ginsburg. After all, if federal appellate courts continued to strike down traditional state marriage laws, the Supreme Court, merely by denying certiorari, could serenely watch the number of states allowing SSM to grow quickly, and put off its own intervention until the number of remaining traditional states had become so small that a Supreme Court sweeping decision could be seen more as a ratification of the status quo than a radical decision. Of course, such a strategy just ratified the same radical approach at a lower level of the federal judiciary.
And the appellate level supplied the desired result. When the Bostic case reached the Fourth Circuit, that panel could not ignore Glucksberg as obviously as Judge Wright had done; so they ignored it more cleverly. Circuit Judge Floyd, writing for a divided panel, said: “We do not dispute that states have refused to permit same-sex marriages for most of our country’s history. However, this fact is irrelevant in this case because Glucksberg’s analysis applies only when courts consider whether to recognize new fundamental rights . . . Because we conclude that the fundamental right to marry encompasses the right to same-sex marriage, Glucksberg’s analysis is inapplicable here.” That’s a very clever but ultimately circular way to dispense with Glucksberg’s requirement: Just redefine marriage to mean the right to marry anyone you want, despite the fact that that has never been a part of the definition of marriage, and then conclude that because the fundamental right to marriage includes the right to same-sex marriage, the requirement to test whether that narrower right to same-sex marriage is “deeply rooted in the Nation’s history” now doesn’t apply. Presto! Indeed, the majority’s attempt to justify looking at the fundamental right in question as the right to marry broadly defined convicts itself in the three cases it chooses: Loving, Zablocki, and Turner. If it had cited a case that invalidated a restriction that had previously been a long-standing part of the definition of marriage, such as the limitation to two partners, or restrictions on consanguinity, perhaps the court might have broken the circularity of its argument. But of course, all three cases were about impediments on the long-understood definition of marriage as between one man and one woman, not about mere loyalty to those long-standing definitions. Loving, as noted above, was first and foremost driven by the race-based nature of the restriction that was thus rightly subjected to strict scrutiny and invalidated. Zablocki and Turner involved statutes that denied marriage licenses (again, traditionally understood) to men with unpaid child support obligations or to prisoners, respectively. Invoking these cases to justify ignoring Glucksberg’s requirement is facetious.
As Circuit Judge Niemeyer correctly noted in dissent, the majority “declares, ipse dixit, that ‘the fundamental right to marry encompasses the right to same-sex marriage’ . . . . [a]nd in doing so, it explicitly bypasses the relevant constitutional analysis required by . . . Glucksberg . . . stating that a Glucksberg analysis is not necessary because no new fundamental right is being recognized.” Yet his dissent exposes another fundamental flaw with the majority’s opinion. The plaintiffs and the majority, Niemeyer notes, “ignore the problem with their position that if the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice,” as they contend, then that liberty would also extend to individuals seeking state recognition of other types of relationships that States currently restrict, such as polygamous or incestuous relationships.” The very reason for Glucksberg’s requirement for a narrow definition of any right being asserted as fundamental, and the risks of defining it too broadly, are shown clearly in this case.
Meanwhile, the celebrated Circuit Judge Richard Posner in the Seventh Circuit was similarly caught up in applying a heightened scrutiny to state marriage laws without any effort to justify it in terms of Supreme Court precedent. To his credit, he does not try to find a fundamental right and thus avoids the need to confront Glucksberg. His approach is through Equal Protection and a finding of animus, meaning in effect he is finding gays to be a suspect class, something the Supreme Court has not done. In a learned discussion, which would have been quite appropriate for a legislator considering the matter, or even more so for a public policy class, Posner cites Gary Gates on LGBT parenting, Stephanie Coontz’ work on “How Love Conquered Marriage,” and of course the obligatory references to John Stuart Mill in explaining why society has no business interfering in anyone marrying anyone unless it causes “tangible, secular, material” harm. What he does not do during this exegesis is discuss at any length any Supreme Court precedents applying equal protection law, save a one-line reference to Loving. He dismisses as implausible the multiple state interests asserted in defense of traditional marriage law, clearly applying heightened scrutiny (although he is also quick to point out that the proffered justifications are not rational anyway). Discussing Indiana’s asserted interest in channeling potentially procreative sex into marriage, Posner finds the state has been underinclusive, since it doesn’t require marriage licenses to expire when one of the couple becomes infertile. Again, his is an application of the wrong standard of review, but more fundamentally, a failure to consider both the ways in which the role of biological parenting continues to be played out as a symbolic model even beyond the period of fertility.
Only at the very end of his sociological lecture does Posner, almost as an afterthought, try to bring it within the framework of Supreme Court precedent. “For completeness . . . we note the ultimate convergence of our simplified four-step analysis with the more familiar, but also more complex, approach found in many cases.” And how many of those many Supreme Court cases does he analyze? One. Windsor. More precisely, he follows only a Ninth Circuit reading of Windsor to find that it requires subjecting discrimination based on sexual orientation to heightened scrutiny. However, Posner, as well as the Ninth Circuit, ignores the very emphasis that the Windsor passages relied on placed on the fact that there is no permissible federal interest sufficient to justify the purpose and effect of the law “to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” Posner would turn the federalism prong of Windsor on its head. Noting that the Court had said DOMA would treat state-recognized same-sex marriages as “second class marriages for purposes of federal law,” Posner reasons “[but] a second class marriage would be a lot better than the cohabitation to which Indiana and Wisconsin have consigned same-sex couples.” One can agree of course with his statement as a matter of policy, but Posner has fallen into the judicial hubris of constitutionalizing that policy question, with the effect of constraining the state’s authority in marriage, and all based on a decision meant to defend state authority against federal encroachment.
Although Baskin is notable for its lack of even an attempt to apply Supreme Court precedent, it actually bears closer reading for a more fundamental reason. Perhaps the most cited passage of Posner’s opinion, having fun with an admittedly incomplete answer by the lawyer representing Indiana, is as follows:
[The] government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of government encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.
This is undeniably effective rhetorically; however, the underlying assumption shows much about how Posner has misread the real issue at stake. Homosexual couples are hardly the only group “rewarded” by being denied the right to marry. Broader family arrangements, like the girl’s polygamous family noted in the prologue, those connected by a certain degree of blood relationship, older same-sex siblings living together, indeed, many other groupings and associations, all of which may be both very good at raising children and unlikely to produce unwanted children, are not allowed to marry. In fact, polygamous groups could be very good at raising children and somewhat likely to produce unwanted children, seemingly meeting not one but two of the states’ asserted rationales for allowing marriage, and yet still are not allowed to marry. Is that unconstitutionally irrational? At first blush, taking seriously the state’s asserted interests, a ban on polygamy seems far more irrational than a ban on SSM, since at least polygamy does foster keeping a child with his or her biological parents. Does that mean we can’t take as a serious policy goal trying to steer the one kind of relationship that does produce children, and at the same time seeks to unite its children’s two and only two biological parents, into marriage? Is it an invidious and hypocritical discrimination to say that these other groupings may be very appropriate structures for raising children, and especially may be great blessings for children that, for whatever reason, cannot be raised by their biological parents, but that the state still wishes to provide some special encouragement to the kinds of relationships that exclusively have the possibility to bring that life into being? That other things being equal, we should try to sustain a relationship between a child and his or her biological parents? Only if you believe that there is absolutely no preference to be given, even as a general matter, to biological parentage.
And that is the most disturbing part of Posner’s opinion: He really doesn’t think there is any such preference. This comes out in several ways. First, one cannot read Posner’s discussion of Mill—the state has no justification in pursuing any moral vision other than avoiding “secular harm”—without concluding that he would be a pretty sure vote to invalidate bans on polygamy; clearly SSM will be just one step on the path to eliminating any preference for biological parenting if Posner’s framework prevails. But Posner’s elevation of his legal theory over reality is exemplified by his singling out Wisconsin’s refusal to allow same-sex domestic partners to adopt jointly as “its most arbitrary feature.” The refusal, he says, harms children “by telling them they don’t have two parents.” But of course it is not the refusal of joint adoption that tells them any such thing: The fact will be apparent to any child of an SSM household that they do not have at least one of their biological parents. It is not rank bigotry and prejudice that will tell them this fact, but rather the biological reality of human reproduction. One can want to ensure a same-sex couple providing a home to adopted children every legal support to facilitate that, without feeling it necessary to try, futilely in any event, to obscure that at least one of their natural parents, one of the people who brought them into being, is not there. And neither is it an “arbitrary” decision to allow opposite-sex couples to adopt jointly; since in such as case, obfuscation of the adoptive children’s natural parents is not, unlike with same-sex couples, futile. Even in these opposite-sex adoptions, though, the natural desire of children at some point to find out about where they came from, perhaps out of existential curiosity, perhaps because of the practical need to know of medical and genetic histories, perhaps to reestablish some form of bond, is well known. It is reflected in the fact that 43 states maintain some kind of registry or other forum for bridging adoptive children and their natural parents. Yet for Posner, these biological bonds are utter irrelevancies. Then again, this should not be so surprising for a judge who argued in his 1992 Sex and Reason that prostitution was an economically more efficient “substitute for marriage,” has a habit for reducing most aspects of humanity and morality to his Law and Economics analysis, and who lionized Oliver Wendell Holmes as “the American Nietzsche,” as if that were a good thing.
Besides the Fourth and Seventh Circuits, appellate courts in the Ninth (no surprise given its previous decision in the Perry case) and Tenth Circuits also upheld district court decisions. The Eighth Circuit had a case pending, though it had previously issued a decision upholding SSM bans in its circuit, suggesting that a circuit split might already have existed. But any doubt was removed in November: The Sixth Circuit broke the string of SSM appellate victories, and upheld a series of state laws in that circuit as constitutional. Issued by Circuit Judge Sutton, the opinion finally created the clear circuit split that forced the hand of those Supreme Court justices that might have been willing to let the appeals courts do the work of imposing SSM.
DeBoer v. Snyder, involving an appeal from a district court decision striking down Michigan’s traditional marriage law, was consolidated with appeals from similar invalidations of Ohio, Kentucky, and Tennessee laws, and heard before Circuit Judges Sutton, Cook, and Daughtrey. From the very beginning of his majority opinion, Judge Sutton expressed little doubt that American law would change to accept SSM. Rather, the case was about the process, within the American constitutional system, by which that would happen. Sutton for one illustrates a properly applied rational basis review: “So long as judges can conceive of some “plausible” reason for the law—any plausible reason, even one that did not motivate the legislators who enacted it—the law must stand, no matter how unfair, unjust or unwise the judges may consider it as citizens. Heller v. Doe, 509 U.S. 312, 330 (1993), Nordlinger v. Hahn, 505 U.S. 1, 11, 17-18 (1992).” He finds two rational bases at least that satisfy this low bar. First, performing a thought experiment:
Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.
To be sure, Sutton acknowledges, people do not think about marriage today only in terms of children. Many or perhaps even most now think of marriage as primarily about solemnizing relationships between adults based on love and affection. And all of this may well support the policy argument accepted by many states that marriage laws should be extended to gay couples. Yet, and this is key, it “does not show that the States, circa 2014, suddenly must look at this policy issue in one way on pain of violating the Constitution.” Why? Because “rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges, even a better way supported by evidence . . . . does not empower federal courts to “subject” legislative line drawing to “courtroom” fact-finding designed to show that legislatures have done too much or too little.
Sutton is fully aware of the “foolish, sometime insensitive” inconsistencies: loveless marriages, abused children, “monogamists who do not ‘monog.’” He understands the plaintiffs’ question: “how . . . could anyone possibly be unworthy of this civil institution?” Let alone gays who in individual cases may be far more faithful to the ideals of traditional marriage than its so-called proponents.
All of this, however, proves much too much. History is replete with examples of love, sex, and marriage tainted by hypocrisy. Without it, half of the world’s literature, and three-quarters of its woe, would disappear. Throughout, we have never leveraged these inconsistencies about deeply personal, sometimes existential, views of marriage into a ground for constitutionalizing the field. Instead, we have allowed state democratic forces to fix the problems as they emerge and as evolving community mores show they should be fixed.
Moreover, Sutton notes, the plaintiffs’ theory is subject to “line drawing problems of its own” that are as bad or worse than the states’ position.
Their definition fails to account for plural marriages, where there is no reason to think that three of four adults, whether gay, bisexual or straight, lack the capacity to share love, affection and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. If it is unconstitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point. What they might say they cannot: They might say that tradition of community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that for that is exactly what they claim is illegitimate about the States’ male-female definition of marriage. The predicament does not end there. No State is free of marriage policies that go too far in some directions and not far enough in others, making all of them vulnerable—if the claimants’ theory of rational basis review prevails.
It is hard to find in Circuit Judge Daughtrey’s dissent any direct refutation of the constitutional analysis offered by the majority. In the face of the substantial Supreme Court precedent cited by Sutton to the effect that judges cannot premise a finding of unconstitutionality merely on “factual findings by one federal judge that favor a different policy” than one adopted by the legislature, she proceeds to do exactly that: pages of discussion about the trial testimony of clinical psychologists, historians of marriage, sociologists, yet when it comes to the legal analysis one would expect, this interesting approach:
Is a thorough explication of the legal basis for such a result appropriate? It is, of course. Is it necessary? In my judgment, it is not, given the excellent—even eloquent—opinion in [the district court opinion in] DeBoer and in the opinions that have come from four other circuits in the last few months that have addressed the same issues involved here . . . These four cases provide a rich mine of responses to every rationale raised by defendants . . . “
That they may, but Daughtrey doesn’t tell us what those responses are, or how they apply to the cases she is impaneled to review. She certainly doesn’t explain how they rebut the majority’s showing that the plaintiffs’ position suffers from worse over-inclusion and under-inclusion than the traditional marriage regimes themselves. Her opinion is embarrassingly lacking in any original jurisprudential analysis to support such a radical departure from traditional rational basis analysis as to find the heretofore universal definition of marriage constitutionally irrational. The section of her opinion entitled “Rational Basis Review” might have led one to believe that at last Daughtrey would have something original to say about why the statutes at issue in the case before her were irrational, but instead she merely notes that the majority’s argument is one “that an eminent jurist has described as being ‘so full of holes that it cannot be taken seriously.’ Baskin, 766 F.3d at 656 (Posner, J.).” We have critiqued Posner’s approach in Baskin above, but at least he did the litigants the favor of writing his own opinion, based on his analysis of the case before him, something Daughtrey seems to have lacked the confidence to do.
But two things Daughtrey’s opinion does accomplish require a little focus before leaving DeBoer: The by-now ritualistic invocation of Loving, and her treatment of the “social science” evidence adduced by the district court.
Daughtrey dismisses Sutton’s original intent argument—that the adopters of the Fourteenth Amendment never understood it to require the States to change the definition of marriage—by saying “they undoubtedly did not understand that it would also require . . . the end of miscegenation laws across the country . . . culminating in the Loving decision in 1967.” Undoubtedly? It would appear Judge Daughtrey should reconsult Loving itself. Chief Justice Warren commented extensively on the history of debates in the Thirty-ninth Congress about the Fourteenth Amendment and other race-related legislation. While Judge Sutton is correct, as even Judge Daughtrey must concede, that none of those framers thought marriage would have to be redefined to include SSM, Chief Justice Warren thought the debates “inconclusive” about what the effects would be on issues like miscegenation statutes. The more zealous proponents of the Amendments, certainly the Radical Republicans, almost certainly would have thought the Amendments barred anti-miscegenation laws. (Indeed, one recalls the vitriol D.W. Griffith’s Birth of a Nation pours on the Northern Republican architects of Reconstruction precisely for this reason: The character of Austin Stoneman, based on Thaddeus Stevens, intent on promoting miscegenation and destroying the White South, suggests that at least some of the framers of the Civil War Amendments would have intended exactly the outcome in Loving.) Diehard Confederate sympathizers, who may have ratified it only as the price for re-entering the Union and ending Reconstruction, would have wanted to give it the most grudging and narrow interpretation. In the event, though, Warren had no need in Loving to read the minds of individual framers of the Amendment, because the Supreme Court of Appeals of Virginia itself, in Loving, cast the justification for the anti-miscegenation law as maintaining “racial pride” and preventing “mongrelization of the races.” Given that the Supreme Court had held, starting in the Slaughter-House Cases handed down a mere five years after adoption of the Fourteenth Amendment, that the “clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination . . . ,” there could be no doubt that a measure, in Warren’s words, “designed to maintain White Supremacy,” would fail scrutiny under the Equal Protection Clause. Indeed, Warren concluded, “restricting the freedom to marry solely because of racial classification violates the central meaning of the Equal Protection Clause.” (Emphases added) The claim that traditional marriage laws’ limitation to one man and one woman—the universal practice of and meaning of marriage for millennia in the West—violates the central meaning of the Equal Protection Clause in anything remotely like the way that anti-miscegenation laws do is simply an attempt to anachronistically graft modern gender theory onto the opinions of parties who, on either side of the Civil War animosities, would have seen it as a mockery of what they were fighting for.
Finally, with respect to DeBoer, it is worth noting the rather partial—one might even say biased—view that Judge Daughtrey has of “bias” in social science studies proffered by litigants in the case. Daughtrey restates favorably and at length the testimony of social scientists David Brodzinsky, Nancy Cott, and Michael Rosenfeld, all for the view that there is no difference in child well-being and adjustment between children raised in SSM households and those raised by their biological mother and father. She then critiques studies introduced by the states to rebut these, specifically three studies by Mark Regnerus, Douglas Allen, and Loren Marks. There has been much criticism of the Regnerus study methodology, but another damning problem for Regnerus in Daughtrey’s view was that his study “had been funded by the Witherspoon Institute, a conservative ‘think tank’ opposed to same-sex marriage.” Let us assume that taking funding from a partisan group working for one side of an issue does impair one’s ability to be unbiased. But what of Allen? For Daughtrey, here was the key problem: “Allen provided evidence of the bias inherent in his study by admitting that he believed that engaging in homosexual acts ‘means eternal separation from God, in other words[,] going to hell.'” (Emphasis added.) And as for Loren Marks: “he revealed his own bias by acknowledging that he was a lay clergyman in the Church of Jesus Christ of Latter Day Saints (LDS) and that the LDS directive [supporting male-female marriage and child raising] remains in force.” So, if we read this correctly, Daughtrey is saying that no one who is a traditional Christian or Orthodox Jew or Muslim, i.e., no one that happens to believe that homosexual conduct is sinful, is competent to do a methodological study on the impacts of family structure on children. They are disqualified, it would seem, as a matter of law, from being considered objective. Keep in mind, Marks and Allen were not coming into the court as Bible-thumping preachers leading with their views on the immorality of homosexual sex. Their testimony over several hours, and under cross-examination by plaintiffs’ attorney Carole Stanyar, focused on questions of study methodology; only when Stanyar at the close of her cross-examination asked if they believed in certain tenets of their faith, and they responded in the affirmative, did this come out. This must come as quite a blow to the many SSM supporters among religious groups—growing numbers even among evangelical Protestants and church-attending Catholics, polling suggests—who may personally find homosexual conduct to be sinful, but who have come to agree that as to civil marriage, they should not “impose their views” on others. It seems that Judge Daughtrey does not reciprocate their magnanimity. She believes their personal religious views would disqualify them from testifying about study methodologies. When Joseph Potchen, attorney for Michigan, objected during testimony to Stanyar’s questioning Marks about his faith, Judge Friedman to his credit sustained the objection, noting:
THE COURT: I will sustain. He already testified that he is a person of faith and so forth. I don’t think we have to go into the specific teachings of any faith. And he also talked already about the biases and so forth.
POTCHEN: Thank you.
THE COURT: We are going too far.
Judge Daughtrey apparently thinks it is not “too far” to question people on their personal religious views and then disqualify them from consideration if those views adhere in material ways to what has been the mainstream teaching of Judaism and Christianity for millennia. This is not a juror in a capital murder case being dismissed because he admits his religious opposition to the death penalty would make him unable to impose it. This is a social scientist being told his religious beliefs on the immorality of homosexual acts make him per se disqualified from giving expert testimony on survey methodology. One can’t help but note that if testifying in federal court were an Office or Public Trust under the United States, Judge Daughtrey’s views would be exactly the kind of “religious test” forbidden by Article VI of the Constitution: Catholics and Baptists need not apply. Incredible as this bias is, at least it seems that it only goes one way. She found no problem of bias at all with the expert testimony of David Brodzinsky, even though his resume reveals funding for his studies by groups like The Rainbow Endowment and the David Bohnett Foundation, both groups strongly supporting an LGBT rights agenda. One is left to assume that some biases are more biased than others.
And so it was that under a lopsided ledger of federal courts finding traditional marriage law unconstitutional, but at least one federal appeals court upholding such laws in its circuit, the stage was set for SSM’s return to the Supreme Court.
III. Oral Argument at the Supreme Court
On April 28, oral argument took place at the Supreme Court in Obergefell. The lawyer representing the SSM proponents was Mary Bonauto, the lawyer who brought about SSM’s first major judicial victory in the Massachusetts Supreme Judicial Court’s 2003 decision in Goodridge v. Dept. of Public Health. The Justices did not waste much time in getting to some of the core questions in the case. After introductory questions from Chief Justice Roberts and Justices Ginsburg, Kennedy, and Scalia, going to how “new” the notion of marriage was that plaintiffs were urging, and against how long a backdrop—millennia—of traditional marriage it was counterposed, it was Justice Alito who first focused in on the question of dignity and whether refusal to accept SSM had to be seen as a denial of dignity to gays. It is rare nowadays for Plato to be cited in Supreme Court oral argument, but Justice Alito raised the point that for Plato, as for many of the ancient Greeks, homoerotic relationships were hardly objects of animus, and indeed were strongly praised. Yet this did not stop Plato and his contemporaries from preserving marriage as between men and women, and doing so for the same very practical, socially stabilizing reasons, without prejudice against gays, that many states are asserting today.
One might be tempted to dismiss the invocation of ancient philosophers as irrelevant to the constitutionality of marriage laws today, but this would be wrong. A key question in that constitutional determination, as we have seen, is whether a limiting of marriage to a man and a woman can be justified by any reasonable basis, rather than necessarily being based only on anti-gay animus. Certainly the fact that a highly thoughtful and learned society, one untouched by Judeo-Christian concepts of marriage, one that even values homoerotic relationships, could still see the need for marriage centered on the one man-one woman complementariness as to procreation, is at least strongly suggestive that there are reasonable bases for this limitation and it is not necessarily grounded only on animus. This is a constitutionally relevant line of inquiry, as shown by its being pursued by a number of Justices. Yet Bonauto has no response. Justice Alito asks directly: “so their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?” Bonauto begins to answer, “I can’t speak to what was happening with the ancient philosophers.” This must have seemed a disappointing response for Justices who sincerely wanted to understand how the claim that only irrationality or animus underlie one-man-one-woman marriage could be squared with such historical examples.
In fairness to Bonauto, she could not further develop her response to Alito’s question, because Justice Kennedy intervened to ask about other early cultures, noting that from an anthropological standpoint, many ancient people, even predating organized government, established marriage custom and “it was a man and a woman.” Bonauto’s response to this is interesting. She concedes “there were certainly . . . marriages prior to the United States forming and we recognize that.” Generous. But Bonauto then implies that when we founded our union in 1787, and when we affirmed the Fourteenth Amendment in 1868, we were actually making a commitment to individual liberty and equality that somehow upended this understanding of marriage. This suggestion that the Framers were, intentionally or otherwise, overturning the understanding of marriage of millennia of human history then prompted this exchange with Justice Breyer:
JUSTICE BREYER: Well . . . maybe you’re doing that, but I would like to hear the precise answer to the question you’ve been asked several times.
JUSTICE BREYER: And to me, it takes the form, the opposite view has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require States that don’t want to do it to change what you’ve heard is change what marriage is to include gay people. Why cannot those States at least wait and see whether in fact doing so in the other States is or is not harmful to marriage? Now, that same question has been put in many, many ways in the briefs on our subject. You’ve received it in three or four different ways. I would like to know, so I can hear and understand it, just what your response is.
BONAUTO: Okay. And I apologize if I haven’t. In our system, you know, with the Fourteenth Amendment, which again is sets forth principles that we all are governed by and govern our lives, and you look at examples like coverture. Okay? Even if it was not universal, it was still something that was wide widespread in this nation for a very, very long time, and that change in marriage was deeply unsettling to people. Likewise, even if race was not used as a basis for discriminating in every single State as a matter of law by criminal law and constitutional law, it was incredibly pervasive. And again, changing that, as Virginia resisted in the Loving case, resisted and said please, wait and see, 80 percent of the American public was with Virginia on that. But again, it was the question of the individual liberty of the person to do something that was considered a profound change in its time.
This exchange is revealing. In it, Justice Breyer, a Justice known to be sympathetic to gay rights generally given his vote in Windsor, is asking a seemingly very sincere question, motivated by a desire to know what is the core rationale for thinking there is a federal constitutional basis for taking the decision away from the people, and forcing SSM on all 50 states. A very reasonable and indeed critical question, to which Bonauto gives a non-answer. She asserts in response that marriage changed with the abolition of coverture (the legal status of married women as under the protection and authority of her husband) and Loving‘s abolition of bans on interracial marriage. As Breyer’s question notes, however, the male-female aspect of marriage dominant over millennia was not imposed by people discriminating against gays. Rather, these laws evolved to reflect, and put structure around, the natural fact that a man and a woman come together and in their intimacy can beget a child. This explanation certainly cannot be applied to pre-Loving bans on interracial marriage, which were clearly intended, as we saw in our discussion of Loving above, to perpetuate a structure of White Supremacy. And as the Chief Justice had earlier pointed out, coverture was hardly a universal aspect of marriage, as the male-female element clearly was. If these are the best answers that plaintiffs can give, the Justices should be cautious indeed in removing this issue from the democratic process.
Bonauto’s failure to respond to Justice Breyer’s opening, her failure to explain how somehow the “animus” inherent in traditional marriage laws justified taking the matter away from the people, was striking; but it didn’t end there. Justice Alito quickly followed this exchange up by raising another major issue with plaintiffs’ position: the lack of any clear limiting principle. Plaintiffs claim that even universal features of marriage such as the male-female component can be treated like coverture and done away with, without changing the notion of marriage. Yet if this is so, what about other seemingly universal features. Alito asked a hypothetical concerning whether, if plaintiffs’ theory prevailed, there would be any way that a state could deny two men and two women the right to be married. Bonauto thought there would be two reasons to do so.
BONAUTO: One is whether the State would even say that that is such a thing as marriage.
Needless to say, this response is . . . less than fully thought through. Bonauto would have been well advised to spend more time reviewing Judge Sutton’s opinion in DeBoer to at least be prepared for what not to say. Her answer was exactly the one that Judge Sutton explained SSM proponents would like to give but could not. Her answer to Alito’s question is basically: Oh, don’t worry about plural unions; they have never been recognized as even being marriages, it’s definitional!
This answer suffers from two major flaws. First, as Judge Sutton noted, such an answer is inconsistent with, indeed totally undercuts, SSM proponents’ central argument against traditional marriage: that it is not enough to plead traditional mores or understanding of “what marriage has always meant,” even just to meet a rational basis test. But it’s worse than that, for second, the statement is demonstrably false. Unlike SSM, plural marriages at least can claim to have been recognized as marriages. Most obviously, plural marriages, as the prologue suggests, have been recognized as valid marriages in various cultures and times, including today in many parts of the Middle East, Africa, and Asia. In addition, in the West, a marriage between a man and a woman where one of them is married to another is not in its form invalid as a marriage, rather it faces the legal impediment of one party being in a pre-existing marriage, as opposed to SSM, which states with traditional marriage laws would say do not even meet the essential form for a valid marriage. For Bonauto to claim that the state can assert that a plural marriage “simply isn’t what a marriage is,” but cannot assert the same about a SSM, is simply ludicrous.
And Justice Alito does not let it go:
JUSTICE ALITO: But—well, I don’t know what kind of a distinction that is because a marriage between two people of the same sex is not something that we have had before, recognizing that it is a substantial break. Maybe it’s a good one. So this is no—why is that a greater break?
Unable to defend the distinction between SSM and polygamy based on her first reason, Bonauto then retreats to a second: consent and coercion. Polygamy has historically relied on coercion, and Bonauto implies—though her answer is not clear—that state concerns about coercion would somehow justify a continuing ban on polygamy. But again here Justice Alito presses: “Let’s say they’re all consenting adults, highly educated. They’re all lawyers.” After the laughter in the Courtroom dies down, Alito asks: “under the logic of the decision you would like us to hand down in this case . . . what would be the logic of denying them the same right?”
After repeating the “consent and coercion” line one more time, but rightly seeing that that is not a response at all to Justice Alito’s critical question, Bonauto slips into a third line of justification for the distinction: “family disruption.”
BONAUTO: The question is one of—again, assuming it’s within the fundamental right, the question then becomes one of justification. And I assume that the states would come in and they would say that there are concerns about consent and coercion. If there’s a divorce from the second wife, does that mean the fourth wife has access to the child of the second wife? There are issues around who is it that makes the medical decisions, you know, in the time of crisis. I assume there’d be lots of family disruption issues, setting aside issues of coercion and consent and so on that just don’t apply here, when we’re talking about two consenting adults who want to make the mutual commitment for as long as they shall be. So that’s my answer on that.
While it is good that Bonauto was finally able to give her answer “on that,” it is not clear that it is a satisfactory one. For if polygamy admittedly may introduce some complexities in the divorce scenario Bonauto raises, relative to traditional marriage, it can hardly be said to be more complex than the confusing situations that have been created by SSM. In fact, polygamy is arguably less confusing. At least all of the biological parents are involved in the marriage, and hence any divorce proceeding could authoritatively determine those rights consistent with rules at least analogous to traditional marriage: each birth mother enjoying joint custody with the father. In a polygamous marriage, there would be no more confusion as to parental identity than in a traditional marriage, as there would be only one presumptive father, and one presumptive mother, being the birth mother. Polyandrous marriages might introduce further complexity, with several possible biological fathers, but here, DNA testing as used in traditional paternity suits would suffice to eliminate uncertainty, and again, all relevant parties would be in “the marriage” under the purview of the divorce proceedings. How much more difficult, in contrast, are SSM scenarios, where by definition the “marriage” does not have all the biological parents, those with rights and relationships with respect to the child, involved as integral parties to the divorce proceeding.
Bonauto’s answer to Justice Alito’s line of questioning, far from answering any of the concerns he raised, in fact point to an “inconvenient truth”: that biology unavoidably obliterates the pretense that SSM can ever be the same thing as a traditional marriage. It can share in many of its virtues, such as mutual care and concern, commitment and support; but so can many other relationships, many that society is not now, and some that society may never, be willing to call marriage. What distinguishes traditional marriage from all these other relationships, however virtuous in other ways that many of them may be, is that only in a traditional one-man-one-woman marriage are the only two direct, biologically given relationships that a child is born with brought together in unity and exclusivity, merging that child’s universe of relationality into one nuclear whole. Is this a guarantee of harmony? Obviously not. Is it a guarantee that a wealthy sterile couple eager to adopt could not provide a better upbringing and education than many, maybe most, biological parents? Probably not. Could a bevy of Platonic Guardians provide a more enlightened upbringing than many a biological family? Maybe so. But if we really want to pretend that there is no special relevance to biological parental ties justifying their being privileged by marriage law, a pretense required by SSM, then society must be prepared for huge changes in the whole body of family law, changes that will ultimately undermine the fundamental notion that biological parents have any special rights and responsibilities as such with respect to their children.
Such a result would have seemed, absent the tough cases presented by SSM, to be the kind of dystopic fantasies out of The Giver. But have no doubt: SSM will be a catalyst for many sympathetic cases to challenge the long-standing legal rights of biological parents. Even now, one cannot fail to sympathize with the anger of Jann Paczkowski, who married her lesbian partner, Jamie, having “had a son” by Jamie securing an anonymous sperm donation, all with the assurance that “the marriages of same-sex and different-sex couples” would “be treated equally in all respects” under New York’s new Marriage Equality Law. But in June, 2014, a judge in Nassau County family court ruled in their divorce proceeding that Ms. Paczkowski did not have legal standing to seek access to the boy—because even under the Marriage Equality Act, she was not his parent. As covered, sympathetically, by the New York Times:
The case of Jann P. v. Jamie P. is messy and at times disturbing, as breakups often are, but the questions it raises are broad: What does it mean to be a parent to a child? And as the state promises equality to same-sex unions, in which only one spouse can be biologically related to a child, how does it value the ties between parent and child, outside of biology?
“Basically you’re looking at 237 years’ worth of laws that heterosexuals put into law, that in my opinion need to be cracked like the Ten Commandments,” Ms. Paczkowski said, her features balled up in frustration. “It needs to be changed.”
The 237 years’ worth of laws that “need to be cracked” of course refer, most centrally here, to the legal recognition of a natural bond between a biological mother or father and their child. That bond is not indestructible. As the appellate court affirming the family court’s dismissal of Jann P.’s action noted, parental rights can be displaced on a showing of “surrender, abandonment, persistent neglect, unfitness or other extraordinary circumstances.” But that is the point: Absent those extraordinary circumstances, the law presumes that the biological relationship of MOTHER AND CHILD, of FATHER AND CHILD, have a pre-legal, natural significance that is rightly reflected and supported in the law. And it is exactly that presumption that is on a collision course with SSM. It cannot be any other way, for SSM demands the obliteration of any continuing relevance of gender as such.
None of this should undercut sympathy for Jann P.’s dilemma. She may have been a far better caregiver and nurturer than Jamie P. She was almost certainly a better caregiver than the type of father who would provide his semen to strangers in an unregulated transaction and have no further care in the world for the offspring. But she is not the child’s mother. Under current law, her only option would be to have this treated as an “extraordinary circumstance”—argue that Jamie is abusive or neglectful, and seek legal adoption. But this would be an uphill fight, uphill because of the current presumption in favor of biological parents. Alas, this is the presumption that must be “cracked” in order for SSM to be meaningful, to be real, to have teeth.
All of this is said not to be unsympathetic to those in extraordinary situations that do not fit easily in marriage law built up over centuries, situations that may require compassionate resolutions on a case-by-case basis. This is said to underscore the absurdity of the claim that SSM is just about joining the institution of marriage, not about changing it. The enshrinement of SSM as a constitutional right will require changing more than we currently imagine.
For his part, the attorney for the state Respondents in the Obergefell case, John Bursch, tried from the outset to advance the argument from Judge Sutton’s hypothetical about a society with no marriage law. With a little help from Justice Scalia, he was able to navigate Justice Sotomayor’s deployment of the “how does SSM hurt straight marriage” trap.
JUSTICE SCALIA: Excuse me. Do—do you have to answer that question?
Mr. BURSCH: Under rational basis, we don’t.
JUSTICE SCALIA: Is—is it your burden to show that it—it—it will harm marriage between a man and woman if—if you allow two men or two women to marry? Is that your burden? I thought your burden was simply to show that—that the State’s reason for this institution is a reason that has nothing to do, that is inapplicable to same-sex couples.
Bursch also effectively made the point that “ideas matter,” and that a reasonable voter could conclude that delinking the concept of marriage from procreation, and refocusing it on emotional commitment, could over time decrease the societal consciousness that childbirth should occur within marriage. At this point, Justice Kennedy makes an important interjection:
JUSTICE KENNEDY: Same-sex couples say, of course, we understand the nobility and the sacredness of marriage. We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.
Bursch then duly reassured Justice Kennedy that the State of Michigan “values the dignity and worth of every human being.” But one might have wondered whether Justice Kennedy was implying that the nobility and “sacredness” of marriage is something conveyed by the Michigan Code, or rather by the cultural and religious investment of meaning in marriage, meaning not unrelated to marriage’s role in cementing husband and wife in a procreative union. Is “sacredness” something that a secular civil marriage regime is meant to, or even could, convey?
Moreover, since same-sex couples cannot, by Justice Kennedy’s admission, procreate, what basis is there for limiting only to them the “other attributes” desired by same-sex couples. Why not to a wider group of people connected by common bonds? And if the answer is that the benefits of marriage are only available to those who are romantically involved, why is that a defensible limiting factor when procreation is not?
But perhaps one of the most revealing exchanges, especially in light of what was said above about the clash between SSM and the to-date normative status of biological parentage, was with Justice Sotomayor:
BURSCH: I mean, I think we can all agree that, in general, that we want kids to stay bound to their biological mother and rather whenever possible. That’s the whole definition.
JUSTICE SOTOMAYOR: No, I think they should be bound to their parent, because there are a lot of adopted children and they are not . . . thinking of biological moms and dads.
Certainly Justice Sotomayor is right to defend the roles of adopted parents. Yet her statement seems prompted by profound disagreement with Bursch’s statement that “we want kids to stay bound to their biological parents as much as possible.” Does Sotomayor mean to object to this biological preference even as a norm, as a general matter? Sotomayor’s comment could have been a helpful point of departure to focus discussion on the real interest of the state in advancing traditional marriage—that it alone aligns the natural rights of two parents and child to each other in a way that minimizes confusion and the need for government intervention. Adoption, as Burch later says, is heroic, but that is the exceptional case where, for whatever reason, it is not possible for the child to be with his or her biological parents. What Bursch should have pointed out, politely but firmly, is that what SSM advocates tend to do is to take that exceptional case and make it normative. Yes, it is a great blessing for a child victimized by an abusive biological parent, or who has lost a natural parent to tragedy, to have the welcome of a caring household. But that household is a blessed response to an exceptional situation, not something to displace the biological parent relationship as the norm and ideal. Moreover, once the only biologically objective norm is rejected as normative, then what follows is a very subjective exercise in line drawing, where the Obergefell plaintiffs’ lines as more subjective and less defensible that those of traditional marriage by far. Asked to defend its under-inclusiveness, traditional marriage can at least point to the fact that only its “lines” tend to link a child with its two and only two biological parents as a norm. Yet as we have seen, the Obergefell plaintiffs can point to little to defend their own lines from the charge of arbitrariness. The fact that SSM couples can bond with their children? But so can the polygamous family of our prologue; so can the maiden aunts raising the child of their addicted niece.
Against this backdrop, it becomes clearer that Justice Kennedy has made the right point in talking about the dignity of marriage—the “other attributes” besides procreation—and how that should be available to the many children being raised in same-sex households. And his point certainly must extend with equal force to all children being raised in households outside the nuclear family norm. And thus the dignity prong of Windsor, which is the backdrop and foundation for Justice Kennedy’s interjection above, should actually be seen as extending beyond the contours of “marriage”—be it traditional or SSM—to embrace the many and rapidly evolving structures that provide a caring home for children. They, as much as any, deserve the benefits and facilitation that the “mechanics” of marriage provide not only to the raising of children, but to the care and support of all members of the household for each other. At the same time, Windsor honors the “community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” It is in the nature of “evolution” that it sometimes proceeds down paths that do not work out so well, while parallel paths get it right and lead forward. It is precisely because we are still in the midst of – in Windsor’s words – an evolving understanding, that the courts should not cut this process short, anointing some States as having it right, and some as having it wrong. Perhaps an enlightened and developing consensus will emerge that equality in access to the main features of civil association now contained in marriage are deserved by many groups beyond those bound by implicitly romantic or sexual relations. Moreover, this might coexist with a sense that some remaining unique protection for the concept of “marriage” in the public consciousness should remain as a check on the obliteration of gender and mother/father roles. This prong of Windsor honors the considered judgment of the states in what is the defining characteristic of marriage. As such, it should be read as supporting both those states that have adopted SSM, seeing it as an extension of equality, and those states that see marriage as about supporting the natural bonds of parents and children in a unique way, tying the biological basis of procreation to the collective consciousness of marriage. These determinations are part of the states’ “historic and essential authority to define the marital relation,” reflecting, as Windsor cites approvingly to prior precedent, the fact that “the whole subject of domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.”
IV. Marriage and Life
The better holistic application of Windsor would see state retentions of traditional marriage law upheld, affirming Judge Sutton’s wise opinion, while contributing a strong endorsement of measures to recognize the dignity interests of other household groups and children being raised by them, be it civil unions (available not only to same-sex couples, but to a broader class of households reflecting the diversity of modern American family life), tax and immigration benefits, and other measures meant to ensure supportive environments for these children. All of this could be given in a manner consistent with the protection of the biological bond of parent and child, as a symbolically important archetype in the public consciousness, anchored by a definition of marriage as one man and one woman. Yet as seen above, there are reasons to believe that a more radical overhaul of marriage could be effected with a constitutional decision mandating SSM, and there are certainly strands in Windsor that could be extended to that end. What should be the response to such a move?
First, one must acknowledge the huge difference between a constitutional decision invalidating traditional marriage laws as “irrational” and the quite separate popular move to embrace gay marriage. Despite the vitriol of activists, such measures need not see traditional marriage as irrational, but their supporters may honestly believe, rightly or wrongly, that they are seeking only to include a broader class within the protections of marriage. There is even a sense in which conservatives and pro-life activists can accept, and indeed they have been urged to accept, these popular gains for SSM with magnanimity. There are examples from British Prime Minister David Cameron, who personally championed England’s 2013 adoption of SSM, to Republican Senator Rob Portman of Ohio, of politicians arguing that their support for gay marriage flows from, and not despite, their conservatism. And of course, there are many Republican and conservative strategists who long for an end to conservative opposition to SSM, seeing it as the major hurdle standing between them and winning more support from millennials, who while seemingly embracing SSM also, applying a consistently libertarian outlook, are drawn to conservative economic policies. Indeed, Jonathan Capehart wasted little time in hailing Prime Minister Cameron’s quite surprising victory in May’s British elections as evidence of this, and urging that it be a lesson for U.S. Republicans. One can agree with all this, yet see Cameron’s victory, far from boosting the case for a Supreme Court embrace of SSM, as showing why it should affirm Judge Sutton’s opinion and leave the question to the political process. Cameron is rightly seen as one of the most astute politicians in the world today: How would he see the issue? While there are certainly differences between the U.S. constitutional system and Great Britain’s, let’s consider this plausible analogy: How would Cameron have reacted to a judgment by the European Court of Human Rights requiring Britain to accept SSM. Most likely outrage, outrage at the thought that such a question would be taken away from the democratic process. And who could plausibly argue that SSM rights would be on a sounder footing through such a judicial decree than they are now through a law passed by Parliament?
But let us put aside the constitutional issue. The embrace of SSM by these conservatives as a matter of policy has to give some pause. Not only Prime Minister Cameron: The Prime Minister of Luxembourg, who just married his male partner, Irish Taoiseach Enda Kenney, who strongly backed the Yes vote on Ireland’s SSM referendum, these and others are center-right politicians. And it is not just “libertarian conservatives” either; some of the most thoughtful commentators to make peace with SSM, like David Blankenhorn, continue to believe that SSM effaces the purpose of marriage as linking the biological, social, and legal aspects of parenting, but have nonetheless opted to attempt a “grand coalition” between defenders of traditional marriage and SSM proponents in the interest of advancing a culture of marriage that can counteract the rapid erosion of commitment and responsibility. Indeed, we are told, social conservatives should accept SSM and “declare victory,” for with it gays are basically saying they accept the conservative arguments on the importance of marriage and simply want to be able to opt into it.
Moreover, in what may be of particular interest to readers of the Human Life Review, some commentators have suggested that even the traditional conjoining of pro-SSM and pro-abortion partisans as natural allies in the culture wars may be breaking down. Jonah Goldberg, writing in National Review around the time of Perry, noted that “if you’d predicted in the late 1980s that the country would become more pro-life, more pro-gun, and more pro-gay, the experts would’ve laughed at you,” and yet that is exactly what has happened. Frank Bruni, in one of his many pro-SSM columns for the New York Times, not only crowed about the shift even among conservative Republicans towards SSM, but explained it specifically in terms of how advocates of traditional marriage, unlike pro-life partisans, cannot point to an injured party. “The abortion debate grinds on in part because to those who believe that life begins at conception and warrants full protection from then on, every pro-choice victory claims victims.” By implication, Bruni is saying there is simply no harm—certainly none commensurate with the taking of human life—that occurs when marriage is expanded to same-sex couples. I trust I would be among the great majority of readers of this publication, and perhaps a larger percentage of Americans than many might think, who would accept a sweeping constitutional decision in Obergefell finding a 50-state right to same-sex marriage if it came magically as a package deal with a decisive overruling of Roe v. Wade.
Of course, no such package deal is in the offing. As a result, those who are concerned with life issues cannot avoid the hard task of thinking through what the deeper implications of same-sex marriage, and the logic that support it, are for the way we conceptualize human life. When they do, what will they find? It turns out that life issues and the marriage debate, not surprisingly, are inescapably intertwined, and in such a way that a victory for SSM in Obergefell would not be auspicious for the pro-life concerns.
Much depends on how the Supreme Court rules, but in some sense, if either through judicial decree or evolving social consensus the view were to be accepted that the biological framework of traditional marriage is irrational or outdated, then the link between life issues and the marriage debate would become all too clear.
As an initial matter, it seems clear that the rights of natural parents to their children, and of children to their natural parents, are on shaky ground should the logic of SSM’s judicial partisans gain acceptance. From Judge Walker’s opinion in Perry to Judge Posner’s caustic opinion in Baskin, there is nothing to be “favored” even symbolically in this biological relationship. Biological motherhood is a commercial resource to be contracted for, and indeed its divisible elements—genetic motherhood (donation of ova), fetal incubation (womb rental), etc.—subcontracted for and dismissed when the services are completed. The widespread adoption of a legal and ethical worldview in which these elements of motherhood are freely alienable may seem at first to bring freedom and choice to the contractual parties. Yet once the notion that motherhood represents a deeper bond, merging the biological, emotional, and legal connection between mother and child, is discarded and replaced with a view of motherhood as merely a bundle of services for hire, collectively or individually, then motherhood inevitably loses not only its attendant responsibilities, but also its special rights and privileges. And if motherhood is reduced to a provision of services, it is but a small step to seeing the result of that motherhood, the child, as a mere product, brought about not as a special creation linked to and with claims on his father and mother, but as a work product having no rights to any links, to know his origins, save those the contracting parties choose to allow it.
This fundamental change that would be wrought in the definition of marriage, and the resulting profound impact on life and family structure have been much more candidly expressed in the debates surrounding gay marriage in Europe than they have been in the U.S. debate. Gay marriage supporters still invoke the disingenuous question—how does gay marriage affect anyone else?—as if such a change won’t have exactly the social effects that more honest partisans of gay marriage admit and trumpet. A society that tells mothers there is no rational basis to think they play a special role, as mothers, in the existence or raising of their children, is not one that is the same as one that holds and supports in public policy that that role is unique. And consequences will flow from that. It should not surprise us that the same UK government that aggressively pushed SSM through its Parliament also spearheaded the removal of the universal child benefit in order to discourage women from staying at home and bringing up their own children, instead providing a £1,200 childcare tax break per child once the mother returns to work. The two policies are logically quite related, indeed one follows directly from the other: Mothers clearly aren’t specially needed, since we must maintain that a two-father household is “exactly as good as” one with a mother. Again, protestations that acceptance of gay marriage can’t have any impact on heterosexual couples or broader social policy continue, as if such a massive redefinition of marriage, motherhood, and fatherhood would carry no implications for anything else.
There have always been two problems with the “how does SSM hurt your straight marriage?” line. First, the implication of the argument is that voters should show no concern for a conception of the common good, or the broader social impacts of laws that they vote on, and instead only selfishly consider “what does it mean to me personally.” Ironic, as that seems to fit the caricature usually painted of conservatives by liberals. Why should any heterosexuals care if gay marriage is allowed: The question suggests that if SSM, assuming its proponents’ premise, just can’t have any impact on their heterosexual marriages, then the restriction cannot serve any rational interest. But this question amounts to an invitation to empty the democratic process of any concern for a vision of the good, and a statement that voters can have no “rational” basis to support any policy that is not grounded on their own material benefit. Concern for the longer-term impacts of deliberately denying children yet unborn the ability ever to know a mother (something that even star fashion designer and SSM advocate Karl Lagerfeld concedes is “rather sad”); concern about the broader ramifications of the normalizing of commercial surrogacy and technological reproduction, including exploitation and loss of respect for the uniqueness of each human life; no—these cannot be considered, only whether SSM hurts you and your marriage right now today. A more Randian and atomistic view of society and what should properly shape voter behavior is hard to imagine.
Second, the premise is wrong. It is not only possible, it is the avowed goal of many SSM advocates to change the institution of marriage fundamentally through the introduction of SSM, and it has been for many years. Even if there are many other SSM advocates who sincerely only want gays and lesbians to be able to join marriage for its laudable conservative purposes, the views of the more provocative proponents are, in fact, more analytically convincing as to the likely consequences.
Take Michelangelo Signorile, whose recent book calls for pushing on quickly after an anticipated SSM victory in the Supreme Court to confront, attack, and stigmatize any questioning or debate on its status, was writing as long as 20 years ago that:
To fight for same-sex marriage and its benefits and then, once granted, redefine the institution of marriage completely, to demand the right to marry not as a way of adhering to society’s moral codes but rather to debunk a myth and radically alter an archaic institution . . . . The most subversive action lesbian and gay men can undertake . . . is to transform the notion of “family” entirely.
Or Paula Ettelbrick, former legal director of the Lambda Legal Defense and Education Fund, who explains:
Being queer is more than setting up house, sleeping with a person of the same gender, and seeking state approval for doing so . . . . Being queer means pushing the parameters of sex, sexuality, and family, and in the process transforming the very fabric of society.
Or consult Jonathan Last writing in the most recent Weekly Standard:
Changing marriage beyond recognition has long been a stated goal of the organization Beyond Marriage, which is a collection of several hundred gay-rights lawyers, law professors, and activists. They argue that same-sex marriage is merely the first step on the path to redefining the family itself. Ultimately, they want legal protection for a host of other relationships, including, as they delicately put it, “Queer couples who decide to jointly create and raise a child with another queer person or couple, in two households” and “committed, loving households in which there is more than one conjugal partner.” This group is not a collection of cranks: It includes professors from Georgetown, Harvard, Emory, Columbia, and Yale. The Beyond Marriage project has at least as much elite support today as the entire same-sex marriage movement had in 1990.
Assuming a defeat for traditional marriage in Obergefell, and a continued assault on its defenders as advocated by Signorile, it should be clear that something like the post-Roe engagement of a long-term, difficult, yet finally promising strategy to educate minds and move hearts on the value of life will be necessary to promote an understanding of the core meaning of marriage in civil society. Not least, it will need to do it in a way that respects the legitimate concerns of opponents, that forcefully rejects needless and hurtful animus that is both wrong and counterproductive to efforts to achieve a consensus, yet that forcefully rejects the de-gendered concept of humanity underpinning gay marriage that would inevitably render procreation and life itself commodities to be manipulated by the economic and political interests of the strong.
How could such a movement start? Ironically, the defense of traditional marriage and its unique place might begin with recognizing the ways in which it is not so unique. Part of the difficulty with the recent public discourse is the notion that marriage is a necessity to enjoy any worthwhile and praiseworthy set of human relationships. Judge Reinhardt’s appellate opinion in Perry indulged this fallacy, going on at length to note how time-honored and special marriage is, and therefore how it must be available to all as a matter of “equality.” Yet this is surely not true. Friendship, ties of kinship, and citizenship also reflect ancient concepts that are highly honored, without implying a sexual, procreative link. Aristotle’s On Friendship would prize bonds of comradeship, including intellectual and emotional support, usually between those of the same sex (actually, mostly one can say, between men) more highly than a heterosexual union. One need not agree entirely with that view to say that friendship is an increasingly undervalued concept today, and some level of formal public support for it may well be appropriate. Indeed, it would seem that devices like the domestic partnerships would be entirely suitable for that, as would be devices like the civil PACs in France available before gay marriage went into effect in 2013. The “marriage or nothing” mentality can indeed lead to a very regrettable devaluing of other relationships that are clearly deserving of social support.
The attempt to make marriage the badge of the “most important relationship two adults can have,” blind to gender and procreation, thus suffers from two seemingly opposite but related problems: it tries to call equal two relationships that are intrinsically not equal in their natural consequences, but also dismisses as lacking in sufficient dignity other types of relationships that should be highly prized.
Justice Kennedy’s comment about the need to respect children in the many thousands of non-traditional family settings is entirely on point. But telling these children that they have loving guardians, or a loving parent with a partner, does not require publicly dissembling to them about the nature and consequences of real marriage, nor demeaning the institution that they have by saying it is inferior unless equated—in law—with something it isn’t. One need only look at the long history of extra-nuclear family structures, whether necessitated by economic hardship (children sent to live with relatives), tragedy (orphans send to nearest kin), or otherwise. And this model of family goes well beyond those cases dealing with young children.
I was fortunate enough to grow up, as do many in extended families, in close proximity to two unmarried aunts, my mother’s sisters, living with their father. The devotion they showed in caring for their father in old age, and after his death, for each other, had the most virtuous traits of any loving family. As they are unmarried, they and my grandfather doted on me as a child. I have no doubt that if (praise God it didn’t happen) my parents had been killed in a tragic accident, my aunts and grandfather would have readily stepped in and raised me with as much love as they could give. I would not wish anyone to say that they were somehow less devoted to me because I wasn’t their child, or that I was short-changed in my raising, from this event; if some did, I could well imagine it would be hurtful. Yet, just as easily, I see how senseless it would be to say that somehow, honoring that devotion required that the whole family be characterized identically to a marriage. Moreover, though this hypothetical would involve a strong biological connection, the same could be said of a family that adopts an orphan where there was no biological relationship. In any of these cases, whether the caring family is a straight married couple, a gay couple, an extended family group, or some other structure, there may be a profound loving bond that should be recognized and protected, often one carried out with more heroic charity than many a natural biological parent shows. Any effort to develop a cultural restoration must take note of and honor these situations.
So what is it that is so special about the biological bond, the linking of a child to its parents and the husband and wife to each other as complementary parts of a greater whole? The importance of this existential definition of marriage is much misunderstood. Take Judge Reinhardt’s invocation, in his appellate decision in Perry, of the role of marriage in popular culture, particularly movies and songs. He invokes various examples of the importance of the word marriage to reject the notion that domestic partnerships or similar equivalents are enough for gay couples. Tellingly, his examples, meant to show how much society values marriage, are drawn from movies or even jokes that take it lightly. Marilyn Monroe’s How to Marry a Millionaire and Groucho Marx’s one liners (marriage is an institution, but who wants to live in an institution?) would, as Reinhardt says, probably be less punchy if “marriage” was replaced with “Domestic Partnership,” but none of these jokes, much less Marilyn Monroe, are a serious effort to convey the meaning of marriage. Indeed, if one must seek guidance on these questions from Marilyn Monroe movie gags, a more perceptive reference would have been to the conclusion of Some Like It Hot. When the disguised Jack Lemmon, having made his escape with Tony Curtis from the mob, reveals himself to the sugar daddy as a man, the ending line of the movie is hilarious: The sugar daddy replies “Well, nobody’s perfect!” Yet the hilarity exists precisely because of its massive understatement. Lemmon had removed his disguise as a woman, meant only to feign an interest in marriage and thus procure the rich man’s help in making their escape, to decisively let him know that marriage is impossible. The humor consists in the clear social understanding that being of the same sex is an existential bar to marriage, not merely a minor failing that can be overlooked, and the rich man’s nonchalant likening of the two is blind to the point of funny.
Perhaps more recent films make a similar point about the existential nature of marriage more seriously. Consider what would be lost from Back to the Future if the heterosexual and procreative paradigm of marriage were removed. The desperate poignancy of main character Marty’s race to ensure his mother and father’s first kiss on the dance floor is clearly and dramatically linked to his own existence. This central drama of the movie reaches a dramatic climax in the sequence where his parents-to-be, separated by an interloper on the dance floor, seem destined not to fall in love and marry, at which point the images of Marty and his siblings, in a photo he brought from the future, begin to fade. Marty weakens, stumbles, and feels the beginning throes of . . . non-existence. Then, when Marty’s young father summons the courage to butt right back into the dance and reclaim his wife-to-be, and finally bestows that critical kiss, Marty immediately revives, his flesh whole, the images of his siblings and himself in the picture vividly restored. The meaning is clear: The foretaste of intimacy represented by that dance-floor kiss, an intimacy that would be consummated in real marriage the way only real marriage can be consummated, led directly to a life together and to new life, linked directly and inextricably to the love that brought that man and woman together. This is the kind of basis that ideally we should want each life to have, a basis in love and commitment, a desire reflected in the UN Declaration of the Rights of Children that each child has a right to know his or her own mother and father. This is the reason that marriage has been defined to reinforce this natural fact of biological procreation with a supporting structure of mutual support and recognition. It is also a dynamic that cannot be applied to homosexual couples in the same way, not out of any animus or ill will, but rather because of the biological reality of our created human existence.
And even more recent film and literature has plumbed these themes in ways that help us see the intrinsic ordering of marriage to biological parenting. We have already noted the popular book and film The Giver, which manages, in one work, to chillingly explore where both the pro-abortion mentality and the rejection of biologically based parenting as “irrational” can lead society. Michael Bay’s 2005 film The Island is thought-provoking in many ways, but its most powerful scene for me was that of the surrogate mother clone giving birth. The scene in the maternity ward shows the joy on her face as she gives birth, as any mother should have, having all along been duped into thinking she will live with her child on the idyllic Island. Her expectation, her sheer longing for the nurse to hand the blanket-wrapped baby into her arms, is real and moving to anyone who has been in a delivery room—but then suddenly, there is the look of confusion and incomprehension as the nurse leaves the room with the baby, destined for the woman who “ordered” it, and another doctor administers the lethal injection, the clone’s “purpose” now served. No, that is not the end now awaiting today’s third-world surrogates—not the injection at least. But the parting with the child they have carried for nine months and just borne—that is very much awaiting them. What is our response to that? A very libertarian “well, she contracted for it.” Is a world where such surrogacy and semen sales and all manner of “technological reproduction” are fully normalized and even in some sectors and circumstances preferred—the price for eliminating the relevance of gender as SSM requires—the world our progressive millennials want to build and inhabit? In a generation or two, would a young reader fail to cry, or even be moved, when Severus Snape’s dying words to Harry Potter are “look at me,” because it would simply never occur to him that a boy might have inherited the eyes of someone who should continue to have meaning in his life, rather than just those of his ovum donor?
Or is there a way that, through literature, art, philosophy, and yes, religion, the linkages between traditional marriage and our very humanity can be more cogently imparted to the coming generations? Many—indeed most—SSM advocates are motivated by a sense of justice, that SSM is simply a requirement of equality. That good faith grounding of much of the support for SSM must be respectfully recognized and engaged. In part, positively, these justice concerns should be granted and lead to measures, such as anti-discrimination measures in employment, housing, immigration, and other matters, on which all people of good will can agree. But traditional marriage advocates must forthrightly point out that social justice is not promoted by deliberately arranging for a child to have no mother, nor for economically vulnerable populations to be conscripted for surrogacy, forced by economic circumstance to alienate one of the few precious gifts they can call their own—their ability to bear a child. Indeed, defenders of traditional marriage should rally more broadly with those social justice workers particularly concerned with the environment. As Pope Francis pointed out in his recent encyclical Laudato Si, respect for nature and declining to impose our “will” on the natural environment include the dimension of our human person, our maleness and femaleness.
It is at this point that we must return, for reasons both philosophical and tactical, to the experience with life issues. There can be little doubt that following the Supreme Court’s opinion in Roe, elite opinion considered the matter “resolved.” The assumption was that, enshrined as a constitutional right, abortion would come to enjoy progressively more broad constitutional protections, with decisions striking down not only flat bans on abortion, but also most attempts to limit or regulate abortion, such as parental notice and consent laws, waiting periods, etc. Moreover, this broad judicial support was reinforced by an academic and media-led narrative that viewed the liberal abortion license solely through the prism of equality, and rigorously avoided any engagement on the question of the rights of the fetus as at best “theological” and thus inappropriate in secular, democratic debate, and at worst as pretexts for misogynistic attempts to curtail the rights of women. Yet, contrary to all expectations, the pro-life side did not fold before the “inevitability” of the abortion license.
At one level, there was a certain turning of the judicial tide attributable to the impact on the federal judiciary of the 12 years of Reagan-Bush I appointments. The purely jurisprudential flaws of Roe could no longer remain immune from attack when viewed by judges more focused on original understanding and committed to judicial restraint. With the emergence of the Rehnquist Court, most notably starting in Webster, more and more consideration was given to the state’s legitimate interest in protecting fetal life, and regulation of abortion was progressively upheld. The unscientific basis of Roe’s trimester system, its “raw judicial power” approach that ignored the findings of elected legislatures, came under more sustained critique. It is significant that when Justices Kennedy, Souter, and O’Connor cobbled together their plurality opinion in Planned Parenthood v. Casey, saving Roe from outright overruling, it was with no full-throated defense of Roe’s reasoning as an original matter, but rather with an appeal to stare decisis and the need for stability of expectations. In sum, the solidity of the judicial leg of abortion’s “inevitable” victory was brought into serious question.
Yet at another level, the more amazing reversal was on the social and political side. The expected social consensus failed to solidify, as the pro-life movement continued, slowly but inexorably, to present the facts of fetal life and development to the public. The once-solitary opposition offered by the Catholic Church was joined by other denominations who came to see the pro-life cause as very much in line with other civil rights issues, and most pointedly, in line with Judeo-Christian witness on the wrongness of murder. Interestingly, the broadening of the religious opposition to abortion did not make that opposition more dependent on strictly religious argument; rather, the opposition was also bolstered by developments in technology that allowed an appeal to rational and scientific arguments. As Mary Eberstadt points out, one of the main drivers of the uptick in pro-life sentiment among young Americans was the advent of technology like the ultrasound device and the widespread availability of sonogram images. As she points out, “even a child looking at the sonogram screen says “baby,” not “fetus.”
What lessons do these changes offer for the marriage debate. There is clearly a tactical lesson to be offered on long-term engagement, and making an appeal based on information, reason, and by all means avoiding any demonizing of opponents. Yet beyond this, the life and marriage issues are linked even more closely through the implications of the redefinition of marriage on the understanding of life. SSM in its logical fulfillment requires abolishing the UN Convention on the Rights of the Child, for no child can have the right to know his or her mother or father. And if no child has a claim on its biological parents, and its parents’ relationship to it are judged not as pre-legal, natural rights but as malleable by acts of positive law, then the value of that life itself becomes subject to that law rather than prior to it. These concerns need to be continually developed and the implications explained, particularly to younger generations who, in good faith, see SSM as a matter of equality and as consistent with their increasingly libertarian viewpoints. The work of theologians and philosophers like John Milbank, looking perceptively at the long-term implications of SSM, should be studied and discussed in depth—they would be a corrective to the misguided notion that SSM is the “libertarian” position. As Milbank explains in a 2013 article:
Many may welcome such a development as yet a further removal of state intrusion into our private lives, but that would be to fail to consider all the implications. In the first place, it would end public recognition of the importance of marriage as a union of sexual difference. But the joining together and harmonisation of the asymmetrical perspectives of the two sexes are crucial both to kinship relations over time and to social peace . . . . [SSM] would end the public legal recognition of a social reality defined in terms of the natural link between sex and procreation. In direct consequence, the natural children of heterosexual couples would then be only legally their children if the state decided that they might be legally “adopted” by them.
. . .
Heterosexual exchange and reproduction has always been the very “grammar” of social relating as such. The abandonment of this grammar would thus imply a society no longer primarily constituted by extended kinship, but rather by state control and merely monetary exchange and reproduction. For the individual, the experience of a natural-cultural unity is most fundamentally felt in the sense that her natural birth is from an interpersonal (and so “cultural”) act of loving encounter –even if this be but a one-night stand. This provides a sense that one’s very biological roots are suffused with an interpersonal narrative. Again, to lose this “grammar” would be to compromise our deepest sense of humanity, and risk a further handing over of power to market and state tyrannies supported by myths both of pure human nature and technocratic artifice.
While these warnings of the long-term, ultimately dystopic implications of SSM have a role to play, the message must be fundamentally a positive one, about the unique role played by sexual complementariness in the development of the human person and the linkage of human love with human life. Powerful, well-crafted works of education will be needed. The recent Humanum Conference at the Vatican, and the six beautifully executed films accompanying it, are excellent examples of the kinds of work more of which is needed.
The Supreme Court’s decision in Obergefell will be known in a few days. For defenders of traditional marriage, there will be a temptation to see a reversal of Judge Sutton’s opinion in the most pessimistic, defeatist terms. The less likely affirmance might elicit a celebratory response. Both responses might be ill considered. A reversal, while a defeat with ominous implications to be sure, would only announce the beginning of yet another long and vital campaign to educate our fellow citizens on the real meaning of marriage. And an affirmance, while a welcome relief from an imposed finding of traditional marriage as “irrational,” would still leave the same long-term cultural project ahead to recover the beauty of marriage, its unique living out of male-female complementariness, and its existential link to human life.
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Article by Michael Tenaglia
 Michael Tenaglia, having completed graduate studies in Law and Jurisprudence, is a new contributor to the Human Life Review.
 See, Nicomachean Ethics, Book VIII (husband-wife friendship not perfect friendship due to inequality between partners).
 See interview with Camille Robcis in Jacobin, December 8, 2014, at https://www.jacobinmag.com/2014/12/gender-trouble-in-france/
 And yet another irony: Justice Kennedy, writing a dissent joined by Justices Thomas, Alito, and Sotomayor, bemoaned the majority’s standing decision with a paean to the democratic values of California’s referendum process, and a tribute to the time and passion invested by Prop 8 supporters, a tribute more than a bit surprising in light of Kennedy’s harsh rejection in Windsor of analogous arguments underlying Congressional policy denying gay marriage equal recognition in DOMA as mere “animus” against gays.
 If SSM proponents have shown anything, it is that they are far from insular and powerless, and certainly far from poor. Pro-SSM causes have attracted enormous amounts of money from hedge fund titans, Hollywood stars, and technology giants. New York State’s passage of SSM in 2011 owed as much to the massive financial backing from Mayor Bloomberg, Peter Singer, and other billionaires as to the admitted political skills of Governor Andrew Cuomo. The three referenda decided in November 2012 all saw massively lopsided spending advantages for the proponents of SSM, ranging from 4:1 to over 6:1. Given that kind of financial advantage, and the fact that the states in question were solidly Democratic, perhaps the most striking thing about the results is that the margins were all in the single digits.
Indeed, pro-SSM forces have become so powerful and well financed that for a time it actually cut against the litigation strategy. In Sevcik v. Sandoval, a U.S. district judge for Nevada, writing weeks after the November 2012 elections, rejected a federal equal protection challenge to Nevada’s state constitutional ban on SSM. In rejecting a claim that gays are a suspect class deserving heightened scrutiny, he specifically referenced their electoral successes. “The question of ‘powerlessness’ under an equal protection analysis requires that the group’s chances of democratic success be virtually hopeless, not simply that its path to success is difficult or challenging because of democratic forces.” In the case of proponents of gay marriage, that showing had clearly not been made.
 See, Republic, Book V, 449a-472a.
 Richard A. Posner, ed.; Introduction to The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions and Other Writings of Oliver Wendell Holmes, Jr., at xxviii (1992).
Of note, the judgment of the Nassau County Family Court was just affirmed by the New York Appellate Division on May 20, 2015. Matter of Paczkowski v. Paczkowski. The short order summarizes the traditional approach to parental rights still applying in New York despite the Marriage Equality Act, but one that, one must imagine, will come under increasing pressure in the drive to make gender irrelevant for marriage:
“The Family Court properly dismissed the petition for lack of standing. A nonparent may have standing to seek to displace a parent’s right to custody and control of his or her child, but only upon a showing that “the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances.” Here the petitioner, who is neither an adoptive parent nor a biological parent of the subject child, failed to allege the existence of extraordinary circumstances that would establish her standing to seek custody. Contrary to the petitioner’s contention, Family Court Act § 417 and Domestic Relations Law § 24 do not provide her with standing as a parent, since the presumption of legitimacy they create is one of a biological relationship, not of legal status (see Family Ct Act § 418[a]; and, as the nongestational spouse in a same-sex marriage, there is no possibility that she is the child’s biological parent (internal citations omitted). http://law.justia.com/cases/new-york/appellate-division-second-department/2015/2014-07355.html
 It is worth clarifying the difference between asking “what impact does gay marriage have on heterosexuals?” Circuit
in the context of a rational basis review of a traditional marriage law and asking it in the context of an Article III standing inquiry such as transpired in Perry. It is of course legitimate, and indeed required, for a federal court to ask whether the litigants have an “interest” in a case or controversy before it. A federal court likely would lack standing to hear a case brought by a general group of traditional marriage supporters claiming only their general “interest” in living in a society that gave preference to traditional marriage. Of course, the Prop 8 supporters in Perry were claiming not only this general interest, but also their special interest in defending a measure that they had invested huge time and financial resources into passing. Though they lost that standing argument by a 5-4 Supreme Court vote, that standing inquiry is distinct from the line of questioning here.
 Michelangelo Signorile, “Bridal Wave,” Out, December 1994.
 William B. Rubenstein, “Since When Is Marriage a Path to Liberation?” Lesbians, Gay Men, and the Law (New York: The New Press, 1993), pp. 398, 400 (quoting Ettelbrick).
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