My Big Post on Same-Sex Marriage

As some of you may have noticed, I have an interest in the subject of same-sex marriage.  I've written about it here on prawfsblawg and elsewhere. 

I've stated in passing my opinion that there is a strong constitutional argument in favor of same-sex marriage (although I'd prefer that this issue be played out through legislatures rather than courts, however imperfect that may prove.)  I've also suggested that, putting aside the constitutional question, same-sex marriage is necessary as a normative matter.  (If you are looking for a thoughtful normative take, read Jonathan Rauch or Andrew Sullivan.)

I thought I would now take the time to present what is, in my opinion, the strongest legal argument in favor of same-sex marriage, both in doctrinalist and realist terms.  Very little of what I say here is truly new, but that's alright.

Argument after the jump.

Various courts that have addressed same-sex marriage or related issues have applied different analyses.  Some have discussed a supposed fundamental right to marry; others have considered the issue of privacy; still others have addressed equal protection or similar state constitutional provisions.

In my opinion, the federal Constitution includes no fundamental right to marry.  Not for straights; not for gays.  Further, marriage is not an issue of privacy or of due process.

Rather, the proper doctrinal framework to apply is Equal Protection.

(What follows here is a very formalist and doctrinalist approach.  If you want a realist translation, skip the next few paragraphs.)

As with any Equal Protection issue, the first formal step is to figure out what level of scrutiny to apply.  That requires us to consider the manner in which heterosexist laws discriminate.  Obviously, they discriminate against people on the basis of their sexual orientation.  It is pretty clear that this alone would require us to apply the "rational basis" test.  Under this deferential test, a law must be upheld if it is related to any rational state interest.  (Put aside the wrinkle that under Plyler and Romer the test may have a bit more bite.  I'm trying to keep this simple here.)

However, under Loving, heterosexist marriage laws must be viewed as not only discrimination on the basis of sexual orientation, but also discrimination on the basis of gender.  In Loving, the Court reasoned that anti-miscegenation laws classified people on the basis of race, even though the law formally applies to both blacks and whites equally.  Jim could marry Sue if they were both white or both black, but not if one was white and one was black; the ability to marry turns on nothing other than race, thus invoking strict scrutiny. 

Similarly, under heterosexist marriage laws, Jim may marry Alex if Alex is Alexandra, but not if Alex is Alexander; the ability to marry turns on nothing other than gender, thus invoking intermediate scrutiny.

The most common formulation of intermediate scrutiny in gender cases is that classifications based on sex must serve and be substantially related to important governmental objectives.  (There are variations on this formulation, but for the present, this one suffices.)

The operative question, then, is what is the government's objective in banning same-sex marriage?  Commentators and state AGs have suggested a number of interests:

• History: Marriage has always been limited to one man and one woman;
• Prevailing moral opinions of the community;
• Marriage is for the purpose of creating biological children from the married couple, and same-sex couples can't do that.

There are varying formulations of these justifications, of course; and there are certainly other rationales that have been offered as well.  But this is a blog post, after all, and I can only cover that which immediately comes to mind.  (If someone believes that I've done an injustice to the arguments, please comment, and I will do my best to take it up.)

The first two justifications--history and morality--are probably not enough to withstand rational basis inquiry (per Lawrence, although there are serious flaws in that opinion), let alone intermediate scrutiny.  Think about what it would mean if these rationales were sufficient: Any law that classifies men and women differently as a result of history and community moral beliefs is constitutional.  If that were the case, then virtually all gender classifications would be constitutional, including those that allow husbands, but not wives, to own property; allow husbands, but not wives, to initiate divorce proceedings; require women to wear burqas; and so forth.

I take the third suggested rationale as the most serious.  The claim is that marriage was designed to encourage stable natural procreation, and same-sex marriage can't achieve that.  I'm willing to accept, at least for the sake of argument, that this was a driving force behind the rise of marriage.  Marriage encourages people to commit to each other for long periods of time, which is, generally speaking, good for them and for their children (not to mention society).

My response to this argument is twofold.  First,  it cannot be said, at least today, that marriage laws are directed towards encouraging couples to have children in stable environments.  I can think of no other laws within the marriage context that preference married couples with children over those without.  Old people may marry.  Certified infertile people may marry.  People who don't want children may marry.  Indeed, in some states, only couples who cannot have children may marry.  Yes, it is true.  In Arizona, for instance, first cousins are prohibited from marrying--unless they are infertile, in which case they may marry. 

And those with adopted children are treated no differently from those with biological children.  If the government's true interest in marriage is "natural" and "biological" procreation and child-rearing within the confines of marriage, then the laws would be very different. 

Second, let us assume that marriage really is all about the kids.  The present day fact is that same-sex couples do have kids.  For whatever reason that we supposedly believe that adopted or biological children of heterosexual couples are better off with married parents, that logic also applies to children of same-sex parents.  Recent California cases illustrate this readily.  If we are committed to the idea that children are better off within nuclear family units with two responsible parents, then aren't children with two loving and legally responsible parents--of whatever gender--better off than those with just one?  It is irrational to deny these children a responsible parent.

In sum, I don't believe it is true that marriage today is mainly about children.  But if it is about children, then it is not rational for same-sex couples to be excluded.

And so, as a formalist/doctrinalist matter, heterosexist marriage laws are gender-driven, and therefore invoke intermediate scrutiny.  The supposed legitimate and substantial state interests offered by proponents of heterosexist marriage laws fail intermediate scrutiny.

Note that this argument will no doubt be unpersuasive to the committed originalist.  But what would an originalist do with Loving?

Now let me quickly translate that into a realist Equal Protection argument.  Laws that prohibit same-sex marriage enforce gender norms.  That's unconstitutional.

One additional thought.  Under the Equal Protection framework, a state could choose to get out of the marriage business altogether.

As always, I look forward to further discussion on this topic.  I realize that this is a contentious issue (which is one of the reasons that I think it is best addressed through grass-roots movements rather than courts, since court opinions on contentious issues are more likely to polarize than to unite), and I ask that comments remain polite, even as they are critical.