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Tuesday, July 12, 2005

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.

Posted by Hillel Levin on July 12, 2005 at 03:36 PM in Law and Politics | Permalink


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Posted by: jane | Jan 4, 2009 3:32:26 PM

I strongly support the idea of removing the concept of marriage from government completely. Although I think it would take a lot of work to take marriage records out of the federal government and state governments hands, I think this is really the best way forward in the debate of same sex marriage. Such a direction could also garner support from Mormons or other religious groups who see it as their right and sometimes as their duty to be able to maintain more than one spouse. Where does anybody get the nerve to try to restrict other free peoples right to engage in these personal relationships.

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Posted by: AFRICAN HERBS SHOP | Nov 16, 2005 10:39:01 AM

You may be interested in an analysis of how different regional folkways from Britain have affected the cultural debate over Same-Sex Marriage, interms of the political climate and disagreements about the definition of marriage itself:


Posted by: modo | Jul 13, 2005 11:52:35 AM

Even stranger, Scalia also attempts to defend Loving in his Casey dissent:

The Court's suggestion, ante, 505 U.S. at 847-848, that adherence to tradition would require us to uphold laws against interracial marriage is entirely wrong. Any tradition in that case was contradicted by a text -- an Equal Protection Clause that explicitly establishes racial equality as a constitutional value. See Loving v. Virginia, 388 U.S. 1, 9, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967) ("In the case at bar, . . . we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race"); see also id., at 13 (Stewart, J., concurring in judgment).

(Emphasis added). Note the embarrassing failure to quote the "text", which makes no mention of racial equality at all-- just equality. I confess to have no idea how Justice Scalia anticipates creating a tradition-exception to gender scrutiny but not a tradition-exception to race scrutiny. He would be better off taking the equal protection clause at a higher level of generality.

Posted by: Will Baude | Jul 12, 2005 7:24:11 PM

Oh. I see Justice Scalia has (unhelpfully) discussed his opinion of Loving in his Lawrence dissent:

The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U.S. 1, 8, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races [***540] insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was "designed to maintain White Supremacy." Id., at 6, 11, 18 L Ed 2d 1010, 87 S Ct 1817. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis, 426 U.S. 229, 241-242, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976).

No mention, alas, of his U.S. v. Virginia continued-practice exception to Equal Protection doctrine.

Posted by: Will Baude | Jul 12, 2005 7:19:17 PM

I meant to add that this lowest-level-of-generality approach to equal protection jurisprudence does pretty much conform with Justice Scalia's U.S. v. Virginia dissent, that "whatever abstract tests we may choose to devise, they cannot supersede--and indeed ought to be crafted so as to reflect--those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts."

I don't know what that implies for Loving; I suppose Justice Scalia would have to say that it is wrongly decided (although he implied otherwise at oral arguments in Lawrence) but deserves the respect of stare decisis. I don't know what Justice Thomas would do-- I am pretty sure he would think Loving was rightly decided and does not subscribe to Justice Scalia's approach.

Anyway, Justice Scalia's approach is not the only originalist one; his is modified by his strong preference for rules as opposed to standards, but there is no *originalist* reason to think that all originalist decision-making should be taken at a low level of generality.

Posted by: Will Baude | Jul 12, 2005 7:17:13 PM


I think these are valid criticisms of the high-level-of-generality approach (and reminiscent of Scalia's Michael H criticisms) but I don't think it's fair to say that any originalism that isn't lowest-level-of-generality originalism is "anathema to the whole originalist enterprise".

First of all, the search for general principles is still relatively bounded, by for example, all of the public debate and discussion of various provisions of the Constitution. That is, one isn't pulling these things out of noplace, but looking to the Congressional Globe and wherever else for suggestions.

An example: It is pretty clear from Bingham's and other speeches in Congress that the Privileges and Immunities clause of the Constitution was supposed to incorporate the Bill of Rights against the states. That is one level of generality of incorporation.

But I suppose a lower level of generality of incorporation would be to suppose that the P & I clause should incorporate the accepted Bill of Rights doctrine in 1868, even if we have changed the answers for the federal government. And so on.

A higher level of generality gives us vaguer standards on the one hand, but on the other hand a lower level of generality may frequently give us no standards at all, at least in hard cases. These are valid tradeoffs and I think that those who argue about them can still call themselves originalists.

(There are other arguments for originalism other than the pro-certainty argument. There is, for example, the sort of naive legalistic argument, or the argument that using any understanding than the original one undermines the amendment process, or undermines our ability to bind future generations (the living hand problem) and so on. These can play out in many different ways.)

Anyway, I think most originalists agree that those who adopt a principle can be simply mistaken about how it will apply, although they are (Rightly) very very reluctant to make this argument, because it opens the door, as you point out, to the too-easy rejection of originalism. This doesn't mean that the argument can never be validly made by an originalist, though.

Posted by: Will Baude | Jul 12, 2005 5:54:09 PM

Will: Interesting that this has become a discussion about originalism (on which I am no expert) rather than same-sex marriage. But that's what you get in the blawgosphere.

One reason that I find originalism (in whatever manifestation) somewhat compelling is that it gives us a real benchmark--and thus some level of certainty, if we can get the original view right.

The philosophy is this: the people who drafted/passed/ratified/adopted/accepted the thing certainly knew what it meant, and the only democratically legitimate application of a statute (or constitutional provision) is to that which the drafters/adopters/etc meant for it be applied. Therefore, if we can figure out their understanding, we can figure out how it should apply. I'm not saying I agree with this view, and I am probably not stating it carefully enough, but this is the strongest argument for originalism that I can muster.

Let's say that the Framers/adoperts/you-get-the-picture of the 14th amendment understood that it did not outlaw anti-miscegenation statutes. (There's all kinds of ways to figure this out, of course.) The argument I've presented in favor of originalism suggests that we can't alter the statute to overturn those statutes today (absent certain circumstances that I do not believe are present here, but may be present in the case of Brown. Don't ask me to expand on that, because I won't be able to off the cuff.)

The alternative you propose is that the original understanding of the statute was that it made us skeptical of racial classifications generally, and we can expand on it from there to include anti-miscegenation statutes.

But that breaks down the whole argument in favor of originalism, in my opinion. In addition, it could easily bleed into an expansion into any other classification. Why isn't the "mid level" understanding of the amendment better understood as showing skepticism towards any statute that classifies people on the basis of something they didn't choose? That brings religion, gender, sexual orientation (put aside arguments about nature vs nurture on this one, please), religion, poverty (at least for children), and so forth. In other words, your version of originalism provides no more certainty than "living constitution" interpretation, and just turns it into a question of political agenda. That's fine, but it is anathema to the whole originalist enterprise. I think.

Posted by: Hillel Levin | Jul 12, 2005 5:42:28 PM


Not necessarily. Not withstanding Justice Scalia's dicta about levels of generality in Michael H, I take it one could be an originalist about interpreting constitutional provisions without believing that they way to do that is to conduct a statute-by-statute inquiry. This digs into the whole "original intent" v. "original understanding" v. "original public meaning" debate, but however that debate shakes out I think one could validly describe himself as an originalist if he thought that the clause ought to be interpreted at some medium level of generality that was publically understood to correlate to the meaning of the clause, without necessarily thinking that the general public understanding of every application of the clause would control.

(Whether this is the *right* method of Constitutional interpretation is a separate question, but this is certainly a coherent method. I suspect the result would be a skepticism of racial classifications, but maybe or maybe not for gender classifications-- I'm less sure here.)

Posted by: Will Baude | Jul 12, 2005 5:28:23 PM

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

I don't understand why this is a realist argument.

Posted by: Eddie | Jul 12, 2005 4:28:39 PM


An originalist has to ask whether the people who passed the 14th amendment (either the framers or the population as a whole, depending on whether you are into original meaning or intent) intended/understood it to outlaw anti-miscegenation statutes. I don't know the answer to that question. But that is the operative question, not the more general "did they understand it to apply heightened scrutiny?" that you suggest.

Posted by: Hillel Levin | Jul 12, 2005 3:51:51 PM

(W)hat would an originalist do with Loving?

Occurs to me that an originalist might suggest that race deserves heightened scrutiny but gender deserves none. I haven't seen a lot of originalist scholarship on this of recent vintage, but is it taken for granted that the Brennan-Ginsburg Equal Protection Cases of the 1970s are rightly decided on originalist grounds?

Posted by: Will Baude | Jul 12, 2005 3:46:01 PM

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