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Saturday, July 18, 2015

Marriage Ban Proponents Slept Through a Revolution: But Not the One You Think

In his last Sunday sermon, Martin Luther King, Jr. told the story of Rip Van Winkle.  He went up the mountain during the reign of King George III of England and woke twenty years later during George Washington's presidency.  Rip missed out on a lot of change.  Dr. King stated that sometimes, "people find themselves living amid a great period of social change and yet fail to develop the new attitudes, the new mental responses - that new situations demand.  [Like Rip], they end up sleeping through a revolution."


Marriage ban proponents did not sleep through the gay rights revolution, they slept through a revolution in the popular understanding and meaning of "family."  In Obergefell v. Hodges, they dogmatically clung to a losing argument.  Limiting marriage to a man and a woman, they insisted, is optimal for children. As explained in my previous post, the Obergefell majority disagreed.  Marriage ban proponents'  error was in their failure to acknowledge that "hundred of thousands of children [are] being raised by same sex couples."

Times have changed.  Today, many communities, not just the LGBT community, understand that "family" does not have to be restricted by notions of marital status (or legitimacy), sex, biology, or proscribed gender roles.  Marriage ban proponents had plenty of notice that the Supreme Court appreciated these societal changes.  Barely two years prior to Obergefell, in striking down DOMA in United States v. Windsor, the majority made clear that the moral and sexual choices of same-sex couples were protected by the Constitution.  The Court, without reference to biology or gender, also strongly emphasized that DOMA harmed same-sex couples and their children.  

The failure of marriage ban proponents to recognize and adapt, or "develop new mental responses," to the changing social understanding of family is why they could not defend their position.  That they offered no new justifications laid bare their simple preference that children of opposite-sex couples would be valued by law over children of same-sex couples.  Their reliance on old tropes -- man-woman biology arguments and responsible procreation theories -- became the rhetorical sheep lulling them to sleep.  And they have been asleep for a long time now. Fortunately, the Supreme Court did not join in the slumber.


Posted by Catherine Smith on July 18, 2015 at 08:00 AM in Law and Politics | Permalink


Shawn Fahrer, yes, we went "far" since the days of coverture (male controlling economic matters in marriage), no marital rape, cohabitation before marriage (in Jane Austen's Emma, merely writing to a member of the opposite sex before marriage was seen as improper) being illegal, restrictions of birth control (even talking about it), divorce very hard to obtain etc.

I find the developments as a whole positive there and with apologies don't "admit" things went too quickly. Same sex marriage is a product of decades of change in marriage, gender relations and GLBTQ developments. Long term, like your reference to the 1890s, even longer. Change in marital relations can be seen back the the marital women property acts of the 19th Century and so on.

Marriage is a basic institution in society and cannot be blocked out from legal action. How exactly is that to be done? In a civil suit, for example, the fact a spouse is involved is now of no note regarding issues of damages or other things? Basic constitutional provisions are ignored if marriage is involved?

The concerns have a "been there" feel though. Probably had a form of that in the 1840s when people wanted to protect the rights of married women over their property or to deal with abusive husbands.

Posted by: Joe | Aug 10, 2015 12:05:35 PM

This is a sensitive and complicated issue. Would keep my mouth shut.

Posted by: Match finder | Aug 10, 2015 5:12:46 AM

As for the ALL CAPS, Barry, I would have preferred to use either BOLD TYPE or ITALICS, but am unable to on this blog. (Do you know how to do it in other than Microsoft Word?)
Joe, the fact that my idea would "require a reordering of the law and social practice much bigger than same sex marriage" is part of my point in this sense: it goes to show how far we have gone down the "Progressive" road (read, 'wrong direction') since the original "Gay '90s" (when "gay" didn't mean "male homosexual", that is). It also shows how much 'repentance' we as a nation would have to engage in, in order to return to the social and legal principles of the original European settlers of America.... While you may not want to go that far back, you have to admit that we've gone too far in terms of social change much too quickly for our own good....

Humans in general weren't made for such rapid change (maybe that's part of the virtue of not living much past age 70 -- the Biblical "three score and ten", an age which I will reach in less than 15 years). I'm not sure if we, as a nation, need to "force" ANY social change by force of law. If we take "the marriage question" (for example) away from the courts, it might allow society to figure out the answer(s) to such questions for itself (not all at once, but, say, in a generation or two, to allow for us "reactionary stragglers" to DIE OFF first, so you can have your 'precious social change' over our by then dead bodies)....

Posted by: Shawn Fahrer | Aug 1, 2015 6:13:27 PM

Moving past the caps, the option of radically removing marriage as a classification for benefits was not provided in the Supreme Court case.

Let's move from "progressivism" and the like, since the option has been put out there from time to time. It is not a matter of "goodies" as such. The government, including in recognizing civil rights for purposes of lawsuits and issues involving custody of children, has always recognized marriage as providing a special civil union with loads of results. Various states blocked this from same sex couples even when "marriage" itself wasn't involved. Anything like it too. Like domestic partnership.

Take away marriage and you would still have to deal with all the questions involved and determine if same sex couples will get protections and at times burdens that different sex couples receive. The "just take the government out of the marriage business" solution is misguided. If nothing else, it would require a reordering of the law and social practice much bigger than same sex marriage.

Religion can still determine for themselves what "marriage" entails, just as before the Catholic Church refused to marry divorced people unless than got a special annulment or such. This confusion going up to the level of the Supreme Court, not just cap-heavy comments here, the confusion is pretty troubling.

Posted by: Joe | Jul 25, 2015 12:14:43 PM

Has anybody seen comments with grossly excessive use of caps which were not a rant?

Posted by: Barry | Jul 24, 2015 11:48:27 AM

Actually, I have a different gripe with BOTH gay marriage proponents and detractors: it is the assumption that ANY decision (either "for" OR "against") is somehow NOT an "establishment of religion" (or at the very least, a customarily RELIGIOUS PRACTICE).

I feel that the "best" decision that the SCOTUS could have made was TO RECUSE GOVERNMENT ITSELF from supporting, defining, and even PROVIDING BENEFITS based on "marriage", I am aware this would throw such "goodies" as Social Security wife's and widow's benefits into a "forbidden" category, as well as "married filing joint" tax returns. To that, I say, SO BE IT!!!!

In order for there to be the STRICT SEPARATION of church and state (both terms used in the general sense) that the US should be heading towards, the state has to GET OUT of (because it should have never got into) most "social functions" (since those functions had been, and should be returned to, the religious institutions who performed them best).

Where my problem lies is with Progressivism itself (which started with the generation born during the 'abolitionist movement' before the Civil War, which took 'social activism' a few steps too far, in my opinion]. Once Progressives got a stranglehold of BOTH POLITICAL PARTIES (while Theodore Roosevelt was a "Republican", Franklin Roosevelt was a "Democrat"), they turned government into a "god", in other words, a FALSE GOD or an IDOL, which promises much, but often deliberately fails to deliver.

And such "idolators" feel that THEY have a superior knowledge of what religion(s) have to say on most matters (such is called "secular humanism" in the circles I run in). Unfortunately, THEY DON'T. As a result, the SCOTUS in 1967 FAILED TO RECUSE GOVERNMENT in the Loving v. VA case (which forced interracial marriage in all jurisdictions). Here I would disagree with the decision since this issue should have been a matter for EACH RELIGION TO DECIDE FOR ITSELF outside of the prying eyes of government. If it takes an OUTRIGHT BAN on GOVERNMENT MARRIAGE to return this to the people (under the 10th Amendment!), then SO BE IT!

To continue, I also believe that ATHEISM IS a "religion" for the purposes of the 1st Amendment, thus atheists should form "atheist" churches in order to perform marriages. So should those homosexuals who can not find a "faith community" in established religions (as an aside, their churches can, in honor of Boy George and Culture Club, be called "The Church of the Poison Mind"). But NO ONE SHOULD GET SPECIAL BENEFITS FROM GOVERNMENT BASED ON 'MARRIAGE' -- they should EARN those benefits based on THEIR OWN ACTIONS, as opposed to being based on living with someone else.....

I know this argument sounds 100% 'radical' (and may sound 'insane' to some)-- but when (at least a part of) society has apparently gone 100% too far in the WRONG DIRECTION, someone has to have enough guts to say "reverse course". "Wrong way." "Turn back." I guess I am that man. Although I am NOT a lawyer (nor a 1L or a wannabe 1L, having been turned off by not only the LSAT, but the typical Left Wing stance of your average Law School faculty), I hope my opinions are dissected and countered as necessary with logic that is not merely "liberal logic" (that says government, instead of WE THE PEOPLE, is the be all and end all of the 'law of interpersonal relations' [which should be how marriage is considered, as opposed to be subsumed under "family law"]).

Posted by: Shawn Fahrer | Jul 21, 2015 9:17:05 PM

I could not agree more with Professor Smith.

Idaho argued before Ninth Circuit that the State's "crystal ball" warned that "genderless marriage" was a threat to children. See http://www.idahostatesman.com/2014/09/17/3379038_idahos-crystal-ball-hazy-in-case.html?sp=/99/106/&rh=1.

Needless to say, the Ninth Circuit was not impressed with this argument.

Posted by: Shak Sanders | Jul 20, 2015 7:04:04 PM

"but I wonder if TV played a huge role"

Do you really have to wonder? For better or for worse, TV always plays a huge role in social issues.

Posted by: jon | Jul 20, 2015 2:27:56 AM

Asher's comment is mostly on point.

The basic point is that we aren't talking about some sort of academic point. Who are the same sex parents here? If it is adoption or foster, they repeatedly take problem cases. Other times we often are talking people who had a child but were bisexual or found their gay selves, so to speak. They would have kids anyway & letting them raise them with the people they love and trust etc. is the best policy. The families would still exist, just with less rights for the couples, hurting the kids in various cases.

People are raised by a range of parents. The idea the same sex ones will be worse than others is dubious given all the factors involved. Even if for argument sake it is best to have one of each gender, often the same sex couples have a more diverse selection of support than many different sex couples have.

In effect, yes, we don't "Brave New World" like only set up ideal parents when handing out parental rights. And, discrimination here often would burden kids in the process.

Posted by: Joe | Jul 19, 2015 2:44:01 PM

This isn't politically correct to say, but I'm agnostic on the costs and benefits of being raised by same-sex parents. It seems to me that we still live in a pretty gendered world and that there may therefore be some advantages of having parents of more than one sex. And, I'm not sure that the existing research answers that question, or could, given the recency with which child-rearing same-sex couples have come into existence, the difficultly of isolating for all sorts of variables that may distinguish same-sex parents from their opposite-sex cohorts, etc.

*That said,* I don't believe that, at least, fundamental rights doctrine on marriage cares about the answer to that question. The Court let prisoners marry in Turner, and expressly said they did so on the premise that the prisoners would usually get out and be able to consummate their marriages. Does anyone doubt that children of recently released prisoner (or two) will in the aggregate be worse off than children of parents who haven't been recently released from prison? At the least, it's highly rational to believe that children of prisoner marriages will suffer for their parentage. Yet the prisoners won that case. Whatever the harms of being raised by same-sex parents, I rather doubt they're anything like the harms of having a father or mother who recently got out of prison. For that matter, does anyone think it was easy to be a child of interracial parents in the Deep South circa 1967? Could we ban marriages between persons with dubious employment prospects, bad genes, alcoholism, drug addiction, a history of domestic violence, etc.? If Buck v. Bell is an abomination, how much more so would be a decision that banned a class of persons from marrying on account of some speculative, marginal harms to children of same-sex parents? It seems to me that the doctrine treats marriage (and procreative choice) as so fundamental as to prohibit limitations on marriage that prevent quite foreseeable harms to children.

Posted by: Asher | Jul 18, 2015 2:01:21 PM

No, we have not seen a proper redefinition of family. Most Americans would consider cohabiting combinations like brother-brother and grandmother-grandkids to be well withing the definition of "family," especially if a minor child is involved. Yet these combinations are DENIED almost all the tax, immigration and inheritance benefits of marriage, just as are all singles. We will not have justice until civil marriage is effective abolished and the dignity of persons as individuals is recognized in the law.

Posted by: Jimbino | Jul 18, 2015 1:30:52 PM

JimV, it seems your gripe may actually be with Marbury v Madison.

Posted by: Mike | Jul 18, 2015 12:12:16 PM

So true. Not only has the culture of what family means evolved but I wonder if TV played a huge role in presenting gay characters so that the idea of gay people no longer could be an abstraction. I think these portrayals also facilitated more people coming out. And with millenials growing up in this milieu it was no longer possible to maintain the Court's legitimacy in support of continued discrimination. So notwithstanding the 5-4, the outcome was right and timely.

Posted by: AinBm | Jul 18, 2015 11:38:04 AM

The "revolution" was nothing of the kind; it was another instance of a few judges around the country, and ultimately 5 justices of the USSC, setting themselves up as an ad hoc permanently-sitting constitutional revision commission, flouting Article V of the Constitution which sets out the only lawful means of amending the Constitution. A sad, sad day in American jurisprudence.

Posted by: JimV | Jul 18, 2015 10:38:02 AM

Well said, but unfortunately, unlike Loving, it was still split 5-4 with the Chief Justice of the U.S. leading the confusion on the other side mixed with some sarcasm about how the majority had nothing to do with constitutional law. A low point in his tenure.

Posted by: Joe | Jul 18, 2015 10:25:44 AM

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