The Strange Alliances Around the Gay Marriage Cases

It is surely a sign of the difficulty of the issues surrounding gay marriage that it has generated a large number of what may be loosely termed political marriages of convenience. As I noted in my earlier column, the Libertarian’s Dilemma on Hoover’s Defining ideas, I see the case as raising, as a matter of first principle, a conflict between two ideals.

The first of these respects individual liberty and the second respects tradition. Ideally, where the two coincide, we should reserve our greatest affection for the protection of traditional liberties. That correspondence, however, is rudely shaken in the gay marriage cases, where, until the last few years, the political sentiment was resolutely against gay marriage, just as the strong libertarian case in favor of it came strongly into focus.

In and of itself, conflicts of interest of that sort often arise in intellectual discussion, where people are free to come down whatever way they see fit. But the issue becomes much more complex when the devotees on both sides try to jam their political and moral outlooks into the language of constitutional law, where the basic principles of interpretation at a minimum require that the interpreter try to decipher the message of the speaker and not impose that message to his or her liking.

That sort of writing led to a huge amount of reimagination of American constitutional history on the Commerce Clause issues raised in the Obamacare case, where a defenseless text was pummeled into submission in order to generate a vast expansion of federal power that I stoutly opposed on historical and analytical grounds. That reasoning insisted that the residual power of the states was abandoned when Congress arrogated unto itself the power to regulate agriculture, mining, manufacturing, and, yes, health care.

Today, many liberals who rejoiced in the broad reading of federal power on health care take a decidedly different view on gay marriage. It is possible to chide them for their inconsistency, but the same can’t be said of libertarians who, with constitutional wheels in full gear, question whether the federal government can define marriage under section 3 of DOMA, which takes the not so audacious step of defining marriage as “a legal union between one man and one woman as husband and wife” in matters of federal law—which tracks the definition that has long held sway in ordinary discourse.

There are many foolish consequences of adopting this definition, which Alan Morrison of George Washington masterfully exposes in his amicus brief attacking DOMA for its overbreadth. But the greater irony is the recent amicus curiae brief co-written by Professor Ernest Young of Duke Law School, which, under a decidedly libertarian banner, argues that DOMA is unconstitutional on federalism grounds, given that the states, under our constitutional arrangements, long had had the exclusive power to define marriage. Fittingly enough, the signatories of this brief are fervent libertarians—Jonathan Adler, Lynn Baker, Randy Barnett, Dale Carpenter, and Ilya Somin.

I confess that I declined to sign that brief because I thought that it was wrong for the reasons that Adam Freedman wrote about in Gay Marriage and Federalism, where he makes the point that the federal government should be able to define marriage for the purposes of administering the federal law, which indeed it has done in all sorts of statutes from time immemorial.

Nothing is more common in the law that to have two stipulative sets of definitions that govern a particular area. And in this instance, even under the narrowest views of the federal power, its ability to tax allows it to define what kinds of taxes should be imposed on what portions of the population. No one would regard this as an intrusion on states rights if DOMA were amended to provide that marriage for the purposes of federal law shall be defined as a union between two adults of either sex, leaving only the polygamists hanging out to dry.

Freedman, then, is right, but it need not follow that DOMA should survive as he advocates. To be blunt about it, the issue in this case does not concern my views, but those of Justice Anthony Kennedy. I have already argued that he has unintentionally committed himself in Lawrence v. Texas to allowing same sex marriage when he placed sexual freedom at the top of the constitutional food chain. In one powerful move, he wiped out hundreds of years of tradition that treated matters of marriage and morals as within the wheelhouse of the government.

Note that Kennedy did not strike down the sodomy laws on the squishy ground that they were difficult to enforce and required too much snooping into private bedrooms. That narrower rationale could explain why gay marriage can be banned even if what was once known as “deviant sexual intercourse” could be allowed. There are no enforcement difficulties with banning gay marriage, no ill-advised police excursions into bedrooms.

In this setting, I argued that Kennedy had to switch sides. Quite simply, the monopoly position of the state meant that, with the morals issue out of the equation, the anti-discrimination norms from public utilities law carried over to marriage. And, lo and behold, I have two supporters (after a fashion) for this position. The first is Jeffrey Toobin, writing in the New Yorker under the provocative title Wedding Bells, who rightly notes that Justice Scalia’s dissent in Lawrence should be the blueprint for the new Kennedy majority opinion. Scalia thus sounded this alarm:

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?

Toobin’s answer after gleefully quoting this passage, was “what indeed?” To which the correct answer, as he notes, is none.

So, there you have it. My trusted libertarian friends–who are right on most everything else–are wrong on this one. But it looks as though their mission may be rescued by the intrepid Mr. Toobin, whom, as most readers know, I think is wrong on just about everything else, including Citizens United. Strange alliances are indeed the order of the day.

  1. Tommy De Seno
    C
    Palaeologus

    Tommy De Seno: Suppose a gay couple in a state that permits gay marriage files income tax returns jointly in that state, but when they try to file their federal returns, they are told they can not.

    The savings they obtained on the state level will be eaten by the Federal government when they file separately there.

    Won’t that conflict allow a court to say then that DOMA has preempted state law, seeing how it is in conflict with it on the tax savings? · 1 hour ago

    I don’t follow.

    Are you arguing that if a state grants a tax benefit then the Feds have to match it? · 8 hours ago

    No I’m asking a question about the Supremacy Clause and the Preemption Doctrine, which I understand can be invoked when a conflict is created between Federal and State law when a person has to put both in practice.

    It can be a complicated analysis so I figure when we have a Constitutional scholar in a conversation, it’s a good time to ask and learn!

    Richard if you will please answer?

  2. Benjamin Glaser
    Rawls

    Nick Stuart: 

    Worst of all will be, as I expect likely, a judicial cram down by the Supreme Court a la Roe v. Wade having the effect of invalidating all current state law concerning marriage.

    It would certainly be awful if those activist, cram-down Supreme Court justices made a decision in line with a majority of the America people, wouldn’t it? · 6 hours ago

    When did the Supreme Court become the American popular opinion validation machine?

  3. Mollie Hemingway
    Rawls

    It is juvenile and wildlyembarrassing that same-sex couples raising children want to commit themselves to each other, thus exposing those kids to ideas of commitment and responsibility to those you love. I’m blushing at the very notion. Someone get me my fan! · 6 hours ago

    But we’re talking about “marriage.” You seem quite sure of yourself so you should tell us what the definition of marriage is. It helps to understand our terms so we can debate more fruitfully.

  4. Derek Simmons

    Michael McConnell in the Wall Street Journal http://online.wsj.com/article/SB10001424127887324281004578354300151597848.html provided a way out. So let’s hope that the guys and gals of SCOTUS hike up their black skirts and skip over this pud muddle. Democracy and the Founder’s Design will be the better for it.

  5. Benjamin Glaser

    The fact of the matter is that if you support restrictions against homosexual unions (I refuse to call it marriage, because it isn’t) you will soon be considered the societal equivalent of a white supremacist and then you’ll be run out of the conservative movement like the Bircher’s were 60 years ago. It will happen. 

    So be it. 

  6. Tommy De Seno
    C

    Suppose a gay couple in a state that permits gay marriage files income tax returns jointly in that state, but when they try to file their federal returns, they are told they can not.

    The savings they obtained on the state level will be eaten by the Federal government when they file separately there.

    Won’t that conflict allow a court to say then that DOMA has preempted state law, seeing how it is in conflict with it on the tax savings?

  7. Nick Stuart
    Rawls

    Nick Stuart: 

    Worst of all will be, as I expect likely, a judicial cram down by the Supreme Court a la Roe v. Wade having the effect of invalidating all current state law concerning marriage.

    It would certainly be awful if those activist, cram-down Supreme Court justices made a decision in line with a majority of the America people, wouldn’t it? · 7 hours ago

    I reject the premise that SSM is “…in line with a majority of the America people…” The fact that one of the cases deals specifically with California Prop 8 which was democratically affirmed by a majority. If SSM is truly what the American people desire, they can and will get it through their state legislatures.

  8. Larry3435

    If we must have state sanctioned marriage at all, then I am a supporter of state sanctioned gay marriage, which is not to say that I accept such a “marriage” as being an actual marriage.  I sort of see it as the equivalent of adoptive parents.  They are parents only because the state says so.  That does not make them the same thing as biological parents but, on the other hand, that fact does not diminish the bond between adoptive child and “parent.”

    Perhaps if the state stopped recognizing marriage, and instead recognized the right to pay, voluntarily, higher taxes for two income couples, the emotions would be less intense.  That is pretty much all that state sanctioned marriage really means.

    In any event, the battle to “save” traditional ’til death do us part marriage ended with no fault divorce laws.  On the whole, I think no fault divorce is better than endless and loveless phony marriages, but whether you agree with that sentiment or not, that Rubicon was crossed decades ago.  The fight to “save” traditional marriage now reminds me of the apocryphal Japanese soldier defending a Pacific island decades after WWII.  It’s over.  Give it up.

  9. Adam Freedman
    C

    Scalia’s reductio argument was unfortunate. There ought to be a world of difference between a law that criminalizes homosexual conduct and a law that simply excludes such conduct from the definition of marriage. During the Law Talk at Fordham, I think you (Richard) pointed out that the equal protection clause was originally understood as applicable to criminal law, not civil laws such as marriage. So on originalist grounds, can’t we distinguish Lawrence from the question of gay marriage?

  10. Mollie Hemingway

    I can’t believe Toobin was quoted favorably here. If marriage is held, as

    the union of a man and a woman who make an exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts—acts that constitute the be‐ havioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its in‐ herent orientation to the bearing and rearing of children con‐ tributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it

    the question “What indeed?” seems suddenly juvenile and embarrassingly inadequate, no?

    If it’s redefined implicitly or explicitly as “two people showing romantic affection and commitment for each other”, then, sure, “What indeed?”

  11. Nick Stuart

    Left, Right, and Libertarian, the wrecking ball is being applied to a bearing wall of civilization, marriage as a conjugal union between a man and a woman potentially capable of producing children, and deserving state protection for the benefit of those children.

    From the dawn of human history until maybe 30 years ago hardly anyone had even thought seriously that same sex marriage would even be possible as a matter of definition, let alone a reality.

    The younger advocates of redefining marriage will live to see the consequences. Me too probably, but I’ll have less time to have to deal with them I mourn for my children though.

    Worst of all will be, as I expect likely, a judicial cram down by the Supreme Court a la Roe v. Wade having the effect of invalidating all current state law concerning marriage.

    Bucket by bucket an overweening Federal authority is throwing gasoline on an already raging bonfire of discontent out in flyover country. Coupled with a national debt of 17,000,000,000,000 and climbing fast, as Mark Steyn has commented, at some point it isn’t worth the effort to keep 50 stars in the flag. 1/2

  12. Nick Stuart

    2/2 The Left will realize a major triumph as very quickly anyone holding the traditional conjugal view of marriage is painted the moral equivalent of a racist. State sanctions will be applied to anyone daring to express it. Children will be relentlessly prosletyzed to affirm same sex marriage from the day they walk into Kindergarten to the day they graduate high school or college.

    Employment will be contingent on affirming same sex marriage.

    There will be no way to draw a line limiting marriage to two partners, or even human partners (who are we to judge).

    It can hardly be possible that the advocates of same sex marriage have thought through the destruction that will be wrought. Hopefully circumstances will force them to fully partake of it.

  13. Mollie Hemingway
    Nick Stuart: 2/2 The Left will realize a major triumph as very quickly anyone holding the traditional conjugal view of marriage is painted the moral equivalent of a racist. State sanctions will be applied to anyone daring to express it. Children will be relentlessly prosletyzed to affirm same sex marriage from the day they walk into Kindergarten to the day they graduate high school or college.

    Employment will be contingent on affirming same sex marriage.

    There will be no way to draw a line limiting marriage to two partners, or even human partners (who are we to judge).

    It can hardly be possible that the advocates of same sex marriage have thought through the destruction that will be wrought. Hopefully circumstances will force them to fully partake of it. · 1 minute ago

    But, hey, there are strange bedfellows taking us there!

    Jeffrey Toobin for instance! The deep and moral Jeffrey Toobin.

  14. Benjamin Glaser

    Folks better take to heart what Nick Stuart writes above.

    Amen brother. 

  15. Palaeologus
    Tommy De Seno: Suppose a gay couple in a state that permits gay marriage files income tax returns jointly in that state, but when they try to file their federal returns, they are told they can not.

    The savings they obtained on the state level will be eaten by the Federal government when they file separately there.

    Won’t that conflict allow a court to say then that DOMA has preempted state law, seeing how it is in conflict with it on the tax savings? · 1 hour ago

    I don’t follow.

    Are you arguing that if a state grants a tax benefit then the Feds have to match it?

  16. Mothership_Greg
    Mollie Hemingway, Ed.

    Nick Stuart: 2/2 The Left will realize a major triumph as very quickly anyone holding the traditional conjugal view of marriage is painted the moral equivalent of a racist. State sanctions will be applied to anyone daring to express it. Children will be relentlessly prosletyzed to affirm same sex marriage from the day they walk into Kindergarten to the day they graduate high school or college.

    Employment will be contingent on affirming same sex marriage.

    There will be no way to draw a line limiting marriage to two partners, or even human partners (who are we to judge).

    It can hardly be possible that the advocates of same sex marriage have thought through the destruction that will be wrought. Hopefully circumstances will force them to fully partake of it. · 1 minute ago

    But, hey, there are strange bedfellows taking us there!

    Jeffrey Toobin for instance! The deep and moral Jeffrey Toobin. · 45 minutes ago

    I don’t have anything to say about gay marriage, but I heard Toobin on NPR the other day, and that man absolutely makes my skin crawl.  Karl Rove has a similar effect on me.

  17. Rawls
    Nick Stuart

    Rawls

    Nick Stuart: 

    Worst of all will be, as I expect likely, a judicial cram down by the Supreme Court a la Roe v. Wade having the effect of invalidating all current state law concerning marriage.

    It would certainly be awful if those activist, cram-down Supreme Court justices made a decision in line with a majority of the America people, wouldn’t it? · 7 hours ago

    I reject the premise that SSM is “…in line with a majority of the America people…” The fact that one of the cases deals specifically with California Prop 8 which was democratically affirmed by a majority. If SSM is truly what the American people desire, they can and will get it through their state legislatures. · 3 hours ago

    Many civil rights cases were not won through the states, such as desegregation (Brown v. Board) and interracial marriage (Loving v. Virginia).

    As to America’s opinion on SSM:

  18. Rawls
    Benjamin Glaser

    Rawls

    Nick Stuart: 

    Worst of all will be, as I expect likely, a judicial cram down by the Supreme Court a la Roe v. Wade having the effect of invalidating all current state law concerning marriage.

    It would certainly be awful if those activist, cram-down Supreme Court justices made a decision in line with a majority of the America people, wouldn’t it? · 6 hours ago

    When did the Supreme Court become the American popular opinion validation machine? · 4 hours ago

    It didn’t, I was simply making a point about people’s tendency to cry Supreme Court overreach or activism when things don’t go their way.

    Interesting fact: a two-thirds majority was opposed to interracial marriage when the SC ruled on Loving v. Virginia.

  19. Rawls
    Mollie Hemingway, Ed.

    Rawls

    It is juvenile and wildlyembarrassing that same-sex couples raising children want to commit themselves to each other, thus exposing those kids to ideas of commitment and responsibility to those you love. I’m blushing at the very notion. Someone get me my fan! · 6 hours ago

    But we’re talking about “marriage.” You seem quite sure of yourself so you should tell us what the definition of marriage is. It helps to understand our terms so we can debate more fruitfully. · 4 hours ago

    Surely no one thinks there’s an insufficient amount of fruit in this debate, do they?

    The definition of marriage is the civil union between two consenting adults, regardless of race, creed, gender, ability to procreate, etc.