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Sixth Circuit Delivers Cogent Critique of Judicially-Imposed SSM
For the first time in recent years, judicial disagreement has reinvigorated the debate over the constitutional status of same-sex marriage (SSM). In this instance, all credit is due to Judge Jeffrey Sutton of the Sixth Circuit, whose opinion in DeBoer v. Snyder is notable for its moral engagement and intellectual seriousness. Judge Sutton was keenly aware of the tidal wave of support in the lower federal courts for the proposition that the Equal Protection Clause, as understood today, requires all of the states to abandon their traditional rules on marriage in order to make way for the social realities of the new age.
In choosing to swim against the tide, Judge Sutton did not dispute those rapid changes in public sentiment. Indeed, he went out of his way to welcome them, especially as they were introduced through democratic processes, whether by legislatures or by referenda. But taking a conscious leaf out of the Supreme Court’s decision in Schuette v. Coalition to Defend Affirmative Action, he resisted any effort for the courts to lead these trends when there is so much movement in the social space. If the Constitution allows for colorblind admissions into universities, it allows for prohibitions against gay marriage. In my view, Sutton makes quiet credible arguments on most of his central points. It is useful to recap some of these here.
First, Sutton urges (correctly) that the initial touchstone of constitutional interpretation be some cross between the meaning and intention of the framers of a disputed constitutional provision, which in this instance switches the locus of discourse from the present back to 1868 (when the Fourteenth Amendment was adopted). The precise species of originalism that best meets that interpretive standard is immaterial in this instance, because the constitutional recognition of SSM is inconsistent with any and all variations of the originalist position. Historically, the morals head of the police power gave the state enormous discretion over the definition of marriage and virtually all other areas of sexual behavior. Nor was there any indication that anyone at the time thought that the criminalization of SSM relations, let alone the regulation of marriage, was beyond the legislative purview.
Judge Sutton is at his most effective when he reminds readers that the “rational basis test” — which most advocates for the constitutionality of SSM rely upon — has been laxly applied in economic areas, including in the defense of statutes that allow blatant economic protectionism against equal protection challenges. That point is especially forceful for two reasons. First, the very anti-competitive conduct that is insulated from attack on either equal protection or due process grounds is roundly condemned in connection with the state regulation of interstate commerce, where explicit provisions are routinely struck down because of their protectionist impact. Second, the economic schemes that were sustained all involved new statutory innovations that went against traditional common law liberties. In contrast, every state in the United States — and every other nation — limited marriage to one man and one woman, without exception. It becomes, in the judge’s view, indefensible to reject uniform and constant practices as “irrational” based upon a serious of clever arguments that have been roundly rejected by the millions of people who supported the traditional definitions in open and fair referenda.
It is, of course, possible to demonstrate that there is no perfect fit between the statutory prohibition and its various objectives. There are gay couples that make splendid parents and straight couples who make terrible parents. But a perfect fit isn’t necessary under the rational basis framework, especially for traditional practices. Nor is it impossible to think that the differences in the ease of begetting children could make a difference in the long term on matters dealing with population growth. But much the same could said about the criminalization of polygamous relationships, which was upheld by the Supreme Court against free exercise objections in Reynolds v. United States. Yet I am not aware of any supporter of SSM that wants revisit that prohibition.
Oddly enough, the prohibition on polygamy may be less arbitrary than that on SSM, for after all polygamy involves heterosexual arrangements that have a procreative purpose and that had been recognized as valid in many societies long before the ratification of the Fourteenth Amendment. So why then is the SSM prohibition to be dismissed as arbitrary? One way to see the difficulties in this position is to note that the traditional distinction has never been reversed; no states have ever held SSM legal while banning heterosexual marriage. And they never will. Just think of the impact on the birth rate that would occur. It may well be that these counterarguments give rise to deep disquiet, especially to people like myself whose libertarian instincts are deeply suspicious of government monopolies. But the rational basis test presupposes that these libertarian views take a back seat to legislative power, so that the proper response is public outrage and legislative repeal, not judicial intervention. I hope that, in the end, this case proves no exception to the rule, so that the changes on the ground can continue apace.
It is also possible to distinguish in this context, as Judge Sutton does, the Supreme Court’s earlier and widely applauded 1967 decision in Loving v. Virginia, which struck down the prohibition against interracial marriage. Sutton’s response to this facile comparison are persuasive. Written in 1967, Loving does not contain a single hint that it challenges the traditional definition of marriage as a union between one man and one woman. Indeed, at the time it would have been bizarre for someone to make the argument that the anti-miscegenation statutes prohibited black gay and lesbian individuals from marrying white gay and lesbian individuals. Loving did not seek to invent a new definition of marriage, but to cut down a statutory prohibition on interracial marriages that were only selectively imposed by segregationist legislatures. The early and widespread acceptance on the prohibition of SSM was not born of any form of group hostility, and the decision by various groups to reinstate the norm in the face of judicial opposition should not be regarded as actuated by malice when all sorts of people of good will favored the prohibition at that time. To rule otherwise means that once any court takes the SSM genie out of the bottle, it is never possible for either legislation or referendum to put it back in.
Last, I think that Sutton was right to note that the Supreme Court in United States v. Windsor danced around the constitutional issue by holding that the definition of marriage had long been regarded as something within the exclusive province of the state. In my view, Sutton, as a Circuit Court judge, is right to treat Windsor as binding precedent, infused with its own constitutional logic. But that decision was in fact incorrect. The federalism arguments troubled no one when the Defense of Marriage Act was adopted in 1996 with strong bipartisan support. Yet there is no reason at all, especially in an age of federal dominance, that the Congress in exercise of its own powers to regulate and tax cannot adopt the definition of marriage for tax purposes, just as it adopts the definition of partnership or corporations. The entire federalism issue was a copout that worked for a particular case, but introduced a level of unprincipled unreality in constitutional discourse that is better ignored than applauded.
As was to be expected, the Sutton opinion did provoke a strong dissent by Judge Martha Craig Daughtrey, who took the position that Sutton “has drafted what would make an engrossing TED Talk, or introductory lecture in Political Philosophy.” “Advanced lecture” is probably more appropriate. What is so ironic is that any serious discussion of the Equal Protection Clause will range far and wide. Indeed, Daughtrey’s own opinion goes over expert testimony of the baleful effects of SSM prohibition on cohabiting couples that wish to be married. I think that this evidence makes a powerful brief for a legislative change — and I think that, as a legislative matter, the groundswell of public opinion toward SSM is proof-positive of its effect. But there is a real question of whether Daughtrey has addressed the “relevant” constitutional issue by ignoring the doctrinal problems that Sutton raises in favor of this fact-intensive critique. If anything, her decision had the exact opposite effect, which is to show that the legislative process that has long controlled this issue can still do so today.
No one, of course, can predict how this ongoing dispute will play out. But it is likely that the Supreme Court will be forced to take the issue unless the Sixth Circuit decides en banc to vacate this decision so that uniformity of sentiment can be restored across the land. Indeed, a clean resolution of this issue in favor of SSM should be welcomed. The hard question here is whether the means chosen in the federal courts justify the ends. Judge Sutton thought not. I agree with him.
Published in General
I said “refuses to understand” because that’s what I meant. I believe that Klaatu goes to great lengths to pick out linguistic quibbles to “refute” various arguments, rather than making any effort to understanding the argument in the way it is meant. I have cited several examples in this thread. I see not one thing in the CoC, in word or spirit, that precludes me from making such an observation.
Allow me an attempt at clarifying it. Larry took my comment to Jamie stating it is the general procreative nature of the male-female relation that makes that type of relationship uniquely consequential to society as contradicting my previous statement to him that the principle or primary societal purpose of marriage relates to procreation. I find nothing contradictory in those two statements, in fact they are mutually supporting.
And I reject your call of BS. Saying “doesn’t understand” isn’t just better than “refuses to understand”, it’s a different assertion altogether without any questioning of motives to go against the CoC. Though I think “doesn’t understand” should generally be avoided too, because chances are that it’s disagreement about something rather than confusion about your impeccable logic.
Ed G. incivility meter only seems to go one way. Its my new policy to just ignore him when he complains about this stuff.
Larry is correct. Klaatu’s style of argument in no way seeks to elicit truth. At every turn it is an attempt obfuscate meaning by constantly shifting terms. Then he turns around and attempts to cease all debate with phrases like “you don’t understand”.
I did no such thing. So far as I can tell, both statements mean nothing more or less than that gay people, and only gay people, should not be allowed to marry because they cannot have children with each other. Beyond that, I take both statements to be utter gobbledygook. There is no inconsistency.
The inconsistency came only in telling me I was wrong when I repeated that exact same argument, using slightly different words – specifically, I referred to the “societal purpose” rather than the “primary or principle” purpose.
Me too. I only piped up when Merina engaged in “piling on,” which is mean-spirited and beneath her.
[[Editor’s hat on]]
Having reviewed comments up to and including 15, I agree there’s nothing clearly over the line (though there is a remarkably fast descent into our usual form here). Number 15 itself had a lot of substantive commentary to it.
That said, I agree that accusations of bad faith should be used very sparingly, as it basically kills conversation. If you think someone is arguing in bad faith probably better to say 1) ignore them or 2) if you feel you must say something on the matter, say that you’re having trouble seeing the good faith in their arguments.
Moreover, given the general acrimony and contentiousness of this subject, it’s good idea to avoid bringing up bad blood from past threads, especially without citation.
Jamie, words mean things. You cannot say my argument is “the only societal purpose for marriage is procreation” when what I have said is “the primary or principle societal purpose for marriage relates to procreation.” That is neither a semantic argument nor an attempt to obfuscate. The two statements mean different things.
When someone does misstate my argument in such a way I have two choices, assume they do not understand what I said or they are being intentionally deceitful. I default to the former.
I am just pointing out that you are trying to hold Larry to a standard that you miserably fail to meet yourself, and that all of us who participate in these discussions fail to meet so often as to make the standard not really, in any meaningful sense, the standard.
As an aside (and apropos of Larry’s response), I have never accepted the proposition that it is somehow uncivil to draw (and comment on) inferences about an interlocutor’s state of mind from things the interlocutor says. It is the most natural, human thing in the world.
I’m still not following this thread, but I’m happy to let it slide.
Okay, that I got.
I see exactly what Larry’s saying and I could practically write the script of the argumentative circle we would talk around if I were to re-articulate it. I have seen it so many times that I just don’t care to do it again. Suffice it to say Klaatu, that it seems to me there is a very obvious and glaring disconnect in your argument. But Larry’s been trying to point it out for 300 comments without getting you to acknowledge it, and I don’t have any reason to think I’d be any more successful
No one objected to your use of ‘societal,’ the objection was to your assertion the only or sole societal purpose of marriage was procreation rather than a whole host of purposes primarily related to procreation and raising children.
I know that’s what you meant and I know you see nothing wrong with it. Which is why you’re poison to civil discussion on this topic. Because aside from your default prejudice of believing SSM opponents to be bigots your first instinct seems to be to dismiss others with whatever club is at hand; in this case it’s “linguistic quibbles”. What you so blithely dismiss is actually a point of considerable disagreement and it seems that Klaatu responds to the words you and Jamie use in order to get you to clarify just what you mean or to highlight what Klaatu actually means (as opposed to your suggestion that Klaatu uses it to evade what you or Jamie meant to say but didn’t – more questioning of motives); distinctions matter and words matter. So you alternate between dismissal and marginalization (e.g. “silly” or “ridiculous”), but you’re always questioning motives. It’s poison Mr. Gower, I tell you it’s poison.
I have failed in this thread and in other engagements with Larry. Generally, though, this is a standard I also apply to myself and one I live by with remarkable success.
No, Cato. Klaatu’s just been countering the same points over and over. We all know there is fundamental disagreement on some issues. Can you accept that reasonable people can disagree on those points?
I won’t comment on your life outside of Ricochet, but on SSM threads, I don’t think you stand out for your unusual civility.
That wasn’t even responsive to what I said. I said I see a logical disconnect in Klaatu’s argument. The same one, I believe, that Larry sees. Can you accept that I (or we) believe that I (or we) see such a thing? Or is finding a logical inconsistency in an SSM opponent’s argument uncivil too? Shall I get you some smelling salts?
“No one objected to your use of ‘societal,’ the objection was to your assertion the only or sole societal purpose of marriage was procreation rather than a whole host of purposes primarily related to procreation and raising children.”
This is ridiculous sophistry. Whatever language you choose to use the only actionable purpose as far as your concerned is procreation. Thus it is the only societal purpose that matters for your argument. Thus characterizing it as the only societal purpose is the correct usage.
Yet further evidence of you not understanding what is being said.
What exactly is an ‘actionable purpose’?
For Christ’s sake! Your comment was more than one sentence Cato. My comment was indeed responsive to “Larry’s been trying to point it out for 300 comments without getting you to acknowledge it…”.
Of course I accept that you see a disconnect. That why I (and I assume Klaatu and Merina too) have been engaging people on this topic on Ricochet since I joined in 2011. Yes, civilly, I might add.
Backwards causation. Adopted kids, and birth mothers too, that say adoption is a problem. A few pieces of evidence:
Check out the #flipthescript twitter hashtag, where adoptees respond to National Adoption Month:
https://twitter.com/search?q=%23flipthescript&src=typd
I Am Adopted, facebook page critical of adoption:
https://www.facebook.com/iamadoptedblog
12 Things I Hate About Adoption:
http://www.thenotsosecretlifeofanadoptee.com/2012/03/10-things-i-hate-about-adoption.html
The Lost Daughters, a blog for adoptees to voice their criticisms of the adoption system:
http://www.thelostdaughters.com/
Here’s an interesting article about the challenges adoptees face:
http://www.huffingtonpost.com/lesli-johnson/adoption_b_2161590.html
A blog by well-known birth mother who is critical of adoption practices:
http://www.adoptionbirthmothers.com/
It’s the term I use in some circumstances. By it I mean something like “a justifiable reason to address something via law”.
Ed can correct me if he likes, but I believe the phrase “actionable purpose” was his from another thread. It was certainly somebody on the anti-SSM side’s.
Do you have any evidence beyond anecdotes? Because it is not difficult to find people who will complain about their parents or their childhoods, whether raised by biological or adopted parents. Absent some study of measurable outcomes for large numbers of people, these individual complaints don’t tell us anything worth knowing from the perspective of public policy.
As an aside, I think some of the acrimony on this thread has been a result of people confusing one commenter’s opinions for another’s. I know that as a long time participant in these discussions, I have some difficulty keeping the nuances of various people’s views separate in my head. I doubt I am alone.
I have also made the same error multiple times.
Jennifer, the info on adoption seems more to your point than the straight-or-gay stuff. Certainly, if there’s a dark side to adoption, most of us would rather turn away; after all, there’s no more heart-tugging figure than an orphaned child. Since neither you nor anyone else wants to deprive that child of the possibility of adoption, I’m supposing that you’re talking about harder, less “model” cases, with some provisos: the damage may not be with everyone, and the degree of damage may or may not be less than the damage of never bring adopted. This needs more careful study.
But it also seems like another example where, as much as one thinks there’s no other side to an argument, boom, someone appears. About fifteen years ago I did a favor for David (Horowitz, the conservative author and activists) because one of his wealthy donors was having trouble setting up a successful screening at the Directors Guild. Routine stuff, easy to make a few phone calls. The donor was also the director and financier of her own movie (and was versatile enough to also give enough money to Democrat Gray Davis to get his wife to the screening.) The key thing here: the donor/director/philanthropist adopted a child.
I went to her screening. Her movie, probably the worst I’ve ever seen in a long life (too long for some around here, no doubt!) was a melodramatic propaganda piece against birth parents, who in the film were generally sadistic monsters when they weren’t being Satan incarnate. I can’t convey, even in 5000 characters, just how awful the movie was: its heart, its soul, its camerawork, editing, sound recording…did I get to the film lab yet? You think “Gigli” is bad. This made “Gigli” look like a John Ford movie.
I had no idea the woman-vs-woman thing went on in adoption “politics”, like the so-called “Mommy wars” of the Nineties.
Maybe a better way to put it is that it is best to look for the good in others and to act like they don’t hate you even if you suspect they do. That’s what’s best for you and for them.