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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
1. I was responding to Larry’s accusation, which was based on an anecdote. Anecdotes are an appropriate way to respond to such an accusation.
2. Relying on “outcomes” is faulty. People survive and go on with their lives after living through all kinds of stressful circumstances. That doesn’t mean we should encourage those circumstances. Car crashes, concentration camps, physical abuse… the list goes on and on. I’m sure none of the survivors of those circumstances would endorse those practices on the basis that they survived it and went on to live productive lives afterwards.
Yeah. Ed confused Tom’s comment and thought it was yours. Not that I think that is the source of the acrimony.
I’m a little confused. Cato, you said agreed with Larry in the post that followed this one, but then answered yes to my question about if it’s moral to deliberately create a child to be raised by someone beside the biological parents. Larry seems to be saying, particularly in his first statement, that this is not moral. Can you clear this up for me?
Notice how the gaslighting of children’s experiences continues…
I don’t believe I made any accusations. Merina asked a question about what is and is not moral. I answered. If you choose to engage in behavior that I think is immoral, Jennifer, I won’t try to stop you. The world is full of people who behave in ways that I consider immoral.
Just to be clear, I don’t doubt that there are adoptive children who feel badly that their birth parents gave them up for adoption, especially if they don’t know the reasons for that decision. That fact does not justify rubbing those childrens’ noses in their misfortune. It does not justify telling them that their adoptive parents are not “real” parents, or that their relationship with their adoptive parents has less value than that of other children. I find that to be unbelievably cruel, and the cruelty is made worse by the fact that it is gratuitous. It serves no purpose, other than to stigmatize the child. It is no different than calling a child a “bastard” because its parents were not married. Cruel and immoral.
Ok, before this thread peters out, will anti ssm people clear something up for me. For me it’s the hangup that leads me to conclude that opposition to SSM is more often than not a proxy for opposition to homosexuality.
If the intent is to fight for what is beneficial to society and children, we could put other restrictions on marriage that would optimize successful family outcomes. One such restriction would be education level of parents having a positive impact on child rearing outcomes. We have many studies showing that kids do better with higher educated parents.
The question is: why not restrict marriage to those people who have at least a high school diploma? Why does nobody push these kind of restrictions on marriage?
Either you’ve misunderstood Larry’s comments or I have, and I think it’s you. I do not see where he says it is immoral “to deliberately create a child to be raised by someone beside the biological parents.” But perhaps Larry can clarify.
In any event, if I was the one who misread, and he does believe it is immoral, then my subsequent expression of agreement with him was an error based on my misreading.
This thread will never peter out Herbert. Like all SSM threads, it is eternal.
Cato, here is Larry’s statement. I’m reading it to say that ARTs are immoral because that is siring or conceiving a child that one does not intend to raise oneself.
In my opinion: It is immoral to sire or conceive (“have”) a child that one does not intend to raise. It is immoral to have a child that one cannot provide with a good home and upbringing, whether that failure be due to a lack of financial, physical, or emotional resources. It is immoral to have a child that one does not actually want, for some ulterior purpose.
The point is, Herbert, that the biological connection between parent and child is important. I believe it is immoral to take part in deliberately producing a child that one does not intend to raise, thereby deliberately depriving the child of his or her biological heritage.
The point is, Herbert, that the biological connection between parent and child is important. I believe it is immoral to take part in deliberately producing a child that one does not intend to raise, thereby deliberately depriving the child of his or her biological heritage.
Do you disagree with my assertion that families and children do better when both parents are educated? If you agree with my assertion, why would you not argue that education level should be a requirement for marriage. Why argue that ART is bad for families and kids, but not ackwoloedge and argue that low educated parents is bad for families and kids?
I see your point though I didn’t initially read it that way and didn’t think he intended it that way. If he did, I misunderstood and I disagree with him.
That doesn’t follow at all. As it happens, I don’t agree with your assertion, but even if I did, that is a very different thing than the biological connections of a child. Surely you do see that.
Larry, can you clear this up?
Different, certainly, but very probably more important, not less.
The purpose upon which you believe the law should be made.
Merina is correct. If a person sires or conceives a child, I believe they have a moral obligation to the child to stay around and raise the child. Raise the child well, in fact.
Merina likes that area of agreement, I’m sure. What she really won’t like (I don’t think) is that I also believe that early term abortion is morally preferable to having the child and then putting it up for adoption. In short, I really don’t like the idea of parents abandoning their children. Again, all of this with the caveat that the state has no business getting involved.
Wow. Ok, I stand corrected. And I completely disagree. I gather you’re not a fan of sperm donation then?
No, not so much. May I inquire as to your thinking on this?
That doesn’t follow at all. As it happens, I don’t agree with your assertion, but even if I did, that is a very different thing than the biological connection…
And that’s what I don’t get, if the point is doing what is best for society and children, why not favor rules that accomplish that goal? SSM is opposed (fine, I can see the argument), but all kinds of things that have a proven record of creating worse outcomes (relative to the average marriage) are dismissed as …. Well that’s different… No mention or attempt to improve marriage by changing other requirements.. Help me bridge the gap,
why oppose something that might be detrimental and ignore things that have been proven to be detrimental?
I’ve simply never understood the obsession with the biological connection. In my mind, “parents” are the people who raise you and whether they are your biological progenitors is important primarily for purposes of obtaining an accurate medical history. Thus, for example, I have absolutely no problem whatsoever with a stable, educated, married, loving, heterosexual couple with adequate resources using a sperm donation to conceive a child if the husband is for whatever reason unable to father one biologically.
I’ve agreed with Tom on his preference for opposite sex couples over same sex couples as parents only because I do think men and women are different and — other things being equal — there is value in having one of each as a parenting influence. But that preference has nothing whatsoever to do with whether or not parents and children share genetic material, and it isn’t an incredibly strong preference. The perfect parents do not exist. Any couple will have strengths and weaknesses in the parenting department. As a result, in my mind the preference for an opposite sex couple as parents can pretty readily be overcome if in other ways a particular same sex couple is meaningfully preferable to a particular opposite sex couple.
LOL. Herbert is asking all the questions that the anti-SSM side can’t answer; and so, as usual, they won’t answer. The only suspense is – silence or gobbldygook?
To chime in, I’m not a huge fan of sperm donation, but that’s more a guy thing than a reason thing; the idea of some dudes having hundreds of children whom they’re unaware of — and whose mothers they’ve never met — rubs me the wrong way. Some degree of regulation or best practices strikes me as a good idea.
On the broader topic, while I absolutely agree that men are responsible for the children they sire, I think that responsibility can be met my transferring those rights to responsible adoptive parents, though I’d further add that it’s your responsibility to make sure those parents are fully capable of caring for the kid.
That circumstance I have no moral problem with. The “STUDS, WE PAY $$$ FOR SPERM” ads I see on the train every morning strike me unsavory… and I’m someone who favors markets for organ donation.
Might be a more a matter of advertising than the product, though.
This was one of the classier ones.
The questions have been asked and answered repeatedly. They are not relevant to the discussion because the issue at hand is the redefinition of marriage to include two people of the same sex not restricting marriage to those with a high school education or placing an age ceiling on marriage. Opposing the redefinition of marriage does not obligate anyone to support or advocate any other possible changes to marriage laws.
If you believe existing marriage laws are inadequate, propose changes but do not pretend the changes are necessary to defend the traditional definition of marriage because they are not.
And this is why we believe animus to be the true source of the opposition to SSM. If you put even 1/10th of the effort into fixing the actual harms to children and marriage that already exist in this world as you do the speculative possibility of harm from a fraction of 3% of our population getting married most of the issues brought about by the sexual revolution would be assuaged.
You aren’t interested in [[Edited for CoC for Defamatory, gossipy, or rude comments]]. Otherwise your ire and efforts would be directed at those problems.
$900!!!!
Per month!
A few thoughts, Cato:
First, my objection to sperm donation has less to do with what kind of parents the luck of the draw may give the child (obviously, sperm donors don’t get to pick their offspring’s parents) than with the inherent responsibility of the parent. I see the most central precept of morality as being compliance with obligations that have been voluntarily undertaken. Siring a child, at least doing so in the absence of fraud or mistake, is such an obligation. Having undertaken that obligation, the father has a moral duty to carry it out. Under most circumstances, I think that particular obligation is inalienable. There are some tricky cases where the father can’t care for the child, due to unforeseen circumstances, but sperm donation is not one of those.
Second, there are a lot of children out there who need care and are available for adoption. Yes, I know, there is a big demand for healthy, white, American newborn babies, but the world is full of other kinds of children. So I see adopting a needy child as preferable to creating a new child.
Third, I agree with Tom. It’s just creepy that there are guys out there spraying their sperm around who will never know, or care about, the resulting children.
Fourth, I’m one of the minority who actually worries about things like overpopulation and resource exhaustion. I would rather see our society work harder to provide a good life for those children who are born, than to expend our resources maximizing the number of children born. (I get especially incensed at the Ponzi scheme argument – “We need to produce lots of children so I will have someone to take care of me when I get old.” Hey, trying saving some money, you selfish cheapskate!) Accordingly, I am not particularly sympathetic to people who want to go to extraordinary lengths to bring more children into the world.
Finally, it just feels wrong. If I had a child, and abandoned it, I think I would feel awful. Guilty. Ashamed. Those are usually pretty good indicators that there is some immorality afoot.