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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
Edited for CoC: Defamatory, gossipy, or rude comments.
^Unhelpful
Here’s another great article written by an adoptee, and the double standard between adoptive parents and adopted kids. Spoiler: biology matters.
http://gazillionvoices.com/the-dna-double-standard/#.VGPp8PnF9VJ
Except that we already lost on much of the harm that has befallen the institution of marriage, we don’t have much prospect for restoring it presently let alone proposing improvements (not that I think an education requirement would be an improvement, and we are currently faced with this particular battle (SSM). Why would we retreat on SSM to refight battles we already lost or to start newer battles that have less impact than we think SSM to have?
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 protecting children or fixing marriage. Otherwise your ire and efforts would be directed at those problems.
No one who objects to redefining marriage wanted to fight this fight, it was thrust upon them. Arguing that engaging the fight that was presented is evidence of animus because no other fights are being presented is absurd.
Your argument is basically that the existence of some damage requires the acceptance of still more damage.
Jamie and Larry,
Do you approve of the restrictions on marriage related to consanguinity, specifically siblings and child/parent?
As Klaatu said, this really has been answered many times on Ricochet. 1) it depends on what you consider to be an improvement; I’m sure there’ll be much quibbling and disagreement on specific proposals. Like your education requirement: IMO it would neither improve the lot of kids nor of society because the the uneducated will continue to have kids nonetheless. 2) The traditional proxy works pretty well without additional restrictions or intrusions. Whether to keep the proxy or make it more restrictive, neither are arguments in favor of SSM. 3) My brand of opposition sees marriage as instituted by society for the benefit of society – adult and child benefit is incidental. 4) There are competing interests as with anything else and the societal interest in the procreative power doesn’t trump everything else every time.
Ah, an exercise for the student, Klaatu. The answer is to your question is, of course. The exercise is, can you explain why? It isn’t hard. Give it a try. Hint: It doesn’t support your position in any way, shape or form.
The answer is to your question is, of course.
Why?
You’ve got some kind of morning train ride Tom. Who knew Boston was so much wilder than Chicago.
I agree with Tom about objection 1. I think with the right precautions, it’s reasonable to consider those obligations transferred. I wonder if it changes anything for you to consider that a child is not created at the sperm donation stage. There is no child until someone accepts and uses the donation? That’s not critical to my thinking, but it does represent something of an intervening cause.
I am in complete agreement with you about point 2. If we were young enough to seriously consider beginning the project of raising a child, I would have no interest at all unless we adopted and point 2 is why.
I don’t get 3, just intuitively. Perhaps its because I’m gay. I don’t know.
I sort of get 4, but I’m not highly motivated by it.
I don’t really get 5 either, for roughly the same reason as I disagree about point 1.
You know if you’re going to insist upon “redefining marriage” I’m going to go back to “marriage equality.”
I asked yesterday that folks avoid acrimony and personal attacks, per the CoC; as that request has not been honored — today being typified by speculations as to each other’s motives — comments have been disabled.