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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
Ironically, it is Jennifer and her cohorts who claim “to discover in social institutions the origin of unalterable facts of nature.” The rest of us recognize that social institutions are things that have been made up by men, to serve the purposes of men, and that they can be changed by men.
Oops, I forgot: shouting = QED.
No one is arguing the institution cannot be changed. It would be quite refreshing if you would engage the argument being made rather than constructing your pitiful strawmen.
Ironically, it is you who has repeatedly insisted the institution of marriage was not created to serve a purpose.
If there are no social institutions based on natural realities, I wonder why von Mises felt the need to defend them.
it is a scientific fact that it takes one man and one woman to create a child. This is the relationship that natural marriage defends and upholds. SSM is an attempt to redefine reality in precisely the manner that von Mises elucidated in that quote. Everybody, especially children, has to believe that men and women are interchangeable under the regime of SSM. Children raised in gay parenting households have to pretend that one half of their genetic lineage does not exist. Or, they must pretend that the socially constructed parent is on equal footing as the genetic parents.
I believe popular support for SSM is the river that is a mile wide and an inch deep. Once the Federal judiciary comes to its senses and stops trying to coerce the states under the false pretense of Constitutionality, the gay mafia will lose its grip on us, people will lose their fear of being criticized for being against SSM, the drain will open and this swamp will dry up.
TeeJaw, I hope you are right.
I have never said that marriage does not serve a purpose. It serves many purposes, held by many people, including lots of gay people. What I have said is that “society” does not have purposes. Society is an abstract concept. It has no existence independent of its constituent members. It does not think. It does not form purposes. But if it did think and did form purposes, I’m pretty sure it would not single out you to explain what it was up to.
But it might single out me. I’m more than up to the task.
Cool. If you need help building your temple at Delphi, just let me know which way the stock market is going to move and I’ll send you some of my gains.
Nah. That’s already been done.
I have never said that marriage does not serve a purpose. It serves many purposes, held by many people, including lots of gay people. What I have said is that “society” does not have purposes. Society is an abstract concept. It has no existence independent of its constituent members. It does not think. It does not form purposes. But if it did think and did form purposes, I’m pretty sure it would not single out you to explain what it was up to.
I’m not sure if you are obtuse or ignorant. Society is not an abstract concept any more than community or polity is. Marriage serves a societal purpose in that the benefits of the institution accrue to even those people who are not married. If you question this, take a look at the communities where most children are born out of wedlock.
Did you read Judge Sutton’s opinion? He laid this out quite clearly.
Perhaps, but what about in Texas, Utah, or Mississippi? If the courts got out of the way and left this issue up to the legislative process, the short-term outcome would be that SSM would be legalized in most of the blue states and banned in most of the red ones.
Now it’s certainly possible that opinion will continue to shift to the point that even a majority of conservatives favor SSM, and the red states will all follow suit. However to Judge Sutton’s point I’d think the best way to ensure that happens is for activists to do the hard work of going door-to-door campaigning for ballot initiatives in “flyover country.”
Whereas a Supreme Court decision imposing SSM nationwide might harden both sides in their current positions leaving most liberals supporting SSM and most conservatives opposed for many years to come.
Can you point me to “society?” Or introduce me to it? Or find it on a map? Of course it’s an abstract concept.
Larry, you’re misreading the Von Mises quote. It means that certain people, who we would typically call liberals today, believe that certain human behavior is a “social construct.” So, to take a popular example, some believe girls play with princesses because society pushes them in that direction. So, if we only had a society where girls were instructed to like tools and fast cars, they would no longer like princesses. Except that’s not really the case. Girls like princesses because it is in their nature to be concerned with beauty and femininity.
Your position, that social institutions are just things created by man that can be changed by man is much more in line with the “social construct” view of the world. That is, you think that marriage as defined between one man and one woman is just something that happened for some distant, unarticulated, possibly bigoted reason made up by people who feared the sky gods, so we can do it differently now without much consequence. Except that maybe you’re ignoring the “unalterable natural” facts that underlie traditional marriage.
You say “social construct.” I say “civilization.” Human nature is full of nasty, brutish urges. Rage. Jealousy. Hate. And, yes, bigotry. Civilization is the set of rules by which we overcome those urges, and behave morally. Social institutions are part of that civilization. The opposite of civilization is barbarism. Social conservatives are supposed to understand this.
Socialists want to control people, to which end they convince themselves that humans are automatons reacting mechanically to external stimuli. They are wrong, of course. You are correct that little girls like to play princess and little boys like to play solider. Unlike the socialists, you and I recognize the existence of human nature. But not every aspect of human nature is something to be celebrated and encouraged. Churches exist to help people overcome the dark aspects of their nature. Scripture commands us to overcome the dark aspects of our nature. Thou shalt not kill. Thou shalt not steal. Thou shalt not covet. And, thou shalt not commit adultery. Because adultery is a natural urge for humans. Monogamy is not.
Marriage helps people commit to a monogamy that is itself contrary to human nature. So if you want to construct a rational argument against SSM, you had better come up with something better than “unalterable natural facts.” Natural facts may be unalterable, but they can be overcome by human reason and human morality. You throw those out the window at your own risk.
What nonsense. Society is defined as, the aggregate of people living together in a more or less ordered community.
It is small wonder we can’t have an intelligent discussion.
I agree, the unwillingness to accept that words have meaning severely limits one’s ability to discuss things intelligently.
1) no
2) no
3) no
I’m not going around with you on this again, but I thought it worth pointing out for the good of the group that your characterizations are incorrect. Also that you’re starting already with the attacks on others (“Klaatu has always refused to understand our objections…”). No, Klaatu understands you just fine.
Larry, I’m not saying marriage is “social construct,” your side is. I don’t think that marriage is a made up concept with no relationship to natural facts. You do. I think marriage works, in part, because it is natural: There is a tendency towards pairing off among mammals and it also makes the most sense that the biological parents should care for their own children. Those things would likely occur often enough without marriage as we know it. But, the institution reinforces those natural tendencies and makes them more universal. (Just to be clear, I’m not calling you or anyone else a socialist because they favor gay marriage.)
I see no natural facts that support gay marriage, however. What I see is a politically powerful grievance group that has successfully convinced society that a bedrock, family institution should be the vehicle through which society is remade. In their defense, it’s not an awful vision: they want people to be more tolerant of homosexuality. All of their arguments, whether in court or elsewhere, are centered upon fairness and equality of treatment. This is no accident. Often times, though, mere tolerance is insufficient. Wholehearted acceptance is demanded, and those who still hew to traditional moral values must be ostracized (take Brendan Eich, fired for the grave offense of supporting a referendum that passed with majority support in, perhaps, the most liberal state in the nation).
Whatever the natural facts supporting marriage, gay acceptance isn’t among them. In my view, this “repurposing” of marriage is much like how some on the Left have used our educational system as a tool to re-educate the populace in accordance with a certain ideological viewpoint.
Perhaps gay acceptance will render little harm to the institution as we traditionally knew it. Perhaps not. Only time will tell. But I think it’s rather obvious that the institution of marriage responds to a fundamental and nearly universal challenge in human existence (how to channel male-female sexual energy and what to do with its byproduct, children). Gay marriage does not address any similar “natural facts,” but rather addresses the discrete concerns of a tiny fraction of our population who feels aggrieved.
Of course discussions of these matters between atheist libertarians (like yourself and Larry) and social conservatives like me (and I assume Klaatu) will be difficult simply because of the deep divisions over fundamental views on things like society and community and the relationship between those things and an individual. It also doesn’t help when you insist on defaulting to the assumption that opponents on this topic are bigoted and disingenuous.
In different senses society can be at once abstract and not abstract. Corporations don’t have a physical form and so are definitionally abstractions, but there are abstractions like corporations (which are treated as people by law) and there are abstractions like love or honor. These are worlds apart. So arguing over “abstraction” without regard to the varying senses and meanings of the word is just obfuscating the actual disagreement that arises when you apply the second sense of “abstraction” to the word society/community/polity.
In a limited defense of Larry: I do concede that marriage is a construct, and I am definitely on the traditionalist side. However, I attribute the construction to entities too abstract for Larry’s tastes.
IMO, someone is married only when the applicable authority and outside entity considers them to be married, whether that authority considers voluntary requests for the status or whether it imposes its own determinations. I’m not married because of some action I take or don’t take, whether it’s natural or unnatural. I’m married because God (via the priest as his representative) deems it so according to God’s terms. I’m married because the civil authority deems it so according to the civil authority’s terms. What I do with my wife (procreation, love, sex, cohabitation, pooling of interests, etc) is correlated to but is ultimately not the determinitive factor of whether or not I’m married.
Yes, it’s a legal or religious construct. But it recognizes natural facts and human tendencies and attempts to channel them in a certain way. You can’t just take the institution, change it fundamentally, and expect humanity to change fundamentally along with it. Because there are natural facts that supported the original arrangement. People weren’t that way just because of the institution. That was Von Mises’ point (of course, he wasn’t referring to gay marriage).
As so here: perhaps the ascendancy of gay marriage will make gays equivalent in all ways to straights. I think not, however. They will continue to feel isolated because they are different from so many others. And, in their quest for metaphysical equality, they may take down a useful institution that spoke no ill of them.
Agreed.
Ed, whether the word “society” refers to an abstraction or to something tangible isn’t a matter of opinion. Klaatu might as well be insisting that 2+2=5.
It is yet more proof of the irrationality of your argument that when you see it plainly stated, you deny it. If you can’t even accept a clear statement of your own argument, you really can’t hope to persuade anyone else.
Your interpretation of “attacks on others” is equally misplaced. An attack consists of something like Klaatu’s statement to me: “I’m not sure if you are obtuse or ignorant.” (#42) Which I ignored, as I usually do. It would be silly of me to expect any better from him, or from you.
Please explain how a group of people living together in an ordered community is an abstract notion. The individual people are real physical entities, therefore the aggregate of those sharing a common living area is similarly real.
An observation is not an attack. Your comment was either obtuse or ignorant, there were no other options.
Your inability to state our argument is not an indication of the argument’s irrationality but your comprehension
Ah, I missed this. People getting unreasonably angry and attacking each other for no reason. Thank you Klaatu for reinforcing what I already believed about you.