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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
Thankfully on my list of concerns, what you believe about me is considerably below the cut line.
Jamie, as usual on this topic Larry came in with his prejudices and was the first to start attacking for no reason.
Larry, I am intrigued that you are quoting from Exodus 20. In a previous comment, Ed referred to you as an atheist. Was he correct? If so, on what basis do you accept the legitimacy of Exodus 20?
Give me a break. Everyone in this debate comes in with prejudices and I saw no “attacks” until Klaatu started bleating about ignorance.
I pointed out the first attack in Larry’s #15. You disagree – no surprise. It was the first attack on this thread nonetheless.
And no, I don’t come in with prejudice. I don’t mean prejudice as synonymous with “opinion” on the topic. I mean prejudice as in “people who oppose me are either bigots or irrational”.
You do have a point, though. Continuing on with the bad blood is doing no one any good. I’ll admit that I’m in a bind. On the one hand I’d like nothing more than to ignore some people altogether on this topic, but on the other hand I can’t cede the field either.
Also, I do apologize for my part in turning up the heat here. This was an interesting OP and an interesting discussion. I’ll redouble my efforts to stay on topic next time.
Ed,
Saying that someone doesn’t understand your objections is not an attack. It might be a mistake but its not an attack.
Ed G
I’ll admit that I’m in a bind. On the one hand I’d like nothing more than to ignore some people altogether on this topic, but on the other hand I can’t cede the field either.
I know exactly how you feel, Ed. I’d guess that on Ricochet, this issue above the others triggers that reaction–“We’re not going to convince each other, so I could drift away from the post, but on the other hand if commenters keep saying x, y, or z, I am obliged to respond.” It’s funny that it seems to be a mirror image reflex on both sides of the issue.
No, but saying that they “refuse to understand” is an attack.
Yeah, I can’t agree with the mirror image thing. In my experience on this topic there are only a few people who insist on restating the other side’s arguments, never seem to get it right, and then claim that it’s me who doesn’t understand my own argument.
Otherwise, I’m perfectly capable of letting opposing opinions go unmolested. Usually, though, I try to engage opposing viewpoints in an effort to understand them. It’s only the abrasive ones or the ones misstating me that I have a hard time ignoring.
Ed G
Yeah, I can’t agree with the mirror image thing. In my experience on this topic there are only a few people who insist on restating the other side’s arguments, never seem to get it right, and then claim that it’s me who doesn’t understand my own argument.
There may be only a few people, but they’re distributed on both sides of the argument. There are quite a few anti-SSMers who insist on restating the other side’s arguments, generally not in a complimentary way.
I am not an atheist. You could call me agnostic, although that isn’t quite correct either.
I accept the legitimacy of the particular commandments I cited as moral truths, as do most people of all faiths. I do not accept the legitimacy or historicity of all of Exodus. I do not, for example, regularly observe the Sabbath.
“To see what is in front of one’s nose needs a constant struggle.” – George Orwell
Really, it was rather ungracious of me not to simply accept Ed’s concessions. So Ed, thanks for conceding that there is no one and only societal purpose for the institution of marriage. Thanks for conceding that the other purposes that marriage serves do merit being recognized by society. And thanks for conceding that the law must not be interpreted to carry out the societal purpose as the sole purpose of marriage. I’m glad we cleared those things up.
Really, it was rather ungracious of me not to simply accept Ed’s concessions. So Ed, thanks for conceding that there is no one and only societal purpose for the institution of marriage. Thanks for conceding that the other purposes that marriage serves do merit being recognized by society. And thanks for conceding that the law must not be interpreted to carry out the societal purpose as the sole purpose of marriage. I’m glad we cleared those things up.
As no one was arguing marriage only had one purpose, that other purposes were unworthy of legal recognition, or that the law had to be interpreted in any specific way, you would only be gracious if you were to acknowledge and apologize for misrepresenting the arguments of others and constructing strawmen.
OK. I’m not sure how meaningful the Bible is to you, but is it meaningful that Jesus, in Matthew 19 and Mark 10, upholds marriage as between one man and one woman, and does so by quoting from Gen. 1:27 and Gen. 2:24?
A person is a tangible thing. When you put a bunch of them together and call them “society” you have introduced an abstraction. I know Answers.com isn’t necessarily authoritative, but I think this explains it pretty well actually. If nothing else, it proves I’m not the only one who thinks you’re wrong. See also this, btw.
I couldn’t resist. I hope we all have enough self-awareness to chuckle.
I couldn’t resist. I hope we all have enough self-awareness to chuckle.
I’m relieved to know that I’ve never caused anybody to miss any sleep.
I view the Old and New Testaments as the source of much wisdom, but not infallible, and (qua Scripture) not subject to being fully understood by man in any event. As I read Mathew 19, I think Jesus was speaking of divorce rather than gay marriage, but there is no doubt that Judeo-Christian Scripture condemns homosexuality. I take no exception to anyone who opposes gay marriage on religious grounds. If that were your argument, Jennifer, I would wish you well and say “go in peace.” But that has not been your argument as I have understood the way you have presented it here on Ricochet.
Cato, Klaatu’s argument about abstraction is beside the point. I called society an abstraction, to emphasize that a society cannot think except through the individual thoughts of its constituent members. Klaatu quibbles with the word “abstraction” because, well, because that’s just what Klaatu does. But whether you call it an abstraction or not, a society does not have a single brain, and cannot form a collective thought. Society is merely an aggregate of individuals. We are not the Borg. We do not have a collective consciousness. No sane person could seriously argue otherwise.
I agree Larry, but that follows naturally from the fact that “society” is an abstraction. That is why I took up the cudgel on the point. It seems to me that if Klaatu insists on reifying and anthropomorphizing “society” then there is little hope of rational discussion with him. 2+2 really does = 5.
Klaatu, I’m not sure if you are trying to be tricky here, so let me ask for clarification. My characterization of the anti-SSM argument referred to the “one and only societal purpose for the institution of marriage.” Your response denied that your side had argued that “marriage only had one purpose.” In other words, you changed my language. I am not sure whether you did so deliberately.
I raise this because I have read* dozens of comments in which your side drew a distinction between the “purposes of marriage” and the “societal purpose of marriage,” and where your side drew a distinction between “marriage” and the “institution of marriage.” So I want to be clear, and I ask you point blank: Do you reject the proposition that there no single “societal purpose for the institution of marriage”?
* Or, according to Ed, I have hallucinated having read.
Do you reject the proposition that there no single “societal purpose for the institution of marriage”?
Feel free to rephrase your question if I misunderstand but I believe you are asking if I reject the proposition that there is a single societal purpose of marriage. The answer to that question is ‘yes.’
This is not to say however, that civil marriage does not have a principle or primary purpose and that purpose does not involve having and raising children in a stable home with both parents.
I agree Larry, but that follows naturally from the fact that “society” is an abstraction. That is why I took up the cudgel on the point. It seems to me that if Klaatu insists on reifying and anthropomorphizing “society” then there is little hope of rational discussion with him. 2+2 really does = 5.
At what point does a group of individuals become an abstraction? Is a family consisting of a mother, father, and three children an abstraction? How about a small business of say 12? A football team of 50 or so? A municipality of 600?
Is the distinction between “the societal purpose” and the “principle or primary purpose” anything other than semantic? Is there some difference between these two phrasings in your mind, that leads you to reject one phrasing while embracing the other? I guess there must be, but I don’t understand your distinction.
When I described your side’s argument I used the phrase “societal purpose” because that is the phrase I have seen your side use most often, and I wanted to be accurate. But I could call it the “primary purpose” if you prefer. It would not change my point.
For purposes of the way I used the word “abstraction” when I introduced that word into this argument, any group becomes abstract when it exceeds one individual. This is because I was referring to group “thought” or a group “mind.” I understand that one can point to a group of individuals and call the group by a concrete name that unambiguously refers to that group. For example, “the United States Senate” is a concrete group that consists of 100 defined individuals. But you cannot say that the Senate, collectively, “thinks” or “believes” something. Any such purported thought or belief is an abstraction, consisting of an aggregate of the individual Senators.
This is why I asked Cato to avoid drawing a rhetorical line in the sand over the word “abstraction.” That word is a quibble. Reject it if you want. But you cannot plausibly claim that a “society” is capable of forming a “thought” or a “purpose” in any way other than by aggregating the thoughts and purposes of its constituent members. (Which, by the way, is why we have elections.)
Is the distinction between “the societal purpose” and the “principle or primary purpose” anything other than semantic? Is there some difference between these two phrasings in your mind, that leads you to reject one phrasing while embracing the other? I guess there must be, but I don’t understand your distinction.
When I described your side’s argument I used the phrase “societal purpose” because that is the phrase I have seen your side use most often, and I wanted to be accurate. But I could call it the “primary purpose” if you prefer. It would not change my point.
A primary or principle societal purpose is probably the more accurate phrase.
Arguing a civil instituion has a primary or principle purpose is not to argue that it only has one purpose.
For example, “the United States Senate” is a concrete group that consists of 100 defined individuals. But you cannot say that the Senate, collectively, “thinks” or “believes” something. Any such purported thought or belief is an abstraction, consisting of an aggregate of the individual Senators.
This is where we disagree. The Senate can and does act as a body. The Senate confirms judges for example. We do not say 51 individual senators confirmed this judge and 75 individual senators confirmed that judge, we say the Senate as a body confirmed both. The power or authority of the former judge is not lessened because fewer individual senators voted to confirm him because 51 votes is sufficient to speak for the entire Senate on this matter. That is not an abstraction but a real act with real implications.
Whether we say it that way or not, that is what happens. The Senate, like any group, thinks by aggregating the thoughts of its constituent members. So they vote. 51 votes is enough, by their rules. But they do not put their collective consciousness together and arrive at a single “group thought.” As I said, this is why we have elections. How can you possibly not understand this distinction? A group can only think or act through its constituent members. You can conduct a vote or a poll, and determine the will of the majority or of a supermajority. But you cannot, cannot, cannot find anything that represents the “purpose” of the group that exists independently of its members. Cannot.