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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
Okay, so that leads to my next point. I said that your argument held that the primary purpose is entitled to a recognition under the law that other or secondary purposes are not. You and Ed said I was wrong; that I had mischaracterized your argument. So I ask you point blank: Is the principle or primary purpose of marriage entitled to special recognition under the law, or are all the purposes of marriage entitled to equal recognition under the law?
I don’t even understand the point of this debate, but admittedly have not read it all. Larry, just curious, would you agree that the purpose of Social Security is to provide the elderly (at least those who worked in their younger years) with a comfortable retirement?
gts, I agree that the debate is silly, but I am trying to refute an argument of the anti-SSM side which, in my opinion, is itself silly. Hence, I am drawn into silly-land. The hardest part of refuting this argument is pinning the argument down.
I would agree that Social Security was designed to provide the elderly with a retirement that would be, if not “comfortable,” then at least decent. We attribute the purpose of the designers to the program itself. Which is fine for most purposes. But if are going to be rigorous in our rhetoric, we should recognize that Social Security, as a program, is an abstraction. It cannot think. It does not have a purpose independent of the purposes of its designers.
So why am I making this distinction in the context of SSM? Because some on the anti-SSM side (Ed in particular) argue that marriage has an inherent purpose, which is independent of the purposes of any individuals. This is a teleological argument, which I reject. It is akin to saying that it is moral to eat cattle because the purpose of cattle is to be eaten. This is teleological reasoning, dating back to at least Aristotle, and I reject it entirely. So while it may seem silly, I am trying to address this particular anti-SSM argument on its own terms.
I should also note that the institution of marriage, unlike Social Security, was not the result of conscious design. It just grew, organically, in many forms in many places. It was not thought up by FDR, and passed by Congress.
So I ask you point blank: Is the principle or primary purpose of marriage entitled to special recognition under the law, or are all the purposes of marriage entitled to equal recognition under the law?
The principal and primary purpose of marriage is entitled to special recognition under the law. Others may or may not, it depends entirely on the specific purpose you are referring to. There is also the question of whether the legal recognition is best provided within the institution of marriage or in some other manner.
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.
So when the voters of my county approved a special tax for road improvement, the purpose of the tax is not to improve the roads?
In that case, it was very likely the purpose of the majority of the voters to improve the roads. Also, in theory, the revenue raised will be used to improve the roads. (In practice, of course, all that happens is that other money, which would have been used to improve the roads, is diverted to some other purpose.)
See, this is why I say that you refuse to understand my objections. You do this over and over. You pick one word out of the argument and quibble over the meaning of that word, even though the particular word in question, when taken in context, has nothing to do with the merits of the argument. So let me rephrase my point: Things don’t think, people do. Do you agree with that statement? Have I found a way to phrase it that meets your rigorous linguistic demands?
Ok, I just wanted to make sure that you agreed that laws have purposes. It’s maybe harder to get at the purpose of marriage because it is, as you note, an ancient institution that was not created at a single point in time. There is no legislative history to review. But there are plenty of texts (ancient and otherwise) that explicitly state that its purpose is something like the procreative rationale Sutton (and so many others) have articulated. I think those statements are bolstered by the contours of the institution, which seem fitted to that purpose (although not exclusively so, as I’m sure you would note).
I am referring to any purpose other than procreating and raising the biological children that result from that procreation. For example, marriage serves the purposes of (1) publicly expressing love and commitment; (2) adding moral weight to the partners’ agreement to remain together and to care for each other over their lifetimes; (3) committing to sexual exclusivity, and announcing one’s sexual unavailability to other possible sexual partners through the use of symbols, like wedding rings; (4) providing a stable environment for raising children, including adopted children and step-children; (5) providing a stable environment for accumulation of the family’s capital; (6) facilitating the division of labor within the family, including earning capacity and care of children; (7) Accepting the legal obligations that go with the status of marriage. I could go on and on, but what would be the point?
So, do any of the purposes I have listed justify the legal recognition of marriage? Or, if not, can you name any purpose that justifies the legal recognition of marriage, other than procreating and raising the biological children that result from that procreation?
Fair point, so long as we agree that the opinions expressed in various texts are the opinions of the authors only, and cannot be attributed to marriage as an “inherent,” or “societal,” or “primary” purpose of marriage.
Just for the record, I do not believe that most people who actually get married would identify the procreative rationale as their primary purpose for getting married, and many married couples would not identify that as even a secondary purpose for their marriage. But that is speculation about an empirical question. I admit, I cannot prove this.
So let me rephrase my point: Things don’t think, people do. Do you agree with that statement? Have I found a way to phrase it that meets your rigorous linguistic demands?
Things do not need to think for things to serve a purpose. Correct me of I am wrong but this entire journey down the rabbit hole began because you objected to the idea of marriage serving a societal purpose because society is merely an abstraction. If this is the case, how is it this tax I spoke of can serve a societal purpose (better roads)?
Collective bodies can and do act to further specific purposes.
And yet you repeatedly refuse to take simple actions that would greatly improve the chances of achieving that purpose, namely: fertility tests to prevent barren couples from marrying.
What I object to is anyone singling out one of many purposes and calling it the “inherent” or “societal” or “primary” or “principle” or “overriding” or “only” purpose. It doesn’t matter to me which word you use. When you do this, what you are doing is selecting one purpose (arbitrarily selected by you) and invalidating the other purposes for the law.
Every voter, every legislator, has their own reasons for voting the way they do. When they explain their reasons, they are not necessarily telling the truth about their motivations. Nobody will tell you that the law prohibiting Tesla from selling its cars directly to the public was passed for the purpose of protecting the monopoly of car dealerships and satisfying the demands of car dealers who contributed to the campaigns of certain politicians. The politicians will likely have some high-minded rhetoric to explain their vote. Some of them may even believe the high-minded rhetoric. But neither you nor I are capable of sorting through the stated and unstated motivations of a group of people, and divining their collective “purpose.”
So, do any of the purposes I have listed justify the legal recognition of marriage? Or, if not, can you name any purpose that justifies the legal recognition of marriage, other than procreating and raising the biological children that result from that procreation?
Some of those you mentioned are sufficiently consequential to the larger society and worthy of legal recognition but only in the context of the procreative nature of heterosexual sex or the raising of children by a mother and father.
Sexual exclusivity, for example is largely consequential only because of the chance of unintended pregnancy. Stable homes for raising children but only to the degree the recognition is extended in a way that encourages or closely replicates the ideal environment of a mother and a father.
So, in short, only the “procreative” purpose justifies legal recognition of marriage. Other purposes might be nice, but without the procreative purpose, they are insufficient to justify legal recognition of marriage. Which is how I described your argument in the first place.
Thus, we have established that (except for substituting the word “primary” for the word “societal,”) my original description of your argument was spot on. Frankly, I can’t imagine why both you and Ed felt compelled to deny it. This is your argument. Why don’t you just own it?
Larry, I think actions speak louder than words. Most couples would likely identify love as their reason for marrying. But then they have babies about 9 out of 10 times.* So maybe the individual married people don’t initially see themselves as participants in a scheme in which children are born into a household with a biological father and mother, but they almost all end up participating in the model. In my view, that means that the traditional view of marriage is so deeply embedded in our culture that people don’t even realize it. Which probably means that allowing a few gays to marry won’t really affect things, but it also means that they don’t really belong either.
*My numbers on this are an estimate. I saw some stats in the LA Times that 94% of married women ages 40-44 had kids in their household (including step and adopted). A very high percentage of that number is biological, but I don’t know the exact proportion. I have not been able to find good stats on the percentage of married couples who have biological children together, although I believe it’s the key stat for folks on my side of the debate.
No, that’s not what you said. If you had said that I probably wouldn’t have responded at all.
Yes, the reason(s) the institution was instituted is different and distinct from the reason(s) an individual might have for wanting to participate in that institution. You’re trying to make this assertion be something that it’s not. I do not argue anything about it being inherent, as in it can’t be any other way or that it can’t change. You keep telling me I argue that, but I don’t.
What I object to is anyone singling out one of many purposes and calling it the “inherent” or “societal” or “primary” or “principle” or “overriding” or “only” purpose. It doesn’t matter to me which word you use. When you do this, what you are doing is selecting one purpose (arbitrarily selected by you) and invalidating the other purposes for the law.
It should matter what word you use because those words mean different things. “Primary” does not mean “only” and you cannot use them interchangeably.
The assertion that the primary societal purpose of marriage involves having and caring for children is hardly arbitrary. It has been recognized and acknowledged by scholars, philosophers, legislatures, and courts for centuries of not millennia.
I disagree that it’s as simple as you say. Besides, that we don’t go far enough for your tastes is not evidence that the purpose is wrong or nonexistent.
So, in short, only the “procreative” purpose justifies legal recognition of marriage. Other purposes might be nice, but without the procreative purpose, they are insufficient to justify legal recognition of marriage. Which is how I described your argument in the first place.
That is not how you described the argument.
Larry, #80. You mentioned the Bible and so I was intrigued that you find it a source of authority. Jesus very clearly affirmed that marriage is between one man and one woman. And he referred back to Genesis to do so.
Either Jesus is right or he is wrong. Does the second person of the Most Holy Trinity understand marriage or not? When he says that marriage is between one man and one woman, is he being unjust? Or perhaps ignorant?
Direct quote: (2) whatever other purposes marriage may serve, those purposes do not merit being recognized by society, because they are not the “societal purpose,”
If you see some distinction there (other than the word “societal” rather than “primary”), you see more than I saw when I said it. And I have slowly, painstakingly, extracted Klaatu’s concession that this is your side’s argument.
Larry, this is why we’re in silly land, because you keep insisting that we go there. As I said at the start, this is all a result of the divisions between conservatives and libertarians. Do you really think that either I or Klaatu or anyone else are arguing that the senate literally has a mind of its own? That is has a literal brain and thoughts like an individual would? That obvious silliness aside, the real difference here is in how we think of collective entities and how we think of the results of collective entities. You spend so much time trying to turn your opponents into either monsters or idiots and so neglect the pursuit of understanding where agreement is not to be had.
Jennifer, you accept Jesus’s words (or, more accurately, someone’s account of Mathew’s description of Jesus’s words) as divine and infallible. You are free to do that, and I have no argument to dispute your faith. Faith-based beliefs are not subject to rational argument. Nor do I have any wish to dispute your faith. It is yours, and you are entitled to it. But I do not share your faith. Therefore, it is not persuasive to me.
I see truth in many of the words attributed to Jesus, but I do not accept that everything Jesus is said to have said is automatically true. I am not one of the faithful of your religion. I firmly believe in freedom of religion. You are free to hold your faith, and I am free to disagree.
If the societal purpose is that important why wouldn’t you want to do what is necessary to achieve that purpose? Fertility tests are not that difficult and would greatly increase the chances that every marriage would fulfill your “societal purpose”. Historically some jurisdictions used to require blood tests prior to issuing a marriage license and I believe some still do (not many) so this kind of marriage testing would not be unprecedented.
The gender distinction is a completely arbitrary line to draw for the societal purpose you have stated given modern technology. The only reason to draw the line there is that you simply want to exclude homosexuals from the institution.
It probably depends on the context, but when you’re ascribing conscious purpose to any group in excess of 300,000,000 you’re well into abstraction territory. When does cold become cold? Is Canada cold? Maybe that’s relative. Is outer space cold? Yes.
It’s not worth trying to talk to you Ed. You go ahead and muse about my motives and state of mind to your heart’s content. Meanwhile, I will talk to people who address what I say, rather than what they think I think.
And yes, I do think that you are arguing that abstractions (like the institution of marriage) have a mind of their own, and are capable of forming purposes that exist independently from the purposes of any individuals who comprise the institution (i.e., people who get married). I think that you are arguing that because you have argued that, over and over and over. You have said, about a gazillion times, that the purpose of marriage as an institution is not the aggregate of the purposes of individuals who marry. In fact, you deny that there even is such a thing as individuals “marrying.” If you think that makes you a monster or an idiot, just remember that you used the phrase “monsters or idiots,” not me.
1) This is simply not true. Sexual exclusivity has all kinds of societal benefits outside of unintended pregnancy including: disease and psychological effects. You might not believe these are important but I would like to hear how disease prevention and the psychological health of a significant segment of the population is not a “societal” purpose.
2) So the children that aren’t lucky enough to be born into a two parent, mother/father household? Screw them, right!
The gender distinction is a completely arbitrary line to draw for the societal purpose you have stated given modern technology.
Only if you do not understand human biology or the purpose.