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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
Klaatu I know your entire mode of argumentation is based on condescension and the self-righteous belief that you are smarter than everyone else but in this case you really didn’t answer the objection I raised.
Are you telling me that biology indicates that an infertile heterosexual couple will *lifts pen from clipboard* breed?
I’m pretty sure that the point of this debate is to prevent Larry, Ed, Klaatu and I (and Jamie though he’s been quiet on this thread) from doing our day jobs.
One phrase indicates societal recognition through law while the other phrase just mentions societal recognition. That’s a huge difference; I don’t conflate society with law.
However, another huge problem with both phrases: you’re talking about the purposes being recognized by society through law or otherwise; I don’t think of it that way. Rather, society has interests as an entity of its own and so creates an institution to address them. The societal interests are the purpose for the civil institution of marriage. Absent a religious authority and absent a civil authority, there would be no such thing as marriage – there would only be love, sex, cohabitation, pooling of interests, joint ownership of property, individual commitments, etc.
In other words, I’ll pick and choose, but not for the gays. Always keep them out.
Brother, you ain’t even kidding about that. I have work to do, people!
This. It always comes back this. As soon as you admit that there are other societal purposes to marriage beyond procreation everything becomes a value judgement. It is curious that the value judgement of Klaatu and Ed G. is always that which excludes homosexuals.
In other words: Not the gays!
Cato Rand, if this thread is supposed to keep us from our day jobs:
MISSION ACCOMPLISHED.
I think the societal purpose is already being served serve. While this is important, it doesn’t outweigh all other considerations so I wouldn’t favor your proposal.
Jamie, do we really need to cover this ground again? Either you accept the use of proxies in public policy or you don’t. Either you accept that proxies are never perfect or you don’t. I have no interest in arguing why I must draw the line in the way you’re suggesting; we can draw the line there but I disagree that we should.
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!
1. I believe the societal consequences are significantly greater when there are children involved as adults should be responsible for their own health and psychological well being.
2. The child born into something other than a stable home with his mom and dad is at a distinct disadvantage. That is one of the reasons marriage exists, to encourage adults to behave in a manner that does not disadvantage the children they create.
I don’t even accept your premise. You don’t know what Jesus did or didn’t say. But even if you’re right about what he said, the opinion of a first century Jew living 5000+ miles and 1900+ years away is not binding on 21st century Americans.
No, I’m beyond musing about your motives, I’m accusing. You already admitted in a prior thread that you default to thinking SSM opponents to be bigoted. Now that you also admit you think your interlocutors are arguing that abstractions literally have a mind of their own there really isn’t any doubt remaining for us to give you the benefit of. In all of my interactions I’ve been pretty meticulous about responding to what you actually say; your lack of self awareness continues to amaze me.
Yes but you haven’t presented a reason for drawing the line where you want it beyond “because I want to”. It leads me to ask: are you really concerned with that societal purpose to the degree that warrants such staunch opposition? If the societal purpose is not jeopardized by infertile couples then why would it be jeopardized by homosexual couples?
You can’t use the phrase “societal purpose” without implying that an abstraction has a mind of its own. That claim is implicit in the phrase.
You keep saying you aren’t bigoted but then hold positions that amount to “I want to draw the line here because I want to. It just happens to coincide with allowing everyone to marry but homosexuals. Oops”
Tell me, what conclusion are we supposed to draw from that?
Likewise.
The trouble is that the second phrase is something I do argue, but you’re trying to impose the insane first phrase on me as the necessary condition of the second.
Do you think that non-libertarians are irrational?
Oh, good grief. He just said it again.
“Rather, society has interests as an entity of its own and so creates an institution to address them. The societal interests are the purpose for the civil institution of marriage.”
Within a couple of comments of denying it, he said it again!
Back to this again….
So my proxy doesn’t go as far as you claim it should. Do you believe I’m being insincere when I give you the reasons I don’t favor your proposal for ditching the proxy altogether in favor of presenting affirmative evidence of both ability to procreate and eventual success in procreation, or for your proposal to narrow the proxy?
If you believe I’m sincere, then again: differences over the effectiveness of the proxies favored are not evidence that the underlying interest is wrong or nonexistent.
I have presented reasons to you specifically many times. You disagree with my reasons. That disagreement is not evidence that the underlying purpose is wrong or non existent.
And what am I not self-aware about?
I disagree. Corporations are abstractions without a literal mind of their own. Yet these abstractions develop purposes applicable to the entity that are often at odds with specific shareholders. States institute corporate law for reasons which serve the state; these reasons are independent of the reasons that people might have for wanting to incorporate a particular entity. None of these have literal minds of their own and yet they have interests, purposes, and actions pertaining to the entity as distinct from any individual or constituent part.
Yes but you haven’t presented a reason for drawing the line where you want it beyond “because I want to”.
The only type of relationship capable of creating another human being and providing that new human being with a stable home with both parents is that between a man and a woman. There, line is drawn.
No, that’s just how you insist on taking it, as if there is no other explanation (ignoring all the explanations I’ve repeatedly given you over the years).
Over at Public Discourse there’s an article that I think is particularly useful on this topic. It has a graph that shows how society and culture interact with children and family. It seems kind of silly to be arguing about society having a “mind”. It doesn’t have to have a “mind” to be real. Without societal expectations and understandings, how would we know how to live our lives at all, how to do anything, drive, purchase what we need, get a job, talk to other people. And those understandings have a great effect on how people behave and understand the world. For most of us here our opposition to redefining marriage has nothing to do with gay people. It is about just what the Judge said–retaining an understanding about what is best for children. Yes–some kinds of families are better for children than others. If we understand that, then as many children as possible will be raised by the two parents who made them. Here’s the article:
http://www.thepublicdiscourse.com/2014/11/14007/
Not true with modern technology.
And I guess screw all those kids that are adopted by same sex couples or born through IVF and surrogacy. Those kids suck right? They don’t deserve to have their parents live in stable relationships!
And we are saying that given your stated belief in the purpose of marriage those explanations are insufficient. Therefore, like you, I am flat out accusing – bigotry.
Larry, you were right about their argument from the get-go. But you already know that.
Not true with modern technology.
And I guess screw all those kids that are adopted by same sex couples or born through IVF and surrogacy. Those kids suck right? They don’t deserve to have their parents live in stable relationships!
Modern technology has not changed that basic fact of biology.
The kids don’t suck, the adults who intentionall put the children into non-ideal environment do.
Hah! Because I believe that marriage serves the state’s interest in procreation I therefore must believe that the state must demand proof of fertility and proof of consummation and proof of fruition?
Absurd. Almost as absurd as arguing that societal purpose requires society to have a mind.
Just because there is a state interest does not mean that all other interests automatically take a backseat to it.