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Earlier this year, I signed on to one of the amicus briefs arguing against judicial imposition of nationally recognized same-sex marriage and I am not changing my position here. However, I have gradually come to understand — largely thanks to the tireless efforts of SSM-supporting Ricochetti over on the SSM PIT — a pretty good argument for it. This argument deserves a fair hearing, and traditionalists like myself deserve the chance to confront it directly. Hopefully the result will be that some of us understand each other a little better, even if no one is actually convinced of anything.
I say the argument is good because its premises support its conclusion and all of the premises — if not unquestionably true — at least have something going for them. Now, arguments have forms (as I explained here) and it’s probably best to not jump right into the argument itself, but its form, which is as follows:
If governmental institution X excludes group of people Y from Z for merely prejudicial reasons, it is unconstitutional under the 14th Amendment.
In the rest of this post, I will prepare the ground for the argument by considering a series of relevant scenarios, present and explain the argument itself, and explain why I reject one of the argument’s premises.
Please note that this is not — for most readers — an essay easy to fruitfully skim–still less to fruitfully skip to the end! If you’re not going to read it all, and slowly, it might be best to quit now and go read something else.
I get in a time machine and travel to the future and find that white Zimbabwean immigrants are subjected to harsh discrimination in the late 21st century in New York. Then I go back to the time of the adoption of the 14th Amendment. I talk to the people who wrote it, to the people in Congress who debated it and voted on it, to the state legislatures that voted for it, to the people who voted for the Congressmen who voted for it, and to people who read about it in the newspapers. I ask them if the 14th amendment gives the federal government any authority to stop New York’s treatment of white Zimbwean immigrants.
Most people initially say no, but that’s only because they have never heard of an oppressed class of white Zimbabwean immigrants. So, I explain to them what happens in the future. I remind them that the 14th does not even mention African Americans and suggest that the 14th applies to all groups of oppressed people.
They’re not all convinced, but a good number come around; if I had more time to persuade them maybe I could convince a majority. But time is short even for people who have time machines, so back I go into my time machine and return to my own time.
The lesson of Scenario 1: You don’t have to abandon Originalism to think that the 14th Amendment applies to oppressed groups whom its authors and adopters weren’t even thinking about.
I take my time machine and travel straight back to the time of the adoption of the 14th, where I talk to all the same people as in the first scenario I ask them if the 14th amendment gives the federal government any authority to force a state to adopt a non-gendered definition of marriage.
It doesn’t take a time machine, nor any special expertise in history or law, to know that they will all say no.
Now I might try to explain that they’re prejudiced against homosexuals. Since I already have a time machine in this scenario, let’s add a machine that allows people to see their prejudices. But after using it on them, they still disagree!
After awhile, I realize that the man-woman definition of marriage is the only definition of marriage they recognize—indeed the only one most of them ever imagined. I tell them that, in my time, people often say that a man-woman definition of marriage discriminates against homosexuals.
They hear me as an ordinary man hears a lawyer who claims that the definition of life discriminates against the dead, that the definition of adult discriminates against children, or that the definition of a cat discriminates against dogs.
It’s not discrimination, they say; it’s just the definition of marriage.
The lesson of Scenario 2: If we presume Originalism, it matters a great deal that no one alive at the time of the adoption of the 14th Amendment would think that it grants the federal government the authority to strike down a state’s man-woman definition of marriage. (Note: This was the theme of one amicus brief for Obergefell.)
I travel forward in time and discover that, in the 2050s, Louisiana provides free drinking water for all citizens except practicing homosexuals. I then travel back in time to the adoption of the 14th. I tell them all about it.
At first, they tell me that this sounds totally ok. It’s actually a pretty light sentence for sodomy.
But then I tell them that we actually get rid of our sodomy laws in the early 21st century. Louisiana’s law isn’t punishing homosexuals for sodomy (and any law that was wouldn’t fly politically in the 2050s).
Louisiana’s law is — plainly and simply — discriminatory. From what I saw in the 2050s a bunch of people who just thought gays were kind of icky found a way to exclude them; not to punish them for sodomy, but just to make them feel left out.
After I explain all this, a few reluctantly come to the conclusion that maybe — just maybe — the 14th gives the federal government the power to stop Louisiana and require equal treatment of all citizens regardless of sexual orientation.
The lesson of Scenario 3: A law which has the function — and only the function — of discriminating on the basis of prejudice might be considered unconstitutional under the 14th Amendment without sacrificing Originalism! And even if the law targets people whose behavior the adopters of the 14th disapproved of and even if they would have approved of harsh punishment for those same people for said behavior!
I go back to the time of the adoption of the 14th. I tell all those folks the following tale:
In my time we have an institution called “schmarriage.” It’s a state recognition of the special amorous relationship of two individuals. How does it work, you say? Well, it’s pretty simple; if I fall in love with a girl we agree to schmarry, and we fill out a form and give it to the local government, and we make some promises in front of a couple of witnesses, and the state gives us a special piece of paper – a schmarriage license – that recognizes that we two have very special romantic feelings for each other and promise to stay together until we don’t have those feelings anymore. What’s the point, you say? That’s all: We think our romantic feelings are so special that we like to have them recognized by the government. (Well, there might be some tax benefits; I don’t keep track of the legal stuff much.) What’s that you say? Are couples in schmarriages supposed to reproduce? Well, that’s up to them. Some do, some don’t. No one really cares what happens in a schmarriage; there’s not really any point beyond having the government recognize how important our romances are to us.
Then I explain to them that in my time we have two other interesting things going on: Some states allow schmarriages for same-sex couples, and some allow only man-woman schmarriages, but no states have any laws prohibiting homosexual behavior. As far as the states are concerned, same-sex romances and opposite-sex romances are morally equivalent.
Then I ask them whether the 14th Amendment would give the federal government the authority to strike down state laws treating homosexual couples differently from heterosexual couples by excluding them from schmarriage.
There’s some debate, but most of them come around in the end to the view that the feds could require equal schmarriage for all.
Then I tell them this: “Hey, guess what! This schmarriage thing: We call it ‘marriage’ in my time!”
A few 1800s traditionalists get upset at this point. But they already gave up their case.
The lesson of Scenario 4: If a state gives schmarriage licences, it’s plausible that the 14th Amendment requires them to be given to homosexual couples on equal terms with heterosexual couples. Again, this is without sacrificing Originalism and even if the original authors and adopters of the 14th Amendment strongly disapprove of homosexual acts.
- If governmental institution X excludes group of people Y from Z for merely prejudicial reasons, it is unconstitutional under the 14th Amendment.
- The state marriage laws considered in Obergefell exclude homosexuals from marriage for merely prejudicial reasons.
- Therefore, the state marriage laws considered in Obergefell are unconstitutional under the 14th Amendment.
If the premises are true, the conclusion is true.
I don’t object to the first premise. The second premise, however, depends on a certain understanding of marriage: specifically that state marriage laws are really schmarriage laws. There’s something to be said for that: A lot of people really do treat marriage like schmarriage. And if the state marriage laws really are schmarriage laws, then it would be easy to affirm the second premise, as no reason — other than mere prejudice — exists to exclude homosexuals from marriage (at least, no obvious reason).
How People Think About Schmarriage and Blarriage
All the same, I don’t think that’s all there is to it. If you’ve read carefully enough you probably know where I’m going next: I don’t think that the state marriage laws were merely schmarriage laws.
In this section of the post I will introduce the concept of “blarriage,” explain how it is different than “schmarriage” and make a few observations. Then I’ll give some reasons I don’t think the state laws in question were just schmarriage laws.
There’s another way of looking at those romantic relationships that are blessed with state recognition. Ryan Anderson puts it succinctly, saying that marriage — or, “blarriage” as I’m referring to it here — is based on
[T]he truth that marriage unites a man and a woman as husband and wife so that children will have both a mother and a father. Marriage is based on the anthropological truth that men and woman are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father.
Observe: This blarriage thing is how a lot of people treat their own marriages and those of their friends and family and neighbors: These marriages unite two people who are sexually complementary (and perhaps, as some believe, complementary in other ways), and one of the goals of formalizing these relationships is to keep them united in order to raise any ensuing babies together.
Lots of people think marriages are blarriages, or at least accept some component of that thesis. People still think marriage has as one of its purposes providing optimal circumstances for having and raising kids; and some say it’s the only thing that has this as a purpose. People (like Kudlow) say you should marry first and then have kids. Guys think, “I got her pregnant; I’d better marry her.” Girls think, “He got me pregnant. He better marry me now.” People think, “We’d better get married before the baby is born.”
Observe also: Blarriage falls under Scenario 2, not Scenario 4. So, presuming Originalism, the federal government lacks the authority to overturn a state’s man-woman definition of blarriage–even if it has the authority to overturn a state’s man-woman definition of schmarriage.
Observe, moreover: What we call “marriage” in America today includes both relationships treated like schmarriages and relationships treated like blarriages.
They aren’t always easily distinguishable. “Marriage” is the umbrella institution for them all, and under that umbrella the relationships treated as schmarriages are mingled with those treated as blarriages.
(Parenthetically, observe that: People who think blarriage is important and who think blarriage needs a man-woman definition are, thereby, not being plainly and simply discriminatory, though whether they are correct is another matter!)
Why I Reject the Second Premise
Reason One: The state laws covered both both schmarriages and blarriages. So it’s not the case that the state marriage laws were just schmarriage laws. They were also blarriage laws.
(Now if a gendered definition of both blarriage and schmarriage is considered unacceptable, one option would be to separate the two. This is one thing the idea of gender-undefined civil unions existing alongside gender-defined marriage had going for it; of course, that ship sailed away when Obergefell came into port.)
Reason Two: To say that the state’s man-woman definitions of marriage were all definitions of schmarriage and only schmarriage is to say that the states never treated any marriages as blarriages.
But can you really say that? Not easily; for one thing, you’d have to do a ton of research on the family laws in these states before you could credibly say that.
Furthermore, look at what the states themselves do say. For example, check out, starting on page 43 of the oral arguments in Obergefell, Mr. Bursch’s remarks representing the states. He actually distinguishes schmarriage and blarriage, and explicitly says the state laws were for the reason of the latter, not the former. He doesn’t use the words “schmarriage” and “blarriage,” of course. You can thank me for providing you with those names. (And you are most welcome!)
Thus, it’s hard to say that the states were treating all marriages as schmarriages, and it’s pretty easy to make a case that they were treating marriages as blarriages: a Scenario 2 thing, not a Scenario 4 thing.
Reason Three: Historically, it seems that the schmarriage phenomenon evolved out of blarriage. Marriage understood as blarriage goes back a long, long way – as far back as Cicero (as Chief Justice Roberts noted in his Obergefell dissent), and, still earlier back to the Book of Malachi and the Pslams.
Additionally, consider Plato. Homosexuality is all over the place in his works and the Athenians even had a few customs superficially resembling same-sex schmarriage (see the Symposium). But same-sex marriage is unheard of, and, to all appearances, unthought of. Marriage ain’t schmarriage; it’s blarriage (this is especially plain from the reasons for the creepy marriage regulations in the Republic that were very much concerned with reproduction).
So how did we evolve from a common understanding of marriage as blarriage to a situation where schmarriage is about as common an idea as blarriage, if not more common? Well, I’d point to the usual suspects that weaken the connections between sex, reproduction, and permanent marriage: no-fault divorce, birth control, abortion, etc. I’m not here saying these are bad things, though I tend to think rather poorly of them–only that they are a pretty good understanding of what caused the evolution of the schmarriage phenomenon.
Anyway, since marriage was understood as blarriage a long way back — and even a short way back before those usual suspects took their effects — it’s hard to say that the state laws in question were just schmarriage laws. It’s very hard, actually: Cultural inertia alone would make it next to impossible to draw this conclusion. (See the “Scholars of History and Related Disciplines” amicus brief from the list of Obergefell briefs for more on this topic.)
To put Reason Three more concisely: These states’ marriage laws might just be schmarriage laws, but that’s a result of Obergefell, not a reason for it!
Reason Four: There are folks who think that schmarriages don’t even exist. What marriage is – what all real marriages are – is blarriage. No marriage is a schmarriage. (There are marriages that are treated like schmarriages, but that doesn’t make them schmarriages.)
These folks typically have religious reasons for this view, or metaphysical reasons, or both. If you read ThePublicDiscourse.com for a month or so, or read What Is Marriage? by Anderson, Robert George, and Sherif Girgis, you should have a pretty good idea of what these metaphysical reasons are. You’re probably already familiar with the religious reasons, but if you’re not you can probably find them by reading Genesis 1-3 and the Old Testament references above.
I happen to be among these people, but that’s not the point. Rather, the point is that such people think of the state laws as blarriage laws, which means that they think these laws are not merely prejudicial.
Accordingly, to affirm the second premise is to say that these religious or metaphysical views are incorrect. And the courts don’t have any business ruling against Anderson et al’s metaphysics, still less business saying that Catholic theology or the Baptist Faith and Message are mistaken.
(Note that Reason Four — unlike the first three reasons — is not a reason I reject Premise 2–but a reason federal Courts should not affirm it. Let saints and metaphysicians debate, and let the people decide! American courts don’t need to be like the courts on a Star Trek episode!)
Of course, this is of more interest to those who are Originalists like myself than to those who aren’t. If Originalism is false, you don’t even need this argument; you can — and Justice Kennedy did — use other lines of reasoning.
So it’s safe to say that this analysis is of little or no interest to the likes of Justices Breyer, Ginsburg, Sotomayor, Kagan, and (sometimes) Kennedy.
Still, for what it’s worth, and especially for the Originalists among us, here it is: a respectable argument that Obergefell was rightly decided, and the reasons I don’t buy the argument’s Premise 2.