For some time now, three of the most powerful forces in society—technological science and the moral values of equality and freedom—have been applied to the redefinition and reworking of a fundamental human and social institution: marriage and the family. Same-sex marriage is the most recent wave in this transformative endeavor.
Marriage and parenting may be disappearing in large parts of sophisticated Europe and Japan, but not so much among our high achievers. It’s true that our elitists don’t think that marriage is required for sexual enjoyment or even to validate romantic love. They’re accepting of same-sex marriage to avoid being judgmental or hateful. Marriage equality is part of “multicultural diversity.” And so it’s an issue about which it’s no longer possible for decent people to have diverse opinions.
Our meritocracy based on productivity embraces diverse lifestyles, and nobody believes that women were born to be anything but free and equal individuals just like men. And so parenthood and marriage have to be freely chosen, allegedly part of that mysterious power that one has to define one’s personal identity. Except when it comes to the responsible imperatives of personal productivity, the talk of our successful sophisticates often seems stuck in the Sixties. But not so much their behavior.
I appreciate John McGinnis’s account of the state of our liberty. He’s right that by some objective measures liberty is on the decline. But, a consistent individualist might say, liberty is on the march when it comes to same-sex marriage, legalized marijuana, and the general front of “lifestyle liberty.”
Marriage and family life are not what they once were and this “change” should continue with the embrace of further reforms in the direction of disestablishing or de-institutionalizing both institutions. The winds of change are blowing, and law, as pragmatic adaption to changing circumstances, must adapt, reflect and foster these changes. This is the core theoretical argument of Mark E. Brandon’s States of Union, a legal realist contribution to the history of marriage in law and public consciousness. The story Brandon, a Professor of Law at Vanderbilt University Law School, tells parallels those seen in other fine histories of marriage and…
There are stronger constitutional arguments on both sides of same-sex marriage than any disputants are willing to acknowledge. But the particular manner in which U.S. District Judge Robert J. Shelby reached his decision, announced Friday, overturning Utah’s state constitutional amendment defining marriage heterosexually is a tangle of faulty reasoning and judicial arrogance that will disserve the cause he aims to advance.
The first clue that something is amiss is revealed in the stunning—well, maybe not; but still—error of basic civics on the opinion’s seventeenth page: “When the Constitution was first ratified, [citizens’ fundamental rights] were specifically articulated in the Bill of Rights and protected an individual from certain actions of the federal government.”
That claim—coming here from a federal judge—would cost a freshman points on a blue-book exam. Any student of introductory American government knows the Constitution was ratified over explicit objections that it did not contain a Bill of Rights and on its Framers’ specific insistence that including one might weaken the edifice they had constructed.
Same sex marriage is already not accorded legal status in Indiana. So why all the fuss?
For the uninitiated, the issue of same sex marriage is dominating Indiana’s political discourse. Opponents of legally defining same sex unions as marriages are pushing a state constitutional amendment that would prevent Indiana from giving legal recognition to same sex marriage. Some versions of the amendment would prevent legal sanction of civil unions as well. Although Indiana already has statutes defining marriage as between a male and a female, many fear that, one day, the courts may manufacture a constitutional right to same sex marriage. In several states, including Iowa and most recently New Jersey, state courts declared same sex marriage a constitutional right, taking this important public policy issue issue away from the legislature or the voters. The legitimate worry is that Indiana could be next.
The demise of Intrade.com (link no longer available) has deprived degenerates who will gamble on anything—and other degenerates who link to them—of the opportunity to wager on the outcome of Hollingsworth v. Perry, the case testing the constitutionality of California’s Proposition Eight, which banned same-sex marriage. But had it remained in operation, the odds likely would have run about even, with all eyes fixed on the great unknown: Justice Kennedy. Both facts—the even odds and the unknown on whom they rest—are problems. The even odds imply unpredictability in the law, and the unpredictability of Justice Kennedy’s jurisprudence, in turn, suggests a false complexity of constitutional jurisprudence that places it beyond the grasp of mortals and in the hands of a mysterious priesthood whose decisions require divination. However one wants the case resolved, it should not be decided like this.
My position on the constitutional question of whether gay marriage is required is that there are reasonable interpretations on both sides of this issue. One danger of such a position is that it puts one in a no win position, but – hey – you have to go where the evidence leads you. Mike Ramsey (with arguments I mainly agree with) has been responding to critics of the argument that the 14th Amendment does require same sex marriage. Here I want to respond to Mike’s criticisms of the arguments that I offered for why one might conclude that same sex marriage is not required.
Mike focused on one small part of my post addressing the issue whether sexual orientation is like race. Rather than get into this issue – perhaps I will in the future – I want to note that Mike fails to address the basic question as to how we identify what moral rules are sufficient for justifying the law drawing a distinction under the 14th Amendment. This is a potentially independent reason for not requiring gay marriage. I had noted that at the time of the Amendment traditional moral rules would have been deemed to be a sufficient basis for a law to draw a distinction. (Under one theory, a law that drew a distinction based on traditional morality would not be seen as class legislation.)
In my prior post, I mentioned that I believe there is an originalist case both for constitutionally requiring same sex marriage and for not requiring it. I briefly mentioned the case for requiring it and then noted that most originalist discussions of the case for not requiring it seemed to rely on original expected applications arguments (which might be thought to be inconsistent with textualist originalism). Here, I want to briefly set forth the outlines of a textualist case for not requiring same sex marriage.
Let’s assume that the Equal Protection Clause (or possibly the Privileges or Immunities Clause) adopted an equality requirement that prohibited class legislation that singled out a group for special burdens. Of course, all laws classify and therefore one needs a principle that determines which classifications are constitutional and which not. It seems that laws that identified irrelevant characteristics of groups, such as race, were deemed to involve arbitrary distinctions that resulted in class legislation.
But it is clear that, although this equality principle prohibited arbitrary distinctions, it allowed laws that drew distinctions based on traditional moral principles. There are various arguments that support this conclusion. One views a law that is based on a traditional moral notion as not making an arbitrary distinction. Another notes that the police power was thought to limit all rights, and this power allowed for regulation to protect the health, safety, welfare, and morals of the people.
It is an unfortunate aspect of modern originalism that we have such a poor understanding of the 14th Amendment. In my view, the main culprit here is nonoriginalism – in particular, that the Supreme Court and scholars have been uninterested in doing originalist research for the last 75 years of the last century and therefore we never developed a more informed understanding of the Amendment. As result, we can find plausible originalist arguments for and against same sex marriage. Over at the Originalism Blog, Mike Ramsey notes how an originalist might reach the conclusion that the 14th Amendment requires same sex…