MayerBlog: The Web Log of
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Marriage, American Style
“Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.” -- Thomas Jefferson to Samuel Kercheval, July 12, 1816
Jefferson’s observation is especially apt this week, as the U.S.A. becomes only the fourth nation in the world to give legal recognition to same-sex marriages. Well, that’s not quite true: only the Commonwealth of Massachusetts (thanks to a controversial ruling by the Massachusetts Supreme Judicial Court) thus far has extended marital status to homosexual couples; the other 49 states and the federal government continue to follow the traditional definition of marriage as applicable only to heterosexual couples. But Massachusetts’ revolutionary action has fueled a national debate that no doubt will continue long past the 2004 elections. Although many people, for a variety of reasons, view with alarm this change in the law, their fears are greatly exaggerated, also for several reasons. Whatever one thinks about the merits of the issue, it’s debatable whether Massachusetts’ experiment in redefining 21st-century marriage will prompt other states to follow, or rather will trigger a backlash that actually may stop or at least delay other jurisdictions from following suit. With proposals for not only a federal constitutional amendment but also for amendments in several state constitutions (including Massachusetts) threatening to stop “gay marriage” from getting legal recognition, it’s entirely possible that the controversy is more about political symbolism than real substance, anyway. (As discussed below, the fear – or hope – that Massachusetts’ experiment will force other states to recognize same-sex marriage is based on an erroneous reading of the Constitution’s “full faith and credit” clause; hence, the case for amending either the federal or state constitutions, outside of Massachusetts, is based on imaginary fears of a hypothetical scenario that may never come to pass.) Setting aside for now, though, the question of what will or might happen, Jefferson’s observation about the need for laws and institutions to change, to evolve “hand in hand with the progress of the human mind,” helps make a compelling argument that we (meaning all of the United States) ought to redefine marriage to include same-sex unions. It’s the right thing to do, if we are truly to live up to America’s founding values. Seen in this light, it’s a shame that it took over 225 years to change the institution of marriage in America, and that only one out of the 50 American states so far truly has lived up to the promise of those founding values. The United States of America is unique because it is the first nation in the history of the world to be founded explicitly on the idea of the sovereignty of the individual. While other nations in human history, past and present, have been founded on some shared collective value (a common ethnicity, religion, culture, ideology, etc.), the revolutionary origin of the U.S.A. – memorialized in our founding document, the Declaration of Independence – was based on individualism. Instead of putting society or government first, the Declaration starts with the individual, endowed by nature with the inherent and inalienable rights of life, liberty, and the pursuit of happiness. As America’s Founders understood (and also declared in 1776), the purpose of government – and its sole legitimate function – is to “secure” these fundamental rights of the individual. And as they furthered understood (and declared), government must derive its legitimate powers from the consent of the governed, for that is the only way in which the rights of free and independent individuals can be secured without at the same time violating them. As Jefferson understood – perhaps more clearly than any of the other Founders – true progress comes as individuals become more free, more in charge of their own lives. The progressive, “civilized” society that he envisioned was one in which individuals could pursue their own happiness as they wish, provided they did not deprive others of their equal rights to do so. It was a society in which, over time, the coercive power of government controlled individual freedom less and less; in which, over time, the number of laws decreased, rather than increased. (Jefferson’s vision, shared by his fellow “radical Whigs” of the 18th century and by “classical liberal,” or libertarian, political philosophers of the 19th century to the present day, is not shared by self-proclaimed “progressives” today, most of whom – contrary to the term progressive – are in fact really reactionaries, advocating left-wing political causes which emulate the paternalistic governmental policies of the past. Sadly, most outspoken “gay-rights” activists also fail to be truly progressive, in the true sense of the word, for they too call not for equal freedom under the law but for more paternalism, not for fewer laws but for more laws interfering with individual freedom – such as laws barring private parties to contracts to discriminate on the basis of sexual orientation.) The “progressive” case (in the proper sense of the term) for legal recognition of same-sex marriage is based on the fact – a controversial fact, but one amply supported by modern social-science studies and by common sense – that homosexuality is a part of human nature; it is a sexual orientation no less legitimate than heterosexuality or bisexuality. (For an excellent discussion of the origins of both homosexual and heterosexual orientations, see C.A. Tripp’s splendid book The Homosexual Matrix.) Modern society, thankfully, has moved beyond the medieval Christian view that homosexuality is evil, a “sin” that the laws should punish, with death (as the English common law, applied in 17th-century colonial America, did, until it was “liberalized” – to merely a long prison-sentence, at hard labor, like that suffered by Oscar Wilde in Britain in the early 20th century). Although many people’s religious beliefs (or their fears, grounded in their ignorance of homosexuality) prompt them to continue to regard homosexuality as immoral, modern America no longer uses the criminal law to punish persons simply for their sexual orientation. Indeed, since the U.S. Supreme Court’s landmark ruling in Lawrence v. Texas (striking down as unconstitutional Texas’ law criminalizing sodomy), both homosexuals and heterosexuals have the freedom, as consenting adults, to engage in oral and anal sexual practices. What’s truly amazing is not that the Supreme Court acknowledged this freedom as part of their liberty rights protected by the Constitution, but that it took over 200 years for the Court finally to recognize this. Whether a person’s homosexuality is grounded in his or her genetic make-up or in his or her upbringing – the age-old “nature or nurture” debate, still not fully resolved by the social scientists – doesn’t really matter, from the standpoint of the person’s rights, under law. Like heterosexuals, homosexuals have the fundamental natural right to “pursue happiness,” as well as the natural right to “liberty,” which American courts (at least in the early 20th century) understood to encompass not only freedom from mere physical restraint, but also “the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (Meyer v. Nebraska, 262 U.S. 390 (1923) (emphasis added)). Civil marriage is an institution that confers a beneficial status, under law, to those individuals who make the commitment to enter into it. It allows them, among other things, to legally merge their property, their households, and their responsibility for child-rearing; for under the law, married persons can be considered as one. It is, in fact, a special status created by law – and therefore ought to be something equal available to all persons, homosexual as well as heterosexual, if America truly is a nation under which all persons enjoy the equal protections of the law. Opponents of same-sex marriage base their arguments principally upon the traditional definition of the word, but their arguments overlook the broader concept signified by the term marriage. My dictionary defines the word marriage, principally, as “the social institution under which a man and woman establish their decision to live as man and wife by legal commitments, religious ceremony, etc.” – the traditional definition, championed by conservatives today. Yet my dictionary also gives the following, alternate definition: “a relationship in which two people have pledged themselves to each other in the manner of a husband and wife, without legal sanction,” as in “trial marriage” or “homosexual marriage” (emphasis added). The dictionary also gives the following alternative definitions of marriage: “any close or intimate association or union” (for example, “the marriage of words and music in a song”); “a formal agreement between two companies or enterprises to combine operations, resources, etc. for mutual benefit (in other words, a merger); and “a blending or matching of different elements or components” (for example, “the new entrée is a beautiful marriage of taste and texture”). Language, like other social institutions, evolves. As the above definitions suggest, the definition of marriage already has evolved, in the English language, to embrace not only the traditional definition of a marriage as recognized under law but also the broader concept of a union of two persons (or two entities or elements) merged into one, for certain purposes. Considering the broader meaning of the term marriage, it does not seem so radical a change for the social institution called by that name to encompass not only the union of a man and woman, as husband and wife, but also the union of two persons (of the same sex, or of opposite sexes) who similarly “have pledged themselves to each other.” It’s the natural evolution of the word. We need to be clear that, in discussing legal recognition of marriage, we’re referring to civil marriage, as distinct from religious marriage – from the institution as recognized by the government and legal system, under civil law, as distinct from the institution recognized by the “laws” or rules of religious bodies or other private belief systems. Those traditionalists who insist that marriage be limited to a man and a woman, the traditional heterosexual union, may still have that traditional definition enforced in religious marriages. That’s their right, under the American system of free exercise of religion – and the separation of church and state. Civil marriage, however, as recognized by government and the legal system, under civil law, is a different matter. We also must distinguish the traditional definition of the word “marriage” from the essential meaning of the concept of marriage. Although the union of a man and a woman “to live as husband and wife by legal commitments” may be the traditional definition of the word, the concept that it signifies, in its essence, has the broader meaning discussed above. In a modern, free society in which individuals have the fundamental right to liberty and the pursuit of happiness, on their own terms, it is not proper for government, through the coercive power of law, to deny to homosexual couples the same status under law that heterosexual couples enjoy, if they choose to make a similar commitment. Thus, the natural evolution of the concept of marriage, as recognized by law – that is to say, the institution of civil marriage, or marriage as legally recognized – is to encompass homosexual as well as heterosexual couples. Thus, a good case can be made, theoretically at least, that the “equal protection of the laws” guaranteed by both the United States Constitution and most state constitutions mandates that government give legal recognition to same-sex marriages as well as opposite-sex marriages. Having noted that, however, I must immediately concede that so far only the Massachusetts Supreme Judicial Court has recognized this argument; and as discussed below, no federal court (other than perhaps in the unpredictable Ninth Circuit) – and probably certainly not the U.S. Supreme Court – will so interpret either the U.S. Constitution’s Fourteenth Amendment “Equal Protection” clause or its Article IV “Full Faith and Credit” clause to require that states outside of Massachusetts recognize same-sex marriages as legally valid.
Judicial Review, Not Judicial Activism
Calling the Massachusetts Supreme Judicial Court’s ruling “deeply troubling,” President Bush has declared, “If activist judges insist on redefining marriage by court order, the only alternative will be the constitutional process. We must do what is legally necessary to defend the sanctity of marriage.” Was the Massachusetts Supreme Court decision really an instance of judicial activism? Did the Court in fact “assume to itself the power of legislating,” as Mass. Governor Mitt Romney asserted in a Wall Street Journal op-ed? Gov. Romney in fact compared the Massachusetts marriage decision to the ruling by the U.S. Supreme Court in the infamous Dred Scott case in 1857. Should we regard the Massachusetts decision as equally illegitimate? The answer is “No”; the Massachusetts Supreme Court was not “legislating,” it was not – as the U.S. Supreme Court did in Dred Scott – usurping a legitimate power constitutionally assigned to another branch of government. Rather, the Massachusetts Court was doing its duty under our constitutional system, deciding that existing marriage laws violated individual rights guaranteed under the state’s constitution – Massachusetts’ version of the equal-protection clause. Illegitimate judicial activism occurs when courts abuse their judicial power and in fact attempt to make law or public policy based on the judges’ own subjective views. But what conservative critics deride as “judicial activism” isn’t really activism at all; it is an aspect of judicial review, the legitimate authority of courts to interpret and enforce the mandates of constitutions. As the majority in the Massachusetts Court decision noted, “Courts define what is constitutionally permissible, and the Massachusetts Constitution does not permit” the legislature to deny to same-sex couples the legal benefits of civil marriage. “This is not a matter of social policy but of constitutional interpretation,” the justices declared, and rightfully so. What the court did was to fully protect the rights of individuals under Massachusetts law. People may disagree with the Massachusetts Supreme Court’s interpretation of the state constitution, but in so interpreting it the Court was not engaged in improper judicial activism; it was merely doing its job – part of its legitimate “judicial power” – to determine Massachusetts law. If the people of Massachusetts want to change the fundamental law of their state, they may do so, by amending the state constitution – and indeed, there’s a proposal to put a constitutional amendment on the ballot in Massachusetts by this fall’s election. Not only is the Massachusetts court’s decision far from being the final resolution of the issue in that state, but the trend in most of the other states is to resist changing marriage to include legal recognition for same-sex couples. In at least six other states (Georgia, Kentucky, Mississippi, Missouri, Oklahoma, and Utah) this fall’s ballots will have proposed amendments to their state constitutions, to strengthen existing bans on same-sex marriages and to specify that same-sex marriages from other states would not be recognized. Consideration of similar proposed amendments is underway currently in two other states (Alabama and Louisiana), while petition drives to place such proposed amendments on the ballots are underway in several other states (including Arkansas, Michigan, Montana, Ohio, and Oregon). Notwithstanding the fact that as traditionally interpreted by the courts, the Constitution’s “Full Faith and Credit” clause does not require other states to recognize same-sex marriages from Massachusetts (see the discussion below), several states already have attempted to avert that outcome by passing so-called “Defense of Marriage” (DOMA) statutes, which like the federal law signed by President Clinton in 1996, define marriage as only between a man and a woman. To date, 42 states have passed such laws (or have a similar provision already in their state constitutions). That means that only seven states currently have no law limiting marriage to heterosexual couples; these include four of Massachusetts’ neighboring states (Connecticut, Rhode Island, and New York, whose attorney generals have issued opinions that their state laws won’t bar recognition of same-sex marriages performed in Massachusetts; and Vermont, which already recognizes “civil unions” between same-sex couples and will treat Massachusetts same-sex marriages on par with its own laws). Moreover, opponents of same-sex marriages have proposed an amendment to the U.S. Constitution. One proposal introduced in the House of Representatives states: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution [n]or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” Noting the ambiguity in this wording (for example, what is meant by “legal incidents”?), others have proposed a more modest amendment – one that, rather than mandating the traditional man-woman definition of marriage (and thereby preventing any state from recognizing same-sex marriages, even if the people of the state overwhelmingly support the change), would simply ensure that no state would be compelled to recognize same-sex marriages against its own public policy. The Wall Street Journal editors, for example, have suggested an amendment that would provide simply: “Nothing in this Constitution shall be construed to require any state or the federal government to recognize any marriage except between a man and a woman.” This more modest proposal would permit not only states to recognize same-sex marriages, if they wish, but also allow Congress to change federal law to do so, if at some time in the future Congress would be so inclined. Amending the Constitution would be unnecessary, dangerous, and wrong, for the reasons discussed below. The more modest proposed amendment would be less troublesome, but it is still a bad idea.
Other False Premises of the Marriage Police
Advocates of these proposals to ban same-sex marriage, including the proposed Federal Marriage Amendment, are basing their arguments on a series of false assumptions. In addition to the false charge of “judicial activism,” discussed above, they also erroneously assume the following:
This assumption ignores the distinction between civil marriage and religious marriage, discussed above, and it turns on several other deeply-rooted (and usually unacknowledged) dubious premises. As Christopher Hitchens rhetorically asked in a thoughtful Wall Street Journal op-ed (“The Married State,” March 3), “How do gay marriages threaten or challenge heterosexual ones? And . . . why are the advocates of the one and only and immemorial man-woman marriage apparently so chronically insecure?” As Britney Spears’ much-publicized spur-of-the-moment marriage and annulment in Las Vegas earlier this year so vividly demonstrates, heterosexuals who do not take the marriage commitment seriously enough pose a far greater danger to the “sanctity” of the institution than homosexual couples who do. Those who are concerned about the deteriorated state of marriage in America today – where some 50% of all marriages now end in divorce – ought first focus their attention on, say, no-fault divorce laws. Let’s make marriage more difficult for anyone, heterosexual or homosexual, to enter into without serious deliberation about the commitment they are making; and let’s make it more difficult for every couple, same-sex and opposite-sex alike, to end their commitments – rather than arbitrarily banning people from entering into marriage in the first place, simply because of their sexual orientation.
The fallacy of this assumption can easily be exposed by noting that the longevity of a tradition does not make it good or worthy of being protected: consider, for example, prostitution, famously regarded as “the world’s oldest” (or sometimes “second oldest”) profession; although many libertarians would argue it ought therefore to be legal, most people still believe it should remain against the law. Or consider the institution of slavery, whose roots can be traced back virtually as far as traditional marriage. Southern defenders of slavery before the Civil War, in fact, did make similar arguments on behalf of the institution – backed up by erroneous and bigoted assertions about human nature, too – but of course that did not make their defense of that institution legitimate or even persuasive. Ditto, with regard to traditional marriage, which is rooted in a moral code suited for a primitive, desert-dwelling society – one where the essential function of marriage may have been simply to keep propagating members of the tribe – that is no longer suited for modern, industrial/technological society. As Jefferson wrote, “We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”
This assumption also rests on several dubious underlying premises. First, it is by no means clear that the raising of children is an essential, or even an important, purpose of marriage: two people who are romantically in love with each other and who wish to form a union may do so for any number of reasons, not necessarily related at all to the raising of children (as the large number of childless heterosexual marriages – including not only couples who have never had children but couples who remain married long after their children have left their “nests” – exemplifies). Even if child-rearing were an essential or even an important aspect of marriage, it’s something that same-sex couples are just as competent to do (and in many cases, no doubt, even more competent to do, well) than opposite-sex couples. (For those to whom such things matter, a number of social-science studies as well as an abundance of anecdotal data, provide support. Those who dispute this fact might cite contrary studies, but no doubt much homophobic bigotry lies behind the assumption that psychologically healthy children can be raised only by heterosexual couples.) Same-sex couples of course can adopt and frequently are able to provide loving homes for children unwanted by other couples. With modern reproductive technologies, including such things as artificial insemination and sex-change operations, it’s no longer even true that same-sex couples cannot be biological parents of the children they’re raising (short of engaging in heterosexual intercourse); so not even the assumption that only a man and a woman can biologically reproduce is now true.
This assumption tries to have it both ways; it treats civil unions as tantamount to marriage, telling homosexual couples they can have their cake, and yet it deprives them of the opportunity to eat it, too, for it tells traditionalists that the two statuses are not the same. Frankly, not being an expert on family law, I’m not sure if the difference is more substantive than symbolic; but my guess is that civil-union status would not give homosexual couples all the same protections under law that heterosexual couples get from marriage. Denying same-sex couples marital status while giving them some sort of half-way civil-union status, seems akin to the infamous “separate but equal” doctrine once used by the Supreme Court to justify racial-segregation laws, despite the clear language of the Equal Protection Clause. If I’m wrong about civil-union status – if, for all practical purposes, it is essentially the same as marital status – then it seems the traditionalists’ objection to expanding the definition of marriage to include same-sex couples is indeed purely a matter of symbolism, not substance.
This assumption misstates the mandate of the Full Faith and Credit clause, as it historically has been interpreted by the courts. As law professor Lea Brilmayer explained in Wall Street Journal (“Full Faith and Credit,” March 9), “longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy.” This “public policy doctrine,” she further explains, is “almost as old as this country’s legal system” and has been applied to foreign marriages between first cousins and persons under the age of consent, for example. The rules regarding interstate recognition of divorce and child-custody decrees are somewhat more complicated; generally, court judgments – unlike marriage licenses – are entitled to full interstate recognition; but so far I have heard no serious concerns about full-faith recognition of same-sex divorces. As Professor Brilmayer concludes, “The assumption that there must be a single national definition of marriage – traditional or open-ended – is mistaken and pernicious. It is mistaken because the existing constitutional framework has long accommodated differing marriage laws. This is an area where the slogan `states rights’ not only works relatively well, but has traditionally been left to do its job. . . . The assumption is pernicious because the winner-takes-all attitude that it engenders now has social conservatives pushing us down the constitutional-amendment path,” and this would be “a tragedy for those who genuinely favor local autonomy, or even those of us who genuinely favor keeping the constitutional text uncluttered by unnecessary amendments.” Similarly, despite the fear of many conservatives that “activist judges” might hold that the Constitution’s equal protection clause requires states to recognize same-sex marriages – what I believe is a legitimate and proper interpretation of the Constitution – it’s not a realistic probability that any federal court, especially the U.S. Supreme Court, would so hold. As I have discussed in my previous blog entry (“Fifty Years of Brown-Nosing”), rather than following the clear language of the Fourteenth Amendment – guaranteeing to all persons “the equal protection of the laws”—the Court has created artificial standards, with different levels of scrutiny, for laws that treat different classes of people differently. Racially discriminatory laws are given the highest level of “strict scrutiny”; they require compelling reasons for government to justify them because race, the Court has said, is a “suspect classification.” Laws that discriminate on the basis of gender, or sex, alone are given an intermediate level of scrutiny; but so far, the Court has not regarded laws that discriminate on the basis of sexual orientation as deserving any higher level of scrutiny than the minimal “rational basis” standard, where (sadly) arguments based on tradition have been used to justify unequal laws. Unless the Court significantly changes its equal-protection jurisprudence, no federal court is likely to find, at any time in the near future, that the Constitution mandates the states to recognize same-sex marriages. (Indeed, it is noteworthy that in Lawrence v. Texas, last year’s Supreme Court decision striking down Texas’ sodomy law, that only one justice – Justice O’Connor – found that a sodomy law enforced only against homosexuals violated the Equal Protection Clause. ) Similarly, I’d argue that the Supreme Court also ought to hold that the freedom to marry whomever one wishes, whether a person of opposite sex or the same sex, is part of the “liberty” protected by the Constitution’s due process clauses in the Fifth and Fourteenth Amendments (or, alternatively, one of the “privileges” protected by the Fourteenth Amendment’s “privileges or immunities” clause). As noted above, at one time in the early 20th century, the Court did interpret “liberty” that broadly; but sadly, the Court abandoned that rigorous a protection of liberty in the late 1930s. Some legal scholars believe that the Court’s decision in Lawrence promises a return back to that old jurisprudence, but the Court itself in that decision explicitly disclaimed any constitutional right of homosexuals to marry. So, again, what I believe the Court ought to do, in interpreting the Constitution (enforcing its guarantees, which again is legitimate judicial review, not illegitimate judicial “activism”), isn’t what the Court probably would do, if faced with the issue in a real case or controversy.
This is perhaps the most important, and at the same time the most dubious, assumption made by supporters of the proposed constitutional amendments. Not only does it fly in the face of Thomas Jefferson’s admonition, that institutions must evolve, “hand in hand with the progress of the human mind” – by all but blocking the possibility for American law to keep pace with the times on the rapidly changing subject of homosexuality – but it also overlooks why we have a constitution in the first place. It’s wrong to use constitutional amendments as a device to force public-policy decisions, or to by-pass the normal functioning of our republican system of government. As legal scholar John Yoo pointed out in a Wall Street Journal op-ed earlier this year (“Let States Decide,” February 27), “almost all of the amendments have the purpose of either organizing or limiting the powers of the federal or state governments, such as the Equal Protection and Due Process Clauses requirement of equal and fair treatment by the government. The most notable effort to regulate purely private conduct – the 18th Amendment’s establishment of Prohibition – failed miserably and led to the rise of organized crime.” Adoption of any federal constitutional amendment enshrining into higher law the traditional man-woman definition of marriage would repeat the mistake of the 18th Amendment. As Professor Yoo also notes, it would “short-circuit the diversity and experimentation in policy that is one of the great benefits of our federal system.”
If we are to amend the U.S. Constitution, arguably, we ought to amend it in order to guarantee equal freedom to all Americans, something like: “The right to marry shall not be denied by the United States or any State to any person on account of sex.”
| Link to this Entry | Posted Wednesday, May 19, 2004 | Copyright David N. Mayer |
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