is older than it's ever been and now it's even older


Gay Marriage Throwdown

Ok, so here's my challenge to my friends that oppose the recent Perry v. Schwarzenegger proposition 8 ruling. What arguments do you have against this ruling? Let me set some ground rules here.

1. This is a legal case, in a US district court. So from that perspective, appeals to biblical authority aren't going to hold any weight, much as they don't in a US civil rights case.

2. This case was decided on (broadly speaking) two constitutional law provisions, so I'm looking for arguments that refute the constitutional law conclusions that were made. Broadly speaking, they are:

A. Equal protection. A law that seeks to enforce different standards against different groups must have a basis in law. There are three possible standards of review (yes, I'm paraphrasing a bit, in part):

i. Rational basis review, if the groups are not 'protected classes'. If I want to pass a law making people that skateboard automatic loiterers, and they challenge on equal protection grounds, that's going to trigger rational basis. This means that you have to demonstrate that the discrimination has a rational purpose to further a legitimate state end.

ii. "Heightened protection". If you discriminate against women, you have to do a bit better than show a rational basis for it; you need to show a compelling reason to further a legitimate state end.

iii. "Strict scrutiny". If you're discriminating against a protected class, you have to show that it's the only real way to advance a compelling state interest. Note that judge Graham made findings in all three situations, so feel free to argue for which of these three ought to apply, and why.

B. Due Process. Given that marriage is a fundamental right, what compelling reason does the state have in telling who they can or cannot marry? Bear in mind there is existing case law. Underaged marriage? Compelling, because underage people can't consent (parental consent can circumvent in some states). Incest? Compelling, because of public health reasons to avoid demonstrated genetic problems.

Adding to the problems for people against the decision is that the Court made extensive findings on many of the supposed reasons to satisfy rational basis review, and found them uncompelling. For example, the "think of the children" argument fails when peer-reviewed studies show that children who are raised by same-sex couples do as well (better, actually) than children raised by heterosexual couples. Also, a rational basis has been held to NOT include "because a majority of voters say so". That's not new law, it dates back to the Romer decision from 1996.

So let's hear it: what are the arguments against this decision? What rational reason does a state have to restrict marriage to heterosexual couples given the bounds of a legal case? A big plus would be if commentators would actually read the decision, linked above, so it's not just a big "well, this argument was considered and rejected" fest. If you did read it and think the argument shouldn't have been rejected, that's totally fair game, but let's be a bit smarter than the talking points and actually engage on the substance. I read the whole thing, and so can you!

Comments are open!

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  • At 1:50 PM, Blogger rodii said…

    This is great, norm. Really lays it out. I know an awful lot of people who simply say "well, SCOTUS will overrule this :(" though. Is that very likely, do you think?

    As to what you've written here... it looks like 2.A.i. is the only real avenue--that preserving marriage as a hetero-only thing is (somehow) a legitimate state interest. I wouldn't know how to frame that argument.

    Or 2.B--is marriage really a fundamental right? Do they really want to go there? It seems like they have to thread a pretty narrow needle of saying yes, it's a fundamental right, and no, all the taboo marriages are disallowed for rational reasons. But does the incest argument, say, I mean, why *not* let people marry cousins if they're the same sex? They won't be able to procreate. so there's no public health issue. But then, what about opposite-sex cousins that are infertile? Maybe it's not cousin marriages that are the problem, it's cousins having babies, which is already disallowed... etc. That kind of discussion just seems to lead into a maze of twisty little passages and makes me feel like there's a fundamental incoherence to the concept of government-legitimated marriage.

  • At 2:10 PM, Blogger Nathaniel Hobbs said…

    Well, preserving marriage as a hetero-only thing begs the question: why? Judge Walker says that there are some proffered reasons, such as 'the promotion of opposite sex parentage'-- which hasn't worked, and shows no scientific benefit. He concludes that the real reason it's there is to enshrine in law that a heterosexual union is qualitatively better and legally favored one over a homosexual one, and that's an impermissible bias or animus-based reason. So it doesn't fly.

    Marriage is a fundamental right, and has been at least since Loving v. Virginia (see discussion here.) So that's not new law. The question is, is there a compelling reason to stop that fundamental right. Racial discrimination is a no-no, see Loving; incarceration is out, and so is failure to pay child support.

    I've seen a bit of argument on the whole "gays have a right to marry! they just have to marry a woman!" point. This fails, as I see it, just as obviously as "Mildred Loving had a right to marry too! She just had to marry a black man!"

    The problem with that argument is that it provides a red-herring talking point to say "a-ha! blacks have always been a protected class, but gays aren't!" The legal counter, however, is that the Due Process claim does not require the same protected class analysis: inmates are not a protected class, and yet they still have a fundamental right to get married.

    Cousin marriage is a weird slippery slope too. Some states allow it, some states don't. The public health argument to avoid birth defects has won the day so far, but recent evidence suggests that there are no real appreciable additional risks to cousin procreation. So who knows, that slippery slope argument might be true, if you start paying attention to science. Underage marriage? Easily distinguishable on the 'consent' point.

  • At 4:49 PM, Blogger The Theonomic Libertarian said…

    This comment has been removed by the author.

  • At 4:50 PM, Anonymous Stephen Henkel said…

    Until the mid-1800s (when marriage licensing was instituted by many States in an attempt to track and enforce racist and inhumane State Laws against inter-racial marriage), civil marriage licensing in the Unites States (or most other countr...ies) did not exist in ANY form. Marriage was purely a matter of private contract between two consenting adults -- certainly neither Abraham and Sarah, nor Moses and Zipporah, required any civil license to form a private contract of marital union between themselves and witnessed by their clans. The State's only involvement was to arbitrate between the parties in the case that the marital contract was breached, not to define the terms of the contract itself (as with a private business partnership -- if you and I wished to form the Hobbs/Henkel Lemonade Stand partnership, the government would not dictate to us the terms of our business partnership; it would simply enforce those privately-agreed terms in case of a breach of contract). Taking the view that the vast majority of disagreements on this subject ascend from State involvement with the definition and licensing of marriage (either telling businesses and/or churches that they CANNOT recognize homosexual unions as being "marriages", or that they MUST -- which is a violation of the human right to Freedom of Association, EITHER way), my own view is that the institution of marriage should be RE-PRIVATIZED as, once more, a matter of private contract between two consenting adults (which businesses and/or churches could choose to acknowledge as a "marriage", or not, as they saw fit). I note in passing that no less an esteemed Progressive than commentator Michael Kinsley has endorsed this reasonable Libertarian approach: "If marriage were an entirely private affair, all the disputes over gay marriage would become irrelevant." -- Let's Really get the Government out of our Bedrooms, by Michael Kinsley: http://www.slate.com/id/2085127.

    As is usual in disputes between the Right and the Left, whether social or economic -- they're both wrong, and only the Libertarians make any sort of sense at all.

  • At 5:03 PM, Blogger Nathaniel Hobbs said…

    Well, that's fascinating, Stephen, but pretty much totally irrelevant to the case. The fact is that there are hundreds, if not thousands, of benefits conferred to married people by state and federal laws that are deprived to those who are not allowed to get married. So while I can totally get behind an abstract concept of 'get government out of marriage' that is an insensitive and impossible solution to the problem. Given that there is such a thing as state recognized marriage, should the government be allowed to say heterosexual unions deserve the protection and homosexual ones don't? Not according to this decision, they don't. But please, if you can come up with a reason why the utopian libertarianism applies-- in either direction-- to the reasoning of this case, fill me in.

  • At 5:18 PM, Blogger The Theonomic Libertarian said…

    "The fact is that there are hundreds, if not thousands, of benefits conferred to married people by state and federal laws that are deprived to those who are not allowed to get married....if you can come up with a reason why the utopian libertarianism applies-- in either direction-- to the reasoning of this case, fill me in." -- Nathan, I'm not sure that you can use the word "utopian" to describe a legal condition (Private Marital Contract) which was the normative legal circumstance for EVERY marriage for the entirety of human existence up until the last 150 years! It is, in fact, State-Defined-and-Licensed Marriage which is (by comparison) the untried-and-untested legal novelty -- and which is clearly creating all sorts of problems which we, as a society, never encountered with Private Contractual Marriage.

    Frankly, I'd be curious as to precisely what benefits you believe to be conferred by Stated-Licensed Marriage, which could not be conferred by Private Contractual Marriage. Inheritance issues? Write a Will.

  • At 5:22 PM, Anonymous Stephen Henkel said…

    Oops. Apparently I posted that last comment from my old (and never-updated) blog, The Theonomic Libertarian. Apologies for the confusion, it's just me -- Stephen Henkel. Mea Maxima Culpa.

  • At 5:31 PM, Blogger Nathaniel Hobbs said…

    Well, here's where I go back to my plea to actually read the decision. There are pages upon pages of findings about the social, economic, epidemiological, and psychological harms that are done to gay couples who are not allowed to marry, in addition to harms to society. What benefits do I get? I know that my wife can visit me in the hospital. I know she can inherit my property. I can file joint tax returns with her. I can make next-of-kin decisions at the hospital for her. Tip of the iceberg answers, and really easy ones off the top of my head. Stephen, read the damn decision and then come back. Seriously.

    And the term "utopian" here means as applied to the actual case at hand. Having a theoretical world where civil contract 'marriage' replaces what is now marriage does NOT resolve the problem of this case, and it puzzles me that you'd make this argument. Are you against the ruling because Magical Libertarian Marriage is better than the status quo? This makes no sense, because MLM is not happening EVEN QUICKER than SSM.

  • At 5:44 PM, Anonymous Stephen Henkel said…

    "What benefits do I get? I know that my wife can visit me in the hospital. I know she can inherit my property. I can file joint tax returns with her. I can make next-of-kin decisions at the hospital for her. Tip of the iceberg answers, and really easy ones off the top of my head. Stephen, read the damn decision and then come back. Seriously."

    Nathan, I did browse the decision already, and literally NOTHING you just mentioned represents an issue which could not be incorporated by two parties into a Private Marital Contract, with the possible exception of the Tax Filing issue (wherein it's easy enough for Government to stipulate that ANY two consenting adults in a contract of domestic union may file taxes jointly -- many Governments already recognize Common Law marriage for tax purposes, which is essentially the same thing).

    In fact, many of these issues are being addressed in the Free Market via the use of Pre-Nuptial Contracts -- the usage of which has developed precisely BECAUSE One-Size-Fits-All State-Licensed Marriage fails to address the particular needs of particular couples. I ask you -- if we ALREADY need Pre-Nuptial Contracts to address these matters (yet another evidence of the legal failure of State-Licensed Marriage), why not just allow every two consenting adults to each write their own Nuptial Contract (or use a standardized private contract) and have done with it? No State-Licensure, no problem.

    So, again, what I am proposing is not some "Magical Libertarian Marriage", but rather simply a return to the way Marriage was ALWAYS done (Private Marital Contract) throughout all of human existence until the quite-recent advent of State-Licensed Marriage, and which clearly "worked better" than the State-Licensed Marriage we have now. If you make a fundamental change (State Licensure) to a basic human institution (Private Marriage), and it doesn't work -- then you ought to go back to the method that DID work.

    Simple and straightforward, really.

  • At 5:58 PM, Anonymous Adri said…

    Actually just a minor correction on the marriage contract thing -- at one time ketubahs (jewish marriage contracts) were required for marriage (and I believe in orthodox circles still are). So in that case a legal contract was forced upon two individuals by the 'state' (however tiny & religiously centered it was) -- so the marriage wasn't necessarily just a private entity -- it was a public necessity for that particular community.... not that it matters to your debate -- just saying it's not just a modern thing - only for some groups is it modern.

  • At 6:13 PM, Anonymous Stephen Henkel said…

    Regarding ketubas -- true, certain religious communities (in this case, Orthodox Jewish) may require certain contractual arrangements in order for that Faith to recognize a given union as constituting a "marriage".

    But there's no Government requirement that any particular individual belong to any particular religious community. If a Jew doesn't like the religious contractual requirements of "Jewish Marriage" -- well, then he can become a Presbyterian if he likes, and write up his own Nuptial Contract (just as was done throughout all of human history in general, and American history in particular, until just the last 150 years).

    So, yet again we see --
    Free-Market Solutions: 1
    State-Defined "Solutions": 0

  • At 6:15 PM, Anonymous Adri said…

    No ancient Jews couldn't become Presbyterians or other Christians because they didn't exist. The only state was their tribal community -- Ketubahs have been around as legal documents a very long time. :-)

  • At 10:57 PM, Blogger Nathaniel Hobbs said…

    Here's the problem, though, Stephen. I just don't see the relevance of the contractual marriage argument to the issue. If it's between the status quo and privatizing marriage, I pick the privatized contract version, sure. But that is not what this is about. By simply getting married, I automatically accrue a huge amount of societal benefits to me and my wife. That others can, with enough lawyering and money, get many of these same benefits, does not negate the fact that this case is about whether due process and equal protection guarantees apply to gay Americans too.

    Am I missing something?

  • At 4:47 AM, Anonymous Stephen Henkel said…

    Not at all, Nathan -- and thank you for humoring my interest in discussing the philosophically-fundamental issues underlying the legal particulars of this case.

    "First Principles, Clarice -- read Marcus Aurelius. Of each particular thing, ask: What is it in itself? What is its nature?"

    I can certainly understand your argument that the Federal Government's interest in Equal Protection might supercede California's Tenth Amendment authority as a State to define and license Marriage as that State sees fit. Indeed, the very fact that States have taken up the task of defining and licensing Marriage has created the necessity for the Federal Government to examine those definitions and licensures under Equal Protection grounds.

    But I personally think that we as a society ought to recognize that Marriage is not -- by its Nature, in and of itself -- of necessity a State-defined and Licensed institution; that in fact, the Institution of Marriage far preceded the Institution of the State, and that humankind in general and America in particular got along just fine without the State definition and licensure of Marriage for thousands of years prior to the issuance of the first State Marriage Licenses.

    Examples of the legal incapacities of State-Defined and Licensed Marriage could be multiplied at length. What about "Open Marriages"? In most States, the State Definition of Marriage stipulates Adultery as a legitimate Cause for Divorce. But what if two people, for whatever reason, want to enter into a domestic contract which requires mutual commitment to exclusive and unified financial and living arrangements, but not exclusive sexual arrangements? Well, phooey -- my own attitude is that (legally, if not perhaps morally), "Ain't nobody's business if you do".

    Ergo, when the argument is raised one can obtain a variety of societal benefits by meeting the requirement of procuring a State Marriage License, and that homosexuals are unable to obtain these benefits because they are prohibited from procuring such Licensure, I cannot regard it as anything more than an ad hoc, band-aid "solution" at best for the Government to say, "Fine, we'll extend to homosexuals ALSO the requirement that they meet the State Definition of Marriage in order to qualify for marital benefits". I suppose that might be our present position in this stage of societal evolution (or devolution, I should rather say, since I regard the State Licensure of Marriage as a step backwards in the chronicle of Human Liberty), but I don't think that should be our ultimate goal.

    Rather, I think that what we ought to be saying is that homosexuals should not be required to procure a State Marriage License in order to obtain marital benefits -- and that heterosexuals shouldn't have to meet this State-invented burden, EITHER. State Marriage Licensure is simply NOT necessary for Marriage to exist; and in case of disputes between partners, it ought to be enough for the Courts to ask, "Is any sort of domestic partnership contract in effect, and if so -- what are the agreed terms thereof?"

    I understand Judge Walker's reasoning. Really, I do.

    But to employ an extreme reductio-ad-absurdum adverse example to illustrate my reservations, I will say this -- if the Government Defined and Licensed Black Slavery, I wouldn't be calling for the extension of Slavery to Whites, also, on Equal Protection grounds. I'd be advocating the abolition of all Slavery. (Although if my own beloved wife reads this post, I'm certainly going to have to explain that this is an EXTREME reductio-ad-absurdum in equating "State Marriage Licensing" with "Slavery". Heh.)

    In like manner, I seek not the extension of State Marriage Licensure to those to whom it is currently prohibited.
    Rather, I seek the abolition thereof.

    Best regards,
    Stephen Henkel

  • At 5:42 AM, Anonymous Stephen Henkel said…

    Incidentally, one clarification (though it may be unnecessary, as you may already understand what I'm saying):

    "Are you against the ruling because Magical Libertarian Marriage is better than the status quo?"

    Respectfully, I didn't say that I was against this Ruling. I guess it would be more accurate to say that I'm against the Case, itself.

    On the one hand, I'm generally extremely sympathetic to any and all Tenth Amendment argumentation, since I'd prefer to see virtually ALL social issues (abortion, drugs, prostitution, gambling, whatever) handled at the State Level rather than the Federal Level. In fact, had I been writing the case for the Defense, I'd probably have thrown out all the "moral" and "procreation" argumentation entirely (since I recognize that even to the extent that I agree with SOME of those views -- I am also aware that my partial agreement is largely Religious in nature, and I don't believe in imposing my Religion on others) and argued the Case on pure Tenth Amendment grounds -- that this is Constitutionally a State matter, not a Federal one, period-and-full-stop. I'm not saying that would have been a winning argument, mind you; just how I would have written the Case, were I arguing for the Defense.

    However, just because a State CAN do a thing under the Tenth Amendment, does not mean that it SHOULD do that thing. Under the Tenth Amendment, since under the First Amendment the Establishment of Religion was prohibited TO THE CONGRESS, not to the States -- the States DID have the Authority to maintain State-Established Churches, and in fact, until the early 19th Century or so, many States still did!

    But we, as a society, have (properly, I think) rejected the Victorian Conservative argument for State-Established Churches, in favor of the Victorian Liberal argument for universal Religious Freedom. And the Church has survived, the Gates of Hell hath not prevailed, and we've all gotten along without State Establishments of Religion just fine.

    In like manner, I think that we as a society should recognize that we can (and, in fact, did) get along just fine without the State Establishment of Marriage just fine. Were there, in effect, State Laws which stipulated "All religious persons may enjoy the legal and monetary benefits of State-Established Religion -- EXCEPT YOU PRESBYTERIANS, Stephen, we're not going to recognize YOUR religion, cause Presbyterians are all icky and gross and have cooties. Oh, and they're a danger to children, 'cause they wear their hair long and wear All Black." (Which actually was the traditional liturgical fashion of Presbyterian men prior to the 20th Century -- so I don't consider myself a rebel, just Old-Fashioned).... then I could certainly understand Judge Walker finding, "Sorry, bub: on Equal Protection grounds -- you have to extend the benefits of State Establishment to Presbyterians, also."

    But while I could understand that finding -- it's not really what I would want, as my ultimate goal. What I would WANT to see would be the abolition of ALL State Establishment of Religion.

    Thus, as an uncompromising advocate of the tenets of Classical Liberalism ("Free Markets, Free Men, and Free Minds"), I guess you could say that my biggest reservation with this Ruling... is that I don't think it's Liberal enough.

    Hope you grok what I'm saying, and my apologies for any confusion.


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