The best thing about the Utah marriage decision that came down in December was that the judge totally pwned Justice Antonin Scalia's passive-aggressive dissents in Lawrence v. Texas and U.S. v. Windsor. The best thing about the Oklahoma marriage decision that came down yesterday is much more fundamental.
Many years ago, when someone first suggested the idea of "gay marriage" to me, I remember my first thought after pondering it for a long moment was, "Why not?" I've been asking myself and everyone else that same question ever since, and have neither found nor received a good answer. And by a "good answer" I mean one that does not boil down to subjective, irrational bias or prejudice against gay people or homosexuality, or about What Marriage Is™, including (but not limited to) individual or systemic religious "beliefs."
The best (or worst, depending on one's perspective) effort I've seen to concoct a rational justification for excluding gay couples from the institution and status of civil marriage (shorthand, "exclusivity") came from a commenter on HuffPo (follow-up here). This person essentially argued that (1) the state has a compelling interest in promoting the procreation of children; (2) only hetero couples can procreate, which makes them "unique" and worthy of "special" treatment, benefits and protection by and from the state; (3) hetero couples also deserve compensation for bearing most of the burdens of child birthing and rearing on behalf of society; and that (4) exclusive access to "married" and "spouse" status (i.e., reserving that "special" status for them alone) is an appropriate reward, and appropriate compensation, for hetero couples' having the hypothetical potential to breed.
Yes, it was ugly and horrifying. This person even compared procreation to military service, and marriage to veterans' benefits, analogizing that non-veterans are not rendered "second-class citizens" by the fact that they are ineligible for veterans' benefits, thus gay people are not rendered second-class citizens by being ineligible for marriage.
But let's not go back there.
Any time I talk about marriage equality, I try to start from the premise that there is simply no good reason not to allow same-sex couples to marry, and that in a free country, it is the state that must justify the restriction of individual liberty and personal choice, not the person or people demanding their rights who must prove that they deserve them or that granting them would somehow benefit society. And in practically every discussion, the legal/judicial concepts of "heightened scrutiny," "strict scrutiny," "compelling state interest" and "narrowly-tailored" inevitably come up. Without getting into a lengthy dissertation about civil rights law, these are the phrases that indicate the standards the state must meet in most civil rights cases, be they Equal Protection, Due Process, or some combination of both. Usually, the state has to show either an important or compelling interest justifying the restriction, and also show that the restriction is intended and likely to actually further that specific interest.
The lowest, mildest level of scrutiny that a court will apply to a challenged statute or state constitutional provision is called "rational-basis" review. As long as there's some reason -- it doesn't even have to be a good reason, or the stated/intended reason -- for the state to want the restriction, and some reason to believe that the restriction might serve that purpose, then the law passes Constitutional muster. Very, very few laws are ever struck down under rational-basis review.
Like many of the other judicial opinions striking down restrictions on marriage rights, U.S. District Judge Terence C. Kern's decision in Bishop v. U.S. gets a lot of things right and does a very good and thorough job of explaining them. Bishop is a pure Equal Protection case; the "fundamental right to marry" established in Loving v. Virginia does not come into play, let alone the "right to marry" a person of the same gender, which the court never examines. Interestingly, the court defines the class being discriminated against by the subject provision of the Oklahoma Constitution as same-sex couples rather than homosexual individuals; this becomes highly important to the court's Equal Protection analysis.
Sexual orientation is not, i.e. has never been held by the Supreme Court to be, a "suspect" or "protected class" for whom heightened or strict scrutiny is warranted in a discrimination case under the United States Constitution. By defining the class as couples rather than individuals, the court in Bishop forecloses the argument that marriage exclusivity constitutes gender discrimination by, e.g., restricting individuals' choice of spouse to one gender and not the other. The defining characteristic of these couples is their sexual orientation. See Slip Op. at 42; see also Slip Op. at 42-49. Hence, the class is not entitled to heightened scrutiny and the restriction is subject only to rational-basis review. Slip Op. at 49-51.
Which brings us to the best part. While it may at first glance seem like a loss for the plaintiffs and other advocates of equality to be told they're not entitled to heightened constitutional protection, the decision to apply only rational-basis review to a restriction that discriminates against couples turns out to be a huge win for equality. For one, it has the minor incidental effect of foreclosing the silly argument that "gay people have just as much right to marry someone of the opposite sex as anyone else." If what's at issue is a class of couples -- and by extension the rights of couples and discrimination against a particular group of couples -- then a single individual's right to marry is neither here nor there. This case is not about whether an individual has a right to marry a person of either gender; it's about whether a couple has the right to be married on the same terms as other couples.
By now the best part should be obvious: Excluding same-sex couples from civil marriage does not pass rational-basis review. This is a very, very big deal. Judge Kern essentially acknowledged and spelled out what many of us have been saying for years: There is simply no good, sound, rational, objective, defensible reason to deny a same-sex couple the civic/legal status of "married," each the other's "spouse," where that same status would be granted to a similarly-situated opposite-sex couple. More importantly, none of the various purported governmental and societal interests and goals articulated by opponents of equality, no matter how reasonable or well-intentioned they may sound, is or would be furthered by reserving "married"/"spouse" status for opposite-sex couples only, and there is no reason to believe that it would.
The court's dismantling of these justifications begins on page 53 of the opinion. Briefly:
* Promoting morality - Under Lawrence, "moral disapproval" alone is not a legitimate state interest that justifies discrimination. Hence "promoting" one particular "moral" view of What Marriage Is™ is not a rational basis for the restriction. See Slip Op. at 53-55.
* Encouraging Responsible Procreation/Steering Naturally Procreative Couples to Marriage - The court addresses these in tandem, finding in essence that there is essentially no link between excluding gay couples from marriage and "encouraging" this or "steering" that. As I pointed out to my friend over at HuffPo, these are justifications for marriage, not for exclusivity. All of the virtues of hetero marriage and all of the good things we want it to do for us, for married people and for society, will continue unabated whether same-sex couples are allowed to marry or not. The court here also makes the incredibly important point that it is unreasonable to exclude same-sex couples from marriage on this basis when similarly-situated non-procreative (infertile, elderly, &c.) opposite-sex couples are not excluded for the same reason. See Slip Op. at 56-61.
* Promoting the “Optimal” Child-Rearing Environment - Again, the court finds no rational link between the restriction and the stated goal, even assuming the stated goal makes sense in the first place. There is simply no way to show, and thus no reason to believe, that excluding same-sex couples from marriage will "promote" anything, or that lifting the exclusion would prevent or undermine the desired goal. And, again, opposite-sex couples are in no way required to ensure the state that they will provide an "optimal child-rearing environment," regardless of what that means, as a condition or qualification for marriage. See Slip Op. at 61-64.
* Negative Impact on Marriage - This goes down for the same reasons. It's subjective, it's arbitrary, and "the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements." Slip Op. at 65; see Slip Op. at 64-65. A recurring theme in the court's rejection of these purported justifications is that they all hold same-sex couples to standards to which the law does not hold, and has never held, opposite-sex couples. They implicitly require same-sex couples to justify their relationships in ways that opposite-sex couples are not and have never been obligated to do.
One thing the court touches on here that I might like to have seen discussed more fully, is the following excerpt from a Witherspoon Institute article, Marriage and the Public Good: Ten Principles (2008), emphasis mine:
[T]here remain even deeper concerns about the institutional consequences of same-sex marriage for marriage itself. Same-sex marriage would further undercut the idea that procreation is intrinsically connected to marriage. It would undermine the idea that children need both a mother and a father, further weakening the societal norm that men should take responsibility for the children they beget. Finally, same-sex marriage would likely corrode marital norms of sexual fidelity, since gay marriage advocates and gay couples tend to downplay the importance of sexual fidelity in their definition of marriage.Setting aside how offensive this is, the highlighted phrases are revealing in that they all concern what and how other people, or people in general, think. Looking at this and at the justifications proffered in the Bishop case, the pattern that emerges is that certain "ideas" need to be "promoted," and that certain other "ideas" that we don't want to "undermine" would be undermined. At the end of the day, opposition to marriage equality boils down to controlling what and how people think about things, like marriage and family and sexuality and so forth. If we allow same-sex couples to marry, then people might think things that we don't want them to think, or have "ideas" that we don't want them to have. Opponents of equality are essentially demanding that the law "promote," favor, protect and reinforce certain thoughts, while disfavoring, limiting and curtailing certain other thoughts. The law cannot do that.
The Bishop court addresses this to some degree, noting repeatedly that "moral disapproval" is not a reason to deny civil rights to an entire class of people (viz., couples) when no rational, objective justification can be found. See Slip Op. at 65 ("Exclusion of just one class of citizens from receiving a marriage license based upon the perceived 'threat' they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class.") Wanting people -- including oneself -- to think or feel a certain way about certain things is simply not by itself a reasonable justification for any law.
As noted above, the linchpin of this decision is the definition of the class as one of couples rather than individuals. It remains to be seen if the Circuit Courts of Appeals or the Supreme Court will follow suit. Granted, I think the Constitution requires marriage equality no matter how the courts define the class, because as the Bishop court articulated so well and so clearly, there is simply no reason to not have it. But we'll see where this leads.
My original question, from all those years ago, remains unanswered.