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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.

Originally posted to GrafZeppelin127 on Wed Jan 15, 2014 at 11:12 AM PST.

Also republished by Kossacks for Marriage Equality and Community Spotlight.

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Comment Preferences

  •  I Don't Think Hetero Marriage Harm is Subjective (17+ / 0-)

    even. It's completely imaginary. No data.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Wed Jan 15, 2014 at 11:17:46 AM PST

  •  Thanks for this. I strongly agree. At first I (13+ / 0-)

    had a hard time reading this opinion.  I thought it was disjointed and lacked clarity.

    Then as I kept reading I realized that Judge Kern was slowly and carefully demolishing each of the irrational arguments advanced by the county clerk (state).

    I was getting aggravated when he was explaining why the class did not, in his view, warrant heightened scrutiny.

    Until I realized he was headed toward the conclusion that this case couldn't even survive rational-basis scrutiny.

    If one reads the opinion from beginning to end, the only conclusion can be that he did a good job.

    Thanks again for posting this.  Your analysis makes total sense.

    "When I use a word," Humpty Dumpty (Antonin Scalia, John Boner, or Scotty Walker (pick your favorite) said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

    by Eman on Wed Jan 15, 2014 at 11:27:55 AM PST

  •  I like it (9+ / 0-)

    I'm increasingly drawn to rational basis review rather than heightened scrutiny on a lot of equal protection cases.  Discrimination is, after all, fundamentally irrational, and it's a potent argument to say that discriminatory laws are not merely bad at serving a state interest, but that it's impossible for them to serve any interest.

    Rational review of laws aimed to counter past discrimination would also have an easier time than they do under strict scrutiny, which has led to the Courts striking some good laws.

  •  One little quibble... the Utah ruling was in (3+ / 0-)
    Recommended by:
    sfbob, VirginiaJeff, HeyMikey

    December, not September.

    I want to live in a world where George Zimmerman offered Trayvon Martin a ride home to get him out of the rain that night. -Bishop G. Brewer

    by the dogs sockpuppet on Wed Jan 15, 2014 at 11:43:31 AM PST

  •  The Witherspoon Institute's arguments (13+ / 0-)

    Are simply ridiculous.

    We can begin with this one:

    Same-sex marriage would further undercut the idea that procreation is intrinsically connected to marriage.
    I'm going to be honest about myself here: When I was a child I was very naive on matters of sex and reproduction. Also my childhood life was very sheltered; no out-of-wedlock births, no divorces in my family or among my circle of early childhood friends. So I wondered how a woman's body would know that the woman was married before it would pop out a baby.

    Any rational adult will understand that procreation is NOT "intrinsically connected" to marriage. It can just simply happen (well, consequent to a certain behavior of course, but obviously those behaviors is no more intrinsically connected to marriage than is the actual fact of reproduction). While marriage and procreation are frequently linked this is mainly a consequence of custom.

    Then we go on to

    ...undermine the idea that children need both a mother and a father...
    Like much of the rest of this, the folks at Witherspoon are taking a particular point of view and attempting to establish that as fact. Quite apart from the fact that it insults the skills of single parents, it presents a very unrealistic view of marriage and of parenting. Not a few on the Right decry the idea that mothers cease being housewives and enter the labor market. Leaving aside the reality that that is a necessity for many families these days, simply in order to avoid living in poverty, it begs the question as to why BOTH parents shouldn't be around 24/7 if the presence of both a mother and a father is that important. How they might make a living...well, that would present a challenge. But no matter so long as Witherspoon's ideology is given all due deference. And how would Witherspoon deal with situations where one or both parents is abusive? Other than perhaps to suggest that that never "really" happens and that a parent has absolute dominion over a child. I know many of these folks are fully in favor of corporal punishment.

    Next we have:

    ...further weakening the societal norm that men should take responsibility for the children they beget.
    So...what of gay male couples who become parents using surrogacy? Certainly the biological father is completely fulfilling that obligation. And once again there is a dismissal of mothers who are single due to being widowed as well as of adoptive parents, whether single or not. Should the state assign them a male spouse to a widowed mother? Suppose the father in a heterosexual relationship is incapable of taking responsibility for the children he begets? Or, as above, suppose the father is abusive?

    And finally...

    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.
    Well the latter might be the case. And it might not. Some couples insist on monogamy while others do not. Some insist on it while not practicing it. And guess what...both of those apply to heterosexual as well as gay couples. This shows that the folks at Witherspoon are living in a dream world. The "reality" they speak to does not exist in the way they suggest and perhaps never did.

    When it comes right down to it, most of the arguments against marriage equality, if not all of them, impose a higher moral standard on same-sex couples than the state imposes on heterosexual couples.

    •  Most of their arguments (12+ / 0-)

      would be better used for outlawing divorce rather than same-sex marriage.  After all, doesn't divorce undermine the idea that straight couples' children need both parents?

      But of course they'd never do that, since divorce is a right that they might want to make use of themselves, if they haven't already.

      I shall die, but that is all that I shall do for Death; I am not on his payroll. - Edna St. Vincent Millay

      by Tara the Antisocial Social Worker on Wed Jan 15, 2014 at 05:28:39 PM PST

      [ Parent ]

    •  The original purpose of marriage, from the Romans (3+ / 0-)
      Recommended by:
      TheDuckManCometh, gizmo59, sfbob

      on, was the preservation of wealth in a family line.  (And, of course, the Church forbade marriage of the clergy in the late middle ages---didn't want to dilute the church's wealth by having it pass INTO family lines.)

      Therefore, the conservative view should rightly be that same-sex couples should be encouraged to procreate (by any means, including adoption) in order to fulfill that wealth preservation mandate.

      A bit OT, I know, but supporters of traditional marriage are supporters of wealth, and likewise mergers of corporations, who (corps are people, my friend, so they get 'who') are champions of wealth consolidation.  Even if said corporations are of the same sex.  How you tell what sex a corp is?  I really don't know, but I suspect you need to turn them upside down and examine the nasty bits.

      And corporations do procreate to pass on their wealth by having children (wholly-owned spinoff divisions) or by adopting them (buy outs).  The funny things is that these parents hardly ever die.

      Not entirely snark, but as convincing as some of the Witherspoon arguments.

      Real plastic here; none of that new synthetic stuff made from chicken feathers. By the morning of 9/12/2001 the people of NYC had won the War on Terror.

      by triplepoint on Thu Jan 16, 2014 at 05:48:36 AM PST

      [ Parent ]

  •  Thanks for writing this up. (6+ / 0-)

    You put this into such a clear, logical, fashion that the conclusion of the ruling became simply obvious. It is a true work of art, and I'm glad I spent time to read it.

    I've heard it said that the law has an intrinsic beauty, much like mathematics. This is the first time that I would agree with that statement. Thank you.

  •  As a queer parent, (10+ / 0-)

    I have no trouble pointing to ways that my child was directly, tangible harmed by not allowing Packrat and me to get married.  Which pretty much kills the "We must forbid same-sex marriage because babies" argument.

    I shall die, but that is all that I shall do for Death; I am not on his payroll. - Edna St. Vincent Millay

    by Tara the Antisocial Social Worker on Wed Jan 15, 2014 at 05:25:09 PM PST

  •  Awesome analysis (1+ / 0-)
    Recommended by:

    So these district cases need to be stacked up versus Sevcik v. Sandoval, the Nevada case that was decided in the favor of the State.  Why are its conclusions different, and in light of UT and OK, are they more or less likely to stand firm in the light of District Court of Appeals?

    Minority rights should never be subject to majority vote.

    by lostboyjim on Wed Jan 15, 2014 at 05:46:53 PM PST

    •  The difference is simply that the Nevada (2+ / 0-)
      Recommended by:
      VirginiaJeff, gizmo59

      district court in 2012 found that the justifications rejected by the Oklahoma court were (1) legitimate interests, and more importantly, (2) excluding gay couples from marriage would further those interests. The court even provides us with this heaping helping of pure nonsense:

      Should [the] institution [of marriage] be expanded to include same-sex couples with the state's imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.
      911 F. Supp. 2d at 1015-16 (emphasis added).

      The Oklahoma court, on the other hand, found -- I believe correctly -- that that ridiculous parade of horribles is not, in any sense, "conceivable."

    •  Note also that the Nevada decision was (1+ / 0-)
      Recommended by:


  •  Any chance the UT and OK appeals will be combined? (2+ / 0-)
    Recommended by:
    blueoasis, VirginiaJeff

    The UT appeal is already on schedule, for "expedited review" at the 10th Circuit. Can anyone tell me what the chances are that these two cases will be heard together since both states are under the jurisdiction of the 10th? (As you can tell, I know nothing about appeals court procedures...) ... :-|

  •  Nice analysis (2+ / 0-)
    Recommended by:
    blueoasis, VirginiaJeff

    To call Nino's argument "irrational" is to name the elephant in the room.

    The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness. -- John Kenneth Galbraith

    by Kangaroo on Wed Jan 15, 2014 at 09:08:54 PM PST

  •  Conservatives should LOVE same-sex marriage (5+ / 0-)

    because it increases the likelihood that a person who might otherwise be alone will have someone they can turn to besides the government in times of need.

    Married persons take care of each another, "in sickness and in health."  If one loses a job or becomes ill, there's a good chance the other will still have their job and their health.  That means there's less chance of default on loans or bankruptcy, and less chance that a person would end up homeless and in need of state aid.  If one person becomes ill, the other can nurture them and help keep up their affairs.

    I see nothing but good in letting two people make such a commitment to love and nurture each other.

    I'm a Christian, therefore I'm a liberal.

    by VirginiaJeff on Thu Jan 16, 2014 at 12:15:10 AM PST

  •  I love it (0+ / 0-)

    The constitutional amendment movement that swept many states (including mine - Florida) was to preclude some liberal judge delaring that gay marriage was legal. Now you have judges declaring that their constitutional amendments are illegal. That was a lot of time and money spent in vain.

    The care of human life and happiness, and not their destruction, is the first and only object of good government. - Thomas Jefferson

    by deebee on Thu Jan 16, 2014 at 07:21:46 AM PST

    •  State constitutions can't be inconsistent with (2+ / 0-)
      Recommended by:
      HeyMikey, deebee

      the federal Constitution, at least to the extent of protecting individual liberties. States can provide more freedom, not less. That's why none of the lawsuits trying to strike down the Affordable Care Act actually argued that it constituted a deprivation of liberty, even though that was a large part of the political rhetoric. If they had, and succeeded, Romneycare would have been struck down too. A state can't interfere with liberty interests that the federal Constitution protects.

      The fact that opponents of equality are calling for a federal Constitutional amendment either "defining" "marriage" or prohibiting the states from sanctioning or recognizing same-sex marriages, illustrates that they must understand this key principle: The federal Constitution, as it is, requires marriage equality.

  •  scrutiny level(s) in the Prop 8 case (1+ / 0-)
    Recommended by:

    Judge Vaughn, in the California Prop 8 case, took a belt-and-suspenders approach, deciding both that laws against marriage equality should be reviewed under "strict" scrutiny, and that they do not survive even "rational basis" scrutiny. See especially pages 116-17, 123-35: [PDF]

    "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

    by HeyMikey on Thu Jan 16, 2014 at 11:46:49 AM PST

  •  Thank you! (1+ / 0-)
    Recommended by:

    This is a wonderful analysis and I appreciate the time you devoted to reading the opinion and parsing it for us.

    If you hate government, don't run for office in that government.

    by Bensdad on Thu Jan 16, 2014 at 12:08:51 PM PST

  •  I once debated an old college friend who turned (0+ / 0-)

    religious right and yet is a scientist..strange combo , odd chap, ...who used the procreation argument. I told him...

    But I was unable to have children and had a hysterectomy prior to marriage, so are you saying I should not have been allowed to marry?

    He told me I had a compelling argument and he had to admit my point was very good.  He said he was at my wedding and he was so happy for me.  A few years after we had this debate, sadly his wife of 30 yrs passed away. He remarried less than 2 yrs later and his wife is post menopausal, they are not having more children, he is a granddad by now...she has no kids..he said ...

    I have to admit the point you made now applies to me and my new wife and I am beginning to think differently on this topic but I wrestle with it as a Sunday school teacher and Evangelical but I am coming around slowly but surely to the idea of marriage equality as long as church elders can still say Yes or No to any couple asking to be married there and for any reason.

    I told him, a Church said no to marrying me and my husband and we are a straight couple because my husband was divorced so hell yes, churches are saying no to a lot of couples and nothing is being said about that for decades now...couples leave that church and marry elsewhere and go to church someplace else. If that is your only concern about marriage equality, that is a non issue as churches have been refusing to marry all kinds of couples since the beginning of time, I am sure.

    Keystone Liberals on Twitter @ KeystoneLibs , Join PA Liberals at

    by wishingwell on Fri Jan 17, 2014 at 03:11:30 AM PST

    •  I forgot to block quote what my friend said... (0+ / 0-)

      It is the paragraph that begins with ....I have to admit.

      Keystone Liberals on Twitter @ KeystoneLibs , Join PA Liberals at

      by wishingwell on Fri Jan 17, 2014 at 03:14:11 AM PST

      [ Parent ]

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