A few weeks ago, the United States Supreme Court heard two cases regarding state and federal laws pertaining to marriage as an institution of one man and one woman. In United States v. Windsor, the Court will decide whether section 3 the Defense of Marriage Act (DOMA), which prohibits the provision of federal benefits to same-sex couples, violates the equal protection clause of the Constitution.
The case surrounds the story of Edith Windsor, an elderly New York resident who married her late partner, Thea Spyer, in Toronto in 2007. When Thea Spyer passed away in 2009, Windsor inherited a considerable estate, triggering taxes of some $363,000 for Edith Windsor on the estate. Because the state of New York legally recognizes same-sex marriages performed in other jurisdictions, Windsor requested a refund of the estate taxes from the IRS. Citing section 3 of DOMA, the IRS declined.
In a related case, Hollingsworth v. Perry seeks to invalidate California’s Proposition 8, which defined marriage in California as a relationship between a man and a woman for legal purposes. After the California Supreme Court invalidated Proposition 22 and granted gays and lesbians the right to marry, citizens responded by passing Proposition 8, invalidating some 18,000 same-sex marriages.
In February 2011, the Obama Justice Department released a statement saying it had determined that sexual classifications ought to be subject to heightened scrutiny rather than rational basis review, and announced it would no longer defend DOMA, which passed in 1996 with strong bipartisan support after a court ruling in which the Hawaii Supreme Court ruled that the state must have a compelling interest in prohibiting same-sex marriage. The announcement marked the first time an administration declined to defend a federal law duly enacted by Congress. Such action may be a violation of the President’s oath to uphold and defend the laws of the Constitution, but that is a separate issue. With the DoJ declining to defend a federal law, Congress formed the Bipartisan Legal Advisory Group, appointing Paul Clement to defend the Constitutionality of section 3.
Proceeding from the administration’s established position on DOMA, in the Obama administration’s brief in United States v. Windsor, the Solicitor General writes,
“Tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles.”
However, in the same brief, Justice acknowledges that DOMA could pass rational basis test review that the Court has historically applied to laws that do not make legal distinctions pertaining to “suspect classes” such as race, gender, or alienage. Thus, the proponents of same-sex marriage are urging the Court to utilize heightened scrutiny in reviewing both Windsor and Hollingsworth, making sexual orientation a suspect class for the purposes of judicial review.
Suspect classes, historically, are those groups with an “obvious, immutable or distinguishing trait.” (City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)). The respondent, Edith Windsor, declines in her petition to “distinguish between status and conduct.” While most of society agrees that homosexuality is not a choice, to date, science has been unable to point to any biological cause of homosexual orientation. As such, courts have declined to make sexual orientation a suspect class, inasmuch as it involves a type of conduct. “Homosexuality…differs fundamentally from those [traits] defining any of the recognized suspect or quasi-suspect classes. Members of suspect or quasi-suspect classes, e.g., blacks or women, exhibit immutable characteristics, whereas homosexuality is primarily behavioral in nature.” (Woodward, 871 F.2d)
In other words, same-sex marriage advocates, joined by the Obama administration, is seeking to invalidate the state and federal laws restricting marriage to heterosexual couples on the basis that such laws violate the equal protection clause by discriminating against an entire class of people, and as such, the state has no compelling interest, or “rational basis” in limiting marriage. Furthermore, proponents point to several prior decisions by the Court that hold marriage as a fundamental right, namely, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival” Zablocki v Redhail, 434 U.S. 374, 383 (1978) and Loving v. Virginia, 388 U.S. 1, 12 (1967) (same); “marriage is ‘fundamental to the existence and survival of the race’” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 5412 (1942). While Lawrence v. Texas 539 U.S. 578 (2003) invalidated anti–sodomy laws, it did so on the basis that such laws were not applied equally to homosexual and heterosexual conduct, therefore failing to meet the “rational basis” test in violation of the equal protection clause, the Court in Lawrence made a point to say that Lawrence did not establish a right to marry a person of the same sex.
To the contrary, Baker v. Nelson, 409 U.S. 810 (1972) dismissed an appeal based on the merits of the case of the Minnesota Supreme Court ruling in which they held that the plaintiffs, two men who had filed for a marriage license in Minneapolis, failed in their reliance on the recent Loving v. Virginia decision to find a parallel, writing that “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” On October 10, 1972, the U.S. Supreme Court issued a one sentence ruling on the appeal motion, stating, “The appeal is dismissed for want of a substantial federal question.” While in most cases presented to the U.S. Supreme Court, the Court’s refusal to hear the case is not an endorsement of the decision below, Baker came to the Court through mandatory appellate review, and thus the summary dismissal is a decision on the merits of the case. As binding precedent, the Baker decision prevents lower courts from coming to a contrary conclusion when presented with the precise issue the Court necessarily adjudicated in dismissing the case. You could say that the Supreme Court has set a precedent as regards same-sex marriage.
There goes the claim that opposing the marriage of two men or two women is the same as supporting miscegenation statutes. The sexual difference is a fact rooted in biology, and no amount of obfuscation can change science.
Going back to the administration’s claim that marriage is a fundamental right, inasmuch as “prejudice may not be the basis of differential treatment under the law,” the Court may disagree. For Constitutional purposes, a right is “fundamental” only if two conditions are met: the asserted right is (a) “deeply rooted in this Nation’s history and tradition” and (b) “implicit in the context of ordered liberty”, such that “neither liberty nor justice” would exist if sacrificed (see Washington v. Glucksberg, 521 U.S. at 720-21 (1997)). No one could well argue that marriage of two men or two women is deeply rooted in the history or tradition of any known civilization, let alone our Nation’s. The Obama administration’s claim that “Tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles,” also faces a tough battle before the Court, inasmuch as the Court has used tradition as a basis for rulings as recently as their unanimous 1997 ruling in Washington v. Glucksberg, wherein the Court rejected a “fundamental right” to commit suicide, assisted or otherwise. Writing for the Court, Chief Justice Rehnquist expounded upon moral and legal traditions, stating,
Indeed, opposition to and condemnation of suicide–and, therefore, of assisting suicide–are consistent and enduring themes of our
philosophical, legal, and cultural heritages.
More specifically, for over 700 years, the Anglo American common law tradition has punished or otherwise disapproved of both suicide and
assisting suicide. In the 13th century, Henry de Bracton, one of the first legal treatise writers, observed that “[j]ust as a man may commit
felony by slaying another so may he do so by slaying himself.” The real and personal property of one who killed himself to avoid conviction and
punishment for a crime were forfeit to the king; however, thought Bracton, “if a man slays himself in weariness of life or because he is
unwilling to endure further bodily pain . . . [only] his movable goods [were] confiscated.” Thus, “[t]he principle that suicide of a sane
person, for whatever reason, was a punishable felony was…introduced into English common law.”
Clearly, there is no precedent that bars “tradition” from entering into legal reasoning. If the fact that 700 years of Anglo-American common law tradition bases suicide bans on moral approbation of society is applicable in rejecting a right to assisted suicide, surely millennia of traditional marriage is a compelling basis for continuing to legally define marriage as a union of a man and a woman. The institution of marriage is a priori to the existence of the State; in other words marriage is first and foremost a natural law institution that dates back to the earliest civilizations of man. The State extended protections to marriage in the interest of children. Inasmuch as same–sex unions are not capable of being consummated or producing offspring, it is sound legal reasoning to argue that the state has no interest in recognizing such unions as marriages.
The case of Ms. Windsor is not without merit, however. Rather than being a question of marriage, it ought to call into question the justice of arbitrary tax laws. As a rule, individuals ought to be able to bequeath property to whomever they wish without the recipient incurring taxes on the inheritance. Estate taxes are the equivalent of me knocking on my neighbor’s door shortly after the death of his mother and saying, “I know I don’t know you or your deceased mother, but I am taking half of your inheritance.” Most people not hell-bent on wealth redistribution would sympathize with Ms. Windsor, but the case of Ms. Windsor need not redefine marriage.
Perhaps the greatest question that would stem from a Supreme Court ruling finding a right to same-sex marriage is where you would consequently draw the line on what constitutes a marriage? The respondents in both Hollingsworth and Windsor base their argument on the premise that marriage exist to unite consenting adults in a committed relationship. If the state, as the Obama administration argues, has no compelling interest in preserving an institution rooted in “prejudice” and tradition (traditional marriage), how does one rationally argue for the continuation of the prohibition on marriage of more than two people? As the USCCB writes in their amicus, “One could substitute “polygamists” for “homosexuals” as that term is used in the Windsor decision and arrive at the same conclusion for the former as the Second Circuit did with respect to the latter. “In this case, all four factors justify heightened scrutiny: A) [polygamists] as a group have historically endured persecution and discrimination, B) [polygamy] has no relation to aptitude or ability to contribute to society, C) [polygamists] are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter [polygamous relationships; and D) the class remains a politically weakened minority.” (Windsor v. United States, 699 F.3d 169 181-82 (2d Cir. 2012)).
Now I am not arguing that polygamy and same-sex marriage are the same thing, but that the logic of the Second Circuit leads to the absurd. Or is it absurd at all? Many polygamists base their practice in deeply-held religious beliefs, but Congress deemed that the prohibition of polygamy trumped the free exercise rights of fundamentalists Mormons. If the federal government has no interest in limiting marriage to a man and a woman out of mere tradition, they likewise cannot discriminate against groups of three or more consenting adults. You cannot have a compelling interest in protecting one part of traditional marriage (monogamy) and not the other part (one man, one woman), especially if your case for dispensing with the latter rests on terms like “consenting adults” and “emotional fulfillment.” As recently as 2011, the Supreme Court of British Columbia uphold Canada’s ban on polygamy, writing that “the law seeks to advance the institution of monogamous marriage, a fundamental value in Western society from the earliest of times. It seeks to protect against the many harms which are reasonably apprehended to arise out of the practice of polygamy.” Referring to reports of polygamous marriage, British Columbia’s chief justice wrote further that “there is no evidence that it is a widespread or mainstream phenomenon.” Ditto same-sex marriage.
The redefinition of marriage will have widespread impact on all segments of society, including the constitutional right to religious freedom and free exercise thereof. Colorado recently skirted its ban on same-sex marriage, enacting a civil unions bill that did not include language protecting religious institutions from recognizing such unions in the operation of adoption agencies or charitable organizations. The Colorado Catholic Conference, in pushing for conscience protections, was berated by the bill’s sponsor, homosexual Sen. Pat Steadman (D-Denver), saying,
“What to say to those who claim their religion requires them to discriminate? I’d tell you what I’d say: ‘Get thee to a nunnery, and live there then. Go live a monastic life away from modern society, away from people you can’t see as equal to yourself”
Steadman told the Denver CBS affiliate that “acceptance of homosexuality by all” is why he ran for public office. In other words, we’re dispensing with freedom of religion and the first amendment. My 20-year old notion of two members of the same-sex getting legally married renders millennia of tradition obsolete and bigoted. So, folks, it’s not about marriage. The real objective is to rid society of all moral objections to it, which is why groups such as the Human Rights Campaign are pushing for laws that do not exempt religious institutions from recognizing same-sex marriages. While the Church teaches that homosexuals must be treated with the same dignity afforded to all, it does not recognize two men as a marriage. Try telling that to those who equate dissent with bigotry. When the law seeks to compel religious participation in a state-created definition of marriage, the courts will be very busy adjudicating challenges to such laws on the basis of First Amendment rights.
The basis of the argument put forth by opponents of same-sex marriage is not to deny same-sex couples the right to set up a household, share property and responsibilities, accumulate assets or care for each other. In fact, where there are obstacles to these things, the law should be changed to accommodate such arrangements. Federal law should designate domestic partners as legal claimants of their partner’s remains upon death, for instance. Nevertheless, marriage has a long and storied history as the fundamental building block of society, and ought to remain so.