Getting to the heart of the same-sex marriage matter
This is one of those posts where I'm not really certain why I'm writing this. I'm fairly convinced I'm right, but "I'm right! Listen to me!" isn't the point of this. I suppose, like too many bloggers, I wish I were writing an op/ed piece somewhere. Would that it were so.
But I guess I'm going to write about this anyway. Perhaps if you find yourself discussing the legal issue of same-sex marriage, this may prove useful to you, especially if what you want to do is convince and not just bicker.
As long as I'm telling you how to argue, please note: this isn't written as a way to make The Other Guys feel lousy. If you want to do that, watch MSNBC and read some catty left-wing blogs. This is about creating an argument that hopefully comes to a conclusion where a previously dedicated supporter of banning same-sex marriage says, "Well, I still don't like gay marriage, but I see your point."
[EDIT: added a bit about civil unions.]
Feelings are a bad basis for legal arguments
The most common arguments in favor of same-sex marriage are flawed: people should be able to feel good about their sexual orientation; people shouldn't be made to feel like second class citizens; this is about freedom to love. [FOOTNOTE 1] I think these are valid points by themselves, but they have little or no legal standing, and when you talk about rights legal standing is the only thing that counts.
Whether you have a right feel good about yourself or like a first-class citizen, or a right to love, are tenuous arguments at best. The implications of such an argument would be that any law could be challenged and struck down solely on the basis that it might make someone feel not as good about themselves (e.g. sex offender registration) or make someone feel like a second-class citizen (e.g. affirmative action).
Arguments about love can easily be encumbered with all sorts of questions along the lines of What prevents you from loving? What laws say you can't love? After all you don't have to marry to love, nor do you have to love to marry. There are answers to those questions but they all lead to a murky discussion about what qualifies as a constitutionally protected expression of love and suddenly we're in a tedious debate about free speech and distant from what this is all about: the legal institution of marriage.
Unfortunately, talking about love and dignity is easy - these are things we all relate to and understand without having to think too hard about them. There's no establishing what love is, and everybody grasps dignity.
Talking about how laws work is more of a challenge, but here's something we can all get behind (especially the libertarian-minded conservatives): if the government is going to make and enforce a law that regulates human behavior, that law must adhere to the constitutional principles we all enjoy. That's slightly harder to understand than love and dignity, but there isn't anybody that disagrees with it.
And that's the decisive difference.
Making the airtight, incontrovertible case in favor of same sex marriage
There are two things that are absolute in the United States legal system that make this case: due process, and equal protection before the law.
Due process requires that all laws must comply with the constitution, preventing a legislature or majority of citizens from enacting "any process which might be devised." [FOOTNOTE 2] This is the key, fundamental principle which holds governmental power in check. In order for it to work and remain binding it must be absolute, applying to all laws - not some here but not others there. The constitution makes clear that all laws and legal institutions are bound by the following: "[No state shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." [FOOTNOTE 3]
This brings us to equal protection before the law. This clause makes clear that all laws equally bind and empower all citizens, regardless of class. No church is less protected by the first amendment; free speech does not vary from person to person; everyone gets the same driver's license. This not so much a limiter on governmental power as much as an unbreakable requirement that all laws must be uniformly applied, all rights uniformly respected, and all legal institutions uniformly accessible.
That last one is particularly meaningful. The age of majority is a legal institution, and equal protection means that once you're 18 that institution is bestowed upon you, period. Citizenship is another legal institution, and its meaning and empowerment is universal to all United States citizens. It is due process and equal protection that make these things permanent, abiding, and unbreakable for all.
This debate is about the legal institution of marriage, and all the rights, privileges, and obligations that belong to it. In the landmark Loving v. Virginia decision the Supreme Court held, "Marriage is one of the 'basic civil rights of man.' " [FOOTNOTE 4] People who enter the legal institution of marriage are bound by thousands of rights, privileges, and obligations: power of attorney; protection from testimony; visitation; inheritance; health and funereal decisions; custodial rights; co-ownership of property and debts; residency privileges; tax status; and hundreds of others. States are bound by the constitution to recognize the status of marriage of other states - this is what prevents deadbeat spouses from moving to another state and claiming the marriage doesn't count there.
Marriage is thus a major legal institution with extraordinary benefits, subject to the unbreakable legal foundations of due process and equal protection. Due process and equal protection are the things that make marriage unswervingly available to all, utterly independent of individual or religious objections. Former spouses, parents, ex-boyfriends and -girlfriends, church doctrine, felony records, old age and sickness and citizenship and prejudice: none of these are ever allowed to prevent equal and abiding access to the legal institution of marriage.
The point
To deny a class of people access to this institution is to deny them the equal protection of those extraordinary benefits, privileges, and obligations, and it is to do so in the face of a clear, unequivocal definition of marriage as a fundamental right. Denial of such rights is a profound legal issue that makes the question of who feels good about themselves completely trivial in comparison.
There is nothing ambiguous about equal protection and due process in this case, and thus it is unambiguously a legal necessity that marriage rights not be denied on the basis of gender.
Considering some counterarguments
There is only one counterargument that I would give serious consideration: first, the state has an obligation to maintain the public interest which overrides equal protection, e.g. in the cases of minors, already existing marriages, and blood relatives; second, civil unions are an acceptable solution. I think both of these fail to meet muster, but the underlying assertions are themselves valid and thus deserve consideration.
Specious counterarguments that deserve little or no consideration
The main reason the following should not be taken seriously is that they aren't legally binding; in particular, they don't come anywhere near the profound measure necessary to supersede due process.
FOOTNOTE 1: Keith Olbermann of MSNBC makes an eloquent argument based this premise. While I applaud the sentiment, it falls far short of making a convincing legal argument. It's much too easy for someone to say, "Sorry, I don't think that homosexuality counts as love." I think they're wrong, but the point is that as long if your argument is premised on what love is and isn't, you're only going to convince people who already agree with you. [BACK]
FOOTNOTE 2: Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856). The full quote reads, "it was not left to the legislative power to enact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will." I've extended the meaning of this passage to apply to simple majorities of citizens. Due process is the simple answer to the question, "We're a democracy, so why can't a majority do what it wants to?" [BACK]
FOOTNOTE 3: United States Constitution, Fourteenth Amendment. Nearly the same passage occurs in the Fifth Amendment; the Fourteenth makes clear that this applies to the States and, by extension, any body of legislation. [BACK]
FOOTNOTE 4: Note that a fuller quote of the Loving decision is:Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival… To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
In the unlikely event that someone were to quote this passage and claim that a very narrow reading restricts its applicability to laws pertaining to race, I answer: the decision struck down laws based on race, while also establishing that the State cannot deny marriage on any "classifications…so directly subversive to the principle of equality at the heart of the Fourteenth Amendment." To argue that Loving has no standing in the question of same-sex marriage is to argue that equal protection is not extended to homosexuals. [BACK]
FOOTNOTE 5: The Supreme Court writes in Loving: "There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification." I submit that the passage does not hinge on the word racial - any invidious discrimination does not constitute a legitimate overriding purpose. [BACK]
FOOTNOTE 6: Gallup. [BACK]
FOOTNOTE 7: Ibid. [BACK]
But I guess I'm going to write about this anyway. Perhaps if you find yourself discussing the legal issue of same-sex marriage, this may prove useful to you, especially if what you want to do is convince and not just bicker.
As long as I'm telling you how to argue, please note: this isn't written as a way to make The Other Guys feel lousy. If you want to do that, watch MSNBC and read some catty left-wing blogs. This is about creating an argument that hopefully comes to a conclusion where a previously dedicated supporter of banning same-sex marriage says, "Well, I still don't like gay marriage, but I see your point."
[EDIT: added a bit about civil unions.]
Feelings are a bad basis for legal arguments
The most common arguments in favor of same-sex marriage are flawed: people should be able to feel good about their sexual orientation; people shouldn't be made to feel like second class citizens; this is about freedom to love. [FOOTNOTE 1] I think these are valid points by themselves, but they have little or no legal standing, and when you talk about rights legal standing is the only thing that counts.
Whether you have a right feel good about yourself or like a first-class citizen, or a right to love, are tenuous arguments at best. The implications of such an argument would be that any law could be challenged and struck down solely on the basis that it might make someone feel not as good about themselves (e.g. sex offender registration) or make someone feel like a second-class citizen (e.g. affirmative action).
Arguments about love can easily be encumbered with all sorts of questions along the lines of What prevents you from loving? What laws say you can't love? After all you don't have to marry to love, nor do you have to love to marry. There are answers to those questions but they all lead to a murky discussion about what qualifies as a constitutionally protected expression of love and suddenly we're in a tedious debate about free speech and distant from what this is all about: the legal institution of marriage.
Unfortunately, talking about love and dignity is easy - these are things we all relate to and understand without having to think too hard about them. There's no establishing what love is, and everybody grasps dignity.
Talking about how laws work is more of a challenge, but here's something we can all get behind (especially the libertarian-minded conservatives): if the government is going to make and enforce a law that regulates human behavior, that law must adhere to the constitutional principles we all enjoy. That's slightly harder to understand than love and dignity, but there isn't anybody that disagrees with it.
And that's the decisive difference.
Making the airtight, incontrovertible case in favor of same sex marriage
There are two things that are absolute in the United States legal system that make this case: due process, and equal protection before the law.
Due process requires that all laws must comply with the constitution, preventing a legislature or majority of citizens from enacting "any process which might be devised." [FOOTNOTE 2] This is the key, fundamental principle which holds governmental power in check. In order for it to work and remain binding it must be absolute, applying to all laws - not some here but not others there. The constitution makes clear that all laws and legal institutions are bound by the following: "[No state shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." [FOOTNOTE 3]
This brings us to equal protection before the law. This clause makes clear that all laws equally bind and empower all citizens, regardless of class. No church is less protected by the first amendment; free speech does not vary from person to person; everyone gets the same driver's license. This not so much a limiter on governmental power as much as an unbreakable requirement that all laws must be uniformly applied, all rights uniformly respected, and all legal institutions uniformly accessible.
That last one is particularly meaningful. The age of majority is a legal institution, and equal protection means that once you're 18 that institution is bestowed upon you, period. Citizenship is another legal institution, and its meaning and empowerment is universal to all United States citizens. It is due process and equal protection that make these things permanent, abiding, and unbreakable for all.
This debate is about the legal institution of marriage, and all the rights, privileges, and obligations that belong to it. In the landmark Loving v. Virginia decision the Supreme Court held, "Marriage is one of the 'basic civil rights of man.' " [FOOTNOTE 4] People who enter the legal institution of marriage are bound by thousands of rights, privileges, and obligations: power of attorney; protection from testimony; visitation; inheritance; health and funereal decisions; custodial rights; co-ownership of property and debts; residency privileges; tax status; and hundreds of others. States are bound by the constitution to recognize the status of marriage of other states - this is what prevents deadbeat spouses from moving to another state and claiming the marriage doesn't count there.
Marriage is thus a major legal institution with extraordinary benefits, subject to the unbreakable legal foundations of due process and equal protection. Due process and equal protection are the things that make marriage unswervingly available to all, utterly independent of individual or religious objections. Former spouses, parents, ex-boyfriends and -girlfriends, church doctrine, felony records, old age and sickness and citizenship and prejudice: none of these are ever allowed to prevent equal and abiding access to the legal institution of marriage.
The point
To deny a class of people access to this institution is to deny them the equal protection of those extraordinary benefits, privileges, and obligations, and it is to do so in the face of a clear, unequivocal definition of marriage as a fundamental right. Denial of such rights is a profound legal issue that makes the question of who feels good about themselves completely trivial in comparison.
There is nothing ambiguous about equal protection and due process in this case, and thus it is unambiguously a legal necessity that marriage rights not be denied on the basis of gender.
Considering some counterarguments
There is only one counterargument that I would give serious consideration: first, the state has an obligation to maintain the public interest which overrides equal protection, e.g. in the cases of minors, already existing marriages, and blood relatives; second, civil unions are an acceptable solution. I think both of these fail to meet muster, but the underlying assertions are themselves valid and thus deserve consideration.
- The state has an obligation to maintain productive restrictions on marriage
There are cases in which individuals are refused access to marriage: siblings, minors, those that are already married. These examples don't really serve as direct comparisons (minors aren't allowed to marry because they aren't considered legally independent; already existing marriages create a direct legal conflict; and marriage between blood relatives can lead to inbreeding), but they do establish that the state has legitimate reasons to govern marriage.
My answer here is that the state must demonstrate a clear reason for doing so. Due process, in the words of the Supreme Court, prohibits the enactment of "any process which might be devised" - a law is only binding when it doesn't conflict with the existing framework of rights. A vivid example of how this works is in Loving v. Virginia in which the Supreme Court unanimously struck down all laws which prohibit marriage between differing races. Prior to this 1967 case, segregation of races was held to be a reason to deny marriage, but the state has no legitimate interest in segregation.
Thus my response to this counterargument is: the state has no legitimate interest in regulating sexual orientation. Now I'm certain that there will be people out there who will argue that, but if the only argument they have going for them is their own bizarre prejudice and extraordinary arrogance, I think it's pretty much wrapped up.
This brings up the issue of procreation, though: many people - in particular, the defense of the Perry v. Schwarzenegger case in federal court that challenges the constitutionality of California's Proposition 8 - claim that the state's legitimate regulatory interest is in promoting procreation. Note, for example, that a fuller quote of the Loving v. Virginia decision is (with emphasis added): "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival…" which would suggest that right of marriage is solely predicated on the survival of the human race.
Such an argument hangs on a delicate thread, of course: we aren't exactly in a crisis of underpopulation, and the urgent need for the State to grasp for such a dramatic remediation as denying an entire class of people the right to marry seems dramatically absent. The thing that renders this argument devoid of any merit, though, is the complete lack of compatible statutory or case law: the ability and intent to procreate has never been a requirement for marriage, nor is inability or refusal to procreate considered grounds for the State to dissolve a marriage, nor are fertile couples prohibited from adoption, nor are unmarried parents required to marry. All of these remedies are patently absurd.
It is possible that a person might grasp for a defense of this, "The State is not required to enact any of these laws, and thus the lack of the State's action in these cases does not make it any less pressing." What's clear here, though, is that the State has chosen to enact the least possibly effective law with the most egregious effect - in other words, this argument does nothing but reveal the seething prejudice that lies behind it. This is not only illegal [FOOTNOTE 5], but shameful.
- Civil Unions are equal to marriage: problem solved!
It says so right there in the law, doesn't it? Equal equal equal. Nothing more to worry about, right? Nope: sending one group of people into civil unions excludes them from both the statutory and common law protections offered to marriages.
Aside from the fact that the doctrine of separate but equal was disposed of decades ago, civil unions are allowances for specialized contracts. This makes them not statutorily identical to marriages. "Statutorily identical" is one of those phrases that is going to make people's eyes glaze over, so let's look at this is way: marriage is not a contract, and therefor it's not governed by the same set of laws. Contract law is has its own set of legal procedures and regulations and so on, and thus the statutes (i.e. laws) that govern them differ substantially. Writing a law that says, "No really, they're the same thing," doesn't make it so, just like a law that says, "The sky is not blue, but pink," doesn't get there either.
This is made painfully clear when you examine the common law differences: when a legal dispute arises that intersects the legal institution of marriage (e.g. tax issues, compelled testimony, inheritance, insurance coverage) there are two things that are binding. First is statutory law - what the law says in its black and white form. The second - and in the case of marriage, arguably more important - is common law, sometimes called case law, i.e. precedent set by the courts.
The case law of marriage applies only to marriage - not to contracts, even if the legislature says otherwise - thanks to due process. This is made painfully clear when a couple that has a civil union in, say, Vermont travels to Idaho and then expects all the rights and privileges of marriage. The Idaho hospital will insist that only family members can make medical decisions, and no Vermont contract changes that. "Spouse" and "contractual partner" differ substantially in this regard. You can't sign a contract with someone in Japan and thus provide them with residency in the United States. You can't sign a contract with someone and thus avoid being compelled to testify against one another. You can't sign a contract that allows you to file as married on your federal taxes.
The point here is that contracts cannot bestow access to the institution of marriage. This is what prevents you from contractually marrying a corporation, or a group of people contractually marrying each other.
Civil unions are not, never have been, and never can be equal to marriage.
Specious counterarguments that deserve little or no consideration
The main reason the following should not be taken seriously is that they aren't legally binding; in particular, they don't come anywhere near the profound measure necessary to supersede due process.
- Marriage has traditionally been between one man and one woman
Aside from the fact that this isn't true - a serious inquiry into the history of marriage in Western culture reveals a surprising variation on the topic - tradition doesn't trump law. Slavery was a tradition, so was segregation. There was a centuries-old tradition of prosecuting witches, to say nothing of the tradition of excluding women and non-land owners from the vote. When tradition conflicts with due process, tradition loses completely and without exception.
- Our laws are based on Judeo-Christian traditions
Again, even if this were true, this doesn't trump due process. This is why you can't forbid someone from working on the Sabath, or make it illegal to eat shellfish, or make it a crime to criticize your father, or you know, require people to go to church. A law based on nothing but religious doctrine is illegal.
- Churches will be forced to perform same-sex marriages
No, they won't, and there is no rational reason to think so. Churches have never been compelled by the State to perform any marriage, and there is no reason to believe it will suddenly start happening now. (Note: some preachers have recently claimed that their church has been forced to accommodate homosexuals. These cases deal with churches that accept government subsidies for things like running homeless shelters, and then refuse to conform to non-discrimination policies. The government has indeed threatened to withhold funding, but in no case has a church been otherwise compelled to change its behavior.)
- Homosexuality will be taught to children in public schools
No, it won't, and there is no rational reason to think so. This claim is so bizarre that I can't really think of a good counterargument. This is like saying that because people who have committed felonies are allowed to marry, children are taught how to commit felonies in public school.
- People will marry their dogs/siblings/shrubberies/corporations
No, they won't - primarily because things like dogs and shrubberies and corporations lack the legal standing. That might seem like a fine point to many people, so the simple version is: it's not possible for the same reason that dogs and shrubberies and corporations can't get a driver's license.
So really, the only thing that's even a remote cause for conversation is some version of adult human. And the answer here is, it won't happen because that's not in the scope of the law. Claims that A will lead to B will lead to Z are frivolous - understandable, but frivolous. What's at work here is the assumption that marriage used to be one thing, and then that gradually changed, and then once gradual change happened it kept happening, and if someone doesn't stop it from changing it's just going to become increasingly and intolerably lax and eventually computers will marry tornados. (Note that part of my argument gives fuel to this particular fire: the Loving decision stipulates that race cannot be used as a factor, and I'm extrapolating from that to say that no form of prejudice may be used as a factor, so what's to say this is the stopping point?)
The concern here is precedent: if prejudice (or, in the minds of many, "good judgement") can't be used, what's to stop this from becoming something else? The answer is this: the "good judgement" of the majority can not exclude anyone from due process of the law, ever, period. This is why interracial marriage was allowed despite 94% of the population disapproving of it in 1958 [FOOTNOTE 6] - and interestingly enough, only 48% approved of interracial marriage as recently as 1994. [FOOTNOTE 7]
This is why such challenges to marriage laws happen on a case-by-case basis. Each challenge to historical restrictions on marrying has addressed that issue, and only that issue. When people were allowed to marry people with the same (coincidental) surname, it didn't turn into people marrying their siblings.
FOOTNOTE 1: Keith Olbermann of MSNBC makes an eloquent argument based this premise. While I applaud the sentiment, it falls far short of making a convincing legal argument. It's much too easy for someone to say, "Sorry, I don't think that homosexuality counts as love." I think they're wrong, but the point is that as long if your argument is premised on what love is and isn't, you're only going to convince people who already agree with you. [BACK]
FOOTNOTE 2: Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856). The full quote reads, "it was not left to the legislative power to enact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will." I've extended the meaning of this passage to apply to simple majorities of citizens. Due process is the simple answer to the question, "We're a democracy, so why can't a majority do what it wants to?" [BACK]
FOOTNOTE 3: United States Constitution, Fourteenth Amendment. Nearly the same passage occurs in the Fifth Amendment; the Fourteenth makes clear that this applies to the States and, by extension, any body of legislation. [BACK]
FOOTNOTE 4: Note that a fuller quote of the Loving decision is:Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival… To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
In the unlikely event that someone were to quote this passage and claim that a very narrow reading restricts its applicability to laws pertaining to race, I answer: the decision struck down laws based on race, while also establishing that the State cannot deny marriage on any "classifications…so directly subversive to the principle of equality at the heart of the Fourteenth Amendment." To argue that Loving has no standing in the question of same-sex marriage is to argue that equal protection is not extended to homosexuals. [BACK]
FOOTNOTE 5: The Supreme Court writes in Loving: "There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification." I submit that the passage does not hinge on the word racial - any invidious discrimination does not constitute a legitimate overriding purpose. [BACK]
FOOTNOTE 6: Gallup. [BACK]
FOOTNOTE 7: Ibid. [BACK]