Marriage equality cases need nuanced bipartisan discourse

Over the summer, I spent some time at the legal blog Equality On Trial, which covers marriage equality cases all across the country, in each stage of their legal development. What I found was that, although the EOT staff was entirely composed of staunch same-sex marriages advocates, they treated the legal arguments of those across aisle with an astonishing respect. Not in the sense that they were glad someone had made the argument against gay marriage, but they interrogated it and sought to understand it to a great degree, so as to refute it better and more thoroughly. I soon found out that a lack of this respect meant death in the courtroom. For those wishing social change through the legal system, it’s important not to forget that all the arguments are couched in legal precedent and rhetoric. Sometimes that’s not a good thing, but it’s a reality that most Americans have to wade through.

In July and August, lawyers from Utah, Oklahoma and Virginia petitioned the U.S. Supreme Court to consider reviewing three federal appellate court decisions that struck down the respective states’ bans on same-sex marriage. If the Supreme Court chooses not to hear the cases, then the appellate courts’ decisions will stand, effectively legalizing same-sex marriage in the states that fall within the jurisdiction of those two circuits (the 4th Circuit includes Utah, Oklahoma, Colorado, Kansas, New Mexico and Wyoming). However, should the Supreme Court choose to hear one or more of the cases, which it likely will, a definitive ruling on same-sex marriage will be in store for America, either enforcing the remaining 31 states’ bans on same-sex marriage, or overturning them and disallowing any new bans to be instituted.

There are a few crucial debates that stem from this question. The same-sex couples (the plaintiffs in these cases) make the case that because the ban impinges on one of their “fundamental rights” (the right to marry who they choose), same-sex couples are not protected equally by the laws of the state, and so the bans are unconstitutional. The Supreme Court has deemed the “right to marry” a fundamental constitutional right, among others—as described by Justice Robert Jackson in West Virginia Board of Education v. Barnette, “[fundamental rights] withdraw certain subjects from the vicissitudes of political controversy…place them beyond the reach of majorities and officials and…establish them as legal principles to be applied by the courts.” However, this opens up the major train of argument. Namely, is the right being violated the “right to marry,” or a new right, “the right to marry someone of the same sex”?

The state officials defending the bans (the defendants) make the case that historically, the right to marry has been part of an institution of marriage that has always been heterosexual. They claim that even though the landmark 1967 case Loving v. Virginia overturned all bans on interracial marriage, marriage constituting a core interest “to all individuals,” the question of opposite-sex marriage vs. same-sex marriage is an irrelevant one. This argument begs the question—what does the institution of marriage mean, historically and currently?

If the states’ marriage laws are to be “protected” from new forms of marriage, then marriage has got to serve the state interest in some way; it’s got to be for something. Marriage’s primary purpose, according to Utah’s District Court, is to create a “public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.” According to the defendants, however, its purpose is far narrower and biologically based: marriage is an economic incentive for heterosexual couples not to leave the children they’ve created (sometimes unintentionally), so as to “sustain society.” Arguments from across the aisle often frame this as “adult-centric” vs. “child-centric” models of marriage, although counter-arguments prove this distinction disingenuous—if the purpose of marriage is to legitimize a family, and creating a family can involve adoption, then it seems that same-sex couples could benefit from exactly the form of marriage that heterosexual couples enjoy, even if their children are always deliberately planned.

After that debate is resolved by the Supreme Court—whether the right at question is the right to marry or the right to marry someone of the opposite gender—then the state’s laws banning same-sex marriage would be taken under consideration. If “the right to marry” is indeed the right in question, then it is a fundamental one, and so the bans are subjected to “strict scrutiny,” which places the burden on the defendants to prove why they are not violating the fundamental right, only using the original legislative arguments. However, if the “right to marry someone of the same sex” is the right in question, it has to be classified as a new fundamental right or not. If it isn’t, the bans only undergo “rational basis” review, which means that the plaintiffs have to prove every explanation the defendants provide for the law irrational.

Although the three cases are very similar, they do differ in ways that, if one is accepted by the Court and not another, could mean slightly different national precedents if the Court ruled on them. In the Virginia case, the fervor of the ban is unmatched—not only does its ban deny marriage to same-sex couples, but it also seeks to deny them from acquiring any of the rights of marriage through other means, such as civil unions or domestic partnerships. The plaintiffs, two couples, each represent one aspect of the ban’s two-pronged scope: the denial of both in-state marriage licenses as well as out-of state marriage licenses. In the Utah case, the defendants’ case relies more heavily on the claim that the state is being deprived of its right to define marriage, “disenfranchising” millions of its voters. Because the Constitution doesn’t define marriage, and the Supreme Court only deems the “right to marry” as a fundamental right, Utah claims that it has been delegated the right to define what “marry” means. The defendants claim that the Tenth Circuit’s ruling undermines democracy, and the federal system.

In the Oklahoma case, more emphasis is placed by the defendants on the suspect nature of same-sex parenting. They note the uneasiness of young adults who don’t know their biological parents, or are conceived through sperm donation, though arguments from the other side rebut these claims as largely unfounded, while conflict in the social science community over that issue has also provided little evidence for the claim. It’s clear that any of these cases, if presented before the Supreme Court, will set a far-reaching precedent for marriage equality. It’s also clear that although the ideologies involved are relatively uncomplicated (pro-same-sex marriage, anti-same-sex marriage), the choices of arguments used to support them are not.

-Christopher Dietz ’16

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