I am opposed to gay mar­riage, but I am also opposed to straight mar­riage. I also oppose bans on gay mar­riage. But read the whole thing, because it is more com­pli­cated than that.

Mar­riage is a pack­age deal. Break up the pack­age, and the answers become clear. Mar­riage com­bines a con­stel­la­tion of legal oblig­a­tions in con­tract (con­cern­ing prop­erty, intes­tacy, finances, par­ent­ing, med­ical decision-​​making, &c.) with a set of priv­i­leges* con­ferred by the state under var­i­ous man­dates and enti­tle­ment schemes.

If we get rid of all the ille­git­i­mate, welfare-​​state junk asso­ci­ated with mar­riage, all we are left with is a com­plex, legit­i­mate two-​​party† con­tract. As it stands now in most states, I see no legit­i­mate aspect of mar­riage that is unavail­able to same-​​sex cou­ples.‡ Absent a poorly drafted ban, same-​​sex cou­ples can form a per­sonal union prac­ti­cally iden­ti­cal to the legit­i­mate aspects of state-​​sponsored marriage.

There are some excep­tions, due to badly writ­ten same-​​sex mar­riage bans in var­i­ous states. Key Mid­west­ern Swing State passed a con­sti­tu­tional amend­ment back in 2004, pur­port­ing to ban same sex mar­riage. In fact, it does more. Its first sen­tence defines mar­riage as a union between one man and one woman, and states that this is the only sort of mar­riage the state will cre­ate or rec­og­nize. The sec­ond sen­tence of the KMWSS ban reads:

This state and its polit­i­cal sub­di­vi­sions shall not cre­ate or rec­og­nize a legal sta­tus for rela­tion­ships of unmar­ried indi­vid­u­als that intends to approx­i­mate the design, qual­i­ties, sig­nif­i­cance or effect of mar­riage.

Empha­sis mine.

This is not a com­mon way to draft a same-​​sex mar­riage ban. It is a very sloppy way to do so, and it has the effect, inter­preted in accord with the mean­ing of the law, of void­ing pri­vate con­tracts between unmar­ried per­sons intended to approx­i­mate some aspect of mar­riage. In states, like KMWSS, that adopt this type of ban, my pre­vi­ous state­ment about the legit­i­mate aspects of mar­riage being already avail­able to same-​​sex cou­ples does not apply. My point is that, in the absence of either a ban or autho­riza­tion, same-​​sex cou­ples can get “mar­ried” using their estab­lished con­tract rights.

I am opposed to bans on same-​​sex mar­riage that might impair pri­vate rights of con­tract. And the U.S. Con­sti­tu­tion, inter­preted objec­tively, agrees with me when it says, in Art. I, § 10, cl. 1, “No State shall . . . pass any . . . Law impair­ing the Oblig­a­tion of Con­tracts . . . .” But I also see no need to enact leg­is­la­tion autho­riz­ing same-​​sex mar­riage, because every legit­i­mate legal aspect of mar­riage is already avail­able to same-​​sex cou­ples in contract.

If we didn’t have a wel­fare state, there would be no prob­lem. But the wel­fare state cre­ates a sit­u­a­tion where indi­vid­ual rights are forced into con­flict with one another. The laws that cre­ate the ille­git­i­mate ben­e­fits of mar­riage are ille­git­i­mate because they vio­late the rights of indi­vid­u­als. They are either wealth redis­tri­b­u­tion ben­e­fits, which forcibly seize prop­erty from some peo­ple and give it to other peo­ple; or they are con­trac­tual impair­ments, which force pri­vate par­ties to include or exclude cer­tain pro­vi­sions from their con­tracts with other pri­vate parties.

The ques­tion of whether to allow same-​​sex cou­ples to marry is there­fore a ques­tion of which right is more impor­tant to us. We are forced to weigh prop­erty and con­tract rights against the right of equal pro­tec­tion under the law. If we allow same-​​sex cou­ples to marry, we expand the wel­fare state. If we do not allow same-​​sex cou­ples to marry, we are treat­ing a group of peo­ple dif­fer­ently under the law.

I find it dan­ger­ous to argue that because we give ill-​​gotten ben­e­fits to one group of peo­ple, we must give them to all peo­ple in the name of equal pro­tec­tion, all other rights be damned. I would find it morally repug­nant to ask my gov­ern­ment to give me spe­cial ben­e­fits that it should not have the power to give. Because mar­riage is a pack­age deal, an argu­ment in favor of gay mar­riage is an argu­ment in favor of expand­ing the wel­fare state. There­fore, cur­rently, and in the absence of any ban, I do not advo­cate for the enact­ment of leg­is­la­tion giv­ing equal rights of mar­riage to more peo­ple. I oppose such leg­is­la­tion, while nois­ily advo­cat­ing the elim­i­na­tion of the ille­git­i­mate aspects of mar­riage, so that the law might even­tu­ally be equally applied to all.

The prob­lem with this sit­u­a­tion is that there is no polit­i­cally right answer.** One could, instead, argue in favor of gay mar­riage while advo­cat­ing the roll­back of the wel­fare state. I think this is the more dan­ger­ous route, because it is polit­i­cally so much eas­ier to expand the scope of the wel­fare state than it is to reduce it. I think that more harm will be done to indi­vid­ual rights by tak­ing this route.

* We can fur­ther break up the set of priv­i­leges into a group of wealth-​​redistribution enti­tle­ments (e.g., social secu­rity ben­e­fits; joint tax­a­tion) and pri­vate sec­tor man­dates (e.g., spousal insur­ance man­dates) if we want, but since both are ille­git­i­mate func­tions for a proper gov­ern­ment, we can ignore this dis­tinc­tion for now.

† Many of the con­trac­tual oblig­a­tions asso­ci­ated with mar­riage are not merely his­tor­i­cally lim­ited to two par­ties, but are nec­es­sar­ily so lim­ited. Take med­ical decision-​​making: one can­not by con­tract grant to two dif­fer­ent peo­ple equal, absolute med­ical decision-​​making power in the event of inca­pac­ity. A rule for decid­ing con­flicts would make the power unequal between the two and non-​​absolute as to each one.

‡ Inci­den­tally, I have not yet found a com­pelling argu­ment in favor of gov­ern­ment involve­ment in the for­ma­tion of a mar­riage con­tract, beyond the nor­mal con­sid­er­a­tions of com­pe­tency and what­not. And I am unable to con­ceive of any rea­son why a gov­ern­ment should insist on the use of its par­tic­u­lar form in draft­ing that con­tract. While I have no prob­lem with a legal require­ment that a mar­riage con­tract be nota­rized or oth­er­wise for­mally wit­nessed, I can find no jus­ti­fi­ca­tion for the cur­rent sys­tem, where par­ties do not draft the con­tract, have no oppor­tu­nity to read the con­tract, and, in fact, are unable to do so, because the mar­riage con­tract is imputed by com­mon law and statutes, not reduced to a legally oper­a­tive con­trac­tual doc­u­ment. This lack of an objec­tive ref­er­ence for the terms of the agree­ment leads to all sorts of awful incon­sis­tency in inter­pret­ing the actual mean­ing of the mar­riage contract.

** I think there is an eth­i­cally right answer, but only if you do not drop the full con­text. Legit­i­mate rights never con­flict, but what do you do when you are for­bid­den, as many polit­i­cal agents are, from treat­ing an ille­git­i­mate right as ille­git­i­mate? Polit­i­cal agents are often bound to ana­lyze legal ques­tions by drop­ping the con­text of the under­ly­ing injus­tice of the wel­fare state. I will dis­cuss sit­u­a­tions like this in more detail, along with a the­ory on how such agents should act in these sit­u­a­tions, in a forth­com­ing post.

Legally, the two rel­e­vant cases are Romer v. Evans, 517 U.S. 620 (1996), and Lawrence v. Texas, 539 U.S. 558 (2003), and nei­ther is as help­ful for gay mar­riage as some peo­ple hope.

Romer might be used to strike down state bans, but will not con­sti­tu­tion­ally force the states to autho­rize gay mar­riages. Romer struck down Colorado’s “Amend­ment 2,” passed by ref­er­en­dum in 1992, pro­hibit­ing the state gov­ern­ment from enact­ing any civil rights leg­is­la­tion apply­ing to non-​​heterosexuals. The Court struck down the amend­ment on the grounds that the amend­ment did not seek a legit­i­mate gov­ern­men­tal inter­est. The amend­ment, the Court deter­mined, was designed to exclude a group of peo­ple from the leg­isla­tive process. Jus­tice Kennedy, who wrote the opin­ion, is a big fan of the First Amend­ment, and may have been mak­ing an argu­ment that the amend­ment vio­lated the First Amendment’s guar­an­tee of the right to peti­tion the gov­ern­ment for redress of griev­ances. The case is unhelp­ful for three rea­sons. First, it declines to apply strict scrutiny, set­ting per­sua­sive, but not con­clu­sive prece­dent that strict scrutiny does not apply to laws dis­crim­i­nat­ing against homo­sex­u­als. Sec­ond, the pur­pose of the amend­ment was to exclude a group of peo­ple from the leg­isla­tive process. The pur­poses of gay mar­riage bans are var­i­ous, and gen­er­ally less clear. “Pro­tect­ing the sanc­tity of mar­riage” is one asserted pur­pose that the cur­rent Court is not likely to find ille­git­i­mate. There are numer­ous oth­ers that the Court would, rightly or wrongly, find legit­i­mate. Finally, the case strikes down a ban on pro-​​gay civil rights leg­is­la­tion; it does not order Col­orado or any other state to enact pro-​​gay civil rights leg­is­la­tion. So it is not at all likely to be exten­si­ble to force states to allow gay marriage.

Lawrence strikes down sodomy laws. It does so on Due Process grounds, not on Equal Pro­tec­tion grounds. The Court (opin­ion again by Kennedy) over­ruled Bow­ers v. Hard­wick, 478 U.S. 186 (1986), which had held that pro­hi­bi­tions against homo­sex­ual sodomy, based on moral oppro­brium, were accept­able. Kennedy and the Lawrence Court reverse that deci­sion and rule that moral oppro­brium alone is insuf­fi­cient to state a legit­i­mate state inter­est. The Court doesn’t exactly get to the Due Process strict scrutiny analy­sis because a legit­i­mate state inter­est is required by both the strict scrutiny and ratio­nal basis tests. There­fore, the Lawrence Court never decides the applic­a­bil­ity of strict scrutiny to laws dis­crim­i­nat­ing against homo­sex­u­als. Like in Romer, this cre­ates a per­sua­sive, but not con­clu­sive prece­dent sug­gest­ing that strict scrutiny does not apply, this time in the Due Process arena.

In order to apply strict scrutiny in the Equal Pro­tec­tion arena, the Court has to deter­mine either that the rights of a “sus­pect class”†† are impli­cated, or that a fun­da­men­tal right is at stake. The only Jus­tice on the Lawrence Court to sug­gest apply­ing Equal Pro­tec­tion analy­sis was Jus­tice O’Connor, and she gar­nered only her own vote in favor of that approach. Now, she’s gone. And more­over, she did not sug­gest that homo­sex­u­als might be a sus­pect class.

The upshot is that no Supreme Court prece­dent sug­gests that homo­sex­u­als are a sus­pect class, sub­ject­ing dis­crim­i­na­tory laws against them to strict scrutiny. The prece­dent shows that only the ratio­nal basis stan­dard has been applied. All that is needed to pass ratio­nal basis is a legit­i­mate state inter­est and a ratio­nal rela­tion of the law to accom­plish­ing that inter­est. Most dif­fi­cult for gay rights advo­cates, the bur­den of show­ing that the inter­est is ille­git­i­mate or that the law has no ratio­nal rela­tion to the inter­est is on the chal­lenger. It is not the legal duty of the state to assert or con­clu­sively estab­lish the legit­i­macy of the inter­est or the ratio­nal rela­tion of the law to achiev­ing it.

Because Equal Pro­tec­tion jurispru­dence grew up in the con­text of a mixed gov­ern­ment, it is crafted to accom­mo­date the wel­fare state. The wel­fare state requires unequal appli­ca­tion of the laws. For exam­ple, a law pro­hibit­ing dis­tri­b­u­tion of milk in plas­tic, non-​​refillable con­tain­ers, but not in paper, non-​​refillable con­tain­ers, passes Equal Pro­tec­tion analy­sis, in part because the aims of the wel­fare state are accepted as legit­i­mate state interests.

Bans on gay mar­riage may fail under an Equal Pro­tec­tion analy­sis, but the fail­ure of a state to per­mit gay mar­riage is not likely to offend the Court’s cur­rent Equal Pro­tec­tion jurispru­dence. It is not likely that the cur­rent Court will decide that homo­sex­u­als are a “sus­pect class” deserv­ing of the spe­cial pro­tec­tions of strict scrutiny. It may be right, in an objec­tive sense, that fail­ure to pro­vide equal mar­riage rights to homo­sex­u­als, or pro­vid­ing “sep­a­rate but equal” mar­riage rights, may “deny to [homo­sex­ual per­sons] the equal pro­tec­tion of the laws,” but such argu­ments are non-​​starters in our cur­rent, con­flicted legal system.

†† I find “sus­pect class” analy­sis highly . . . sus­pect. Because the Court does not have a ratio­nal, objec­tive con­cept of fun­da­men­tal rights, it resorts to aggre­gat­ing the rights of par­tic­u­lar groups and treats some groups as more deserv­ing of pro­tec­tion than oth­ers. Although, to its credit, the Court, once find­ing a sus­pect class, con­verts the class into a clas­si­fi­ca­tion; e.g., if the sus­pect class is blacks, the sus­pect clas­si­fi­ca­tion becomes race, and the Court will apply strict scrutiny to laws dis­crim­i­nat­ing on the basis of the sus­pect clas­si­fi­ca­tion, not just against the sus­pect class. I think sus­pect class analy­sis should dimin­ish, and that fun­da­men­tal right analy­sis should expand. In the case of gay mar­riage, I do not find the sit­u­a­tion urgent enough to jus­tify mak­ing an argu­ment to expand bad law (i.e., that homo­sex­u­als are a sus­pect class). If the threat to indi­vid­ual rights were dire enough to con­sti­tute an emer­gency, I might think differently.

PS: I am entirely will­ing to be cor­rected or con­vinced to the contrary.