Gay Marriage

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.

Tom G Varik