You may have noticed some fellow travelers on Facebook suddenly appearing as muted red equal signs on a bold red background. The Facebook equal sign is your perennial show of solidarity, wherein supporters will draw virtual inspiration from their concomitance whilst they click away the hours sharing pictures of baked goods on Pinterest. But what could possibly be so important that hundreds of your friends would replace their strategically attractive profile pictures, even for just a few days?

Gay marriage at the Supreme Court, that’s what. Get it now? Equal sign = equal rights for all. It’s a red version of the Human Rights Campaign‘s blue-and-yellow equal sign you might see on cars. Enough Facebookians are involved for Time’s Newsfeed to have taken notice.

There are actually two high-profile marriage cases before the Court this week. Hollingsworth v. Perry is the federal court challenge to California’s Proposition 8, a voter-approved amendment to the state constitution that declares “only marriage between a man and a woman is valid or recognized in California.” United States v. Windsor is a challenge to the federal Defense of Marriage Act (DOMA), which defines marriage the same way for purposes of federal law.

Passions are high for all—besides the Facebook uprising, both sides are demonstrating outside the Court with some powerful messages. For convenience, we can oversimplify and call the two sides “Marriage Equality” and “Traditional Marriage.” The Marriage Equality side argues that this is the next battle in the great Civil Rights struggle. Not too long ago, it was still illegal in some states for whites and blacks to marry. These so-called anti-miscegenation laws were struck down—in 1967!—in the celebrated (and delightfully named) case Loving v. Virginia

Readers might recall the Missouri pastor who cobbled together a speech from old segregationists, replacing the term “racial integration” with “gay rights.” Until the big reveal, it sounded like a pretty standard argument for traditional marriage. This is disturbing stuff that we need to take seriously. If the analogy holds—if gay people are in the same position now as blacks were in the 50s—then it follows that we (the Traditional Marriage side) are the segregationists. If indeed “gay is the new black,” then count me out.

But that can’t be right. The disanalogy is explored at great length elsewhere (including before the Court), and it is important that we not let this rhetoric confuse us. One of the reasons we find those old segregationist pastors so odious is precisely because they abused this kind of argument. We must not be maneuvered into discarding legitimate ways of reasoning about political issues simply because wicked men have used them in the past. Josef Stalin murdered millions of people while espousing the same rhetoric as some of today’s leftists. Conservatives commit the same fallacy when they use the response, “Chairman Mao, QED.”

Pastor Snider’s bait-and-switch makes a powerful statement, and I don’t think it was a cheap trick at all. We need to be very careful that our thinking here is not tainted with animus. We do not have to condone homosexual behavior to have normal relationships with gay people—unless, of course, all of your friends are sinless beings whom you interview before starting a relationship. The question of marriage might drive a wedge in our politics, but any purely personal discord should not be coming from Christians.

To those who argue for traditional marriage out of hate for their gay neighbors—we pray for you, but we cannot welcome you.

Alright, you say, denunciations are all well and good. But even if our position is in good faith and not hateful, are we not still depriving an entire class of people of a basic civil right? Why deny the blessings of marriage to committed gay partners? As it turns out, the Constitution requires the government to provide an answer to that question. The Court is not empowered to judge the policy wisdom of the law, but “Equal Protection of the Laws” means that any classification requires an explanation. In the context of race, this justification has to be pretty darn convincing (for various reasons too complicated to explain here). But in almost every other context, the classification must only have a “rational basis” related to a “legitimate” state purpose.

Image: Joshua Ryan, via Facebook

The law did not fare well below. The trial court’s opinion was a drumbeat of finding after finding, beating the law in to the ground until finally concluding, on page 135, that the law “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.” The Ninth Circuit, in an opinion by an icon for judicial liberalism, affirmed: “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California.”

I think we can agree that if marriage has no public purpose, then it is hard to explain why we have it at all, let alone why it is important to limit it to one man, one woman. Prop 8’s defenders (Governors Schwarzenegger and Brown both refused to defend the law in court) assert two main governmental interests. First, they make the forceful case that marriage has always been defined and explained as rooted in promoting responsible procreation. In their words, “By providing special recognition, encouragement, and support to committed opposite-sex relationships, the traditional institution of marriage preserved by Proposition 8 seeks to channel potentially procreative conduct into stable, enduring relationships[.]” The second rational basis flows from the first: They argue that California has an interest in “proceeding with caution before fundamentally redefining a bedrock social institution.”

These two interests are vigorously contested by Marriage Equality proponents, who immediately demand evidence that responsible procreation is advanced by traditional marriage. After all, gay couples already have children and lots of straight couples are terrible parents. The conversation then quickly becomes two ships passing in the night, each side misappropriating social science studies and ignoring the other side’s premises. But the legal question is not whether California has the better sociological argument—it is whether it is rational for it to think traditional marriage is, to quote Blackstone, “the manner in which that natural impulse must be confined and regulated.”

The DOMA case involves the same issues, but because it is a federal statute brings in additional considerations. The section at issue declares that, for purposes of federal laws, the term “marriage” is defined in the traditional way. Thus, federal tax breaks, benefits programs, and so on, will not apply to same-sex married couples in those states that allow such unions. Normally there is no question that a legislature has the power to define the terms it uses. The argument here is that the definition results in unequal treatment of validly married couples based only on sexual orientation. While the two cases are similar, the DOMA case brings the question of benefits schemes in to starker relief—especially since California has a civil union law that bestows identical benefits on same-sex couples.

The Marriage Equality side thinks that the Traditional Marriage side is “on the wrong side of history.” We must reject arguments from historicism, for history makes a weak and fickle god—and people change cultures. But the Chief Justice has been concerned with his Court’s reputation, and Justice Kennedy can have libertarian tendencies. On the other hand, it is difficult to imagine even the Court’s liberals ruling that the government in either case has no rational basis here. Predictions, therefore, are of little value. In my view, the California law easily passed rational basis. Indeed, I believe traditional marriage passes the harsher strict scrutiny standard, as the least restrictive means of achieving society’s goal of channeling potentially procreative relationships—and reaping the panoply of benefits that accompanies that general ordering with the least possible state intrusion.

Is that a legitimate state interest? Some think we need fewer people, not more children; some think ordering society isn’t the state’s role. I think that’s wrong. Who should decide? In the current battle at the Supreme Court, the fight is not about what kind of marriage laws are best—it is about leaving those decisions with political communities. A “loss” for the plaintiffs in these cases will not change any law in any state—and if they are right, soon almost everyone will be on their side. But if Traditional Marriage loses—if the marriage laws of all of human history are ruled unconstitutional in 2013—the law changes everywhere and no one gets a say.


  1. Thank you for fleshing out the legal issues involved in these cases. The rhetoric from both sides is so loud, but you’ve helped me to better understand what the court’s are really discussing and discerning.

  2. To pass the rational basis test, a law that discriminates has to (1) serve a legitimate government interest and (2) not be motivated by group animus. Just pointing out that there’s another prong that Prop 8 has to pass. And that’s assuming the court decides that sexual orientation is subject to the rational basis test and not some kind of heightened scrutiny (as is the case with discrimination based on sex, race, national origin or religion or when a law curtails a fundamental right). That’s 14th Amendment Equal Protection jurisprudence in a nutshell. And also assuming that the court actually rules on the merits. And that’s just the federal constitutionality–there will be a different framework for California constitutional issues that also has to be addressed (or maybe the same framework, or something that sounds like the same framework but has been treated differently in the CA courts).

    DOMA has additional potential problems, because it’s a federal statute. It has to be within Congress’s lawmaking authority, for one, and that’s a can of worms. It also runs into tenth amendment and full faith and credit problems that Prop 8 doesn’t have to deal with.

  3. Kullervo, thanks for the notes. I think of rational basis review a little differently. The basic test is that any classification must be 1) rationally related to 2) a legitimate state interest. In the absence of any legitimate interest, the rule is arbitrary at best and has an improper animus at worst. BUT if the challengers can demonstrate actual animus by the law’s proponents, the government has a higher burden of proving that the animus wasn’t an a cause of the law (i.e., would have passed even without the animus-motivated parties).

    I’m not disagreeing with you, just framing the issue a little differently.

    Racial classifications get heightened scrutiny. Gender has been subjected to an intermediate scrutiny. Romer v. Evans suggests that marriage laws might warrant a harder look to see whether they are improperly motivated. But I doubt if anyone will find animus except the way Judge Walker did, which is to dismissively brush aside the state’s asserted interests and then saying, “Well, must be hate.” I am very interested in whether the four liberals on the Court will rule that this fails rational basis.

    The federalism and enumerated powers arguments about DOMA irritate me – through no fault of yours. You are right that DOMA has additional structural and federalism concerns, but I think if I said any more than I did in the post about that, most of our readers would click away in a hurry.

  4. Excellent post. Gay rights activists are using the back door of civil rights to argue their case. Essentially, they are putting the cart before the horse. Here is how it works. First there is civil rights. Civil rights is about equality before the law. Then you you have family law, marriage law, maritime law, etc. These laws deal with specifics and makes PREJUDGMENTS about certain things. For example, say through the legislative process, we come to make a law that says: “All families with children deserve tax breaks.” Civil law/rights would say that someone’s civil rights have been abrogated if a family with children did not get receive a tax break. A family with NO children can say that their civil rights have been violated. If they did, they would have to show how this is so.

    Well the same thing goes for marriage. Marriage law makes a PREJUDGMENT about what a marriage is. What it consists of. One cannot claim that their civil rights is being abrogated if they don’t fit that a priori definition. Law at a base level is about defining things. This is this and is not that. This is that and not this. It is not about arbitrary definitions. This whole debate, in my opinion, needs to be understood against that backdrop. The reason I say that is because it is an injustice when law, dealing with ANY matter, does not define things properly. For example, there was the “Pullman Strike” of 1894 where paternalism, in which a company viewed it’s employees as “family” was at least partly to blame.


    Thus, I would be worried about any government or law that arbitrarily defines ANYTHING.

  5. S. L., you’re probably formulating the rational basis test more precisely than I did–it’s a legal test that has been articulated in binding judicial decisions, so I’m okay with you disagreeing with me. There’s a wrong and a right here and I may very well have it garbled.

    While I agree that pulling apart DOMA and looking at the constitutional issues is outside the scope of this post, I’m curious about what your thoughts on it are. It seems to me that Section 2 just plainly violates the full faith and credit clause. I’m not sure how you make an argument otherwise without torturing both the language and the legal doctrine.

    That said, Section 2 is not (as far as I undersdtand) at issue in US v. Windsor, but Section 3, and that’s where the concerns about Congressional lawmaking authority and Article 10 come in. What’s the justification for Congress’s ability to legislate a federal definition of marriage? That’s not something that generally happens: for example, in a tax context things can often turn on probate or property law, which means that state law winds up being dispositive because Congress has no power to create “federal property law” or “federal trusts and estates law.”

    I think it’s doubly interesting because it seems to me that to create a federal definition of marriage, you have to find it in a really broad interpretation of (What? Article I? Section 5 of the 14th Amendment? I don’t know what the argument is.) Congressional power, which is actually the opposite of how conservatives usually want Congressional power to be construed.

    I’m not trying to pick a fight here–I’m genuinely interested in what you think are the Constitutional justifications for DOMA.

  6. The short of it is that any legislature has the power to define the terms they use. Congress could pass a law banning the transportation of ducks in interstate commerce and include a section that says “For purposes of this law a duck is any reptile under 6 inches in length.”

    Basically, DOMA says “Marriage has usually been understood to mean a man-woman relationship. There are some other ways of using it now. Whenever we say it, we mean that first way.”

    There are definitely federalism issues involved. Congress can’t define terms in such a way to circumvent state laws improperly. But the certified question in the case is:

    “Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State…” (plus a few other technical questions)

    So I’m not sure any of these arguments are properly before the Court.

  7. Most of the arguments that I am seeing lately on the Traditional Marriage side are based, as is your argument, in the preservation of “the marriage laws of all of human history.” As I understand it, the argument is that the civil rights claims of same-sex couples don’t stand up against the societal stability provided by protecting marriage as it has always been. The problem with this argument is that it is founded on an assertion that simply doesn’t stand. There is no one version of marriage that has held true in all times and all places. Traditional marriage is about the transfer of goods, or the consolidation of power. It may be about procreation, but it is certainly not about love. Historically, it has been common for one man to have multiple wives, and the practice continues in some societies. What disturbs me most deeply about this argument for Traditional Marriage is that it assumes the privileged position of asserting that what I am most familiar with is the way things have been done in all times and all places. The Traditional Marriage argument holds that an institution as important as marriage cannot be allowed to drift with the fashion of the moment, declaring that the fact that the majority of people now agree with marriage equality doesn’t make it right. But if you are willing to look beyond your own particular social construct you will see that marriage has varied radically in different times and cultures, and has altered drastically even within Western culture in the last 150 years. A woman and her property used to belong to her husband. Marriage was not a covenant between equals, founded in love and commitment. It was a transfer of property from a father to a husband. The vast majority of our society no longer holds that view. So I don’t see how there is a cogent argument to be made that we have to preserve marriage “as it has always been” when the evidence suggests that there is simply no such fixed thing.

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