Same-sex marriage is headed for the US Supreme Court. Justice Ruth Ginsberg is reported to have said that the Court would be in no rush to decide the issue unless there was a clear division among the courts of appeals.
Now there is.
In a two to one decision, the US Court of Appeals for the Sixth Circuit in Cincinnati yesterday overturned lower-court rulings in Kentucky, Michigan, Ohio, and Tennessee which had declared that bans on same-sex marriage violated the American Constitution. The US is now a patchwork quilt of laws on same-sex marriage, with 32 states and the District of Columbia permitting it and recognising marriages from other jurisdictions and 18 states banning it. The Supreme Court will have to step in to adjudicate.
This decision is a gem and merits careful study. Circuit Judge Jeffrey S. Sutton has done for the traditional marriage camp what Judge Richard Posner, of the US Seventh Circuit Court of Appeals, did for same-sex marriage – to combine a mastery of the law with wry wit.
Whether in court or out on the street, debate about same-sex marriage today frames the issue as a case of discrimination against homosexuals. This puts supporters of traditional marriage on a back foot. Discrimination is commonly attributed to blind prejudice or hillbilly conservatism. Judge Sutton’s arguments hang this out to dry. It is a bold vote of confidence in the democratic process.
Two themes are central in the decision he has written together with Judge Deborah L. Cook. The first questions whether reform through judicial fiat is democratic and the second asserts that misgivings about reform are rational.
Judge Sutton does not necessarily oppose same-sex marriage. He simply says that no right to it exists in the US Constitution and that it is an issue for the states. He is scathing about a judiciary which leads the charge on fundamental social change:
“Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us — just two of us in truth — to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit.”
Rational review basis
In his opinion, the “rational basis” test, the most lenient standard for assessing claims for discrimination, is appropriate for same-sex marriage. State laws banning same-sex marriage can be defended rationally, he says. He offers two reasons. First, sex between men and women needs to be regulated in some fashion so that stable family relationships are promoted.
“Governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? …
“It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues.”
Second, a wait-and-see attitude is rational if a state needs to ponder whether to change an age-old institution. “Rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges”. Nor does rapid change necessarily produce the best outcomes:
“The fair question is whether in 2004, one year after Goodridge (the Massachusetts decision which allowed same-sex marriage), Michigan voters could stand by the traditional definition of marriage. How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage? A State still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere.”
That hobgoblin of little minds
Judge Sutton also deals with the sad inconsistencies and hypocrisy in the theory and practice of traditional marriage. “States will hand some people a marriage license no matter how often they have divorced or remarried, apparently on the theory that practice makes perfect. States will not even prevent an individual from remarrying the same person three or four times, where practice no longer seems to be the issue.” But one of the strengths of democracy is that it slowly learns the best way to deal with these absurdities:
“History is replete with examples of love, sex, and marriage tainted by hypocrisy. Without it, half of the world’s literature, and three-quarters of its woe, would disappear. Throughout, we have never leveraged these inconsistencies about deeply personal, sometimes existential, views of marriage into a ground for constitutionalizing the field. Instead, we have allowed state democratic forces to fix the problems as they emerge and as evolving community mores show they should be fixed.”
And speaking of inconsistencies, what about inconsistencies in arguments which support same-sex marriage? Inevitably they would allow plural marriages, under-age marriages, or consanguineous marriages:
“Consider how plaintiffs’ love-and-commitment definition of marriage would fare under their own rational basis test. Their definition does too much because it fails to account for the reality that no State in the country requires couples, whether gay or straight, to be in love. Their definition does too little because it fails to account for plural marriages, where there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot.
“If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point. What they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage.”
Is there animus?
Is there animus – the legal buzzword for malice and irrational prejudice – when a state votes to change its constitution to reinforce the privileges of traditional opposite-sex marriage? When Judge Vaughn Walker overturned Proposition 8 in California in 2010, he sneered: “Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.”
That depends, says Judge Sutton. He cites a recent decision of the Supreme Court, Schuette v. Coalition. to Defend Affirmative Action: “Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But … Democracy does not presume that some subjects are either too divisive or too profound for public debate… It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”
How could the voters of Michigan possibly be scolded for “animus” when they voted to enshrine traditional definition of marriage in their constitution in 2005? Only one year had passed since Massachusetts allowed it. “Any such conclusion cannot be squared with the benefit of the doubt customarily given voters and legislatures under rational basis review. Even the gay-rights community, remember, was not of one mind about taking on the benefits and burdens of marriage until the early 1990s.”
“It is no less unfair to paint the proponents of the measures as a monolithic group of hate-mongers than it is to paint the opponents as a monolithic group trying to undo American families. ‘Tolerance, like respect and dignity, is best traveled on a two-way street.’ If there is a dominant theme to the [Supreme] Court’s cases in this area, it is to end otherness, not to create new others.”
Judge Sutton concludes by reiterating his plea for the issue to be decided democratically, by the people’s elected representatives rather than the courts:
“In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”
For anyone who feels oppressed by judicial groupthink, Judge Sutton’s effervescent decision is heartening reading.
Michael Cook is editor of MercatorNet.