April 28, 2015

WHAT IS “MARRIAGE”?:  The Supreme Court will be asking this question today, as oral arguments in Obergefell v. Hodges begin at 10 a.m.  The arguments involve four consolidated cases from Kentucky, Ohio, Michigan and Tennessee and raise two distinct questions:  (1)  Is there a constitutional right for two people to marry?; and (2) Must states recognize a marriage recognized by a sister state, if the marriage is between two people of the same gender?

Notice that the question presented isn’t whether the Constitution recognizes a right to same-sex marriage, per se.  Instead, the question posed is whether there is a right to marriage between two people.  And if marriage is defined as a union between two people, it is a foregone conclusion that the Court will conclude that it should be permitted between two people of the same gender.  The counter-argument is that “marriage” isn’t just a union of “two people,” but inherently and necessarily a union of “one man and one woman.”

The Supreme Court has long stated that “marriage” is one of the “fundamental” and “basic” rights protected by the word “liberty” in the Due Process Clauses.  In the 1967 case of Loving v. Virginia (one of the great all-time case names, btw), the Court ruled that a state anti-miscegenation law violated the Equal Protection Clause because the law inherently involved a suspect racial classification (with no compelling justification for such classification).  It also violated the Due Process Clause:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

One need only substitute “sexual orientation” for “racial” to see how the Obergefell Court will conclude that due process “liberty” gives any two individuals the right to marry.  And to make matters even clearer, the Court’s decision in United States v. Windsor, Justice Kennedy (the “center” of the Court) struck down the federal Defense of Marriage Act (DOMA), stating:

This status [marriage]  is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. . . .

The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.  In determining whether a law is motivated by an improper animus or purpose, “ ‘[d]iscriminations of an unusual character’ ” especially require careful consideration. . . . The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

The Windsor Court thus concluded that Congress’ “one man, one woman” definition of marriage for purposes of administering federal law was motivated by a “bare desire to harm” homosexuals and was thus discriminatory in purpose and effect.  While the Windsor Court gave lip service to States’ traditional power to define marriage, its conclusion was based upon its belief that the law was motivated by sexual orientation animus– a desire to keep “two people” from obtaining “dignity in the community equal with all other marriages.”

So once the Court accepts that “marriage” is a union of “two people,” the conclusion seems obvious.

While I do take issue with constitutionalizing the definition of marriage via edict of 9 unelected Justices rather than allowing the political process to continue to unfold– as it has very successfully done over the past decade or so–the marriage is “two people” definition, if accepted, will have some predictable consequences.

If marriage is “two people,” then presumably the next front of litigation will be adult, consensual incestuous relationships– probably first cousins, who are prohibited from marrying in 25 States.  Once this legal restriction falls, other adult, consensual incestuous relationship bans should presumably fall, too, such as parent/child (whether same- or opposite- sex), aunt/uncle- niece/nephew, etc.  Presumably, nonage laws limiting marriage of minors would continue to be upheld pursuant to States’ parens patriae power.

But why stop at “two people”?  Why not three, four, or fifty-six?  Would restricting marriage to “two people” be discriminatory animus directed at the polyamorous?  Or is it somehow “rational” for government to limit “marriage” to “two people”?  Once the word “marriage” is unmoored from the male-female sexual union, things start to get very complicated.  If Americans wish to limit “marriage” to “two people,” it may be advisable to begin thinking about a constitutional amendment defining it as such.

InstaPundit is a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to Amazon.com.