I wanted to respond to Mr. Samis’s thoughtful post on the Iowa marriage case and thought it’d be easier to do so by a separate post than by a comment. It is hard to engage such a complicated and emotionally charged question within the confines of a blog. Although I have generally found both my allies and opponents on the question to be gracious and respectful, I am also aware that this is an issue that can degenerate into dueling allegations of bad faith — of, from one side, accusations of “hate” and “prejudice” and, from the other, charges of “licentiousness” and “irreligion.” I also know that to raise the conservative position in the academy is like launching an offensive deep behind enemy lines. You may soon find yourself surrounded.
But I am finishing (with Daniel Suhr ’08) a paper on interpretation of marriage amendments using Wisconsin as a case study, so the topic is much on my mind.
First, a disclosure. I was a public proponent of Wisconsin’s marriage amendment and based my case on wholly secular grounds without reference to the morality of same-sex relationships. While I appreciate that my church believes such relationships to be morally impermissible, I am not persuaded by that judgment.
Nor do I disagree with Mr. Samis that gay and lesbian relationships, just as heterosexual unions, may — hopefully, will — exhibit the loving and supportive characteristics that he observed between his friends. I have observed the same in my own circles.
But where proponents and opponents of genderless marriage part ways is on the question of whether this resolves the matter. The latter focus not on merely on what may be similar about same-sex and opposite-sex intimacy, but also on what is distinctive.
In my estimation, the most persuasive case against redefinition of civil marriage to include same-sex couples lies in marriage’s public meaning and purpose. Marriage certainly involves the union of people who love and are committed to one another. It certainly involves the provision of certain benefits and protections that facilitate and structure that relationship. But that alone is not what marriage is for.
To the contrary, opponents of same sex marriage adhere to the conjugal model of marriage. Its purpose is to channel relationships between men and women — who often experience their sexuality in different ways — into a setting which is optimal for the support of the children that these relationships may — often unintentionally — create. It is intended not only to provide benefits and protections to loving and mutually supportive relationships (there are many such relationships that are outside the scope of marriage), but to encourage the channeling of potentially procreative relationships in a certain way.
If you buy this (and there are many who don’t, believing that the decoupling of sexual relationships from procreation and marriage is a good thing), then there is no reason to extend marriage to same-sex couples. Society simply does not have the same interest in channeling gay and lesbian relationships into the same setting.
This argument is not undercut by the fact that not all marriages produce children. The conjugal model of marriage — and the normative judgment that it is the proper place for sexual relations between men and women — is a norm, not a rule. Those who adhere to the norm, even if they do not have or cannot have children, reinforce it.
This may resolve the equal protection argument, but it doesn’t resolve all questions. Most significantly, it doesn’t quite tell us what would be wrong with extending marriage to same-sex couples, some of whom will be raising children (mostly from previous heterosexual relationships, but sometimes through adoption or artificial reproduction). We still need to know why adherence to the marital norm by same-sex couples would not reinforce it.
It is there that opponents turn back to the public meaning of marriage. That meaning affects not only its legal incidents, but its norms and mores and the way in which people conduct themselves in relationship to it. The argument is that these mores and norms — the “rule of two,” the norm of exclusivity, the presumption of permanence, and the value of fathers qua fathers — are rooted in the particulars of potentially procreative relationships, the need to bridge the sexual divide between men and woman, and a normative judgment about a child’s right to know and be raised, if possible, by her biological parents. It seems unlikely, they argue, that society could change the relationships to which marriage applies and not change its public meanings and norms.
Same-sex marriage would constitute a pubic endorsement of the creation of fatherless or motherless families, not as the best alternative when a child cannot be raised by her own father and mother, but as an equally desirable form of family structure. It is unlikely that this would not further alter our notions about the importance of intact families consisting of a child’s biological parents. It would involve the incorporation into marriage of relationships for which the biological facts that have structured marriage’s norms are absent. It is not clear why this could not affect those norms.
As I said recently at Prawfs, this is an argument that appeals more to people whose intellectual tastes are more Burkean and who are cautious about the unintended consequences of rapid social change.
That would be me.
It apparently would not be the justices of the Iowa Supreme Court.
Fair enough, but I would have appreciated more of an effort to address the arguments that opponents of same-sex marriage actually make. Most of the court’s analysis presumed a “close relationship” model of marriage, as if that model were somehow ordained by the Iowa Constitution. It failed to address — or even acknowledge — the defendants’ argument about the way in which the law of marriage operates, not only by legal fiat, but by the creation of norms. It concluded, in a dismissive footnote, that fathers as fathers do not matter to the well-being of children. What does, it said, is an involved “second parent,” basing its conclusion upon a body of social science evidence that has been subjected to withering criticism and which, at least as I read it, does not come close to “proving” what the Court said it does — much less precluding the state from concluding otherwise.
In an astonshing bit of circularity, it argued that one must engage in heightened scrutiny of laws restricting marriage to opposite sex couples because majorities keep insisting that is what marriage is. (This can, of course, constitute evidence of discrimination only if that insistence is somehow irrational.) In becoming one of the few courts to apply heightened scrutiny to classifications based on sexual orientation, it misstates traditional equal protection analysis regarding the determination of suspect or quasi-suspect classes by engaging in an acontextual analysis of whether sexual orientation is a trait that is unlikely to relate to any legitimate governmental purpose. It assumes, without evidence or prompting by the plaintiffs, that traditional marriage is nothing more than imposition of a religious view and, having assumed that it is, misstates the law regarding religious motivation of secular measures.
Beyond that, it seems to me that the very worst way to redefine marriage or to create an equivalent status for same sex-couples is by judicial fiat. Not only does doing so tax what I believe to be the outer boundaries of judicial competence and require interpeting legal doctrine in a way that makes it radically indeterminate, it threatens to perpetuate social conflict that may have negotiated a truce through the political process. The suggestion that it could be otherwise recalls the naivete of the joint opinion in Casey v. Planned Parenthood, in which Justices Souter, Kennedy, and O’Connor somehow persuaded themselves that the Court could call for the “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Courts can, of course, call for anything. It’s quite another matter for it to expect that doing so will quell passionately held beliefs.