I have decided to revive the blog.
I know. You’re thrilled.
And just in time – you probably heard the big announcement from the SCOTUS in the last few days. In the coming session they are actually going to deal with same-sex marriage. And chaos will ensue, regardless of what happens.
I generally leave the soothsaying to other people – people who know the Court better than I do -, but it is worth discussing some of the issues that are at stake. Some of it is really complicated stuff, so I’m going to stick with the clearer parts of things – the big ideas. And let’s be honest, I really shouldn’t call any of it “clear.” If it were “clear” it wouldn’t need to go to the Supreme Court. They exist because things are messy. We are a messy, messy people. We look a lot like my living room.
Earl Warren wrote in Loving v. Virginia that marriage is one of the basic civil rights of man (we forgive the Honorable Justice Warren the sexist language of the Cold War). Which seems pretty clear. He added to that it is necessary for our survival. That addition to his observation could make things tricky. We’ll get into that in a moment. For those of you not familiar, the Loving case was THE interracial marriage case back in the late 60s. In many states, there were “anti-miscegenation laws” to keep people of two races from marrying each other. Obviously, Virginia was one of these states. The aptly named Lovings took issue with this law, after a good deal of heartache, I might add, and won. It was a unanimous decision and all of the laws restricting inter-racial marriage were struck down. The Court decided that marriage was a basic civil right, and that restricting it based on race was unconstitutional. These laws violated the Due Process clause, and more importantly, the Equal Protection clause.
Now, for many people, it is hard to reconcile anti-gay marriage laws, or even just refusing to allow gay marriage, with the Loving decision. If marriage is a basic civil right, then denying it to some people is, well, a violation. Done and done, right? There are two responses to this – and then there are responses to the responses, because life is pain.
First, let’s look specifically at what Warren had to say. Marriage is a civil right – and he continued that by saying it is necessary for life. Why on earth is marriage necessary for life? There are plenty of people who are surviving without being married, right? More and more every year. Warren is thinking of marriage as filling a need – marriage creates children, and children are necessary for the continuation of the people. If marriage provides a service to society, if that is its purpose, then gay marriage doesn’t fit the bill. It doesn’t fulfill this need. So the question is, is marriage a protected right because it serves a useful purpose, or is it a right in its own regard just because marriage itself is protected? One answer might lead you to believe gay marriage is protected, the other might not. If marriage is for the express purpose of continuing a civilization, gay marriage serves no purpose. If marriage is for personal fulfillment, then the sex of the people involved isn’t relevant. So – is marriage a union of utility or of love?
The issue is, as has been written about even in legal rhetoric, our understanding of marriage itself has changed. Once upon a time marriage was basically a property exchange. Now it is supposed to be about two people in love. So it comes down to whether you believe in a modern understanding of marriage, or a more antiquated one. What does marriage do?
(It should come as no surprise to anybody that I’m a romantic here. I, and many like me, chose my spouse because I loved him, not because I was bound and determined to produce a kid. I certainly never thought of it as a duty to produce a kid, and if my marriage were based on the premise that my job was to produce a kid, I wouldn’t have waited so long to get married, I wouldn’t have been so picky, and I sure as hell wouldn’t have a PhD. Weirdly, there are a lot of people like me out there – that see marriage as a fulfilling part of their lives, not a biological imperative. It’s like we’ve evolved as a species, or something.)
A second response to “marriage as a civil right” is that there is “marriage” and then there is “same-sex marriage” and the two are not the same thing. Let’s assume that marriage is a protected right. But same-sex marriage is a different category, according to some. It’s not the same as marriage. By that rationale, then same-sex marriage is creating a new class of marriage, and to ask for protection of the class isn’t equal protection, it’s special protection. And nobody likes that (actually, plenty of people like that, but for the sake of the dialectic, we’ll say that nobody does). It really begs the question – you have to assume a particular definition of marriage in order to say that same sex-marriage doesn’t meet the requirements of your definition of marriage.
Logical fallacies aside…
But, the definition of marriage has been addressed. The DOMA decision specifically addressed federally defining marriage as being between a man and a woman. So whether that even matters anymore may well be what is in front of the Court.
From where I sit, it’s going to be hard to make a legal argument against same-sex marriage. Which won’t bother certain members of the Court who haven’t worried about that in years. The arguments against same-sex marriage, even in the highest court in the land, haven’t rested on legal reasoning so much as they have rested on morals and tradition. And you know Scalia has lead the (sometimes rhetorically rabid) pack. Logic has been secondary to simply positing that it is perfectly acceptable to legislate morality, and a certain brand of morality at that (see the dissent in the Lawrence case if you don’t believe me).
So what will the Court do?
The Court will do something profound. That much we know. And will probably do something that doesn’t even contend with the issues I’ve brought up here, because that is their wont. Who knows what the questions and arguments will really turn on?
But 36 states allow gay marriage now. Not many of them by democratic choice, but they do. The tide began to turn well before this. And even if the court decides that same-sex marriage is not a constitutionally protected right, the fight will be far from over.
This is a foregone conclusion. Eventually all people in the United States will be allowed to marry the person they love, regardless of their sex. It’s just a matter of timing, now.
And you know what? Bully for us.