Photo courtesy of iStockphoto.
Marriage equality is coming to America one state at a time, and I am one of those romantic souls who sees this as the civil rights issue of our time. The issue has been in the news lately, with the 9th District Court of Appeals declaring California’s Proposition 8 Law unconstitutional due to the unequal prohibition of marriage for same-sex partners, a decision not likely to go uncontested, surely ending up with the umpires on the Supreme Court. The notoriously Wall Street and media shy CEO of Goldman Sachs, Lloyd Blankfein, has called for marriage equality in a recent commercial, a seemingly unlikely spokesperson to undertake this effort. And in my home State of Washington the Senate and the House of Representatives have passed a bill to legalize same-sex marriage, and the Governor has signed this previously outlawed liberty into law. Let freedom ring for the liberation of marriage.
This will not go unchallenged of course. Those who are opposed to the liberty of marriage will likely gather the signature they need to get a measure to overturn the law on the ballot. A referendum of repressive repudiation will need to be repelled by those who respect the rights of same-sex couples to join in marriage. This means there are essentially two potential paths to marriage equality in Washington State, either the people of Washington State affirm it by voting down a referendum challenge, or the US Supreme Court rules that the denial of marriage equality is unconstitutional, which makes the voting outcomes a mute point. I will address the Constitutionality of marriage equality first, and then I will turn to some typical arguments against same-sex marriage to consider if these contentions are compelling.
The Supreme Court and the Constitutionality of Same-Sex Marriage
The Supreme Court has yet to take up the issue of marriage equality, but there have been cases involving the liberty interest in free marriage, such as Loving v. Virginia, as well as some controversial cases that delve into gay rights, such as Bowers v. Hardwick and Lawrence v. Texas. It is useful to examine the arguments in these cases as they will certainly be similar to the arguments one would expect in a Supreme Court debate over same-sex marriage. The Fourteenth Amendment’s Equal Protection and Due Process clauses play a pivotal role in the relevant Supreme Court cases and doctrine, so it is helpful to read these provisions first and foremost.
…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws…
In the Loving v. Virginia case in 1967 the Supreme Court declared the right to marry who we choose is a fundamental right under the Constitution. The Court struck down a statute in Virginia which barred interracial marriages, on the grounds that this violated the Equal Protection Clause of the Fourteenth Amendment, and given the fundamental right to marriage the statute also violated the Due Process Clause. In a unanimous decision, the Court proclaimed:
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 discrimination. 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.
In 1986, the Supreme Court ruled in Bowers v. Hardwick that a Georgia law outlawing heterosexual and homosexual sodomy was Constitutional, even if the law was selectively enforced against homosexuals. Justice White, writing the opinion of the Court, argued that the Fourteenth Amendment’s Due Process Clause must not be continually used to create new rights out of thin air, and that granting a fundamental right to homosexual sodomy was taking it too far. Chief Justice Burger and Justice Powell, who both joined the Court’s line in the sand, also wrote their own concurring opinions. The Chief Justice dove into the historical tradition of despising, and punishing, those who engage in homosexual sodomy, to the point of even suggesting that allowing homosexual relations may be worse than allowing rape. Powell’s opinion agreed with the Court’s central ruling that the Georgia law was not unconstitutional under due process, but he indicated that it may have violated the Eighth Amendment’s prohibition of cruel and unusual punishment, if the state actually attempted to enforce the 20 year prison sentence proscribed.
The narrow decision was opposed by four of the Justices, who offered a couple of dissenting opinions. Justice Blackmun argued that the Court was missing the point altogether. The case was not about a right to homosexual sodomy, but was about the fundamental right of individuals to make their own decisions about the most intimate ways to express themselves without government intrusion. The nature of a sexual relationship is therefore too intensely personal to be regulated by the state, even if other people’s belief systems teach them that homosexual sex is immoral or to be despised. Justice Stevens, in another dissent, pointed out the fact that the Georgia statute prohibited sodomy generally, but was selectively enforced only against homosexual acts, which created an additional Constitutional problem for the law. After he retired, Justice Powell, one of the five Justices to vote with the majority in Bowers v. Hardwick, said that this was the one vote he made during his tenure on the bench where he thought he got it wrong, and upon reflection would have voted the other way and changed the outcome of the ruling.
In 2003, The Supreme Court heard another case involving a law that banned homosexual sex, but this time, in Lawrence v. Texas, the 6-3 ruling was a complete reversal of the Court’s previous stance. Justice Kennedy delivered the opinion of the Court, which was joined by Justices Stevens, Ginsburg, Breyer and Souter. Kennedy found that the “liberty” granted under the Fourteenth Amendment’s Due Process Clause includes a right to engage in intimate sexual behavior in the privacy of the home. Whether this behavior is engaged in by heterosexual or same sex couples is beside the point. The Court overturned the precedent set in Bowers on the grounds that the previous decision failed “to appreciate the extent of the liberty at stake” when it defined the issue as only being about a right to homosexual sodomy. Justice Kennedy, writing for the Court, said, “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate contact.”
The decision also rejected Chief Justice Burger’s claim in Bowers that there is a strong legal tradition of barring homosexuality. Rather the legal history shows that the focus of legislation regarding sexual contact was intended to regulate procreation generally, and so more recent rulings like Planned Parenthood v. Casey, which upheld procreation rights as fundamental under the rubric of privacy and the Due Process Clause, offered better guidance on the matter than Bowers. Justice O’Connor, concurred with the Court’s ruling, but having been on the other side of the vote in Bowers she explained in a separate opinion that she could not overturn the previous decision. O’Conner found that the Equal Protection Clause on the Fourteenth Amendment, due to the discriminatory nature of the Texas law’s application, was the grounds on which she could agree to overturn that Texas statute only.
The dissenting opinions in Lawrence came from Justices Scalia and Thomas, with Thomas and Chief Justice Rehnquist also joining Scalia. In the first dissent, Scalia argues that the Court erroneously ignored the precedent set by Bowers in favor of that set by Casey. He also contends that the doctrine of substantive due process should only be used to overturn a law, on the basis that it violates a fundamental liberty interest, if it applies a test of “heightened scrutiny” to determine whether the alleged liberty interest is deeply rooted in tradition. Thomas’ additional dissent agrees with the previous points but argues that the law is wrong substantively, and although it ought to be repealed by the Texas legislature, it was nonetheless Constitutional. These arguments in Lawrence v. Texas are sure to be similar to any hypothetical Supreme Court hearing on marriage equality.
Philosopher Jeffery L. Johnson, in his treatise “Privacy, Authenticity & Equality: The Moral and Legal Case for the Right to Homosexual Marriage”, argues that our current understanding of the rights to equality, liberty, and the pursuit of happiness should lead us to support same-sex marriage. He articulates the liberal view of freedom and happiness, illustrating the strong moral grounding within the utilitarian and social contract traditions for equal liberty and the autonomy of the individual, at least in matters of personal conduct that cause no harm to others or society as a whole. Although, he does acknowledge that communitarian thought may justify traditional moral prohibitions on other grounds besides harm. Here Johnson shows that another way to think about liberty involves the notion of being true to one’s self, that true autonomy requires a certain authenticity.
It’s not that the gay couples are denied something they want (which they are), nor that they face a sever restriction on their personal liberty (which they do), but that they are forced to deny something that truly defines who they are for reasons that often seem arbitrary, prejudicial, and almost superstitious. (Johnson 7)
While the autonomy of the individual may be the way that most Americans see Constitutional liberty in the year 2012, especially if you are a Ron Paul supporter, this is not how the Supreme Court has traditionally viewed liberty. The American legal tradition has been more along the lines of ordered liberty, or liberty under the laws, a system in which the rights of the community must be balanced against those of the individual. The Tenth Amendment to the Constitution reserves authority to the states for regulating their inhabitants in circumstances not directly addressed in the Constitution, conferring upon the states a Police Power. The Police Power is the authority of the states to regulate behavior for the purposes of bettering the general welfare, safety, health, and morals of the community.
The Court has wrestled with various doctrine on how to weigh the supremacy of individual rights over the state’s interest in regulating behavior in any given situation. The Justices must first determine if the right in question is a fundamental liberty, which has involved different tests over the years, for example is it “implicit in the concept of ordered liberty?” (Finn). Justice Scalia has argued for the test of heightened scrutiny, which suggests that for a right to be fundamental it must be deeply rooted in the history and traditions of America. Doctrinal tests may not help to enlighten us on whether same-sex marriage is a fundamental right, since Scalia would surely find that same-sex marriage is not deeply rooted in society, while a liberal on the Court like Justice Ginsberg is likely to find that the right to marry who you choose is rooted in the tradition. The real question, and the one I don’t have an answer to, is what will Justice Kennedy do? If California’s Prop 8 comes before the Court, it is likely the moderate Anthony Kennedy who will decide the outcome. There are indications he could go either way. Given this ambiguity, and the potential for narrow and California specific ruling on the Constitutionality of Prop 8, so Washington State voters should affirm marriage equality democratically to ensure that we recognize this right for all.
The Not So Compelling Arguments Against Marriage Equality
The most common argument against the legalization of same-sex marriage is that it violates the traditional notion of marriage as that of a union between one male husband and one female wife. This argument has value if there is additional support for a tradition beyond that it is simply traditional, since the warrant that tradition is synonymous with good or better stands in for the actual argument against same-sex marriage. Tradition alone is neutral and relative, since it necessarily involves social norms that have been passed down through indoctrination into a culture from the point of birth. As Americans, we may have different traditions than other cultures, but we also have different cultures within our nation, including some who may view traditional marriage as an arranged marriage. We might think our own traditions are better and special, or serve some unique purpose in our success up to this point. Certainly the traditional heterosexual marriage, and the corresponding traditional family unit, have played a pivotal role in our history, but the notion that this legacy precludes the successful existence of untraditional or liberated forms of marriage does not logically follow.
The argument from tradition may often be buttressed by claims about the risks to children who are brought up under untraditional family structures. Of course the typical points about the family unit are made for the purposes of prohibiting marriage among same-sex couples, while similar arguments are never made to advance the prohibition of other known problems in family structure. For example, it could be argued that divorce, single parents, teenage parents, poverty, or even having two working parents, are larger contributors to risks of childhood delinquency than having parents of the same-sex. So-called defenders of the family do not seem to be proposing to outlaw of these other family structures. Data collected from the U.S. National Longitudinal Lesbian Family Study (NLLFS) shows that children who are reared by lesbian parents scored as well as, and sometimes even better, in tests of social adjustment (Park). The most likely source of social problems actually comes from teasing or bullying by outsiders, suggesting that any negative impacts on social adjustment spring from societal prejudices and not from the family structure itself.
If you dig deep enough, the opponents of same-sex marriage, and the normalization of gay rights more generally, tend to have a religiously tinged resistance on moral grounds. This feeling about the immorality of homosexuality does not need to be well defined or justified for many people. It could be the honoring of a specific religious proscription or the sense that homosexuality is unnatural, whatever that means. In the end, I believe that the root of the culture battle over gay rights has to do with the worry by some who believe that the normalization of homosexual behavior will confuse the hallowed and moral teachings that they are introducing to their children, and thus have an interest in its prohibition. The right of same-sex couples to marry is similar to public obscenity from this perspective. The real question here is, how do we distinguish between a justified moral belief that empowers the state with restricting the liberty of marriage, and an antiquated prejudice rooted in fallacy? I think the liberty interest for marriage equality goes much deeper than profanity regulation, and the sensitivity of childrearing to shared culture, or other cultures, is not compelling enough to dictate the unequal rights.
Republican Presidential candidate and former Pennsylvania Senator Rick Santorum is associated with an ultraconservative stance against homosexual rights, not stopping at opposition to same-sex marriage, but audaciously denying that homosexuals have a right to consensual sex in the privacy of the home. Santorum is infamous for his comparison of same-sex marriage to man-on-dog and man-on-child marriage, as well as his lumping of homosexual sex together with polygamy, adultery, pedophilia, incest, and bestiality. While other conservatives may share these views, Santorum’s outspokenness instigated a response from Seattle syndicated columnist and gay-rights activist Dan Savage that led to a sexually lewd definition of the word Santorum to become a top Google search. The validity of Santorum’s arguments need to be examined directly, while the reaction of the gay and lesbian community has interesting implications for the arguments made by conservatives about the gay agenda.
The arguments by Santorum can be thought of in two ways. A sympathetic reading of what he has said in the past is that marriage is traditionally an institution that is limited to a man and a woman for the sake of the family unit and society. From this perspective Santorum is merely making the common arguments from tradition and the family, which I have already discussed, and certainly he does refer to these sorts of justifications for his stance. However, the more controversial aspects of Santorum’s statements are the parade of horribles that he lists after homosexual relations, acts that most of society particularly abhors, including gay and lesbian members of society.
Santorum is either inferring that homosexual relations are either no different than taboos such as bestiality and pedophilia, in their negatives effects on the family and society, or that gay rights are a slippery slope to these other things. I believe Santorum may truly believe the former of these two propositions, although both are fairly problematic. Gay and lesbian rights are self-evidently not identical to a right to bestiality, pedophilia, incest, adultery, or polygamy, since these have deeper moral implications beyond their effect on the traditional family structure itself, involving issues of consent, real physical and psychological harm, animal cruelty, and even the breaking of legal contracts. The slippery slope argument is a logic leap, as it begs the question how a win for homosexual rights would necessarily strengthen something the bestiality or incest agenda, leading to greater rights on those currently non-existent and ludicrous political fronts.
It is interesting to note that the backlash from the gay and lesbian community against Santorum demonstrates a large political force which is able to participate directly in the national debate, engendering growing sympathy from citizens outside the community. This is the growing power of the gay agenda, and the very fact that activists within this group had the determination and ability to establish a new internet definition for the word Santorum invalidates Santorum’s own parade of horribles, since the man-on-dog community has not seemed to have mustered the determination and ability to bring the same attention to any quests for liberties they may be seeking.
Most of the opposition to same-sex marriage seems to be specifically religious. In fact, the only moral theory that really seems to speak directly about the issue at all is Divine Command Theory, which is the idea that something is immoral only if a divine being says it is so. While I think obeying divine commands is a perfectly legitimate way to live, and lends itself to a life of personal virtue, this alone cannot be the basis of secular law under the Constitution of the United States. Plato’s dilemma in Euthyphro is particularly relevant here, ” is the pious loved by the gods because it is pious, or is it pious because it is loved by the gods?” If homosexuality and same-sex marriage are only impious because they are not loved by the gods, then the morality of this issue is not objective enough for our enlightened Constitution and voting public to rightly deny if we are to consider ourselves free people.
Concluding Arguments
My wife’s best friend is a gay man, who participated in our wedding party, standing proudly in line with my wife’s other bridesmaids. I could not imagine our wonderful wedding happening any other way, and this untraditional setup was much less controversial with our wedding guests than you might expect. I find no good reason why he should be barred from someday walking down the aisle with the person he loves, just because that person happens to be another man. The decision to commit lovingly and legally to another person is a personal choice of substantial depth and magnitude for the individual. Yet the importance of this decision to others diminishes the further one moves out in relation to the couple in question, so that for perfect strangers there is no practical consequence whatsoever. Those that argue that there will be negative effects on society with the institution of same-sex marriage fail to recognize the much greater threat of unequal liberty in a free society.
Washington State disapproved Referendum 71 in 2009, but this was an affirmative vote of 53% in favor of guaranteeing same-sex domestic partnerships all of the same legal rights as strait married couples. The Referendum was an attempt by opponents to repeal a law passed by the state legislature earlier that year. But the voters affirmed domestic partnership rights. While this is a great victory for gay rights, it has always bothered me that marriage itself was left off the table. Today the liberation of same-sex marriage is not only back on the table in Washington State, Governor Gregoire has signed a bill passed by the legislature to legalize same-sex marriage. Referendum 73 was filed a few hours later, and if enough signature are collected, the voters will have a chance to repeal the new law, and re-institute marriage inequality (Connelly).
I for one, will be voting ‘No!’ on Referendum 73. For my fellow Washington State citizens who may feel the need to repeal marriage equality with Referendum 73, you need to ask yourself, what is your compelling interest in the matter? What do you think would be a compelling enough reason to justify me legally and oppressively intruding into your fundamental right to marry who you choose to marry?
Jared Roy Endicott
Valentine’s Day Dedications
This essay is dedicated to my wife Mary Endicott, whom I adore and cherish. Happy Valentine’s Day!
I also want to dedicate this to Mary’s best friend Courtney, a proud and excellent member of the bridal party in our wedding.
Finally, I want to dedicate this to Davied Stratton, one of the most beautiful and unique individuals I have ever met, and could ever hope to know, who gave me the best hair cut of my life, an amazing soul who will be missed.
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Works Cited/Used
Cain, Robyn Hagan. “Perry v. Brown: What the California Prop 8 Ruling Means for Gay Couples.” FindLaw. 7 Feb 2012. Web. 11 Feb. 2012.
Connelly, Joel. “Foes of Same-Sex Marriage File Referenum.” The Seattle Post Intelligencer. 13 Feb 2012. Web. 13 Feb. 2012.
Craig Susanne. “Blankfein to Speak Out for Same-Sex Marriage.” The Seattle Times. 5 Feb 2012. Web. 11 Feb. 2012.
Finn, John E.. “Same-Sex Marriages and the Constitution.” Civil Liberties and the Bill of Rights. Chantilly, Virginia: The Great Courses, The Teaching Company, 2006. Video.
Gullo, Karen, and Andrew Harris. “Gay Marriage Case May Go to Supreme Court.” Bloomberg. 7 Feb 2012. Web. 11 Feb. 2012.
Johnson, Jeffrey L.. “Privacy, Authenticity & Equality: The Moral and Legal Case for the Right to Homosexual Marriage.” Eastern Oregon University . 2008. Web. 11 Feb. 2012.
Martin, Jonathon. “Seattle sex columnist gave Santorum a ‘Google problem’.” The Seattle Times. 3 Jan 2012. Web. 11 Feb. 2012.
Plato. Five Dialogues: Euthyphro, Apology, Crito, Meno, Phaedo. Second Ed. Trans. G.M.A. Grube. Indianapolis: Hackett Publishing Company, Inc., 2002 (originals 399-380 B.C). Print.
Bowers v. Hardwick. FindLaw. 30 June 1986. Web. 11 Feb. 2012.
Lawrence v. Texas. FindLaw. 26 June 2003. Web. 11 Feb. 2012.
Loving v. Virginia. FindLaw. 12 June 1967. Web. 11 Feb. 2012.
Planned Parenthood of Southeastern PA v. Casey. FindLaw. 29 June 1992. Web. 11 Feb. 2012.
