I was delighted to see the Supreme Court of the United States catch up with the Supreme Judicial Court of Massachusetts, and hold last week in Obergefell v. Hodges that same-sex couples must be allowed to marry on the same terms as opposite-sex couples. That result seems to me a perfectly straightforward application of well-established legal principles, in particular, the Fourteenth Amendment’s guarantee of equal protection under the law. Laws saying that same-sex couples can’t get married are obviously “discriminatory” in the literal sense of that word – they discriminate between people by denying a particular group of people benefits that other people get. The state therefore has to justify the discrimination under the Equal Protection Clause, and in this case, they can’t. And that’s pretty much it. (Legal wonks: yes, there are complications relating to levels of scrutiny and the like – see the flip for more – but that’s the basic idea.)
Unfortunately, that’s not the approach that Justice Kennedy took in writing the Court’s majority opinion. Instead, Kennedy delivered a soaring paean to the institution of marriage (sorry unmarried folks, you’re missing out on “our most profound hopes and aspirations”), and then went on for pages about autonomy, personhood, destiny, and dignity – all interesting and worthy topics, to be sure, but topics that are not well defined in legal terms. He concluded as a result that the Court’s doctrine of “substantive due process,” specifically its “fundamental rights” jurisprudence that preserves rights deemed “fundamental” (by the Court) from government interference, gave same-sex couples the right to marry.
Substantive due process is risky territory (in addition to being something of an oxymoron). Most notoriously, in the early 20th century, the Court repeatedly used substantive due process to invalidate a variety of worker protection and other progressive state laws in the so-called Lochner era, on the ground that they interfered with the supposedly constitutionally-protected liberty of workers to enter into any kind of contractual arrangement they pleased, however exploitative it may have been. (Lochner v. New York itself invalidated a New York law limiting the number of hours that bakers could work in a single day to 10.) Over the years, substantive due process has been criticized as simply an excuse for judges to enact their policy preferences into law, and there is a kernel of truth there. For a similarly skeptical take on Kennedy’s opinion from another supporter of equal marriage, you can read Brian Beutler at TNR.
None of which is to say that I disagree with what Kennedy’s opinion said about the importance of marriage. I actually agree with a lot of it. But he could have gotten most of that in had he used the better-established, less-prone-to-judicial-abuse doctrine of equal protection. An equal protection analysis would have required the Court to examine the stated justifications for the marriage bans, and to assess whether they are good enough to justify discriminating against LGBT people. The answer, of course, is that they aren’t, and much of Kennedy’s rather free-floating commentary about marriage could have been put to better use in supporting that conclusion.
But is there really anything wrong with Kennedy’s opinion? Maybe. One possible problem with giving constitutional protection to, say, “dignity,” which is more or less what Kennedy did, is that it’s not hard to imagine “dignity” cropping up in other contexts where the result might be far less pleasing to those of us who liked the result in this case. For instance, to return to everyone’s favorite example, is it so hard to imagine a Christian baker claiming that having to make a wedding cake for a gay couple infringes not only on her free exercise of religion, but also on her dignity? Is there a legal basis for distinguishing a constitutionally-protected dignity interest from a non-protected one, beyond garnering the vote of a majority of judges on whichever court is hearing the case? Will we now face a barrage of dignity-based lawsuits, with the courts having to distinguish among the various types and manifestations of “dignity” that come before them? I’m not sure that’s a road down which we want to travel very far.
In other words, I think that the Obama administration’s suggested approach was right. In arguing that the marriage bans should be struck down, the administration relied solely on equal protection, and did so in exceptionally convincing fashion (to me, at least). You can read the whole brief for the United States here (PDF). I’ve pasted in the brief’s summary of argument on the flip. (Disclosure: Stuart Delery, one of that brief’s principal authors, is a friend and former colleague.)
The marriage bans challenged in these cases impermissibly exclude lesbian and gay couples from the rights, responsibilities, and status of civil marriage. These facially discriminatory laws impose concrete harms on same-sex couples and send the inescapable message that same-sex couples and their children are second-class families, unworthy of the recognition and benefits that opposite-sex couples take for granted. The bans cannot be reconciled with the fundamental constitutional guarantee of “equal protection of the laws,” U.S. Const. Amend. XIV.
A. This Court has appropriately recognized only a small set of legal classifications as constitutionally suspect and subject to heightened equal-protection scrutiny. Classification on the basis of sexual orientation presents the rare circumstance of a classification that should be added to that list. Sexual orientation satisfies all four factors that this Court has looked to in determining whether to recognize a suspect class. First, lesbian and gay people have been subject to significant and continuing discrimination in this country. That history includes criminalization of intimate relations, treatment as deviants, denial of rights to care for children, targeting in hate crimes, and limitation of employment opportunities. See pp. 3-6, supra. Second, sexual orientation bears no relation to ability to participate in and contribute to society. Lesbian and gay people make critical contributions in every significant area of this Nation’s life. Third, discrimination against lesbian and gay people is based on an immutable or distinguishing characteristic. Sexual orientation is a core aspect of a person’s identity, and it defines lesbian and gay people as a class. Fourth, lesbian and gay people are a minority group with limited political power. Recent progress toward eradicating some of the harshest and most overt forms of discrimination has in significant respects been the result of judicial enforcement of the Constitution, and legislative gains have often generated political backlash. Heightened scrutiny under the Equal Protection Clause is particularly appropriate in the context of legal barriers to marriage. A State should be required to present an especially strong justification for a law that excludes a long-disadvantaged class of persons from an institution of such paramount personal, societal, and practical importance.
B. The marriage bans at issue here cannot survive heightened scrutiny because they are not substantially related to an important governmental objective. Respondents’ contention that the marriage bans encourage biological parents to jointly raise children ignores the many non-procreative aspects of marriage, assumes counterintuitively and without evidence that allowing same-sex couples to marry would discourage opposite-sex couples from staying together, and unjustifiably disfavors children raised by same-sex couples by denying those couples the same incentives to remain together. Respondents’ contention that the marriage bans further a state interest in proceeding with caution before departing from the traditional understanding of marriage echoes similar arguments advanced, and properly rejected, in other contexts, such as integration of public facilities and interracial marriage. And respondents’ contention that the marriage bans return the issue of marriage to the democratic process simply begs the question whether those bans exceed the limits that the Equal Protection Clause imposes.
C. The Court’s recent decision in United States v. Windsor, 133 S. Ct. 2675 (2013), reinforces the conclusion that the state marriage bans are unconstitutional. In Windsor, the Court held unconstitutional a federal statute that denied recognition to same-sex couples who were validly married under state law, notwithstanding attempts by the law’s defenders to justify the statute on substantially the same rationales that respondents advance here. The primary distinctions between these cases and Windsor—that these cases involve state rather than federal law, and that petitioners seek not only recognition of existing marriages but also licensing of new ones—mean that the marriage bans here inflict even more legal and practical harm than the law at issue in Windsor. They impose a more direct stigma that is all the more painful because its source is the home State and not the federal government; they exclude lesbian and gay couples from the institution of civil marriage; and they deprive the children of those couples of equal recognition of their family structure. There is no adequate justification for such a discriminatory and injurious exercise of state power.
From last years 7th Circuit ruling. Particularly his use of the rational basis test and firmly grounding it in equal protection. I too was troubled by the dignity paen for the same reasons you mentioned. I would hasten to add that equal protection was part of the reason, albeit the third one listed, for this decision.
…between one’s dignity based on who they are as a person and based on how they feel about something.
…that the courtwo made in Roe vs. Wade, basically glass it upon a privacy argument rather than an equal protection one.
If you walk into a room and kids are fighting over the remote and what to watch on TV, what do you do? You shut off the TV.
When gays started arguing for their legitimate concerns over marriage we should have shut off all marriage. Civil unions for all. Marriage was performed by religious concerns for years, it should have been a civil function. (Ya,justice of the peace were available but) Strict separation of church and state.
Long standing traditions shouldn’t be changed for light and transient reasons but when they are they should be fixed as completely as possible. In many other cultures polygamy is the norm. If the govt can’t tell you who you can love how can they tell you how many you can love. Civil unions would solve things like the formation of a corporation, you can have two partners, or three, etc.
when global warming became a problem 30 years ago.
Could we have even eliminated the state’s involvement in marriage? Would that have been constitutional? Certainly, the political will was not there.
As scott12mass has observed, by transferring ALL legal aspects of marriage to civil union, we absolutely could have eliminated the state’s involvement in marriage. After all, the Roman Catholic church and several Protestant denominations have been performing solemn rituals with absolutely ZERO civil implications for generations. Confirmation, for example, is a sacrament and is central to believers. That has no civil significance whatsoever. It is perfectly reasonable for the state to do the same with marriage, so that “Marriage” is another religious ritual with no civil implications whatsoever.
I see no particular constitutional issues. Civil marriages have always been available. If anything, the Establishment Clause would seem to encourage a shift in government involvement from marriage and to civil unions. People who want to get married already have to obtain a license local government authorities, and people who are not ordained are already able to sign the marriage license. It seems to me that removing the state from its involvement in marriage (and replacing it with civil unions) requires only a very minor re-arrangement of pieces already on the board.
On the other hand, Europe has been that way for a very long time now. I think few would argue that Europe is ahead of the US in acceptance of members of the LGBT community.
Marriage by any other name would be a civil union. What’s the difference between the two?
Also practically speaking, now that we have marriage equality, who’s going to make a push for changing it to civil unions?
That’s all it takes. A dozen years ago Arlene Issakson opposed that as a trick but I still think it would have satisfied all parties. A conservative Christian friend asked how that would affect marriage and divorce and I pointed out to him that these matters would have become the purview of ecclesiastical courts. He thought that was wonderful.
The only interests of the state in marriage or partnership centers on property rights, legal next of kin, and inheritance. The Romans solved this with adoption; we can do so with civil partnerships and no need for the augers to check the entrails.
That’s what MGL Ch 25 establishes…
Perhaps you meant chapter 207…?
Except that a Mormon ecclesiastical court, for example, might be tempted to allow polygamy. Polygamy is an inherently unequal situation that historically has regarded women as little more that slaves or property. Other ecclesiastical courts might be tempted to either enforce marriages as racial doctrine or forbid marriages outside the sect. No ecclesiastical court is going to govern itself according to fairness and equal rights when ecclesiastical doctrine is at stake.
I was married by a Justice of the Peace in 1998. Under your purview of ecclesiastical courts this would not have been available to me. I deliberately spurned any ecclesiastical involvement… despite being a lifelong believer… because I saw people of a previous generations treated very poorly when they wanted to do something against church doctrine: you can’t imagine the kerfuffle when a Catholic wanted to marry a Protestant; and that was tame compared to when race became involved. I can imagine long dead members of my own family with exploding heads at the very thought of gay people marrying… Indeed, a few would probably have their heads explode at the very thought of gay people…
As I said, my conservative Christian friend liked the idea of church authorities deciding church performed marriages. Since your marriage was not performed by a religious authority, their oversight would be irrelevant to your situation, by your choice. I am rather older than you, and am perfectly aware of some denomination’s strictures regarding remarriage, divorce, the charade of annulment, etc. But people chose to recognize those authorities.
As far as polygamy goes, there are already news reports of applications for polygamous marriage licenses, and it will be interesting to see the courts try to find a logical reason to deny them.
… polygamy is an inherently un-equal situation. It is not a union of equals. It is historically fraught with implications of chattel slavery and property-holding and not, therefore, a true union. Polygamy is probably exhibit number one why we don’t let religions run things: they don’t do it on the basis of fairness or equality but upon arcane interpretations of dead languages and prophet ecstasies.
What do you think of arranged marriages? Are they OK? Some polygamous marriages may be entered into much more willingly/equally than arranged marriages.
Any person who allows a religious figure to “talk them out of” something they want to do needs to develop a backbone.
Monogamous marriage pretty much DEFINES chattel slavery and property holding disguised as “family”. If we’re going to examine history, then surely the learning is that it is religious marriage itself — regardless of the cardinality of the relationships — that is “historically fraught” with a truckload of horrific consequences.
I’d say that MARRIAGE is “is probably exhibit number one why we don’t let religions run things” — polygamy is a tiny sideshow on a bandstand in outermost Mongolia.
Polygamy is an n-way contract, where marriage is a simple two party contract. There is plenty of laws, precedent and existing social infrastructure for dealing with such two-party equal contracts. Dealing with even a three-way contract is much more complicated. There is no simple way to balance the rights of two parties with respect to each other when a third party is thrown into the mix. It gets even worse as more parties are added: if there are n parties involved there are n * (n – 1) / 2 different two-way relationships to consider.
So ignoring all the other valid issues one may bring up with polygamy, it could simply be rejected as not being even remotely similar to existing two-way marriage contracts and therefore should require explicit legislation to specify how it should work.
Thank you for the correctcorcorrection, less for the nasty sarcasm.
In our culture, where protection from disease and unwanted pregnancy is readily available, I have no problem with a group of adults choosing to marry. Presumably same-sex divorce is also available throughout the land, and I think that addresses questions about the longevity of such an arrangement.
I disagree that “Polygamy is an inherently unequal situation”. There is no particular reason, other than precedent, why “polygamy” should involve one man and several women. Threesomes involving two men and one woman have been common in some social groups (some of them long-lasting) for quite some time. Foursomes, of any mix of gender and gender preference, also occur. Surely we can imagine three women or three men choosing to marry. How would your asserted “inherent” inequality show itself in a marriage joining three women? I see no “inherent” reason why the participants in such relationships can’t be equal, especially in the eyes of the law.
Surely the history of monogamous marriage, especially in the Abrahamic traditions, provides a canonical example of “unequal”. The paternalistic and degrading role of women is STILL a central part of CURRENT Roman Catholic dogma. If protecting women from “unequal” roles imposed by marriage is our intent, surely polygamy is the last — rather than first — place to begin.
I can well imagine that a stable threesome or foursome of any of the possible combinations of genders and gender preferences might well choose to avail themselves of the many benefits of marriage. In particular, the tax advantages are significant — especially if the group seeks to purchase real estate. The implications for health care and health records access are significant. Estate planning can be much easier, especially for beneficiaries.
I can’t imagine why any such group would seek any involvement by any conventional religious institution AT ALL.
There is no rational basis for why it needs to be allowed. The Sister Wives are a good example, so long as poly amorous cohabitation is decriminalized, and their court case accomplished that, there is no need to issue multiple marriage liscenses. He already had the right under existing law to legally marry his first wife, and he has responsibilities to the additional wives by virtue of procreation, parental guardianship, child support, inheritance rights, common law domicile arrangements, etc. There isn’t a great case to be made that the additional spouses are denied benefits the first spouse enjoys. It’s not a civil rights issue.
I’m of an age where it doesn’t matter to me, so my comments are purely academic.
It appears to me that the primary motive for our bias towards monogamous marriage is religious belief combined with societal habits formed in the context of religious domination of the institution.
The greatest motivation for the entire institution of marriage has been children. Convenient, safe, and effective artificial contraception has been available for less than a century — not nearly long enough for its profound impacts on culture and tradition to be appreciated.
In a culture where marriage, of any cardinality, is NOT sought for procreation, I see no reason why monogamy is preferable to polygamy.
It seems to me, therefore, that the burden of proof is on those who would restrict polygamy rather than the other way around.
I agree that polygamy doesn’t have to be unequal or non-consensual, and I’m morally libertarian enough to say you can have as many of the opposite sex as you want living with you in your own house. However, only one, presumably your first, should be your lawful spouse with all that entails. The others are roommates be subject to any specific terms regarding children as jconway mentions.
Your final two sentences each offer an unsupported assertion (a “should” statement) without further explanation. These strike me as statements of your opinion rather than motivations for aspects of our legal framework.
Marriage itself is legally complicated — the entire field of “family law” existed long before same-sex marriage. If three people (of any gender identity or gender preference) have chosen to make a lifelong commitment to each other, then your proposal imposes the same draconian judgement on one of them that provoked the entire same-sex marriage dispute. “Roommate” is not the same as spouse.
It seems to me that the burden of proof remains on those who argue that the threesome should not be allowed to marry. Personal opinion does not, in my view, constitute proof — if it did, then we would not now have same-sex marriage (nor inter-racial marriage, nor inter-faith marriage).
…in the eyes of the law, there is ONE person who, at least absent other arrangements, is presumed to be your next of kin, power of attorney, medical advocate, etc. There does seem to me to be a state interest in the stability that arrangement provides. With more than one person who can claim that status you are asking for legal chaos in the event of your death or incapacity.
Your observations were perhaps more accurate during the time when divorce and remarriage was rare. As I observed earlier, whatever “legal chaos” might result has already been with us for decades.
We now have a relatively mature system of guidelines, laws, and legal practices that address these issues as people divorce and remarry. You’ve offered no evidence that extending that framework to include polygamy is impossible or even difficult. To the contrary — I expect the legion of family practice attorneys to welcome the business opportunity polygamy will create.
When you divorce one woman then marry someone else, your second wife becomes the ONE person who takes on the roles described, whereas if you are married to both women at once both could claim those roles and their opinions may conflict.
The legal implications of divorce are far more complex than that, especially if children are involved. Even “traditional” marriage is generally accompanied by an ante-nuptial agreement if either person brings significant assets to the marriage. I don’t see a three-party ante-nuptial agreement as any more complex than any other three-party contract.
Yes, of course conflicts may arise — that’s why we have lawyers and courts. Denying one participant full legal status strikes me as increasing, rather than decreasing, the complexity of such a desired union.
…when I haven’t been married in the first place:)
I didn’t say divorce wasn’t complicated, but you almost by definition are going to have unequal legal rights. When you are married to one person she gets to decide whether to turn off your life support for example. If you are married to two people what happens when they disagree on that particular question? If you have previously designated one wife as the person to make that decision you have rendered the other wife unequal.
Your example of decisions made under the power of a health-care proxy is not very different from what already happens among siblings regarding an aging parent. It’s not uncommon to, for example, identify an order or priority: Suzie, then Mark, then Billy. If Suzie is unavailable, then the decision goes to Mark, etc. A typical health-care proxy includes directives about the wishes of the subject, and the designated persons are expected to conform to those wishes to the best of their ability. Perhaps such an agreement might provide a grievance or appeal procedure if one of the siblings disagrees with a decision made by another. Complicated? Perhaps. Impossibly so? Not at all — such agreements are commonplace now.
I don’t see a polygamous situation marriage being all that different. Yes, there is a certain inequality in that an order is specified. I just don’t see the big deal. If there is an issue with that order, then presumably the parties can work something out — draw lots, assign the lead role based on the calendar, even defer a choice until the need arises.
Multi-party contracts happen all the time. Yes, they are often more complex than two-party contracts. Polygamous marriage is probably more complex than monogamous. I’m just saying that if polygamous marriage is what the parties want, then I suggest our legal system can and should accomodate that desire.
The “pursuit of happiness” is, after all, one of our founding values.
The key reason there has to be a right for LGBT people to marry is that the law has finally recognized what science has known for awhile – that homosexuality is a trait largely beyond the control of the individual. There is no comparable argument that one is a born polygamist whose needs must be met to comply with 14th amendment equal protection requirements. There are way too many reasons that both petr and I have pointed out just not to go there as a matter of law and civil recognition. I guess I also just plain disagree about how big a deal it is.
Ok, so your argument is not about the legal complexity but instead that an individual has no constitutionally protected right to choose his or her marriage partner or partners. That’s a different argument.
As you observe, the “immutability” of gender preference just happened. The Court ruled in Lawrence v. Texas (in 2003) that sodomy laws were unconstitutional. The basis for that decision was not immutability, and was instead “substantive due process” under the 14th Amendment. Thus, the court ruled in Lawrence v. Texas that individual preference was enough to invoke 14th Amendment protections.
The sodomy laws that were struck down extended well beyond homosexual behavior. They included sex with multiple partners (as well as oral and anal sex). In many states, including Massachusetts, they included artificial contraception. ALL were struck down, not just those provisions pertaining to homosexuality. I am unaware of any immutable in-born preference for oral or anal heterosexual sex — yet each is protected among consenting adults under Lawrence v. Texas.
It seems to me that Lawrence v. Texas does, therefore, provide a constitutional basis for arguing that consenting adults who choose to enter a lifelong polygamous commitment have a constitutionally-protected right to do so.
In my view, a fundamental premise of liberty and freedom in America is that each of us is free to do whatever we like unless the people, through their elected government, identify a specific harm of a specific act. Like “innocent until proven guilty”, this principle is something like “allowed unless proven harmful”. Thus, it seems to me that the burden of proof is on the government to show that polygamous marriage is harmful. Your argument posits the contrary — that polygamous marriage shall continue to be illegal unless proponents prove that it is legally protected.
For those who want to join a polygamous marriage, it is a big deal. In my view, America is in the grip of a police-state mentality that empowers the majority to impose its whims, biases, religious beliefs, superstitions, and simple opinions on various minorities. I think we need to dismantle each and every vestige of that mentality.
I think it’s time we return freedom and liberty to the top of our list of shared values.
…Polygamy is inherently unequal. It can’t be made equal. Inequalities in the relationships can’t be papered over or ignored. This is true in moral, emotional and financial terms. It is pure fantasy to think otherwise.
One husband and one wife plus X number of other ‘pseudo-‘ wives (and let’s not kid ourselves, it’s never going to be Y number of pseudo-husbands) is just another lame attempt at ‘separate but equal’. Can’t happen. That circle cannot be squared.
Polygamy is illegal, should be illegal and will stay illegal because it is not and cannot be a union between equals which is — as of today and right now — how marriage is defined. To allow polygamy you would have to change the definition of marriage from that. Not going to happen.
…for reasons I’ve discussed with Tom, but just to play devil’s advocate for a minute, why couldn’t a woman have multiple husbands in the same way a man could have multiple wives if we did allow for it?
I don’t know where to begin, your comment is so filled with “nonsense”.
You repeat your claim, without further illumination, that polygamy is “inherently unequal”. You offer no further elucidation. You assert that polygamy can only be between one “husband”, one “wife”, and some number of “pseudo” wives (or husbands). Again, without further elucidation. Your concluding paragraph merely reflects your unsupported assertions.
I get that one woman choosing several husbands is incomprehensible to you. That, to me, reflects your own worldview and biases rather than any external reality. You gloss over my earlier question about three women or three men who desire a polygamous marriage. Even in your own world, how would the inequalities you posit show themselves? Do you, for example, make the assumption that one of the parties takes on the role of “husband” and faithfully exploits the “pseudo” “wife”? Which of the parties chooses which is the “pseudo-wife”? Is that decision permanent? In fact, it is your own argument that is nonsensical (which perhaps contributes to your reluctance to go beyond arrogantly asserting it).
I titled my earlier comment “you need to get out more” because it sounds as though you have had no contact with people who have chosen polygamy. The assumptions that underlie your comments here are in stark contrast to the experiences of the polygamous people (men and women) I’ve known.
As far as I know, “equals” is a transitive relationship. If a = b and b = c, then a=c. Suppose we are given, for example, men “a”, “b” and “c”. If one pair — say “a” and “b” — choose to marry, then by your definition they are equals and the Court has just ruled that said marriage has the full force of law throughout the land. The same is true if instead “b” and “c” choose to marry. I see nothing intrinsic that says that “a” and “c” are not therefore equals. If “a”, “b”, and “c” then want to marry, you have offered no reason why the resulting union would not be among equals.
I suggest that the revolutionary change this decision reinforces is the recognition that marriage is independent from procreation. In my view, the conservative claim that same-sex marriage ends marriage as we know it is actually correct — it puts a very large nail in the coffin of marriage-for-procreation-only. I am aware of no logical, rational, or objective reason why polygamy is therefore any different. In my view, this is a benefit of this result.
I have yet seen in this thread any objective evidence that polygamy is any different from any other non-procreative marriage.
Can they all go in to visit when it’s family only? That was one of the very sad limitations I always remember gays bringing up when they were fighting for their cause. You can’t just decriminalize, a fair society needs to legitimize.
… as the churches in question often enforced racial homogeneity and heavily discouraged marriage between sects and denominations.
You do not take into account the solemn rituals that wanted to happen but did not, many of the solemn rituals you speak of happened only after a vetting process that involved weaning out undesirable couplings: there was a lot more ‘talking out of’ going on
Not to mention that, present day, many churches are the leading proponents of the notion that gay is not immutable (reparative therapy)
I invite you to cite any state or federal law that attaches any significance to whether a person is or is not confirmed. I’m explicitly NOT talking about rituals involving “couplings”. I’m instead speaking of Bar Mitzvahs, Bat Mitzvahs, Confirmation, and so on.
As far as I know, those have no civil implications whatsoever. I’d like to see marriage (as in the religious ritual) have the same civil status — none whatsoever.
It has always been the case that marriage could, but need not be, solemnized by a cleric. I used to say to those that insisted marriage was a religious term that by that logic any opposite sex couple united by a JP could only have a civil union, but at the same time same sex couples united by a cleric would have to be called a marriage. Now that SCOTUS has said marriage is open to everyone there is no reason that willing faiths and clergy should not retain their roles for couples seeking such services, rather than requiring an additional step.
Until this decision, a same-sex couple was unable to attain the benefits (civil, legal, tax, and so on) of marriage in too many states, whether or not a religious institution was involved. Now that the Court has made this ruling, the “civil union” proposal is moot.
… since, under many religions the ‘coming of age’ ceremony that creates something like a Bar/Bat Mitzvah or confirmed individual marks the age at which that particular religion might recognize the right — sometimes the duty — to enter into a marriage… or have their parents enter them into one…
Under Jewish law the Bat Mitzvah is a women who can marry, though she be but 12 years old. She would be barred from doing so under many state and or federal laws. The 13 year old Bar Mitzvah is a man who can marry, though he, likewise, would be barred from doing so under state or federal laws. That’s a civil implication to the solemn ceremony.
I’m not talking about “Jewish law”. A 13 year old boy or 12 year old girl can undergo whatever ritual he or she wants — they still can’t marry.
The Bar Mitzvah, Bat Mitzvah, or confirmation has meaning ONLY within whatever religion celebrates it. It has no civil implication at all.
.. from above:
To which I replied that this was not true. Your contention is that ‘marriage’ should be strictly the purview of religions and ‘civil unions’ the purview of the government. Applying a ‘what if’ to that scenario I came up with the implications of what you said. Regarding the states involvement in marriage we could have two Jewish children, ages 12 and 13 married in a Jewish ceremony not recognized by the state as a ‘civil union’.
That’s an extreme civil implication. That the churches and denominations have not been doing it (in America) for generations isn’t an indication that it’s not done elsewhere or wouldn’t be done here if allowed.
Another such implication would be child brides, 12 and 13 year old girls, married (religiously) to much older men but not in a recognized ‘civil union’. The religion allows it and, should you restrict ‘marriage’ to the purview of the religion, they will do it. This will conflict with statutory rape laws and is another extreme civil implication.
If we left “marriage” up to the religions and only recognized ‘civil unions’ we would have exactly those situations and others to contend with.
The head of the pin can still be sharp enough to prick.
If “marriage” had the same civil status as “confirmed”, then religions could do whatever they want without civil implications. Same-sex people who wanted the civil benefits of marriage could obtain them in any government office or through the use of any willing celebrant. Religious rites performed on children would have no civil import, just as now. I’m aware of no health care, tax, or estate benefit that depends on any person being “confirmed” in any Christian faith tradition.
In any case, the discussion is moot. The Court has ruled that any two people can marry. Period.
an immense difficulty applying equal protection rights, especially under strict scrutiny, to minority communities — or at least the LGBT community.
Would it really have been that much more of a leap for them to use strict scrutiny when they already legalized marriage equality itself?
I just don’t understand the reticence here. Clearly, for a community where just a couple decades ago it was basically illegal for gay people to exist in the US, strict scrutiny should apply. Just consider the restrictions:
Gay people could be fired or denied housing for being gay (and can still be in a *majority* of states!), and even into the 90s, there were states that made it illegal for gay people to have sex — leading to thousands of gay people being arrested, humiliated and fired from their jobs — and contributing to a health crisis that wiped out a generation of gay people — because they were never allowed to pursue real relationships.
For generations, if someone was outed as gay, they could have their kids taken away by the courts and could be in danger in their own communities.
Cops routinely arrested gay people merely for existing, when they were doing nothing wrong, in gay bars across the country.
And now we’re seeing all these red states react to the marriage equality movement by attempting to legalize religious discrimination against gay people.
How can strict scrutiny not be applied? It’s maddening — and frustrating. Applying equal protection standards, especially under strict scrutiny, would have done a lot to help end the remaining discrimination that exists in so many states across the country.
And we desperately need to do that, because while things seem fine in states like Massachusetts for most gay people, it’s not in many states across the country — and in most of those states across the country, just getting married could lead to people being fired for being gay, so marriage equality is no panacea. Even in states like Massachusetts, we have a long way to go.
So let’s hope the court fixes this in one of their next big LGBT cases — because goodness knows Kennedy’s decision, far from clearing things up, will just create more of them.
My understanding was that strict scrutiny applies when legislation has determined that a certain constituency is a protected class. Therefore, laws would have to first be enacted prohibiting discrimination in housing, employment, etc., which no doubt is what should happen.
Strict scrutiny is an entirely judge-made doctrine, and protected classes are determined by judges, not by legislation.
of the institution of marriage. I found myself, for example, agreeing with this footnote in Thomas’s dissent:
And add mine to the prayers that the substantive due process basis of the decision doesn’t backfire down the road.
…but if you are essentially told you cannot access the 1100 or so legal protections that come with marriage you are being deprived your 14th amendment rights.
I agree that equal protection is the optimal way to go. My Con-Law is a bit rusty, so I inquire (though it may now be moot): what about Full Faith and Credit? Mr. Obergefells was legally married in another state. How could Ohio deny this status?
It is moot now since SCOTUS said every state had recognize such marriages, but the Court could have more narrowly ruled that it was not a fundamental right, but that states have to recognize those performed elsewhere.
… while, yes, the prose is rather tinged with purple, the opinion of the court is really just an underlined and italicized reading of the decisions made in Loving, Turner,Laurence, Griswold and Zablocki all of which include the equal protection arguments as well as the substantive due process arguments. In Kennedy’s opinion on Obergefell, as I read it, the “substantive due process” refers not to the deliberate efforts to deny gays a specific right but rather to the failure to recognize the broad sweep of Loving, Griswold, etc, — which include the equal protections — includes the rights of marriage for any two individuals regardless of the gender. I think what Kennedy is saying is that all the arguments used in Loving etc are applicable and the failure to recognize this is the harm to due process… Not that a specific anti-gay law is lacking in due process… All the arguments in all the previous cases hold up the notion that a ‘due process’ would have let to same sex marriage a long time ago if we could have seen the implications but for the notion that society and institutions and our understanding of gender change slowly.
I share David’s misgivings, for the most part. But here’s a counter-argument that makes sense to me. Or maybe not so counter, but in the same neighborhood.
What is better to have, a privilege or a right? I’d say a right; a privilege can be taken away more easily.
On that score, Obergefell strengthens the institution of marriage immeasurably by establishing it as a constitutionally protected right.
Kennedy could have gotten there differently, and without so much reference to “dignity,” a sort of natural-law argument.
There’s plenty of evidence that states value marriage and have a legitimate interest in promoting and providing for it as an institution. Which is not the same thing as finding that those states have the power to define the institution in a discriminatory way or to award it to some and not others.