Monday, May 4, 2015

Millennia of Marriage, Part II

In Millennia of Marriage, Part I, we covered the first several points of Question 1, of oral arguments before the Supreme Court last Tuesday. The main concern was whether the many nations and cultures that have defined marriage as between a man and a woman did so out of animus toward homosexuals or because of some other rational reason.

The answer was clear that there are rational reasons for limiting the definition of marriage to man-woman relationships.
That question covered most of Ms. Bonauto’s portion, but not US Solicitor General Verrilli’s portion, nor the defense. So the rest of today’s post will cover those portions. It may take a third post to cover Question 2. 

Starting where we left off, the next question is brought up by Justice Alito:
JUSTICE ALITO: Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?
The point here is that, if a marriage is just a governmental recognition of any two people who love each other, then how can you limit the criteria to two people, or any of the other limitations? In all the debates on this I’ve heard over the years, the same-sex “marriage” advocates always avoid this question. They say, “we’re not talking about polygamy,” or whatever. No, they’re not talking about it, because they have no answer.
Ms. Bonauto says it’s questionable whether a state would even call that a marriage. Hmm.
Polygamy, she claims, brings up all kinds of questions about consent and deceit. Justice Alito presses her, with good humor:
JUSTICE ALITO: Well, what if these are 4 people, 2 men and 2 women; It's not the sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today. And let's say they're all consenting adults, highly educated. They're all lawyers. (Laughter.) What would be the ground under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?
She steps into the trap. She claims that the number two is fundamental to marriage. She offers her personal opinions on the disruption to family that could be caused. But she has nothing to explain why the number two must be fundamental to marriage but the combination of man and woman is not.
Questions about the social science. Concerning same-sex parenting, she claims it’s all settled:
MS. BONAUTO: These issues have been aired repeatedly, and there is, as you all have heard, a social science consensus that there's nothing about the sex or sexual orientation of the parent, is it is going to affect child outcomes?
Not so. This statement is repeated later by General Verrilli:
GENERAL VERRILLI: Right now, today, hundreds of thousands of children are being raised in same-sex households. That number is only going to grow. All of the evidence so far shows you that there isn't a problem, and what the and the States' argument really is quite ironic in this respect that it's going to deny marriage, the State…  I think all of the leading organizations that have filed briefs have said to you that there is a consensus in that, and
JUSTICE SCALIA: Well, I think some of the some of the briefs contradicted that.
It is the purpose of the plaintiffs—and the federal government in defending circuit court rulings—to shut down debate by claiming there is consensus. That all the social science of, what, almost a decade in a few places that have had same-sex “marriage” for that long, agree forevermore that children’s outcomes show no differences. And yet the briefs clearly show that consensus is not the case. In fact, the most recent, and mounting, evidence shows a number of negatives for children raised by same-sex parents.[i]
Back to Ms. Bonauto’s testimony, Chief Justice Roberts points out that the length of time for study has been very short, and, “closing of debate can close minds.”
Justice Scalia then expressed concern with declaring something constitutional law, when there’s a lot of disagreement, including for religious reasons. When states form the laws, they can carve out exceptions, but once something is declared a constitutional right, there are no exceptions. What would happen to ministers who perform marriages? Ms. Bonauto said no state forces clergy to perform marriages against their conscience. But that’s the point; state law is able to allow exceptions, while constitutional law cannot.
Furthering this discussion, it was admitted that, while a clergyperson couldn’t be required to perform such a marriage, refusal to do so could lead to government refusing to grant him marrying authority altogether. And justices of the peace or other officials with marrying authority would not be granted religious freedom exemptions.
This issue is bigger than it was made at this point in the discussion. Justice Sotomayor claimed that the First Amendment would protect religious freedom. But it already hasn’t. Everywhere same-sex “marriage” has been imposed, religious freedom has been abrogated. Small business owners have been the most common target. The persecution has been vicious.
This same question arises again during General Verrilli’s testimony. And this was one of the more newsworthy moments of the day.
CHIEF JUSTICE ROBERTS: We have a concession from your friend that clergy will not be required to perform same-sex marriage, but there are going to be harder questions. Would a religious school that has married housing be required to afford such housing to same-sex couples?...
GENERAL VERRILLI: The first [point] is, of course, this Court's ruling addresses what the States must do under the Fourteenth Amendment. And the second point is that when you get to a question like the one Your Honor asked, that is going to depend on how States work out the balance between their civil rights laws, whether they decide that there's going to be civil rights enforcement of discrimination based on sexual orientation or not, and how they decide what kinds of accommodations they are going to allow under State law. And they could well you know, different states could strike different balances.
CHIEF JUSTICE ROBERTS: What about Federal? It's a Federal question if we make it a matter of constitutional law.
GENERAL VERRILLI: But the question of what how States use their enforcement power is up to the States.
CHIEF JUSTICE ROBERTS: Well, you have enforcement power, too.
GENERAL VERRILLI: Right. And, well, that's certainly true, but there is no Federal law now generally banning discrimination based on sexual orientation, and that's where those issues are going to have to be worked out. And I guess the third point I would make, Your Honor, is that these issues are going to arise no matter which way you decide this case, because these questions of accommodation are going to arise in situations in States where there is no same-sex marriage, where there are and, in fact, they have arisen many times. There are these commitment ceremonies. For example, in the New Mexico case in which this Court denied cert just a few months back, that did not arise out of a marriage. That arose out of a commitment ceremony, and these, you know, commitment ceremonies are going to need florists and caterers.
JUSTICE ALITO: Well, in the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?
GENERAL VERRILLI: You know, I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I don't deny that. I don't deny that, Justice Alito. It is it is going to be an issue.
Let me summarize that: Clergymen might lose their right to marry if they are unwilling treat same-sex couples the same as man-woman couples, regardless of their religious beliefs. People in service industries related to weddings can be forced to offer their services, regardless of their religious beliefs—and possibly regardless of whether or not same-sex marriage is called constitutional. And religious schools will be affected—lose tax-exempt status, lose accreditation, etc.— if they teach their religious beliefs about marriage.
If you're wondering how granting same-sex "marriage" affects me, there it is.
Is there any possibility that anyone thinks the founders who wrote the First Amendment expected that amendment to be thrown out because same-sex couples want to change the definition of marriage?
The two sides define what marriage is differently. Ms. Bonauto referred to “intimate and committed relationships” to “provide mutual support.” Justice Alito asks for a definition directly from General Verrilli:
JUSTICE ALITO: What do you think are the essential elements of marriage as it exists today?
GENERAL VERRILLI: Well, I think the essential elements of marriage are the ones that are that the the obligations of mutual support and responsibility and the benefits surrounding marriage that State law provides to ensure that there is an enduring bond, that enduring bond that continues over time and lasts, hopefully, till death do us part, through the end of life. And that and with and and, certainly, childrearing is bound up in that.
So, it’s a relationship of mutual enduring support. And, as an afterthought, the two people might rear children that don’t necessarily result from the relationship—and in the case of same-sex couples absolutely cannot result from the relationship.
Justice Alito challenges this assertion with a situation that seems to strike the Solicitor General as random and unrelated, even though it’s right to the point:
 JUSTICE ALITO: Well, let's think about two groups of two people. The first is the same-sex couple who have been together for 25 years, and they get married either as a result of a change in State law or as a result of a Court decision. The second two people are unmarried siblings. They've lived together for 25 years. Their financial relationship is the same as the same-sex couple. They share household expenses and household chores in the same way. They care for each other in the same way. Is there any reason why the law should treat the two groups differently?
This question came up some years back when some states were considering civil unions; some people on the side of preserving real marriage were willing to compromise on civil unions—provided that elderly siblings and other non-sexual unions could be included. But General Verrilli has some internal definition of what marriage is supposed to be that wouldn’t allow it:
GENERAL VERRILLI: But, of course, marriage is something more fundamental than that. It is an enduring bond between two people.
He doesn’t answer what the difference is. But what he’s avoiding saying is, you can’t have marriage without a sexual relationship—and we’re all going to ignore the fact that it’s a different sexual act that separates real marriage from same-sex “marriage.”
The defense counsel was John J. Bursch. He pointed out that there is this difference in definition.
MR. BURSCH: The marriage institution did not develop to deny dignity or to give second class status to anyone. It developed to serve purposes that, by their nature, arise from biology…Now, the marriage view on the other side here is that marriage is all about love and commitment. And as a society, we can agree that that's important, but the State doesn't have any interest in that. If we're trying to solve that social problem I just described, where there's no marriage, we wouldn't solve it by saying, well, let's have people identify who they are emotionally committed to and recognize those relationships.
Marriage, then, is a social institution intended to bind mothers and fathers to each other so that they will be bound to their offspring.
Most of the interrogation of Mr. Bursch related to how laws deal with procreation. What several of the justices seem to be unaware of is the way courts have historically dealt with fertility. It has always been the assumption of the state that a man and woman who marry may be fertile.  The women on the court seemed especially unable to grasp the concept that if you change what marriage is, you change the outcome to society.
MR. BURSCH: Justice Kagan and Justice Ginsburg, it has to do with the societal understanding of what marriage means. This is a much bigger idea than any particular couple and what a marriage might mean to them or to their children. And when you change the definition of marriage to delink the idea that we're binding children with their biological mom and dad, that has consequences….   
Justice Sotomayor was too obtuse to grasp the connection. Traditional marriages end, and some parents leave their children; therefore there is no connection created by marriage between mothers, fathers, and their children. He tried again:
MR. BURSCH: Justice Sotomayor, there's all kinds of societal pressures that are already delinking that reason that the State, again, is for marriage, keeping kids and their biological moms and dads together whenever possible.
That last point was something he does not need to prove, Justice Scalia reminds us. The side of traditional marriage does not need to prove there is harm by allowing same-sex couples to “marry”; they prevail if they show they have a rational basis for the definition of marriage.
Mr. Bursch drew this connection between mothers, fathers, and children again and again. And the justices kept asking questions about fertility—ignoring that individual homosexuals are not typically infertile; it is their coupling that is infertile. Biology makes the difference.
When talking about the long-term consequences of changing the definition, he gave this clear explanation:
MR. BURSCH: I want you to think about two couples that are identically situated. They've been married for five years, and they each have a 3-year-old child. One grows up believing that marriage is about keeping that couple bound to that child forever. The other couple believes that that marriage is more about their emotional commitment to each other, and if that commitment fades, then they may not stay together.
A reasonable voter, which is what we're talking about here, could believe that there would be a different outcome if those two marriages were influenced by those two different belief systems.
Mr. Bursch refers to the argument as a rational basis for keeping the definition, which is the requirement of the case. But that’s not what Justice Sotomayor is going to judge on. She says,
JUSTICE SOTOMAYOR: But the problem is that even under a rational basis standard, do we accept a feeling? I mean, why is why as and I think Justice Kagan put the argument quite clearly, with something as fundamental as marriage, why would that feeling, which doesn't make any logical sense, control our decision-making?
She seems ignorant of the fact that she is considering imposing same-sex “marriage” on the entire country based on her feeling that it’s more fair to honor homosexual couples’ feelings, rather than the rational basis standard.
The weirdest line of questioning came from Justice Kagan, about the possibility that a state could limit licenses to only those couples who will procreate.
JUSTICE KAGAN: Suppose that there's a State with a very procreation centered view of marriage of the kind that you're talking about. And it you know, so emotional commitment and support, all of these, the State thinks are not the purpose of marriage and they want their marriage licenses to be addressed only to the things which serve this procreation purpose. And so they say, Well, we're not giving marriage licenses to any to anybody who doesn't want children. So when people come in and ask for a marriage license, they just ask a simple question: Do you want children? And if the answer is no, the State says, no marriage license for you. Would that be constitutional?...
MR. BURSCH: Would it be constitutional?... I think it would be an unconstitutional invasion of privacy to ask the question.
Justice Kagan seemed shocked.
JUSTICE KAGAN: To ask if you want children is an unconstitutional invasion of privacy?
These are your justices, unaware of the assumption of fertility in marriage law, but thinking it must be constitutional to ask questions about not only fertility, but intent to procreate—in granting licenses And add in maybe judging whether someone is too old to procreate. But they think it’s definitely wrong not to alter the definition of marriage to include same-sex couples.
I wonder how they’d feel about asking the question of whether the couple plans to engage in the male-female sex act that can result in marriage. Because that is an assumption that applies to actual marriage. If one of the couple comes back later and says, “My spouse refuses to engage in marital relations with me,” that is cause for annulment.
Getting into some of the nitty-gritty, about fundamental rights, and how the Windsor case dealt with them, Mr. Bursch reminds Justice Breyer what his ruling said:
MR. BURSCH: In Windsor, this Court said that the limitation of marriage to opposite-sex couples has always been thought to be fundamental.
Mr. Bursch was well-prepared and fended off the often oddball questions admirably. There were things he was prevented from saying, because of previous rulings of this Court. The Court previously bestowed upon us this unlaw-like and irrational standard: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”[ii] So, if a person wants to define homosexual behavior as meaningful, the rest of us are required to go along? Who gets to determine that my “concept of existence,” and so forth is not valid? It’s not a very exact standard.
I would have liked for Mr. Bursch to point out that no homosexuals are prevented from marrying. The closest he was able to come was to say that sexual orientation isn’t mentioned in marriage law. The basic fact is, homosexuals can marry—a person of the opposite sex, not already married, not too close a relative, and who is of the age of consent—just like the rest of us.
The plaintiffs are twisting facts when they say homosexuals are prohibited from marrying; they are not. They keep saying homosexual couples are prevented from marrying; that is so. Already married people are also prevented from marrying, and the plaintiffs seem perfectly content to discriminate against those possibly “bonded and mutually supportive” people.
It seemed to me that the plaintiffs’ counsel and the Solicitor General were unprepared for the questions that came to them. It’s possible that they live insular lives, surrounded by people who agree with them. All they would have needed was to read an article or two by Ryan Anderson[iii]; the arguments are well covered. Yet they seemed surprised by them. They thought they could get by with, gay couples have a right to marry, because, um, because they, um, want to marry, and they should get what they want.
The defense is required only to show that there is a rational basis for defining marriage as it has been done for millennia. The defense of marriage was strong, and clear, and fully aware of the law. Nevertheless, some of the justices seem to be unaware of their job, unaware of current marriage laws, and unaware of the very real dangers to society and religious freedom if they capriciously invent a new constitutional “right.”
If they paid attention, they must allow real marriage to prevail. But, while I was given hope by the oral arguments, I cannot predict what they will rule.
Question 2 assumes that the right to traditional marriage is upheld. Then what happens across state lines? We’ll look at that in Part III.

[i] Citations related to same-sex parents and children’s outcome:
• Parliamentary Report on the Family and the Rights of Children, January 2006.
• Douglas Allen, “Review of the Economics of the Household,” October 2013, described in “A Married Mom and Dad Really Do Matter: New Evidence from Canada,” by Mark Regnerus: 
• Loren Marks, “Same-sex parenting and children’s outcomes: A closer examination of the American psychological association’s brief on lesbian and gay parenting,” Social Science Research, Volume 4, Issue 41, [     ] July 2012, pp. 735-751.
• Mark Regnerus, “How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study,” Social Science Research, Volume 41, Issue 4, July 2012, Pages 752–770.
• Ana Samuel, “The Kids Aren’t All Right: New Family Structures and the ‘No Differences’ Claim,” The Witherspoon Institute, June 14, 2012, [See the footnotes as well.]
• Ann Bailey, “How do children fare when reared by same-sex couples?” United Families International Blog, June 11, 2012 [has an excellent graphic]:
[ii] 505 U.S. 833, 851 (1992) (plurality opinion of O’Connor, Kennedy and Souter, J.J.).
[iii] Here is Ryan Anderson testifying in Indiana last year:

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