The landmark decision of Obergefell
v. Hodges redefined the governmental definition of “marriage” throughout
the United States, ruling that all states must now recognize and promote
“marriage” between two adults of the same sex as equal to marriage as it “has
existed for centuries and millennia.”[i]
But redefining marriage so fundamentally produces a serious unintended
consequence. With the stroke of a pen, five justices on the Supreme Court of
the United States have rendered unconstitutional the government recognition of
"the foundation ... of society, without which there would be neither
civilization nor progress."[ii]
Under the equal protection clause of the 14th amendment,
when a state statute seeks to classify people, the classification is presumed
to be valid, but will only be sustained if the classification drawn by the
statute is rationally related to a legitimate government interest.[iii]
States are responsible for developing and implementing marriage laws, and the
whole point of marriage laws is to classify certain types of relationships.
Marriage laws grant rights and responsibilities to spouses that are not granted
equally to live-in girlfriends/boyfriends or to polyamorous relationships.
These rights and responsibilities bestowed upon married couples show that the
government considers marital relationships as superior over other types of
relationships in the eyes of society. Therefore, under the 14th amendment, the
classification must be rationally related to a legitimate government interest.
What then is the legitimate government interest in
classifying some people as married and others as unmarried? The majority
opinion sets forth four principles and traditions explaining why marriage is fundamental under
the constitution. While these are intended to show why the definition of
marriage should be fundamentally changed to include homosexual unions, perhaps these will offer insight into
the legitimate government interest supporting government recognition of this
cornerstone of society.
The first premise is that “the right to personal choice
regarding marriage is inherent in the concept of individual autonomy.”[iv]
In using this premise to justify fundamentally redefining marriage, the
majority explains that the personal choice of who to marry is protected from
government involvement just as other intimate choices that follow the Roe v. Wade line of cases.[v]
Therefore, this premise does not provide us with a legitimate government
interest in classifying people as married or not, but rather a reason that the
government is prohibited, or at least limited, from intruding on marriage.
The second premise is that the right to marry “supports a
two-person union unlike any other in its importance to the committed
individuals.”[vi]
The majority elaborates that “the right to marry dignifies couples who 'wish to
define themselves by their commitment to each other.’”[vii]
And continues, “Marriage responds to the universal fear that a lonely person
might call out to find no one there.”[viii]
While a government may have an interest in ensuring that people are more
reliant on those they directly associate with than on the government when there are rough
patches in their life, there must also be a rational relationship to this
interest when classifying one set of roommates over another. So there must
still be something more that provides the legitimate government interest for
the classification of marriage over other relationships.
The third premise is that “It safeguards children and
families and thus draws meaning from related rights of childrearing,
procreation, and education.”[ix]
This is where we finally get a reason for the classification which is rationally
related to a legitimate government interest.
The Chief Justice explains more fully in his dissent:
The premises supporting this
concept of marriage are so fundamental that they rarely require articulation.
The human race must procreate to survive. Procreation occurs through sexual
relations between a man and a woman. When sexual relations result in the
conception of a child, that child’s prospects are generally better if the
[biological] mother and [biological] father stay together rather than going
their separate ways. Therefore, for the good of children and society, sexual
relations that can lead to procreation should occur only between a man and a
woman committed to a lasting bond.
Society has recognized that bond as
marriage. And by bestowing a respected status and material benefits on married
couples, society encourages men and women to conduct sexual relations within
marriage rather than without. As one prominent scholar put it, “Marriage is a
socially arranged solution for the problem of getting people to stay together
and care for children that the mere desire for children, and the sex that makes
children possible does not solve.” J.Q. Wilson, The Marriage Problem 41 (2002).[x]
Therefore, the government does have an interest in
classifying marriage, but it is related to the procreation process.
Introductory biology teaches that all organisms live, breed, and die. Thus, as
a human race, we have a biologic requirement to procreate in order for our
species to survive. Not only is procreation vital to the survival of the human
race as a whole, but also to the individual state as a country which is
declining in population is susceptible to being overthrown by more vibrant
societies. Therefore, there is an interest for the government to encourage procreation
in order to continue the state. And all of the rights and responsibilities
associated with marriage appear to revolve around promoting procreation and the
preference for biological parents to raise their children together.
But the majority states that “The constitutional marriage
right has many aspects, of which childbearing is only one.”[xi]
[xii]
So let us consider whether the final premise offers an additional rational
basis, one that would also provide a rational basis for including a homosexual
relationship.
The fourth premise is that tradition makes clear that
marriage is a keystone of our social order.[xiii]
There are two problems with this premise. First, tradition is not a legitimate
government interest that allows for classification. That is made clear by the
equal protection clause of the fourteenth amendment. Traditionally, all people
of color were treated as second-class citizens. But under the equal protection
clause of the fourteenth amendment, that horrific tradition was abolished.
Therefore, tradition is incapable of acting as a rational basis for a statutory
classification under the equal protection clause.
The second problem is, while the definition of marriage has certainly had
changes throughout the millennia it has existed, there has been only one common
factor. Traditionally, marriage has always been limited to a union between man
and woman. Even where polygamous marriage is and was allowed, all polygamous
marriages have required at least one male and one female. As the Chief Justice
noted in his dissent, both the majority opinion and the petitioners in the case
had to concede that they are not aware of a single society which permitted
homosexual “marriage” prior to 2001.[xiv]
Thus, tradition both cannot and should not be a rational basis for the
classification of marriage as the Supreme Court has defined it.
The Court has eliminated marriage as a government institution. Therefore, when a case arises where an official refuses to grant marriage licenses, as happened in Kentucky, that official should not be compelled to issue such licenses as they purport to classify people without any rational basis related to a legitimate government interest.
[i] See Obergefell
v. Hodges, 576 U.S. ___ (2015) (p. 3-4 of the Majority opinion, p.4 Roberts
Dissent).
[ii] Id. at 16
of the majority opinion quoting Maynard
v. Hill, 125 U.S. 190, 211 (1888).
[iii] Cleburne v.
Cleburne Living Center, Inc., 473 U.S. 432, 439-40 (1985).
[iv] Obergefell,
majority opinion at 12
[v] Id.
[vi] Id. at 13
[vii] Id. at 14
quoting Windsor v. U.S.
[viii] Id.
[ix] Id.
[x] Id. at 5 of
Roberts dissent.
[xi] Id. at 16
of the majority opinion.
[xii] The majority also states that “it cannot be said the
Court or the States have conditioned the right to marry on the capacity or
commitment to procreate.” However, until the Griswold v. Conn., Roe v. Wade, and Lawrence v. Tex. line of cases,
the commitment to procreate was regularly required by the states. The capacity
has always been presumed, through the fertile octogenarian rule which holds that
every person is irrebuttably presumed fertile from birth until death.
[xiii] Id.
[xiv] Id. at 4 of
Roberts dissent.
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