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
[vi] Id. at 13
[vii] Id. at 14 quoting Windsor v. U.S.
[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.
[xiv] Id. at 4 of Roberts dissent.