How Five Justices Made Marriage Unconstitutional

Guest Post By Political Sphere

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.

In conclusion, the only rational basis for government recognition of the classification of marriage that may reasonably be argued is procreation and the raising of children by that child’s biological parents. By eliminating this requirement from the definition of marriage, the Court has eliminated the sole rational relation to a legitimate government interest in classifying people by marriage.

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.

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^[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.

SCOTUS 2012-2013 Voting Patterns, Part III

We’ve been looking at the 2012 session of the Supreme Court, which ended June 30, 2013. Part I looked at the full list of cases and how often each justice voted with either a liberal or conservative bloc. Part II looked at just the cases in which there was disagreement, 39 of the total cases, and then measured the percentage of cases in which each justice voted with either bloc.

Today we’ll look at how many were close decisions, and how many had greater agreement.

There were 22 close decisions, decided by a single vote. A 4-5 vote means 4 conservative dissenting votes (which may or may not all have come from the usual conservative bloc), and 5 majority votes going with the liberal bloc. A 5-4 vote means 5 conservative majority votes and 4 liberal dissenting votes. Some of the cases note an abstention. Note that this relates to the dispersion of the justices’ votes, not necessarily the ideology of the decision. Also note that this data does not include the 35 cases with complete agreement. One thing I noticed was that the easy decisions tended to come early in the session, with the more divided cases being pushed to the end. The most controversial decisions show up in June, and likely late June.

Close Decisions
Vote Dispersion	Number of Such Cases	Percentage
4-5	8	40.9% favor L
3-5-1	1
5-4	12	59.1% favor C
5-3-1	1
Total	22	56.4% are close decisions

 

Moderately Close Decisions
Vote Dispersion	Number of Such Cases	Percentage
3-6	6	100% favor L
2-6-1	1
6-3	0	0% favor C
5-2-1	0
Total	7	17.9% are moderately close decisions

 

High Agreement Decisions
Vote Dispersion	Number of Such Cases	Percentage
2-7	3	40.0% favor L
1-8	1
7-2	3	60.0% favor C
8-1	2
7-1-1	1
Total	10	25.6% are high agreement decisions

The very mixed case of Missouri v. McNeely is considered a 1-8 decision, because there were 8 majority or concurring opinions in all or part, and only 1 dissent without partial agreement. The dispersion, however, doesn’t well identify the differences of opinion on that particular case. Some of the closer cases are also more mixed than this broad look shows.

If you look at all 39 decisions, 20 leaned toward the liberal bloc, and 19 leaned toward the conservative bloc. That’s 51.3% L and 48.7% C. So there’s a slight lean toward L overall. However, on the close cases, the lean is toward C. The majority of cases (without total agreement) are close cases. That means that for the time being there is a slight advantage toward C.

Five years into this administration, so far there has been no change to the conservative bloc on the court. Two liberal justices were replaced, with Justices Kagan and Sotomayor. If either Ginsburg or Breyer were to step down, the replacement is certain to be at least as liberal as the current justices. This is somewhat likely: Justice Ginsburg is 80 and has served since 1993. Justice Breyer, who has served since 1994, is a relatively young 75 (next month), so I expect he will stay.

If any of the other five steps down, even Kennedy, the weight toward the already solid L bloc shifts so dramatically that taking any controversial decision to the Supreme Court would be assumed to go toward the liberal direction. How likely is a change to these five? Here’s the age and length of service data.

Justice	Age	Year Appointed	Length of Service
Thomas	65	1991	22 years
Scalia	77	1986	27 years
Alito	63	2006	7 years
Roberts	58	2005	8 years
Kennedy	77	1988	25 years

(Happy Birthday to Justice Kennedy next week.) The conservative bloc is relatively young. Barring sudden health problems, it is quite likely the four conservatives will stay throughout this presidential term. I think they know how crucial their point of view is to the court. I believe it is also relatively likely Kennedy will stay; I think he knows he is a swing vote, and his leaving would cause some upheaval to the country that he could avoid simply by waiting until someone else makes a change first. He can’t do that indefinitely, but he can probably do it until after another presidential election.

Observations

It would take a deeper look at the Court to reveal all that this session can tell us. But I will make just a couple of observations based on specific cases. (I wrote more here, "On the Court," and here, "Marriage Rulings.")

Fisher v. University of Texas at Austin concerned using race in acceptance policies. In the specific case, a young white woman, who was just under the automatic admittance level, was refused admittance when a black woman with lower qualifications was admitted. The young woman was discriminated against because of her race. In recent past cases, race has been allowed in admittance as one of many factors a university could use. While that policy isn’t completely wiped out, this case makes it clear that using race will cause discrimination against someone, and the trend is toward avoiding race in selection criteria for that reason. This has been a conservative argument for a long time, so it is surprising that the liberal bloc also agreed. Justice Sotomayor abstained, but only Justice Ginsburg dissented.

The other case that reflects the trend of social belief is the US v Windsor case, concerning the federal Defense of Marriage Act. The case itself concerned inheritance law for two women "married" in Ontario, Canada. Their "marriage" contract was recognized by the state of New York, but when one of the parties died and left her estate to her partner, Windsor, the federal government refused Windsor the federal estate tax exemption for surviving spouses.

I have some sympathy for the parties involved; a person ought to be able to say how their estate should be dispersed without the federal government coming in and glomming on to major portions of it. But the difficulty is in using the case to redefine “spouse” and “marriage.” It is likely the problem could have been avoided if the parties recognized that their contract was not recognized in the country they immigrated to; they could therefore have drawn up trusts and other contracts to accomplish the inheritance with as little tax damage as possible. Instead they use the case to force policy on the entirety of their new country. On purpose?

Such a case was bound to appear eventually. But the majority ruling, with Kennedy sneering at the vast majority of all the people in the history of the world who see a value in what has always been marriage, was beyond the pale. Scalia’s dissent was equally cutting in return, pointing out how un-Court-like it was for such personal social ideas to be put forward as Court ruling void of connection to the actual written law.

I don’t know what the eventual fallout will be, but it is clear that controversial decisions can be decided either based on the law or based on social opinion trends, which have been manipulated by media in opposition to mounting social data.

The Supreme Court was never intended to have such power over the people. It is meant merely to keep the legislative and executive branches in check, so we are not deprived of our Constitutionally protected rights. I pray that these nine people will agree more—by reading and understanding the Constitution, as their oath requires them to do.

Marriage Rulings

It was a bad day for black robes. It is said that our freedoms are never safe when the legislature is in session. You could say something similar about when the Supreme Court is in session. Wednesday was the last day of this session, so, at least for a few more months, we can say “phew,” and stop fearing the daily onslaught.

At some future point I’d like to do a scorecard on the SCOTUS, but today the news about marriage is too heavy to cover more than that. Wednesday’s two rulings were on DOMA and Prop 8. (I wrote about the cases and issues at stake on April 1^st.) Let’s start with this declaration first, because the news is creating less than truthful headlines: neither ruling declared “same-sex marriage” the law of the land. Both rulings, while not going the way I thought they should have, were minimalist in effect. 

Supreme Court
photo from NPR

DOMA

A portion of the 1996 Defense of Marriage Act was struck down as unconstitutional. The law—which was brought forward by a Republican Congress, but was signed by Democrat President Bill Clinton, and his Democrat controlled Senate, and which Obama claimed to support until a few months ago—had definitional purposes. As far as federal law was concerned, marriage would be defined as a contract between a man and a woman, and spouse would be defined as one of the marriage partners, the opposite sex of the other spouse. The change brought about by Wednesday’s ruling is to eliminate a federal definition, meaning the federal government will use the definition allowed in any particular state. Essentially the outcome is that federal employees in states that allow for same-sex “marriage” can receive spousal benefits. There will probably be other eventual outcomes, and further confusion, but at this point that is the limit of the definition elimination.

The unfortunate part of the ruling is the reasoning. The majority opinion claims that the reason the definition needed to be eliminated was that its only purpose had been to harm certain less popular citizens. There was no legal rationale; there was only the supposition that the justices could divine the motives of the Congress, Senate, and President who codified into law what had been assumed to be true for the entire history of the country—and indeed for the entire history of civilization—and somehow discern that it was based only on hatred against a particular innocent group.

Scalia (may he live long!) wrote a scathing dissent. It was around two dozen pages; here are a couple of excerpts:

But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority's judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to "disparage," "injure," "degrade," "demean," and "humiliate" our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

He’s right. The real concern is the condemnation of all of us in the majority who still hold to the age-old definition of marriage as enemies of the human race. Condemning the masses as sub-human simply for disagreeing with the current liberal cause de jour is certainly not the intended purpose of having a judicial branch. Scalia adds this:

It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with.

Considering how correct the liberal court feels itself to be, they were restrained in their result. They failed to claim there was a constitutional or basic human right to same-sex “marriage,” and instead allowed continued federal government confusion at the mercy of state differences. If they thought they could have gotten away with acting more strongly against the majority of Americans, they probably would have done so. 

Prop 8

The Prop 8 ruling was, as feared by both sides, a punt. The case was dismissed because the Supreme Court preferred not to grant standing to a private organization to defend a state law. Here’s a summary, again, of the situation.

The people of California long ago (around 2001, I believe) voted to continue defining marriage as a man and a woman; the state legislature overruled the people’s will. So the people responded through the initiative process and codified the traditional definition of marriage to overrule the legislature. This was Prop 8, which won in 2008 with 52% of the vote (a clear majority, and if you look at the voting, you see that only a few urban masses voted against the proposition, while nearly all counties had majorities voting in favor). Despite the win, a few judges flouted the law and “married” same-sex couples, and a judge decided to overrule the people from the bench and say that was lawful, because he thought it should be (he was a homosexual judge with an agenda, but refused to recuse himself or even be objective). The state of California was required to defend the law against this judicial behavior, but it refused. So the organization that had supported Prop 8 asked for standing. The case has been making its way up through district and circuit courts on its way to the Supreme Court.

outcome of Prop 8 vote
graphic source: Wikipedia

The Court said Wednesday that, because the Court had never before allowed a private entity to defend a state law, it would not do so now. In the process it overturned the 9^th Circuit ruling and essentially said the law needed to be defended by the state of California. If the state continues to refuse to defend the law, that probably means judges may choose to “marry” same-sex couples afoul of the law, and there will continue to be confusion about the validity of those “marriages.”

But any way you look at it, the Supreme Court ruling fell short of approving same-sex “marriages” in California, and also gave a ruling that can only be applied to that particular state.

The aftermath isn’t good for real marriage, but it is worse for the initiative process for those states that have it. It says, “Sure, you can have an initiative process, but the outcome is irrelevant if the state government doesn’t happen to agree with the outcome.” The will of the people was seriously degraded with this ruling. 

Flotsam and Jetsam

While it could have been worse, the outcome for civilization was negative from these rulings. More than laws, however, which were only minimally affected, the opinions flamed the hateful vitriol against supporters of traditional marriage.

A comparison was brought to my attention, in a piece by Ben Shapiro for Breitbart. It was a case with Bob Jones University, back in 1983. That private university, a religious institution, had a rule against interracial dating. I never understood the belief against interracial dating or marriage. It seems odd and archaic today, but there were parts of the country (mostly southern) that held to separation of races longer than other places. So, while we may clearly disagree with Bob Jones University’s beliefs on that issue, they weren’t unheard of at the time. Their non-profit tax-exempt status was removed—not because they suddenly became a for-profit organization, but because their beliefs weren’t politically correct:

Government has a fundamental, overriding interest in eradicating racial discrimination in education … which substantially outweighs whatever burden denial of tax benefits places on [the university’s] exercise of their religious beliefs.

The Court decided against the University based only on its beliefs. So the question is, could the Court do the same with churches, schools, businesses, and other organizations that hold what they deem is an “enemy of the human race” belief?

The tactic of the tyrannical hemisphere has been to control the language, the message. To move popular opinion until people think what they used to know instinctively isn’t so anymore. And anyone who still has the old common sense are labeled the “enemies of the human race.” At least we have a Supreme Court justice who spelled out what is happening, so there’s a record for historical anthropologists to someday dust off and discover.

I tend to consider the relationship to civilization when history happens before our eyes. I came across this quote during the days’ post-decision reading, and it seemed apt:

This time, however, the barbarians are not waiting beyond the frontiers; they have already been governing us for quite some time. And it is our lack of consciousness of this that constitutes part of our predicament. We are waiting not for a Godot, but for another—doubtless quite different—St. Benedict.  —Alasdair MacIntyre, After Virtue 

Hopeful Extra

Thursday the 10^th Circuit Court ruled in favor of Hobby Lobby, which refused on religious grounds to provide medical coverage for abortifacients (abortion inducing drugs), just in time to keep them from having to pay fines of $1.3 million a day, that were set to start July 1^st. Courts don’t always go wrong. Not yet.