My Thoughts on the US Supreme Court Marriage Cases

After listening to recordings of the oral arguments of the two gay marriage cases, I had some of my own arguments of my own that I wanted to process by writing down:

The court was looking for a rational basis for defining marriage to be one man and one woman instead of as any two people regardless of gender.  The argument was put forward that the rational basis and government interest in the former is that marriage between a man and woman in general has procreative potential whereas gay marriage categorically doesn't.  I agree with that argument.  One question posed was, well what about couples where both spouses are over 55 and thus unable to procreate?  My answer is not only is there a government interest in limiting the procreative potential of the husband at that point, but also that in general people 55 and older are entering years of grandparenting, which the government in a variety of contexts recognizes as a valuable relationship.  So even for older couples the government has the rational interest in defining marriage as a man and a woman for the sake of their grandchildren. 

But I would turn the question around at marriage foes and ask what rational basis and valid government interest exists for defining a homosexual couple as a married couple thus giving them the same benefits it extends to heterosexual marriage?  I would argue that although there are legitimate state interests other than potential procreation, NONE of the other legitimate state interests are unrelated to the procreative potential of the couple.  So, for instance, if other government interests in marriage include the emotional and spiritual well-being of the spouses, even those interests are not disconnected from the controlling government interest in the well-being of children.  For, from the point of view of government interests, the emotional and spiritual well-being of the married couple is relevant primarily because those things help to foster a positive environment for childrearing.  So even if gay marriage would improve the emotional or spiritual well-being of gay couples, those aren't valid government interests in a free society where individuals have the authority to pursue happiness, in the words of the Declaration of Independence.  The government, for instance, doesn't define or give benefits on the basis of promoting emotional or spiritual well-being when it comes to friendship or mutual involvement in any particular social institution other than marriage.  But surely the government likes friendship and could conceive of policies to promote it.  But it doesn't have the same sort of compelling interest in the emotional and spiritual benefits of friendship that it has in marriage essentially because of the procreative potential that traditional marriage entails.  So although there is rational basis and compelling government interest in traditional marriage, it lacks the same rational basis and compelling interest in gay marriage.

Furthermore, in light of our nation's and the world's long history of recognizing and celebrating traditional marriages, the burden of proof (or a higher level of scrutiny) surely falls on those who advocate a new form of marriage to demonstrate its societal benefits relative to traditional marriage.  If they assert that gay marriage is a right, then why was that right hidden from American society and virtually every human society in recorded history?  They assert that a new understanding of the equal protection clause requires that the government recognize this right.  But they assume rather than demonstrate that there is in fact an unequal treatment.  For under traditional marriage laws, any man whether gay or straight has the right to marry any woman whether gay or straight.  There is manifestly equal treatment of all people under traditional marriage laws.  The claim to unequal treatment only arises insofar as certain people don't want to marry opposite-gendered spouses.  But a desire for a different arrangement hardly qualifies as unequal treatment.  Just because some people disagree with a law doesn't mean it is unequal.  For instance some people may not like paying their taxes, but their desire not to pay doesn't mean that they are being treated unfairly compared to someone who gladly pays the exact same taxes.  Opponents of traditional marriage also assume without proof that sexual orientation is an immutable personal characteristic much like skin color or hair color.  But at best the evidence is ambiguous and frankly the existence of even a small number of former homosexuals belies this claim.  Thus, homosexuals are not a class in the same way that racial groups or gender groups are.  And without class status, homosexuals as a group are merely a group united by mutual beliefs and interests like so many other groups in American life.  Without reasonable government interest in gay marriage, it could well be unconstitutional at least for the federal government to in any way advance that particular institution. 

The question of whether one state's implementation of gay marriage requires that the federal government and thus all of the other states by default to also recognize gay marriage because of the equal protection clause was also discussed.  Such an argument unconstitutionally elevates one state's law to the law of the land, when clearly it is the constitution and constitutionally-consistent federal laws that are the law of the land.  Furthermore, such an argument has no rational basis for limitation.  If one state allows polygamy or marriage between minors or close relatives, would not the equal protection argument require that the federal government and all states then recognize such marriages as legal?  Where does this sort of argument end?  (I believe one of the justices also followed this line of reasoning.)

Thus, the Defense of Marriage Act could well be the most constitutionally consistent legal position that the federal government could take.  It respects the 10th amendment, has a rational basis, and advances a compelling federal government interest.  Furthermore, it also respects the 1st amendment protection of the free exercise of religion.  This is an issue that has been largely ignored in the briefings and arguments before the Supreme Court, but has significant constitutional implications.  Many of the professionals working in various facets of the wedding industry personally oppose gay marriage for religious or other reasons.  While traditional marriage was the only governmentally-recognized marriage, the people working to support weddings who had these convictions could do their work in a way consistent with the exercise of their religion.  However, to the extent that the government redefines marriage to include gay marriage, those workers who have strong objections to gay marriage will be put in an impossible dilemma of either working in support of the gay couple's wedding or being forced out of business in the face of the very real threat of antidiscrimination lawsuits.  That hardly allows these workers the free exercise of their religion to say nothing of their freedom of speech or freedom of assembly (whether in business or private affairs).  Thus, a federal law or judicial ruling redefining marriage to include gay marriage would trample the first amendment rights of a significant subset of American society. 

One objection that opponents of traditional marriage raised is that a significant reason behind the enactment of the Defense of Marriage Act has to do with moral reasons - moral objections to gay marriage.  Even if that's the case, that is not a reason invalidate the law.  Surely many opponents of traditional marriage also have moral reasons for opposing it - they believe that it is morally right to allow gay couples to be legally married.  If moral reasons invalidate positions, then this a reason for opposing gay marriage just as much for opposing traditional marriage!  Moral reasons, even when based in religious beliefs, are rational reasons for both citizens and legislators to make law.  In fact, it is hard to see how any laws are passed apart from moral considerations.  Don't all citizens and legislators act the way they do at least in part because they think it's the right thing to do?

When the representative for the executive branch, an amicus curiae I believe, was arguing, he said at one point that the US government had changed its position on the Defense of Marriage Act.  But for a representative of the executive branch to say such a thing is a vast overreaching of its authority.  The position of the US government has not changed, because the position of the US government is determined by the laws that have been actually and legally enacted.  Thus, at least until a different law is made or a contrary ruling comes from the Supreme Court, the official position of the US government (per the Constitution) is still that the Defense of Marriage Act is constitutional and that it is a law that must be enforced, despite protests from the current administration to the contrary.  So for the executive to believe that its views are the views of the US government is both arrogant and raises alarms of potential tyranny.

Regarding the question of whether or not the House of Representatives has standing to argue the case before the courts as a party, it seems clear to me that if their standing is denied, then in essence the executive branch has gained an unconstitutional veto power over the legislative branch, because any time it decides not to enforce a law for whatever reason, the legislative branch would have no recourse to compel the executive to do its constitutionally-mandated job, short of impeachment and removal of the president.  It seems clear that the House has compelling interest to see that its laws are indeed enforced.  Even if the objection from the executive branch is that a law is unconstitutional, does that give it the right to unconstitutionally not use care in enforcing a law passed by Congress and either signed by a president or, if vetoed, implemented as law by a Congressional override?  Do two wrongs make a right?

In the case regarding California's Proposition 8 the question was asked if the government could have a legitimate reason in any context other than marriage for treating gay people differently than straight people.  Although the lawyer could not think of any situation, it seems clear that many Americans believe that the military is one place where the government has a legitimate interest in treating gay people differently.  Or consider TSA pat-downs which are sometimes required for air travel - in general travelers have the right to expect TSA personnel of their same gender to perform this type of search, but in the case of homosexual TSA personnel the government has an interest in barring them from performing pat-downs on travelers of either gender due to the uncomfortable situations which might otherwise arise.  Furthermore, the government recognizes the right of other institutions to discriminate on the basis of sexual orientation, such as blood banks which refuse potential donors who are gay, overnight camps which reject gay counselors, and churches and religious charities which refuse potential gay pastors and employees.  So it seem that the institution of marriage is not the only legitimate place where the government can and does acknowledge that differential treatment based on sexual orientation is valid.  But again this whole argument assumes that there really is unequal treatment regarding marriage when it as already been shown that this is not the case.