Tuesday, April 28, 2015

Some questions as the Supreme Court hears arguments on gay marriage this morning

What is the State - and here I'm including state governments as well as the federal government - actually doing by claiming any dominion over any sort of marriage, and what right does it have to make any such sort of claim? Is it actually addressing what marriage is or is not, or is it only really addressing marriage to the extent that marriage occupies a place as a gateway to a number of political rights and financial benefits? In other words, should the State actually be addressing the rights and benefits that attach to marriage directly rather than using marriage as a convenient catch-all means of doing so and thus, in doing so, leave the kernel "marriage" at the center of these various rights and responsibilities alone entirely?

For just one example of this, could the State forbid medical institutions from granting or forbidding visitation rights based on marital status, thus addressing visitation rights while stepping over and leaving marriage untouched as a point of action entirely? It certainly does so on race already: medical visitation can't be granted or forbidden on the basis of race, and the State doesn't enumerate which races are valid visitors and which are not. It simply commands hands off race as a deciding factor.

Can the State establish a definition of marriage - any definition - without running afoul of the Establishment Clause in the First Amendment? How, or how not? For example, to establish a Catholic (or Methodist or Muslim) definition of marriage as a law of the land, federal or state, would seem to be a clear violation of the EC. But if so, what are we really left with talking about if the State claims a right to establish a secular, non-religious alternative: how can the State even realistically describe the boundaries of that definition without implicitly invoking a prior, religious definition? Or, again, is it the case that, rather than dealing with any sort of marriage, the State is instead merely expediently seizing upon a collective placeholder for a radiating series of rights and benefits it should more properly be compelled to address individually and directly?

In other words, ever since the pluralistic secular constitutional republic American State necessarily let go of a religious definition of marriage it has really only been gliding in free fall, holding on to a now-empty husk of the past. Constitutionally, it cannot return to any religious standard, but, at least logically, it seems to me, it can ultimately be forced to release its grip even on the husk it's still grasping by forcing it to define exactly what the remnant it's asserting a claim to is. Anything it attempts, it seems to me, can immediately be argued as constitutionally discriminatory from one standpoint or another.

This seems to be the ultimate terminal logic of marriage within a secular constitutional republic to me as groups other than heterosexual couples rise to claim benefits radiating from it: if any one standard for State-sanctioned marriage proves to be unconstitutional, then all - that is, State-sanctioned marriage itself - must ultimately prove to be unconstitutional, thus jettisoning the kernel junction "marriage" itself from the grip of the State entirely and back into its myriad private niches. Rights and benefits previously coupled to marriage must necessarily and subsequently be de-coupled: medical visitation, adoption, financial benefits, etc., etc, and addressed individually, separately, and discretely on their individual, separate, and discrete constitutional and legal merits.

Could some practical collective State property-inheritance-child harboring license subsequently re-evolve? It almost certainly would, but when it does it would (if conservatives insisted upon it) no longer have any connection with now entirely private marriage.

Thus, for conservatives and Christians, life will probably change, but not at all necessarily in the ways envisioned, and almost certainly not in the ways exploitative doomsaying parasites would want it to.

The implications of this to me are that, should conservatives assert themselves on these matters, and contra the completely bizarre cult of personal weakness and submission Rod Dreher is desperately attempting to inculcate in and cultivate among others solely in order to promote his book sales, the whole gay marriage issue might very well prove to be that turning point at which the modern pluralistic constitutional republic American State, at least, was ultimately forced to abandon any direct claims upon marriage entirely.

Even short of this, though, to what extent does whatever the State claim with respect to any version of what it chooses to recognize as marriage bind or even implicate conservatives? I can see one consequence: even threading the needle between accommodation laws (can't discriminate against gays as gays) and compelled speech (conservatives can't be compelled to celebrate SSM), the percentage of conservatives involved in wedding commerce might decline, primarily voluntarily at the hands of conservative vendors themselves. Beyond that, though, what actual compulsions could the State possibly level against conservatives? I've already argued extensively that the idiosyncratic personal and moral cowardice of Rod Dreher should be recognized as the worst touchstone possible for engagement in the public square. For just one example, the State can no more compel conservatives to call gay marriage marriage than it can compel pro-life advocates to call unborn babies fetuses. And whether conservatives refer to gay marriages as marriages remains entirely up to them. The only question becomes the courage of one's convictions. Rod Dreher is God's loud and public gift to us all of an example of what having none looks like.

In short, when I try to look at this whole thing closer up a whole host of crevices seem to open up to me through which conservatives can pursue action immediately serving our interests, at least so long as we don't allow ourselves to be seduced by self-appointed gurus of doom.

I'm sure other questions would come to me, but that's enough from me. Maybe some of you have some others of your own.

BTW, the SCOTUSblog coverage of this morning's arguments can be followed here.


  1. Here's maybe a shorter way to approach what I posted about above: the State today is flirting with the Pottery Barn Rule of marriage: you break it, you own it.

    Up until recently, the State has effectively only formally endorsed age-old human custom, formal, religiously sanctified custom or simple peasant "jumping the broom" custom of one man and one woman.

    Once the State proactively defines marriage anew, purely legalistically (because no SSM custom history exists), it now owns it in Pottery Barn Rule terms and immediately becomes responsible for every implication emanating from that newly seized ownership.

    Although it may take some time for this logic to manifest itself and become apparent, my sense is that this implicit burden can be if not will be rapidly made to great a one to bear: neither the individual states nor the feds can afford to be dragooned into becoming giant family court systems. And so, and sooner rather than later, both will spit marriage per se back out, back into the private and religious sphere, maintaining dominion over a bare minimum (property rights, age of consent, etc.).

    The rest of us can then go back to business as usual

    1. This seems precisely to be Kennedy's concern with his "millennia" comment: what is the court as the agent of the State hurriedly being asked to buy and thus own thereafter?

    2. Dreher concludes that, should Kennedy indeed balk at buying a marital pig in a poke and leave conservatives winning on SSM, the "elites" (bogeymen for adults) would forthwith riot like Baltimore, force them into reeducation camps, and exterminate them


      - conservatives will lose on SSM; buy his BO book to learn how to cope.

      - conservatives might win on SSM, which, because "elites" will immediately go Kristellnacht on them, will really be worse than losing - so buy his BO book anyway.

      Bottom line: conservatives will have no future escape from Dreher.

  2. I've not read any of the commentary on the oral arguments as of yet, but will wait for the transcript. So what follows is my own take on the issues you raise.

    First, you ask: Can the State establish a definition of marriage - any definition - without running afoul of the Establishment Clause in the First Amendment? My answer is unquestionably yes.

    A State can easily develop a rational basis for marriage by recognizing that biology matters, in that men and women are different* in ways that complement one another. This gender complementarity of course arises in procreation, but history has shown that this complementarity in a family setting in which the adult male and adult female have expressed a lifelong monogamous commitment to one another, has led to stable and prosperous societies. A State may rationally apply those findings to favor such relationships to the exclusion of other relationships not having those attributes, which meets the proper (IMO) standard under equal protection law as currently understood.

    If the Court decides that no State may limit marriage to one male/one female, which is the fundamental question before the Court (as opposed to whether a State should so limit marriage), it seems to me that it must arrive at some reasoned definition that will include some relationships and exclude others. But in so doing, it goes into deep water very quickly.

    For example, if a definition of marriage to include monogamous relationships between any two adults** in which those adults express a lifelong commitment to one another is found to be the constitutional limit, questions immediately arise as to why? Why only two? Why lifelong -- wouldn't a commitment for, say, 20 years be OK? Or an at-will commitment with a proviso that there would be no children in the unit? What reasoned basis would there be for defining things one way or the other? Pandora's Box would indeed open, and would result in states getting entirely out of the business as you suggest.

    You also pose Even short of this, though, to what extent does whatever the State claim with respect to any version of what it chooses to recognize as marriage bind or even implicate conservatives?

    My answer, whether "conservative" or not, is that society would be much the worse for it, and that matters. Virtue ought to be favored by a government of/by/for the people; conversely, a government that refuses to favor virtue, and worse yet require its people to not express favor or disfavor of virtue or vice, will eventually have to face barbarism. Civilization is a fragile thing, and must be defended at all costs.

    So if the Court rules wrongly in today's case, we must fight back for its overruling, stare decisis be damned. Such a decision ventures into Dred Scott and Roe v. Wade territory, and must be fought against, both at the edges and at the core.

    *Yes, I know this position may be too uncool for anyone to actually argue at the Court. The weak-kneed states have stayed away from it for the most part so far, as best I can tell. Feminists keep telling us that women have different talents that require them to be Presidents of nations and companies, but when a man points out that men and women are different it is sexist.

    **One wonders whether the consanguinity basis for a prohibition of marriage between a brother and sister could stand, while the same basis would not apply to a marriage between two brothers. The mind boggles.

    1. Pik, my contention that your problems of ** stem inexorably from your * if our constitutionally secular State rather than a moral authority like the Church tries to impose them. This is why I think merely expliticly entertaining anything other than the historically rubber-stamped man+woman immediately lights the fuse on questioning everything which can remotely be subsumed under marriage.

      That's why my guess in the comment below that SCOTUS will definitively rule on not biting this apple of Good and Evil but will instead force it back for the states to resolve individually over time.

      Doing so would also, for better or worse, preempt individuals from using SCOTUS to push the State (as individual state) out of the marriage business entirely, as I raised in the original post.

      Frankly, this result - states alone decide marriage - is probably the optimum federalist solution.

    2. Here's a twist SCOTUS probably isn't considering: what does it mean for the State to sign on to any human combo, even man+woman, when one spouse can go Bruce Jenner on the other? Only a strictly non-sexual State contract could reliably cope with such modernist exigencies. So leave the State out of the sexual-personal-marriage core entirely - those are more properly the scope of private, moral communities - and limit its involvement strictly to legal-financial performance issues.

    3. Yes, states alone deciding marriage is not only the optimum federalist solution, but is a necessary element of any non-horrible result from the Supremes in this case.

      But they can't just punt it to the States, saying "not our job". Now that it has been challenged, they must find a rational basis for the exclusion of same-sex couples.

      So let's assume the best case that this exclusion does have a rational basis. Seems to me that things could become very interesting in the states that choose to authorize same-sex marriage. Those states will become ripe for challenges of whatever "rational" basis they've come up with to exclude brother-sister, man-goat, sheikh-harem, etc. once they have done away with the traditional rational basis.

      P.S. The Bruce Jenner situation is not definitionally troubling, IMO. Just assume once-legally-married-always-married, and the few exceptions will work themselves out.

  3. My best uneducated guess as a non-lawyer based on Kennedy's "millennia" comment, the apparent impression he gives that the second question of whether states must recognize the SSMs of other states is subsumed within the first concerning states recognizing it themselves, and Roberts' historical Solomonic child splitting in NFIB v.Sebelius is that SCOTUS recognizes the equal rights of gays to marry as determined by the various states' traditional roles as arbiters and regulators of marriage within their borders.

    Ruling thusly would solve Roberts' concern that “there will be no more debate” on same-sex marriage, which “can close minds”, while leaving the possibility open that all 50 states, should their citizens collectively and legislatively desire, could individually enact SSM and individually recognize the SSMs of all the others.

    Ruling any differently, no matter how fervently some might want it while others cynically expect it, would be a major and precipitate change to be judicially imposed. The speed of broad, multiplex public opinion is one thing, that of unequivocal, legally binding judicial fiat is quite another.

  4. Here's Ilya Shapiro at Cato At Liberty:

    "In sum, the Supreme Court should – and likely will – stay away from pontificating about marriage or philosophizing on the nature of rights. The Fourteenth Amendment is silent as to marriage, as it is regarding all other possible objects of state regulation. What it speaks to instead is the equal protection of the laws. Accordingly, as Cato said in our amicus brief, states must give marriage licenses to gays and lesbians only if they give them to everyone else."

    But if they don't give them to everyone else, then they don't have to give them to gays and lesbians. So, if SCOTUS is bound, as Shapiro believes, to rule for SSM from Equal Protection, then any anti-SSM state can simply revert its licensing to a bare bones civil contract undignifying everyone equally and then leave marriage to be solely the purview of private institutions such as churches who wish to bestow it.

  5. "What is the State - and here I'm including state governments as well as the federal government - actually doing by claiming any dominion over any sort of marriage, and what right does it have to make any such sort of claim?"

    My degree is in Industrial and Labor Relations and I used to wonder this as I sat in my classes, learning about the economics of the modern social security state. It surprised me how the labor economists who created our safety net had a realistic (and traditional) view of how people interacted with the labor market. Because it was - and is - based on biology. The relationship of children to marriage used to be robust and central. It no longer is. And into the vacuum comes the courts.

    Now all of that is breaking down, and into the vacuum comes the courts.

    "Is it actually addressing what marriage is or is not, or is it only really addressing marriage to the extent that marriage occupies a place as a gateway to a number of political rights and financial benefits? "

    Good question. Windsor would seem to be the latter. The decision tomorrow - the former.

    "if any one standard for State-sanctioned marriage proves to be unconstitutional, then all - that is, State-sanctioned marriage itself - must ultimately prove to be unconstitutional,"

    Yes, and that is why, if SCOTUS rules in favor of SSM tomorrow, then eventually it *must*, not will, but *must* rule in favor of any kind of coupling as marriage.

    I don't agree that the continual destruction of marriage has no further effects. No sooner had Windsor been rendered than Jerry Brown signed California law SB 274, which legalized more than 2 parent families. I suggest you read up on this. It effectively destroys blood ties between parent and child. And that will be the next step on the road to Hell.

    1. I keep coming back to the State, and then, derivatively, commercial institutions like medicine, having drifted into the position of expediently using marriage as a catch-all for a number of separate things it wants to administer, much like companies now using Social Security numbers as ID numbers, even though doing so is (or was) expressly prohibited in federal law.

      The only legitimate interest the State has in marriage is to track and protect private property rights (which formerly included wives and children). As an ironic tangent here, the history of the State stepping over parents to impose CPS or even pro-life laws and regulations tends to vitiate the arguments against SSM on the basis that man+woman is crucial to promoting and protecting children: when the State intervenes and acts directly in loco parentis, it renders parents of any composition moot.

      Further, when society itself begins to blow past the State and judge for itself that cohabitation of unmarried couples or Justice of the Peace marriages or "commitment ceremonies" are equally as dignified as sacramental marriage, then any argument that the State bestows dignity on either heterosexual marriage or homosexual marriage becomes specious on its face. The State simply cannot create moral credence, or "dignity" as it came up today, it can only codify prevailing social mores, religious or not, after the fact. If any moral order is to be restored, it will have to be done by the moral institutions themselves - acting in full public daylight, not in some hideaway BO - not by the State acting as their proxy enforcer.

      I really think the State trying to decide whether to punch this Tarbaby directly and making it irrevocably its own, making, for the first time in history, marriage first and foremost an eclipsing State institution based on new, open-ended, abstractly legal standards only, will prove to be a tale not many on either side of the current issue have yet thought their way fully through.

      If there's any consolation, the resurgence of fundamentalism globally in the latter half of the 20th Century and into the present, from the individual Steampunk flailings of a Dreher to a globally attractive ISIS tends to show that human nature itself tends to crave the concretely rooted over Cartesian abstractions like the early urges of Sovietism or Maoism, or, possibly, soon to be adjudicated generic "marriage", and so the pendulum may very well begin to swing back the other way in favor of sacramental heterosexual marriage above all other possible iterations.

      Without an always fickle mass media celebrating the novelty of homosexual marriage as the Story of the Century, there simply aren't enough biological homosexuals to really make a long term diference on their own. In the meantime, parasites like Dreher will try to exploit every possible angle for their personal commercial gain.

    2. I can't stress enough how hilariously revealing Dreher's "heads I win, tails you lose" posture with respect to SSM and his Benedict Option is: if SSM is upheld, you need his Benedict Option; if SSM is struck down, you need his Benedict Option. If neither, you probably still need his Benedict Option, because avian flu, or maybe gluten, but mainly because he has been Called - and there's no fallback book in the life plan income production pipeline.

  6. I wonder if DreRod is reading you. His latest moan is another strategic retreat, i.e., "What The BO is Not" and refers to an exchange that occurred in yesterday's oral arguments about religious freedom. (the WaPo article he links to is must reading.)

    It's dawning on DreRod that living by "The Protocols of the Elders of St. Benedict" is not a smart idea.

    (That's a joke, yo, and since this is the Internet I have to say that I know the Protocols were a forgery.)

    Look, Rod, if you are reading, I say this: "This earthly life is a war and a mess, and SSM is no different or worse than a thousand other challenges that Christianity has had since the beginning of time. In the grand scheme of things, it's No Big."

    And I say this as someone who totally opposes SSM and who thinks its downstream effects will be ruinous. Ya gotta read up about CA law 274!

  7. Well, I've read through the transcript of the oral argument now, and have just a few comments.

    0) The argument was split between the two questions presented: the first being whether a State can limit marriage to man-woman, and the second being (assuming the State can so limit) whether a State must recognize an SSM from another state.

    1) As usual, the Justices have an excellent knack for knocking counsel off their main points and getting them tangled up somewhere they don't appear to have expected. Must be great fun for the Justices to do that.

    2) Counsel for Petitioners (SSM proponents) had pretty much one argument -- "because equal". Counsel for Petitioners for the second question essentially re-argued the first question, which some Justices found exasperating. At the end of each of the Petitioners' arguments, especially in rebuttal, the Justices just let counsel ramble on until the shot clock ran -- which came off (to me) as sort of a collective "whatever".

    3) Counsel for Respondents (the States) got tangled up as well, especially the lawyer for TN on the second question who got backed into corners by Scalia (who was trying to help him, I think). On the first question, the lawyer for MI made a reasonable stab at rational basis, but I would have liked to have seen him link it to biology (see above) than he did. Probably didn't want to run the risk of the * problem Keith noted.

    4) Kennedy was a blank slate. Media are trying to read tea leaves.

    5) Breyer sounded reasonable and open to the States' arguments. But he always seems that way in oral argument -- and then he rules based on his personal preference anyway IMO.

    6) Ginsburg was a one-trick pony, harping on the point that marriage used to be enshrined as a dominant-submissive (i.e. man-woman) arrangement and thus had a connection to biology, but now that it isn't and can't be that anymore, is now open to same-sex couples where there is no biological dominant-submissive. That's a new one to me, and is borderline insane IMO.

    Just one guy's take.

    1. I'm going to modify my original prediction and acquiesce to that segment of the conventional wisdom that say SCOTUS will rule that states can decide for themselves but must extend full faith and credit recognition to SSM states.

      While not purely logical, given the facts on the ground it becomes Roberts-court SCOTUS-logical, allowing the court to wash its hands of alternative-to-man+woman marriage once and for all.

      Although Roberts' observation that essentially one state could then decide for all penetrated the matter to the core and although, as I mentioned, I assumed Kennedy was thinking that Q1 and Q2 were similarly mootly linked, Sotomayor, I think it was, served up the unassailable argument underwriting Q2: states which would regard persons as underage minors and thus victims of statutory rape within their own state nevertheless recognize them as brides and grooms if married in another state with lower ages of consent.

      That doesn't close the newly-opened wormhole on secular marriage, of course, it simply relieves SCOTUS of the burden of having to deal with the next novel marital iteration to come down the pike while forcing whichever state might be one to entertain a beyond-SSM marital iteration to realize that they won't be able to lay their decision off on SCOTUS, they themselves will be the goat, and not only for their own citizens but also those of all other states now forced to extend FF&C.

    2. You may well be right. It would take some imagination (how can a rational basis to deny a "fundamental" right be insufficient to deny recognition of other states' actions?), and would also disrupt full-faith-and-credit law in other areas, it would be in character for this Court.

      And as another profile in cowardice, I'd guess the states would be all for this result as well, since it would relieve the pressure of having to deal with the question repeatedly in their legislatures.

    3. And as another profile in cowardice, I'd guess the states would be all for this result as well, since it would relieve the pressure of having to deal with the question repeatedly in their legislatures.

      Maybe, but it will probably prove short-lived comfort, only until the first roller derby marriage shows up for its license. Then all heads swivel to SCOTUS, which says, "Don't look at us, chumps, states rights, you know. Best of luck."

      At which point states say, yeah, you know, budget shortfalls and all that, tragic, we're still going to record deeds and personal property records, standardize child protective and adoption standards, but marriage licenses? Here's a wonderful list of private options.

    4. "'... SCOTUS will rule that states can decide for themselves but must extend full faith and credit recognition to SSM states."

      I think that is exactly what Obergefell is asking for. I just don't see this SCOTUS as denying him, per se.

      Now, what happens to those minors who are illegally married, when one state's SSM's are now accorded FF&C in all?

    5. Now, what happens to those minors who are illegally married, when one state's SSM's are now accorded FF&C in all?

      Well, that's the crux preventing non-SSM states from validly not recognizing SSM states' SSMs: they already recognize their, to them, illegal minor unions as valid marriages.

      This is what makes splitting the questions at all rather than recognizing them as co-implicative really a political Solomonic child-splitting rather than a strictly legal judgement.

      This obviously raises an interesting question, though: what are the limits of FF&C recognition? If California legitimizes 13-year-olds marrying 12-year-olds, who would be forced to give such marriages FF&C? Why? And if not, why not not SSM as well?

    6. IIRC, conventional FF&C law allows a state to not grant FF&C to another state's law if to do so would be "repugnant to the public policy" of the state. So that's the basic test as I recall it, altho I've not kept up on the decisions in this area.

      The difficulty, I think, is arriving at a decision that a state has a sufficient rational basis to deny SSM, yet an insufficient rational basis to not recognize an SSM from another state. That will require some significant imagination by the Court.

      But they've shown such imagination before, for example in the two cases on Ten Commandments monuments that came out on the same day with opposite results.

    7. Gah, I should have written "legally married" and not "illegally married."

      But here, have a look at this:


      "States have always retained the power to refuse to recognize some out-of-state marriages that violate their expressions of public policy. This has happened with, for example, marriages involving underage spouses or marriages that violate a state's consanguinity rules. "

      Interracial marriage is a different kettle of fish altogether. Public policy is admittedly a blurry concept but given this country's history, prohibiting interracial marriage would be against public policy. But age and consanguinity are OK. Why not SSM?

    8. Unless the Supremes somehow write SSM FF&C in stone, that seems like it changes everything.

  8. Here's an interesting point of view from Ann Althouse, a left-center law professor at the University of Wisconsin-Madison. She's unabashedly for SSM, but the way she frames her support opens up all sorts of things:

    The government, in banning same-sex marriage, does nothing to ascertain that couples are sexually attracted to each other.

    The Sue that loves Joe could be a lesbian, and the Tom who loves Joe could be heterosexual.

    Maybe Joe is a very desirable marriage partner for reasons that have nothing to do with a desire to have sex with him. Maybe he's rich and powerful and has a wonderful circle of friends. This Joe, perhaps, loves to cook and is a great cook, and he's got an extensive wine cellar. Maybe he loves just the kind of movies/sports that Sue/Tom loves, and he keeps up an endlessly entertaining stream of conversation, full of witty observations and howlingly funny jokes. And he's perfectly happy to allow Sue/Tom to pursue sexual adventures. Go right ahead! Have them! And come back home to Joe's delicious late-night supper and drink some of Joe's top-notch wine and you can talk about sex for hours.

    The government has no idea, and the government should have no idea.

    Without necessarily conceding that Althouse's POV is valid, if the government hands out marriage licenses without regard to sexuality at all, what, exactly is being licensed, and what, rationally, are the criteria being applied to those being licensed in versus those being licensed out?

    If there is a greater tax advantage to be had from a partnership (of what number? why?) marrying rather than creating some other form like an LLC (or whatever), on what basis can that rationally be prohibited?

    The more one sifts the implications in this issue, the more likely it seems to me the court would want to rid itself of it entirely once and for all.