Legal Marriage Put Simply

By Julian Dunraven, J.D., M.P.A.

Yesterday, the U.S. Supreme Court heard oral arguments in Obergefell v. Hodges (the gay marriage case).  This has, predictably, provoked almost everyone to begin shouting opinions as to the meaning of marriage at one another and, unsurprisingly, each opinion is different.  The Supreme Court will not be deciding this case based on any particular view of marriage, however, but upon the underlying legal issues involved. Let me see if I can dispel some of the confusion about this case, by clarifying those issues.  

First, marriage is three things: it is a sacrament bestowed in various religious traditions; it is a contractual agreement between the married parties; and it is a bundle of rights granted by the state.  The sacramental aspect of marriage is defined entirely by each religion, and is not in dispute.  Under the 1^st Amendment to the U.S. Constitution, the government has no role in this, and never will.  Jewish rabbis cannot be forced to perform Muslim weddings, and Catholic priests cannot be forced to perform gay weddings.  Period.  That is fundamental religious freedom.

The second aspect of marriage, the contract, is more complex, but is also undisputed.  Talk to any ten married couples, and you will get ten different ideas about what marriage is, means, and requires—and they will all be correct.  For better or worse, each couple decides for themselves what their marriage will require of each party.  Sometimes, that arrangement is explicitly stated in a pre or post nuptial agreement; sometimes it is developed organically over time through consensus.  In any case, this is not going to change either, and is not in dispute.

Those two aspects of marriage fully encompass the entire marriage concept to most people.  Yet, it is the third aspect of marriage, the bundle of rights granted by the state, that causes all the legal fuss.  There are several thousand rights involved in the marriage bundle, ranging from medical care and treatment to death and social security benefits.  While the assortment of rights in the bundle are numerous and complex, the issues involving the marriage bundle itself are not terribly difficult to grasp.

The first big legal question is why the Supreme Court should decide this issue, and not a more democratic process.  That is simple: we are not a democracy; we are a constitutional republic.  Under a democracy, the majority will always rules.  Thus, it is nothing more than legitimated mob rule.  Its shortcomings are revealed most starkly in the democracy of ancient Athens, which executed Socrates, perhaps the greatest thinker in history, merely for making the majority uncomfortable.  In the U.S., we framed the Constitution precisely to prevent such tyranny of the majority, and to guarantee our rights and liberties, many of which are specified within it.  A right is absolute, and is not subject to majority rule.  Under our constitutional system, it is the judicial branch, with the Supreme Court at its head, that is most accessible to individuals, and thus serves as the primary guardian of our rights. 

In this case, the rights the Supreme Court must consider stem primarily from the 14^th Amendment to the U.S. Constitution.  This is the amendment that guarantees that neither the states nor federal government can deprive any person of life, liberty, or property without due process of law.  It also guarantees that every person will enjoy equal protection of the laws.  At the very least, if any government passes a law or regulation that impacts these rights or liberties, it must have a rational basis for doing so.  That means that the law must make logical sense, and achieve a legitimate purpose.  

So is marriage a right?  Absolutely.  In fact, the Supreme Court has ruled repeatedly that it is a fundamental right, included in the concept of “liberty,” the amendment mentions.  The constitution does not mention it more specifically because the Bill of Rights was never intended to be exhaustive (many founders thought it was unnecessary to include at all), and the founders would have found the idea of specifying a right to marry to be absurd, as it is so fundamental to being human. 

That is the easy part.  While the concept of marriage is irrevocably enshrined in judicial precedent, its legal expression has changed considerably over time.  Long ago, marriage granted a property interest to the husband over his wife and children as an economic unit.  The wife’s legal identity was entirely subsumed beneath her husband, and it was not always consensual.  Of course, this allowed for marital rape.  Interracial marriages were not permitted, nor were marriages of the handicapped.  Both were considered criminal offenses. At times, interfaith marriages were also prohibited.  Those unfortunate enough to be sterile might find their marriages annulled.  All of this has changed.

Today, a legal marriage consists of a consensual and legally equal union between two people of any ethnicity or faith, whom may or may not be sterile, may or may not have children—or even intend to, may or may not cohabitate, may or may not share resources, may or may not be sexually intimate, and may or may not even like one another but, for whatever reason, choose to be married anyway.  

Enter the Equal Protection Clause.  Given the rather vague legal standard for modern marriages, the Supreme Court must decide whether there is even any rational basis for restricting the modern institution of marriage to a man and a woman, thus excluding all same sex partners who wish to participate equally in the institution.  This was the main challenge the Justices put to the opponents of gay marriage. 

In answer, opponents of gay marriage generally cite two reasons for preserving the definition of marriage as limited to a man and a woman.  The first is that it adheres to long tradition, and the second is that it helps foster what the state sees as an idea setting for childrearing.  Both of these justifications were offered to the Court.

Tradition is the weakest of the two arguments.  To argue that marriage has existed for countless millennia unchanged, and has always been between a man and a woman across every culture and civilization is highly misleading.  Two-spirited people in some Native American nations wed either sex.  Many other cultures throughout time had established same sex relationships that carried legal privileges and duties that today would look very similar to modern marriages. The same sex relations of ancient Greece and Rome are especially relevant.  En balance, many marriages between men and women in past ages were conducted according to rules and legal standards we would not recognize as marriage today, and might well find abhorrent.  Several such instances are listed above.  Finally, tradition carries no weight just because it is old.  It also has to be good.  Slavery is perhaps one of the oldest and most culturally universal traditions on earth.  However, it is evil, and was thus abolished in this country.  Thus, the argument for tradition, by itself, cannot stand, and indeed the Justices expressed extreme skepticism for it.  

In answer, the states attempting to preserve their traditional definitions of marriage offered the justification that marriage between a man and a woman serves to honor and encourage an ideal procreative bond between parents and their biological children.  Here too, though, they encountered great skepticism.  States allow marriages to dissolve in divorce proceedings, even when children are involved.  Many women, whether single or in lesbian relationships, undergo artificial insemination with state sanction.  States further permit single parent adoptions, as well as gay adoptions.  States also permit marriages for sterile couples, couples past the age of childbearing, and couples where one party may be in prison, and is incapable of either consummating the marriage, or even of adopting children.  It is exceptionally difficult to see where the interests of the marital children in a stable family unit diverge from the interests of the non-marital children households with similarly stable--but gay-- families, or even in single parent homes.  It is equally difficult to see how those married couples incapable of bearing children or adopting them advance that supposed interest.  Mostly, it seems an irrational distinction.  

Once one eliminates tradition and child rearing as sufficient justifications for excluding same sex couples from the legal institution of marriage, only two explanations remain, both of which are legally invalid.  The first is animus, or disapproval of same sex relationships and the belief that they should not receive the same honor or sanction as heterosexual relationships.  While everyone is free to take moral positions on any issue, creating separate legal statuses for a disapproved class of people violates the equal protection clause, and is thus unconstitutional.  

The second remaining objection grows out of conceptions of marriage rooted in its sacramental aspect for many religions, or  its contractual aspects in many personal preferences, where the idea of a same sex union may have no place.  These are important aspects of marriage, certainly, but they are not legally significant, nor would they be impacted by any legal ruling.  They remain firmly within the domain of personal religious belief, protected by the 1^st Amendment, but also prevented by that amendment from becoming universal legal standards.  

These deficiencies in the arguments of those states attempting to preserve the definition of marriage as exclusively between a man and woman are why every federal court save one has ruled in favor of gay marriage.  It is extraordinarily difficult to find a rational basis for the exclusion, given our society’s nebulous definition of marriage and rather open standards for adoption and child rearing.  Many have suggested that the government get out of the marriage business entirely and leave the concept to churches and individuals.  That would probably be the most principled solution.  However, so many legal rights and structures are tied up in the bundle we call legal marriage, that our societal structures would not tolerate a complete state withdrawal from the concept—nor is that an option the Court could take in this case.  As a result, it looks quite likely that the Court will rule in favor of extending the fundamental right of marriage to same sex couples, not because they want to change the definition or meaning of marriage, but because they cannot find a logical reason to prevent the changes we have already made from applying to same sex couples too.