The bandwagon in the federal courts to negate the laws of all the states concerning marriage (only eleven states have established homosexual marriage by legislation or ballot initiative) has been rolling since the Supreme Court’s Windsor decision in May 2013, forbidding the federal government from defining marriage in federal programs as it has always been defined in human history and is still so defined in almost all of the countries of the world: the union of a man and a woman. The Supreme Court, having now accepted the appeal of the post-Windsor decision of the Sixth Circuit Court of Appeals, will decide the fate of marriage—and of federalism—by July.
This essay will question whether the Supreme Court’s coming decision on the law of marriage is really foreordained by the actual language and holding of its Windsor decision and whether it will be so easy for the Court to “finish the job,” as expected and promoted by the media, academia, and government.
In his dissent in Windsor, Justice Antonin Scalia precisely predicted what is now occurring. He said that the Court effectively “arms well every challenger to a state law restricting marriage to its traditional definition.” The Court’s superficial “limiting assurance” will be “meaningless,” which, “the majority,” he said, “well knows.” In his own dissent, Justice Samuel Alito essentially, but more guardedly, had the same prediction. If Justice Scalia’s prediction is eventually vindicated by the Court, then Windsor will become the only Supreme Court case in history where the minority view immediately became the majority view. But, Justices Scalia and Alito were in the minority. What is there in Justice Kennedy’s majority opinion for five justices that predicts, allows, and vindicates the current bandwagon, or to add another metaphor, the current steamroller? In a previous essay in this series, we saw that Justice Anthony Kennedy based his Windsor opinion on his previous opinion in the 1996 Romer case in which the Court overturned a Colorado constitutional amendment forbidding affirmative action on behalf of homosexuals, in other words, overturned an amendment that provided for equal protection of the laws. Additionally, in Windsor, Justice Kennedy expanded his (and the Court’s) view first expressed in Romer that opposition to homosexual marriage is simply a personal loathing of homosexuals by some people—a view not essentially different from the standard public tactic of the homosexual lobby of accusing people of being “homophobes.” In Romer, Justice Kennedy said that the Colorado non-discrimination amendment was “born of animosity towards the class of person affected.” In Windsor, he said that the purpose of the federal statute was “to demean those persons who are in lawful same-sex marriages.”
Windsor: states are “sovereign” over marriage!
Just as significant as the “demeaning of homosexuals” rationale in Windsor’s majority opinion are explicit and forceful statements that marriage has always been and still is under the authority of the states. In the Perry case, decided on the same date as Windsor, the Court avoided ruling on California’s marriage law by dismissing the case on procedural grounds. In Windsor, the Court overturned the federal statute, the Defense of Marriage Act (DOMA) (1996), because, quoting a prior case, “the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce,” and, quoting another two of its prior decisions, “regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States,” and even when the Court has sometimes upheld “limited federal laws” that intrude into the states’ prerogatives over marriage, quoting still another prior decision, “the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States,” and “each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.” Justice Kennedy pointedly closed the majority’s opinion with: “This opinion and its holding are confined to those lawful marriages,” that is, lawful marriages under state law. In light of this language, how can the lower federal courts be engaged in a campaign to overturn state marriage laws?
The score: marriage
This series of essays has been an attempt to state what the court decisions on homosexual marriage have actually said and how those decisions represent a whole new kind of law and constitutional law. We have previously pointed out that only the result, not the rationale, of the latest federal court decision—almost always the demise of another state law—is being publicly discussed, and always in the tone of voice, “all Americans are for equality, except for homophobes.” Furthermore, the overall nationwide score, “same-sex marriage is now legal in thirty-six states,” is reported without stating how the game has been played: most importantly, that homosexual marriage as a matter of public law was invented by the federal courts.
Thus, in the face of the overwhelming public pressure to the effect that “equality is all-American,” the normal constitutional considerations about the most basic divisions of public power, federalism, the extent of judicial authority, the legislature’s power of the purse, and the structure of society itself are not only obscured but also not even mentioned. The sole issue is “homosexual rights” and its vindication on essentially the same rationales, both by the federal courts and by what must be admitted has been the most effective public-opinion campaign ever. Marriage has been unable to be saved in the face of this campaign by the media, the federal courts, and a great deal of money, including corporate money.
The actual marriage score is this: The first same-sex marriage as a public act in the history of the world was performed in the Netherlands in 2001. Of the 195 countries in the world, only sixteen, all in the West, have homosexual marriage. In this country, the first public homosexual marriage was conducted in 2003 in Massachusetts by order of that state’s highest court. Between 1998 and 2012, thirty-one states passed constitutional amendments preserving marriage as being between a man and a woman, and, of the remaining nineteen states, thirteen retained their traditional laws with that traditional definition. It is these state laws and constitutional amendments that are now being repealed by the federal courts. Still today, only eleven states have created homosexual marriage by legislation or initiative. In 1996, the federal Defense of Marriage Act (DOMA), enacted by Congress with overwhelming bipartisan support (and signed but later repudiated by President Clinton), defined marriage in all federal programs as being between a man and a woman. That act is what the Supreme Court overturned in its 2013 Windsor decision. Now, four of the federal courts of appeal have struck down the marriage laws of a total of twenty-three states.
In a previous essay in this series, we saw that the supreme court of Massachusetts (2003) and a federal district court in California (2010) could not have created homosexual marriage without the formulations and inspiration of Supreme Court Justice Anthony Kennedy’s opinions for the Court in the homosexual cases of Romer v. Evans (1996) (equal protection) and Lawrence v. Texas (2003) (sodomy). Without those two cases, there was no law, precedent, or rationale with which to overturn the understanding of marriage that had always existed in human history. (Indeed, the Massachusetts court heavily relied on Lawrence, which had been handed down by the Supreme Court only four months earlier.) Marriage had existed on its own quite apart from American constitutional doctrines of equal protection and due process. A new kind of “law” was needed, and Justice Kennedy supplied it with his world view of sexual evolution, liberation, and condemnation of people opposed to homosexuality in Romer, Lawrence, and now in Windsor.
After Windsor, the lower federal courts overturn state marriage laws.
How have the lower federal courts dealt with Windsor’s language, especially the language concerning state prerogatives over marriage and the language concerning the “demeaning” of homosexuals? We will consider the decisions of four federal courts of appeal, all decided in the last quarter of 2014. The case that the Supreme Court has accepted is the appeal by homosexuals in the states of Kentucky, Tennessee, Michigan, and Ohio, of the Sixth Circuit Court of Appeals (with jurisdiction over six western states) decision in November 2014 upholding the marriage laws of those four states.
The Sixth Circuit’s decision thoroughly takes on every argument that has ever been brought up in the homosexual-marriage debate. Only the three that have come up in most of the cases will be mentioned here. The Sixth Circuit, as opposed to the Seventh Circuit (below), concluded that state marriage laws are “rational.” The court said that marriage between a man and a woman is “a reasonable first concern of any society” because of the “unique procreative possibilities” of such marriages. States, the court held, may rationally defend such an institution “as an incentive for two people who procreate together to stay together for purposes of rearing offspring.” Thus, according to the Sixth Circuit, children are an essential part of the public interest in marriage. Concerning Justice Kennedy’s issue of the “demeaning” of homosexuals, the court took it on directly, up to and including the conclusion that it was not essential to Romer, and held that the four states had put marriage into their constitutions based on a “widely held social norm reflected in state law” not “malice or unthinking prejudice.” The court went on to say that court decisions need not “turn on reading the minds of city voters in one case or of statewide initiative supporters in the other.” Pointing out that the “heroes” of the current debate are “judges and lawyers,” the appeals court concluded that “the people” by means of “the customary political process” ought to decide the issue.
In the Seventh Circuit Court of Appeals (three midwestern states), libertarian intellectual, author, and President Ronald Reagan judicial-appointee Richard Posner, in a heavily sarcastic and even snarling opinion concluded that marriage without homosexual marriage is irrational. Apparently, marriage as it has always existed in human history is beneath intellectual contempt. His opinion has been heavily lionized by the homosexual lobby and the liberal media. He emphasized the demeaning-homosexuals part of Windsor and held that Indiana’s law was unconstitutional for that reason alone. He conceded that Windsor, since it did not concern state law over marriage, was distinguishable from the case for which he was writing the majority opinion. That did not deter him. In keeping with his assurance of his moral and intellectual superiority, and by citing at various places both utilitarian philosopher John Stuart Mill and the field of psychology, he said that he was mostly eschewing “formidable doctrinal terminology”—that is, normal constitutional analysis—in favor of his own, invented “simplified four-step analysis” addressing four questions: Namely, is exclusion of homosexuals from marriage based on “a history of prejudice,” is homosexuality an “immutable” characteristic, does excluding homosexuals from marriage benefit society, and could the alleged benefit to society be achieved in some other way? Normal marriage laws failed all four questions and were, therefore, not rational and their defense “implausible.” Thus, in focusing on the anti-demeaning aspect of Windsor and adding his own original analysis, thereby avoiding constitutional law, he all but completely ignored that part of Windsor emphasizing the prerogatives of the states over marriage.
In the Ninth Circuit (the nine most western states), the majority opinion was written by Judge Stephen Roy Reinhardt, who had previously authored the 2010 decision, dealt with in a previous essay, overturning the California citizens’ initiative preserving marriage. Judge Reinhardt directly acknowledged that the Supreme Court “made explicit in Windsor and Lawrence that it was not deciding whether states were required to allow same-sex couples to marry.” But that did not deter him. He said that Windsor established a “heightened scrutiny” for the “actual, motivating purposes” of DOMA, thus referring to the demeaning theme but avoiding the normal constitutional analysis of the level of scrutiny appropriate to certain classes of persons. Citing Windsor, he said that “Idaho and Nevada materially harm and demean same-sex couples and their children.” Overall, Judge Reinhardt repeatedly cited that Windsor basis that marriage laws are homophobic and ignored the Windsor basis that states have prerogatives over marriage law.
The Fourth Circuit (five middle and southern states) did directly refer to the federalism aspect of Windsor in passing, but then sarcastically dismissed that emphasis by saying that the Supreme Court “did not lament” that DOMA had usurped state authority as a matter of federalism. The longest part of the Fourth Circuit’s opinion served to disparage the notion that states may prioritize children as the fundamental basis of a state’s public interest in marriage. Citing as authority the Supreme Court’s 1965 Griswold contraception decision as a long-standing authority, the Circuit concluded that the Supreme Court “has articulated a view of marriage that has nothing to do with children.” Notably, that conclusion is a direct contradiction of Justice Kennedy’s Windsor opinion, which emphasized again and again the welfare of the children of same-sex couples.
Marriage: what has and has not been said
The Supreme Court may overturn the Sixth Circuit’s decision in favor of marriage by simply referring to it as in the minority compared to the other federal courts of appeal. But, even if the Court just “finishes the job,” it must still write an opinion. We have just reviewed the wide disparity in language and rationales in three appeals court decisions overturning state marriage laws. What will the Supreme Court say in its coming decision?
An obvious difference between Windsor and the current attacks on state law in the federal courts is that no state, including the state of New York where the case originated, was a party in the Windsor case. The states have not had to defend their marriage laws before the Supreme Court. As was said above, the language of Windsor was very much a decision based on traditional state authority over the field of marriage. Can the Court endorse the superior position of state law in the states that have legislated homosexual marriage while at the same time overturning the laws of other states? Even if it attempts to avoid that conundrum by declaring a universal constitutional right to homosexual marriage, can it really do so without including any substantive ruling about the states?
This series of essays has been one of the few analyses to point out the central importance of the power of the purse in the homosexual-marriage decisions. The plaintiffs and the courts themselves in all the federal cases, Supreme Court and below, have strongly emphasized the financial and tax benefits of the status of marriage. Thus, the numerous statutes providing for such benefits enacted by both the states and by Congress with the definition of marriage in mind are being taken over by the courts for the sake of other persons. Therefore, is marriage regarded more as a welfare program than as a status or a social institution.
In basing the Court’s decision on the “evolving understanding of the meaning of equality”—what he also called “a new insight” about marriage—Justice Kennedy did not mention that on the date of the Windsor decision, Twenty-Sixth of June, 2013, of the ten states that had homosexual marriage, only seven, four of which are in New England, had adopted it by acts of their legislatures or by voter initiative. The other three, two of which are in New England, had been ordered to do so by their state supreme courts. Of course, the other forty states retained their laws of man-and-woman marriage. Contrary to Justice Kennedy, eighty percent of the states had abided and not evolved with respect to marriage. In dissent, Justice Scalia did not call it “evolution” but “a breathtaking revolution.”
Although homosexual rights are routinely referred to in the media as the “new civil rights crusade,” the lack of emphasis on civil rights law is a remarkable aspect of Windsor and of the lower federal court decisions based on Windsor. This includes barely mentioning Loving v. Virginia, the 1967 decision in which the Supreme Court overturned the state of Virginia’s anti-miscegenation law. But there may be three reasons for that. First, in the modern civil-rights era beginning with Brown v. Board. of Education (1954), Loving was one of a series of cases and public laws directed against public discrimination based on race. It had that wide and deep basis. Homosexual marriage, by contrast, is a new thing. Second, perhaps Loving has been avoided because the text of one of the involved Virginia statutes contained the words “man and wife.” Third, Loving provided access to civil marriage on an equal basis for all persons. It did not change the concept and definition of marriage. Likewise, Brown provide equal access but did not change the school buildings or the curriculum. Homosexual marriage provides equal access but changes the nature of marriage. The proof of that is that various courts have perceived the need to issue new definitions of marriage.
In its coming decision in July, will the Court issue a definitive statement on the status of homosexuals in American law and constitutional law? Are they a “class,” a “suspect class,” a “quasi-class,” or a new and special kind of class? The Supreme Court has admonished the lower federal courts not to create new “suspect classes” with their requirement of “strict scrutiny.” The only “suspect” classes that have been identified by the Supreme Court are race, ethnicity, and alienage—although there are other “intermediate” classes, of which sex is by far the most important. The Court in Windsor pointedly did not characterize homosexuals as any kind of new class. Will it now do so and, if so, on what basis? Notably, along the way to Windsor, the appeals court, in fending off arguments that the homosexuals are not an identifiable class because they do not have a perceivable or visibly distinguishing characteristic, had held that homosexuals become a class when they are rejected for federal benefits. The Supreme Court, however, did not adopt this conclusion of the appeals court.
Concerning another constitutional standard, some of the lower federal courts, but again not the Supreme Court yet, have found that traditional marriage has no “rational basis.” In constitutional jurisprudence, “rational basis” is the easiest standard by which legislative classifications in statutes are routinely upheld by the courts, that is, it is the presumed “paradigm of judicial restraint” by which all legislation is upheld if, according to Supreme Court precedents, “any statement of facts reasonably may be conceived to justify it.” For a private plaintiff to have a court negate a law on the basis that the law has no “rational basis,” he must disprove, quoting the Supreme Court, “any conceivable basis which might support it,” that is, every conceivable basis that anyone might think up at any time, regardless of whether the legislating body had thought it, stated it, or relied on it. Thus, the only form in which marriage has ever existed in history has been found by some federal courts to be “irrational,” and so irrational that it could not survive the most judicial-hands-off standard in constitutional jurisprudence. Will the Supreme Court now follow?
Further implications for marriage
When marriage is defined, as Justice Kennedy did, as an “intimate relationship between two people,” or, as the Massachusetts Supreme Court did, as a “committed relationship,” or, as the federal district court in California did, “a union of equals,” it is obvious that such definitions really admit of no limit. For example, they must include polygamy and polyandry. Indeed, it is already a reality. For, concerning homosexual or lesbian couples who desire to have children, a third person, whether a sperm, egg, or womb donor, is necessary. Also, “group marriage” was one of the innovations of the 1960s, when the sexual evolution began.
Moreover, why should mere co-habitation be excluded? After all, common-law marriage has a long history in this country. Of course, same-sex marriage need not have anything to do with sexual relations. Two persons of the same sex can be married solely for the tax and public-welfare benefits, a constant factor and emphasis in these cases. Of course, friendship is a “committed relationship” as well. Under the new “relationship” definition of so-called marriage, there does not seem to be any limiting principle. The financial and tax benefits of the expanded definition of marriage could turn out to be the biggest affirmative-action and welfare program of them all.
In Windsor, Justice Kennedy said that the Constitution secures the “moral and sexual choices” of homosexuals. In Lawrence, the sodomy case, he said the Constitution protects “adult persons in deciding how to conduct their private lives in matters pertaining to sex.” Inevitably, these grand super-constitutional proclamations of “evolving” sexual liberations are going to involve the federal courts in all issues and areas—education, the workplace, and churches, for example—where homosexual rights are being raised. Just as inevitably, such cases are going to include, and already do include in various state and federal courts, city councils, and state “human rights commissions,” questions regarding such matters as gender identity, gender expression, sexual orientation, “womyn-born,” bisexuality, transsexuality, transgender, pangender, and “third gender.” A majority of Americans may have only a vague comprehension of several of those terms—unlike readily apparent characteristics like race or sex. What this means is that persons claiming these gender characteristics will be allowed to “self-identify” for legal purposes, a unique privilege pertaining to them alone at their own say-so. The creation of a special class of persons identified and defined by its own special terms seems to undermine the very purpose of “public” law as well as to negate the universal legal maxim, “every citizen is presumed to know the law.” Along with the re-defining and expanding of “gender,” will it become possible to enforce sex discrimination laws?
Finally, it must be pointed out that despite the reliance of the Supreme Court and the lower federal courts on the “right to privacy” of the contraception decisions Griswold (1966) and Eisenstadt (1972) and the abortion decisions, Roe v. Wade (1973) and Casey (1992) marriage as provided by and regulated by law is a public act. Thus, the evolution of the sexual revolution recognized by those decisions, augmented now by Romer, Lawrence, and Windsor, is transformed into a public right. What is more, that public right demands both public and private assent. “Merely toleration,” as Judge Reinhardt said in the Ninth Circuit’s decision, is not sufficient. The Constitution “must affirm the love and commitment of same-sex couples,” he said. Or, as Justice Kennedy held, the Constitution requires the elimination of the disparagement, humiliation, and demeaning of homosexuals.
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