March 29, 2002


If you are being brought here from the gay marriage discussion at Quasipundit, you can find the full review here Virtually Normal : An Argument About Homosexuality (1995) (Andrew Sullivan) and I'd just make a couple of points in response to Mr. Adragna :

(1) To the best of my knowledge, the Court has never overturned its own precedent in Bowers v. Hardwick which held constitutional a Georgia antisodomy statute. It seems obvious that if a state may criminalize homosexual conduct it can not be required to give an official imprimatur (marriage) to a homosexual relationship.

(2) I don't believe, though I admit to being out of practice at reading these things, that Loving v. Virginia is a marriage case. It is rather a race case, a 14th Amendment Equal Protection case. If we trim Justice Warren's statement of the case, we get the following :

*This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

*While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power, Maynard v. Hill, 125 U.S. 190 (1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment.

*There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races...There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.11 We have consistently denied [388 U.S. 1, 12] the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

*These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

And if we refer back to Skinner v. Oklahoma we find :

Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of "equal protection of the laws is a pledge of the protection of equal laws." When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. We have not the slightest basis for inferring that that line has any significance in eugenics, nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment, the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn.

It seems apparent from the language of these cases that marriage is a creature of the state, but one which, if it is to grant to anyone, it must grant equally to people who are similarly situated. The 14th Amendment is, of course, one of the post-Civil War amendments, designed specifically (though inartfully) to protect blacks from discrimination, so it would clearly be unconstitutional to restrict access to marriage on the basis of race.

Skinner appears to be more of an overreach by the Court, as there is nothing in the 14th to suggest a concern with equal treatment of different classes of criminals. But setting that aside for the moment, the most that can be said of the ruling is that if a state grants access to marriage (the case actually involves sterilization of criminals) to one class of criminals it would have to grant it to all others. It's important to note that it appears the state could simply ban marriage for all criminals, or perhaps, given the subject of the case, even sterilize all criminals, so long as it did so equally.

In sum, these cases do not appear to create any "right to marriage" nor do they recognize one in the Constitution. Rather they require states, once they have sanctioned the institution, to grant it equally to people who are similar and the 14th Amendment requires that we recognize that race is not a category that makes human beings dissimilar. States are still allowed to restrict marriage for reasons of age of the parties, consanguinity, polygamy, gender, etc. This rather thorough scheme of regulation would be incompatible with anything that was truly a constitutional right. Imagine for instance if the state tried to limit you from speaking to the same types of people it forbids you to marry--this would clearly be an unconstitutional abdridgment of the right of free speech.

To date there is no constitutional amendment akin to the 14th requiring us to recognize that sexual preference is not a category that makes human beings dissimilar. Such an amendment, though I would find it abhorrent, would nonetheless create the type of right to marriage for homosexuals of which Mr. Adragna speaks. In the meantime, for the reasons stated in the review, I would oppose any expansion of marriage to other than heterosexual, monogamous, unrelated, adult couples. On the other hand, it seems like some lesser provision could be created for gay couples, perhaps just state recognition of a contractual obligation between the two parties.

Posted by Orrin Judd at March 29, 2002 7:13 AM
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