You may have noticed some fellow travelers on Facebook suddenly appearing as muted red equal signs on a bold red background. The Facebook equal sign is your perennial show of solidarity, wherein supporters will draw virtual inspiration from their concomitance whilst they click away the hours sharing pictures of baked goods on Pinterest. But what could possibly be so important that hundreds of your friends would replace their strategically attractive profile pictures, even for just a few days?
Gay marriage at the Supreme Court, that’s what. Get it now? Equal sign = equal rights for all. It’s a red version of the Human Rights Campaign‘s blue-and-yellow equal sign you might see on cars. Enough Facebookians are involved for Time’s Newsfeed to have taken notice.
There are actually two high-profile marriage cases before the Court this week. Hollingsworth v. Perry is the federal court challenge to California’s Proposition 8, a voter-approved amendment to the state constitution that declares “only marriage between a man and a woman is valid or recognized in California.” United States v. Windsor is a challenge to the federal Defense of Marriage Act (DOMA), which defines marriage the same way for purposes of federal law.
Passions are high for all—besides the Facebook uprising, both sides are demonstrating outside the Court with some powerful messages. For convenience, we can oversimplify and call the two sides “Marriage Equality” and “Traditional Marriage.” The Marriage Equality side argues that this is the next battle in the great Civil Rights struggle. Not too long ago, it was still illegal in some states for whites and blacks to marry. These so-called anti-miscegenation laws were struck down—in 1967!—in the celebrated (and delightfully named) case Loving v. Virginia.
Readers might recall the Missouri pastor who cobbled together a speech from old segregationists, replacing the term “racial integration” with “gay rights.” Until the big reveal, it sounded like a pretty standard argument for traditional marriage. This is disturbing stuff that we need to take seriously. If the analogy holds—if gay people are in the same position now as blacks were in the 50s—then it follows that we (the Traditional Marriage side) are the segregationists. If indeed “gay is the new black,” then count me out.
But that can’t be right. The disanalogy is explored at great length elsewhere (including before the Court), and it is important that we not let this rhetoric confuse us. One of the reasons we find those old segregationist pastors so odious is precisely because they abused this kind of argument. We must not be maneuvered into discarding legitimate ways of reasoning about political issues simply because wicked men have used them in the past. Josef Stalin murdered millions of people while espousing the same rhetoric as some of today’s leftists. Conservatives commit the same fallacy when they use the response, “Chairman Mao, QED.”
Pastor Snider’s bait-and-switch makes a powerful statement, and I don’t think it was a cheap trick at all. We need to be very careful that our thinking here is not tainted with animus. We do not have to condone homosexual behavior to have normal relationships with gay people—unless, of course, all of your friends are sinless beings whom you interview before starting a relationship. The question of marriage might drive a wedge in our politics, but any purely personal discord should not be coming from Christians.
To those who argue for traditional marriage out of hate for their gay neighbors—we pray for you, but we cannot welcome you.
Alright, you say, denunciations are all well and good. But even if our position is in good faith and not hateful, are we not still depriving an entire class of people of a basic civil right? Why deny the blessings of marriage to committed gay partners? As it turns out, the Constitution requires the government to provide an answer to that question. The Court is not empowered to judge the policy wisdom of the law, but “Equal Protection of the Laws” means that any classification requires an explanation. In the context of race, this justification has to be pretty darn convincing (for various reasons too complicated to explain here). But in almost every other context, the classification must only have a “rational basis” related to a “legitimate” state purpose.
The law did not fare well below. The trial court’s opinion was a drumbeat of finding after finding, beating the law in to the ground until finally concluding, on page 135, that the law “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.” The Ninth Circuit, in an opinion by an icon for judicial liberalism, affirmed: “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California.”
I think we can agree that if marriage has no public purpose, then it is hard to explain why we have it at all, let alone why it is important to limit it to one man, one woman. Prop 8′s defenders (Governors Schwarzenegger and Brown both refused to defend the law in court) assert two main governmental interests. First, they make the forceful case that marriage has always been defined and explained as rooted in promoting responsible procreation. In their words, “By providing special recognition, encouragement, and support to committed opposite-sex relationships, the traditional institution of marriage preserved by Proposition 8 seeks to channel potentially procreative conduct into stable, enduring relationships[.]” The second rational basis flows from the first: They argue that California has an interest in “proceeding with caution before fundamentally redefining a bedrock social institution.”
These two interests are vigorously contested by Marriage Equality proponents, who immediately demand evidence that responsible procreation is advanced by traditional marriage. After all, gay couples already have children and lots of straight couples are terrible parents. The conversation then quickly becomes two ships passing in the night, each side misappropriating social science studies and ignoring the other side’s premises. But the legal question is not whether California has the better sociological argument—it is whether it is rational for it to think traditional marriage is, to quote Blackstone, “the manner in which that natural impulse must be confined and regulated.”
The DOMA case involves the same issues, but because it is a federal statute brings in additional considerations. The section at issue declares that, for purposes of federal laws, the term “marriage” is defined in the traditional way. Thus, federal tax breaks, benefits programs, and so on, will not apply to same-sex married couples in those states that allow such unions. Normally there is no question that a legislature has the power to define the terms it uses. The argument here is that the definition results in unequal treatment of validly married couples based only on sexual orientation. While the two cases are similar, the DOMA case brings the question of benefits schemes in to starker relief—especially since California has a civil union law that bestows identical benefits on same-sex couples.
The Marriage Equality side thinks that the Traditional Marriage side is “on the wrong side of history.” We must reject arguments from historicism, for history makes a weak and fickle god—and people change cultures. But the Chief Justice has been concerned with his Court’s reputation, and Justice Kennedy can have libertarian tendencies. On the other hand, it is difficult to imagine even the Court’s liberals ruling that the government in either case has no rational basis here. Predictions, therefore, are of little value. In my view, the California law easily passed rational basis. Indeed, I believe traditional marriage passes the harsher strict scrutiny standard, as the least restrictive means of achieving society’s goal of channeling potentially procreative relationships—and reaping the panoply of benefits that accompanies that general ordering with the least possible state intrusion.
Is that a legitimate state interest? Some think we need fewer people, not more children; some think ordering society isn’t the state’s role. I think that’s wrong. Who should decide? In the current battle at the Supreme Court, the fight is not about what kind of marriage laws are best—it is about leaving those decisions with political communities. A “loss” for the plaintiffs in these cases will not change any law in any state—and if they are right, soon almost everyone will be on their side. But if Traditional Marriage loses—if the marriage laws of all of human history are ruled unconstitutional in 2013—the law changes everywhere and no one gets a say.