Helen Alvare is a Professor of Law at George Mason University School of Law. Professor Alvare filed an amicus brief in support of Hollingsworth and BLAG.
Many likely expected that, to the extent that a discussion of the “nature of marriage” would feature at all in the Supreme Court’s same-sex marriage opinions, it would take place in the Hollingsworth v. Perry (Prop 8) case, assuming that the Court first saw its way clear to finding standing on the part of the official proponents of Prop 8. Windsor (DOMA), it was widely thought, could well be decided upon federalism grounds: i.e. states’ traditional authority over the validity and incidents of marriage. Instead, the Supreme Court’s discussion over the meaning of marriage took place in Windsor, albeit after a fairly extended, but ultimately inconclusive and nondispositive treatment of federalism. This dynamic was introduced with the following paragraph:
Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.
Thus began the Majority opinion’s series of statements about what marriage is, in the context of its Due Process and Equal Protection analyses of DOMA. It used these statements in order to describe what New York was doing when it decided to confer the designation of “marriage” upon two persons of the same-sex. In the Court’s words, New York was seeking to “protect” a “class of persons,” (slip op. 15-16); to “confer upon them a dignity and status of immense import” (slip op. 18); to grant a “far-reaching legal acknowledgment of the intimate relationships between two people, a relationship deemed by the State worthy of dignity in the community” (slip op. 25); to “give …lawful conduct a lawful status” (slip op. 25); to “confer” “dignity” (slip op. 21)’ to “enhance [the] liberty” of a “class of persons deemed by a State entitled to recognition and protection” (slip op. 25); to “protect” the “personhood and dignity” of certain citizens (slip op. 25-26).
Once the Majority had decided that access to legal marriage’s rights and duties was equivalent to the recognition and protection of “dignity,” “lawful” behavior, “liberty,” and even “personhood,” they could more credibly argue that denial of access to marriage recognition was equivalent to a denial of dignity, freedom and personhood. And that is what they did. The Court held that DOMA could only be understood as a vehicle for harming those who would enter into same-sex unions. “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” (slip op. 21). The legislative and executive actors responsible for DOMA were further held to intend to “demean” (slip op. 23) and “injure” (slip op. 23) the couple, and to “humiliate” (slip op. 23) any children they were raising.
In its decision to interpret DOMA as a reaction against state lawmakers’ desires to support the liberty and equality and dignity of a class of people (those attracted to others of the same-sex), the Windsor Majority opinion feels quite arbitrary. It feels arbitrary because the Court could quite easily– after consulting DOMA’s legislative history, and the merits briefs in the case – have concluded that Congress and the President enacted DOMA in order to support the unique goods offered by opposite-sex marriage. These goods include both the integration of men and women in society, and the birth and rearing of children in family settings in which the benefits of genealogical connection and opposite-sexed parenting are preserved.
It also feels arbitrary because the Court ignored over 125 years of its own family law decisions repeatedly recognizing with approval governmental interests in the procreative features of marriage: childbirth and childrearing by the adults who conceived them, and the contribution of that childrearing to a stable democratic society. A few examples make the point: In the case refusing to allow polygamy on the grounds of the Free Exercise Clause, Reynolds v. United States, 98 U.S. 145 (1879) the Court explained states’ interests in regulating marriage with the simple declaration: “Upon [marriage] society may be said to be built.” Nearly 100 years later in Loving v. Virginia, 388 U.S. 1 (1967) striking down a state’s anti-miscegenation law, the Court referred to marriage as “fundamental to our very existence and survival,” necessarily endorsing the role of marriage in propagating society through childbearing.
Even in cases where only marriage or childbearing was at issue, but not both, the Court repeatedly referred to “marriage and childbirth” together in the same phrase, nearly axiomatically. For example, In Skinner v. Oklahoma ex rel. Williamson, 361 U.S. 535 (1942), concerning a law punishing certain classifications of felons with forced sterilization, the Court opined: “Marriage and procreation are fundamental to the very existence and survival of the race.” Even in Turner v. Safley, 482 U.S. 78 (1987) where the Court held that certain prisoners must have access to marriage, the Court distinguished the situation of prisoners who would someday be free, from that of prisoners whom a state refused to permit to marry, on the grounds that life imprisonment would foreclose the ability to parent and rear children. Turner noted that in Butler v. Wilson, 415 U.S. 953 (1974) the Supreme Court had summarily affirmed the case of Johnson v. Rockefeller, 365 F. Supp. 377 (S.D.N.Y. 1973) in which inmates imprisoned for life were denied marriage, in part upon the rationale that they would not have the opportunity to procreate or rear children. Said the Johnson court: “In actuality the effect of the statute is to deny to Butler only the right to go through the formal ceremony of marriage. Those aspects of marriage which make it ‘one of the basic civil rights of man’—cohabitation, sexual intercourse, and the begetting and raising of children—are unavailable to those in Butler’s situation because of the fact of their incarceration.”
By contrast, Windsor describes the meaning of marriage in nearly entirely adult-centric terms. On three points only, the Majority references children. The first (slip op. 14) concerns the same-sex couples’ possible desire to affirm their commitment in front of their children. The second concerns the children’s claimed feelings of humiliation because federal law and state law treat the adults who are rearing them differently (slip op. 23). And the third claims that children in same-sex households are financially harmed by DOMA (slip op. 24). The first point is ambiguously child-focused. The second is speculative, especially given that the majority of children reared in same sex households have legal mothers and fathers from prior heterosexual relationships. (See Garry J. Gates, Family Focus on…LGBT Families: Family formation and raising children among same-sex couples, National Council on Family Relations Report, Issue FF51, 2011.) And the third point is also uncertain given that marital status comes not only with financial advantages, but also with disadvantages. These points aside, however, the overwhelming message of the Majority opinion is that solicitude for adults’ interests is the sine qua non of marriage recognition.
After such a performance, could this majority of the Supreme Court find a way to uphold the constitutionality of a state law recognizing marriage for all state purposes as the union between one man and one woman? Chief Justice Roberts’ dissent suggests “yes,” and “yes” without a great deal of difficulty, given what he describes as the Majority’s emphasis upon states’ “historic and essential authority to define the marital relation,” (Roberts at 2, citing majority opinion at 18). But Justice Scalia draws what I believe is the more likely conclusion. Once the Court decides to “see” opposite-sex marriage definitions as intrinsically hostile and even demeaning to persons wishing to marry another person of the same-sex, the table is already set for same-sex marriage. Justice Kennedy can write that the majority’s opinion has relevance only in situations in which a government decides to disagree with a state’s prior recognition of same-sex marriage, but this is on its face an arbitrary line. If Kennedy and the rest of the majority can discern a “bare desire to harm” in DOMA, they can probably find it in any state marriage law defining marriage as the union of one man and one woman. They can, as they did in Windsor, simply, arbitrarily, choose to ignore states’ essential interests in supporting the only institution that links children with their mothers and fathers.
Should this come to pass, as my amicus brief argued before the Court, children and vulnerable Americans will suffer over time far more than privileged adults. The latter can better insulate themselves from the myriad negative effects of divorcing sex, marriage and children. The former really do need what held the state can offer in the way of keeping these matters together.