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Same-sex marriage symposium: The protean case against same-sex marriage

The following contribution to our same-sex marriage symposium comes from William N. Eskridge Jr., the John A. Garver Professor of Jurisprudence at the Yale Law School.  He is the author of The Case for Same-Sex Marriage (1996) and dozens of other books and articles arguing for the civil rights of sexual and gender minorities. He has filled a brief as amici curiae in support of the respondents in Hollingsworth v. Perry.

The Supreme Court has before it petitions for review in several cases that present issues of marriage equality.  I shall focus my comments on Hollingsworth v. Perry, a petition for certiorari filed by the supporters of California’s Proposition 8, a voter initiative that revoked the state supreme court’s recognition of marriage equality under the state constitution.  The Ninth Circuit invalidated Proposition 8 on the ground that the revived discrimination against lesbian and gay couples did not rest upon a rational basis and therefore violated the Equal Protection Clause, as construed in Romer v. Evans.   That 1996 decision evaluated a voter initiative that revoked antidiscrimination protections previously enjoyed by gay people; the Court ruled that the public justifications advanced to support the initiative were so “discontinuous” with the initiative’s actual operation that the initiative lacked a rational basis and was presumably adopted on the basis of unconstitutional “animus.”)

In an earlier post, I suggested that the Supreme Court ought to pay careful attention to Professor Alexander Bickel’s passive virtues in its deliberations about the Proposition 8 case.  Because the country is not yet at rest on the issue of marriage equality, the Supreme Court ought to deny the petition for review in Perry or, if it grants review, dispose of the case on narrow procedural (standing) or substantive (Romer) grounds.

Since that earlier post, I have been struck by the protean nature of the arguments against marriage equality.  One argument rules the roost for a few years, only to be abandoned and replaced by a new one.  The instability of these arguments is, standing alone, an interesting phenomenon.  The fact that even the most devout opponents of marriage equality have not settled on a stable public justification is also an excellent Bickelian reason for the Court not to take review in the Proposition 8 case.  If the Court does grant the petition in Perry, moreover, the constantly shifting justifications for discrimination ought to make the Justices especially reluctant to reverse the Ninth Circuit’s finding of a constitutional violation and even eager to follow the Ninth Circuit’s narrow reasoning, grounded upon Romer.

When marriage equality litigation started in the 1970s, the main justifications for discriminating against committed lesbian and gay couples were moral and definitional.  In the first appellate decision on the issue, the Minnesota Supreme Court ruled in Baker v. Nelson (1971) that both God and the state had traditionally limited marriage to one man and one woman and, therefore, that the exclusion of same-sex couples from marriage was not discrimination, but rather was a natural consequence of the institution’s make-up.  The Supreme Court dismissed the couple’s appeal from this judgment.

The definitional argument lost some of its cultural cogency once the country became aware that thousands of lesbian and gay couples were rearing children in committed (essentially “marital”) relationships, but a new argument took its place.  “Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality,” opined congressional supporters of the Defense of Marriage Act (1996).  “This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”  This stamp of approval argument was almost immediately problematic, however, because there is too thin a line between “moral disapproval of homosexuality” and the antigay “animus” rejected in Romer.

In the wake of Romer, stamp-of-approval arguments were superseded by the defense-of-marriage argument: extending marriage licenses to same-sex couples would undermine marriage as an institution. This had the advantage of tying discrimination to a neutral public policy; it had the disadvantage, however, of resting upon no evidence that marriage equality “caused” marriage to decline as an institution.  The fact that marriage equality in Massachusetts (2003-04) and other states (as well as Canada in 2005) has done nothing to undermine the institution in those jurisdictions has taken the wind out of that argument as well.

The defense-of-marriage argument has, in turn, given way to the responsible-procreation-and-child-rearing argument. “[T]hrough the institution of marriage, societies seek to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world,” wrote the supporters of Proposition 8 in their Supreme Court petition, and such inducements are not needed for same-sex couples, who pose no risk of irresponsible procreation.  Because this new argument demonizes “irresponsible” straight couples and says nothing bad about lesbian and gay couples, it is a kinder, gentler form of rights-denying discourse.  But it still justifies a serious antigay discrimination.

The Proposition 8 case itself has been a microcosm of the dramatic shifts in justification for marriage discrimination. In the ballot materials provided to voters, the supporters of Proposition 8 emphasized definitional and stamp-of-approval arguments denigrating lesbian and gay families as inferior. At trial in the case, the lawyers and witnesses supporting Proposition 8 largely abandoned arguments openly denigrating these families and highlighted defense-of-marriage arguments. On appeal, they emphasize the argument that discrimination against committed lesbian and gay couples can be justified by marriage’s concern with responsible procreation and child-rearing.

Nor is this new justification the last one that opponents will offer for denying marriage equality – in part because it is so vulnerable under the rational basis analysis the Supreme Court performed in Romer.  The discrimination is completely “discontinuous with the reason[] offered for it,” the precise reason the Supreme Court struck down an antigay voter initiative in Romer.  That is, the exclusion of committed lesbian and gay couples from the status of civil marriage does not plausibly advance the state policy of “responsible” procreation and child-rearing.  One can imagine a number of policies that might steer potentially irresponsible straight couples toward responsible procreation – from penalties for reckless procreation to subsidies awarded to responsible couples.  But it is virtually impossible to see how procreative responsibility is engendered by excluding lesbian and gay couples from marriage.  The trial judge asked counsel for the defenders of Proposition 8 “how permitting same-sex marriage impairs or adversely affects” the state’s interest in marital procreation.  The counsel replied “Your honor, my answer is: I don’t know. I don’t know.”

Even worse than the discrimination invalidated in Romer, the exclusion in Perry actually undermines the stated goal, understood in the context of official California state policy. Thousands of children are being raised in California by committed lesbian or gay domestic partners.  California state policy offers these families the same legal protections as marital families, with the exception created by Proposition 8.  Because California’s family law focuses on the interests of children, the state’s interest in responsible child-rearing is the same for all couples, whether gay or straight. So denying marriage to lesbian and gay couples and thereby denigrating their relationships undermines the state’s goal that petitioners try to invoke.

Is there a public interest that might justify excluding lesbian and gay couples from civil marriage? Opponents of marriage equality have not yet settled on a stable justification for the discrimination, and the most recent attempt at justification seems the most disconnected from the plausible reasons voters might have had for adopting Proposition 8.  The protean case against marriage equality is one reason the Supreme Court might deny the petition for review in Perry:  do not adjudicate the constitutionality of marriage discrimination until the supporters have settled on a stable rationale.

I have now, also, concluded that the mobility of the arguments supporting discrimination remains relevant if the Supreme Court reaches the constitutional merits in either Perry or the cases challenging the constitutionality of DOMA, especially Bipartisan Legal Advisory Group, U.S. House of Representatives v. Gill, which seeks review of the First Circuit’s decision striking down DOMA’s exclusion of lesbian and gay married couples from all federal statutes and regulations relating to marriage.

We have seen this kind of mobility of justification before – in constitutional defenses of laws barring different-race couples from civil marriage.  Initially, such laws were justified by religious condemnation of “miscegenation,” but as America became more secular the anti-miscegenation laws were justified instead by eugenic concerns with “dilution” of the “white” race.  By the time the Supreme Court struck down such laws in Loving v. Virginia (1967), proponents had pretty much run out of arguments and rested their case on tradition and the continuing resentment against “mixed race” couples.

As the litigation history of Hollingsworth v. Perry illustrates, the proponents of same-sex marriage bars are swiftly running out of arguments, more swiftly than anyone thought possible at the turn of the millennium.   As was the case with different-race marriage bars a generation ago, the protean nature of the public justifications for same-sex marriage bars today and the dearth of factual support for any of them are evidence that the discrimination rests upon animus or stereotypes and not upon a neutral public policy.


Recommended Citation: William Eskridge, Same-sex marriage symposium: The protean case against same-sex marriage, SCOTUSblog (Sep. 20, 2012, 11:42 AM),