In a follow up to my previous post about the Maryland Supreme Court decision which upheld the state’s statute defining marriage as a union between one man and one woman, I’m going to devote this post to countering the argument that the ban serves the legitimate state purpose of protecting traditional marriage. The following analysis comes from a term paper I wrote for a civil rights seminar (as such, it contains footnotes, rather than hyperlinks):
Many opponents of same sex marriage still argue that gays must not be allowed to marry, for doing so would threaten the traditional family. The protection of the traditional family is regarded as a vital state interest, thus the prohibition of gay marriage is upheld as legitimate. The exact connection between gay marriage and the downfall of traditional marriage is somewhat elusive.
Arguments are generally wrapped in highly moralistic rhetoric. This is seen in statements made by many of the US Congressmen in the House of Representatives debate over the 1996 Defense of Marriage Act, which defined marriage for all federal purposes as a union between one man and one woman, and which stipulated that no state be required to recognize gay marriages preformed in other states.[1]
Representative Barr decried that “the very foundations of our society are in danger of being burned. The flames of hedonism, the flames of narcissism, the flames of self-centered morality are licking at the very foundations of our society: the family unit.”[2]
Representative Stearns admonished that “If traditional marriage is thrown by the wayside, brought down by your manipulation of the definition that has been accepted since the beginning of civilized society, children will suffer because family will lose its very essence.”[3] Representative Hyde continued, saying that:
It is appropriate that Congress define marriage. You may not like the definition the majority of us want, but most people do not approve of homosexual conduct. They do not approve of incest. They do not approve of polygamy, and they express their disapprobation through the law. It is that simple. It is not mean-spirited. It is not bigoted. It is the way it is, the only way possible to express disapprobation.[4]
Other opponents, in spite of previous arguments, maintain that heterosexual relationships are still inherently superior to homosexual relationships, and that to give the two equal legal status would dilute the former. All of these arguments have a fundamentally moral basis. They hold that same sex couples should not be granted the fundamental right of marriage because doing so would recognize homosexuality and heterosexuality as moral equivalents, thus undermining the clearly more moral option of heterosexuality.
However, in light of the landmark Lawrence v. Texas decision, laws enacted solely to express a moral purpose are unconstitutional. In the majority opinion, Justice Kennedy frames the debate stating, “the issue is whether the majority may use the power of the State to enforce these [moral] views on the whole society through operation of the criminal law.”[5] He answers this question by declaring that “our obligation is to define the liberty of all, not to mandate our own moral code.”[6]
Justice Kennedy found that “intimate, adult consensual conduct…[is] part of the liberty protected by the substantive component of the Fourteenth Amendment’s due process protections.”[7] Since the Texas antisodomy statue in question was “born of animosity toward the class of persons affected,”[8] the Supreme Court overturned the statue because it had “not rational relations to a legitimate governmental purpose.”[9] Kennedy rejected the argument put forth by the State of Texas, that the display of moral disapproval through the enactment of criminal law was a legitimate state purpose.
In her concurring opinion, Justice O’Connor relied on equal protection analysis rather than due process analysis. She declares that “moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be ‘drawn for the purpose of disadvantaging the group burdened by the law.” She goes on to say that “Texas’ sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law…[it] subjects homosexuals to a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass … cannot be reconciled with the Equal Protection Clause.” [10]
It is interesting to note that O’Connor recognizes and criticizes the Texas antisodomy law for creating a group of second class citizens. Surely being denied legal access to marriage, one of societies most fundamental institutions, makes gays second class citizens, psychologically at least, if not socially and economically as well. However, O’Connor explicitly states that her concurrence does not suggest that she supports legal marriage for same sex couples. She states that:
this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review…Unlike the moral disapproval of same-sex relations-the asserted state interest in this case other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.
While O’Connor contends that there are in fact legitimate state interests that are met by denying same sex couples the right to marry, she does so without ever actually stating what those reasons might be.
O’Connor’s lack of elucidation opened the door for the potential of future gay marriage victories on the High Court. Justice Scalia recognizes this in his scathing dissent. In fact, his dissent in Lawrence could be read as arguments for of gay marriage. He states that “today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”
This is because the general argument that homosexuals must be banned from marriage in order to preserve traditional marriage “is just a kinder way of describing the State’s moral disapproval of same-sex couples.” As far as O’Connor’s claim that the Lawrence decision does not involve the formal recognition of homosexual relationships, Scalia admonishes not to believe it, stating:
More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to ‘personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,’ and then declares that ‘[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.[11]
Scalia even dismantles the argument that procreation may be a legitimate state interest that could merit the prohibition of gays from marriage, recognizing that the elderly and sterile are still allowed to marry. Lawrence thus provides a final blow to the morality arguments and opens the door to future Court rulings that could recognize that the fundamental right of marriage applies to same sex couples.
[1] Defense of Marriage Act Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996).
[2] 142 Cong. Rec. H7480, H7482 (daily ed. July 12, 1996)(Statement of Rep. Barr).
[3] Ibid at H7488 (Statement of Rep. Stearns).
[4] Ibid at H7501 (Statement of Rep. Hyde).
[5] Lawrence v. Texas 539 U.S. 558 (2003).
[6] Planned Parenthood v. Casey, 112 S. Ct. 2791, 2805 (1992).
[7] Lawrence v. Texas 539 U.S. 558 (2003).
[8] Bowers v. Hardwick, 478 U.S. 186, 192 (1986).
[9] Lawrence v. Texas 539 U.S. 558 (2003).
[10] Lawrence v. Texas 539 U.S. 558 (2003).
[11] Lawrence v. Texas 539 U.S. 558 (2003).
