Sunday, April 19, 2015

Do gays and lesbians have a constitutional right to marry?

Like most liberals, I strongly support the movement to legalize gay and lesbian marriage. But it is surprisingly difficult to discern what sort of argument the courts could use that would convincingly show that gays and lesbians have a constitutional right to marry. Most of the debate tends to focus on either of two distinct lines of argument.

The first is the “born that way” argument:
  1. A person’s sexual orientation is either inborn or fixed at an early age.
  2. It is wrong to criminalize behavior that a person does not choose to engage in.
  3. Therefore, gay/lesbian sex as well as marriage should neither be prohibited nor criminalized.
This argument is open to two serious objections.

(a) Although the first premise is widely believed to be true, it is in fact an empirical claim whose supposed truth is still vigorously debated among researchers.

(b) Even if premise 1 is true, the conclusion does not follow, for even if a person has a homosexual orientation, it does not follow that his or her sexual conduct must not be freely chosen. After all, many persons who are clearly heterosexual in orientation freely choose not to marry and/or engage in any sexual activity with persons of the opposite sex. Sexual orientation alone does not determine a person’s behavior.

The second argument maintains that laws prohibiting gay/lesbian sex or marriage are sexist and therefore in violation of the equal protection clause of the 14th Amendment.

This is a strange argument. Even if one grants that laws prohibiting gay/lesbian marriage are sexist because they deliberately deny lesbians the right to marry, states that have such laws (as well as the armed forces) have plausibly replied that the prohibition isn’t sexist because they apply to gay males as well as lesbian females. Such laws are really gender-neutral. Moreover, it is unwise to categorize such laws as sexist when it seems much closer to the truth to say they are motivated by homophobia, not sexism.

So what are the courts to do when called upon to decide the constitutionality of gay/lesbian marriage?

One possibility is they could, in effect, shift the burden of proof from the supporters of gay/lesbian marriage to the opponents. How so? They could require that the proponents of whatever anti-gay marriage law is before the court show that it satisfies the rational basis test, i.e., that the law satisfies some legitimate state purpose. This is a minimal requirement that any contested law must meet to qualify as valid law. But in this case, that wouldn’t be an easy thing to show. They can’t just say a majority of the public wants it that way, or that we have a long history of forbidding gay marriage, or that gays cannot be good parents of young children (empirically false), or that gay marriages threaten heterosexual marriages (patently false). I don’t know what they could say that would show a gay marriage ban serves a legitimate state purpose.

Clifford Anderson
Professor Emeritus
Department of Philosophy
Sacramento State


  1. Cliff, thanks very much for this. I have a really hard time seeing the prohibition on gay marriage as unconstitutional. Or, put differently, it seems to me that prohibitions on all sorts of other unions that few are seriously in favor of are unconstitutional if gay marriage is. Why not just accept that it isn't unconstitutional and that states can continue to outlaw it if they want? The enlightened states that legalize it will reap the benefit of being nicer places to live for everyone as a result. Which seems to be what is happening.

    With regard to your particular proposal, isn't it in fact a legitimate local government purpose to satisfy the basic desires of its citizens as long as doing so is not unconstitutional? The rights of local governments to pass ordinances against things of which their citizens simply disapprove- public lewdness, consumption of alcohol, etc- is a central principle of U.S. jurisprudence, right?

    1. Randy: Thanks for your reply. I think your suggestion to drop the effort to make gay marriage constitutional would be a hard pill to swallow for those gays who want to marry but are living in states that have made it illegal. After all, many of them, for all sorts of reasons (job, family obligations, health,etc.), may not be able to move to a state where it is legal. Also, without a ruling on the constitutionality of gay marriage, the federal government would be unable to extend the many benefits that go to legally recognized married couples (e.g. in the tax code).

      Your argument in the second paragraph seems to me to contain an ambiguity. Yes, states have the right to pass some laws that the majority prefer as long as the law is not unconstitutional. But not if those laws violate the basic rights of some of the citizenry (e.g. Jim Crow laws). That is why we still need a decision by SCOTUS on the constitutionality of gay marriage. (Reply by Cliff Anderson)

    2. Cliff that makes sense, but suppose we just say it's a hard pill to swallow, but swallow it we must. Not everything we now believe to be right is covered by the constitution. It would be a miracle if it did. I don't think my second suggestion is ambiguous if you accept that.

    3. Randy: Your position makes me uneasy. I think it would be callous just to say to a couple of guys (in a state that bans gay marriage) "Tough luck guys, if you want to get married, you'll have to move to another state." Can't we do better than that?

  2. Intriguing post, Cliff. I didn't think the constitutional argument for same-sex marriage based on the equal protection clause appealed to sexism, though. I thought the various courts making this argument were saying that laws against same-sex marriage were more like the problematic "separate but equal" policies struck down in Brown v. Board of Education, which also appealed to the equal protection clause. For example, last year NPR reported that the 4th Circuit Court (in Bostic v. Schaefer) argued:

    "We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual's life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance."

    Maybe one could argue that such applications of the equal protection clause aren't legitimate, but it seems such arguments aren't meant to turn at all on sexism.

    1. Josh: Thanks for your response. The argument you cite in Bostic v. Schaefer would convince me if I were sitting on the Supreme Court but it's my impression, from my limited reading on the issue, that it will not convince the conservative majority on the current court (with Kennedy a possible exception). Why wouldn't they be convinced by that argument? I'm sure part of the answer is they are all practicing Catholics but they would, of course, deny that has anything to do with it. I vaguely recall from some previous court opinion on the matter that Scalia debunked the idea that just because marriage is an "intensely personal decision" that can "alter the course of an individual's life" is not enough to show that that decision should have constitutional protection. But that's the kind of cheap move we've come to expect from Scalia.

    2. Hi, Clifford

      I'm not sure what the comments policy is - so please let me know if there are restrictions I'm not aware of; I haven't found find any -, but if it's okay, I just wanted to comment on the 14th Amendment argument:

      In addition to the points cited in Josh's comment, one line of argumentation I find convincing is based on the parallel between a ban on same-sex marriage and a ban on interracial opposite sex-marriage.

      A ban on interracial opposite sex-marriage would unconstitutionally discriminate on the basis for race, by - for example - banning a Black woman from marrying a White man - while a White woman would be allowed to do so -, and also by banning a White woman from marrying a Black man - while a Black woman would be allowed to do so.

      So, depending on the case, the ban in question would unconstitutionally discriminate against a Black person, or against a White person, or an Asian (or however the specific law in question classifies people into races), and regardless of whether the motivation was racism against people of one or more races (or perceived races), or against interracial couples only, or both.

      As this argument goes, a ban on same-sex marriage unconstitutionally discriminates on the basis of sex, by - for example - banning a woman from marrying another woman - while a man would be allowed to do so -, and also by banning a man from marrying another man - while a woman would be allowed to do so. So, depending on the case, the ban in question unconstitutionally discriminates against a woman, or a man, even if the motivation is homophobia, or religion, or both (or some other motivations).

      Granted, it might be argued that there is a good reason for discriminating on the basis of sex but not race in the case of marriage. But that would have to be argued for, and I haven't found a good reason for that.
      That said, my very tentative gut-feeling-based guess is that the SCOTUS declares a state ban on same-sex marriage unconstitutional, it will probably do so on grounds other than the equal protection clause in the 14th Amendment.

  3. Angra: Thanks for your response. I think your argument needs to be pushed a step further because lots of discriminatory actions are perfectly sound and legally justified, e.g.hiring and promoting people on the basis of merit is discriminatory but hardly wrong because of that. To show a given form of discrimination is unconstitutional one needs to show the discrimination is invidious or in some other way deeply harmful to those being discriminated against. So you could add to your argument the obvious point that being denied the right to marry the person of your choice (talking about consenting adults of course) is deeply harmful. I think that makes for a good argument but, as I mentioned in my reply to Josh Mays' blog, the conservative majority of SCOTUS doesn't seem to see it that way.

    1. Cliff,

      Thanks for your reply.

      Discrimination on the basis of merit would not be unconstitutional, at least if it's merit on some issue related in a specific manner to whatever the law in question is supposed to regulate.
      However, and with regard to your point that one needs to show the discrimination to be invidious or otherwise deeply harmful to those being discriminated against, according to the doctrine of the SCOTUS on the matter, the burden depends on the basis for the discrimination.

      In particular, in cases of discrimination based on sex (which is the kind we're dealing with) intermediate scrutiny is applied.
      That places the burden squarely on the defender of the constitutionality of the discrimination. The Wikipedia article provides an example (Mississippi University for Women vs. Hogan), in which it's stated that the proponent of the sex-based discrimination has the burden of showing that there is "exceedingly persuasive justification" for the discrimination to hold.

      Given that I see no such persuasive justification, based on the doctrine of the SCOTUS, I would conclude that a ban on same-sex marriage is unconstitutional (even if I think the SCOTUS is more likely to rule on other grounds; but that's just my gut feeling).

      P.S: By the way, the argument is not originally mine. I saw it in a number of different places. I don't know who came up with it first.