Author archives: Peter Sprigg

Is Homosexuality “Immutable?” Justice Kennedy’s Shaky Bridge to Redefining Marriage

by Peter Sprigg

August 5, 2015

Many conservative commentators have dissected Justice Anthony Kennedy’s majority opinion in the U.S. Supreme Court case of Obergefell v. Hodges. In that case, a slim 5-4 majority declared that the 14th Amendment of the Constitution requires every state to redefine marriage to include same-sex couples. One wonders what the authors of that 150 year-old amendment would have thought of this notion.

Few, however, have noted two passing comments that actually describe the key factual assumption on which the entire decision rests. Justice Kennedy declared—twice—that a homosexual orientation is “immutable.”

On p. 4 of the opinion, Kennedy writes,

 … [I]t is the enduring importance of marriage that underlies the petitioners’ contentions… . And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.

Then on p. 8, he says,

Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.

Why does this matter?

The “Right to Marry”

First, the core of Justice Kennedy’s argument is that homosexuals have been denied the “fundamental right to marry,” which the Court has described as a “liberty” interest protected by the due process clause of the 14th Amendment in earlier cases. The amendment says a state may not “deprive any person of life, liberty, or property, without due process of law”).

However, another key precedent concerning the analysis of “fundamental rights” under this clause, a 1997 case involving assisted suicide called Washington v. Glucksberg, has said that before a new “fundamental right” can simply be declared by the Court, there must be a “careful description” of the asserted right, and it must be shown that the “right” so described is “deeply rooted in this Nation’s history and tradition.”

This “Glucksberg test” was a serious problem for those claiming a “fundamental right” to same-sex “marriage.” It is obvious that a “careful description” of the right being asserted in the Obergefell case was “the right to marry a person of the same sex.” It is even more obvious that “the right to marry a person of the same sex” is not “deeply rooted in this Nation’s history and tradition.”

Justice Kennedy got around this seemingly insurmountable obstacle in two ways. First, he simply denied that the binding precedent of the Glucksberg test was actually a binding precedent. Justice Kennedy declared (wrongly), “History and tradition guide and discipline this inquiry but do not set its outer boundaries.” It is notable that in the portion in which Kennedy made this statement, he cites a case from 1961 (Poe v. Ullman), rather than the later precedent of Glucksberg. Chief Justice Roberts pointed this out in his dissent, saying that “the majority’s position requires it to effectively overrule Glucksberg.”

Second, Justice Kennedy argues that the issue is not whether there is a “right to same-sex marriage,” but rather whether gays and lesbians, as persons, may exercise the “fundamental right to marry” which belongs to everyone.

The answer on the face of it is that, even when marriage is defined as the union of one man and one woman, people who identify as gays and lesbians are entirely free to marry. Marriage licenses have never inquired as to the sexual orientation of the spouses. A self-identified gay man may marry—as long as he marries a woman. A self-identified lesbian may marry—as long as she marries a man.

Sexual Attraction as the Basis for Marriage

This sounds absurd to many people—why would you marry someone to whom you are not sexually attracted?

To treat sexual attraction as the fundamental basis for the definition of civil marriage is to assume that the reason marriage is treated as public institution is to promote relationships that bring sexual pleasure to the spouses.

While this may be an important personal interest for the majority of people who marry, it is hard to argue that there is a public interest merely in promoting sexual gratification.

The federal government should not be deciding if people can marry based on their sexual interests.  After all, don’t we want to keep the government out of our bedrooms?

It is particularly odd that the Court would (implicitly) say that sexual attraction is foundational to the definition of marriage, but the potential for procreation (in which there is a significant public interest) is not. The public purpose of marriage historically has been grounded not in the encouragement or affirmation of sexual relationships, but in the need to stabilize them because of the recognition that wanton sexual expression leads to social decay: massive out-of-wedlock births and parentless children, children growingup reckless and uneducated, etc.  Seeking to avoid these and other problems, marriage for millennia has been a public institution, one animated by its implications for society as a whole.

Yet while same-sex marriage claims to imitate natural marriage in stabilizing relationships, the public purpose of such stabilization – prevention of unrestricted, chaotic, and socially disruptive procreation – becomes irrelevant given the inability of same-sex partners mutually to create children. 

I have written about the public purposes of marriage in relation to sex and procreation elsewhere.

In any case, the first premise Justice Kennedy requires in order to claim that self-identified gays and lesbians have been denied the “fundamental right to marry” is the premise that marriage is about sexual attraction.

Is Homosexuality Immutable?

A second premise is also necessary, however. To conclude that a one-man, one-woman marriage definition denies to self-identified gays and lesbians the “fundamental right to marry,” one must not only assume that sexual attraction is foundational to marriage, but must also assume that such attractions can never change—that they are “immutable.”

Justice Kennedy included the “immutability” claim because it is necessary to give his “fundamental rights” argument any coherence at all. Only if (a) sexual attraction is fundamental to marriage and (b) sexual orientation is “immutable” can it be argued that a law defining marriage as the union of one man and one woman is the same as a law saying that there is an entire class of persons (self-identified gays and lesbians) who are denied the fundamental right to marry because it is impossible for them ever to marry.

In support of this claim (that a homosexual orientation is “immutable”), Justice Kennedy cites an amicus curiae (“friend of the court”) brief filed in the case by the American Psychological Association (APA—not to be confused with the other APA, the American Psychiatric Association).

This brief can be found online on the Supreme Court’s website here.  Yet surprisingly, a word search shows that the word “immutable” appears nowhere in the brief.

The closest to which it comes is a statement, in a topic heading, that sexual orientation “Is Highly Resistant to Change.” This is not the same as “immutable.” The word “immutable” suggests an absolute, 100 percent, without-exception type of statement. Race is an immutable characteristic (and the mockery of Rachel Dolezal, a white woman who claims to be black, simply demonstrates the widespread understanding of that fact). One’s biological sex is “immutable” (the “gender transition” of transgendered Americans notwithstanding). “Highly resistant to change” is a strong statement, but in an entirely different category from truly immutable characteristics such as race and sex. It is definitely not an absolute one.

However, when one reads the entire text of the section of the APA brief that Kennedy cited, the actual evidence offered hardly even supports the “highly resistant to change” characterization. For example, the section begins this way:

Sexual orientation refers to an enduring disposition to experience sexual, affectional, or romantic attractions to men, women, or both. It also encompasses an individual’s sense of personal and social identity based on those attractions, behaviors expressing them, and membership in a community of others who share them. Although sexual orientation ranges along a continuum from exclusively heterosexual to exclusively homosexual, it is usually discussed in terms of three categories: heterosexual (having sexual and romantic attraction primarily or exclusively to members of the other sex), homosexual (having sexual and romantic attraction primarily or exclusively to members of one’s own sex), and bisexual (having a significant degree of sexual and romantic attraction to both sexes).

This description bears a striking resemblance to the key point I made in my 2011 pamphlet, Debating Homosexuality—namely that “sexual orientation” is not one thing, but is an umbrella term for several different things. They include a person’s sexual attractions, sexual behavior, and sexual self-identification. The APA cites all three of these (“attractions,” “behaviors,” and “identity”), while even adding a fourth category (“membership in a community”).

This brings me to a “gotcha” question often asked by people in the media: “Do you think people are born gay, or do they choose to be gay?” The best answer is, “Neither,” because the question presents a false dichotomy.

No one knowledgeable about “sexual orientation” issues would claim that most people with same-sex sexual attractions “choose” to experience those attractions. However, the meaning of “sexual orientation” is not limited to sexual attractions, as even the APA acknowledges. It also “encompasses” behaviors, identity, and “membership in a community”—all of which are primarily a matter of personal choice, and therefore by definition not “immutable.”

In addition to defining “sexual orientation” in terms of multiple factors, all but one of which involve significant freedom of choice, the APA brief uses other language one usually would not expect in a description of an “immutable” characteristic. It says that sexual orientation “ranges along a continuum from exclusively heterosexual to exclusively homosexual,” and that each of the two major poles of sexual orientation, heterosexual and homosexual, can be defined in terms of “attraction primarily or exclusively” (emphasis added) to either opposite or the same sex. The use of the word “primarily,” and not just “exclusively,” is a concession that some people may identify as “homosexual” even though they have some opposite-sex attractions. Again, this is hardly as absolute as the word “immutable” would suggest.

Although I would never argue that sexual attractions are primarily “chosen,” the APA actually concedes that at least some homosexuals acknowledge that “choice” played a role in their sexual orientation. Here is what the APA wrote about that topic in the amicus brief cited by Justice Kennedy:

Most gay men and lesbians do not experience their sexual orientation as a voluntary choice. In a [national survey], only 5% of gay men and 16% of lesbians reported feeling they had “a fair amount” or “a great deal” of choice about their sexual orientation. Fully 88% of gay men and 68% of lesbians reported that they had “no choice at all.”

But if sexual orientation is inborn and “immutable,” as Justice Kennedy asserts, wouldn’t you expect 100% to say that they had “no choice at all?” The fact that, among self-identified lesbians, nearly one in three said they had at least some choice, and nearly one in six said they had “a fair amount” or “a great deal” of choice, would seem to seriously undermine the notion that homosexuals are always “born gay and can’t change.”

The APA’s brief also cites another publication the APA issued in 2009 which addressed the issue of “sexual orientation change efforts.” Here is how the brief characterizes the conclusions of the 2009 publication:

Although some groups and individuals have offered clinical interventions that purport to change sexual orientation from homosexual to heterosexual— sometimes called “conversion” therapies—these interventions have not been shown to be effective or safe. A review of the scientific literature by an APA task force concluded that sexual orientation change efforts are unlikely to succeed and can be harmful.

One thing to know about the 2009 publication is that—like the 2015 amicus brief—nowhere in either texts is the word “immutable” used to describe sexual orientation. Note also the less than absolute language of the conclusion—saying that such efforts “are unlikely to succeed” is not at all the same as saying they “cannot” succeed; whereas, saying they “can be harmful” is not at all the same as saying they are always harmful. Here is a key quote from the 2009 Task Force Report:

Although the recent studies do not provide valid causal evidence of the efficacy of SOCE or of its harm, some recent studies document that there are people who perceive that they have been harmed through SOCE. [emphasis added]

Even the APA is conceding here that claims of “harm” from SOCE are supported by no more “valid causal evidence” than claims of its efficacy. The statement that some people “perceive” they have been harmed really amounts to a back-handed concession that the evidence of “harm” is primarily anecdotal, not scientific.

More and better research is clearly needed. However, there is actually an abundance of evidence, both scientific and anecdotal, that sexual orientation can be changed; the addition of the words “valid causal” represent an effort to discount that fact by raising the bar as to what is accepted as evidence.

In fact, Nicholas A. Cummings, a former president of the American Psychological Association, wrote in USA Today in 2013, “Of the patients I oversaw who sought to change their orientation, hundreds were successful,” adding, “…contending that all same-sex attraction is immutable is a distortion of reality.”

Ironically, when the Supreme Court handed down its ruling on June 26th, I was at the national conference of the Restored Hope Network—a network of Christian ministries that help individuals to overcome unwanted same-sex attractions—along with dozens of ex-gays whose existence Justice Kennedy seemed to deny. Many people who once had a homosexual sexual orientation—as measured by attractions, behaviors, and identity—have experienced transformation and are already legally married to someone of the opposite sex. Some of these, like Garry and Melissa Ingraham, are now active in helping others change. Others, like former lesbian Chirlane McCray (who is now married to Bill de Blasio, mayor of New York City), simply moved beyond “the assumptions I had about the form and package my love would come in.”

Change of sexual orientation can happen in either direction. The Family Research Council’s own amicus brief to the Supreme Court was unique in pointing out the “remarkable (but heretofore unnoticed) fact that dozens of the plaintiffs in the same-sex marriage cases that have been brought over the last twenty-four years previously had been married to a person of the opposite sex.” This is proof on its face that either: a) people with a homosexual orientation are capable of marriage to the opposite sex (if we assume that these plaintiffs were homosexual all along); or b) people’s sexual orientation can change during the life course; or both. However, if either assumption (whether a or b) is true, it demolishes the premise of Justice Kennedy’s opinion.

None of this is to suggest that changing one’s sexual orientation is easy. Most people will never try, and of those who do try, some will fail. But some also succeed.  This, and the fact that some people move from homosexual relationships to heterosexual ones—or vice versa—serve as proof that sexual orientation is not “immutable.”

Justice Kennedy’s claim that a homosexual orientation is “immutable” was his bridge from identifying the desire of some people to marry someone of the same sex to identifying a “fundamental right” to do so. The claim, however, is unsubstantiated—making the bridge a shaky one indeed.

Conservatives Are Clear on Gender Confusion

by Peter Sprigg

July 31, 2015

Jennifer Gruenke, a professor of biology at Union University (a Christian college in Tennessee), has written a piece in The Public Discourse challenging the “conservative approach to transgenderism,” declaring that “there are good scientific reasons for supposing that subjective experience of gender is legitimate, even when it contradicts apparent biological sex.”

One example of the “conservative approach” that Dr. Gruenke questions would be found in the Family Research Council’s recent Issue Analysis, “Understanding and Responding to the Transgender Movement,” which Dale O’Leary and I co-authored.

Only a day after Gruenke’s piece appeared, The Public Discourse published a thoughtful and thorough response by Gregory Brown. I commend it (and the FRC paper mentioned above) to your attention, and will limit my comments here to only a few.

First, Dr. Gruenke is a biologist. Therefore, perhaps not surprisingly, her article has a strong bias toward seeking biological (rather than psychological) explanations for transgenderism — the phenomenon of people experiencing an inner mental conviction that they are or should be of the gender opposite to their biological sex.

Because of this bias on the part of Dr. Gruenke, I am inclined to give more credence to the expertise of Dr. Paul McHugh, who as a psychiatrist can be expected to have insight into both the biological and psychological aspects of the issue. Dr. McHugh, former chief of psychiatry at Johns Hopkins University and Hospital, is perhaps the leading expert spokesman for the “conservative approach” that Gruenke questions. McHugh has declared bluntly, “It is a disorder of the mind. Not a disorder of the body.” He has also lamented about his profession, saying, “We have wasted scientific and technical resources and damaged our professional credibility by collaborating with madness rather than trying to study, cure, and ultimately prevent it.”  McHugh has written about this issue in The American Scholar, First Things, The Wall Street Journal, and The Public Discourse itself.

Most of Gruenke’s article deals with so-called “intersex” conditions (now also known as “disorders of sexual development,” or DSDs). These are conditions in which some of the biological indicators of sex (such as internal sex organs, external genitalia, and chromosomal make-up) are inconsistent with each other or with what is typical of the individual’s (apparent) sex.

Yet people on all sides of the transgender debate agree that true biological intersex conditions (which are rare) are not the same as the transgender phenomenon. In fact, until 2013, people with a DSD were explicitly excluded from a diagnosis of “gender identity disorder” according to the American Psychiatric Association. With the publication that year of the 5th edition of the APA’s “Diagnostic and Statistical Manual” (DSM-5), people with DSDs were included under those with (the newly re-named) “gender dysphoria,” but only in a separate sub-category. The World Professional Association for Transgender Health — the leading pro-transgender professional organization — agrees, saying, “In people with a DSD, gender dysphoria differs [from in most transgender people] in its phenomenological presentation, epidemiology, life trajectories, and etiology.”

Gruenke’s description of several such conditions, therefore, is interesting but ultimately irrelevant. The vast majority of people with “gender dysphoria” have no anatomical or chromosomal irregularity or inconsistency at all. In discussing such cases, all Gruenke is left with is pure speculation about some hypothetical “mutation” that might affect brain development but has no impact on either the sex chromosomes or any aspect of sexual anatomy, and is “only discernible through introspection.” Such speculation is a rather weak read on which to lean.

Gruenke also notes an analogy that some critics of the transgender movement have made. They have argued that a man who perceives himself as a woman has a distorted self-concept of his body comparable to that of an anorexic — a person who is underweight yet perceives herself as overweight. McHugh, for example, has said gender dysphoria “belongs in the family of similarly disordered assumptions about the body, such as anorexia nervosa and body dysmorphic disorder. Its treatment should not be directed at the body as with surgery and hormones any more than one treats obesity-fearing anorexic patients with liposuction.”

Gruenke seeks to rebut this argument by pointing out that anorexia can actually be fatal. However, this rebuttal is ultimately not convincing. It is true that the body’s nutritional system is necessary to maintain life. While one can survive without reproducing, full sex reassignment surgery essentially destroys the reproductive system (and makes even sexual intercourse extremely difficult, unlike more modest forms of sterilization). It is hard to see how it could be considered consistent with the ethical principle of “do no harm.”

There should be no objection to biologists continuing research to try to determine if there are genetic or biological disorders of sexual development (DSD) that have not been discovered or explained yet. However, the evidence seems clear that most people who identify as transgender have co-morbid psychological disorders which provide a better explanation for their “confusion” (and yes, even “delusion”) than anything biological. And it is also clear that most people who counsel and do surgery for gender transition have an ideological bias which leads them to ignore these issues and simply support whatever solution (transition, hormones, and/or surgery) that the person requests.

FRC Advancing, Not “Surrendering,” on Transgender Issue

by Peter Sprigg

July 2, 2015

It is odd that Slate, in a piece by Jacob Brogan, argues that Family Research Council’s detailed new paper by Dale O’Leary and Peter Sprigg, “Understanding and Responding to the Transgender Movement,” represents “a flag of surrender.” Since this is the first comprehensive research paper specifically on the transgender movement that FRC has published in its 32-year existence, it is not a “surrender,” but the exact opposite — a clear declaration of our intention to engage actively in the debate over this issue and offer an alternative path to the leftist social agenda that only harms those struggling with gender dysphoria.  Although the paper has been in the works for months, the fact that it was finally completed and published in the same month as Bruce Jenner’s much-publicized “coming out” as “Caitlyn” makes it all the more timely.

It should not be any surprise that the paper addresses “leftist concepts and categories.” After all, the first purpose of the paper, as expressed in the title itself, is to “understand” the transgender movement — which is entirely reliant on “leftist concepts and categories,” and not on scientific research. For example, the paper certainly discusses “the contrast between sex and gender” in leftist thought, but we do not “internalize” it — on the contrary, we explicitly reject the “distorted psychological self-concept that one’s ‘gender identity’ is different from one’s biological sex.”

The fact that we quote sources on the left, such as the homosexual former Congressman Barney Frank and the lesbian feminist Janice Raymond, illustrates that concern about some aspects of the trans-agenda does not only arise from “traditional values” — which would make it easier for Brogan to dismiss such concerns. Brogan is correct to say that in our paper, “leftist identity politics” have been “turned back against themselves” — because we have exposed that such concepts are incoherent, illogical, indefensible, and/or internally inconsistent.

The fact that “the far right no longer controls the conversation on gender and sexuality issues” — at least in the major cultural institutions of the news media, the entertainment media, and the educational establishment — has been true ever since the sexual revolution of the 1960’s. The stranglehold of political correctness on those institutions is not something new to 2015. However, the “intellectual foundation of our own” is the undeniable reality that biological sex is immutable. The further (and sadder) reality is that if “gender transition” and “gender reassignment surgery” are supposed to ease the psychological problems of those with “gender dysphoria,” they are a proven failure. It matters not that we cite older sources to support this, since the reality has not changed (although expert psychiatrist Paul McHugh of Johns Hopkins has continued to speak out on this issue right up to the present day).

I give Brogan credit for at least having read the paper (that is more than I can say for some of the people who wrote “reviews” of my book about the redefinition of marriage, Outrage). However, he ignores (or perhaps did not read) the entire second section, dealing with the public policy responses to the transgender movement. It is there where FRC intends to engage — and will never surrender.

What the Supreme Court(s) Said About Marriage: Part 3 (Washington)

by Peter Sprigg

June 25, 2015

At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.

However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I present Part 3 of a four-part series with key excerpts from those decisions. Part 1 featured the earliest such decision, Baker v. Nelson (Minnesota, 1971). Part 2 featured the decision of Hernandez v. Robles (New York, 2006).

Today, we look at excerpts from Andersen v. King County, a 2006 decision by the Supreme Court in the State of Washington (legal citations are omitted or abbreviated).

The U.S. Supreme Court has said that individuals have a “fundamental right” to marry, as a “liberty” interest protected by the Due Process Clause of the Fourteenth Amendment. Advocates of redefining marriage argue that this “right” necessarily includes the right “to marry the person of their choice,” even if that person is of the same sex. The Washington court responded:

Nearly all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion, and child-rearing. In Skinner v. Oklahoma, (1942), involving invalidation of a nonconsensual sterilization statute, the Court said “[m]arriage and procreation are fundamental to the very existence and survival of the race.” In Loving [v. Virginia, 1967], the Court said that “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival” (quoting Skinner). In Zablocki [v. Redhail, 1978], the Court invalidated on equal protection and due process grounds a statute that prohibited marriage for any resident behind in child support obligations. The Court noted that

[i]t is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships… . [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.

The Court also quoted the statements made in Skinner and Loving. See also, Maynard v. Hill, (1888) (marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress”).

This procreation emphasis is in contrast to the more adult-centered view of marriage promoted by those who would redefine marriage. In a footnote, the court declared that:

 … the right to marry is not grounded in the State’s interest in promoting loving, committed relationships. While desirable, nowhere in any marriage statute of this state has the legislature expressed this goal.

Like each of the supreme courts that have upheld one-man, one-woman marriage, the Washington court said that allowing infertile heterosexual couples to marry does not undermine the argument that the definition of marriage is rooted in interests related to procreation:

 … [A]s Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single-sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.

For more information on the legal arguments regarding the redefinition of marriage see: “Marriage at the Supreme Court: Why One-Man, One-Woman State Laws Remain Constitutional.”

What the Supreme Court(s) Said About Marriage: Part 2 (New York)

by Peter Sprigg

June 24, 2015

At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.

However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I present Part 2 of a four-part series with key excerpts from those decisions. Part 1 featured the earliest such decision, Baker v. Nelson (Minnesota, 1971).

The next three feature decisions by the highest court in three liberal states—New York, Washington, and Maryland. Unlike the Minnesota decision, each of these was handed down within the last ten years. Each of these states has since redefined marriage, but they have done so through the democratic process, not through judicial fiat. The U.S. Supreme Court should allow the same privilege to other states—the eleven which has chosen democratically to change their definition of marriage, and the thirty which have put a one-man-one-woman marriage definition in their state constitutions.

In Hernandez v Robles in 2006, the Court of Appeals of New York (the state’s highest court) addressed the rational basis which supports the definition of marriage as the union of a man and a woman (citations abbreviated):

The critical question is whether a rational legislature could decide that these benefits [of civil marriage] should be given to members of opposite-sex couples, but not same-sex couples… . We conclude … that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. Others have been advanced, but we will discuss only these two, both of which are derived from the undisputed assumption that marriage is important to the welfare of children.

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It could thus choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unsatable relationships between people of the opposite sex present a greater danger than children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule—some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes—but the Legislature could find that the general rule will usually hold.

Later in its opinion, the New York court responded to the chief argument made against its conclusion that a one-man-one-woman marriage definition is rationally related to concerns about procreation and child-rearing:

Plaintiffs argue that a classification distinguishing between opposite-sex couples and same-sex couples cannot pass rational basis scrutiny, because if the relevant State interest is the procreation of children, the category of those permitted to marry—opposite-sex couples—is both underinclusive and overinclusive. We disagree.

Plaintiffs argue that the category is underinclusive because, as we recognized above, same-sex couples, as well as opposite-sex couples, may have children. That is indeed a reason why the Legislature might rationally choose to extend marriage or its benefits to same-sex couples; but it could also, for the reasons we have explained, rationally make another choice, based on the different characteristics of opposite-sex and same-sex relationships. Our earlier discussion demonstrates that the definition of marriage to include only opposite-sex couples is not irrationally underinclusive.

In arguing that the definition is overinclusive, plaintiffs point out that many opposite-sex couples cannot have or do not want to have children. How can it be rational, they ask, to permit these couples, but not same-sex couples, to marry? The question is not a difficult one to answer. While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing. A legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea.

Rational basis scrutiny is highly indulgent towards the State’s classifications. Indeed, it is “a paradigm of judicial restraint” (Affronti v Crosson, New York, 2001). We conclude that permitting marriage by all opposite-sex couples does not create an irrationally over-narrow or overbroad classification. The distinction between opposite-sex and same-sex couples enacted by the Legislature does not violate the Equal Protection Clause.

What the Supreme Court(s) Said About Marriage: Part 1

by Peter Sprigg

June 23, 2015

At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.

However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I begin a series offering excerpts from those decisions.

The earliest was in the Supreme Court of Minnesota, which handed down its decision in Baker v. Nelson on October 15, 1971. The appeal of this case was dismissed “for want of a substantial federal question” by the U.S. Supreme Court — establishing a binding precedent which over two dozen federal judges have chosen to ignore in the last two years.

While the U.S. Supreme Court issued no written opinion in Baker, the Minnesota Supreme Court did. Here are some key excerpts (with legal citations abbreviated):

The institution of marriage as a union man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. Skinner v. Oklahoma ex rel. Williamson, [U.S. Supreme Court] (1942), which invalidated Oklahoma’s Habitual Criminal Sterilization Act on equal protection grounds, stated in part: “Marriage and procreation are fundamental to the very existence and survival of the race.” This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.

 . . .

The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that “abstract symmetry” is not demanded by the Fourteenth Amendment.

Loving v. Virginia, [U.S. Supreme Court] (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia’s antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination… .

Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.

For a more detailed description of Baker, and the full text of the decision, see this blog post from last year.

SPLC attack on JONAH, Jewish non-profit that aids in sexual orientation change, goes to trial in New Jersey; Links to coverage here

by Peter Sprigg

June 16, 2015

A shocking attack on the freedom and privacy of the relationship between private counselors and their clients is currently underway in New Jersey. The wealthy left-wing activist group known as the Southern Poverty Law Center (SPLC) is seeking to destroy a small Jewish non-profit known as JONAH—Jews Offering New Alternatives for Healing. JONAH’s offense? Referring clients with unwanted same-sex attractions (usually, but not always, Jewish) to counselors who can help them to overcome those attractions and live lives consistent with the biblical teaching of the Torah.

The weapon being used by the SPLC is New Jersey’s unusually draconian “consumer fraud” statute, with SPLC arguing that to claim sexual orientation is changeable and that counseling can help effect such change is inherently fraudulent.

One might think that homosexual activists, who have long demanded respect for their own personal autonomy in making choices about how to respond to their own sexual attractions, would shrug their shoulders and ask, “What’s it to me?” when discussing the fact that for some people, same-sex attractions are experienced as unwanted. However, the fact that some people change their sexual orientation undermines the claim that “sexual orientation” is an immutable characteristic like race—a claim that has been useful to such activists in their campaign to win official public affirmation and celebration of homosexual relationships under the guise of “non-discrimination.”

Instead, a concerted effort to discredit what are called, broadly, “sexual orientation change efforts,” or “SOCE,” has gone from professional organizations like the American Psychological Association to legislative chambers, where California, New Jersey, and the District of Columbia have already enacted laws to outlaw SOCE for minors by licensed mental health providers. The JONAH lawsuit (which targets SOCE for adults as well as minors, and activity conducted by unlicensed “life coaches” as well as licensed mental health providers) is a second prong of this new legal attack.

Pro-family activist and writer Austin Ruse has provided a valuable service by covering the first two weeks of the JONAH trial for Breitbart.com. Since the secular media shows bias in favor of the plaintiffs, coverage by Ruse (and an article by therapist Christopher Doyle, himself a former homosexual) provide a valuable counterpoint.

Austin Ruse gives a preview of the trial during jury selection in this article: “Powerful Leftist Group Sues to Close Jewish Counseling Service for Gays”

 

Christopher Doyle describes Day 1 of the trial here: Highlights from the JONAH Trial: Day 1

Media Has Already Pronounced Judgment Against JONAH in “Trial of the Century”

 

Ruse reports on Day 2 of the trial, including contradictory statements made by one of the SPLC’s plaintiffs, here: “Trial to Punish Counseling for Gays Underway in Jersey City”

Ruse describes the history of JONAH here: “Medical Choice at Stake in Gay Counseling Trial”

 

Ruse describes death threats received by both JONAH’s co-founder, Arthur Goldberg, and their attorney, Charles LiMandri, in this piece on Day 4 of the trial: “Death Threats Rock Defendants in Gay Counseling Trial”

 

Ruse reports that LiMandri has done an outstanding job in cross-examining the plaintiffs and their witnesses. His organization, the Freedom of Conscience Defense Fund, needs support from freedom-loving Americans of any religion to pay the mounting expense of this drawn-out suit, which began in 2012. For continuing coverage of the trial and to support the defense, go to www.ConscienceDefense.org.

What Loving Means

by Peter Sprigg

June 12, 2015

June 12 has been dubbed “Loving Day.” No, it is not an effort to compete with Valentine’s Day. “Loving Day” commemorates the anniversary of a Supreme Court decision — in the 1967 case of Loving v. Virginia — in which the court declared that state laws barring interracial marriage were unconstitutional. Advocates for redefining marriage to include same-sex couples argue that this case is precedent for striking down state laws that define marriage as the union of a man and a woman.

Richard Loving, a white man, had married Mildred Jeter Loving, a black woman, in the District of Columbia. They later moved to Virginia; but in 1958, police officers entered their house in the middle of the night and demanded to know, “What are you doing in bed with this lady?” Although the Lovings had their marriage certificate hanging on the wall, the sheriff was unimpressed, declaring, “That’s no good here.” The couple was jailed for five days, after which a judge accepted their guilty plea to a charge of violating the state’s anti-miscegenation statute. They were given the choice of spending a year in jail or leaving the state. They chose to return to D.C.— and then filed suit to overturn their conviction. The Lovings were vindicated by a unanimous Supreme Court nine years later.

California’s Supreme Court had already struck down a similar statute nineteen years earlier (Perez v. Sharp, 1948). That court had declared that “the essence of the right to marry is freedom to join in marriage with the person of one’s choice.” Homosexual activists claim that this is precisely the principle that should apply to their efforts to marry a chosen person of the same sex.

There is a certain logic to this argument. Laws against same-sex marriage do restrict a person’s choice of marriage partner, as did laws against interracial marriage. But the flaw in the argument is that no one — not even the most radical advocate of homosexual marriage — is proposing to eliminate all restrictions on one’s choice of marriage partner. Every state forbids marriage to specific classes of people — namely, those who are already married, children, or certain close blood relatives.

The point, then, of the cases on interracial marriage cannot have been that restrictions on marital choice are unacceptable across the board. It was, rather, more specifically that race was not a legitimate basis for imposing such a restriction.

The constitutional basis of the case against the “anti-miscegenation” laws was that they violated the 14th Amendment’s equal protection clause, which states that no state may “deny to any person within its jurisdiction the equal protection of the laws.” Courts have ruled that this does not mean states can never have laws that treat some people differently from others, but those distinctions must have a reason and cannot be arbitrary.

It is worth reading an excerpt from the court’s decision in Loving (citations omitted or abbreviated). This was the conclusion of the Court’s Equal Protection analysis:

The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.

There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated “[d]istinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” Korematsu v. United States (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they “cannot conceive of a valid legislative purpose … which makes the color of a person’s skin the test of whether his conduct is a criminal offense.” McLaughlin v. Florida.

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

Just in these short paragraphs there are references to “racial discrimination,” “distinctions drawn according to race,” “ancestry,” “racial classifications,” “the color of a person’s skin” — a dozen such references in all. This should be sufficient to demonstrate that Loving was not based on a generalized right to marry “the person of your choice,” but was rather based specifically on the Constitution’s clear prohibition of state-sponsored discrimination based on race.

Advocates for redefining marriage have also argued that same-sex couples have been denied the “fundamental right to marry,” an interest in “liberty” that courts have found to be implicit in the 14th Amendment’s “Due Process” clause, which says that no state shall “deprive any person of life, liberty, or property, without due process of law . . .”

Advocates of marriage redefinition point out that Loving was based on a “due process/fundamental right” argument, not just an equal protection one. True — but here is the entire text of the Court’s fundamental rights analysis in Loving:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, (1942). See also Maynard v. Hill, (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

This part of the opinion was a scant 169 words out of over 2,500 in the decision. However, it, too, makes reference to “racial classifications” and “invidious racial discriminations.” There is thus no reason to believe that Loving forbids classifications on some basis other than race.

Numerous courts considering same-sex “marriage” lawsuits have rejected the Loving analogy. As the judge in a 2003 Indiana case (Morrison v. Sadler) noted, “Anti-miscegenation laws, because they interfered with the traditional marriage relationships in pursuit of opprobrious racial segregation policies, had no legitimate connection to the institution of marriage itself… . [W]hatever else marriage is about, it is not about racial segregation.” In contrast, however, “restrictions against same-sex marriage reinforce, rather than disrupt, the traditional understanding of marriage as a unique relationship between a woman and a man. Marriage traditionally and definitionally has had to do with the sex of each participant.”

A Superior Court in New Jersey came to a similar conclusion in a similar case (Lewis v. Harris) in 2003:

Plaintiffs’ reliance on decisions striking down statutes that prohibit interracial marriage is misplaced. These decisions derive from Constitutional amendments prohibiting racial discrimination and subjecting laws that classify individuals based on race to the highest level of scrutiny. No similar Constitutional provisions outlaw statutory classifications based on sexual orientation … . Comparing the State’s marriage statutes to laws perpetuating racial prejudice, therefore, is inapposite.

Individuals challenging bans on interracial marriage had a powerful weapon: Federal Constitutional provisions, passed by Congress and adopted by State Legislatures, that expressly prohibited States from denying recognized rights based on race. It was entirely appropriate for the courts to enforce those duly enacted Constitutional provisions by striking down statutes that made race a qualifying condition for access to a recognized right to marry. Plaintiffs, on the other hand, assert their claims in the absence of express Constitutional provisions supporting their position, and ask the court to circumvent the Legislative process by creating a right that has never before been recognized in this country.

The mandate for racial equality is firmly enshrined in both the Federal and State Constitutions. Importantly, two amendments to the United States Constitution expressly address racial equality [the 13th and 14th]… .

The Supreme Court’s decision in Loving v. Virginia is predicated entirely on the Fourteenth Amendment’s prohibition of racial classifications… .

No similar Constitutional provision accords heightened protection to individuals who claim that statutes discriminate on the basis of sexual orientation… .

… [P]laintiffs … lack the significant legal foundation that was available to the plaintiffs in Loving to demand judicial recognition of the rights they seek.

In November 2014, a panel from the U.S. Court of Appeals for the Sixth Circuit upheld one-man-one-woman marriage laws in Michigan, Ohio, Kentucky, and Tennessee. It is the appeal of these cases (consolidated under the case name Obergefell v. Hodges) which is now before the Supreme Court.

The Sixth Circuit panel noted another compelling reason for questioning whether Loving provides a precedent for allowing same-sex couples to legally “marry.” In 1972, a case out of Minnesota (Baker v. Nelson), making the same claims for same-sex “marriage” now being asserted, was appealed to the Supreme Court. It dismissed the case “for want of a substantial federal question,” a disposal which provides a binding precedent on all lower courts. It is irrational to claim that Loving established a right to same-sex “marriage,” when the Supreme Court already rejected that argument five years after Loving was decided:

Matters do not change because Loving v. Virginia held that “marriage” amounts to a fundamental right. When the Court decided Loving, “marriage between a man and a woman no doubt [was] thought of … as essential to the very definition of that term.” Windsor, 133 S. Ct. at 2689. In referring to “marriage” rather than “opposite-sex marriage,” Loving confirmed only that “opposite-sex marriage” would have been considered redundant, not that marriage included same-sex couples. Loving did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” a reference to the procreative definition of marriage. Had a gay African-American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.

Natural Marriage Builds Bridges, Not Walls

The clear purpose of the bans on interracial marriage was to build walls between two groups of people in society, blacks and whites. Such laws were designed to reinforce a system of racial segregation, keeping the races apart from one another.

In contrast, defining marriage as the union of male and female has exactly the opposite intent and effect. Rather than building walls between two classes of people, it creates a bridge across the most fundamental gap in humanity — the gap between male and female. Bridging the divide of the sexes by uniting men and women in marriage is common to all human civilizations, and serves the good of society.

Interracial marriage does not change the definition of marriage, and laws against interracial marriage had as their only purpose preserving a social system of racial segregation.

Homosexual “marriage,” on the other hand, changes the fundamental definition of the institution, and would form at least three segregated forms of marriage: male-only unions, female-only unions, and opposite-sex unions.

Legally defining marriage as the union of one man and one woman does not burden the institution of marriage. Instead, it preserves marriage’s nature and purpose. Homosexual marriage is not a “civil right,” it is a political demand that should be denied.

Note: Portions of this post were excerpted from Peter Sprigg’s book Outrage: How Gay Activists and Liberal Judges are Trashing Democracy to Redefine Marriage (Washington, DC: Regnery Publishing, Inc., 2004).

Liberal columnist agrees — “family values” debate is about “what words actually mean”

by Peter Sprigg

June 11, 2015

E. J. Dionne, a columnist for the Washington Post who is generally left of center, wrote a piece for today’s paper in which he called for “a searching national debate over family values.” Bravo — I heartily agree.

Dionne goes on to say, “It will not be about whether we as a country are for them. We are. What’s required is a grounded and candid discussion about what those words actually mean.” Right again.

The debate about “what those words actually mean” is exactly the debate we have been engaged in for four or five decades now.

In fact, we are now only weeks away from a U.S. Supreme Court ruling about what one very important word — “marriage” — actually means. That debate has been ongoing at least since 1993, when a Hawaii court became the first in the country to rule that defining marriage the only way it had ever been defined in the United States — as the union of one man and one woman — might somehow offend constitutional principles.

It is Dionne’s fellow liberals, however, who try to deny that “what … words actually mean” is what the same-sex “marriage” debate is about. They claim that their efforts are to end “discrimination” and to affirm the equal dignity of gay-identified people — not to “redefine marriage.” They claim that the efforts of conservatives are intended to stigmatize homosexuals and to impose religious dogma on secular law.

The liberals are wrong — the real debate is about what the word “marriage” means. Our belief is that “marriage” is intrinsically the union of a man and a woman, and that this definition cannot be changed because it is rooted in the order of nature itself. It always requires the contribution of one man and one woman to create a new human life, and it is because of this immutable uniqueness of the male-female relationship that we treat such relationships uniquely under the law.

Whatever the merits of a four-wheeled vehicle may be, it cannot be a “bicycle” — because a bicycle, by definition, has two wheels. By the same token, whatever satisfaction some may gain from a same-sex relationship, it can never be a “marriage” — because marriage, by definition, is the union of a man and a woman.

Liberals may be very sincere in the goals they seek to achieve in the marriage debate — but there is simply no denying that the method they are using to try to achieve them is to change the definition of the word “marriage.”

Although “marriage” is at the forefront right now, there have been similar debates about what “family” means. We argue that “families” are formed in only three ways — by blood, marriage, or adoption. Mere cohabitation with a sexual partner does not create a “family;” neither does living in the same house with a partner’s children.

The context for Dionne’s column was his observations about the obvious love and devotion between members of the Biden family — specifically, between Vice President Joe Biden and his late son Beau, who tragically died of cancer recently at the age of 46. There is no question that liberals like Joe Biden can love their family members as deeply as any “pro-family” conservative does.

This is not the issue in debate. The issue is that liberals have adopted the position that the meaning of “family” is almost infinitely malleable, defined by emotional standards rather than objective ones. However, the Bidens are not “family” because they love each other — they love each other because they are family.

The problem with redefining “marriage” and “family” is that if they can mean anything, then they come to mean nothing. So, two cheers for E. J. Dionne for recognizing that the “national debate” is about “what those words actually mean.”

Anthony Kennedy and the “Millennia” of Marriage

by Peter Sprigg

May 8, 2015

After last week’s oral arguments before the Supreme Court, those who seek a ruling that the Constitution of the United States requires a redefinition of marriage to include same-sex couples should be wary of over-confidence.

As usual, the eyes and ears of Court observers were focused on Justice Anthony Kennedy. He is often the “swing vote” between the Court’s liberal bloc (Justices Ginsburg, Breyer, Sotomayor, and Kagan) and the more consistent conservatives (Chief Justice Roberts and Justices Scalia, Thomas, and Alito). Last week’s arguments gave every indication that Kennedy will cast the deciding vote again.

Some advocates of redefining marriage see victory in the current case — an appeal of a decision in which the U.S. Court of Appeals for the Sixth Circuit upheld one-man, one-woman marriage laws in Michigan, Ohio, Kentucky, and Tennessee — as a foregone conclusion. They base their confidence on opinions Justice Kennedy has written in earlier cases which upheld the pro-homosexual cause — most notably, the 2013 ruling which struck down the federal definition of marriage in the Defense of Marriage Act (DOMA).

It is dangerous to try to predict the outcome of a case based on oral arguments. By their very nature, they lead the Justices to attack, or at least probe and test, the weak points of both side’s arguments. However, Justice Kennedy’s questioning in the current case (or cases, consolidated under the name of one of them, Obergefell v. Hodges) at least showed an understanding of some issues which advocates of redefinition tend to gloss over or deny.

An ancient definition

For example, the very first question that Kennedy raised for Mary Bonauto, attorney for the petitioners seeking licenses for same-sex civil marriages, reflected two key elements of the way conservatives believe the issue should be framed. Liberals argue that the issue is “access” to the institution of marriage; conservatives say the issue is the fundamental definition of marriage. Liberals focus on the recent adoption of laws and state constitutional amendments to “ban same-sex marriage,” while conservatives point out those measures merely preserve the longstanding definition of marriage.

Kennedy took the conservative side of both points when he said, “…[T]he word that keeps coming back to me in this case … is ‘millennia.’ … This definition has been with us for millennia. And … it’s very difficult for the Court to say, oh, well…. we know better.”

Bonauto seemed to want to avoid this topic of the antiquity and universality of marriage as a male-female union, arguing, “The States create the definition of civil marriage and certainly are accountable for those definitions and any exclusions which follow.” However, Kennedy returned to the larger perspective, noting, “If you read … about the Kalahari people … or ancient peoples, they didn’t have a government like this. They made it [marriage] themselves and it was man and woman.”

No “fundamental right”

Advocates for marriage redefinition use the tactic of throwing several constitutional arguments at the wall to see which will stick. One of these is the argument that the marriage laws deny to homosexuals the “fundamental right to marry,” which the Supreme Court has declared in previous cases that individuals have as a “liberty” interest protected by the Due Process clause of the 14th Amendment. In questioning U.S. Solicitor General Donald Verrilli, who was also given time to argue in favor of marriage redefinition on behalf of the Obama Administration, Justice Kennedy pointed out (and Verrilli appeared to concede) the Achilles’ heel of the “fundamental rights” argument in this context.

The Supreme Court laid down criteria for identifying new “fundamental rights” in a 1997 case called Washington v. Glucksberg, in which the Court rejected the assertion that assisted suicide is a “fundamental right.” First, there must be a “careful description” of the asserted fundamental liberty interest. In the suicide case, they said the right being asserted was much narrower than a so-called “right to die.” Second, the interest, so described, must be “objectively, deeply rooted in this Nation’s history, legal traditions, and practices.”

In the marriage context, advocates for redefinition argue that the “fundamental right to marry” implicitly includes the right to marry the person of your choice, and therefore they are not seeking a new right to same-sex “marriage.” However, Kennedy asked Verrilli, “I’m interested in your comments on Glucksberg, which says that we should have to define a fundamental right in its narrowest terms.”

It is plain that a “careful description” of the “right” currently being asserted is “the right to marry a person of the same sex.” It is equally obvious that no such right is “deeply rooted in this Nation’s history,” and Verrilli made no effort to claim that it was, conceding to Kennedy, “We haven’t made the fundamental rights argument under Glucksberg.”

Why should the State have to yield?”

Although the central issue before the Court is whether states have a constitutional obligation to issue marriage licenses to same-sex couples, there were separate arguments on a related question which had been litigated in some states — whether a state which licenses only opposite-sex marriage must nevertheless recognize same-sex unions that were legally contracted elsewhere. One very real possibility, ignored by most of the media, is that the Supreme Court could rule that states do not have to issue licenses to same-sex couples, but do have to recognize such unions from other states.

However, Justice Kennedy challenged Douglas Hallward-Driemeier, the attorney arguing for such recognition, by pointing out the threat to the State’s public policy choice. As Kennedy noted, the recognition question presumes “that the State does have a sufficient interest so that you need not allow the marriages … in that State… . But then suddenly, if you’re [from] out of State it’s different. Why should the State have to yield” to another State’s policy?

A “biological mom and dad”

Not all of Justice Kennedy’s questioning was sympathetic to conservatives, of course. When John J. Bursch of Michigan was arguing in defense of the four states, Justice Kennedy seemed to have some trouble understanding, or engaging with, the actual argument Bursch was making.

For example, Bursch had argued that marriage “developed to serve purposes that, by their nature, arise from biology” — meaning the unique potential for natural procreation that is only present in opposite-sex couples, never in same-sex ones. He warned, ” … [W]hen you change the definition of marriage to delink the idea that we’re binding children with their biological mom and dad, that has consequences.”  Later, Bursch suggested that a key purpose of marriage is “to inextricably bond kids to their biological moms and dads.”

Justice Kennedy complained, ” … [Y]ou had some premise that only opposite-sex couples can have a bonding with the child. That’s … just a wrong premise.” However, Bursch was not saying that only opposite-sex couples can bond with a child, but that the state has a unique interest in encouraging the man and woman who are biologically responsible for the child’s existence to do so.

Justice Kennedy seemed to be missing Bursch’s point that there is particular value in connecting children to their biological parents, and in having a parent of both sexes. The more liberal justices just bluntly disagreed. After Bursch said, “I mean, I think we can all agree that, in general, that we want kids to stay bound to their biological mother and father whenever possible,” Justice Sonia Sotomayor immediately responded, “No, I — I think they should be bound to their parent …”

Do unmarried people lack “dignity?”

Another disturbing aspect of Justice Kennedy’s questioning involved the amorphous concept of “dignity.” Bursch argued, ” … [What] they [the Plaintiffs] are asking you to do is to take an institution, which was never intended to be dignitary [sic] bestowing, and make it dignitary bestowing. That’s their whole argument.”

Kennedy seemed puzzled. “I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage… and these parties say they want to have that — that same ennoblement.”

Bursch, however, held his ground, returning to a hypothetical “world where marriage doesn’t exist and the State is trying to figure out, ‘How do we link these kids with their biological moms and dads when possible’ … [D]ignity may have grown up around marriage as a cultural thing, but the State has no interest in bestowing or taking away dignity from anyone …”

Bursch also pointed out a key problem with the assumption that marriage “bestows dignity” — namely, that it implies that people who are unmarried lack dignity. ” … [I]f you turn it into a dignity-bestowing institution, then other family structures and children who are excluded from their definition would suffer a dignitary harm.”

For example, if an unmarried woman and her unmarried adult daughter are jointly raising the younger woman’s minor child (not an uncommon family structure), does the fact that the consanguinity provisions of the law prevent mother and daughter from marrying deprive their household of “dignity?” It’s hard to imagine the Supreme Court would say such a thing.

Conclusion

Justice Kennedy seems to realize that marriage is an ancient institution, and that the male-female union has always been fundamental to its definition, not a mere incidental regulation imposed upon it. He seems to acknowledge it would be arrogant for the Court to overturn such an ancient definition, and to recognize that same-sex “marriage” is no “fundamental right.” He also seems concerned (as he was in the DOMA case) for the power of states to determine their own marriage policy.

Let us hope he can bring himself to acknowledge the unique value of bonding children to parents of both sexes with whom they have a biological (not just legal) relationship, and that he recognizes such a child-centered interest (not an adult-centered interest in “dignity”) is what justifies the institution of civil marriage in the first place. 

Archives