Judge Robert Shelby holds the dubious distinction of being the first federal judge following the U.S. Supreme Court’s DOMA decision to come to the novel conclusion that the United States Constitution requires a state to redefine marriage to include same-sex couples. The legal chaos that has resulted from this decision and the failure of the court to stay the effect of the opinion while waiting for an inevitable appeal has gotten a lot of attention. Less attention has been paid to the chaotic nature of the decision itself.
The decision is built on two serious fallacies that the court relies on to support a dramatically flawed application of two constitutional concepts that have no relevance to Utah’s marriage law.
First, Judge Shelby concludes that the “due process” clause of the 14th Amendment includes a hitherto unknown right to same-sex marriage. To make this leap, he must first redefine marriage. This he does by saying that marriage is nothing but “a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.” Here’s the flawed logic of the opinion:
- The Supreme Court has recognized a right to marry.
- Marriage is government recognition of an intimate private relationship.
- So, the government must label all intimate relationships marriages or it is violating the Constitution.
Whatever its superficial appeal, this “analysis” begs crucial questions. What was the Supreme Court talking about when it recognized a right to marry? It’s clear in the cases cited by Judge Shelby that marriage had an intrinsic meaning and the state had merely enacted regulations that prevented people from entering into an existing institution. To say that interracial couples should not be punished for marrying (which is what the law actually said) did not require the government to change the understanding of marriage, merely to remove a racial distinction alien to marriage and its public purposes. On the other hand, to say marriage is a government endorsement of private relationships is to fundamentally alter what marriage means. No successful society has understood marriage as anything other than the union of a husband and wife with a public purpose (notwithstanding any heterosexual private relationship alone can result in the creation of a child). The Supreme Court, and any reasonable observer, would have always understood any right to marry as the right not to have the government prevent an individual to enter into the existing institution — not a right to get the government to create a new institution to serve private ends.
Judge Shelby then argues that when two-thirds of Utah voters chose to retain the husband-wife understanding of marriage, they were violating the “equal protection” clause of the 14th Amendment. Here, the argument really stretches logic. The opinion says a marriage law that requires both a man and a woman for a valid marriage is sex discrimination! The opinion then misrepresents the public purposes of marriage and says that the law does not advance these invented purposes.
For example, Judge Shelby says that the only reason the state might want to link marriage and procreation is to make all opposite-sex couples have children. Since, he notes, some married opposite-sex couples don’t have children, recognizing only husband-wife unions as marriages is irrational. It defies belief to assume, as this argument must, that the only reason that marriage has been understood throughout time and across a wide variety of cultures as the union of husband and wife is that no one had ever realized (perhaps until the advent of the Internet) that some married men and women could not or did not have children.
It would be far more rational to consider a more logical proposition, borne out in repeated statements about the meaning and public purposes of marriage throughout history, that social recognition of marriage arises out of the realities of sex difference and the most salient feature of this difference — that every (no exception) child ever born has a mother and father. It is hardly irrational for the law to support an institution that encourages men and women to take responsibility for one another and for the child their relationship creates. Even where an individual married couple does not have biological children together, they can still advance this interest through providing a married mother and father for a child who would otherwise be deprived of that opportunity; they can also model the faithfulness between spouses that prevents the creation of children in impermanent and unstable relationships where a child is likely to be raised in a motherless or fatherless home.
All of this boils down to an ad hominem fallacy — that voters were irrational in supporting the inherited wisdom about marriage because they could not understand their true motives.
This kind of reasoning is unworthy of a government official in a legal system with a self-governing citizenry. It bends constitutional provisions beyond recognition and invents facts to suit predetermined conclusions. It is not, in fact, legal analysis at all but a preference dressed up in a mixture of sophistic logic, pop psychology, and conclusory reasoning.