The analysis demonstrates that nothing in the U.S. Constitution requires states to redefine marriage.
Those suing to overturn the marriage laws in the four states covered by the Sixth Circuit (Ohio, Kentucky, Michigan, and Tennessee) thus have to prove that the man-woman marriage policy that has existed in the United States throughout our entire history is prohibited by the U.S. Constitution.
The only way someone could succeed in such an argument is to adopt a view of marriage that sees it as an essentially genderless institution based only on the emotional needs of adults and then declare that the U.S. Constitution requires that the states (re)define marriage in such a way. Equal protection alone is not enough. To strike down marriage laws, the Court would need to say that the vision of marriage that our law has long applied equally is just wrong: that the Constitution requires a different vision entirely.
The U.S. Constitution, however, is silent on what marriage is and what policy goals the states should design it to serve, and there are good policy arguments on both sides. Judges should not insert their own policy preferences about marriage and declare them to be required by the U.S. Constitution any more than the Justices in Dred Scott should have written into the Constitution their own policy preferences in support of slavery.
That, of course, is not to suggest that same-sex marriage is itself comparable to slavery. The point is simply that, as in Dred Scott, this is a debate about whether citizens or judges will decide an important and sensitive policy issue—in this case, the very nature of civil marriage.
A legal challenge to these state marriage laws cannot appeal successfully to the text or original meaning of the Fourteenth Amendment. The text, invoking American citizens’ “privileges or immunities,” the “equal protection of the laws,” and the “due process of law,” nowhere mentions marriage. Back in the 1860s, could anyone who drafted that amendment or any of the citizens who voted to ratify it have reasonably thought that it could be used to invalidate state marriage laws defining marriage as a man-woman union?
Imagine, for example, how President Lincoln — an accomplished lawyer and an ardent opponent of Dred Scott — would have reacted if the amendment had been introduced before his death and someone had suggested that it might one day be interpreted to require states to recognize same-sex marriages. He would have viewed that suggestion as preposterous. There has never been any general right, he would have said, to marry anyone you claim to love, so a state’s rejection of that claimed “right” could not possibly be a denial of due process.
Lincoln would also have noted the similarities between Dred Scott and a decision imposing same-sex marriage. As distinguished law professor Michael Stokes Paulsen has elegantly argued, “in the structure and logic of the legal arguments made for judicial imposition of an across-the-board national rule requiring every state to accept the institutions [of slavery and the redefinition of marriage], the two situations appear remarkably similar.”
Moreover, unlike miscegenation laws, the man-woman definition of marriage does not offend the Amendment’s equal-protection guarantee because it allows any otherwise qualified man and woman to marry, regardless of their sexual orientation or other circumstances. The fact that the institution of marriage, rightly understood, may be more attractive to some of a state’s citizens than others does not mean that a state violates the Fourteenth Amendment simply by refusing to redefine the institution to make it more attractive to more romantic partnerships.
Nor can a challenge reasonably appeal to the Supreme Court’s Windsor decision, which was written by Justice Anthony Kennedy and applied the Fourteenth Amendment’s protections in striking down a portion of the federal Defense of Marriage Act (DOMA). Whether it was right or wrong as to DOMA, Windsor strongly supports the authority of states to define marriage: Every single time that Windsor talks about the harm of DOMA, it mentions that the state had chosen to recognize the bond that the federal government was excluding. Every single time, Justice Kennedy expressly said it was Congress’s deviation from the default of deference to state definitions that drove his opinion.
Kennedy’s opinion for the Court hinged on the reality that “[t]he significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning.” “The definition of marriage,” Windsor explained, is “the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’” . . .
Windsor also taught that federal power may not “put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.” Yet since that time, the federal government — through federal judges — has repeatedly put its thumb on the scales to influence a state’s decision about its own marriage laws — all the while claiming that Windsor required them to do so.
As the Supreme Court held in Glucksberg in rejecting a fundamental right to assisted suicide, fundamental rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed.”
Clearly, a right to marry someone of the same sex does not fit this description. As the Supreme Court explained in Windsor, including same-sex couples in marriage is “a new perspective, a new insight.”Same-sex marriage is not deeply rooted in the nation’s history and tradition; thus — whatever its policy merits — it cannot be a fundamental right under the Due Process Clause. Windsor correctly observed that “until recent years…marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.”
Whenever the Supreme Court has recognized marriage as a fundamental right, it has always been marriage understood as the union of a man and woman, and the rationale for the fundamental right has emphasized the procreative and social ordering aspects of male-female marriage. None of the cases that mention a fundamental right to marry deviate from this understanding, including decisions that struck down laws limiting marriage based on failure to pay child support, incarceration, and race. Those decisions took for granted the historic, common law, and statutory understanding of marriage as a male-female union having something to do with family life. Thus, a challenge to state male-female marriage laws cannot appeal successfully to the fundamental-rights doctrine under Glucksberg.
To be sure, the Supreme Court has ruled that entering into and having the government recognize a marriage—understood as a union of husband and wife—is a fundamental right, but if this right is redefined to be understood simply as the committed, care-giving relationship of one’s choice, where does the logic lead? Justice Sonia Sotomayor asked this of Ted Olson, the lawyer for the same-sex couples, during oral argument in California’s Proposition 8 case, and he had no answer. If marriage is a fundamental right understood as consenting adult love, Justice Sotomayor asked, “what State restrictions could ever exist,” for example, “with respect to the number of people … that could get married?”
From a policy perspective, marriage is about attaching a man and a woman to each other as husband and wife to be father and mother to any children their sexual union may produce. When a baby is born, there is always a mother nearby: That is a fact of biology. The policy question is whether a father will be close by and, if so, for how long. Marriage, rightly understood, increases the odds that a man will be committed to both the children that he helps to create and to the woman with whom he does so. The man-woman definition of marriage reinforces the idea — the social norm — that a man should be so committed.
The man-woman definition, moreover, is based on the anthropological truth that men and women are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father. Even President Barack Obama admits that children deserve a mother and a father[.]
In addition to financial incentives, as ample social science confirms, this combination of state-sanctioned status and benefits also reinforces certain child-centered norms or expectations that form part of the social institution of marriage. Those norms — such as the value of gender-diverse parenting and of biological connections between children and the adults who raise them — independently encourage man-woman couples “to stay together for purposes of rearing offspring.” Given the importance of those norms to the welfare of the children of such couples, the state has a compelling interest in reinforcing and maintaining them.
Most of those norms, moreover, arise from and/or depend upon the man-woman understanding that has long been viewed as central to the social institution of marriage. For example, because only man-woman couples (as a class) have the ability to provide dual biological connections to the children they raise together, the state’s decision — implemented by the man-woman definition — to limit marital status and benefits to such couples reminds society of the value of those biological connections. It thereby gently encourages man-woman couples to rear their biological children together, and it does so without denigrating other arrangements — such as adoption or assisted reproductive technologies — that such couples might choose when, for whatever reason, they are unable to have biological children of their own.
Like other social norms traditionally associated with the man-woman definition of marriage, the biological connection norm will be diluted or destroyed if the man-woman definition (and associated social understanding) is abandoned in favor of a definition that allows marriage between “any two otherwise qualified persons” — which is what same-sex marriage requires. And just as those norms benefit the state and society, their dilution or destruction can be expected to harm the interests of the state and its citizens.
For example, over time, as fewer heterosexual parents embrace the biological connection norm, more of their children will be raised without a mother or a father. After all, it will be very difficult for the law to send a message that fathers and mothers are essential if it has redefined marriage to make fathers or mothers optional, and that in turn will mean more children of heterosexuals raised in poverty, doing poorly in school, experiencing psychological or emotional problems, having abortions, and committing crimes — all at significant cost to the state.
In short, law affects culture. Culture affects beliefs. Beliefs affect actions. The law teaches, and it will shape not just a handful of marriages, but the public understanding of what marriage is. Consider the impact of no-fault divorce laws, which are widely acknowledged to have disserved, on balance, the interests of the very children they were supposedly designed to help. By providing easy exits from marriage and its responsibilities, no-fault divorce helped to change the perception of marriage from a permanent institution designed for the needs of children to a temporary one designed for the desires of adults. Thus, not only was it technically much easier to leave one’s spouse, but it was psychologically much easier as well, and the percentage of children growing up with just one parent in the home skyrocketed, with all of the attendant negative consequences.
This analysis also explains why a state’s decision to retain the man-woman definition of marriage should not be seen as demeaning to gay and lesbian citizens or their children and why it satisfies any form of heightened scrutiny. In the early 2000s, in the face of state judicial decisions seeking to impose same-sex marriage under state law, the definitional choice a state faced was a binary one: Either preserve the man-woman definition and the benefits it provides to the children (and the state) or replace it with an “any two qualified persons” definition and risk losing those benefits.
There is no middle ground. A state’s choice to preserve the man-woman definition is thus narrowly tailored — indeed, it is perfectly tailored — to the state’s interests in preserving those benefits and in avoiding the enormous societal risks that accompany a genderless-marriage regime. Under a proper means-ends analysis, therefore, a state’s choice to preserve the man-woman definition passes muster under any constitutional standard.