The Jujitsu of Same-Sex Marriage

There has been no want of “writing on the wall” about the upcoming cases on marriage. Justice Clarence Thomas could not help but remark on the point that a majority of his colleagues had already, and gracelessly, signaled their “intended resolution of that question.” And yet, writers and lawyers on both sides continue to expend their genius in writing briefs for the Court, clinging to the possibility that the words they set down may yet tip the balance.

But as the arguments pour forth, the curious asymmetry is that only one side is offering substantive arguments. Justice Kennedy has maintained in a string of cases now, running back to Romer v. Evans in 1996, that any adverse judgment on the homosexual life can spring only from an “animus,” with no reasoned foundation. With short steps he has now concluded that the aversion to same-sex marriage is mainly fed by the irrational aversion to the homosexual life. And therefore, the laws that bar same-sex marriage can no longer claim any ground for justification.

The conservative judges on the other side have declined to offer any moral argument for marriage as we know it. Nor have they drawn on the empirical studies bearing on the stability of “sexual orientation” or on the lives of children raised by same-sex couples. Justice Alito has gone so far as to note that those arguments, moral and empirical, have been made. But he has seen no need to lay those arguments on the record of the Court so that Justice Kennedy, his clerks, and his colleagues may be compelled to do the work of contending with them. The conservative justices fall back on this well-worn staple of conservative jurisprudence: that the “right” here cannot be found in the text of the Constitution or in any “tradition” marked in the accumulation of cases over the years; and so the Constitution itself cannot be the source of any such right that the judges have the authority to pronounce. The conclusion they draw is that the question needs to be returned to the judgment of the American people in the political arena. By this time in the seasons of our experience we might well ask: How has that theory worked? We can expect that it will succeed about as well with the issue of marriage as it has on the issue of abortion.

Yet there is one path of argument that has remained overlooked even now, and it could offer even Justice Kennedy some reason to pause, and perhaps to hold back, before he drops the second shoe. The strongest argument made by the proponents of same-sex marriage just happens to be the source of the strongest leverage against their position. It establishes the properties or the terms of argument that the advocates of same-sex marriage simply cannot meet. I call this the jujitsu of same-sex marriage.

The strongest argument for same-sex marriage has come in rejecting the case for marriage as the legal union of one man and one woman. The argument sounded most often against that understanding is that not every marriage between a man and a woman manages to bring forth children. If that were the rationale, says Justice Kagan, why would we permit people to marry in their later years, when they are well past the time of begetting and bearing children?

That argument has resonated with the liberal side with evident satisfaction, but it may deliver more than the liberal justices or their allies on the Left seem to recognize. It is curious that the people who have been telling us for years that there are no moral truths now insist to us that the laws confining marriage to one man and one woman must not only have a moral justification—that is, reasons to establish the rightness or “justice” that “justifies” the law. This moral justification must also be nothing less than “categorical.” It must offer reasons that can answer to the question, “Is it necessarily true, true in all cases . . . that the marriage of a man and woman will produce children?”

To my mind that is exactly the proper cast of things. In that respect the liberal judges and their friends have it quite right. But to install that requirement of a categorical proposition is to raise the bar of argument. It puts in place demands that the advocates of same-sex marriage would themselves have trouble in meeting. The most obvious challenge was raised already during the arguments over the Defense of Marriage Act in 1996. If marriage is radically detached from the telos, or purpose, of begetting, on what principle would the marital relation be confined to a coupling? What is to be said to the people who insist that their love is woven together into a larger ensemble of three or more? And if that arrangement were allowed, it could not be confined to ensembles of the same sex; it would have to be available to ensembles of both men and women—which is to say, we would be back to polygamy. Since that challenge was raised years ago we’ve actually seen a surge of the “polyamorous” in this country. Newsweek reported a while back that there were as many as 50,000 polyamorous households in this country—households constituted by ensembles of people connected through active sexual relations. We have had appearance then of the “throuples,” ensembles of three, whose advent has already been announced and celebrated in the media.

Ordinary folk may be content simply to look the other way. And they just may not be overly concerned with the ground of principle that will permit same-sex marriage but bar the variety of sexual novelties that may spring up once we’ve broken from marriage as the union of a man and woman. But this is a matter that judges cannot treat with indifference, for they know that cases will arise testing the principles they put forth to explain their judgments. And one thing we know for sure is that activists can be counted on to come forward to test the boundaries of the principle. Can anyone doubt by now that some appealing sets of “throuples” with advanced degrees, living perhaps in retirement communities, will come forward demanding to know the ground of principle on which they may be barred from marrying the ones they love? And that is especially the case when they have no interest or prospect of generating offspring.

After all, this state of affairs was built into the rationale for same-sex marriage when it was installed by the Supreme Judicial Council of Massachusetts back in 2003. In the now famous Goodridge case, the Court leaned critically on the insistence that procreation is not a requirement of marriage, and that the laws on marriage “do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy.” But by that very construction, why would marriage not be open then uncles and nieces, fathers and daughters, who happen to be sterile and intimate? And if people of the same sex may marry, why would the arrangement not be open to a father and son? On the spur of the moment, these challenges are not taken seriously because we don’t expect to be flooded with these kinds of cases. But can one seriously deny that we will see them?

During the hearings over the Defense of Marriage Act years ago, a young man from Idaho, arguing for same-sex marriage, was asked how his argument could foreclose the return of polygamy. He responded simply that where he came from, people seemed not much interested in polygamy. What seemed never to have crossed his mind is that people out there showed little interest, in large part, because that possibility had been foreclosed for over a hundred years in our laws. But if those laws changed, do we really have any doubt that, in this age of openness to all things sexual, many people will be rediscovering that interest in polygamy?

That screening of sight has shown itself in some of the least likely places, among some of our shrewdest legal commentators. My friend Richard Epstein, the soberest of men, with a hard sense of realism, echoed that young man from years back when he remarked in a recent interview, “the demand for polygamy is relatively small.” The people who want it, he said, form a “discrete, insular minority” that could be readily beaten off politically. But Professor Epstein surely must know that there has been a resurgence of polygamy in the Southwest, and the laws barring polygamy have been challenged now on religious grounds. The authorities are no longer enforcing seriously any laws on “cohabitation,” and so why should those laws be enforced—and enforced with severity—only on people who profess a religious ground for these marital arrangements? Professor Epstein will no doubt hear soon, if he has not heard already, of the emerging “polyamorous” households in the country. Epstein has favored same-sex marriage, though he has been quite against same-sex marriage imposed by courts. And he has aptly warned the advocates of same-sex marriage that they cannot offer a principle that would support their position and yet reject polygamy. “In fact,” he concedes, “the logic in the two cases is the same.” He surely should know then that there would be no way for the courts to evade this issue. And what he objects to now, in the courts imposing judgments, will be even more likely once this threshold has been crossed. That sense of things will probably only reinforce his prudential judgment that the Supreme Court should stay its hand here. And yet, that question of principle would have to be faced quite as well by any legislature that would install same-sex marriage and seek to bar polygamy. We can expect that those laws in turn will be challenged by the “throuples” and the “polyamorous.”

On the other side of the question, we hear, even today, that most gay men are not really interested in marriage. And yet even if that were the case, that would not provide us with the grounds for saying no to this particular gay couple who wish to marry. But with precisely the same cast of argument, the judges will need to settle their answer to the question of just what is their principled ground for turning back these other demands that spring from the very reasoning they bring forward as they detach marriage from that central notion of begetting.

That understanding surely has its sharpest test in one of the most plausible offshoots that could arise from same-sex marriage: Why should same-sex marriage not be available even to certain heterosexuals who disclaim any erotic or sexual component to their union? A former student of mine, the lawyer David Wojcik, suggested that this arrangement could have an appeal to widowed friends, who could enter these arrangements in order to “share Social security benefits, health insurance, or to defer estate taxes or to protect real estate from Medicaid liens incurred for long term nursing home care.” But the gay activists have persistently denied that this kind of a marriage could be encompassed in the scheme of marriage as they would have it, without having “marriage” lose its meaning and coherence. And yet, how would the activists and the courts deny these arrangements? If the sexual component is utterly essential to the marital relation, how would that be tested or confirmed for the same-sex couple? After all, this problem was built into the rationale for same-sex marriage when it was installed by the Supreme Judicial Council of Massachusetts back in 2003. In the now famous Goodridge case, the Court leaned critically on the insistence that procreation is not a requirement of marriage, and that the laws on marriage “do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy.” The four judges who put across same-sex marriage in Massachusetts have not been the most ingenious craftsmen of the law, but even they are hardly likely to say that there is no need any longer to confirm the consummation of a marriage between a man and a woman, but that consummation is absolutely essential and mandatory in a same-sex union!

With these items on the table, the question may be put to the judges with a sharpness that hasn’t been directed to the judges themselves quite in this way in the past. And so, if Justice Kennedy, writing for the Court, sweeps away the last barriers to same–sex marriage, what will be contained in the “principle” he articulates as the ground of the decision that would indeed bar marriage to:

—the widows or widowers who would simply wish to pool their social security and savings;

—the “throuples” who wish to marry the ones they love in this three-some;

—the polygamous couples living with the consent of the participating adults in these intimate relations, still barred in the laws;

—the adult fathers and daughters, mothers and sons, invoking the words of the Supreme Court of Massachusetts and avowing their earnest interest in living with the ones they love in caring relations of “adult intimacy”;

—and finally, the adult fathers and sons, mothers and daughters.

That these cases may be rare is no response to the problem. For we’ve already been told that the law must be settled on grounds that are “categorical”: it is not enough to say that marriages between men and women have the best chance of begetting children. But in the same way, the judgment brought forth by the Court should be able to hold in all cases that may fit the principle the Court is articulating. What holds true only most of the time, we’ve been instructed, is just not good enough. It is only just that the principle brought forth to establish new modes of marriage should meet the same standard. And if that standard is not met, if the explanations are not provided, we can bet with confidence that these cases, now rare, will cease to be rare, precisely as the notion of same-sex marriage has shifted from the unthinkable to the implausible to the realities springing up all around now and demanding acceptance.

To say that the judges should be made to face these questions is to say that these are the questions that deserve to be pressed precisely and often. Those questions should be posed to the lawyers arguing the cases before the Court—and through them, to their colleagues on the other side. That the conservative judges should actually do such a thing does not involve any radical alteration in the “job description” of the justices. For this is what the justices do in all other cases where they are trying to clarify the principles that mark and limit those judgments they are about to spring upon the country. It is exactly the kind of question that Chief Justice Rehnquist raised in U.S. v. Lopez in 1995, where the question was put as to whether the federal government may ban the use of guns near schools. If the use of guns near schools may impair the performance of students, and the federal government bears responsibility for the success of children in the schools, why couldn’t the federal government simply take over control of the local schools? No rationale worked, and the Chief Justice remarked that

It is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.

As Clarence Thomas would put it later, in another case, these rationales could have the federal government virtually displacing local governments in anything they do, including the rescue of lost cats from trees.

In the argument this term in Holt v. Hobbs, the Court dealt with a prisoner who invoked a right, on religious grounds, to wear a beard one-half inch in length, while the prison in Arkansas would permit beards of only one-quarter of an inch. To the lawyers pressing the religious claims of the prisoner, Chief Justice Roberts kept pressing in turn for the legal principle that would provide the ground—and the limits—to a decision in favor of the prisoner. To Professor Douglas Laycock, pleading the case, he mulled aloud:

Well, but we have to decide this case pursuant to a generally applicable legal principle, and that legal principle is one, it seems to me, that demands some sort of a limit. And if you're unwilling to articulate a limit to the principle itself, it becomes a little bit difficult to apply it, say, well, we don't know what the limit is because you're only asking a half inch.

In precisely the same way, the justices could press counsel to get clear on the principled lines of a judgment that would confer the right to marriage on couples of the same-sex, while barring the extension of marriage to all of these other ensembles, who will be in the courts before long, demanding to know why they too are not eligible for the same constitutional rights. If the justices can raise these questions about the principled grounds of the judgment in cases on federalism and regulation, on drugs and medicine, what should bar them from applying the same kind of acuity here, where the stakes may be even higher, and where their decision would recast one of our most fundamental institutions?

One facile answer that the judges could offer is that these are all decisions that can be left to the separate States. The people in Texas and New York can decide what they want to do about the marriage of two widows, two brothers and sisters, or fathers and sons. Some of these problems may simply fade away, never raised. But some of the States will recognize these varieties of marriage, and soon the old questions will be upon us again: Can the two widows, or the father and the daughter, take their marriages and their federal benefits into a State that does not recognize their marriages? There is bound to be a “split among the circuits” as judges throughout the country come to different judgments on the custody of children in dissolving same-sex marriages. One experienced and savvy federal judge put it to me this way a few months ago: If the Supreme Court installs same-sex marriage, it will convert my court, she said, into a Federal Court of Domestic Relations. And she remarked that she would be strongly tempted to quit rather than live out her working days in that way. Her remarks brought back those lines from Henry James in The Bostonians, in the portrait of Dr. Prance, a formidable female doctor in Boston in early 1900s. Boston was teeming as ever with high–minded reformers, including the new militant feminists. Dr. Prance opened the door to one meeting, put her ear in for a moment, and quickly turned away. She was, after all, busy as a doctor and she figured that she had “as many rights as she had time for.”

Justice Sandra O’Connor seemed to react precisely in that way in 1996 in Washington v. Glucksberg, when the Court faced the question of whether it was ready to pronounce a new “constitutional right to die.” Standing at the threshold, Justice O’Connor suddenly seemed to see how her life would be taken up in the years ahead if she and her colleagues opened up a whole new branch of jurisprudence, which could run beyond their wit and flood their docket with all manner of new cases stretching the imagination. The justices now come to the same kind of threshold. They face the same kind of question on the making of our laws, and a wave of litigation running even beyond the wit of the cleverest judge. This would be the moment to show the same sage willingness to pause, to hold back their genius, or their passion for adventure, with a gentle dose of modesty. This is the moment for summoning the prudence of age and not crossing that threshold.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and the Founder and Director of the James Wilson Institute on Natural Rights & the American Founding.

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