04/03/2013 12:02 pm ET Updated Jun 03, 2013

The Gay Marriage Case

Should gay men and lesbian women be permitted to enter into state-sanctioned marriages?

This question -- which is now the subject of two Supreme Court cases, numerous state referenda, evolving state laws, and kitchen table conversations throughout the country -- is much easier to answer as a matter of policy than as a matter of constitutional law.

As a matter of policy, the arguments against gay and lesbian marriage are universally bad. Same-sex marriage does not make opposite sex marriage less likely, nor does it weaken (or really have any effect at all on) heterosexual unions or the institution of heterosexual marriage. The empirical reality is that sexual orientation is a matter of birth, not choice, and all our various attractions will remain as they were regardless of whether the pool of state sanctioned marriage licenses expands to accept same-sex couples. No heterosexual couple will join or split on account of the legality of gay and lesbian unions. The children of traditional marriages will, of course, see examples of non-traditional arrangements and will process the information they get from those families as they do with others; some of the examples will be good, some bad.

But there is no evolutionary or existential threat in the offing here.

Neither to heterosexual coupling nor to the so-called "traditional" family.

In fact, such an outcome is not even possible.

Another canard is that same-sex unions will harm children. This is false. On the one hand, the assumption that heterosexual unions must be the preferred arrangement when it comes to child-rearing is itself suspect in the extreme. There is no evidence that children raised by gay or lesbian couples turn out worse than those raised by their hetero counterparts. Nor is there any evidence that the mere existence of same-sex families has some powerful -- and adverse -- spillover effect on the families, and children, of their opposite sex neighbors.

There is, of course, abundant evidence that in tact families are better for children, on average, than those that are broken.

Roughly half the marriages in this country still end in divorce, and the evidence is that we still have a long way to go in getting marriage (and divorce) right for the kids (and for the grown-ups too). To date, however, gays and lesbians have had nothing to do with this reality; we heterosexuals have created it all on our own. When all the evidence is in, I suspect the results will be the same for gays and lesbians. If their families break up, their children will suffer too.

Because, as the song goes, breaking up is hard to do.

Not because Mommies and Daddies are always better parents.

Nevertheless, when you scratch the surface of the policy debate on same sex marriage, it is hard not to get the impression that opponents are blaming the LGBTs for the break up of the family. A number of the amici briefs filed in Hollingsworth v. Perry -- the gay marriage case heard by the Supreme Court last week -- were explicit in making this claim.

Here are three examples.

The Westboro Baptist Church filed a brief telling the Court that "America has erred in making fornication, adultery, divorce, remarriage, abortion-for-convenience-on-demand and sodomy standard fare in this country." It continued: "It is time to reverse that course, and for the Court to squarely hold that the governments of America have a compelling interest in upholding traditional opposite sex marriage, and further in protecting the people from the devastating effects of same-sex marriage."

In its amicus brief, the U.S. Conference of Catholic Bishops was less strident but no less insistent. It claimed the following: "Societal ills that flow from the dissolution of marriage and family would not be addressed -- indeed, they would only be aggravated -- were the government to fail to reinforce the union of one man and one woman with the unique encouragement and support it deserves."

Then there was the Thomas More Law Center. Its amicus brief argued that: "Declaring that adherence to the traditional definition of marriage is irrational and illegitimate would profoundly delegitimize those who subscribe to such a position, facilitating the imposition of a species of ideological totalitarianism upon objectors to a regime of redefined marriage."

There are a number of disturbing trends in these positions. The worst, however, is the more or less straight line each draws between homosexuality and the perceived sexual or moral lapses of the last century. In this world, being gay or lesbian is not inherent; rather, it follows from government's failure to marshall the state's police power to declare war on fornication, adultery, divorce and re-marriage. Whatever bad outcomes attend "the dissolution of the family," banning gays and lesbians from marrying somehow emerges as a credible means to reverse that trend, even though gays and lesbians had nothing to do with it and will never be able to stop it. Finally, having raised their Sodom and Gomorrah world to the level of the culturally accepted, and having helped ruin the family in the process, gays and lesbians then get to brand their opponents as illegitimate, imposing their own "ideological totalitarianism" on erstwhile defenders of the heterosexual realm.


Who knew?

It's as if we marched from Stonewall to the new Soviet in 40 or so short years

It is an understatement to call this sort of stuff nonsense. But it would be foolish not to take it seriously.

So constitutional law does.

Which is why gay marriage as a constitutional right is so much harder to get to than gay marriage as a socially desirable policy.

The issue for the Supreme Court is whether excluding gay and lesbian couples from state-sanctioned marriages in California -- but pretty much nothing else, given that state's aggressive panoply of civil union and equal benefits statutes -- violates either the equal protection or due process clauses of the 14th Amendment to the federal Constitution. This amendment was passed in the wake of the Civil War and was designed to ensure equal rights for former slaves. Much to the chagrin of conservative jurisprudes, who claim that the amendment should be construed only to give effect to the original intent of its framers, it has since then been used to fashion a right to privacy (ultimately precluding state bans at least on early term abortions) and to bar gender discrimination absent some reasonably ascertainable state interest.

For years, no one contemplated the possibility that the 14th Amendment could be used to strike down laws barring gay or lesbian marriages or laws that defined marriage as the union of a man and a woman. That was, after all, how all the dictionaries defined the word. The issue, moreover, was certainly on no one's radar screen in the 1860s, when the 14th Amendment was drafted and ratified. In fairness, courts can't construe amendments until they get cases requiring a construction, and no one in the wake of the Civil War was filing cases claiming equal rights for gays and lesbians. This did not happen until quite recently. But here we are.

In 2013.

What to do?

In law school, my first Professor of Constitutional Law, Joseph Goldstein, made us all write Supreme Court opinions. When I first took a class from him, Prof. Goldstein was himself new to the subject; in fact, I do not think he had ever before taught it. His expertise -- in fact, his fame -- was in family law in general and how that law effected children, in particular. Along with two others, he authored the famous "Beyond", "Before" and "Beside" the "Best Interests of the Child" treatises. If there is a seminar in heaven on Hollingsworth, he is definitely running it.

And telling all his students to be "Tenth Justices."

So here is what Tenth Justice Me would say:

"There a re three principles which decide this case.

First, marriage is fundamental. This is a proposition the Court has recognized on more occasions, and in more contexts, than it can count. The institution, moreover, has been held fundamental regardless of whether a couple could or even intended to have children. It therefore must be held to be fundamental for gays and lesbians.

Second, a 14th Amendment broad enough to support a right to privacy and bar gender discrimination is broad enough to support a right to gay marriage. Constitutional principles emerge in concrete settings but are phrased in abstract language. There is a reason for this. Those principles are meant to survive and govern in contexts other than those in which they emerge. No one in the 1860s could have predicted all the circumstances in which equal protection of the laws or due process could or would in the future be violated. So no one did so. Instead, the drafters of the 14th Amendment fulfilled their responsibility by amending the Constitution to guarantee those protections to all.

And today, we are merely fulfilling our responsibility to guarantee those rights to gays and lesbians.

Third, we cannot ignore the thirty states that have passed laws defining marriage as the union of one man and one woman. Or that a majority of Californians have sought to so do in this case. The Constitution commits us to representative government and that means we must respect the decisions made by our representatives.

Unless those decisions have no basis in reason or fact.

California's proposition barring gays and lesbians from marriage is such a decision.

There is no evidence -- none -- that gay or lesbian marriage will hurt children, harm heterosexual marriages, accelerate the dissolution of the family, or otherwise imperil moral prerogatives or religious liberties. No religion that does not want to sanction gay or lesbian marriage will be forced to do so, and while officers of the state (e.g., Justices of the Peace, Notaries) may be required to perform weddings they might otherwise oppose, public officials are routinely called upon to check their private views at the door when those views conflict with their public functions. Similarly, no law that precludes marriage on the basis of reason and fact (e.g., laws banning polygamy or laws establishing age requirements for marriage licenses) will fail in the future.

California has, in truth, reduced this issue to its essentials. Under state law, gays and lesbians can form domestic partnerships, raise children, distribute their estates to their partners, and otherwise enjoy all the rights and liberties of their fellow citizens. Except one. They cannot be "married." If we lived in an "Alice in Wonderland" world, this might not matter. What's in a word, after all?

But we do not live in that world.

In our world, as the Court noted almost sixty years ago, "separate but equal is inherently unequal." It creates stigma. It assigns badges of inferiority, usually to groups -- like gays and lesbians -- that have been historically vilified.

We do not decide today that marriage matters. We have known that for some time now.What we decide today is that marriage matters . . .

For gays and lesbians . . .

And for their kids too."

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