The Legal Logic of Same-Sex Marriage

The 10th Circuit Court of Appeals has upheld a lower court ruling that declared Utah's ban on gay marriage unconstitutional. The logic of the ruling is a little different than others I have read. It goes like this:

1) It is an old principle of U.S. and British law that if the government wants to discriminate between different groups of citizens -- in the simple sense of treating them differently -- it must have a reason for doing so. If the matter is an important one, like, the right to vote or marry, the government must have a "compelling interest" in discriminating. That is, to tell one group of people that it can't marry, the government must have a really good reason.

2) In a sensitive area of important rights, like the right to vote or marry, any law the government brings forward to meet its compelling interest must be narrowly tailored and logically consistent; it must pass "strict scrutiny" by showing that it does what it intends in a parsimonious way. That is, if the government wants to keep non-citizens from voting, it must pass a law that actually keeps non-citizens from voting but doesn't block citizens. It could not set up an English-language test on the theory that most citizens speak English and many citizens don't; such a law would be too scattershot to meet the strict scrutiny standard. The court cited Reno vs. Flores (1993):

The Due Process Clause forbids the government to infringe certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.

3) The state defended Utah's law banning gay marriage on the grounds that marriage is supposed to be about procreation. The state says that they have a compelling interest in seeing that children are raised in families and therefore in maintaining the link between marriage and childbearing. Allowing gay marriage, the state argued, breaks this link, undermines the connection between marriage and raising children, and will lead to further family breakdown.

4) The 10th Circuit granted that Utah has a compelling interest in promoting family life and "maintaining public morality." They held, however, that a law banning gay marriage was too scattershot to meet the standard of review that must be applied when the government interferes with fundamental rights:

We will assume that the first three rationales asserted by appellants are compelling. These justifications falter, however, on the means prong of the strict scrutiny test. Each rests on a link between marriage and procreation. . . . The challenged restrictions on the right to marry and on recognition of otherwise valid marriages, however, do not differentiate between procreative and non-procreative couples. Instead, Utah citizens may choose a spouse of the opposite sex regardless of the pairing's procreative capacity. The elderly, those medically unable to conceive, and those who exercise their fundamental right not to have biological children are free to mary and have their out-of-state marriages recognized in Utah, apparently without breaking the "conceptual link between marriage and procreation."

Such a mismatch between the class identified by a challenged law and the characteristic allegedly relevant to the state's interest is precisely the type of imprecision prohibited by heightened scrutiny.

So, the court says, if Utah really wants to regulate marriage as a way of promoting family life, it must do so using laws that, first, really do promote family life, and second, do not discriminate between different groups of childless couples.

To me the most interesting thing about the verdict is the tour the court offered of past Supreme Court rulings on marriage and sexuality. Reading this makes it clear that gay marriage is not a bolt from the blue, but the culmination (so far) of fifty years of court rulings in these areas. The court has steadily whittled away all limits imposed by state and society on the right to marry. They have repeatedly affirmed that the right to choose your own spouse is a fundamental one that nobody else can interfere with. For example, the court quoted an earlier ruling (Turner vs. Safley) allowing prisoners to marry people outside the prison even if they could never even see each other:

Inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriages as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Most inmates eventually will be released by parole or commutation, and therefore most inmates marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., inheritance), and other, less tangible benefits (e.g., legitimation of children). These incidents of marriage, like the personal and religious aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.

The whole movement of our society over the past 200 years has been toward marriage as an expression of personal choice. We marry for our own interests, not anybody else's. The right of our parents, neighbors, or even the state to interfere in our choices is very, very limited. As to why we marry, raising children remains an important factor but has steadily slid down the list of reasons. We marry for personal fulfillment; we marry because we think that life would be better with a spouse than without one.

Once you have accepted that marriage is about love and happiness for the spouses, and not really anybody else's business, gay marriage is not so strange at all. So far, the courts have been unanimous in agreeing.