Tuesday, March 26, 2013

Marriage Equality: You're Doing It Wrong

Guess what. I don't support gay marriage! Didn't expect that, did you?

Chill, this has nothing to do with hating gay people. I’m not straight myself. In fact, let's take a moment to mourn the death of sanity all of this Prop 8 nonsense proclaims. Ok, moving on.

Marriage itself is unconstitutional.

Before I argue for disestablishment, let's be clear that we're talking about civil marriage here, the mode of existence marriage takes in law. Most of the arguments for marriage the Right exudes pertain to either religious marriage or a fanciful idealization of historical marriage. Arguments from sanctity and tradition are plainly irrelevant to the governmental establishment of civil marriage, so I won't subject you to serious consideration of them. Arguments from the Left are a bit more diverse, but nearly all of them fall into the broad categories delineated univocally by the Right. By and large they are sanctity arguments presented sentimentally instead of religiously.

The only common argument for civil marriage worthy of refutation is the argument from reproduction. It goes like this. Government should be able to regulate marital relationships because the production of children is necessary for the continuation of the country. As Charles Cooper put it in his oral argument to the California Supreme Court
There is clearly a rational basis justifying the traditional definition of marriage. The key reason that marriage has existed at all in any society and at any time is that sexual relationships between men and women naturally produce children. Society has no particular interest in a platonic relationship between a man and a woman no matter how close, no matter how committed it may be.
But civil marriage is not about children and hasn’t been since 1964. Before that year, it was illegal in Connecticut for doctors to provide council to couples asking about contraception. Estelle Griswold, then director of the Planned Parenthood League of Connecticut, was convicted of violating this law when she and the League’s medical director were caught advising couples on methods of birth control. She appealed, and in the end the law was struck down by the US Supreme Court, ruling that it violated the right to privacy implicit in the Bill of Rights.

The case’s direct effect was to grant married couples the right to use contraceptives; but other results were far more profound. Griswold v Connecticut impacted marriage law in two giant ways. It first established that the first, third, fourth, and ninth amendments together create a right to privacy within marriage. Additionally, in protecting under that right the freedom to employ contraception, all legally recognized sexual relationships thereafter no longer existed in law for the purpose of bearing children, as the sexually active couple was free to choose indefinitely to not conceive. By legalizing contraception for married couples the case divorced civil marriage from the conception of children. Whatever the purpose of civil marriage, it is not that proposed by Carles Cooper and his compatriots.

So much for positive grounds for civil marriage. Onward to my own claim.

Civil marriage is not only groundless but positively unconstitutional. Specifically, it violates the 14th amendment’s equal protection clause with respect to the class of unmarried individuals. There is precedent supporting its lack of a rational basis, but I claim further that it fails every other step of the equal protection test as well.

Shortly after the Griswald case, a similar scene went down in Massachusetts. In 1971, pro-choice activist William Baird gave a lecture at Boston University on birth control and overpopulation. After the lecture he gave a spermicidal foam to a woman in the audience. In Massachusetts, contraceptives could be distributed legally only by registered medical professionals, and then only to married couples. As neither condition was met in this case, the state charged Baird with a felony. The defense argued that the Massachusetts law violated the right to privacy noted in the Griswold case seven years earlier.

In the end, the law was overthrown, but not because of the right to privacy. The pertinent question was re-framed like this: Rather than asking whether the right to privacy applied to the sex lives of singles as well, the court asked whether there ever were grounds for differentiating between married and unmarried people in the first place.

To understand the court’s ruling and its broader significance, you have to know about the interpretation of the equal protection clause of the 14th amendment employed in law. See, the actual wording of the amendment is,

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

But the broadest interpretation of the text would make most legislation impossible. If this actually meant that every law must apply to all citizens equally, there could not be, for instance, distinctions in legislation between eight-year-olds and fifty-year-olds, nor between billionaires and the poor. To prevent this stalemate, whenever a question arises regarding the validity of distinctions between groups, the group getting shafted undergoes an “equal protection test”.

Here's how the test works.

  1. First we ask, “Is the characteristic defining the group immutable?” Skin color and gender, for instance, are immutable. Choice of vehicle is not. Obviously, not all defining characteristics are so unequivocal.
  2. If the answer to the first question is yes, the distinction is subject to “strict scrutiny” which means asking, “Is there a compelling argument that the state has a legitimate interest in protecting one group and not the other?” If the answer to that is yes as well, then the law in question can be upheld. Otherwise it’s unconstitutional.
  3. If the answer to the first question is “no”, then the second question becomes, “Does the group under review have a history of maltreatment?” If yes, the state may have an ulterior motive for legislating against them, which again triggers strict scrutiny.
  4. If there is no immutable characteristic and no history of maltreatment, we move on to the question of whether or not a fundamental interest is at stake. Fundamental interests are a purposefully hazy class of which the most famous are life, liberty, and the pursuit of happiness. If an interest the court deems fundamental is at stake, strict scrutiny is triggered.
  5. If not, the law can be upheld as long as there is some “rational basis” for the distinction. The rational basis test is a very easy one to pass, because any reasonable ground whatsoever applies. Very few cases involve distinctions that failed rational basis.

Eisenstaedt v. Baird is one of those few. Though the defense’s initial criticism of the Massachusetts law concerned an extension of the right to privacy, the case moved into equal protection law when singles were identified as an insular group against which the state legislated. An equal protection test was clearly in order.

Is it constitutional to uphold a law granting rights to married people that singles are denied?

In this case, singles made it all the way through the first three sections; according to the judges, the group was not defined by an immutable characteristic, did not have a history of maltreatment, and there were no fundamental interests at stake. Ultimately, though, there was simply no legitimate interest for the state, no “rational basis”, that warranted distinguishing between married and single people in awarding the right to use contraceptives.

The implications of that ruling are potentially much, much more extensive than anyone seems to realize. As far as I can tell, non-married people have delighted in their equal right to use contraceptives and have left it at that; efforts toward "marriage equality" remain overwhelmingly focused on extending marital benefits to same-sex couples, while attempts to secure further equality for single citizens barely exist. Though married people enjoy 1,049 federal rights and benefits denied to the unmarried, singles seem oblivious to their own marginalization.

Assuming, keeping with the Eisenstadt ruling, that the unmarried don’t warrant strict scrutiny, the tedious enterprise of examining every marital right and benefit for a rational basis may appear excessive. When running singles through the full equal protection test, however, I obtain very different results from those judged in 1971. If it happens that upon further consideration the unmarried fail every single step of the equal protection test, the process of awarding them far-reaching equality may be streamlined.

Conveniently, that’s exactly the case.

Let’s take it from the top: the first step is immutability. Is the class of unmarried people defined by an immutable characteristic? At first glance it doesn't look like it. After all, marriage is something you can opt into or out of. No one has to stay single, right? (Note: I’ve actually heard people argue that, “Even gay men can marry women.”)

It’s actually not quite that simple. It helps to keep in mind that the defining characteristic in question is that of the unmarried. The status of “married” certainly isn’t immutable, as anyone can say “no” to a proposal, and anyone can get a divorce. But “unmarried” is a default state that was never initially chosen by anyone, and it’s simply not true that every adult is totally free to opt out of the unmarried status. First of all, it isn’t something that can be done alone; unlike choosing a car or a career, it requires an equal commitment by another person. While individuals have full freedom regarding their own decision to remain in or resign from the single class, they have no direct reign over the decisions of potential marriage partners. Since “unmarried” is the default state, an individual can not actually choose freely to exit the class into which she was born, making it an immutable characteristic.

Secondly, there are plenty of clear barriers indefinitely preventing some people from getting married. Some who desire marriage simply fail to find a partner, and others may not have access to marriage due to physical or mental illness. That alone is enough to trigger strict scrutiny (as opposed to the rational basis test, or “ordinary scrutiny”, applied in Eisenstadt v. Baird). But there’s more.

The second question is, “Does the group have a history of maltreatment?” The Supreme Court of 1971 must have experienced a temporary lapse in most cognitive faculties to have answered “no” to this question. The correct answer is unassailably “yes”, and especially for the subclass of unmarried women. Until fairly recently it was nearly impossible for an unmarried woman to support herself, because the entire structure of society was built around the bias toward patriarchal marriage. An adult woman without a husband underwent severe economic and social maltreatment, all the worse if she bore children. The economic maltreatment in particular continues today, largely as a result of the rights denied to the unmarried.

In summary thus far: the defining characteristic of the class in question is immutable and there is a clear history of maltreatment. Is there also a fundamental interest at stake? Does legislation against singles encroach upon some basic, fundamental human right?

Yes, it does. In the past, identifications of fundamental interests in Supreme Court cases have included the right to parent. There are many ways in which legislation against the unmarried encumbers parenting. Robin West enumerates:

All unmarried parents… both the truly single, and those in committed, but unmarried relationships, will find their parenting burdened by marriage laws, and by the scores of financial benefits withheld them by virtue of that status. Unmarried poor parents will not have a deceased marital partner’s Social Security or military pension on which to draw—nor will she have the possibility of drawing on that of a deceased companion, coparent, or intimate. She will not have the benefit of favorable tax treatment, or private health insurance provided to spouses, that are routinely accorded married persons. She will not have a partner with a virtual “power of attorney” to make decisions on her behalf or that of her children, should she become incapacitated. Either directly or indirectly, the law is deeply implicated in a regime that has an adverse impact upon a class of people trying to engage in a basic, fundamental life activity—bearing, nurturing, and raising children—and trying to do so outside the protective perimeters of marriage.

Obviously, government intervention or no, single parents face challenges to which couples are not subject. It is the fundamental right of an individual to confront those challenges and raise her children, with or without a co-parent. The problem is not that single parents have a tougher time overall. It’s that a prodigious portion of that hardship is caused by the denial of marital benefits to unmarried parents. Surely, if parents are receiving federal aid in caring for their children, single parents need it most. But that’s not the world we’re living in. Not yet.

Finally, does the state have any interest whatsoever in denying rights to single people it affords to married couples? Remember Griswald vs Connecticut. The many arguments founded on the state’s interest in procreation are void. Arguments for the stability life-long partnerships create in society are flimsy as well; no-fault divorce means a marriage can end at any time. There is no longer any legal obligation to remain married, and a third of US marriages last less than ten years.

The most legitimate interest the state might have in the institution of civil marriage is the care members of a marriage provide for each other. Whenever one individual supports another in a time of need, she removes that responsibility from the state. Ideally, married couples engage in this kind of support consistently, and they’re rewarded copiously for it through their many rights and benefits. It makes sense for the government to actively encourage and fortify such care-giving behavior.

But the exclusive identification of marriage with relationships of care-giving is transparently mistaken. Humans are social creatures, so when something goes wrong we look to the networks of support in which we find ourselves. Those networks are invaluable not only to individuals but to the state, and they are far more diverse than the traditional husband/wife family model. The enterprise of care-giving can take innumerable forms: a lesbian couple raising a child, a middle-aged man caring for his elderly mother, a woman and her male best friend together raising children from previous marriages, or a man supporting his chronically ill brother, to name a small handful.

Take another look at the words of Charles Cooper.
The key reason that marriage has existed at all in any society and at any time is that sexual relationships between men and women naturally produce children. Society has no particular interest in a platonic relationship between a man and a woman no matter how close, no matter how committed it may be.
The truth is, society has no legitimate interest in the private sexual lives of citizens, but it has every interest in close and committed relationships whether or not they be of a sexual nature as well. By indiscriminately distributing financial support to married couples who may not require it solely by virtue of their presumably sexual partnership, less funding remains for singles in selfless, draining, committed care-giving positions. There is no rational basis for providing financial benefits and other civil rights to married people while denying them to the unmarried.

The legal distinction between marital statuses fails the equal protection test many times over, serves no state interest, and harms society as a whole. Yes, it is horrible that, in the US, gay people can’t marry each other while straight people can. But if we’re serious about equality for all, we should be dissolving civil marriage. Not expanding it.

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