Marriage: Not For Love, For the Some Children

And of the eight states that provide virtually complete benefits to same-sex couples under “civil union” or “domestic benefits” statutes — which include Delaware, Hawaii, Illinois, New Jersey, Nevada, Oregon and Rhode Island in addition to California – none has filed to defend the constitutional authority of a state to deny such couples the status of marriage.

This is striking in that you might think at least one of them would find the Prop 8 ruling important since it threatens their in-between stance.  That is, California provides broad rights to same sex couples, drawing the line at "marriage."  The ideal for some who support the anti side here is same sex marriage for all, but the median path is more likely that the Prop 8 law (removal of SSM rights per constitutional amendment tainted with animus) specifically is problematic, not any ban on same sex marriage.  A brief from one of these states to set forth this limited path would be sensible.

About half of the states that ban SSM and don't have such an alternative did sign on to an amicus brief, basically a bunch of Southern states with a couple add ons, Michigan signing a brief on its own.  One might think Michigan would have a fairly sane view of things.  OTOH, the state is currently controlled by Republicans, the two Democratic senators notwithstanding.  So, it is not surprising really that the brief is the usual anti-gay claptrap, state Republican control these days generally leading to one of more of the following: voting restrictions, refusal of Medicaid expansion per ACA, abortion restrictions and/or targeting gays.

The brief basically starts with support of sex discrimination: traditional sex roles should be endorsed in its marriage laws.  Problem is that if that is your argument, you cannot use reasonableness review. Sex classifications must be narrowly tailored and the range of marriages that do not involve child-rearing alone shows the lack of that. Not that social science lacks evidence that same sex couples raise their children as well or at perhaps even better.  The research is somewhat new and federal appellate courts very well might be wary at this time to rest on that.  But, the telescope is turned around with sex classifications.  The brief underlines the problem.

We are assured there is no "animus" here. Michigan denies children of same sex families basic rights (though the protection of children is cited as a strong state interest), not providing domestic partnership benefits or the like.  Whatever is "ideal," the reality is that same sex couples will still have children.  CA protects them in any number of ways, though not equally since "marriage" in law and fact offers more protection for all involved, including the couple and their children.  Michigan does not do even that, not just giving something extra to different sex couples, but significantly harming same sex couples.  This includes blocking adoptions.

The brief even brings up the specter of plural marriages. Where plural marriages have long been allowed, same sex marriages generally have not been (South Africa, which allows plural marriages for certain traditional followers of the practice, an ironic sort of "tradition" exemption, is the only current one that comes to mind).  Why?  The actual line is sex based: a stereotypical belief that marriage partners must be of the opposite sex.  This is the case for seniors and others where procreation is not the issue, plus where marriage is quite different from it traditionally has been.

"Tradition" is selectively favored in ways that harm same sex couples.  This is animus.  That sounds mean, but "animus" tends to be justified as legitimate, such as laws that burden felons or the like.  The dislike here however is illegitimate.  The selective nature of the enterprise is a red flag.  "Rational basis" can result in laws with a bad fit but (1) not sex discrimination (2) not blatantly so when they target groups that do not deserve it and (3) not for certain groups that have received extra protections (FN4 etc.) and sexual orientation should fit here.

The best approach here is a "go it slow" one.  Prop 8 is blatantly wrong and however somewhat messy (debatable) it might be, the lower court ruling provides a narrow approach.  Unless one of these other states has its courts rule the state constitution protects SSM (unlikely, given they repeatedly expressly say the opposite) and then by a similar approach (not even a Hawaii legislative discretion rule ... though there the courts never finalized its SSM protection)  took them away, the CA9 ruling need not harm them.  That is, if the circuits involved decide the same way, the USSC taking the case partially halting "percolation" in the courts on the matter.  The USSC didn't step in to block the CASC upholding interracial marriage decades before Loving, even though it partially used federal constitutional law.

Half of the states that do not have SSM seem to realize this and did not submit or join a pro-Prop 8 amicus brief.  Doing so is in fact somewhat counterproductive since it underlines the injustice of their policies and if anything might push us closer to SSM. Demeaning marriage by suggesting it is basically about procreation and a certain type of child-rearing is not likely to be appreciated by many whose lives and marriages do not fit the stereotypical mold.  So, such efforts are helpful in a fashion to equality. 

Happy Valentine's Day. Remember. Marriage is not really a bilateral loyalty for love and so forth, it is there specifically for the children. Unless the children are in the wrong sort of family. The others are lucky also-rans, again, unless they are not the right sex.