Monday, October 05, 2015

Ryan Anderson's Self-Contradictory and Unconstitutional Argument Against Same-Sex Marriage

"The government should not be in the business of affirming our love lives but should leave consenting adults free to live and love as they choose."

That's what Ryan Anderson says in his new book--Truth Overruled: The Future of Marriage and Religious Freedom (Regnery Publishing, 2015)--which is a critique of the Supreme Court's decision in Obergefell v. Hodges declaring that same-sex marriage is a constitutional right.

This remark by Anderson suggests that he would agree with my argument that marriage should be privatized in that marriage would be a purely private contract, and government would no longer issue marriage licenses.  But then he contradicts this by arguing that government should give marriage licenses only to opposite-sex couples.  Not only does he contradict himself, he also contradicts the equal protection clause of the Fourteenth Amendment of the Constitution by denying same-sex couples the "equal protection of the laws."

Here's the whole passage in which the above sentence appears (34-35):

“Defining marriage as the union of a husband and a wife does not violate anyone’s liberty.  If the government rightly recognizes, protects, and promotes marriage as the ideal institution for childbearing and childrearing, adults remain perfectly free to make choices about their relationships.  A redefinition by the state of the unique institution of marriage is not necessary for citizens to live in another relationship of their choosing.  As we’ll see in chapter 3, Justice Clarence Thomas devotes his entire dissenting opinion in Obergefell to making this point."

“The government should not be in the business of affirming our love lives but should leave consenting adults free to live and love as they choose. Despite the increasingly heated rhetoric from the advocates of ‘marriage equality,’ there was no ban on same-sex marriage in the decade before Obergefell anywhere in the United States.  In all fifty states, two persons of the same sex could live together, join a religious community that would bless their relationship, and choose from a multitude of employers that offered them the same benefits available to married couples.  Chief Justice Roberts highlighted this in his dissent: ‘[T]he marriage laws at issue here involve no governmental intrusion.  They create no crime and impose no punishment.  Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit.’ No government license or sanction was necessary for any of this.’”

Thus, Anderson supports freedom for same-sex couples to marry and care for their children, despite his claim that this is harmful to children (62, 72, 90-91, 104, 125, 155)!!  For Anderson, the choice of same-sex couples to marry and care for children is a purely private decision that belongs within the constitutionally protected realm of liberty (34, 125).

Anderson's only point of disagreement with the privatization of marriage position is that he wants there to be governmental marriage licensing to perform the “teaching function” of teaching that children have the right to live with both their biological father and biological mother, and that the absence of either or both of the biological parents is harmful to children (39-41, 125, 160-62).  According to Anderson, the law teaches this when it issues marriage licenses to opposite-sex couples and denies marriage licenses to same-sex couples.  The marriages of same-sex couples are legally permitted, as a constitutional liberty, but they are not legally recognized with a marriage license.

But in those states where marriage licenses were denied to same-sex couples, this was not the lesson the law was teaching!  When opposite sex couples wanted to create a family in which the children would not be living with their biological father and mother, these states would give them a marriage license.  But when same-sex couples wanted to do this, these states denied them a marriage license.  This violates the equal protection clause because it’s a legal discrimination that has no rational relationship to the needs of children.

 Anderson ignores the “original meaning” of “equal protection."  To give marriage licenses to heterosexual couples but not to homosexual couples violates equal protection unless there is some rational justification for this distinction.  If the rational justification is that children are better off when both their biological mother and biological father care for them, then the states should prohibit same-sex couples, single parents, and stepparents from child care.  If the risk to children is as a rule no greater with a same-sex couple than with a heterosexual single parent or heterosexual stepparents, as Anderson indicates (150-162), then denying a marriage license to the same-sex couple violates equal protection because there is no rational justification for this discrimination between homosexuals and heterosexuals.  (Here I agree with William Eskridge--in his amicus curiae brief and in his recent article in the Cato Supreme Court Review--that the original meaning of equal protection would support the ruling in Obergefell but not Kennedy's reasoning for that ruling, which ignored original meaning.)

 If the rational justification for denying marriage licenses to same-sex couples but not opposite-sex couples is that the state wants to promote families in which children are under the care of both their mother and their father, then the state should establish covenant marriage laws like those in Louisiana, Arkansas, and Arizona.  Those couples with a covenant marriage license would be denied any right to a divorce except when they prove that one of the spouses is guilty of abuse, abandonment, or adultery.  And, indeed, Anderson says that this has always been the best marriage law for promoting “real marriage” (39-41).

In fact, Anderson says, "the collapse of our marriage culture" was caused not by same-sex marriage but by heterosexual marriage with no-fault divorce.  "We have heterosexuals, not gays and lesbians, to blame for decades of marital instability, with the consequent harm to women, to children, and especially to the poor.  But we can expect same-sex marriage, by ratifying the adult-cenric vision of marriage, to accelerate the collapse" (162).  If that is true, and state governments want to promote the ideal of "real marriage," then it would be rational for states to give "real marriage" licenses only to heterosexual couples who enter covenant marriages and give up no-fault divorce rights.

Under this system, couples might be free to choose a marriage license that allowed for “no-fault divorce,” but the constitutional standard of equal protection would require that this kind of marriage license would have to be available for same-sex couples as well as opposite-sex couples.  State law might identify the covenant marriage license as "real marriage" and the no-fault divorce marriage license as "romantic companionship," which would teach a clear lesson about the superiority of the one over the other.

A reasonable alternative to this would be to totally privatize marriage, in that government would no longer issue marriage licenses, and marriage would become a purely private contractual arrangement.  Couples could then choose between "real marriage" contracts in which divorce would be difficult and "romantic companionship" contracts in which divorce would be easy.  In fact, Anderson accepts a legal system in which marriage has been largely privatized, because “the government should not be in the business of affirming our love lives but should leave consenting adults free to live and love as they choose.”  But then Anderson contradicts himself by saying that government should be in the business of affirming the love lives of opposite-sex couples by giving them marriage licenses that are denied to same-sex couples, even when the likelihood of harm to their children is as great for the opposite-sex couples as it is for the same-sex couples.  This is not only self-contradictory but also contradictory to the original meaning of the equal protection clause of the Fourteenth Amendment.

If "real marriage" is rooted in natural law, and thus is not an artificial creation of positive law, then such marriage will stand on its own natural ground in the natural inclinations of human beings, without any need for governmental licensing that violates the Constitution's equal protection clause.


W. Bond said...

A few questions about how the government’s non-recognition of marriage/private contracts would work legally:

What would be the nature of these private contracts, i.e. what are the benefits associated with such contracting? Next-of-kin/spousal status for healthcare, inheritance, immigration, taxes, common-property, etc.?

Would the government (state or federal?) still have to pass laws regarding who can sign these contracts with whom? Age of consent, number of people involved? Under what legal/moral principle would polygamy by these contracts be excluded? If not excluded, is there a maximum number, or any disallowed combinations? Is a current or intended sexual relationship a necessary part of the contract? How to prevent abuse for tax/property purposes?

A wealthy man in Florida who was found guilty of DUI-manslaughter in the last few years attempted to “adopt” his girlfriend for property protection purposes. This was ultimately rejected as fraudulent by the courts, which, of course, required that the court make a judgement regarding the nature of the family.

Since marriage and the family seem to exist chronologically and ontologically prior to the positive law, can we avoid having a legal system that makes some degree of normative judgements about those relationships in some very specific legal cases?

I don’t intend these questions be read as rhetorically. Are you aware of any libertarian legal scholar who has written on this idea and addressed these kind of questions?

Larry Arnhart said...

I admit that I have not thought through the details for how this would be done. Tamara Metz's book UNTYING THE KNOT might be one place to go for such details.

We have already privatized many marriages--prior to OBERGEFELL--in that all 50 states have permitted same-sex couples to marry but without legal marriage licenses. We have also permitted polygamists to marry polygamously as long as they don't seek marriage licenses for more than one wife.

If we can privatize and disestablish religion, why can't we privatize and disestablish marriage? If there are legal privileges for religious groups--such as tax exemption--then we have to have legal rules for identifying such groups. Similarly, if there are legal privileges for married people, then we will have to have legal rules for identifying married people. But, still, the formation of a religious group and membership in that group is a private act. Similarly, the formation of a marriage can be a private act.

W. Bond said...

Thanks, as always. I'll look at the Metz book.

CJColucci said...

I don't know what it means to say that pre-Oberkfell same sex couples could "marry" in all 50 states but without legal marriage licenses. They could shack up and, after Lawrence v. Texas, have sex. They could throw a party with a cake, if someone would bake it for them, and have pictures taken, if someone was willing to take them, and they could call themselves married, but nobody outside of the relationship had to recognize the relationship. The putative spouse had no standing to make medical decisions for an incompetent putative spouse. The couple could be denied the right to adopt. Their tax status would be as single individuals. One could, in theory, work all this out without having the state involved in approving the establishment of the marriage, but there would still have to be some some rule for recognizing when such a relationship existed. It's just easier to plug same-sex couples into the existing marriage system than to re-create one from scratch.