Thursday, March 28, 2019

The Burden of Proof in Kennedy's Same-Sex Marriage Opinion

This is a video of the marriage of April DeBoer and Jayne Rowse in Michigan on August 22, 2015.  This marriage was made possible by the decision of the U. S. Supreme Court two months earlier on June 26 in Obergefell v. Hodges, in which the majority of the Justices decided that the Michigan state laws banning same-sex marriage were unconstitutional in violating the 14th Amendment to the Constitution.

You can see in the video that Rowse's clothing at the wedding is masculine in style, while DeBoer's is feminine, so that their lesbian wedding simulates the wedding of husband and wife.

When DeBoer and Rowse first met in 1999, DeBoer had just gone through a divorce, and she had not yet come out to her family and friends.  After they became a couple, they celebrated their union with a commitment ceremony in 2008 attended by family and friends.  They talked about becoming parents and about the possibility that someday they could be legally married.  They first tried to conceive naturally through donated sperm.  DeBoer became pregnant with triplets, but she lost all three in a miscarriage.  They then decided to try adoption.  They adopted four children, and since their marriage, they had adopted one more.  Then, after a nearly fatal automobile accident, they decided they needed to draw up wills and assign custody of their children.  But when they met with a lawyer, they learned that Michigan law allowed lesbians to adopt children, but it prohibited lesbian couples from adopting children jointly.  Only heterosexual couples could legally adopt children jointly.  Of their four children, Nolan, 6, and Jacob, 5, legally belonged to Rowse, while Rylee, 2, and Ryanne, 4, belonged to DeBoer.

In 2012, DeBoer and Rowse filed a lawsuit in a federal district court challenging Michigan's ban on joint adoption by same-sex couples.  District Court Judge Bernard Friedman advised them that they should amend their suit to challenge Michigan's ban on same-sex marriage as unconstitutional in violating the 14th Amendment.  They did that.  In this case of DeBoer v. Snyder, a trial was held in 2014.  Many of the leading proponents and opponents of same-sex marriage testified as witnesses.  Judge Friedman's ruling in the case overturned the state ban on same-sex marriage as unconstitutional.

Remarkably, Judge Friedman would later officiate at their wedding one year later.  Judge Friedman was first appointed a Federal District Judge in 1988 by President Ronald Reagan.

Meanwhile, in Kentucky, Ohio, and Tennessee, there were other suits challenging the constitutionality of state bans on same-sex marriage.  In all of these cases, the District Court ruled in favor of petitioners. But then, on appeal, the Sixth Circuit U.S. Court of Appeals consolidated all of these cases and reversed the rulings and thus upheld the state bans on same-sex marriage.  This decision was appealed to the U.S. Supreme Court.  The Court granted review that was limited to two questions.  The first question presented by the cases from Michigan and Kentucky was whether the 14th Amendment requires states to license same-sex marriages.  The second question presented by the cases from Ohio, Tennessee, and Kentucky was whether a state must recognize a same-sex marriage licensed and performed in another state. Finally, in 2015, these four cases were jointly decided by the Court in Obergefell v. Hodges, striking down state laws banning same-sex marriage as an unconstitutional violation of the 14th Amendment.

Although I have been inclined to agree with the decision in this case, I see two reasons why one might reasonably doubt the persuasiveness of Justice Anthony Kennedy's opinion for the majority in this case.  First, as I have indicated in some previous posts, the question of whether state governments have any rational justification for banning same-sex marriages depends on the question of whether same-sex marriages can secure the same two natural ends secured by heterosexual marriage--conjugal bonding and parental care.  That's why I have identified this as a debate over the natural law of marriage.  The problem is that this debate turns on an empirical question for which there is no conclusive answer because the pertinent evidence is insufficient.

The opponents of same-sex marriage have to prove that when heterosexual parents enter into a legal marriage, this increases the probability of good outcomes for their children; but when homosexual parents enter into a legal marriage, this decreases the probability of good outcomes for their children.  If that were true, that would be a rational justification for a state granting marriage rights to heterosexual parents, but denying marriage rights to homosexual parents, because this would be in the best interests of children.  So the opponents of same-sex marriage must prove that marriage is good for the children of heterosexual parents, but bad for the children of homosexual parents.  When DeBoer and Rowse were married in Michigan as a result of the Obergefell decision, this increased the risk of harm to their children.  It would have been better for these children to be raised by unmarried lesbian parents.

When Mark Regnerus testified as an opponent of same-sex marriage in DeBoer v. Snyder, he shifted the burden of proof to the other side.  "We aren't anywhere near saying there's conclusive evidence" that the outcomes for children of same-sex parents are no different when compared with the children of heterosexual parents.  "Until we get more evidence, we should be skeptical. . . . It's prudent for the state to retain its definition of marriage to one man, one woman."  That's why Regnerus filed an amicus curiae brief in the Obergefell case arguing that the Court should have upheld the constitutionality of state bans on same-sex marriage: as long as the evidence is inconclusive, it is prudent to allow states to refuse to run the risk of legalizing same-sex marriage, which might turn out to be harmful for children.

But notice the implication of this: beginning in the summer of 2015, same-sex parents like DeBoer and Rowse across all of the United States have had the constitutional right to marry; and so as hundreds of thousands of children are raised in same-sex marital households, we will have the evidence--once the children reach young adulthood over the next 20-25 years--to decide whether the outcomes are much worse on average than for heterosexual parenting.  We will then have to decide whether same-sex marriage is more threatening to heterosexual marriage and more harmful to children than the legal regime prior to the Obergefell decision, which allowed easy, no fault divorce, serial monogamy, heterosexual promiscuity, homosexual promiscuity, step-parenting, adoptive parenting, single parenting, unmarried heterosexual parenting, and unmarried homosexual parenting (by a gay father or a lesbian mother).

The first problem with Kennedy's opinion is that he assumed that the evidence conclusively showed that there is "no difference" between heterosexual marriage and same-sex marriage, particularly in the likely outcomes for children.  In fact, I agree with Regnerus that the evidence is inconclusive.  If one sees that, then one must decide which side of the debate bears the burden of proof.  It would have been more honest for Kennedy to have said that he was putting the greater burden of proof on the opponents of same-sex marriage.

The second problem with Kennedy's opinion is that he did not show how the unconstitutionality of banning same-sex marriage conformed to the original meaning of the 14th Amendment.  I will take that up in my next post.

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