Saturday, February 26, 2011

Has the Obama admininstration endorsed Big Love?

The barbarians are no longer at the gates: they have entered the city and taken over all of its institutions.

It was reported earlier this week that the Obama administration's Justice Department would no longer defend a key section of the Defense of Marriage Act (DOMA). What are the logical implications of this?

According to Francis Beckwith (a friend and frequent commenter on this blog), if the position is taken to its jurisprudential conclusion it is not only advocates of gay "marriage" who will benefit from the reasoning employed by the Obama administration, but Mormon fundamentalists like Warren Jeffs, who believe you must have at least three wives in order to get to Heaven.

Sec. 3 of DOMA not only addresses the genders requisite for marriage but the requisite number that constitutes it:
There is a number limitation as well. So, if the entirety of sec. 3 violates the 5th amendment and thus does not withstand heightened scrutiny, it would seem to be as unconstitutional to limit marriage to two as it would be to limit it to opposite genders, since there are ”sexual minorities” who would welcome such a judicial discarding of capricious numberism. (The plight of the polyamorous bisexual comes immediately to mind). I don’t know if the Obama people thought this through, but the implication of General Holder’s claim is not only that the constitution requires genderless marriage but it requires that a limitation of marriage to two must withstand heightened scrutiny as well. This means that the 19th century federal statutes that made polygamy illegal in the territories are probably unconstitutional.
So ladies, get yourselves a pastel prairie dress and do your hair up in loose braids. The Obama marriage policy has been unveiled.

43 comments:

Thomas said...

I posted this on Beckwith's blog, but I'll post it here too:

I don't get the argument. The equal protection argument is used against DOMA insofar as it makes a distinction based on gender. Under the case law, this would invoke intermediate scrutiny. Polygamous marriages are not prohibited on the basis of gender, but on the number of partners. I don't see how equal protection comes up here in any way than under rational basis review.

I would think the argument for polygamy would come under the due process clause supposedly protecting rights inherent in a scheme of ordered liberty, which doesn't seem to be Holder's argument at all.

There is a real argument that the Supreme Court's jurisprudence under the Due Process clause can't distinguish between prohibiting gay marriage and polygamy (since Kennedy seemed to rule out that any moral purpose fails review under the Due Process clause). I just don't see how the same argument works for the equal protection clause.

KyCobb said...

Beckwith has made a silly argument, but I wouldn't be surprised if it spreads through the right-wing blogosphere as so many silly arguments do. Statutes often have both constitutional and unconstitutional parts. Sometimes the unconstitutional part is severable and the rest of the statute can be preserved, and sometimes its inseverable and the entire statute has to be stricken, which does not mean that the law couldn't be rewritten to remove the unconstitutional parts and enforce the rest. There isn't anything unconstitutional about limiting a marriage to two partners, so even if section 3 is stricken, and some state decides to legalize polygamy, section 3 could be rewritten to limit marriages to two people and it would be perfectly constitutional.

Art said...

"..who believe you must have at least three wives in order to get to Heaven."

Hey! Some good news for Newt!

Francis J. Beckwith said...

I probably was not clear in my original entry. I was tying the number requirement to a sexual orientation, polyamory. Remember, Holder/Obama is claiming that sexual orientation requires heightened scrutiny, and thus the current definition of marriage violates the 5th Amendment equal protection clause since it can't pass heightened scrutiny (in their judgment). But polyamory too is a sexual orientation. But the number requirement excludes them from marriage. Thus, heightened scrutiny kicks in and the number limitation violates the 5th amendment as well.

If they respond with, "but marriage means 2 people," how is that any less arbitrary than the male-female requirement (givent their premises)?

So, the most important question is "What is marriage?" Once we nail that down, we can then explain why or why not certain characteristics are either essential or accidental to its nature.

Ky is perfectly correct that an unconstitutional part of law may be severable. But he did not read me carefully: since at least one type of sexual orientation (polyamory) challenges the number requirement, then the number requirement must be assessed under heightened scrutiny. So, you can't sever the number part if you want to retain the sexual orientation as heightened scrutiny argument.

Francis J. Beckwith said...

To Tom and KyCobb.

I was tying the number requirement to a sexual orientation, polyamory. Remember, Holder/Obama is claiming that sexual orientation requires heightened scrutiny, and thus the current definition of marriage violates the 5th Amendment equal protection clause since it can't pass heightened scrutiny (in their judgment). But polyamory too is a sexual orientation. But the number requirement excludes them from marriage. Thus, heightened scrutiny kicks in and the number limitation violates the 5th amendment as well.

So, the severability reply by KyCobb is not relevant to my argument, since if heightened scrutiny applies to sexual orientation, it would not matter if the sexual orientation entails a particular sort of partner or a particular number of partners.

KyCobb said...

Francis,

Even if polyamory was considered by the court as a sexual orientation and subject to heightened scrutiny, I believe a law banning it would pass constitutional muster because there are good reasons to limit marriage to two people. Subjecting a law to heightened scrutiny does not mean it is automatically unconstitutional.

Francis J. Beckwith said...

KyCobb writes: "Even if polyamory was considered by the court as a sexual orientation and subject to heightened scrutiny, I believe a law banning it would pass constitutional muster because there are good reasons to limit marriage to two people. Subjecting a law to heightened scrutiny does not mean it is automatically unconstitutional."

You're correct in your last sentence. For in the case of gender separate bathrooms pass heightened scrutiny. It is based on fundamental differences between men and women.

But in terms of polyamory, what good reasons would there be for not allowing such marriages to take place?

KyCobb said...

Francis,

Just for starters, dividing up property and setting alimony in a divorce can be very messy. Now imagine how much messier a three or four way divorce would be. Modern American marriage is supposed to be an equal partnership, and the first wife's interests are likely to be compromised by the addition of a second and third wife.

Thomas said...

I misunderstood what Francis was saying at first. If the Obama administration were arguing that DOMA is unconstitutional because it violates equal protection by using a legal category (spouse) that differentiates on the basis of gender, then there's no risk that the polygamous relationships would enjoy the same degree of protection under the law.

However, what Holder is actually saying is that sexual orientation should enjoy heightened protection under the equal protection test. If that's the case, then, as Beckwith points out, any sexual orientation enjoys heightened protection.

This argument puts the Supreme Court in an interesting position. They could either hold that the moral status of an orientation is not a sufficient reason for making a distinction, but this would mean that a state could not discriminate against the polyamorous.

Or the Supreme Court could say that moral distinctions must be made when it comes to sexual orientation, in which case they could make arguments like KyCobb did--that polyamory violates our moral notion of equality. But in this case, the courts would effectively be judging the moral rationale Congress adopted by the courts' own moral beliefs.

KyCobb said...

Thomas,

Protecting the legitimate economic interests of women is a perfectly acceptable secular basis for state regulation. Denying rights to homosexuals because many people have a theological belief that God disapproves of homosexuality is not. That is why prohibiting polygamy is constitutional and prohibiting same-sex marriage isn't.

Lee said...

Where does the Constitution say that gay marriage is a right?

Lee said...

Another implication of the administration's decision is that they get to cherry-pick which laws are enforced. We have already seen this in practice (e.g., DOJ's dropping the voter intimidation case against the Black Panthers). However, now we see it articulated as principle.

How will liberals like it when a future Republican administration declines to enforce the school prayer ban?

KyCobb said...

Lee,

The ACLU and their private citizen clients enforce the school prayer ban. The Administration isn't doing anything unprecedented; obsolete or unconstitutional laws are frequently not enforced or defended.

Lee said...

I don't think the ACLU has any U.S. marshalls.

So you're fine with the principle that an administration is allowed to not enforce any law it doesn't like?

KyCobb said...

Lee,

The Constitution requires that everyone is entitled to equal protection and due process of law, and that the Government can't make laws respecting an establishment of religion. That's why the government can't single out gay couples to deny them rights afforded the rest of us just because many people have a religious belief that God disapproves of them.

KyCobb said...

Lee,

A GOP Administration can't direct US Marshalls to not enforce court orders. The Administration has decided not to defend DOMA because they believe its unconstitutional, not because they don't "like" it. I would assume if Congress passed a law requiring pastors to perform same-sex marriages, you wouldn't mind if the Administration declined to defend that.

Lee said...

So you are saying the Equal Protection clause is what confers the right of gay marriage?

Do you think equal protection under the law means what the writers of the amendment in 1868 intended, and what the states understood themselves to be ratifying? Or do you think its meaning should be based on whatever people in 2011 can construe from it?

And do you think the writers of the 14th amendment believed that marriage evolved arbitrarily with regard to sex?

Lee said...
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Lee said...
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Lee said...

The Administration has decided not to defend DOMA because they believe its unconstitutional, not because they don't "like" it.

So we have a situation where the Administration decides what is unconstitutional. The law says one thing, the administration another... poof! The administration wins.

Contrast that with the fact that a federal judge ruled Obamacare to be unconstitutional, but the administration expects the states to press forward with implementing it regardless.

You don't have any problems here with the blurring of the separation of powers?

Lee said...
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Lee said...

Apologies for my struggles with Blogger this morning.

Francis J. Beckwith said...
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KyCobb said...

Lee,

I don't have a problem with separation of powers. Congress can step in and defend DOMA if it wants, in fact, I fully expect that the House will do so. In regards to Health Care Reform, I believe one Governor has already announced he won't implement, but many of the states which have sued to block it are also accepting federal money to implement it. Keep in mind several judges have affirmed the Reform Act, and only one has struck it entirely.

KyCobb said...

Lee,

I imagine 19th century men never imagined some states would legalize same-sex marriage. Now they have and the question is whether the federal government can refuse to recognize some marriages solely due to religious prejudice. Since the drafters of the Constitution and the Amendments never envisioned this scenario, we can only compare it to something they might have considered. What if the federal government enacted a law refusing to recognize marriages performed by Catholic priests ?

Thomas Aquinas said...

KyCobb writes:

"Now they have and the question is whether the federal government can refuse to recognize some marriages solely due to religious prejudice."

What religious prejudice is that?

But in order to know that there is a prejudice in relation to marriage, we have to first know what marriage is? What is it, then?

KyCobb said...

Thomas,

The prejudice against homosexuality.

Today, Marriage is a legal arrangement between two people recognized by a state which gives them certain rights and responsibilities relative to each other. Since each state has different laws, marriage confers a different bundle of rights and responsibilities in each state. Who may get married varies by state as well, with differing legal ages and the allowance by some states of marriage between people of the same sex.

Throughout most of history, marriage was usually the transference of custody of a woman or girl from a male relative to another man. High status or rich men frequently had numerous wives. On occasion in some cultures, same-sex unions were also recognized.

Thomas said...

"Protecting the legitimate economic interests of women is a perfectly acceptable secular basis for state regulation."

We protect the interests of women out of a conviction of their moral worth. That's a moral belief.

Lee said...

> I imagine 19th century men never imagined some states would legalize same-sex marriage.

So were they just bigots who saw the world through their religion-colored glasses?

Or were they simply people who held to a definition of marriage that is now being contradicted and undermined?

> Now they have and the question is whether the federal government can refuse to recognize some marriages solely due to religious prejudice.

Makes me wonder if such a thing as non-religious or anti-religious prejudice is even theoretically possible. Be advised, though, that the folks who wrote our Constitution were mostly Christians and a couple of Deists. Maybe the entire document, in fact, is a product of religious prejudice. Perhaps a liberal judge should strike the whole thing down. Then what would happen to Constitutional rights?

> Since the drafters of the Constitution and the Amendments never envisioned this scenario, we can only compare it to something they might have considered.

Or we could argue, this is not what the framers intended, this is not what the states thought they were ratifying, ergo there is no such right.

> What if the federal government enacted a law refusing to recognize marriages performed by Catholic priests ?

I'm not the one arguing essentially that federal powers are unconstrained. I was asking you, how would you like it if the essentially unlimited federal power being wielded by liberals was being exercises for conservative ends?

KyCobb said...

Lee,

I think you are confused about who is exercising federal power and who isn't. DOMA is an unprecedented exercise of federal power in which the federal government is denying the validity of marriages authorized by state law. The administration is declining to defend this effort by the federal government to tell the states what their marriage laws should be.

Lee said...

For the record, I do think that it is unconstitutional for Congress to pass such a law. But I don't think it is invalid because, buried in the emanations of penumbras, there is some Constitutional right to gay marriage. I think it is invalid because it is unconstitutional, period: marriage and marriage "rights" are unspecified in the Constitution.

But "unprecedented"? Please.

And I also think that, until the Supreme Court strikes that law down as unconstitutional, it is the law of the land and needs to be enforced by the executive branch.

KyCobb said...

Lee,

"marriage and marriage "rights" are unspecified in the Constitution."

I think we actually agree on something. The federal government doesn't have to provide benefits or recognition to marriages at all. There is no right to any kind of legally recognized marriage in the Constitution, but there is a right to equal protection and substantive due process. The states decide who can marry under their laws, so when the federal government says it will recognize some of those marriages but not all of them, its on shaky constitutional ground.

Lee said...

> There is no right to any kind of legally recognized marriage in the Constitution, but there is a right to equal protection and substantive due process.

As I said earlier, under the original definition of marriage, there is equal protection. This is not about equal protection. This is about changing age-old definitions and then pretending it results in unequal protection.

Gays have as much right to marry as non-gays, provided they can talk someone of the opposite sex into it. You're not talking about equal protection of the right to partake in marriage; you're talking about equal protection of some alleged right to a set of preferences.

KyCobb said...

Lee,

You may wish that gays didn't have the right to same-sex marriage, but whether you like it or not such marriages are now legal in several states. You don't get to decide what is a real marriage and the Constitution does not define what is a real marriage, state laws define what a marriage is. The constitutional question is whether the federal government has legitimate grounds for conferring benefits on some state sanctioned marriages but not others.

Lee said...

> You may wish that gays didn't have the right to same-sex marriage, but whether you like it or not such marriages are now legal in several states.

Is that the "might makes right" argument I hear stumbling over the furniture in the background?

> You don't get to decide what is a real marriage and the Constitution does not define what is a real marriage, state laws define what a marriage is.

Somebody gets to decide, whether it's me, the voters (when the courts will let them), or the courts (when they won't).

But I have a question: you say you're for states rights. So then, if the U.S. Supreme Court overrules a states decision not to allow gay marriage, are you for that?

Most liberals are for states rights only when the outcome favors liberal policies. Just want to see how you stand.

> The constitutional question is whether the federal government has legitimate grounds for conferring benefits on some state sanctioned marriages but not others.

In effect, overruling the states' decisions.

Head you win, tails I lose.

KyCobb said...

Lee,

"But I have a question: you say you're for states rights. So then, if the U.S. Supreme Court overrules a states decision not to allow gay marriage, are you for that?"

Farther up the thread, you were worried that the Administration was usurping the role of the Court in deciding constitutional issues, so do you support the Court making this decision or not? As far as I'm concerned, I wouldn't have a problem with states creating the status of civil union if it wants to preserve "marriage" for heterosexuals; then its just a matter of semantics. States are free to make a huge range of decisions, but if the Court can't reverse state laws which violate the Constitution, then its just a dead letter.

Lee said...

So you are not exactly fine with the states deciding the issue, then, are you?

You are fine with the states deciding to agree with you.

The states are free to establish gay marriage, and the federal government is free to force them if they don't.

KyCobb said...

Lee,

I think the Court should have the authority to invalidate unconstitutional state laws. If the Prop 8 case or something like it goes to the Court, it looks like Kennedy will make the decision. I won't lose any sleep over it one way or the other, though I think gays ought to be able to at least have civil unions.

I take it that, since you think that the Constitution incorporates not merely the stated legal principles, but also the unstated social prejudices of the 18th and 19th century white men who drafted its provisions, that you think Brown v. Board of Education was wrongly decided, and states should be allowed to require separate facilities for the races, and to prohibit interracial marriage?

Lee said...

If you want to change the Constitution, we have something called an amendment process -- using it, you fix the prejudices of the past and can even pass your own 21st century societal prejudices down to our great-grandchildren. The beauty of this process is that not only can you make something that was pulled out of thin air into a Constitutional right, but you can do so in a manner that the Founding Fathers would have approved of. It's also a nice, democratic (small "d") process in that it requires more popular support than simply having a couple of judges overrule everyone else. Sounds like a win-win.

Regarding the Brown decision, I'm pretty sure the framers of the 14th amendment had equal protection under the law for black people in mind when they wrote it.

I'm fine with the idea of judicial review. I'm also fine with impeaching judges who legislate from the bench.

KyCobb said...

Lee,

"Regarding the Brown decision, I'm pretty sure the framers of the 14th amendment had equal protection under the law for black people in mind when they wrote it."

But it doesn't say it applies to black people but not homosexuals, does it?

Lee said...

What rights do black people in this country enjoy that homosexuals do not?

KyCobb said...

Lee,

Apparently equal protection of the law, since DOMA discriminates against state sanctioned same-sex marriages.

Lee said...

Does DOMA permit black gay marriage?