Same Sex Marriage Ramblings

Recent decisions in California on Prop 8 and DOMA, as well as passage of bills in Washington and Maryland are reasons for cautious optimism. Referenda by voters have a history of going against same sex marriage legislations, but the courts have almost always found in favor of it.

The fundamental question the courts have considered is whether anti-same sex marriage efforts can withstand "rational basis" scrutiny. Each opinion rendered has extensive discussions and explanations of the relevant impacts of rational basis, as well as relevant precedents. As with many terms that have specific connotations in law, rational basis is often misunderstood.

Basically, rational basis scrutiny looks at the issue of whether a particular piece of legislation, or popular referendum, has a rational basis in isolating a particular group (in this case, same sex couples) and thereby denying them benefits from members of the rest of society who are similarly situated. The idea is that if a legislature or a majority sees fit to withhold benefits from a particular group of citizens (a designated "class"), said withholding must have some rational basis in terms of being reasonable under the law.

Majority or not, legislature or not, laws which discriminate against one class (another word with rather specific connotations in law) in some way must meet certain standards of review, all of which come under the "rational basis scrutiny" heading.

Tradition, history, and precedent do not carry as much weight as other factors. When the government or a group of people attempts to justify discrimination, it is not enough to say, "it has always been this way." With regard to same sex marriage, it certainly holds no water. The usual comparison is miscegenation: the fact that, for centuries, interracial relationships, let alone marriages, were frowned upon for all sorts of reasons, did not prevent the Loving v. Virginia ruling. The fact that dozens of other states had similar laws on the books also did not carry weight.

In the case of same sex marriage, we typically hear three basic arguments: the procreative, the traditional, and the alleged danger to opposite sex marriage one. All three fail the rational basis test, especially when you're talking about using them as a basis for withholding employee health benefits, as in the recent Golinski ruling that struck down Section 3 of DOMA.

The procreative argument basically says that the purpose of marriage is the production and rearing of children in a stable family environment. This fails because there is no data to suggest same sex couples are any less successful at either of these activities. Note that the procreative argument also fails rational basis because neither fertility nor age are factors in whether states recognize marriages as being valid. Both types of couples can and do adopt, use IVF, or import their partners' children from previous marriages.

The traditional argument claims that marriage has always been understood to be between opposite sex partners. This argument fails rational basis because there are plenty of precedents to the contrary, and courts have even gone so far as to call out a certain hypocrisy when the Bible is used as a justification: the Old Testament is replete with examples of polygamy and even includes several marriages which would clearly be incestuous under US law.

The final typical argument is that same sex marriages somehow threaten opposite sex marriage, either by degrading the institution or by diluting its social importance. This argument is even flimsier then the tradition one: claiming that allowing same sex couples to marry somehow affects the integrity of preexisting opposite sex marriages is universally laughed out of court. Courts often point to divorce rates as evidence of how allegedly important marriage is to our society; if it was so vital that any given pair of people, same sex or opposite sex, stay married for the rest of their lives, surely states or their majorities would have long ago made it much more difficult to divorce.

There are certainly other issues that have arisen in the past, and will come up in the future. But my point here is to sketch a brief outline of rational basis, and the ways in which it is generally applied to same sex marriage prohibitions or limitations.

The bottom line is that if you're going to craft a voter referendum against same sex marriage, take the time to hire some legal experts to write language that actually has the slightest chance in he'll of withstanding rational basis scrutiny.

Step one: stop relying on the same old arguments that have failed multiple times in the past. Come up with something new... something that might be slightly persuasive.

Oh wait, that's right! Here's me writing about reason, and rationality... I'd nearly forgotten... Arguments against same sex marriage and the equal provision of rights and benefits can't be persuasive, rooted as they are in intolerance, bigotry, and hypocritical religious nonsense that has no place in our system of laws.