Gay Marriage and Discrimination
By Anthony | July 16th, 2006 | 1:01 amA long discussion has developed at Ed Cone’s blog, initially focusing on the recent Kindley brouhaha and sidetracking into issues surrounding gay marriage.
In the comments, Sam Spagnola argues that homosexuals are not being discriminated against with regards to marriage, because they can indeed get married – they simply need to marry someone of the opposite sex:
The fact is that a gay man has the same rights as a straight man to get married. Thus he is not denied equal protection. He just can’t marry another man
The problem with this is that such an arrangement renders those benefits meaningless and useless to the gay person. Consider some of the benefits in question, as outlined in a comment by Roch:
- The right to make medical decisions for a partner in an emergency
- The right to visit a partner confined to a hospital
- Cannot be compelled to testify against a partner in a court of law
- Automatic inheritence without a will
- The right to live together in a nursing home
- Receipt of Social Security benefits upon a partner’s death
- Receipt of veteran’s benefits upon a partner’s death
- Copyright renewal rights granted to surviving partner
In taking advantage of those benefits, people are going to want them to involve the person they love, care about, and have decided to commit their life to. Most of them are useless if they can’t be applied to that person. Heterosexuals can commit themselves to a person they love, begin a family with that person, and convey all those benefits to that person. There is no way for a homosexual to share those benefits with a person whom they love and trust enough to commit their life to. For them there is no meaningful way to make use of those benefits.
Sam gives some further examples of how he thinks this is not discrimination:
Can a straight person marry a person of the same sex (for benefits, or any other reason?: NO.
Can a gay person marry a person of the same sex (for benefits, or any other reason?: NO.
They are both treated equally. Neither can marry a person of the same sex for any reason. Equal protection violations occur when persons similarly situated are treated differently. For example, anti-miscegenation laws that prevented interracial marriages violated equal protection. Why? Because those laws allowed a white man to marry a white woman, but did not allow a black man to marry a white woman. Both were similarly situated (members of the same sex) but one had a right that the other did not.
However, this just appears to be a word game with the phrasing. Consider this rephrasing of his anti-miscegenation example: Under anti-miscegenation laws a white man can marry a woman of the same race as himself, and a black man can also marry a woman of the same race as himself. We’ve just edited out the discrimination by changing the phrasing.
Can a woman marry a man? Yes. Can a man marry a man? No. Or more to the point, can a heterosexual marry the person he or she loves, trusts, and is committed to? Yes. Can a homosexual? No.
(To head off one potential criticism of that last phrasing: Someone might say that this reasoning would allow a pedophile to marry a child, since that may be the person he loves. However, as pointed out elsewhere, this is a completely different case since a child is not capable of giving meaningful consent.)
Finally, as more of an intuitive counter to Sam’s line of reasoning, I offer this hypothetical situation:
Imagine that Congress actually goes through with it and passes a Constitutional amendment defining marriage at the Federal level. But for some reason – maybe a slip of the pen, or maybe it turns out that every member of Congress is a closeted homosexual – they actually define marriage as only being between two men, or two women. All opposite sex marriages are invalid and illegal as far as the Federal government is concerned. Now your wife is no longer able to make medical decisions for you, or guaranteed the right to visit you in the hospital, or receive your social security benefits. Or you are no longer able to marry your fiancee and share those benefits with her. However, you can go ahead and marry a man (or a woman, if you are a woman) and share those benefits with him instead. Is that acceptable to you?
July 16th, 2006 at 2:46 am
What if you aren’t gay, should you still be able to marry your buddy because he doesn’t have insurance? Or what about your sister, or have five wives? Once you establish this as a “right”, on what basis will you prevent those other acts from occuring?
I’ll say it again- the Loving case involved racial discrimination, an area that is subject to strict scrutiny, and the Court determined the equal protection violation occured because the statue was created for the purpose of discrimination- it was intended to keep the white race pure. That statute also left open the options for blacks to marry any other non-black except for whites. In some ways, it was discriminatory to whites by preventing them from marrying outside of their race, while blacks still had many options outside of their race except whites. The Court held that such a rule furthered white racial superiority, and that because blacks and whites were similarly situated, such a ban violated equal protection because it gave one class rights not shared by the other- the right to marry a white person.
A better way to look at is this: can a black man marry a white woman? Yes
Can a white man marry a black woman?
Can a black man marry a black man? No.
Can a white man marry a white man? No.
If the rule was that a black man could marry another black man, but a white man could not, or vice versa, your case would apply because they are similarly situated people with different rules that apply.
I left a lengthy note to Roch101 regarding his last post on his blog Greensboro101, but when I went to post it, it said they weren’t accepting posts. Suffice it to say, there is a history of “similarly situated” people being a standard in equal protection cases despite what he says. See Michael M. v. Superior Court: “The Constitution is violated when government, state or federal, invidiously classifies similarly situated people on the basis of the immutable characteristics with which they were [p478] born. Thus, detrimental racial classifications by government always violate the Constitution, for the simple reason that, so far as the Constitution is concerned, people of different races are always similarly situated.”
Further read: “”The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality.” (Rostker v. Goldberg, 453 U.S. 57 (1981). Roch is just wrong.
He is also wrong on the application of the cases he mentioned contradicting my equal protection analysis.
The Strauder case involved not only discrimination in the defendant’s right to have black jurors as options, but also the right of a black person to serve on a jury. Again, similarly situated as white person (a credo that has been established by courts already in equal protection cases), but excluded from certain rights on the basis of skin color. Gays have never been considered a suspect class.
The Harper case he cites involved the right to vote, and equal protection violation was found because the poll tax would disenfranchise many who could not afford to pay it. Thus, they were not treated equally in their exercise of a fundamental right to vote because they could not afford the fee. Essentially, this amounted to “some people get to vote, other’s dont if they can’t afford it”. The Court struck that down as not having a rational basis since income was not essential to voting. Therefore, this case does not apply.
Lawrence v. Texas was decided on privacy grounds, not equal protection. In fact, Justice O’Connor said in that case: “That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”
In Baker v. Nelson, an equal protection challenge to a ban on gay marriage, the Minnesota Supreme Court ruled that the U.S. Supreme Court’s ruling in Loving v. Virginia, 388 U.S. 1 (1967)—in which the Court ruled that a statute probiting interracial marriages was unconstitutional—was not applicable to the Baker case. The Minnesota Supreme Court acknowledged the Fourteenth Amendment prohibits some state restrictions upon the right to marry, but that “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex”. This case was appealed to the U.S. Supreme Court dismissed the case “for want of a substantial federal question. Unlike a denial of certiorari, a dismissal for want of a substantial federal question constitutes a decision on the merits of the case, and as such, is binding precedent on all lower Federal Courts. Thus, Baker v. Nelson appears to establish that the Loving analysis (to which you and others have referred) does not apply to gay marriage, and also appears to affirm that an equal protection challenge to gay marriage will fail.
Finally, his gender discrimination argument has been roundly rejected using principles of U.S. Constitutional law in Hernandes v. Robles two weeks ago:
“By limiting marriage to opposite-sex couples, New York is not engaging in sex discrimination. The limitation does not put men and women in different classes, and give one class a benefit not given to the other. Women and men are treated alike — they are permitted to marry people of the opposite sex, but not people of their own sex. This is not the kind of sham equality that the Supreme Court confronted in Loving; the statute there, prohibiting black and white people from marrying each other, was in substance anti-black legislation. Plaintiffs do not argue here that the legislation they challenge is designed to subordinate either men to women or women to men as a class.”
That sounds more like what I have been saying as opposed to those who argue that my equal protection arguments are somehow novel. They are in fact well rooted in existing law.
I did not write those court opinions. If someone could tell me how you could write a law or establish a right based on equal protection, consent between adults, or fundamental rights that would also not have the effect of legalizing polygamy and incestuous marriages, or even the aforementioned “buddy” marriages between heterosexuals, I would be interested in how this could be accomplished. If it is a right about choosing who you marry, and this right is established, how could you ban these other forms of marriage and maintain consistency?
In a democracy, we all have the right to pass legislation that is approved by the majority and to amend the constitution to reflect the will of the majority. Democracy is about majorities, that’s why we vote for people to take action. The constitution is there to guarantee certain rights of the individual against the majority. However, ultimately the majority still has the power by having the ability to amend the constitution. Laws get passed all the time I don’t like, but all I can do is vote or live with it. If you don’t like the system, you don’t appreciate democracy. Otherwise, the option is to let each person define their own law to suit their lifestyle. That is anarchy.
Finally, to address Ed’s last comments- he is correct, he did not mention courts, it was Dave. Apologies to Ed. He hasn’t called me names, so I’m wrong there too.
And to Patrick- if you all really want to know what I think- here it is: 1) I don’t support gay marriage because I do believe it will lead to a number of other challenges as I’ve mentioned before. On the other hand, I recognize that marriage is a stabilizing force that could have some substantial benefits for homosexuals (but buyer beware- with marriage comes many responsibilities and downsides). I also am ambivilent about gay parents raising children because I don’t think we know enough about the effects yet. That is really a separate issue about adoption. I do agree that a child is better off in a stable home whether gay or straight than in a bad home. I know several gay couples that have “adopted” children that seem to do very well, but I don’t know whether there will be any long term effects. Most states don’t allow gay adoptions- so the child is often the biological child of only one partner. This could be a nasty problem in child custody cases- which may not be in the child’s best interest. And on a less serious note, marriage is the leading cause of divorce in the United States.
I don’t judge people because they are gay. I don’t discriminate against them because they are gay. Most of the gay people I know are pretty cool, and what they do in private is their own business.
I don’t believe there is a right to gay marriage for all the reasons I stated above and in other posts. I also believe such a right could lead to adverse consequences when other groups of consenting adults seek a similar right. I think more government regulation is bad, and the more the government gets involved in what should be a private “rite”, not “right”, the worse off everyone becomes. The problem is we have all gotten used to all of these government programs that are effected by marriage, and so welcome government involvement if it confers a benefit on us. I think some of these benefits are overplayed by those seeking gay marriage because many of the same goals can be accomplished without marriage whether straight or gay.
I think pedophiles should spend life in prison, but I also recognize that if pedophilia was determined to be a genetic condition, the various state laws about the age of consent could be challenged as violating rights just as some gay marriage have advocated their rights are violated. A state that has a higher age of consent than another could be the target of a challenge, or all the statutes could be challenged on the grounds that these age limits are abitrary in some cases and the result of such age limits discriminates against the pedophiles right to marry or engage in sexual relations with a person of their choosing if their partner was in fact capable of consent. I think the parallel is not novel, and one of the potential problems that Scalia referred to in his dissent in Lawrence v. Texas. This does NOT equate homosexuality with pedophilia as some are suggesting. It only suggests that some of the arguments raised about gay marriage could be used to rationalize legal arguments by pedophiles.
Maybe that’s it. I’m done with Ed on this subject, but if you want to post it there, that’s fine. I have to keep my word that I won’t be posting anymore on this topic on his site because I think I’ve said enough there.
July 16th, 2006 at 8:17 am
“I don’t judge people because they are gay. I don’t discriminate against them because they are gay.”
“…many of the same goals can be accomplished without marriage whether straight or gay.”
Considering these two statements, then you must realize that you have to be willing to offer gay couples something, if you aren’t going to offer them marriage. Not giving them marriage is one thing, but if you want to not give them any way whatsoever to protect their partners and families then that is discrimination. So, Sam… I am just assuming here, but you’d be in favor of “civil unions” correct?
July 16th, 2006 at 8:56 am
[…] Plead the First: “Gay Marriage and Discrimination” […]
July 16th, 2006 at 11:30 am
Sam,
I’m sorry you were unable to post at Greensboro101. Comments are temporarily disabled as I implement some anti-spam measures.
Regarding Michael M. v. Superior Court, that case is so different from what we are discussing as to be irrelevant. In that case, as you know but decline to reveal, the Court rejected an appeal of a California statutory rape law on gender discrimination grounds because it found a compelling public interest in protecting under-age females from pregnancy; because teen pregnancy has “social, medical and economic consequences for both the mother and the child, and the State.” Clearly, denying homosexuals equal access to the rights conferred by marriage is not intended to protect them from social, medical or economic consequences.
In Michael M. v. Superior Court, the Court said that similarly situated persons must ALWAYS be treated equally under the law. It did not say, as you suggest, that equal protection may ONLY apply when people are similarly situation. In fact, the cases I cited at Ed’s blog were examples where the court found that, even though people were not similarly situated, they were still entitled to the equal protection guarantees of the Constitution.
It is interesting, however, that you cite a case that says laws must never discriminate on the basis of immutable characteristics. Unless it can be proven that homosexuality is a choice, the case you cite becomes an argument for the equal application of law for homosexuals. Interesting too that the California legislature overturned the law in question fourteen years ago.
You contradict yourself when you write: “Lawrence v. Texas was decided on privacy grounds, not equal protection. In fact, Justice O’Connor said in that case: ‘That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause…'” It was not decided on equal protection grounds, you write, then nine words later quote O’Conner as saying that the law was unconstitutional under the Equal Protection Clause.
“Finally, his gender discrimination argument has been roundly rejected using principles of U.S. Constitutional law in Hernandes (sic) v. Robles two weeks ago…”
That was a case decided by the New York Court of Appeals.
As for your question of how a law could be written that gives homosexuals the same rights confered by marriage without opening the door to polygamy, take a look at Vermont’s civil unions. Has their been any success to legalize polygamy in Vermont? Furthermore, I think we could count on the kind of reasoning the court used in Michael M. v. Superior Court to deny the “right” to polygamy — that there are victims in polygamy.
“I don’t support gay marriage because I do believe it will lead to a number of other challenges as I’ve mentioned before.” Do you support a method, such as civil unions, that would give homosexuals equal access to the rights and privileges that heterosexual couples enjoy through marriage?
“I also am ambivalent about gay parents raising children because I don’t think we know enough about the effects yet.”
We know that gay people are rasing children already, so any link between gays as parents and a discussion of equal rights for gays is superfluous. We also know that most homosexuals are raised by heterosexual couples. We know the effects of single-parenting on children — they are not as positive. Would you outlaw single parents? And while the studies apparently are small and sparse, the most credible have found that “In terms of most measures of child well-being, such as mental health and cognitive development, the study overall found results ‘at least as positive as children with heterosexual parents,’ says co-author Judith Stacey.”[link]
“I don’t judge people because they are gay.”Maybe you don’t on a personal level. I have no reason to doubt your word. But quite clearly, Sam, you judge them to be less worthy of equal rights under the law.
July 16th, 2006 at 3:31 pm
No, I don’t, and you know what- I don’t have to. That’s like saying if you don’t support the war in Iraq, you are anti-military.
You stated that “similarly situated” was not an equal protection standard and that is clearly wrong. In Lawrence v. Texas, Justice O’Connor stated “the Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons SIMILARLY SITUATED should be treated alike.” She then cited Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985) and Plyler v. Doe, 457 U. S. 202(1982) as support of this statement. So now you have FIVE Supreme Court cases citing this as the standard, yet you argue that I am wrong? If people aren’t similarly situated than how can you determine if they are being treated differently/unfairly? Read the gender discrimination cases if you don’t understand this.
Lawrence was decided on the right to privacy, not equal protection. Justice O’Connors words were in a concurrence, not the opinion of the court. I cited O’Connor only for the proposition that the Court is unlikely to apply equal protection to gay marriage if O’Connor, who at the time was the tiebreaker on the Court indicated equal protection would not likely apply. O’Connor did find an equal protection violation in Lawrence, but the majority did not. In fact, O’Connor’s opinion clearly illustrates the application of “similarly situated”. O’Connor stated that she continued to believe there was no equal protection violation when sodomy was banned entirely (Bowers v. Hardwick) because it applied equally to both sexes. However, she believed there was a violation in Lawrence, because the law banned only homosexual sodomy but not heterosexual sodomy. In the first case, neither gays or straights can engage in sodomy (just like neither gays or straights can marry a person of the same sex). In the second case, heterosexual sodomy was okay, but not homosexual sodomy. In the second case, one class was permitted to commit an act that another could not. In the first case, neither could commit the act. O’Connor wrote “A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law.”
Roch, I’m not going to argue the law with you anymore. It’s getting old having to write a book to explain court decisions and how you are wrong.
You also say “But quite clearly, Sam, you judge them to be less worthy of equal rights under the law”. No, not clearly. Such a statement is true only if I agree with your opinion as to what constitutes a right. If I believe life begins at conception, and you don’t and you support abortion “rights”, I could say you “clearly believe children are less worthy of equal rights under the law”. Or if I said I didn’t support affirmative action as it applies to college admissions, and you said you did, I could say you “clearly believe whites are less worthy of equal rights under the law”. You get my point. You are not the custodian of what rights exist and don’t exist, therefore you have no place to qualify what I think. If I think they are “less worthy of equal rights under the law”, it is only by your standard and others that agree with you. There’s nothing wrong with that, but you say it as if your opinion on rights is the final authority.
Ed- nothing against your blog- I just got tired of signing off, then getting pissed off and writing again. Kind of like I’m doing here. I can only say “I’m done” so many times before it becomes a joke. I hope I’m done. You can put this on your site if you want to for those who were following it there.
July 16th, 2006 at 3:36 pm
One more thing, Roch- is sexuality an immutable characteristic within the constitutional meaning of the term? I don’t think any court has held as such. If your broad definition were to apply then every genetic difference between people would be “immutable characteristics”. The word “mute” is in there somewhere. Think about what it means and how it has been used in Supreme Court cases. I don’t know if a person is gay unless they tell me- but I don’t have to ask a person if they are black or female. That is the difference.
July 16th, 2006 at 5:27 pm
I don’t know if someone has HIV unless they tell me. Does that mean I can discriminate against them because I can’t tell by looking at them?
July 16th, 2006 at 6:45 pm
Under the current reasoning of the Court, the answer is yes- if you can provide a rational basis for the discrimination. See the cases on age discrimination for analyis.
July 16th, 2006 at 7:53 pm
“The word “muteâ€? is in there somewhere.”
Actually, it’s the word “mutable” that’s in there, which has a totally different etymology than the word “mute”.
I haven’t had a chance to really read through the rest of the responses yet – I hope to do so soon. Sam, I hope you don’t feel like you’re getting piled on (at least not too badly). I admit that I am not well-versed in the law, so it’s interesting to hear a lawyer’s take on this. At the same time, I’m aware that a lawyer is paid to argue his client’s side of the case, and so he can come up with an argument for or against anything, which is part of the reason why I’m questioning your line of reasoning.
July 19th, 2006 at 12:25 am
Hi Sam,
Sorry for my unresponsiveness… there’s a lot of material to consider, and unfortunately my time is a bit limited these days. Hopefully you’re still reading this.
I had a chance to look at the Loving decision and the Lawrence decision. Regarding Loving, the case was not decided solely on the basis of racial discrimination, but also on the basis of violating due process:
In this case, it’s true that the restriction was due to race, but it sounds as though the court is arguing that there is a fundamental right to choose who to marry, and it seems as though race may not be the only possible restriction.
In your examples about a “balck man marrying a black man” I think you are making arbitrary distinctions again. The point is that we should be free to choose who we marry. What legitimate reason is there for restricting the gender of the spouse that any given person can choose?
What if a state were to enact a marriage ban based on handedness, saying that one can only marry a person of opposite handedness:
Can a left-handed person marry a right-handed person: Yes
Can a right-handed person marry a left-handed person: Yes
Can a left-handed person marry a left-handed person: No
Can a right-handed person marry a right-handed person: No
Is that discriminatory? How is it any different than the examples you give (specifically the ones quoted in my original post)?
Regarding the Lawrence case, you mentioned Scalia’s dissent, and how he warned that the decision could legitimize pedophilia. Actually, he didn’t mention pedophilia (though he did mention bestiality and a few other items), but he did state that the logical conclusion of the Lawrence decision was to allow homosexual marriage:
To address your concerns about pedophilia, though they have been addressed elsewhere – as always, a distinguishing factor with pedophilia is that there is a victim. You keep ignoring this fact. Whatever arguments there are currently against pedophilia are the exact same arguments that will still stand if homosexual marriages become a reality. To argue otherwise is to question the legitimacy of our current laws against pedophilia. You worry about the day if and when pedophilia is discovered to have a genetic cause – that should cause the exact same amount of concern whether homosexual marriage is legal or illegal. The argument for continuing prohibitions against pedophilia is the same in either case.
As for “buddy marriages” my first instinct is to say that this would not be a problem. First of all, there must be a current risk of heterosexual buddy marriages, and this doesn’t seem to be bringing down the institution of marriage. Secondly, (and this is probably a primary reason for heterosexual buddy marriages not being a big problem), there probably aren’t many people who are going to want to enter into a marriage with just a “buddy”. Sure, you’d get insurance, but then your buddy also gets to make life and death emergency medical decisions for you. And might be able to get part of your estate when you divorce him. I just don’t see it as being a big concern.