Gay Marriage

Matthew Harrison Brady: We must not abandon faith. Faith is the most important thing!
Henry Drummond: Then why did God plague us with the ability to think? Mr Brady, why do you deny the one faculty of man that raises him above the other creatures of the earth? The power of his brain to reason. 
--Inherit the Wind

Someone seeking an example of how convoluted legal thought has become in the land's highest court need look no further than the recent Obergefell v. Hodges ruling on gay marriage. Convoluted logic in the majority opinion underwritten by Justice Kennedy is only trumped by even more convoluted logic in dissenting opinions authored by four other justices.

Many pages of analysis have and will be generated on this ruling. One that I found particularly insightful is here. In this post, I want to discuss what I believe to be the proper basis for the ruling.

At its heart, marriage is co-habitation. Two people living together in voluntary union. Co-habitation, one aspect of freedom of association, is a natural right--a dimension of liberty endowed by our Creator. It is with us at birth as a function of our humanity. It is unalienable, meaning that no one can justly take away the right of co-habitation, whether that union is between members of the opposite sex or same sex.

Over time, and for various reasons including economic ones, the construct of marriage has evolved. One aspect that has developed is a social one where the union between two people is recognized as legitimate by others. However, this social recognition is not a right to those in voluntary union. Married people cannot force others to recognize their union.

If this was the issue in Obergefell--that gay couples were seeking to force others in society to respect their union--then the plaintiffs have no case. They cannot force their beliefs onto others.

But that is not the issue here. Unfortunately, others in the past have successfully forced their definition of marriage on others. They have done this by getting state governments to pass laws declaring that only a certain type of co-habitation arrangement, that between man and woman, will be legally recognized.

It is important to note that contemporary legal recognition of marriage does not preclude same sex unions. It does not make it illegal for gay couples to live together. Laws outlawing gay marriage would be outright violations of natural law.

What legal recognition of a particular union does do in the current system is confer particular benefits to couples who are deemed legally married by a state. Some of the benefits listed by Justice Kennedy in his opinion include (p.17) favorable treatment related to taxes, inheritance, health care access, government certificate making, and worker's compensation. Moreover, Kennedy notes that "valid marriage under state law is also a significant status for over a thousand provisions of federal law." Consequently, states have placed the institution of marriage "at the center of so many facets of the legal and social order."

Of all dissenting justices, only Justice Thomas acknowledged this. By failing to legally recognize marriage among same sex couples, "the States have refused to grant them governmental entitlements." (p. 10).

Therein lies the basis for the ruling. Primarily through democratic process, people have used the strong arm of government to force their definition of marriage on others. Along with this legal status has followed a set of government-granted entitlements to those couples who meet the legal definition.

Under the Equal Protection clause of the Fourteenth Amendment, there can be no discrimination when it comes to government-granted entitlements. If people put government into the marriage contract business and confer privileges based on marital status, then both same and opposite sex unions are entitled to those benefits.

Why government is involved in marriage in the first place, and why unmarried people aren't privileged to the same treatment as married people are both excellent questions, but they aren't central to the immediate case.

Kennedy et al also claim that there is a due process issue here, as a fundamental right to marriage has been denied some individuals (p. 10). This would be true if marriage was defined only in terms of co-habitation, and laws had been passed that prohibit voluntary union among gays. But that is not the contemporary construction of marriage considered in this case. Instead, marriage is a legal status and benefit package conferred by government. It is erroneous and misleading to label marriage in this sense as a right because it is not a liberty grounded in natural rights. The contemporary legal construction of marriage imposes obligations, such as increased tax burdens, on those who are not married.

Under the current legal arrangement, marriage is an entitlement. Refusing to grant legally married status to a union because of sexual orientation is clearly discriminatory. As such, gay marriage must be legally recognized by all states under the Equal Protection Clause so that associated government-sponsored benefits can be equally distributed.