This post takes another look at the gay marriage issue. Specifically, the Iowa Supreme Court and gay marriage. I keep going on about the gay marriage debate because I feel it will become rather more heated than it already is, and religion will be closely scrutinized because of its connection and effectiveness in opposing gay marriage.
The Iowa Supreme Court in overturning Iowa’s Defense of Marriage Act has in its final decision set a precedent that I believe is disturbing. Some of my arguments are mentioned below. Additionally, they inserted religion into their legal thinking. Though they admit religion was not brought up during the case, they decided to mention it anyway. Near the end of their decision they write,
We [now] consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage. (p. 63)
The Court’s decision need only to be based on the arguments and evidence presented. But they took the initiative and inserted religion. They believe, “While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage.” Apparently, evidence alone is insufficient if a suspected religious motivation exists. The court believes more should be said, writing, “State government can have no religious views, either directly or indirectly, expressed through its legislation” (p. 66).
So I’ll begin.
I was watching Lou Dobbs on CNN the other night. A debate about gay marriage was going on and the person on the opposing side made the point that gay marriage would further divide marriage from the idea that children should be raised by their biological parents. The pro side made the point that gay marriage is discriminatory and should be ended on that basis; gay marriage was the moral thing to do.
The Iowa Supreme Court Decision
When the Iowa Supreme Court decided unanimously, unilaterally to disregard the will of the people of Iowa, overturn the Defense of Marriage Act, and institute their own definition of marriage to replace the one enacted by the state legislature, it was done from the view of equal protection before the law. (See Iowa Supreme Court Decision No. 07–1499, April 3, 2009). However, as every lawyer knows, the purpose of the law is to make discriminations, that is, to make distinctions between people and classes of people: criminals from non-criminals; felons from non-felons, minors from adults; legal citizens from illegal aliens, etc. The discrimination created by law speaks to the purpose of those laws. If one were to argue that because minors are often given special consideration when found guilty of a crime that adults should be given the same treatment one would be arguing those laws have no essential function. If it were argued that people have a right to claim social security benefits at any age they would be arguing there is no important rational behind retirement laws. If one were to argue that laws granting special privileges to married couples should be given to all persons, regardless of marital status, one would be arguing there is no special purpose to those laws. So if discrimination is the question how does one decide what is bad discrimination when the very purpose of the law is to create classes of people to which laws and privileges do and do not apply? The Iowa Supreme Court has addressed this question.
Equal protection demands that laws treat alike all people who are similarly situated with respect to the legitimate purposes of the law. (p. 25)
Therefore, “to truly ensure equality before the law, the equal protection guarantee requires that laws treat all those who are similarly situated with respect to the purposes of the law alike” (p. 27; italics original). Thus, to use my own examples, the blind cannot be barred from marrying because they are similarly situated with respect to the purpose of the law; people from different socioeconomic backgrounds cannot be barred from marrying because they are similarly situated with respect to the purpose of the law; a man and woman of different races cannot be barred from marrying for the same reason, they are similarly situated with respect to the purpose of the law.
But what does similarly situated mean? The Court points out that no two people, or groups of people, are identical. Therefore, similarly situated cannot be taken to mean identical—some latitude must be permissible. But in order to address the meaning of “similarly situated” one must first determine the purpose of the law.
So what are the purposes of marriage laws? The Iowa Court has listed several which they believe outline the purpose of marriage.
1) Iowa’s marriage laws “are rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society.”
2) Civil marriage is “a partnership to which both partners bring their financial resources as well as their individual energies and efforts.”
3) “These laws also serve to recognize the status of the parties’ committed relationship.”
4) “The marriage state is not one entered into for the purpose of labor and support alone, but also includes the comfort and happiness of the parties to the marriage contract.”
5) “[Marriage] is not a mere contract, but is a status.”
6) “Marriage changes the parties’ legal and social status.”
Earlier in their decision the Court mentioned several difficulties mentioned by the plaintiffs, difficulties that accompany not being permitted to marry. They are,
1) Life and death decisions affecting their partner.
2) Health care, burial arrangements, autopsy, disposition of remains following death.
3) Denial for partner’s state-provided health insurance and pension benefits; as well as private-employer-provided benefits and protections.
4) Spousal health club memberships.
Following this the Court writes,
Yet, perhaps the ultimate disadvantage expressed in the testimony of the plaintiffs is the inability to obtain for themselves and for their children the personal and public affirmation that accompanies marriage. (p. 9)
The Court concludes, “Therefore, with respect to the subject and purposes of Iowa’s marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons” (p. 28).
What have they done?
The Court has confused things important to marriage and which accompany it with the very purpose of the institution. They have reduced marriage to a collection of relational rights, financial resources, relationship validation, health club benefits, and social status. These things do accompany marriage; most are important for a successful marriage. But things that are essential to marriage are not the same thing as its purpose. By analogy, automobiles are useless without tires, engine, and gasoline but do not exist for the sake of having those things. Arguing they exist for the sake of tires, engine, and gasoline is an empty analysis: automobiles exist for the sake of their parts. Most of the items in the two above lists are given to married couples to help them have a successful marriage, not to define the purpose of the institution. But the Iowa Supreme Court has decided that things intended to help marriages succeed are the fundamental purpose of the institution. Marriage now becomes a morally vacuous institution. The purpose of the marriage becomes the things that accompany it.
Moreover, if the reasons listed above are the purposes of marriage then what rational basis is there for denying groups of people from marrying: say, four men and six women. If marriage exists for the purpose of defining relational rights, combining financial resources and individual energies, recognizing the parties’ committed relationship, comfort and happiness, status, and personal and public affirmation then it appears groups of people wanting “group marriage” are also similarly situated with respect to the purpose of the law.
This only illustrates that the reasons the Court gave for establishing the purpose of marriage are fundamentally perverse.
Question: What is the purpose of the marriage institution? Answer: To acquire the personal and public affirmation that accompanies marriage. Question: Why should same-sex couples be granted that affirmation? Answer: So they are not discriminated against; the law should apply equally to all.
The problem with the above line of reasoning is that if the purpose of the institution is to change one’s status to grant personal and public affirmation then the objective purpose of the law becomes obscured. After all, most people desire public affirmation and monetary advantages. Discrimination is reduced to not having privileges and no longer speaks to the objective purpose of marriage.
As the Iowa Supreme Court mentioned, “classification is the essence of all legislation” (p. 32).
So arguing that same-sex couples should be permitted to marry because denying them such a right is discriminatory is a flawed argument. The purpose of law is to make such-like discriminations. I sometimes feel that people who use the “marriage equality” mantra are making a rather very weak argument: people like marriage; people like equality; so who would say no to “marriage equality”?
But if taken to task on this argument they must state how same-sex couples are similarly situated with respect to the purpose of the law. And if they argue as the Iowa Supreme Court did—that gays are similarly situated because of their desire for relational rights, financial resources, relationship validation, health club benefits, and social status—their argument isn’t a strong one. Marriage is reduced to the material considerations that accompany it.
Is the purpose of marriage to grand benefits? Or are the purposes of benefits to assist marriage? What then is the purpose of marriage? Those questions tend to be avoided.
Reducing marriage to material benefits accords a weak argument. Arguing marriage is a fundamental right is subjective, as a fundamental can’t be reduced further. Arguing that same-sex civil marriage should be permitted because of the public affirmation it brings to the couple is a rather touchy-feely argument which doesn’t address the fundamental question, “Why does marriage exist?”
Their position is not as strong as it appears.