With the SCOTUS deciding to take up the issue of Same Sex Marriage (SSM) as to whether or not it is unconstitutional. Prop. 8 will likely be upheld, since Kennedy (who will probably be the swing vote) will mostly vote on states rights. So, I am not worried about Prop. 8 being upheld, though DOMA is facing serious difficulty. Although I don't understand how DOMA infringes states rights since it doesn't force the states to do anything--it merely dictates what the federal policy is. A law creating a federal policy isn't unconstitutional, unless it infringes one of the amendments, and a law telling the Feds what to do does not breech the 10th amendment. So I will be focusing on the other issues, namely rights, the states interest, and suspect class.
1. States interest in marriage
When a society or government creates an institution, as they have done on the issue of marriage, the government and people have some purpose for the law. It has what is refereed to as a "public purpose". This public purpose is to link mothers and fathers to their children and encourage responsible procreation.
Marriage is based on the fact that men and women are complimentary, and children need a mother and a father. Marriage is the best way to protect children and uphold society's existence. by encouraging marriage norms, society heals its current ills and strengthens society's "good" aspects. Indeed, marriage enforcement is the least restrictive, least intrusive way of helping society in this way. Often, people deem me a fascist for opposing SSM, or a hypocrite because I support small government but support marriage regulation. Though they fail to see what would be otherwise unsuccessful regulation, I support a simple definition of marriage which accomplishes the same goal without the same intrusion on peoples lives. Marriage does not restrict homosexuals. They are free to participate in day-to-day activities, a loving relationship, and can have access to the same benefits marriage provides through other contracts (though it seems as though they complain about not having them when they just don't look far enough -- a will, for example, would transfer property the same way marriage benefits would).
But the nature of marriage is inherently heterosexual, and the fruits of heterosexual marriage are inherently good. Procreation and child rearing merely enforce their current bonding marriage provided. Ryan T. Anderson writes, "Marriage connects people and goods that otherwise tend to fragment. It helps to connect sex with love, men with women, sex with babies, and babies with moms and dads. ... As the act by which a husband and wife make marital love also makes new life, so marriage itself is inherently extended and enriched by family life and calls for all-encompassing commitment that is permanent and exclusive."[1] Now note he says procreation "extends" the inherit good of procreative-type unions, and that procreation is not itself marriage. Procreation is merely a common ad-on. This renders the infertile response useless, because the infertile argument assumes marriages is solely about procreation and child-rearing, when it is about male-female complimentary which is inherently good, with or without procreation resulting in children.
Anderson, Girgis, and George have also submitted a Amicus Breif in order to influence the courts decision. They come to the same conclusion of states interest that I have come to above, and they then discuss the norms of marriage. They note the inherint goods of heterosexual love will be withered away if SSM is legalized. A question often posed is "why would it do that? It doesn't affect you." However, SSM affects us all. SSM legalization erodes the norms of procreative-type unions, robbing the inherint good of marriage, leading to societal decline. As the Breif writes:
Now, it is possible SSM would spread stability, though this is unlikely. Anderson et al. argue in their brief marriage is only god because of its modern norms. It only provides stability because the law defines it as such. Redefining marriage destroys these norms, and their stability, therefore do not spread stability.
One study actually finds these results to be true, and finds legalization of SSM actually hinders is procreative aspect [3]. With the procreative aspect now divorced from marriage, marriage begins to fail at its main purpose: to bond couples together who often enforce their marriage with child-rearing and responsible procreation. A redefinition of marriage changes the rules of marriage, changing how it works, and therefore harming society as a whole.
Now some people have claimed this is unconstitutional still, because the argument is like prohibiting african americans to marry with other races in the 60s. And since the same arguments lead to an unconstitutional result in Loving occurred, than SSM should be legal too. However, in the next section that will be discussed in some detail.
2. Marital rights
In Loving v. Virginia the court ruled there was a right to marriage. Gay advocates often point to this decision as proof that gays have the right to marry, and therefore it should be legalized. However, they are comparing apples to oranges since interracial marriage and SSM are two very different issues. Former Attorney General Ed Meese writes, "On the merits, neither the Due Process nor the Equal Protection Clauses require that marriage be radically redefined to encompass relationships other than the union of one man and one woman. The fundamental right to marry recognized by this Court in Loving as protected by the Due Process Clause was tied to the unique procreative capacity of opposite-sex unions, a fact that also renders same-sex and opposite-sex relationships not similarly situated for purposes of Equal Protection analysis, a threshold inquiry."[4]
The fact the court ruled in favor of interracial marriage is because there was no legitimate state interest against it. That interest was procreation. As we can see, the courts have always sided on the side of the procreation argument, and marriage rights only applies to those who enter into these procreative-type unions. This renders the rights argument false. Anderson, Girgis, and George in their famous 2010 paper write, "Any legal system that distinguishes marriage from other, nonmarital forms of association, romantic or not, will justly exclude some kinds of union from recognition. So before we can conclude that some marriage policy violates the Equal Protection Clause, or any other moral or constitutional principle, we have to determine what marriage actually is and why it should be recognized legally in the first place. [Emphasis mine] That will establish which criteria (like kinship status) are relevant, and which (like race) are irrelevant to a policy that aims to recognize real marriages. So it will establish when, if ever, it is a marriage that is being denied legal recognition, and when it is something else that is being excluded."[5]
3. Suspect class
This point is probably the most important in the debate. If homosexuality is not a suspect class, the homosexuals lose the debate with no contest. But if its true, the court may side with the homosexuals (though the arguments above would still apply, so if the courts did rule in favor of SSM that would be intellectually dishonest). For homosexuality to be a suspect class, it must be innate and immutable. Only one court case talking about homosexuals has ruled they are a suspect class. The others ruling in favor of homosexuals avoid the question because they will lose. I will be using the same source as the heritage foundation (I will provide the heritage link at the end; and a footnote to the source here) on the suspect class argument:
The article essentially says current evidence opposes the immutable argument, and the studies for it are fairly ambiguous. And since the literature here is so mixed, the Court cannot rule people with SSA a suspect class. However the brief does not the bast majority of evidence favors the non-biological model of environmental influences, with homosexuality only 6-20% genetic (which is very small. Since all behavior has some genetics involved, a 20% is very minor). The brief sites a few studies [6]:
1. Bearman and Bruckner 2002. The brief provides this quote. "[the study finds]'no support for genetic influences on same-sex preference net of social structural constraints.'"
2. Langstrom et al. 2010 "[the study finds] concordance rates of 18% for male identical twins and 22% for female identical twins)." So homosexuality is only 18 - 22% genetic
3. Kendler 2000 found "concordance rates of 31.6% for identical twins)."
4. King and McDonald 1992 wrote "genetic factors are insufficient explanation of the development of sexual orientation."
NE Whitehead finds the vast majority of twin studies find homosexuality is only 10% genetic [7]. The hormone argument is also invalid because if this was true both twins would be homosexual, though this rarely happens refuting that argument.
The brief also indicates homosexuals change their sexuality often, with 50% of homosexuals changing orientation at some point in their life [6]. Whitehead does a literature review and finds in puberty nearly ALL homosexuals become heterosexuals or bisexuals (though most of them move full straight), with most bisexuals also becoming straight. He finds heterosexuals are the least likely to change orientation, indicating *most* heterosexual orientation is natural [8]. In my opinion, those who changed were always heterosexual BUT some factor made them homosexual (all gays, I think, are gay because of some environmental factor, so this is not a concession) and their biology eventually won out. And Whitehead also noted most studies on therapy often indicate nearly all clients becoming more heterosexual somewhat, and a large portion becoming 100% heterosexual.
CONCLUSION
Is DOMA unconstitutional? I believe my case of 1) states interest, 2) gays don't have the same marriage rights, and 3) gays are not a suspect class leads me to the conclusion that it isn't. With this information I believe DOMA should be upheld.
1. http://www.heritage.org/research/reports/2013/03/marriage-what-it-is-why-it-matters-and-the-consequences-of-redefining-it.
2. http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-144-12-307_merits_reversal_rpg_etal.authcheckdam.pdf
3. http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No3_Allen.pdf
4. http://www.claremont.org/repository/docLib/20130130_CCJProp8AmicusBrief2013.pdf
5. http://www.harvard-jlpp.com/wp-content/uploads/2011/08/GeorgeFinal.pdf
6. http://www.adfmedia.org/files/HollingsworthAmicusMcHugh.pdf
7. http://www.mygenes.co.nz/PDFs/Ch10.pdf
8. http://www.mygenes.co.nz/PDFs/Ch12.pdf
1. States interest in marriage
When a society or government creates an institution, as they have done on the issue of marriage, the government and people have some purpose for the law. It has what is refereed to as a "public purpose". This public purpose is to link mothers and fathers to their children and encourage responsible procreation.
Marriage is based on the fact that men and women are complimentary, and children need a mother and a father. Marriage is the best way to protect children and uphold society's existence. by encouraging marriage norms, society heals its current ills and strengthens society's "good" aspects. Indeed, marriage enforcement is the least restrictive, least intrusive way of helping society in this way. Often, people deem me a fascist for opposing SSM, or a hypocrite because I support small government but support marriage regulation. Though they fail to see what would be otherwise unsuccessful regulation, I support a simple definition of marriage which accomplishes the same goal without the same intrusion on peoples lives. Marriage does not restrict homosexuals. They are free to participate in day-to-day activities, a loving relationship, and can have access to the same benefits marriage provides through other contracts (though it seems as though they complain about not having them when they just don't look far enough -- a will, for example, would transfer property the same way marriage benefits would).
But the nature of marriage is inherently heterosexual, and the fruits of heterosexual marriage are inherently good. Procreation and child rearing merely enforce their current bonding marriage provided. Ryan T. Anderson writes, "Marriage connects people and goods that otherwise tend to fragment. It helps to connect sex with love, men with women, sex with babies, and babies with moms and dads. ... As the act by which a husband and wife make marital love also makes new life, so marriage itself is inherently extended and enriched by family life and calls for all-encompassing commitment that is permanent and exclusive."[1] Now note he says procreation "extends" the inherit good of procreative-type unions, and that procreation is not itself marriage. Procreation is merely a common ad-on. This renders the infertile response useless, because the infertile argument assumes marriages is solely about procreation and child-rearing, when it is about male-female complimentary which is inherently good, with or without procreation resulting in children.
Anderson, Girgis, and George have also submitted a Amicus Breif in order to influence the courts decision. They come to the same conclusion of states interest that I have come to above, and they then discuss the norms of marriage. They note the inherint goods of heterosexual love will be withered away if SSM is legalized. A question often posed is "why would it do that? It doesn't affect you." However, SSM affects us all. SSM legalization erodes the norms of procreative-type unions, robbing the inherint good of marriage, leading to societal decline. As the Breif writes:
"1. Law tends to shape beliefs.2. Beliefs shape behavior.3. Beliefs and behavior affect human interests and human well-being"[2]
Now, it is possible SSM would spread stability, though this is unlikely. Anderson et al. argue in their brief marriage is only god because of its modern norms. It only provides stability because the law defines it as such. Redefining marriage destroys these norms, and their stability, therefore do not spread stability.
One study actually finds these results to be true, and finds legalization of SSM actually hinders is procreative aspect [3]. With the procreative aspect now divorced from marriage, marriage begins to fail at its main purpose: to bond couples together who often enforce their marriage with child-rearing and responsible procreation. A redefinition of marriage changes the rules of marriage, changing how it works, and therefore harming society as a whole.
Now some people have claimed this is unconstitutional still, because the argument is like prohibiting african americans to marry with other races in the 60s. And since the same arguments lead to an unconstitutional result in Loving occurred, than SSM should be legal too. However, in the next section that will be discussed in some detail.
2. Marital rights
In Loving v. Virginia the court ruled there was a right to marriage. Gay advocates often point to this decision as proof that gays have the right to marry, and therefore it should be legalized. However, they are comparing apples to oranges since interracial marriage and SSM are two very different issues. Former Attorney General Ed Meese writes, "On the merits, neither the Due Process nor the Equal Protection Clauses require that marriage be radically redefined to encompass relationships other than the union of one man and one woman. The fundamental right to marry recognized by this Court in Loving as protected by the Due Process Clause was tied to the unique procreative capacity of opposite-sex unions, a fact that also renders same-sex and opposite-sex relationships not similarly situated for purposes of Equal Protection analysis, a threshold inquiry."[4]
The fact the court ruled in favor of interracial marriage is because there was no legitimate state interest against it. That interest was procreation. As we can see, the courts have always sided on the side of the procreation argument, and marriage rights only applies to those who enter into these procreative-type unions. This renders the rights argument false. Anderson, Girgis, and George in their famous 2010 paper write, "Any legal system that distinguishes marriage from other, nonmarital forms of association, romantic or not, will justly exclude some kinds of union from recognition. So before we can conclude that some marriage policy violates the Equal Protection Clause, or any other moral or constitutional principle, we have to determine what marriage actually is and why it should be recognized legally in the first place. [Emphasis mine] That will establish which criteria (like kinship status) are relevant, and which (like race) are irrelevant to a policy that aims to recognize real marriages. So it will establish when, if ever, it is a marriage that is being denied legal recognition, and when it is something else that is being excluded."[5]
3. Suspect class
This point is probably the most important in the debate. If homosexuality is not a suspect class, the homosexuals lose the debate with no contest. But if its true, the court may side with the homosexuals (though the arguments above would still apply, so if the courts did rule in favor of SSM that would be intellectually dishonest). For homosexuality to be a suspect class, it must be innate and immutable. Only one court case talking about homosexuals has ruled they are a suspect class. The others ruling in favor of homosexuals avoid the question because they will lose. I will be using the same source as the heritage foundation (I will provide the heritage link at the end; and a footnote to the source here) on the suspect class argument:
Sexual orientation is neither a “discrete” nor “immutable” characteristic in the legal sense of those terms.… Scholars do not know enough about what sexual orientation is, what causes it, and why and how it sometimes changes for the Court to recognize it as the defining feature of a new suspect class.[6]
The article essentially says current evidence opposes the immutable argument, and the studies for it are fairly ambiguous. And since the literature here is so mixed, the Court cannot rule people with SSA a suspect class. However the brief does not the bast majority of evidence favors the non-biological model of environmental influences, with homosexuality only 6-20% genetic (which is very small. Since all behavior has some genetics involved, a 20% is very minor). The brief sites a few studies [6]:
1. Bearman and Bruckner 2002. The brief provides this quote. "[the study finds]'no support for genetic influences on same-sex preference net of social structural constraints.'"
2. Langstrom et al. 2010 "[the study finds] concordance rates of 18% for male identical twins and 22% for female identical twins)." So homosexuality is only 18 - 22% genetic
3. Kendler 2000 found "concordance rates of 31.6% for identical twins)."
4. King and McDonald 1992 wrote "genetic factors are insufficient explanation of the development of sexual orientation."
NE Whitehead finds the vast majority of twin studies find homosexuality is only 10% genetic [7]. The hormone argument is also invalid because if this was true both twins would be homosexual, though this rarely happens refuting that argument.
The brief also indicates homosexuals change their sexuality often, with 50% of homosexuals changing orientation at some point in their life [6]. Whitehead does a literature review and finds in puberty nearly ALL homosexuals become heterosexuals or bisexuals (though most of them move full straight), with most bisexuals also becoming straight. He finds heterosexuals are the least likely to change orientation, indicating *most* heterosexual orientation is natural [8]. In my opinion, those who changed were always heterosexual BUT some factor made them homosexual (all gays, I think, are gay because of some environmental factor, so this is not a concession) and their biology eventually won out. And Whitehead also noted most studies on therapy often indicate nearly all clients becoming more heterosexual somewhat, and a large portion becoming 100% heterosexual.
CONCLUSION
Is DOMA unconstitutional? I believe my case of 1) states interest, 2) gays don't have the same marriage rights, and 3) gays are not a suspect class leads me to the conclusion that it isn't. With this information I believe DOMA should be upheld.
1. http://www.heritage.org/research/reports/2013/03/marriage-what-it-is-why-it-matters-and-the-consequences-of-redefining-it.
2. http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-144-12-307_merits_reversal_rpg_etal.authcheckdam.pdf
3. http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No3_Allen.pdf
4. http://www.claremont.org/repository/docLib/20130130_CCJProp8AmicusBrief2013.pdf
5. http://www.harvard-jlpp.com/wp-content/uploads/2011/08/GeorgeFinal.pdf
6. http://www.adfmedia.org/files/HollingsworthAmicusMcHugh.pdf
7. http://www.mygenes.co.nz/PDFs/Ch10.pdf
8. http://www.mygenes.co.nz/PDFs/Ch12.pdf
