Friday, November 07, 2014

6th Circuit Echoes Porkopolis' Arguments on Rationale for State of Ohio Defining Marriage

The 6th U.S. Circuit Court of Appeals yesterday upheld same-sex marriage bans in Ohio and three other states in DeBoer v. Snyder.

In doing so, the court used an argument that echoes the one made by Porkopolis in 2009:
...Before considering the question of gay marriage, a more fundamental question should be considered: Why marriage at all? 

In the United States, marriage is a tri-party legal agreement. The first two parties, husband and wife, are obvious. The third party is the state/community that acknowledges a marriage. Male and female couples petition the state –and more generally, their community– to recognize their marriage. If it was just a simple relationship amongst consenting adults, the community would have no need –and more importantly no business– acknowledging the relationship.

However, marriage is a relationship that imposes responsibilities on the community and that’s why the state is involved in its recognition and definition; as in detailing that only two (not more) individuals of the opposite sex will be recognized in a marriage. Married couples get legal tax and inheritance status. Male-female couples asking the state to recognize their marriage are also asking the state to address the care of their biological children if the couples are incapable of doing so.

What does the community get in return for consideration of this ‘special’ status? It is rejuvenated –by the only relationship that can procreate: a male-female relationship– and benefits from responsibly raised children in a marriage. Because of the corrosive effects to the community of infidelity, the community acknowledges only monogamous marriages. This shared responsibility amongst all the parties (husband, wife, community) is the limited government rationale for marriage as a legal construct...
From the court's opinion:
...One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.

Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means. People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues. Dandridge v. Williams, 397 U.S. 471, 486–87 (1970)...
...What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning...
The 6th Circuit opinion is extremely well reasoned and worthy of a complete reading as evidenced by this argument against the claim that "failure to recognize gay marriages celebrated in other States violates the Due Process and Equal Protection Clauses":
...What of the reality that Ohio recognizes some heterosexual marriages solemnized in other States even if those marriages could not be performed in Ohio? See, e.g., Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio 1958). The only reason Ohio could have for banning recognition of same-sex marriages performed elsewhere and not prohibiting heterosexual marriages performed elsewhere, the Ohio plaintiffs claim, is animus or “discrimination of an unusual character.” Obergefell Appellees’ Br. at 18 (quoting Windsor, 133 S. Ct. at 2692).

But, in making this argument, the plaintiffs misapprehend Ohio law, wrongly assuming that Ohio would recognize as valid any heterosexual marriage that was valid in the State that sanctioned it. That is not the case. Ohio law recognizes some out-of-state marriages that could not be performed in Ohio, but not all such marriages. See, e.g., Mazzolini, 155 N.E.2d at 208 (marriage of first cousins); Hardin v. Davis, 16 Ohio Supp. 19, 20 (Ohio Ct. Com. Pl. 1945) (marriage by proxy). In Mazzolini, the most relevant precedent, the Ohio Supreme Court stated that a number of heterosexual marriages—ones that were “incestuous, polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or prohibited”—would not be recognized in the State, even if they were valid in the jurisdiction that performed them. 155 N.E.2d at 208–09 (noting that first-cousin marriages fell outside this rule because they were “not made void by explicit provision” and “not incestuous”). Ohio law declares same-sex marriage contrary to the State’s public policy, placing those marriages within the longstanding exception to Ohio’s recognition rule. See Ohio Rev. Code § 3101.01(C)...
Related: Collection of Essays and Posts on Same-Sex Marriage



Blogger David in Houston said...

“What does the community get in return for consideration of this ‘special’ status? It is rejuvenated –by the only relationship that can procreate: a male-female relationship– and benefits from responsibly raised children in a marriage.”

Not true. The state and community couldn’t care less if married couples EVER procreate. Otherwise there would be no reason to allow elderly and infertile couples to marry. That’s why 100% of the heterosexual population has the right to marry. If you intend to argue, like most states have tried, that discriminatory laws can be under- and over-inclusive. That would mean that SOME heterosexuals wouldn’t be permitted to marry someone of the opposite-sex (all things being equal). That isn’t the case. ALL heterosexuals are afforded the right to marry: even deadbeat dads, and death row inmates who will spend their entire life in prison. Marriage is a fundamental right of mankind.

For the record, “the community” doesn’t get to put in their “two cents” when a straight couple is about to get married. The personal decisions between two consenting adults is literally none of “the community’s” business. I don’t know where you came up with that ludicrous theory, but in the real world my neighbors don’t get to weight in on my marriage.

Judge Posner summed it up perfectly:
At oral argument the state‘s lawyer was asked whether "Indiana's law is about successfully raising children," and since "you agree same-sex couples can successfully raise children, why shouldn't the ban be lifted as to them?" The lawyer answered that "the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence." In other words, Indiana's government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.

As for Judge Sutton’s ruling. Using slippery slope arguments to bolster your position is tantamount to incompetence. Every judge and attorney knows that slippery slope arguments have no validity. The same can be said for using “tradition” as a means to continue to discriminate. Doing so would ensure that no social progress would ever take place. He also promoted the idea that gay Americans were obligated to convince straight bigots that they shouldn’t discriminate against them… regardless of how many decades that might take to happen. Luckily, the U.S. Supreme Court DIDN’T take Judge Sutton’s advice when they ruled on Loving v. Virginia. Otherwise, interracial couples would have had to wait over 20 years until the public became less-bigoted towards them. How Judge Sutton could possibly believe this is acceptable in ANY context is unfathomable. He simply didn’t do his job because he personally believes that gay Americans shouldn’t be entitled to civil equality in our country. History will not look kindly on his obvious bigotry.

November 8, 2014 at 5:16 PM  
Blogger Porkopolis said...

David in Houston:

I would have no problem scaling back the benefits of marriage to just those that actually procreate. That's assuming that the process of scaling back can be done in a way that is cost effective and doesn't create more problems than it solves.

If your concern is for the children, the limited government philosophy I advocate would ask if we could address the children's needs with the minimal amount of government regulation. It looks like existing laws already do that. If there are some gaps, extending the definition of marriage might be an overreach of public policy to address those gaps.

In any scenario, the responsibility is on those like yourself to make the case for why Ohioans should financially subsidize same-sex relationships as opposed to simply addressing the needs of the children.

November 9, 2014 at 11:06 AM  

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