March 3, 2009

DOMA’s Irrational Basis

So I was listening to NPR this morning and was happy to hear the news that a federal suit is going to be filed in an effort to overturn DOMA —the fantastically misnamed Defense of Marriage Act. Of course, one of the opponents to a judicial overturn, a member of one of the many conservative groups out there — which one I can’t recall, something with “Alliance” in it — noted that in order to prevent the overturn, all that is needed is to show that there is a rational basis for limiting marriage to mixed-sex couples; and, of course, he said that procreation was such a rational basis.

The problem is that if something is the raison d’être (the rationale or basis) for granting a legal status, the condition for the status and all that goes with it — in this case the rights and responsibilities of marriage — should relate to all who seek that status. Even more importantly, such a rational basis for a status requires a higher standard of proof if you are going to exclude people from that status on that basis.

As I have pointed out many times before, procreation can take place apart from marriage and marriage from procreation. People who are incapable of procreation are not excluded from obtaining the legal status of marriage. In fact, in five states of the Union (AZ IL IN UT WI), the law permits marriage to first cousins only on the conditions either of advanced age or infertility or both — procreation is effectively forbidden in the case of these marriages! So it can hardly form a rational basis for them.

More importantly, many if not most of the benefits and responsibilities of marriage have no necessary connection with procreation: Social Security and disability benefits, visitation rights, pensions for surviving spouses, inheritance rights, tax status, and so on. These things all apply whether one has children or not, and whether one is capable of having children or not.

To argue that procreation is a rational basis for marriage that only applies in certain circumstances (and thus, hardly a basis), or that a factor that applies only in some marriages has greater importance than factors more likely to be important to all marriages (and thus, hardly rational) — is baseless and irrational.

The real rational basis for marriage is far simpler, though the state might want to avoid the religious overtones: it is not good for the human to be alone (Genesis 2:18) and two are better than one. (Ecclesiastes 4:9). Seems rational to me...

— Tobias Stanislas Haller BSG


James said...

I agree, Brother Tobias. However, it all turns on which scrutiny the court decides to use in the case.

Heretofore, rational basis has been used for all gay issues. The burden then falls to the plaintiff to prove the law is unconstitutional. The state has only to show a "reasonable interest" in why the rights should be denied.

With Heightened Scrutiny and Strict Scrutiny there is, built in, a presumption that the law is unjust.

Alas, the SC has consistently used rational basis.

IT said...

MOreover, it ignores the fact that gay couples are raising children who are equally deserving of protection. I believe something like 25% of gay couples are raising children. So what they are saying is that OUR children are not worthy of protection.

Which is about as logical as the Catholic school in Southern California that expelled a child for the sin of gay fathers. (For those unaware, Catholic parochial schools do not limit their student body to Catholics).

Tobias Stanislas Haller BSG said...

Thanks, James. Good to hear from someone with far more knowledge in this arena than I have. I suppose "rational basis" is a term of art.

My concern remains that if this basis is used to exclude, rather than include, how does that relate to the legitimate interests of the state? In this case, excluding people because they cannot procreate seems to have no state interest. Why should it matter to the state if people can't or don't procreate?

This might have made sense in the days when birth control was illegal, and the state had an interest in growth and expansion both of territory and population -- but these circumstances are entirely different today.

In fact, people who don't procreate won't be drawing on or using-up some state resources, and may in fact provide a larger pool of people capable of and willing to adopt -- thus reducing the burdens on those who do procreate but may have unwanted children. So it could be argued that the state's interest is best served by allowing same-sex marriage rather than opposing it.

Or am I off my rational basis on this? ;-)

Anonymous said...

Why do you think no one ever challenge DOMA's constitutionality (as violating the Full Faith and Credit clause)? From that standpont, I'm amazed it held up for as long as it did.

Tobias Stanislas Haller BSG said...

I think a case along those lines is also in the works. It required -- as I as a non-lawyer understand it -- someone with "standing" to actually bring the case; in this case, someone married in one state having their marriage not be recognized in another state. I know there are plenty of people to whom that likely applies, but perhaps until recently few were willing to engage in a costly lawsuit. But I do believe such a suit is in the works. I'm not sure if this angle is part of the case I heard about on the radio. I missed the very opening of the story.

James said...

My concern remains that if this basis is used to exclude, rather than include, how does that relate to the legitimate interests of the state?

"Rational Basis" = It can be as simple as the the argument that marriage prevents a nation full of bastards (legal). Is that true? Yes. The state has proved a "reasonable interest" in preserving m/f marriage; therefore, the law is constitutional.

"Heightened Scrutiny" = This classification was created specifically for gender issues. - The defendant must prove a dang good reason why the perceived discrimination was legal (the law is not unconstitutional).

"Strict Scrutiny" = Civil Rights issues. The state must show a "compelling interest" in why denying civil rights is justified.

In heightened and strict, the court approaches the issue with a presumption that the discrimination (or law) is unconstitutional. The justices come at the case with the presumption the plaintiff is wrong.

In "Rational Basis" the court approaches the issue with a presumption that the law (or discrimination) is constitutional. The justices come to the case with the presumption that the State is right.

The US SC has heretofore refused to treat sexuality with Heightened or Strict Scrutiny.

I hope that helps. But remember, I'm not a lawyer - I just had to suffer though several courses in constitutional law.

James said...

PS -

I don't think the procreation argument would hold up under rational basis. The court would have to be really stupid to uphod the ban based procreation.

The plaintiff would/could argue that most births in the US take place in non-married m/f relationships. Also that many marriages are contracted between m/f couples who have no intention of procreating - a voluntary decision, not medical defect preventing procreation.

The court would have to acknowledge the validity of those fact and find for the plaintiff.

Tobias Stanislas Haller BSG said...

Thanks again, James. Though not a lawyer, you clearly have done your studies!

I guess what I'm missing is that in the rational basis example you provide, while I can see it is a rational basis to preserve mixed-sex marriage, it doesn't apply to excluding same-sex marriages. Since the law in question is exclusionary rather than permissive, it seems to me that it is the exclusionary part that needs a rational basis. After all, if the rational basis is "there shall be no bastards" then a same-sex couple is unlikely to produce any, and might indeed adopt a few that are.

In other words, I can see a rational basis test that encourages marriage; but not one that excludes same-sex marriage recognition -- which is what DOMA does.

As it stands, is it not the case the several states -- even those that forbid cousin-marriage -- must recognize such marriages performed in the states that allow them -- and these marriages are by statute held to be non-procreative?

And how was this dealt with in the case of miscegination? Was it not shown that the "rational basis" was not in fact rational?

My hope is that the federal bench will look on these cases with "enhanced" care if not scrutiny. I know there have been a few cases when the courts have edged beyond the "rational basis" test when rights issues are raised.

It will be an interesting case to watch. Thanks again for your more knowledgeable input to my amateur musings.

Tobias Stanislas Haller BSG said...

James, your second note crossed my reply to your first. IIRC the procreation argument was the only "rational basis" raised by the spokesperson for the defending organization. So if that makes their case weak -- which I think it does -- so much to the good for the possibilities of overturning DOMA.

Thanks again, T.

James said...

Starr's entire 55 page brief to the court is found at the link below; it's worthy of a read for many reasons, the most important one is the precedents cited.

Your posts have nailed the problem with using rational basis for cases of sexuality. Until the courts use a higher scrutiny, things will go bad for the GLBT community for the most part.

In the Loving case you referred to was as much about race and interracial marriage. The court found that that anti-miscegenation laws were racist and had been enacted to perpetuate white supremacy -- something that the 1960s were all about ending. That's what tipped the scale in favour of Loving.

Okay, that's the end of my lesson for today.

I love your blog, by the way.

The link:

Tobias Stanislas Haller BSG said...

Thanks again James. The brief looks interesting and I'll give it a read. That's the California case, though, and I think the one I was talking about (from NPR this a.m.) is a Federal case challenging DOMA. Similar issues, no doubt, will arise...

IT said...

The problem with challenging DOMA is that the Roberts court is very conservative and the intellectual force that is the heartless Justice Scalia has already made it clear he vigorously opposes gay marriage. And a setback at the court level will set the movement back a long time.

The problem is that the justices are not blind and fair. They are politicians just like everyone else.

Tobias Stanislas Haller BSG said...

Amen, IT. Also many anti-SSM folks seem to suffer from the "no fair hitting back" asymmetry. They feel free to express their heart-felt views, but get upset when they are opposed. There was another story on NPR this a.m., this time about the move to challenge Prop-8, and the protests against Prop-8 supporters. The P-8 supporters were whining about lost business, and how they've "suffered" merely for expressing their religious beliefs. They seem to make no connection between their actions in support of P-8 and the damage done to the married couples whose marriages are threatened, and those who have had to delay their plans to marry. SSM has absolutely no consequences for them, yet their action on P-8 had real harmful consequences on others.

Their freedom of religion stops at the end of my freedom to live. God help us if such people ever gain the power to enforce what they believe.

On that theme, just saw "Goya's Ghosts" the other night. An interesting film with an unpleasant theme, but some fine performances. The excesses of true believers of all sorts. And I learned something I didn't know, and have since learned more about it. In addition to labeling the Copernican system a heresy, the Roman Catholics also took on atomic theory, because it contradicted Thomas Aquinas and his mentor Aristotle, and undercut the doctrine of transubstantiation.

They will never learn -- because they think they know all. Hubris is the enemy of knowledge, both of the world, and of God.

IT said...

Day to Day on NPR also interviewed Prop8 people. They interviewed a Baptist pastor in San Diego who said there had been violence against churches and against people. This is a common talking point of the conservatives who are claiming the gays are terrorists and violent mobs, but there have actually been very few dcoumented cases and in fact, the protests I have attended, the only arrests have been the ProH8 counter protestors. I am pretty sure his church has not been attacked as I follow San Diego news closely. The reporter let him get away with this lie without challenging him. It's very bad.

This is going to continue to be a big talking point and expect them to go all out if they lose.


Suzer said...

I don't understand why rational basis has been used at all (except, of course, that it is explained because of discrimination against GLBT people -- if we use a rational basis test, we can deny rights more easily).

Marriage is a fundamental right in this country. Case law states as much, and the right to marry extends to felons, death row inmates, three-time divorcees and pop stars with 48 hour marriages. If a fundamental right is involved (like marriage), strict scrutiny is invoked. Despite this basic principle, courts still do a dog and pony show to insist that a rational basis is all they need.

Someday, SCOTUS will decide this in favor of same-sex marriage, but I don't know if it will be with the present court make up. There are too many prejudices on the part of the justices, and society, for it to happen right away. Perhaps I'm simplifying it too much, but under past civil rights decisions, it does seem a simple answer to me. There must be equality, period.

If the state wishes to make ALL marriages civil unions, then let individual religions decide which marriages they will bless and which they will not, that is fine. But the state cannot constitutionally deny a fundamental right like marriage. This is why we've seen a drive to write discrimination into the Constitution itself.

Tobias Stanislas Haller BSG said...

Thanks Suzer. I do think it is important to recognize that no church is forced to marry anyone who doesn't meet the standards of that church. Thus an RC priest does not have to marry a couple one of whose members is divorced. Neither does an Episcopal priest if she is opposed to divorce -- we Episcopal priests have an explicit canonical "right of refusal" on any marriage.

I think this needs to be said over and over because one of the common arguments is that the provision of civil marriage equality somehow treads on religious rights. It doesn't -- at all! The problem now is religious folks intruding themselves into the civil arena and treading on civil rights!!!

As the Woodpecker Song so eloquently says, "Get yer finger out of it; it don't belong to you!"

Anonymous said...

It is only a civil right if :
a. The Constitution (State or Federal) identifies it as such; or
b. The Supreme Court (again
State or Federal) declares that it somehow flows from other express Constitutional rights.
Starting out by calling it a civil right assumes the argument. As far as the Constitutional test of "rational basis," is concerned, a state legislature or Congress does not have to be "right." It only has to have made a decision based upon one of several possible bases of support. It is like a trial with witnesses. Ten of them say somehting happened in a certain way and one says it happened in another. As long as there is any evidence in the record supporting the finding, the trier of fact can conclide it happened in the way claimed by the lone witness.

Anonymous said...

A question for you. If, as some hope, GC adopts a new canon changing the definition of marriage form the relationship between a man and a woman to "two persons," won't those who refuse to perform SSM and or preach that it is contrary to Scripture, God's Law, Christian morality, etc. make themselves liable for deposition for having "violated" the canons?

Tobias Stanislas Haller BSG said...

Dan, two things:
The understanding of rights in the legal tradition is not that they come into existence when some body declares them so, but that they are natural and inherent, and are recognized as such. See the more detailed conversation over at The Anglican Curmudgeon.

Second, Canon I.18.4 states in its entirety, "It shall be within the discretion of any Member of the Clergy of this Church to decline to solemnize any marriage." Thus, in spite of the provision, for example, for a couple one of whose members is divorced or not baptized to marry in the Episcopal Church, a priest can refuse to solemnize the marriage. So any priest who had conscientious objections on any ground whatsoever can refuse to participate in a marriage ceremony.

It is astonishing to me how often this red herring is fished from the waters. Allowing same-sex marriage will in no way require any parish or priest to participate.