Thursday, May 17, 2012

Rick Martinez on Amendment One in the N&O

I am sorry to have to write this post.

Let me start with some disclaimers.  First, Rick Martinez is my friend.  I don't mean the "I've met him, we've had coffee" sort of friend.  An actual friend, the sort of friend who honestly prayed that my eyesight would recover, and who is one of the most sincere, and brightest, people I know.

But Rick wrote a column yesterday, for the News and Observer here in Raleigh.  Here is the column.  I feel obliged to respond.

One problem is that he makes the same nonsensical "why not three people?" argument that has been decisively refuted many times.  The answer, Rick, is that the 14th Amendment guarantees (a) full rights, privileges and immunities to all citizens, (b) due process, and (c) equal protection of the law.

We offer the marriage contract, as a civil contract, with state endorsement and taxpayer-financed enforcement, to sets of two people.  They have to meet the usual common law conditions for a valid contract (of age, not contracted with anyone else, because the contract is exclusive, no duress, etc.)  But if a couple meets those conditions, then the state endorses the contract.  There are NO THREE PERSON CONTRACTS.  No one has access to those.

The question is whether the state can pick and choose which otherwise qualifying couples will have access to the protection of the law.  I say that the 14th Amendment prohibits discriminination of that sort:  if you offer the contract to ANY couples who meet the conditions for a valid contract, you have to offer that contract to ALL couples who want it.  Not the religious contract, not the sacrement of marriage, but the civil contract.  If you offer it to any, it must be open to all.

What about three person, or n-person, or "man and two goats," marriage?  (I heard that last one on a radio show, where some guy thought he had, as Rick thinks he has, a knock-down reductio ad absurdum.)  Um...really?  We don't offer those.  Not ANY of those.  That would be a different kind of contract.  The 14th Amendment nowhere guarantees complete freedom of private contract.  Now, the Lochner decision tried to defend nearly unlimited freedom of contract, but it was struck down and limited in a thousand ways.

But I'm pretty sure any fourth grader can understand the difference between (1) if you offer it to any, you have to offer it to all (which is what marriage does), and (2) you can write any old contract you want, even though no one now has that right (which is what an argument for polygamy would have to do.)  Anyone who tries to discredit argument #1 by mocking argument #2 doesn't know the fundamentals of "equal protection," and that's a key part of what it means to be a conservative American.  Shame on you, sir.

There's another problem with the column, a much bigger problem.  This is the part I'm sorry about.  But it's important.  Here is an excerpt from Rick's column, in which I have made some very small changes.  Still, I think you will notice the changes.

I voted for the Marriage Amendment because my mullah urged me to do so...

My vote, and I suspect the overwhelming majority of votes for the Marriage Amendment, was an act of devotion to faith.

It was not an act of hatred or discrimination. The Islamic religion believes and teaches, as the state’s two mullahs wrote, “… that the source of our human dignity and the respect we owe to all people, flows not from the expression of our sexual orientation nor any of our actions, but rather from the dignity given to each of us by Allah.”

Let me hasten to add that I have great respect for Islam, and I myself attend Catholic church.  So I do not mean for the comparison to be disrespectful, in any way.  Both of these great religions are entitled to their own beliefs, and in fact the 1st Amendment to the US Constitution protects the right of the bishops, and the mullahs, to define marriage within their church however they want.  If there were some threat to the CHURCH definition of marriage, I would be right there with Rick trying to defend our freedom to worship as we wish.

But the Taliban crossed a line, in Afghanistan.  They imposed their religious beliefs on other people who did not share them.  They wrote statutes, punishments, and restrictions into the law based on what "my mullah urged me to do."  The Taliban took their own religious beliefs, and imposed them by force on others.

That's what Amendment One did also, in the same way (through force), and for the same reason (religious belief).  Because a majority happened to share a particular religious view ("my pastor / my priest urged me to vote yes"), the religious majority crossed the line and imposed a restriction on the secular lives of other people who do not share the beliefs of the religious majority.

The problem with majorities is that they are fickle.  This time, Mr. Martinez was able to harness the coercive power of the state (I'm talking about uniformed men with guns, here) to do his bidding, because he happened to be in the majority. But we are all minorities, too, on some issues, especially our own property and our own beliefs.

The principle that a majority gets to define the rights, privileges, and immunities of individuals is terrifying.  That's why we have the 14th amendment, to protect against secular rights of contract in  the US from being taken over by majorities that don't approve of someone else, but don't have valid secular reasons. 

The 1st Amendment says that churches can define the religious aspects of marriage however they want.  The 14th Amendment says that churches cannot define the civil, contractual aspects of marriage for the rest of America.  It's a beautiful division of law. 

The real danger is that now that the churches have opened the portal in the wall of separation, it may go both ways.  Secular majorities may well take away tax status, impose requirements to provide contraception, and even abortions, in Catholic hospitals.  The Catholic church has, I think rightly, warned that majoritarian politics are threatening religious freedom.   The problem is that a door cannot be a wall.  Now that people like Mr. Martinez have endorsed the principle that religious beliefs can be defined by majorities, the Catholic church itself is going to have to shut down hospitals and pull way back on offering services.  And it may be that within 20 years the majority, if it happens to switch over to supporting same sex civil union, may decide to impose THEIR will on the churces.  The door swings both ways.

Rick, I'm sorry we disagree about this.  You are a good man.  But you are wrong about this.  And you are wrong in a way that is so fundamental that I had to say something.

Read more here:

Read more here:


Natalie said...

I really liked the talk you gave about this leading up to the vote.

Christopher Tozzo said...

One can actually take the "marriage qua contract" argument to another level, one that doesn't even require the Fourteenth Amendment.

The provisions of the marriage "contract" are quite specific and potent -- more so than, say, a contract to work in a bakery.

The marriage "contract" is a legally binding mutual declaration that the spouse stands above all others in terms of quite specific claims, privileges and obligations (e.g., claims under intestacy).

I'm still waiting for someone -- anyone -- who makes the "What about three people?" argument to explain how a person can simultaneously declare two different people to, as a matter of law, "stand above all others." It's a jurisprudential, indeed a metaphysical, impossibility.

Joel said...

well done

akon said...

On the three people and two goats arguments, they may not be so easy to dismiss (and maybe shouldn't be, normatively).

The 14th amendment, as you pointed out, does a lot. One provision, Privileges and Immunities, rarely comes up and really isn't relevant here (most believe it doesn't exist; Saenz gives it some new but very limited life).

Another is Equal Protection. I completely agree with your description of how that clause operates on gay marriage, but it is arguable that it is not the legally "correct" explanation. Equal Protection has been muddled, like so much of Constitutional Law, with tiers of scrutiny. Today, it is unclear where homosexuality fits in these tiers. The Court may decide that homosexuals comprise a protected class that warrants heightened scrutiny (where your analysis is surely correct), or it may decide they are not a discreet and insular minority deserving of intermediate or strict scrutiny. This is really up in the air, but cases like Lawrence and Romer suggest a move to heightened scrutiny. If homosexuals get rational basis review, it is far from certain that the Equal Protection clause guarantees an equal right to marry. So whether your analysis is "correct" (in the sense of whether it predicts what the Court will do) depends largely on how gays are seen as a class.

This brings me to Due Process. Where Equal Protection guarantees that rights enjoyed by some are enjoyed by all (depending on characteristics of the denied class), the Due Process clause guarantees some rights as fundamental. To everyone. Period. There is a long line of cases suggesting pretty strongly that marriage is one of those rights. Once one of these rights is identified, there is an impact on the Equal Protection clause: the characteristics of the affected class no longer matter. If the right is "fundamental," then the right gets strict scrutiny regardless of to whom it is denied. This, I think, is the strongest argument for finding a right to gay marriage in the 14th amendment.

This brings us back to the ménage à trois with goats. If the right of marriage is fundamental, then it is difficult to find a principled way of limiting it to two people. People, yes. Two, though, I don't see the logic. Equal Protection tied to marriage will demand strict scrutiny when anyone is restricted - polyamorous or not.

Realistically, if the Court uses the Due Process to Equal Protection bootstrap outlined above, they will frame the "fundamental right to marriage" as a "fundamental right for two people to marry" and keep bigamy illegal that way.

Anyway, I think you Equal Protection argument is good, but it presupposes that the Court will apply some type of heightened scrutiny to homosexuals as a class. There is some reason to believe that they will, but it's far from certain.

Dave said...

Mike, I've enjoyed your posts on marriage as a contract. I have a question or two and a comment.

1) Is it your view, then, that the civil marriage contract should be open to any two adults, regardless of not only gender but the nature of their relationship? For example, I've known unmarried individuals who have lived with the same roommate for decades, sharing mortgages, taking care of each other (and each other's kids), etc. But there was no sexual relationship between the two roommates. I've wondered why it is that my spouse and I receive access to preferential tax treatment when these roommates don't.

2)If this civil contract should be open to these couples, which I think it should, does it make sense to keep labeling the civil contract marriage? Of course, one reason why there's such a big battle on this issue is that both sides want the state's legitimacy and power behind their preferred definition of the term marriage.

3) Although I agree with the general sentiment of the second to last paragraph (i.e., the power of the state that you're using today might be used against you down the road when you're no longer the majority), you make it seem as if the the churches just recently opened a door where a wall once existed. But it's always been a door. I think one reason why the Catholic church has fought gay marriage at the civil level is that their religious freedom on the issue is threatened by the new definition. On the other hand, perhaps it's not their religious freedom that's threatened but the taxpayer dollars that support their charities (e.g., the tax-funded adoption charities that they closed in MA after having to allow adoptions to gay couples--however, would they have been allowed to discriminate if they provided adoption services without tax dollars?).

Anonymous said...

Of course, all these arguments would be moot if the government conferred no special privileges on anyone, period. Let religious institutions define marriage however they want. Let adults freely contract with one another.

One can dream, yes?

John Covil said...

I voted in opposition to the amendment, and understand this argument at some level, but I confess I still have some difficulty understanding it. Doesn't it hinge on what is the a priori definition of marriage? Marriage has never been anything but a two-party contract. Fine, I get that. But hasn't marriage also always been a contract between one man and one woman? Hasn't even civil marriage, for the history of Anglo-American law, been one man and one woman. This thing that is called a marriage must be made available to everyone for equal protection reasons, but isn't the discriminatory aspect, as it were, a fundamental characteristic of the thing itself? I'm not trying to make a normative claim here; I'm just addressing this rather technical legal argument. Moving to civil recognition of SSM is a new, affirmative act to create a new legal thing. It may share a common genesis with traditional marriage, but just as Rock isn't Jazz and Nietzsche isn't Kierkegaard, SSM marriage isn't the civil marriage defined by centuries of emergent law. That's my layman's legal take.

I would prefer the term "marriage" be dropped, and then the state can recognize a new legal thing called a civil union. Yes, this wouldn't be the same thing as traditional civil marriage as it exists now, and would be the creation of a new kind of contract. But I think that's more honest than just extending existing marriage to same sex partners in the guise of equal protection. I promise I'm not just trying to be difficult here. I'm really interested in hearing someone with a better understanding of legal matters address this.

I also understand that my ideal scenario is nearly impossible, politically. So I think the next best step would be to recognize SSM explicitly, legislatively. And as a political compromise, we can couple that with strengthened, explicit protections for conscientious objectors from SSM ceremony, even in the private sphere (like the wedding photographer who doesn't want to shoot a SSM ceremony).

JWO said...

So the argument has nothing to do with sexuality. IE you are proposing that any 2 adult people can marry.

It might sell better if it was put that way.

Brad said...

"Marriage has never been anything but a two-party contract. Fine, I get that. But hasn't marriage also always been a contract between one man and one woman? Hasn't even civil marriage, for the history of Anglo-American law, been one man and one woman."

No. Marriage has been many things throughout history. Hell, one of the two main presidential candidates comes from a religion that was polygamist up until a few generations ago.

Ah, the "historical definition of marriage" argument. So you pick one historical aspect of marriage and then say it trumps all others? Marriage was historically about property. How was your wife's dowery, and I presume she's effectively your property, no? Hell, up until one generation ago marriage was generally defined as being impossible between two different races. But hey, those aspects weren't "discriminatory aspect[s]," just "fundamental characteristic[s]" of marriage, right?

History is replete with "traditional" marriage being significantly altered as our conceptions of fairness have altered: women and blacks, for example, now get to be treated as well as white guys before the law. This is a good thing.

As for your solution, which is "more honest than just extending existing marriage to same sex partners in the guise of equal protection"... ok. I guess we should go back and change laws to make sure blacks and whites who married aren't "married" but are in "mixed-race unions," and that women who don't become de facto property of their husbands are in "sex-equal unions."

Those in support of things like Amendment One lose on the historical/traditional conception of marriage argument, as bad as they lose on most others. Marriage has no single traditional conception that one can point to as being inviolate while simultaneously rejecting the same status for all the parts of it we've changed over the years. Hell, it took the Catholic church thirteen centuries to get around to making the thing sacramental and not just civil.

John Covil said...

Fair points on the evolving nature of civil marriage. Something to think about.

akon said...

John -

Your argument is essentially Scalia's argument, and passes as a sophisticated legal argument. Eventually, all of this Due Process and Equal Protection business boils down to how you define the fundamental right, and there is no "right" way to do it. Scalia says, essentially, define it as narrowly as possible. Here, don't define marriage as a fundamental right to express union to the world - define it as a right for a man and woman to express union. (It sounds like Munger would frame it as "a fundamental right for two people to express union, but there's nothing inherently right about that either). Others (Stevens, probably most famously) criticized this as reactionary and disguising judicial discretion through insincere formalism. The 14th amendment is meant to apply to changing times. Looking for the most narrow definition leads to absurd results, like uphold an anti-sodomy law because there is no fundamental right to "homosexual sodomy" (later overturned in Lawrence, saying there is a fundamental right to express love through sex, more or less). So, what you point out will play a big role in the Court's decision - at what level of abstraction you frame the right could decide the entire issue if it is narrow or broad enough.

On the "it's only a name" point - the name matters. Once you give the name to some, an Equal Protection analysis applies to a name alone, even if it confers no substantive rights. See Brown v. Board, re: badge of inferiority.

JWO said...

So should marriage be separated from sex so that a person is allowed to marry brothers, sisters, parents and cousins to confer survivor benefits and legal access.

akon said...

Brad -

I think there is no winning or losing the "historical argument." There is only choosing what point and aspect of the history to base the fundamental right off of. Those favoring the "history test" on the court go with what was expected at the time of the Amendment's passing, or at least what they believe was true then.

This can lead to embarrassment though, as even most of the North had segregated schools in 1868 (and D.C. was segregated at the time of Brown). Few would claim that the 14th amendment supports segregated schools based on an "historical argument."

Thomas Pfau said...

For years, I have been fantasizing about the U.S. adopting a European-style approach: to wit, "we will have no more marriages" - as Hamlet had put it, feeling put out more or less the same way as I am here in NC. Instead, there simply ought to be civil unions for consenting and mentally competent adults. Those so inclined can then also seek to supplement their civic (legal) union with a spiritual covenant (a.k.a. 'marriage') in a religious community of their choosing. The former union is clearly a claim right, whereas the latter is not, since there is no corresponding duty: i.e., I cannot demand that my choice of (gay) marriage _must_ receive anyone's _spiritual_ blessing in the way that I have a claim on my civil union being legally sanctioned. The modern state has no business in sanctioning (or refusing to sanction) spiritual covenants, and yet its representatives remain confused both about what they are representing, and with what authority. This confusion strikes me as endemic to Western, liberal-secular institutions, which continue to flounder when it comes to identifying the sources of their legitimacy. They are uncomfortable with merely projecting authority as sheer "force", and yet they can't identify sources of moral authority such as might legitimate their institutional power. The hyper-moralizing stance of many US legislators seems to me to be an attempt to compensate for that deficit. It may also explain why politicians are actually not interested in resolving the issue but, instead, keep mining it for moral posturing. Were we to take seriously our vaunted separation of church and state we would thereby also deprive bigots and their political proxies of an eternally 'hot' topic. And there lies the rub (Hamlet again), since our political culture, its main representatives, and our institutions clearly abhor the idea of ever really "solving" an issue of this nature. Like good Machiavellians, they sense that the 'gay marriage' issue is a gift that keeps on giving.

Anonymous said...

I will echo what some others have said.

Are we defining "Marriage" as a contractual union between any two people regardless of relationship or sexual practices?

Should Fathers and Sons/Daughters, Mothers and Sons/Daughters, or Siblings be able to get married? What if they were platonic or sterilized?

The equal protection argument seems to say that they should. I am not sure I disagree, but I would like to hear the opinions of others.

To me the argument on legalizing gay unions is better made from arguing instead of them being a right that they are a good thing for society (mainly because they are a good thing for gay people who want to get married but perhaps for other reasons)

Demosthenes said...

"We offer the marriage contract, as a civil contract, with state endorsement and taxpayer-financed enforcement, to sets of two people."

Any two people? (That of course presupposes that those two people could enter into a contract.) So I could get married to my brother or sister? If not, why not?

"The question is whether the state can pick and choose which otherwise qualifying couples will have access to the protection of the law."

And your argument is that they can't. So why can't we enter into marital contracts with members of our immediate family, assuming they aren't already engaged in one? The state presumably has no compelling interest in prohibiting such a contract.

See -- with respect, Mungowitz -- this is where you and yours are hung. How can you argue for gay marriage in this manner without opening the door to marriages between relatives as well?

Moreover, why must the contract be exclusive? No, hear me out. If two individuals wish to get married in a non-exclusive fashion, leaving the door open for one or both partners to enter into a second marital contract later, why shouldn't the state be forced to honor their wishes when enforcing the contract? What harm would have been done?

With a moment's thought, any argument which posits that the state has the power to prohibit a marriage contract of that type, despite the wishes of its participants, could also be brought to bear against gay marriage.

The Outsider said...

Just once - one time, please! - I'd like to hear somebody who is in favor of allowing gays to marry acknowledge that the law of unintended consequences is in full effect. A little humility.

Maybe it's worth the risk, but we're talking about tinkering with an institution that's evolved and served civilization successfully for thousands of years. It would be great to hear somebody tackle the "unknown unknowns" in a serious way rather than just analogizing marriage to a regular old contract - QED. It's a bit unserious.

Atnor said...

I commented at the N&O site under Mr. Martinez's editorial.

I like this response as well, esp. the interesting take on the "polygamy" argument.

Good response, I enjoy your work. *tips cap*

Mark said...

This was a beautiful piece of writing. Thank you.

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