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. . . .
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.
This is a form of inclusion framing, which goes like this: Marriage for opposite-sex couples makes sense. Making this status and accompanying benefits available to them rationally advances the government’s interest in dealing with the high social consequences of heterosexual irresponsibility. Judge Posner’s opinion for the Seventh Circuit characterizes this “responsible procreation” argument in a much less flattering way, but it’s the same thing.
As the Sixth Circuit notes, it doesn’t matter for the rational validity of extending marriage to opposite-sex couples that the modern understanding of marriage as recognizing and encouraging commitment supports extending it to same-sex couples. It also doesn’t matter for this analysis that the Sixth Circuit’s explanation of marriage as evolving from “nature’s law” is very far from a complete historical understanding of why marriage developed and why the state has been involved. The need for responsible procreation is enough to explain why we extend marriage to opposite-sex couples.
The inclusion framing would be the crucial question if someone were so bold as to challenge the constitutional validity of all opposite-sex marriages. The inclusion framing would also be relevant if some litigant challenged the extension of marriage to non-fertile heterosexual couples on the grounds that allowing them to join an institution designed to deal with heterosexual procreative potential was over-inclusive. If there were a challenge to the constitutional validity of including non-procreative heterosexual marriages, the answer under an inclusion framing would surely be that their inclusion is a permissible dash of over-inclusiveness.
The problem for the Sixth Circuit’s inclusion framing is that the validity of marriage for heterosexual couples was not at all the issue in the cases before it.
III. An exclusion framing of DeBoer
There is an alternative. The Sixth Circuit could have asked whether it was rational to exclude same-sex couples given the state’s legitimate procreation interest and its decision to include opposite-sex couples who cannot procreate.
Consider that we have three kinds of couples who might qualify for marriage: (1) fertile opposite-sex couples, (2) infertile opposite-sex couples, and (3) infertile same-sex couples. If the state’s interest in marriage is channeling procreation in a responsible way, it would make sense to draw the line between the first and second groups. But once the second group is admitted, what sense does it make to draw the line between the second and third groups, who are identically positioned with respect to the state’s interest in procreation?
Something must give. Either the state has additional interests in promoting marriage that justify extending it to the second group despite the fact that they can’t procreate (like encouraging stability in people’s lives and assisting them in raising their non-biological children), in which case there isn’t an obvious reason to fence out the third group (because, as the Sixth Circuit agrees, they can serve all of the non-procreation interests in stability and child-rearing). Or there must be some further reason beyond procreative potential for drawing a line between the second and third groups. It’s not enough, even on rational-basis review, for the state to say, “we draw the line here because we want it that way.” (And despite the Sixth Circuit’s suggestion, it’s also not enough, as I’ve explained before, that the line was drawn where it was in order to punish or to defang activist judges.)
But what might that reason be, and is it rationally related to any legitimate state interest?
IV. The Sixth Circuit’s flawed answer
The Sixth Circuit suggests a couple of reasons beyond mere procreation for why a state can constitutionally include one set of couples that don’t serve the state’s procreative interest in marriage while excluding another. The first is hopelessness. “History is replete with examples of love, sex, and marriage tainted by hypocrisy,” asserts the Sixth Circuit in its description of the inconsistencies of marriage law, as if a history of hypocrisy is its own justification rather than a reason to reject it.
The DeBoer court then brings up a familiar slippery-slope argument, cautioning that “[i]f it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.” But it is not the case that there can be no rational limits on marriage, even under an exclusion framing of the issue.
Take the specific issue of group marriage. Polygamy raises all kinds of questions not raised by (straight or gay) dyadic marriage that a state might rationally take into account, including legal responsibility for children, complexified dissolution and inheritance laws, tax issues, property division, legal authority to act for a loved one, and so on. Adjusting these aspects of marriage law to accommodate groups of married people will not involve mere form-alteration or technical or administrative burdens. It will require hard policy choices. Polygamy also has a very long and often troubling history that might give pause regarding broader issues of gender equality, children’s welfare, violence and instability in the resulting larger pool of unmarried men, and more. These differences between polygamous and dyadic marriages relate to history, experience, logic, and policy that have been extensively discussed (my take is here, along with links to others’ views), even if lawyers for same-sex couples do not always seems eager to highlight them.
Whether the concerns about polygamy are ultimately persuasive is one thing, but they would at least provide a minimally rational basis for excluding group marriage. We may, despite the concerns and the historical trend against polygamy, one day accept it. But the debate about accepting it will not turn on whether we first accept gay marriage.
The closest the Sixth Circuit comes to rationally justifying the line between infertile opposite-sex couples and infertile same-sex couples is its general observation that rational-basis review allows government to make policy based on “rough correlations.”
Several cases illustrate just how seriously the federal courts must take the line-drawing deference owed the democratic process under rational basis review. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976), holds that a State may require law enforcement officers to retire without exception at age fifty, in order to assure the physical fitness of its police force. If a rough correlation between age and strength suffices to uphold exception-free retirement ages (even though some fifty-year-olds swim/bike/run triathlons), why doesn’t a correlation between male-female intercourse and procreation suffice to uphold traditional marriage laws (even though some straight couples don’t have kids and many gay couples do)?
For the Sixth Circuit, it’s the “rough correlation” between heterosexual intercourse and procreation that suffices to explain why the state can rationally include non-fertile opposite-sex couples while shutting out non-fertile same-sex couples. But that rough correlation doesn’t quite work in DeBoer in a way that supports a rational over- or under-inclusiveness. Here’s why.
The citation to Murgia exposes a basic flaw in the Sixth Circuit’s rational-basis review. There is (I’m sad to report) indeed a rough correlation for fitness purposes between those who are under 50 and those who are over 50. This particular rough correlation constitutionally legitimizes a mandatory retirement age of 50 that is clearly both under- and over-inclusive.
Murgia was correctly decided under an exclusion framing because the state excluded a group (those over 50 years old) whose age was rationally related to the very problem the government was concerned about (physical fitness) without at the same time exempting from mandatory retirement a group whose age raised the very same problem in the same way. Think about it this way: if the law in Murgia had mandated retirement only for those police officers over 50 who were left-handed it would have been a very different case.
Under an inclusion framing, such a distinction between aged left-handers and aged right-handers would have been rational because it would at least result in the discharge of more aged officers and would thus advance the state’s interest in fitness.
Under an exclusion framing, the handedness distinction would not have been rationally related to the state’s legitimate interest in the fitness of law-enforcement personnel unless there was some further rational basis for distinguishing between left-handed people over 50 and right-handed people over 50. Absent such an explanation, the handedness distinction would have been entirely arbitrary and thus unconstitutional.
If I’m right that the better approach to rational-basis review in same-sex marriage cases is exclusion framing, there is a big problem for the analysis in the DeBoer decision. There is no “rough correlation” for procreation purposes between opposite-sex couples who can’t procreate (included) and same-sex couples who can’t procreate (excluded). It’s not as if the former can procreate a little better than the latter. They are identically situated and yet only one is burdened by reference to an asserted responsible procreation interest. Unless the state has some further basis for making a distinction unrelated to its legitimate procreative interest, the law fails. This is the rational-basis issue the DeBoer court never really confronts.