In the latest of their many writings purporting to advance the “truth about marriage,” on Thursday, at Public Discourse, traditionalists Sherif Girgis, Ryan T. Anderson and Robert P. George begin thus:
Here’s the least reported fact about yesterday’s rulings on marriage: the Supreme Court refused to give Ted Olson and David Boies, the lawyers suing to overturn Prop 8, what they wanted. The Court refused to redefine marriage for the entire nation….
The least reported fact, that is, except that major news organizations were not the least bit shy about reporting it. Reuters, the Los Angeles Times and the New York Times all put the Court’s refusal to overturn state marriage laws in the second sentence of their reports. The New York Times further handed over prime online space to none other than Ryan T. Anderson to say the same thing, while USA Today quoted Girgis-Anderson-George soulmate Tony Perkins, chair of the Family Research Council, reciting the same talking point. And so on for many other news reports.
So if you’re wondering whether Sherif Girgis, Ryan Anderson and Robby George managed to get even one sentence into their latest installment of the “truth about marriage” without veering sharply from the truth, the answer is: No, they didn’t.
8 Comments for “The “least reported fact” about Wednesday’s rulings?”
posted by Jorge on
Given that the Court went a non-“ideolgical” 5-4 split in ruling the Prop 8 proponents lacked standing, what do you think would have happened if they had gone the other way?
Would we even have had enough justices on any side to issue a legally binding decision? We’d have one mess of a ruling. They’ve made do with worse, though.
posted by Tom Scharbach on
So if you’re wondering whether Sherif Girgis, Ryan Anderson and Robby George managed to get even one sentence into their latest installment of the “truth about marriage” without veering sharply from the truth, the answer is: No, they didn’t.
And it gets worse from there. Consider the second and third sentences: “The Court refused to redefine marriage for the entire nation. The Court refused to “discover” a constitutional right to same-sex marriage.”
“Discover” a constitutional right to same-sex marriage?
If the Court eventually issues a Loving-equivalent decision on marriage equality, it will not be because the Court “discovered” a new right. It will be because the Court applied existing and long-standing Constitutional principles to a newly-considered legal question, the question of whether due process and/or equal protection principles of the Constitution apply to same-sex couples who seek to marry under civil law.
The Court will no more have to “discover” a right to same-sex marriage in our case than it had to “discover” a right to interracial marriage in Loving. The question presented in our case will be the same question presented in Loving, that is, whether or not state governments can, under our Constitution, discriminate between individuals, granting a right to one individual while denying it to another, and on what basis.
The crux of the argument that Girgis, Anderson and George make in this article, as well as in their book “What is Marriage” (a fair summary of the points made in the book is presented in a Heritage Foundation article authored by Anderson), is that there exists “a contest between two visions of marriage — what he calls the “conjugal” and “consent-based” views.
The “conjugal view”, strongly argued by the trio in their book, insists that the nature of marriage is essentially reproductive, that is, “the complimentary, biological fact that reproduction depends on a man and a woman”, a condition which is met by sterile male-female couples because they can go through the motions of reproduction using the right parts, even if nothing will come of it, or because they have the right parts to simulate reproductive sex, even if (say in the case of an old man) the parts are not up to the task of being used for that purpose.
It is, in a word, the appearance of reproduction that is the essence of marriage in the trio’s “conjugal view”, and The argument logically demands a legal understanding that civil law marriage is essentially reproductive, loaded gun or not in the particular marriage.
The trio contrasts this view with the “consent view”, that is, that marriage at civil law is essentially a legal contract entered into by two individuals, a contract which may be entered into by the two individuals for a variety of reasons — sometimes “conjugal”, sometimes for companionship and support, sometimes for other purposes or a combination of purposes. In the “consent view”, the reason why the individuals marry is not determinative to the essence of civil marriage. Instead, the fact that the individuals consent to entering into a government-enforced contract that confers legal rights and requires legal responsibilities is determinative.
I think that Girgis, Anderson and George have identified the distinction between the majority’s position and the minority’s position (at least as to Justices Scalia and Alito) in Windsor. The question, though, is whether, constitutionally, government can enforce the “conjugal view” of marriage, and on what basis, supported by and objective, religiously-neutral, rationale.
And it is at that point, I think, that the trio’s argument falls apart, because the religiously-neutral arguments that marriage is essentially about organs rather than the consent of individuals, falls apart.
The future of marriage in the Court will depend, in large part, whether those who argue that government can deny the “consent view” as the essence of marriage, and substitute the “conjugal view” instead, have an objective, religiously-neutral, rational basis for doing so. So far, the proponents of the “conjugal view” have failed in this effort. I think that will continue to be the case moving forward.
posted by Jorge on
The crux of the argument that Girgis, Anderson and George make in this article, as well as in their book “What is Marriage” (a fair summary of the points made in the book is presented in a Heritage Foundation article authored by Anderson), is that there exists “a contest between two visions of marriage — what he calls the “conjugal” and “consent-based” views.
Oh, so that’s where Justice Alito got that expression from.
The question, though, is whether, constitutionally, government can enforce the “conjugal view” of marriage, and on what basis, supported by and objective, religiously-neutral, rationale.
Of course, Justice Alito turns it around and argues that what Ms. Windsor wants to do is enforce the “consent-based” view of marriage, and that this is a political choice that the Supreme Court cannot make. It is a secular version of my religious argument against enforcing the liberal religious interpretation of marriage over the conservative religious interpretation, and it’s a stronger one than mine. If there is a constitutional right to marriage to be found in the Constitution, it should be found without reference to either the consent-based or conjugal-based views of marriage.
posted by Houndentenor on
Why are religious arguments valid in court? The argument is about whether or not the federal government must recognize a marriage that is legal in Massachusetts. There is no religious component to the complaint. Religious arguments are irrelevant.
posted by Tom Scharbach on
Oh, so that’s where Justice Alito got that expression from.
Yup. Girgis, Anderson and George’s theory of “conjugal marriage” is dressed-up Roman Catholic “natural law” teaching, right down to the language (e.g. “complimentary”).
If there is a constitutional right to marriage to be found in the Constitution …
The “right to marry” is an established right under the Constitution. Over the course of the last 125 years, the Court has issued opinions in at least 14 cases that directly or indirectly speak to the issue:
(1) Maynard v. Hill, 125 U.S. 190 (1888) Marriage is “the most important relation in life” and “the foundation of the family and society, without which there would be neither civilization nor progress.”
(2) Meyer v. Nebraska, 262 U.S. 390 (1923) The right “to marry, establish a home and bring up children” is a central part of liberty protected by the Due Process Clause.
(3) Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) Marriage is “one of the basic civil rights of man” and “fundamental to the very existence and survival of the race.”
(4) Griswold v. Connecticut, 381 U.S. 479 (1965) “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
(5) Loving v. Virginia, 388 U.S. 1 (1967) “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
(6) Boddie v. Connecticut, 401 U.S. 371 (1971) “[M]arriage involves interests of basic importance to our society” and is “a fundamental human relationship.”
(7) Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974) “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”
(8) Moore v. City of East Cleveland, 431 U.S. 494 (1977) “[W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”
(9) Carey v. Population Services International, 431 U.S. 678 (1977) “[I]t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education.”
(10) Zablocki v. Redhail, 434 U.S. 374 (1978) “[T]he right to marry is of fundamental importance for all individuals.”
(11) Turner v. Safley, 482 U.S. 78 (1987) “[T]he decision to marry is a fundamental right” and an “expression … of emotional support and public commitment.”
(12) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
(13) M.L.B. v. S.L.J., 519 U.S. 102 (1996) “Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”
(14) Lawrence v. Texas, 539 U.S. 558 (2003) “[O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education.”
… it should be found without reference to either the consent-based or conjugal-based views of marriage.
So far, that has been the case. The distinction between “conjugal-based” (correct parts) view and “consent-based” (civil law contract between willing individuals) has never been addressed by the Court, because all of the cases decided to date have involved the civil law marriage of two individuals with “complimentary” parts.
The requirement, if any, that a civil law marriage must meet the standards imposed by the “conjugal-based” view of marriage, has never been considered.
Religious conservatives now seek to have the Court impose the “conjugal-based” standard for marriage into civil law (and by definition, the Constitution), and we’ll see how that works out for them. I don’t think that it is going to fly.
It is a secular version of my religious argument against enforcing the liberal religious interpretation of marriage over the conservative religious interpretation, and it’s a stronger one than mine.
When you get right down to it, writing the “conjugal view” of marriage into the Constitution probably violates the “establishment” clause of the 1st Amendment, since it entails embedding a conservative Christian view of marriage into the Constitution, a view not held by other religions, including a number of Christian denominations.
posted by Houndentenor on
The anti-gay bigots are looking for a silver lining here. I can’t remember anyone who had paid attention to the cases and read or listened to the oral arguments who thought there was any chance that the court was going to overturn the gay marriage bans in over 30 states. Olson argued for that, but no one I can think of actually thought they would.
posted by Don on
It’s a nice enough sounding argument. And I must admit I’m impressed that they actually tried to tackle the thorniest part of the hetero-only marriage problem: childless couples. It sounds much prettier and less fearful (I don’t like bigoted) than what is really going on. It allows people to sound smart while reinforcing their existing beliefs. But it doesn’t pass the common sense smell test. If two older citizens with no intention to have children can get married, then why can’t two other citizens with no intention of having children get married? And if infertile couple A can get married and adopt, then why can’t infertile couple B do it too? “Because their parts ‘match'”
They have piled on the polysyllabic words and fluffed out the argument. But it still is a five-year-old’s answer: “Because”
It was the same logic behind Jim Crow: everyone knows its the natural order of things. A very fancy sounding “because” argument.
And luckily we have a court system that compliments our legislative system that will not allow “because I said so” as sufficient reason for a majority to trample a minority.
posted by Houndentenor on
And the flip side of that: gay couples who do have children.