7.1 Is “same-sex marriage” coherent?

In re Marriage Cases (2008) 43 Cal.4th 757, Chief Justice George designed a silly argument to claim that limiting marriage to heterosexual couplings violated a fundamental California right: the right to marry. California courts recognized a fundamental right to marry when they invalidated a Jim Crow law against interracial marriage. Held, the fundamental right to marriage can't be abridged. Blacks had been told that they already had the right to marry–other blacks—but limiting whom they could marry restricted the exercise of a fundamental right. (Perez v. Sharp (1948) 32 Cal.2d 711). In Perez, no question existed that the interracial relationship the court sanctioned was properly termed "marriage." A right to x is limited precisely and expressly by x's definition, an impediment to transposing the logic of black marital integrationism to same-sex marriage. If marriage means pair bonding between oppositely gendered persons, one can't derive from a right to "marriage" the marital prerogative for persons identically gendered. Limiting the right to marry by the definition of the term "marry" itself isn't artificial. A legal right to "marry" can only follow the definition of "marry."

The semantics of "marriage" don't determine the civil rights of gays. To argue same-sex marriage based on a right to marriage is absurd: marriage means opposite-sex bondings; to argue against a right to same-sex marriage merely because a "right to marry" cannot justify it is unwarranted. If gays should be allowed to enter into official "marriages" because legal right so requires, the right in question is not the right to "marry." The argument required of Chief Justice George is more complicated than demonstrating "marriage" is a right: he needs to infer a broader right which the right to marry merely expresses. This broader right, not Chief Justice George's tortured justification, is same-sex marriage's vision. To construct this broader right, the gay visionary purifies the ordinary meaning of the term "marriage"—which includes two elements: pair bonding and sexual complementarity—to a pair-bonding core, notwithstanding that by ordinary meaning sexual complementarity is a stronger requirement than pair bonding, polygamy and group marriage forms of "marriage" stretching the terms only slightly. Ordinary language's emphasis on sexual complementarity bespeaks an ordinary-meaning definition of "marriage" centered on bringing up children born of the supporting parents; but gay visionaries celebrate a different virtue, the dyadic bond combining sex, economic responsibility, and affection.

A right for gays to marry each other needn't derive, as a matter of logic, from principles that mention "marriage," but Chief Justice George must maintain that when courts held that people have the right to "marry" they actually meant state recognition for pair-bonding relationships identical to marriage except not featuring sexual complementarity. This concept of the sanctity of marriage-like pair bonding is the same-sex marriage vision. What deserve protection on this view are long-term relationships based in prototype on romantic love, combining sexual and economic commitment. Advocates hold that celebrating and protecting this relationship is what truly justifies upholding marriage as a legal status.

When fleshed out, the same-sex marriage issue, a question of social vision, isn't judicial, and the logical leaps are not merely legal. Psychology hasn't seriously addressed whether the affective core of same-sex pair bonding is identical to that prototypically found in sexually complementary relationships.

7.0 “In re marriage cases” and the problem of nondiscrete suspect classes

Starting in the late 30s, U.S. jurisdictions have favored — as the framework mechanism for prioritizing equal-protection rights — delineating suspect classes, whose interests call for searching scrutiny and a presumption of impropriety when laws specifically disadvantage them. The California decision In re Marriage Cases (2008) 43 Cal.4th 757, better known for briefly providing gays with the option of intermarriage, again raised issues concerning how suspect classes are determined. Does admitting gays to the status of a suspect class expand the equal protection of the law, or does it dilute "suspect class," hence, protections offered to the classic exemplars, race and national origin?


While political reasons explain why gays are now a suspect class in California but aren't even entitled to intermediate scrutiny under federal law, the difference between California state law and federal law provides another vantage for comparison. The correct application of the standards each jurisdiction accepts rationally explains the different conclusions, without withdrawing the question of which criterion is sounder.


The federal criteria for a suspect class are usually stated as:

(1) A discrete and insular minority who (2) possess an immutable trait (3) share a history of discrimination, and (4) are powerless to protect themselves via the political process.

These contrast with the California criteria:

(1) An immutable trait with (2) no relationship to a person's ability to perform or contribute to society and (3) associated with a stigma of inferiority and second-class citizenship.

The critical difference — one often ignored and seldom subject to exegesis — is that California lacks the requirement for a suspect class that the minority discriminated against must be "discrete;" assessing California constitutional procedure requires analyzing the meaning and function of this federal requirement. A discrete class is one well defined to set it off from other classes; it has sharp boundaries, rather than being continuous and subtly grading into other categories. Race, for example, is a discrete class, at least formally speaking, because no question of degree is involved in answering whether a person belongs to a given race. As supposedly biological groups, racial categories are not distinct. Not only are races not well-defined separate groups, but a person may be said to belong to a race by degree: one may said, for instance, to be 1/8 black. But as a social category, race is treated as distinct. Races in use typically have a decisive criterion, such as the rule that with any ascertainable black lineage is black.


Why aren't short people a suspect class? Research attests to the disadvantages of being short, attests to the prejudice of the taller population and even of the short themselves against the short of stature. Short people do not form a discrete class. No boundary demarcates the merely height challenged from the egregiously diminutive. The nondiscreteness of a class such as short people is significant for constitutional analysis for two reasons. First, a nondiscrete category will be less apt to be subject to serious discrimination because the very short will tend to find political allies among the shortish. The very short might indeed be subject to serious animus if they were isolated from their similars. The prejudice against a man 5 feet six inches may represent only a statistical trend. But might a man 4 feet six inches often be perceived as strange, even creepy? But the absence of any point where degree changes to kind makes it unlikely that the very short will be singled out for persecution. An attack on the 4-feet-six inchers will threaten the 5-feet-two inchers, of whom there might be many enough to preclude the persecution of the first group. Second, short people are hard to protect in the unlikely circumstance they are the object of persecution. Because short people aren't a discrete class, protection offered to those discriminated against by height knows no natural limits. A six footer might make the case that a person 6-feet-6 inches received unjustified favored treatment based on the irrational stereotype that tall people are smarter or in other ways better.


Discreteness's importance as a criterion for suspect classes is apparent when discreteness is greater than for height but less than for race or national origin. City of Cleburne v. Cleburne Living Center considered whether denial of a permit to build housing for the mentally retarded violates their right to equal protection. The City of Cleburne court claimed to apply a rational-basis test for equal protection, but the case provides the kind of searching scrutiny that would be warranted only if the mentally retarded were a suspect class or, at least, entitled to heightened scrutiny. The court seemed unable to make up its mind because of the borderline status of mental retardation respecting class discreteness. (See City of Cleburne v. Cleburne Living Center (1985) 473 U.S. 432.) Mental retardation might be thought the nondiscrete low end of the intelligence continuum, so that prejudice against the retarded is checked in its implementation by numerous nonretarded dullards who might be threatened by discrimination against the retarded, but mental retardation means more than having a low IQ; psychologists have tried to define a class with more definite functional significance: a diagnosis of mental retardation represents a judgment that the person's mental equipment isn't good enough for surviving independently. The mentally retarded are arguably a discrete class.


Discreteness's importance is highlighted by considering the constitutional protection (not) afforded the impoverished: does impoverishment or indigence create a suspect class? While American law's nonchalance about the disparate financial resources of parties cries out for correction, the impoverished are unlikely to be recognized as a suspect class, even if the political prospects were more favorable. One's ability to legally defend one's rights depends in continuous fashion on one's financial resources. Carving out a discrete class of indigent citizens deserving of strict or heightened scrutiny founders on the absence of any natural boundaries circumscribing those legally disadvantaged due to poverty.


If a gene caused homosexuality, gays would form a discrete class, a consideration that may go far to explain the unlikely popularity of the biological-determinist theory among gay-rights supporters. The scientific reality is different. As Freud observed and Masters and Johnson demonstrated, humanity is inherently bisexual; what differs is the weight a person's constitution and personality allocates to adult sexuality's heterosexual and homosexual components. No discrete population of "homosexuals" exists; only varying degrees of orientational masculinity and femininity. To protect gays as a suspect class must entail protecting everyone against discrimination by the more masculine (speaking of males). Homosexuality's continuity also protects against discrimination. An attack on the flagrantly gay meets opposition from the somewhat gay, who sense that hypermasculinity run amuck would compromise their interests.


Yet, reality seems otherwise. There seems a discrete group of gays intent on marrying one another, who identify themselves as gay and thus seem to form a discrete class. This appearance is the key to understanding one of the main reasons the constitution cannot effectively protect against discrimination to a nondiscrete class. A discrete group identifying itself as "gay" no doubt exists, but the discreteness derives not from a qualitative difference between homosexuals and heterosexuals but from the discreteness of the very category consisting of those identifying themselves with the label. Protecting this category as a suspect class not only bumps up against the requirement of immutability. It also contradicts the requirement that membership in a class deemed protected not raise rational questions about group membership's relevance to the societal contribution of the group members.