(Cross-posted at Alas, A Blog. Thanks Amp!)
Is it really possible for a state to preserve its laws against same-sex marriage, limiting the institution to one man and one woman, in the face of a challenge claiming such laws are discriminatory? As state after state has those laws overturned as unconstitutional, is there no possible way for a state that doesn’t want same-sex marriage to avoid the long arm of the law?
Sure is. All the state has to do is bring back traditional marriage, and the family law that goes with it. To defend opposite-sex-only marriage laws, a state must articulate a valid secular purpose for those laws, and traditional family law is the only way to do it.
Let’s assume that we’re actually on a parallel Earth, which is exactly like our own except for two things: due to the intervention of a merciful God, there are no such things as green beans; and the United States of America has a fifty-first state, the State of Eld.
Eld is, to put it mildly, pretty socially conservative. (They think of Utah the way most of the country thinks of Berkeley.) Its laws reflect this, and on more than one occasion a federal law or Supreme Court ruling has had to drag Eld another inch closer to the twenty-first century. Eldians are law-abiding, though, and rather than try to get around these changes they shrug and move on. The Eld law books are cluttered with ancient and reactionary laws that were never formally repealed, but have no legal effect anymore.
Eld’s state Constitution is very short. It has no Equal Protection Clause or Equal Rights Amendment; the Eldians figure the civil rights guaranteed by the United States Constitution are good enough. More importantly to our example, Eld has persevered in its traditional approach to family law, refusing to “modernize” in any way until forced by higher authorities.
So, for example, there is no such thing as no-fault divorce in Eld. It all requires proof of fault, which also weighs heavily in decisions about alimony, child support and custody. The grounds for divorce are pretty limited – abuse, adultery, abandonment – but also include the inability to conceive or bear children. To get a marriage license, the prospective spouses must sign an affidavit that they are able to physically consummate the marriage and that, to the best of their knowledge, neither spouse is infertile. (Outside observers expect that sooner or later, a disabled would-be spouse denied a marriage license will file a lawsuit under the Americans with Disabilities Act.) There are no “domestic partnership” laws or benefits in Eld. Only married couples may adopt in Eld. Until quite recent Supreme Court decisions, premarital cohabiting and “fornication” were illegal, and adultery is still a felony. Eld was one of the last states to abolish coverture, and still has a patchwork of laws assigning different rights and responsibilities to spouses depending on their sex.
Because of this, Eld probably has nothing to worry about if a same-sex couple (there are a very few in Eld) wishes to challenge its prohibition on same-sex marriage. Eld will have a very easy time of showing that its laws meet a “secular legislative purpose” other than animosity toward gays. All of its laws point toward marriage as an institution centered around procreation and child-rearing, and in fact insofar as that is possible, the law discourages people who cannot bear children from marrying and urges married people to divorce an infertile spouse. Eld can say with a straight face that its laws enshrine “traditional marriage”, where gender is a proxy for a person’s rights and responsibilities within a marriage. And importantly, Eld has no state Equal Protection Clause; its laws offer no protection on the basis of gender or sexual orientation beyond those already recognized as existing at the federal level – where there has been no significant, negative ruling on same-sex marriage.
So all we have to do is roll back the clock so our marriage laws are just like Eld’s. For someone opposed to same-sex marriage, isn’t that a price worth paying?