Another Perspective

Tailoring Marriage Law to Satisfy Equal Protection and Due Process

A thought experiment in the wake of the challenge to Proposition 8.

By 2.9.11

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We have presumed that, if traditional marriage laws are unconstitutional, the remedy is to make marriage eligibility less restrictive and allow same-sex couples to marry. What if, instead, we chose an alternative method to meet constitutional requirements, namely, revising our marriage laws to make them more restrictive?

The Ninth Circuit is currently considering an appeal from a federal trial court which found California's Proposition 8, an amendment to the California state constitution reserving marriage to same-sex couples, unconstitutional under two provisions of the United States Constitution, the Equal Protection and Due Process Clauses. The case is called Perry v. Schwarzenegger. All of the legal briefs are accessible to the public.

When our courts consider allegations that a law is unconstitutional under either of these Clauses, one of their first steps is to determine how much of a burden the defenders have. For example, if a claim based on racial discrimination is alleged or if a claim that the law violates a fundamental right is alleged, the defenders must bear the burden of showing that the law meets the high standard of "strict scrutiny." (The lesser standard is merely that the law has a "rational basis" and the trial judge found that traditional marriage's exclusion of same-sex couples did not have a rational basis.) In this case, the plaintiffs make both types of allegations. They allege that Prop 8 discriminated on the basis of gender (or more specifically, sexual orientation) and also violated a fundamental right, the right to marry. Under either claim, Prop 8 would have to meet the standard of "strict scrutiny" to be ruled constitutional. The plaintiffs allege that Prop 8 meets neither "strict scrutiny" nor even "rational basis." For their part, the defenders argue that Prop 8 does not discriminate on the basis of gender and does not implicate the right to marry -- neither of which is the subject of this essay. The defenders further argue that Prop 8 meets either standard -- the subject of this essay.

The plaintiffs claim that the justification asserted by defenders of Prop 8 for traditional, opposite-sex, marriage, namely, responsible procreation, is both overinclusive and underinclusive. It is overinclusive because couples, who do not intend to have children or, on account of age or infertility, cannot have children, may marry. And it is underinclusive because couples who care for each other -- same-sex couples, close-kin couples, and underage couples, cannot marry. This page authored my essay on the underinclusive argument. I turn to the overinclusive argument.

If a court finds the eligibility requirements for traditional marriage unconstitutionally overinclusive, it has two alternatives: It can order the expansion of the requirements to encompass same-sex couples or it can order a narrowing of the requirements so that eligibility for traditional marriage is better tailored to fit the justification for traditional marriage. The briefs of the parties in the California case have little to say on this alternative. What would such a law look like? It involves identifying and barring infertile couples (at any one time, about one in six or seven couples in the United States).

The first step would be to look at what the parties mean by "responsible procreation." Because intercourse can result (often unintentionally) in a child, society has an interest in ensuring that procreation occurs within marriage. Why? Because marriage facilitates the identification of the father of a child born to a woman. Because marriage ensures that the child can look -- long term -- to both biological father and mother for rearing. Because, while alternative arrangements of single parent or non-biological (adoptive) parents may be suitable, they are not as optimal for the child.

The second step would be to revise current law to promote "responsible procreation." This would consist of adding new requirements before and during a marriage.

Premarital Requirements
The law could require all brides and groom to sign a declaration, on or before their wedding day, that they intended to have children, as a condition to obtaining a marriage license. No schedule of course (but see below). Easy enough to do.

The law could presume, based on biology, that women over the age of 50 are infertile and prohibit them from marrying. (The ability of a woman to conceive due to artificial stimulation would not be allowed to rebut this legal presumption.) If the prospective bride were under the age of 50, the law would require all such brides and their grooms to be tested and the positive results for fertility would be submitted (with protections of privacy) as a condition of obtaining a marriage license. Some prospective brides and grooms (and their parents) would welcome such a law, but are uncomfortable with asking their intendeds under current law. A legal mandate would make a request unnecessary. A negative result on the fertility testing would prevent a person from marrying -- unless the situation were corrected so as to result in a positive test. (Thus, the law would not recognize the prospect of artificial insemination or in vitro fertilization as meeting this requirement.) Doctors and couples who submitted positive results knowing that they were untrue would be liable for fraud and the marriages would be annulled.

Postmarital Requirements
The law could give, let's say, 10 years, for the marriage to produce a child. If, by their 10thanniversary, or sooner if the wife had reached the age of 50 (and was presumptively infertile), the couple could not submit a birth certificate for a natural born child, the government would terminate their marriage; the couple would not be "divorced" but "terminated." There would be no allowance for women under the age of 50 who had had miscarriages or abortions or whose children had been born and later died. The only way for a childless couple to avoid the termination would be to adopt children, including stepchildren.

When the youngest natural or adoptive child of a couple reaches age 18, the couple's period of "responsible procreation" would have come to an end. Sons and daughters over the age of 18 can vote, marry without their parents' consent, join the military without their parents' consent, drive, etc. They may desire to have two parents, but they do not need the two parents to be married to each other. The government would terminate the marriage, with some obligations imposed on the parents to provide for postsecondary education. After termination, the couple could remain friends. They could even continue to live together. The couple could avoid the prospect of marital termination on this ground by adopting children under the age of 18. Moreover, while the terminated wife, if now postmenopausal in fact or in law (that is, over the age of 50), would be prohibited from marrying, the terminated husband could marry a younger, fertile, woman.

Reflections
We find this thought experiment repugnant on several bases. First, for government to regulate marriage in such a way would assume that government created marriage and could manipulate it in any way it wishes. Government did not create marriage. Human beings did not sit around a campfire or in a legislative assembly thinking up the idea of marriage, creating something new. Marriage existed before law, before history.

Second, such legislation would create burdens on private parties and on the government to police it: Who is fertile? Who has had children within the allotted time? Who has reached age 50? Who has children all over the age of 18? All in an effort to identify and bar about 15% of couples from marrying. Our privacy rights assume that the government may not intrude into whether or not we are fertile or intend or do not intend to have children. And only we, not the government, may initiate proceedings to end our marriages.

Third, this kind of legislation would allow men to abandon women who are past the age of child-bearing and child-rearing and encourage them to marry younger women and start second families. Now, you can say that no-fault divorce also allows husbands to leave their wives for younger women. True enough and bad enough. No-fault divorce is an example of what can happen when legislatures think that marriage is subject to their power. No-fault divorce has fouled our nests.  

This thought experiment demonstrates that current marriage law is tailored to fit -- as tightly as we should dare go -- the justification of "responsible procreation" for traditional marriage of one man and one woman.

Traditional marriage reflects and upholds who we are. Biologically, we are of two genders and only women can bear children. While women can bear children without benefit of marriage, marriage does indeed provide a benefit -- in the first instance to the children, and second, to the mother, the father, and society. The focus of traditional marriage is on the needs of children, not, as one brief put it, on "the glorification of the adult self." If the institution of marriage is not focused on children, but rather, as the opponents of Prop 8 assert, on the affective emotions of the adults, then government has no particular interest in the institution because it has no particular interest in the (mere) lifelong companionship of adults.

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About the Author
James M. Thunder is a Washington, D.C. attorney.