Is Marriage Fundamental?

Judge Posner is not my favorite judge by any means.  I've disagreed with his economics-based approach to jurisprudence since I first read those opinions in law school (largely because I've disagreed with the supremacy of market-based, resource-scarce economic logic since I first began reflecting on it).  Yet I enjoyed listening to to old Dick go after the learned counsel for the state of Indiana on the question of gay marriage this morning.

This is a question intimately related to the state of Utah and its denizens, of course, as learned counsel for the state of Utah are seeking to appeal orders from the Tenth Circuit ordering recognition of same-sex marriage.  The question consumes our citizenry and religious leaders (or at least some of them).  Unfortunately, even learned counsel, and the judges who preside over the cases they argue, misapprehend the question so frequently that it makes me forget the more mundane jurisprudence of market economics and hold fast to my near exploding head.

First things first.  Most laws are poorly crafted.  They're overinclusive.  They're underinclusive.  They're frequently both at the same time.  Legislation is a messy process, led not by the most intellectually gifted, but rather by the most politically savvy.  We elect our legislators by popular vote, and even occasionally enact laws and constitutional provisions at the ballot box.  For anyone who craves a rational, thoughtful, carefully crafted approach to governance, this system is weak at best.  Yet we uphold this system for a variety of reasons, good and bad.

Disingenuous cries of an activist judiciary notwithstanding, our judiciary upholds the vast majority of laws emerging from our legislatures and ballot initiatives.  No problem here.  Practically every law has a rational basis.  Meaning, there's almost always some kind of connection, however tenuous, between a law's purpose and its practical effect.  The practical effect can extend beyond the law's purpose, burdening more people than necessary.  That makes the law overinclusive.  The practical effect can fail to address the purpose in some circumstances, failing to protect some people who were intended in the original purpose.  That makes the law underinclusive.  Laws can have all kinds of bizarre consequences, foreseen and unforeseen.  Getting back to learned counsel from the state of Indiana, justifying marital rights on the best interests of children will, apparently, inevitably, lead to the horrors of plural marriage!  We can concoct similarly inane arguments (and even some fairly sensible ones) to demonstrate how limiting marriage to opposite sex couples creates both overinclusive and underinclusive problems, depending on the law's supposed purpose.  Yet we don't demand perfection from our legislators, in most cases.

When a law implicates a fundamental right, however, or when a law explicitly excludes a protected class of people, it's not enough for the law to be simply rational.  The due process and equal protection clauses of our constitution demand that we scrutinize these laws.  Rights specified in the Constitution, speech, press, assembly, qualify without question as fundamental.  If laws impinging on these rights are overinclusive or underinclusive, adherence to the Constitution demands that these laws be invalidated.  We cannot, after all, lay claim to status as a nation of laws if these laws recklessly violate the fundamental rights of even a small minority of our people.

Hence the question of this post.  Is marriage a right, the kind of which places it in the same place, legally, as the right to speech?  We allow all kinds of speech some find abhorrent.  The right to speech, being fundamental, results in the Ku Klux Klan having the right to march and spew the most vile words imaginable.  We'd rather not, at least most of us would rather not, have to witness the Klan parade around demanding white power.  Yet our moral outrage is not sufficient to deny them the a fundamental right.  How to respond to the Klan is a political and social question (Hint: It revolves around speech condemning their speech.).  But to deny them a fundamental right?  Not allowed (though possibly subject to regulations, the jurisprudence of which this blog does not currently concern itself).  Again, bizarre, even distasteful results can occur in our nation of laws.  We suck it up, either because we respect the legislative process or because hold certain rights inalienable.

So much of the arguing we hear over marriage revolves around the least important questions.  It's hardly worth our time to sit around and devise reasons like those we hear from Indiana, that reserving marital rights to heterosexual unions, or extending them to those of the same sex, will result in overinclusive, underinclusive, or downright distasteful scenarios.  All that the self-proclaimed "defenders of marriage" can argue is that state-sanctioned marriage is actually not that fundamental of a right.  Anything less subjects the laws to elevated scrutiny, which will without doubt doom their exclusionary purpose.  Laws reserving state recognition of marriage to heterosexual couples can survive only under rational basis review.

So, why not argue that marriage isn't a big deal?  Or, more accurately, why not argue that state recognition of marriage isn't really fundamental?  Objectively, if what you want is for the state to recognize only certain unions, it's almost appealing to make that argument.  Unfortunately, those in Zion who argue most strenuously that we must not recognize marriages between men and men, and between women and women, take the position that marriage is in fact the most fundamental of all rights.  If government is to regard any association at all, according to them, government must at least recognize marriage.

Unfortunately, if government is to recognize marriage as a fundamental right, arguing that doing so will result in crazy time on the fringes only strengthens the argument that government must recognize all marriages.  Restricting the right to marriage, for any number of purposes, to a certain class, will result in pretty significant overinclusiveness and underinclusiveness, just about any way you look at it.  The only way to avoid that problem is to either recognize all marriages between consenting adults or to refuse to recognize marriage at all.  The latter being, frankly, impossible, from a social and a practical, not to mention legal, perspective, we are left as a society with the former.

Will we survive the inevitable?  Of course we will.  To suppose otherwise is to undermine our faith in the principles of pluralism and to demand that we somehow do away with due process and equal protection.  I hardly think that those who are quickly finding themselves in a minority, politically, really want that.