The Supreme Court ruled last week that same-sex marriage is legal in the United States. This surprised almost no one. I predicted same-sex marriage would become the law of the land in an earlier post. In that post I wrote that while I was gratified to see the Sixth Circuit address the majority’s view of what is moral as a basis on which to consider the issue, I believed that, in the end, marriage would be found to be a fundamental right. And so it is.
My question now is, is the issue of morality relevant to any discussion of personal behavior anymore? Or, perhaps more narrowly, is the issue of decency relevant? Decency and morality are not quite synonyms but one definition of decency is “social or moral properties.” In that light, which of the following are decent or moral:
The first picture is legal; the Supreme Court told us that. Is it moral or decent? The second, depicting public breastfeeding, is a controversial issue. In some places it’s legal; in others it violates decency laws. But is it moral or decent regardless of its morality? The third is illegal everywhere in the United States. In fact, it probably violates Facebook’s posting standards. It’s illegal and most people would say immoral or indecent.
The question is, what is the difference between each of these? All involve behavior that doesn’t affect anyone else. That was the rallying cry of the same-sex marriage proponents: How does my marriage affect your life? The same question can be asked with respect to each of the other two pictures. How does two women breastfeeding affect your life? How does a naked person in public affect your life?
Some may argue that I’m trivializing the same-sex marriage issue but I disagree. Marriage is a social custom. It’s deeply rooted in society but it’s not natural, i.e., occurring in nature, regardless of whether it is same-sex or heterosexual. Breastfeeding is natural. It’s not a social custom, it’s a fact of nature. The same can be said of the condition of being unclothed. All animals except humans are naked and even humans are born into the world naked.
Without going into a debate about whether any of the three pictures is moral, the question is, does morality even have a place in modern debate over personal behavior?
The number of federal courts striking down state bans on gay marriage is no long unanimous. The Sixth Circuit Court of Appeals (which covers four states, Ohio, Tennessee, Michigan and Kentucky) today issued an opinion upholding the ban on gay marriages in those states. To be precise, the court held that this is an area where courts should not act as a “super legislature.”
The Sixth Circuit addressed one of the major arguments against same-sex marriage bans: that States have no rational basis for enacting such a ban. The majority (it was a 2-1 decision) said that marriage between a man and a woman has been recognized by society for millenia. It was not until 2003 that gay marriage became a possibility in Michigan. Michigan’s voters responded a year later by banning gay marriage. Could Michigan be said to have acted irrationally, the Sixth Circuit asked, in not discarding these thousands of years of societal norm on the basis of one judicial opinion?
The answer the court gave is, no, it cannot. States create an incentive for a man and woman to marry and stay together for the purpose of creating and raising children. This is not irrational; it is merely a recognition of the biological fact that gay couples do not reproduce.
How can any person deny a couple that is in love the right to marry the object of his/her love? That is a question on which the gay marriage issue has turned often. The answer, the Sixth Circuit said, is that love has nothing to do with marriage, at least in the eyes of the state. No state requires two people to certify that they are in love in order to get married. States permit people to marry for any reason. In that regard, the gay marriage argument goes to far because it imposes as the sole qualification for getting married something that was never a factor in the first place.
At the same time, the gay marriage argument does too little. If love is the basis for marriage, why cannot a person marry two or three or any number of people, of whatever sex? If it is constitutionally irrational to stand by the one man-one woman view of marriage, why is it not irrational to stand by the one-to-one view of marriage? The only answer that gay marriage proponents can give to this question is one they cannot give: That marriage has traditionally been defined as between two people. To make that argument undermines their position.
I doubt that the Sixth Circuit’s panel decision will stand. The entire Sixth Circuit might review it en banc and will bring that Circuit in line with every other circuit and federal court that has addressed this question. But the opinion is refreshing because it says, “Hey, wait a minute. These are serious political questions with serious implications. Courts have no business substituting their judgment for the people’s in a democracy. “