Homosexual Marriage in the United States

The same-sex marriage case Baskin v. Bogan (Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014). ) invalidated the Indiana and Wisconsin prohibitions of same-sex marriage. It was argued in August 2014 and decided in September, just months before the case Obergefell (Obergefell v. Hodges, 135 S. Ct. 2584 (2015)), where, on June 26 of that year, the Supreme Court invalidated such prohibitions in all states (Obergefell v. Hodges, 135 S. Ct. 2584 (2015)).

In his book, The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (New York, 1996), Professor Eskridge’s argues that the “law of marriage focuses on the interpersonal commitment and not the heterosexuality of the partners. To the extent the law of marriage focuses on children (by and large it does not), it is agnostic as to where the children come from.” (William N. Eskridge, Jr., The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment 118 (1996))

He said that Denmark’s “registered partnership” law would give homosexual couples most of the rights of married couples (except adoption), but argued he “would oppose a halfway house to marriage,”19 which was his characterization of the Danish law (William N. Eskridge, Jr., The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment 122 (1996)), and he went on to argue for a constitutional right to same-sex marriage, making almost all the arguments that have been advanced in the recent wave of litigation culminating in the Supreme Court’s decision in Obergefell v. Hodges (135 S. Ct. 2584 (2015)).

Richard A. Posner, in his article “Should There Be Homosexual Marriage? If So, Who Should Decide?” (95 Mich. L. Rev. 1578 (1997) wrote: “homosexual couples ought not be granted the identical rights of adoption as heterosexual couples without further study of the effects of such adoption—not on the sexual orientation of the child, which I believe to be invariant to the adoptive parents’ orientation as to other environmental factors, but on the child’s welfare in the broadest sense” (…)

(Eskridge) had made “the tacit assumption that the methods of legal casuistry are an adequate basis for compelling every state in the United States to adopt a radical social policy that is deeply offensive to the vast majority of its citizens and that exists in no other country of the world, and to do so at the behest of an educated, articulate, and increasingly politically effective minority that is seeking to bypass the normal political process for no better reason than impatience, albeit an understandable impatience. (Americans are an impatient people.) A decision by the Supreme Court holding that the Constitution entitles people to marry others of the same sex would be far more radical than any of the decisions cited by Eskridge. Its moorings in text, precedent, public policy, and public opinion would be too tenuous to rally even minimum public support. It would be an unprecedented example of judicial immodesty. That well-worn epithet “usurpative” would finally fit . . . . No nation in the world, no state of the United States with the uncertain and incipient exception of Hawaii (by no means a typical state, in any event), recognizes homosexual marriage and equates it to heterosexual marriage. An overwhelming majority of the American people are strongly opposed to it; even the homosexual community is divided over it (hence chapter 3 of Eskridge’s book). A complex and by no means airtight line of argument would be necessary plausibly to derive a right to homosexual marriage from the text of the Constitution and the cases interpreting that text—a tightrope act that without a net constituted by some support in public opinion is too perilous for the courts to attempt. Public opinion may change—Eskridge’s book may help it change—but at present it is too firmly against same-sex marriage for the courts to act.

. . . [P]ublic opinion is not irrelevant to the task of deciding whether a constitutional right exists. When judges are asked to recognize a new constitutional right, they have to do a lot more than simply consult the text of the Constitution and the cases dealing with analogous constitutional issues. If it is truly a new right, as a right to same-sex marriage would be, text and precedent are not going to dictate the judges’ conclusion. They will have to go beyond the technical legal materials of decision and consider moral, political, empirical, prudential, and institutional issues, including the public acceptability of a decision recognizing the new right.

Reasonable considerations also include the feasibility and desirability of allowing the matter to simmer for a while before the heavy artillery of constitutional rightsmaking is trundled out. Let a state legislature or activist (but elected, and hence democratically responsive) state court adopt homosexual marriage as a policy in one state, and let the rest of the country learn from the results of its experiment. That is the democratic way, and there is no compelling reason to supersede it merely because intellectually sophisticated people of secular inclination will find Eskridge’s argument for same-sex marriage convincing . . . .

. . . Similarly, if no other country in the world authorizes such a thing, this is a datum that should give pause to a court inclined to legislate in the name of the Constitution . . . .

. . . The country is not ready for Eskridge’s proposal, and this must give pause to any impulse within an unelected judiciary to impose it on the country in the name of the Constitution.”26

“I am dubious about interpreting the Constitution to authorize the Supreme Court to make discretionary moral judgments that offend dominant public opinion. Nothing in the Constitution or its history suggests a constitutional right to homosexual marriage. If there is such a right, it will have to be manufactured by the justices out of whole cloth. The exercise of so freewheeling a judicial discretion in the face of adamantly opposed public opinion would be seriously undemocratic. It would be a matter of us judges, us enlightened ones, forcing our sophisticated views on a deeply unwilling population. It would be moral vanguardism.”29

Richard A. Posner, in his article “Eighteen Years On: A Re-Review”, The Yale Law Journal (Volume 125, 2015-2016, November), wrote:

“The arguments against same-sex marriage were never strong. They didn’t need to be when there was overwhelming passionate objection to such marriage. When the objection faded (not completely, but to a great extent, and with remarkable speed), the absence of strong arguments against same-sex marriage, and the presence of strong arguments in favor of it, became the decisive factors guiding judicial action.

But I want to say a little more about the change in public opinion that set the stage for Obergefell, and this will allow me to return to where I started in this Review, with my youthful discovery that there was this strange phenomenon called homosexuality. In those days a great many homosexuals concealed their homosexuality from heterosexuals in order to avoid the discrimination against homosexuals that was then rampant. The result was that those who flaunted their homosexuality—whose mannerisms or dress or occupations signaled homosexuality—were taken by heterosexuals to be typical of homosexuals, and were derided, especially since, in a prissier era than today, homosexual sex was criminalized by many states. (I am speaking primarily of male homosexuals, who have always received more critical attention than lesbians.) But beginning in the 1960s with the Alfred Kinsey reports revealing a greater amount of promiscuity than conventional people realized existed, there was a loosening of sexual mores in general and among its effects was an increasing tolerance of homosexuals.

Gradually, as that tolerance grew, fewer homosexuals bothered concealing the fact of their being homosexual. As homosexuals not readily recognizable as such by reason of mannerism, dress, or occupation began to acknowledge, or at least cease denying or trying to conceal, their homosexuality, heterosexuals discovered that most homosexuals are indistinguishable in any respect except sexual preference from heterosexuals; and so it became difficult to understand why they should be discriminated against. The Supreme Court, first in Romer v. Evans, which held that a state could not enact a law forbidding municipalities to provide protection against discrimination against homosexuals (517 U.S. 620 (1996)), then in Lawrence v. Texas, which invalidated laws criminalizing homosexual sex between consenting adults (539 U.S. 558 (2003). Lawrence overruled Bowers v. Hardwick, 478 U.S. 186 (1986)), and then in United States v. Windsor (133 S. Ct. 2675 (2013)), invalidating the federal Defense of Marriage Act, which had denied federal marriage benefits to homosexual couples married in states that authorized same-sex marriage, set the stage for the Obergefell decision, a decision anticipated by a number of lower federal courts, and also state courts, after Windsor. Indeed Justice Scalia, in his characteristically scathing dissenting opinion in Windsor, said that the majority opinion signaled that the Court would invalidate all state laws forbidding same-sex marriage (133 S. Ct. 2709-11 (2013), Scalia, J., dissenting). And sure enough, two years later, in Obergefell the five-Justice majority in Windsor confirmed Justice Scalia’s fears. By this time, the majority could be confident that a combination of public opinion increasingly favorable to allowing same-sex marriage with the flood of lower-court cases invalidating state laws forbidding such marriage would deflect the indignation that such a decision would have aroused in 1996, or perhaps in any year before 2015. And so it has proved.

Justice Kennedy, Catholic and conservative, the critical swing vote and majority-opinion author in the cases involving homosexual rights, deserves great credit for his political and intellectual independence in regard to homosexuals. Big business also deserves credit. The biggest U.S. corporation (net worth seven hundred billion dollars) is Apple. Its CEO, Timothy Cook, is an “out of the closet” homosexual. It is hard to disrespect such a star; and, as far as I know, no one does. Many other prominent people are openly homosexual as well. Big business (and small business as well), regardless of the sexual preferences of its CEOs, dislikes discrimination against homosexuals (including denial of marriage rights) because homosexuals tend to have above average income and education, making them attractive to business as customers and employees. Business is also concerned that hostility to homosexuals will turn off prospective customers and employees who, though heterosexual themselves, consider, as increasingly they do, such hostility to be a form of bigotry.”

Adoption

Professor Eskridge’s book gives little weight to adoption rights as an important element of marriage for homosexuals.

Homosexual Marriage

Homosexual Marriage in the United States

Adoption

Further Reading