Tailoring Marriage Law to Satisfy Equal Protection and Due Process

The American Spectator : Tailoring Marriage Law to Satisfy Equal Protection and Due Process looks at issues that have been raised with respect to same-sex marriage.

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).

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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.

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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.

....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.