Marriage as a Constitutional Issue and a Matter of Public Policy II

4.  The legal parameters for marriage contracts are primarily matters for the determination of general-purpose governments (states and, secondarily, municipalities) – the U.S. Constitution neither confers authority on Congress to regulate marriage contracts nor specifies any liberty of individuals to enter into marriage contracts as defined by states.

Having stripped marriage contracts down as far as I think is necessary to make a larger assessment of what I think is at stake in U.S. Supreme Court adjudications over California’s Proposition 8 and the federal Defense of Marriage Act (DOMA), I want to develop my constitutional interpretation of the issues at stake in these two cases (Hollingsworth v. Perry and United States v. Windsor).  In the most basic terms, the business of defining marriage resides at the level of general-purpose governments – succinctly, it is a matter of determination for individual states.  This has been a settled intra-state legal issue for much of U.S. history.  In key instances, however, the U.S. judiciary has intervened in state-level determinations on the definition of marriage to enforce particular provisions of the Fourteenth Amendment, primarily associated under the rubric of substantive due process.  Of critical importance, in this manner, was the decision in Loving v. Virginia (388 U.S. 1 (1967)), which overturned an anti-miscegenation law in the state of Virginia prohibiting interracial marriage.  The decision, preceded by other rulings in federal and state judiciaries based on the due process and equal protection clauses of the Fourteenth Amendment, constituted the basis for invalidation of prohibitions on interracial marriage across the U.S. 

            As a matter of policy, I consider Loving to be a landmark progressive turning point for marriage equality in the U.S.  On the other hand, the decision does something critically important, in my opinion, with negative consequences – it makes the “freedom to marry” an unwritten protection of the Fourteenth Amendment, inhering to individuals under the due process clause.  The terms of this U.S. Constitutional protection are broad enough to justify the terms of Goodridge v. Massachusetts Department of Health (798 N.E. 2d 941 (Mass. 2003)), invalidating legal restrictions on same-sex marriage in Massachusetts, independently of any provision of the Massachusetts state constitution utilized by the Massachusetts Supreme Judicial Court in the issuance of its decision.  Succinctly, if Loving holds as the governing judicial precedence in Hollingsworth v. Perry, then the potential exists for a blanket invalidation of every statutory and state constitutional prohibition of same-sex marriage in the U.S.  As a negation of democratic processes, embodied both in state legislative and referendum-based statutory and state constitutional prohibitions on same-sex marriages, such an invocation of federal judicial authority against the states would be pernicious for several reasons. 

            First, the U.S. Constitution is not stone – it is plastic.  What individual protections federal judges and justices confer on individuals based on the Fourteenth Amendment today, they can take away tomorrow if they deem such protections inconsistent with the “intent of the founders” or with some new, unwritten protections of the U.S. Constitution.  Fundamentally, no privileges or indemnities conferred on individuals or citizens by un-elected adjudicators can ever be considered safe, if only because such officials can never be brought to account for their interpretations by the broader polity through a democratic electoral process.  The only true safeguard of individual liberties has to be the democratic process as the foundation against which a polity is actually constituted as a self-governing collective sovereign.  It is one thing to oppose prohibitions on interracial and same-sex marriage through mass campaigns, rhetorically challenging statutory and state constitutional standards as inconsistent with the fundamental rights of human beings and calling for their overthrow by a legislature or through ballot referendum.  It is another thing to plead for nine men and women in black robes to bind the hands of elected legislatures and the general public by invalidating democratically enacted legal standards. 

            For these reasons, my affinity for decisions like Goodridge is mixed.  I am proud that my state was among the first in the U.S. to recognize the legality of same-sex marriages, but I would have rather had the chance to validate its legality through the democratic process, especially through a referendum.  Supporters of marriage equality, conversely, like to make the argument that marriage rights should never be put to a vote, because they are, by their very nature, human rights.  In this regard, I would agree with them that rights should never be put to a vote, but, on the other hand, if marriage was a right, then it would not have to be put to a vote nor would it in any other way constitute a policy question, because rights are absolute and inalienable.  Marriage is not a right.  It is a contractual union conferring privileges and responsibilities on mutually consenting parties under terms established by a government or the sovereign polity empowering the government to act on its behalf.  Marriage is a liberty/permission conferred on individuals by the state at the will of the sovereign.  “Rights talk” is very often a good rhetorical tool for groups seeking to advance some political agenda (e.g. gun rights, animal rights, etc.), but the whole concept of a right is socially atomistic, undermines the cultural processes through which a mass of individuals see themselves as a society, and ultimately undermines the idea that democracy is even possible – we can have rights or we can have democracy, but it is really difficult to have both and, for my part, I will take democracy.

            I do not like California’s Proposition 8.  I find the idea of selectively discriminating against same-sex relationships in defining the legal terms of a marriage contract as reprehensible as laws discriminating against interracial relationships.  Having made this point, California voters decided, democratically, to enact such a restriction.  California voters, like Maine voters in 2012, could, I am presuming, decide to democratically invalidate their restriction on same-sex marriage.  Under present circumstances, the slim (52-48 percent) margin of victory for proponents of Proposition 8 might flip in the opposite direction to restore the legitimacy of marriage equality.  Perhaps I can afford to be biased because, as someone with heterosexual preferences, no one has questioned my liberty to marry.  I do not like the idea of allowing the U.S. Supreme Court, the Ninth Circuit Court, or any other instrument of the federal judiciary to intervene in the democratic process in California or any other state, even to the extent that the democratic process truncates certain liberties of a discrete and persecuted minority.  The only remedy to majoritarian discrimination that I understand, in this regard, is to keep the democratic process open and to more aggressively demand liberty and equality in the interest of the minority. 

If the Ninth Circuit Court’s opinion in Perry v. Brown (671 F.3d 1052 (9^th Circuit 2012)) is allowed to stand by the Supreme Court in Hollingsworth v. Perry, then, I suspect, the incongruity of having same-sex marriages protected by the due process clause of the Fourteenth Amendment in California but not in other states with statutory or constitutional prohibitions of same-sex marriage will inevitably facilitate the judicial overthrow of every prohibition of same-sex marriage in the U.S., however it was enacted, and, in the process, give many more right-wing, states-rights cultural conservatives one more reason to hate and despise the federal government for violating their capacity for self-government.  Based on initial comments from the oral arguments of Hollingsworth v. Perry, this seems to be exactly what the Supreme Court is poised to do by a 5-4 decision, if they deny the legal standing the non-governmental proponents of Proposition 8 to argue on behalf of the state in defense of the constitutional amendment and, thus, uphold the Perry v. Brown decision.  Moreover, it would secondarily deprive advocacy groups for particular government policies of standing to defend particular policies that government officials have repudiated, even if they have been democratically sanctioned.  I think that such a decision would not only be thoroughly un-democratic/anti-democratic but also dangerous in its capacity to disempower partisan groups who may seek a remedy to their disempowerment through violent means or otherwise incite politically divisive relations between the federal government and individual states.

            In regard to the other constitutional question being approached by the Supreme Court on marriage equality, it seems clear to me that if, on the one hand, the U.S. Constitution does not guarantee a right to marriage equality through the Fourteenth Amendment, then, on the other hand, it nowhere authorizes Congress to say anything about the marriage contract per se, outside of its liberty to act as a general purpose government for U.S. territories and for the federal enclave of the District of Columbia.  Defining the terms of the marriage contract is a business for individual states and the sole responsibility for the federal government with regard to marriage is to ensure its statutory enactments referencing marriage (e.g. income tax codes, Social Security administrative procedures, etc.) do not conflict with the liberties conferred by individual states on parties to a marriage contract.  In this sense, if Massachusetts says that two individuals are married, then the federal government has no business whatsoever questioning the determination of Massachusetts that the two individuals entering into a marriage contract were authorized to do so.  Congress has no power under the U.S. Constitution or the Social Security Act to tell the surviving spouse of a deceased member of same-sex marriage in Massachusetts that she is not entitled to receive Social Security survivor benefits that would be extended to the surviving member of an opposite-sex marriage in Alabama – this amounts to an unconstitutional usurpation of the authority of states to define marriage.  This is precisely what Congress sought to do under the Defense of Marriage Act, and the Supreme Court would be completely justified in ruling that Congress had no authority to enact this law and, hence, it is unconstitutional.  I would expect that the Court will do this by a 5-4 decision when it issues its opinion in U.S. v. Windsor.  In this respect, the Supreme Court might end up, on the same day, ruling that states lack the ability to define the terms of the marriage contract as their sovereign polities see fit (in Hollingsworth v. Perry) and, paradoxically, telling Congress that it lacks the same ability to define the terms of the marriage contract (in U.S. v. Windsor).  Presumably, if states cannot freely define the marriage contract and Congress cannot define the marriage contract, then the duty of defining the proper terms of a marriage contract must fall wholly on the federal judiciary!  This would be unfortunate.

5.  The origins of the marriage contract reside in the organization and reservation of property rights – in our time, we need to render unto the marriage contract what belongs to marriage and render unto love what belongs to love.

Rounding off this rant, I completely understand the pressure for social legitimation experienced by gay couples, manifest in their demands for marriage equality, and they deserve to be treated equally.  Having acknowledged this point, the stakes for marriage equality, fundamentally, involve the distribution of property rights, not love or the legitimation of love.  Love is its own argument – it requires nothing but itself and, truthfully expressed, demands acceptance from no one.  Marriage is not about love – it is about the contractual distribution of rights to mutually held property between two consenting adult individuals and has always been thus, notwithstanding the rise of romantic love in Western civilization since the Nineteenth century.  Changes to the distribution of property rights between individuals in a marriage contract have certainly varied over time and place, but the overarching principle is that a marriage defines a particular set of relations between a set of individuals and the property that they mutually hold relative to other individuals within a community. 

             Acknowledging my limited abilities at pre-historical cultural anthropological analysis/speculation, the marriage contract appears to, thus, emanate from the earliest stages of the development of property rights – not individual property but communal property, defined by the collective exclusion of a particular set of means of subsistence to a particular group of hunter/gatherer/foragers.  If we accept that pre-historical human culture begins with the migration of the human species out of the East African Rift Valley, throughout Africa and then throughout the Eastern Hemisphere some 125,000 years ago, then early appropriations of property must have involved the portable tools of largely nomadic, foot-bound bands of foragers, the discrete food supplies they shared among themselves, and, perhaps, the “privileged” foraging sites/places around which the bands focused their movements over extended periods of time.  A wide range of roughly anthropological accounts (e.g. Friedrich Engels’ “Origins of the Family, Private Property, and the State,” Jane Jacobs’ (1973) speculation on the pre-historic origin of city economies (the example of “New Obsidian”), Ryan and Jethá’s (2010) recent account on promiscuity/polygamy in human physiological evolution) shapes my approach to this period of human pre-history.  A novel interpretation of the origins of the marriage contract emerges from the intersection of these accounts.  Proceeding from Ryan and Jethá’s argument that humanity evolves as a promiscuous/polygamous species up to the dawn of sedentary agriculture 10,000 years ago, it seems likely that the nomadic/semi-nomadic hunter/gatherer/forager bands that I am characterizing here would have practiced polygamous sexuality, without any regard for more recent prohibitions on incest and without any discernable notion of a marriage contract. 

My conclusion here mirrors that of Engels, reflecting on certain mid-Nineteenth century anthropological accounts of Lewis Henry Morgan.  For his part, Engels’ argues that contemporary forms of monogamous marriage, replete with a restricted nomenclature of familial relationship identifiers (e.g. one father, one mother, brother, sister, uncle, etc.), arise from a larger evolution from fully polygamous group marriage through more restricted conceptions of marriage/familial relationships (i.e. gradual introduction of new categories of incest prohibitions).  Of course, nothing is universal or continuous here – human history has all manner of variation across cultures, between populations living even a few miles away from each other and across a river or a mountain range.  The key point here is that mechanisms exist through which, in most cultural traditions, full sexual polygamy disappears and is replaced by more restrictive sets of sexual relationships that may have still included relatively polygamous relations but also began to define a restricted notion of what constitutes a family through either a patrilineal or a matrilineal hereditary line. 

It is my contention that the separating out of hereditary lines not only facilitates the development of a concept of incest but also enables the larger group to define separable familial claims to property relative to the communal property of the larger group (and, eventually, after long historical progressions in multifarious cultural contexts, full dissolutions of communal property).  The distinctions of patrilineal and matrilineal descent become important here as a basis for determining who is capable of exercising a claim on the property of a given hereditary line.  In diverse cultural traditions reaching this particular stage in the separation of communal property into transferable hereditary family property, we have the origins of the marriage contract.  At the level of a semi-nomadic or fully sedentary group, the marriage contract has the capacity to tie back together what the separation of hereditary lines has ripped asunder in previous generations and will continue to rip asunder in future generations.  It also holds the capacity to forge linkages between hereditary lines over geographically and/or culturally longer distances, between larger groups (e.g. between distinct semi-nomadic groups in relatively frequent contact). 

To be certain, the marriage contract at this stage (and, to a great extent, until the Nineteenth century) has absolutely nothing to do with love.  Rather, it has to do with an arranged transfer of claims to hereditary property and assignment of privileges and responsibilities in human reproduction processes (i.e. to generate progeny for inheritance purposes) by familial/hereditary elders.  If love figures somewhere here, it constitutes a residual outcome of the arranged marital relationships formed, defined and characterized by the mix of privileges and responsibilities of the marriage.  In this regard, the marriage contract defines the meaning of love rather than love defining the quality of a marriage between two individuals, an inversion of the contemporary ideal order of things.

Moreover, from these pre-historic stages perhaps to the Nineteenth century (at least in Western Judaic/Christian/Islamic-based cultural contexts), negotiation of the marriage contract has nothing to do with equality between mutually consenting partners and everything to do with the strategic imperatives of familial/clan elders in maintaining the viability of a hereditary line in the distribution of property claims.  Furthermore, even in circumstances where the male member of a heterosexual pairing may have possessed some capacity to freely enter in to a marriage contract, the female member is, until very recently legally/practically incapable of freely contracting (and, moreover, absolutely incapable of holding or disposing of her own property, before or after marriage).  The early pre-historical forms of the marriage contract may have been wholly characterized by negotiation between third parties (e.g. familial/clan elders from distinct semi-nomadic or sedentary groups) with the male and female parties to the marriage having little or no liberty to contest decisions made by the third party entrants to the contract. 

Likewise, the centrality of human reproductive processes to such pairings, evident in the need to generate progeny for a lineage, implies, again, that the reproductive capacities of male and female members constitute important commodities and elements in the exchange of property claims, hence, the significance of virginity, sterility, and adulterous violations of claims to the reproductive capacity of a male or female.  That is to say, the negotiation of marriage contracts involves an exchange of property in the reproductive capacity of individuals by familial/clan elders who otherwise command the right to determine how the reproductive parts of their progeny are to be used.        

Several things interest me in this line of speculative thinking about the pre-history of marriage.  First, to the extent that marriage is about the transfer of property rights, the field of marriageable individuals constitutes a kind of market.  Of course, this is still true, as online dating companies know.  An interesting corollary to this question concerns the processes and conditions through which pre-historic marriage markets (i.e. between semi-nomadic and/or sedentary groups) might have expanded across larger numbers of distinct groups.  Herein resides my interest (as an urbanist) with the pre-historic origin of cities (before sedentary agriculture) and Jacobs’ anthropological speculations.  Maybe the earliest of cities were not only places where far flung trading networks between hunter/gatherer/forager groups came together to trade goods and accumulate the grains that would eventually fuel the development of agricultural cultivation – maybe they were also places where hereditary lines crossed and elders from distant places met to scatter their genetic material through the reproductive capacity of their sons and daughters across the landscape.  Further, assuming that polygyny (one male, multiple female harems) appears at some point in many historical records between polygamy and generalized monogamy, how would such a sexual organization develop (i.e. what are its necessary and sufficient conditions?) and what relationship might this have had to patrilineal or matrilineal hereditary lines?  Finally, apart from obvious ideological/religious explanations on the development of matrilineal or patrilineal hereditary lines, what role might the presence of a “gender surplus” in pre-historic groups (too many females for an inadequate number of males or vice versa) have played in establishing one organization of hereditary lines over another and what might such origins suggest about the history of particular cultures?  There may be research on any or all of these issues, but they are questions that I have yet to fully investigate.   

My larger point here is simply to say that marriage, as a contractual institution, predates any suggestion that love should be a motive for two individuals, heterosexual or homosexual, to get married.  If there is an actual and robust linkage between marriage and human reproduction over human history, moreover, I am still unconvinced that two people require a marriage contract in order to be loving, nurturing parents.  Contemporary debates over marriage equality raise important concerns about the organization of property rights between individuals and the opportunities that individuals have to enjoy the particular privileges connected with the marriage contract.  These concerns are valid, and for that reason I support marriage equality.  However, I think we need to firmly situate questions on marriage within their appropriate legal contexts and, perhaps, ask whether we have demanded too much of marriage as a socially stabilizing institution. 

Evaluating, again, recent records on the success and failure (divorce) of the marriage contract in the U.S. (see  “Marriage Rates by State: 1990, 1995, 1999-2011” at: http://www.cdc.gov/nchs/data/dvs/marriage_rates_90_95_99-11.pdf, and “Divorce Rates by State: 1990, 1995, 1999-2011” at: http://www.cdc.gov/nchs/data/dvs/divorce_rates_90_95_99-11.pdf), divorces per thousand residents generally exceed fifty percent of marriages per thousand households in most states from 1999 to 2011.  It would seem that in an age where ideals of individual freedom of choice and sexual equality resonate among individuals across the U.S., it is becoming much harder to justify holding together a marriage contract that no longer serves the needs of one or both parties.  No single reason exists for the dismal state of the marriage contract in the contemporary U.S.  Rather, the collective fate of marriage, as an institution, is shaped by an infinitely large set of social processes that, in the present moment, are combining to undermine the satisfaction that individuals enjoy in the long run from uniting. 

One critically important set of processes determining the fate of marriage emanates from the field of sexuality and, specifically, the psychological incongruity of expansive polygamous sexual desires for stimulation with the requirement for monogamous fidelity among partners.  On some level, such an incongruity must manifest itself in most failed marriages, even if the precipitant cause of the breakup is financial strain, geographically or professionally incompatible occupational paths, or some other social or personal rationale.  At its root, I concur with the implicit conclusion advanced through Ryan and Jethá’s account that the conception of marriage as a monogamous pair-bonding compact operates against engrained physiological and psychological predispositions of the human species, whether we are dealing with heterosexual or homosexual individuals, male or female.  As a species, until the dawn of sedentary living, we evolved through promiscuous, polygamous sexual relations. 

Residual manifestations of polygamous sexual desires concurrent to the widespread institution of monogamous marriage might not be a problem within social contexts marked by extreme forms of sexual repression, in which legal and cultural/religious practices enforce extrinsic prohibitions on public expressions of sexuality, reinforced by intrinsic/internalized psychological/emotional reactions of guilt, perversion, and impropriety toward sexuality.  Our problem is that we cannot reinforce such repressive attitudes toward sexuality while concurrently utilizing sexual desire as an interpersonal material component/input in marketing/commerce and artistic (mass media, music, television, movies, Internet) expression.  The enforced, jealousy-driven monogamy of marriage feeds into the generation of a polygamous desiring personal psychological underground (unconscious), manipulable as a symbolic reservoir for marketeers to sell commodities and for artists to generate and convey sexually charged messages.  Is it any wonder why, faced with diverse other non-sexual cultural and economic impediments, marriage is having a hard time living up to its promises? 

The larger argument that I have attempted to present here seeks to suggest that, traditionally, marriage has been a relatively unfree/coerced institution, inseparably linked to human reproductive processes and their connections to social/hereditary distributions of property rights, and relatively unrelated to the incidence of love, as the development and nurturing of an emotional connection between two individuals (which might, in some sense, develop between individuals drawn together by some arranged contractual bond).  Over the last two centuries, we have grafted onto this institution of marriage a greater degree of legal contractual liberty for individuals, supported by an incessantly inflated ideal of romantic love as the primary rationale for parties to enter into a marriage contract.  In an age of largely reliable birth control, this constellation of processes should no longer necessarily link human reproduction and/or parenting to marriage.  If we remove this presumed linkage, then the argument advanced by opponents of gay marriage that states have a legitimate reason to regulate the marriage contract in support of the welfare of children must be, at least partly, undermined. 

I would contend that states do need to address contemporary deficiencies of parenthood in the U.S. but that the marriage contract is not a good medium for doing so.  We need to practically and legally expand the concept of parenthood to incorporate a broader set of relationships between children and biologically and non-biologically linked mentors and parental surrogates on the principle that the more involved nurturing figures that a child has in his life, the better, more personally/emotionally mature and socially responsible adult he will become.  I am not going to expand further on the idea of legally transforming parenthood here, but I think that there are some possible avenues for doing this, perhaps, through a reconsideration of the legal relationships between students and educators in public and private education.  As a social bulwark in parenting, marriage today is compromised by the sexually incongruities of cultural processes that are contributing to the larger crisis of civil marriage/high divorce rates. 

Having made this argument for separating parenthood and the responsibilities of the state to protect the welfare of children from concerns with civil marriage, I stand for the development of a post-marriage, post-monogamy, sex-positive politics and culture.  By this I do not mean to argue that marriage needs to be abolished as an archaic institution incompatible with contemporary human needs.  The Bolsheviks, during the early 1920s, thought in these terms, recognizing the marriage contract as an institution intimately related to supporting the dominance of capitalism and the social oppression of women.  To some degree, I concur with this view, but it oversimplifies the problems and the positive potentialities of the marriage contract (and, in any case, the abolition of marriage in Russia failed – marriage was reinstated and strongly supported as an institution in Soviet Russia from Stalin’s rise in the late 1920s to the system’s collapse). 

The marriage contract operates relatively well in organizing, merging, and distributing property rights within a hereditary line.  This is the most that I think we should expect of marriage.  It would be nice to think that marriage, in some way, supports and nurtures the love that two people have for one another, and, in certain ways, it almost certainly does.  Insofar as this is the case, marriage may constitute an environment favorable to the care and nurturing of children.  On the other hand, marriage need not do either of these things, and, in any case, no set of legal standards can mandate and/or regulate, in a legally enforceable way, the love that married partners have for each other or for their biological or adopted children.  Moreover, notwithstanding the existence of legal prohibitions of adultery, no legal set of standards can suture love and monogamous sexual practices through the device the marriage contract.  If the human species manifests engrained physiological and/or psychological predispositions for polygamous sexuality, then marital monogamy operates against human nature.  That is not to say that married couples cannot buck human nature and remain mutually faithful, but the ubiquity of sex in contemporary culture (not only American cultural processes but Western culture in general) makes this increasingly difficult and the state has no business sticking its intrusive fingers either into the production and distribution of sexually charged art and commercial communications or the effects of its internalization in the lives of married couples. 

With all this in mind, it makes sense for states to rigorously define and rigorously enforce what marriage means, as a species of civil contract, in a way that conforms to the democratic will of their populations.  It would be best, in this regard, if they respected the liberty and equality of all individuals who wanted to legally legitimize their relationship, regardless of the racial composition or the sexual orientation of couples, and the demand for marriage equality is everywhere a legitimate one.  However, the state can neither regulate the emotional content of a marital relationship nor regulate the capacity or quality of a marriage as a social environment for raising children, beyond the protection of children from verifiable parental abuse and neglect.  As in many other circumstances, states necessarily lack the capacity to transform the marriage contract into a functioning community within which love, mutual respect, mutual care, and mutual equality can be developed and nurtured.  If these virtues are going to be supported, then we need a broader culture that will support the development of families, irrespective of the marriage contract.  Such a culture would, moreover, recognize the contextual merits of both sexual monogamy and polygamy, understanding that the contours of loving relationships between individuals follow and shape heterogeneous sexual practices over time.  This conclusion demands something approaching the concept of an “open marriage,” where casual sexual explorations are accepted as a precondition of the viability of the central relationship.  It represents a kind of balancing act between the evolving love of two marital partners and their evolving sexual desires.  This is a path demanding a lot of courage and open-mindedness on the part of anyone who would undertake to follow it, but it, likewise, seems to be the best way to secure the idea of the family, as an essential building block of community, at a time in which cultural forces are actively undermining marital monogamy.