The wrong argument against traditional marriage

Peter Sprigg is Senior Fellow for Family Policy Studies at Family Research Council. This article was co-written with Paul Linton, Esq., a Northbrook, Illinois private practice attorney. This article appeared in The Washington Times on April 27, 2015.

The Supreme Court will hear oral arguments in a set of cases, including Obergefell v. Hodges on Tuesday, challenging state laws and constitutions that define marriage as the union of a man and a woman. One of the arguments made by those who wish to redefine marriage nationwide is that classifying same-sex couples differently from opposite-sex couples for purposes of civil marriage violates the Equal Protection Clause of the 14th Amendment.

The usual assumption is that such laws "discriminate" on the basis of "sexual orientation." That assumption, however, does not withstand scrutiny. The marriage laws say nothing about a person's sexual orientation. So long as the couple applying for a marriage license meets the criteria for issuance of the license — that they are old enough, not close relatives, not currently married to anyone else, and one member of the couple is a man and the other is a woman, they can obtain a license, regardless of their sexual orientation.

One may object that homosexuals would not want to marry someone of the opposite sex and that, in effect, the laws do discriminate on the basis of sexual orientation. However, the mere fact that the marriage laws may have a disproportionate impact on homosexuals is of no constitutional significance unless the laws were enacted with the intent or purpose of discriminating against them, as opposed to the mere knowledge that they could have a disparate impact.

Courts generally have been reluctant to try to ascertain the motives of a legislature as a whole or of its individual members. Few members usually speak on a given issue, their reasons for supporting a measure are often diverse and, in any event, their stated reasons are not necessarily representative of the body as a whole.

In the case of state amendments adopted by the citizens of a state, the search for motives poses an insurmountable task. How does one go about ferreting out the subjective motivations of millions of voters? Exit polling? Depositions in a lawsuit?

Recent laws reserving marriage to opposite-sex couples simply codified a long-standing common-law and statutory understanding of marriage as a relationship that can exist only between a man and a woman. This understanding predates even the concept of "sexual orientation" as a personal characteristic distinct from sexual behavioral choices.

Few may realize that the marriage laws do not, in principle, prevent any individual from participating in the institution of marriage because of his or her sexual orientation. Fewer still may know that even many of the individuals who have filed same-sex marriage lawsuits have not, in practice, been denied the "right to marry" because of "who they are."

As reported in an amicus brief for the Family Research Council, an examination of just some of the complaints that have been brought to date challenging state marriage laws reveals that dozens of the plaintiffs seeking to marry someone of the same sex previously were married to someone of the opposite sex. Notwithstanding their (presumed) sexual orientation, they were issued a license to marry.

It might be argued that at the time of their previous marriage, they were not homosexual. But that response creates a new problem. If they were heterosexual then, but are homosexual now, then their sexual orientation could not be said to be immutable. The Supreme Court understands immutability as referring to a characteristic fixed at birth, like sex or race. If a characteristic is not immutable, the court is not likely to recognize it as entitled to special protection under the Equal Protection Clause.

Nonetheless, plaintiffs may argue that one's sexual orientation is very difficult to change. However, the same could be said of a person's religious, or even political, views, neither of which have been regarded as "immutable."

Either marriage laws do not discriminate on the basis of one's sexual orientation — in which case the classification in the law presents no equal protection issue — or sexual orientation is not an immutable characteristic, which disqualifies it from special protection under the Equal Protection Clause.

Either way, the claim of a constitutional right to genderless marriage must fail.