Same-sex marriage cases misframed

The Supreme Court is currently hearing the case of Obergfell v. Hodges, addressing the constitutionality of laws restricting marriage to opposite-sex couples. However, most of the arguments are abysmally confused.

First there is confusion on what marriage is. As a matter of law it is a contract among two (or more) individuals. (Most can agree it would make no sense to use the term for a contract between an individual and a corporation.) As a custom, it is the physical relationship among individuals, involving activities like living together and having sex. But the relationship can exist without the contract and the contract without the relationship. So what is involved in the litigation? Does it make sense to say that two individuals have a "right to marry" that some jurisdictions are trying to forbid? Do the parties to such a relationship have some right to have the state call it "marriage", as distinct from calling it a "domestic partnership" or some other term?

The simple obvious answer to the last question is no. A state, like an individual, may use any name it pleases for anything it wants. No one has some right to dictate the choice of words anyone or anything must use for anything. Conflicting uses of different words for the same things, or the same words for different things, may cause confusion, but constitutionally there is no right or power to require anyone to use terms in certain ways, as long as there is not confusion or fraud.

Part of the confusion seems to come from regarding official recognition of some relationship as a "marriage" as some kind of license, that could be withheld, or that such a relationship can constitutionally be banned by banning the contract. In the past, in some jurisdictions, that has been attempted, with things like marriage licenses, or criminal prosecution for relationships that were not officially authorized, such as with individuals that were too young, or among more than two, or fraudulently marrying one individual while still being married to another. But there are no more marriage licenses that carry criminal penalties, and officially recognizing a "marriage" is not some kind of license.

Marriage does not need to be ordained by government or a church. It is ordained, if at all, by one's friends and family. The rest is magical thinking.

Constitutionally, no government in the United States may forbid any two or more consenting adults to enter into any contract to do anything. The activity under the contract might be made a crime, and the existence of a contract deemed evidence of a conspiracy, but, except for fraud, there is no constitutional way to penalize parties from merely entering into a contract of any kind. The courts of a jurisdiction may decline to enforce certain contracts which it disapproves, but not to prevent entry into them.

This case is not about attempts to forbid the relationship. The decision in Lawrence v. Texas established that it is unconstitutional to penalize consenting adults of the same gender from having sex with one another. That disposes of the issue of official restriction of the relationship. But can the state constitutionally refuse to call the relationship "marriage"? Yes. Can it constitutionally refuse to enforce the terms of a contract governing such a relationship? Also yes.  Can it constitutionally withhold benefits to the parties in such a relationship? That depends. It may withhold some benefits to the parties to some relationships and not to others, but not because the parties call it marriage. It is the substance of things, not the names for them, that matters in law. It could, for example, extend benefits to couples with children that are withheld from couples without children.

Many of the issues raised involve benefits like inheritance or hospital visitation. As the first may be consented to by a written will, and the second by a consent form, such as a "living will, then by by calling their relationship "marriage", perhaps in writing so they have something to show to others, the state has no rational basis for discriminating against some wills or consent forms and not others. The appropriate remedy is for the parties to put it in writing.

One of the benefits government can provide is to make available a standard contract that people can invoke by name, without having to renegotiate the terms that have taken millennia to develop. That is a great convenience. Of course, people can refer to the standard contract, but then contract to deviate from the standard or to supplement it in some ways. We call those "prenuptial agreements". Government does that for  many kinds of standard contract, such as between landlord and tenant, employer and employee, or seller and buyer. Having such standard contracts is a great convenience for all concerned. But can government constitutionally forbid anyone from using one of its standard contracts, by merely referring to it by name? No, unless there is fraud, and fraud is a separate issue from entry into the contract, which might be evidence of fraud but is not essentially fraud.

But it is not essential for government to present standard contracts for anything. Publishers of legal forms can do that just as well.

Advocates of government recognition or certification of same-sex marriage also sometimes argue that it is not about licensing the contract or relationship, but about conferring dignity on it, the way churches and other religious institutions have traditionally done in most countries. The explanation is that such recognition or dignity operates to dispel much of the customary social rejection that might otherwise occur. They argue that there is an equal right to having such dignity conferred on their contract or relationship. But is that a constitutional right?

Constitutional rights, at least in the Constitution of 1787, are restrictions on government not to exert some kind of force on individuals. They are not rights to receive a sufficiency of some benefit, no matter how inexpensive it might be, except the benefit of disclosure of information about the operations of government. There is not even a right to have a trial on the legal merits of a dispute, because the parties always have the options of self-help, although self-help by government would be tyranny, or of private courts, to avoid the destruction self-help is prone to bring. On the other hand, if conferring the benefit costs nothing, or almost nothing, there can certainly be an equal right not to have government withhold the benefit.

But how much dignity would be conferred on something if there was indiscriminate recognition of everything for anything? The dignity would be meaningless if it is not withheld from some while being conferred on others. If so, then for whom might the dignity be reasonably and constitutionally withheld, and who decides? Should it be decided by anyone but a jury?

Would it make more sense, or be more constitutional, for government to simply withhold all recognition or other acts that confer dignity? Clearly, it has to recognize some things, and not others, to perform its duties, but if society takes such recognition as the conferring of dignity, that is a matter of custom, not law. If people insist on adopting such customs, then perhaps it would be better for government to get and stay out of the recognition business for any but essential government purposes, and marriage is not one of those. Even default contracts could be published by private institutions. There is no need for government to do so.

The Supreme Court could do us all a great favor by making all of the above points clear. That would mean judgment for the plaintiffs, but not for their arguments.

Postscript, following the decision in the case:

The ruling comes down to, if the state issues marriage licenses to opposite-gender couples, it has to issue them to same-gender couples as well.

But it doesn't have to issue marriage licenses to anyone.The only constitutional right involved in this case is the right not to be licensed at all.

If it doesn't want to be in the position of "recognizing" same-sex marriages, then don't "recognize" any marriages. It doesn't license an employer to hire an employee, or a landlord to rent property to a tenant. Marriage licenses should  not be the business of the state. Leave marriage to the common law.

"Common law" in this context means what it means in the expression that "Texas is a common law state". That means that although it has a law about marriage licensing and a waiting period, a couple may alternatively become "married" by just introducing themselves as married to someone else, or living together for some period of time in an intimate relationship (which used to be six months in Texas). Most of the marriages I have seen among younger people don't bother with the license, and no one enforces the law on that.

The appropriate law for such relationships is the law of contracts, and in particular, of partnerships. In Texas partnerships don't need to be registered or licensed. The main way it shows up in a public record is when a partnership, as grantee, files a deed of record to some real property in its name. (It may also want to file a fictitious name with the county or state.)

The main way a domestic partnership would initially show up in the public record would then be when a birth is  certified showing the names of the parents. The birth would be deemed to create the partnership, as would adoption  or guardianship by two (or more) persons of any gender.

In other words, treat "marriage" just like any other kind of partnership. Don't even need a special name for it. The common law of fraud and specific performance would apply.

Of course, Equal Protection and the protection of contracts would also apply. Government could not permit or forbid contracts of any kind, even if it chose not to enforce some of them, such as a contract to commit a crime.

Far from being too late to adopt such a norm, this is the perfect opportunity to do so.


From Dale Robertson, on another list:

In fact the major reason for the embrace of Common Law at Washington on the Brazos in the spring of 1836 was the fact that Texans assembled there were hell bent on giving legitimacy to the thousands of children born of the natural union of young men and women on the bald prairie that was then Texas who had no access whatever to civil or religious ceremony giving legitimacy to marriage leaving the children of such unions to be stigmatized with the despicable moniker of "bastard" - a very serious denigration at that time in Texas History. It was the Common Law of England which was sought to remedy the problem and it is the legal residue of which that can now today be read as Article 1.27 of the Texas Code of Criminal Procedure.

I am a full advocate of abolition of the state being a party to Marriages via a license procedure. I am please to note that my own sister, at her then age 53 was married for the first time to an English Sea Captain (Commanding Officer of the Wave Knight a high speed armed 650 foot, 34,000 ton British Navy supply ship - a floating "Walmart" for the British Navy resupply on this high seas) the good Captain, is now retiring following the present voyage he has announced to be his last having entered "service" as a lowly cadet at his age 16 - some 45 years ago)  and chose to be married in a Common Law  Ceremony in a Texas Brazos County hay pasture at the foot of a Bodark Tree (by a lay minister and lawyer who happens to be a licensed practitioner of law in Texas)  with the ceremony being performed under Texas and British Common Law. An interesting bit of relevant history in my own family giving living reality to British Common Law in Texas in the 21st Century - backed up by Article 1.27 of the Texas Code of Criminal Procedure.