Same-Sex Marriage, the Courts, and the People

Twenty-seven states in the United States have amended their state constitutions to limit marriage to unions of one man and one woman. Even before the recent decision of the California Supreme Court mandating that California allow same-sex couples to marry, many other states were considering similar amendments. Pennsylvania is among them. On April 29 of this year, I testified before the Appropriations Committee of the Pennsylvania Senate concerning S.B. 1250, a bill to begin the process to amend the Pennsylvania constitution to provide that No union other than a marriage between one man and one woman shall be valid or recognized as marriage or the functional equivalent of marriage by the Commonwealth. Below is an abridged version of that testimony.

Under the laws of the Commonwealth as they stand today, the only valid marriages are unions of one man and one woman; Pennsylvania does not currently recognize same-sex marriages. Moreover, under the laws of the Commonwealth as they stand today, there is no legal status for same-sex couples that is the functional equivalent of marriage. Unlike Vermont, for example, Pennsylvania does not provide for civil unions of same-sex couples that confer on such couples the rights and duties conferred on a married man and woman. In other words, the substantive legal norms embodied in S.B. 1250 are already the law in Pennsylvania. S.B. 1250, therefore, does not change in any respect the substantive laws of the Commonwealth regarding marriage, the treatment of same-sex couples, or the treatment of gay or lesbian citizens generally.
What S.B. 1250 does do, however, is this: It takes certain substantive legal norms currently embodied in the statutory laws of the Commonwealth and constitutionalizes them. That is, it elevates the relevant legal norms from the level of statutory law to the level of constitutional law, making them part of the Constitution established by the people and unalterable by the government and no longer a law established by the government and alterable by the government. The effect of S.B. 1250, therefore, is not to change the substantive law regarding marriage but to remove from the Pennsylvania legislature and the Pennsylvania courts the authority to change the substantive law in this area.
Given all that, the first question about S.B. 1250 is why this question of whether we shall have same-sex marriages (or the functional equivalent) or only traditional heterosexual marriages should be settled in the constitution. The vast majority of legal issues are not constitutionalized; they are left at the level of statutory law¯and with good reason, for it is difficult and time-consuming to amend the constitution, and so if we make a mistake or if we want to change our minds or if circumstances change and we want different legal norms, then it is much more convenient to have the norm established in statutory law than in constitutional law. It is the exception, not the rule, to constitutionalize a legal norm. Why then should it be done in this case?
The answer is that, regardless of the wisdom of constitutionalizing our legal norms about marriage, political and legal conditions are such that these norms are almost certainly going to be constitutionalized in Pennsylvania whether we like it or not. I say this because if the matter is not constitutionalized through the amendment process, it will be constitutionalized by the courts of the Commonwealth. This is not because we have an activist judiciary. It is because courts are required to decide the cases that come before them, and which cases come before a court depends not on the court but on whether a private party decides to bring a lawsuit. Sooner or later, some citizen of Pennsylvania will sue the Commonwealth or one of its agencies or political subdivisions claiming that the marriage laws as we currently have them violate the nondiscrimination provisions of the state constitution. When that happens, the courts will be required to decide the case, and when they do they will constitutionalize a norm about marriage. They will say, either, that our commitment to equality requires that the Commonwealth recognize same-sex marriages or the functional equivalent of civil unions, or else that it does not so require, which will for practical purposes have roughly the same effect as constitutionalizing the current legal regime by passing the amendment proposed in S.B. 1250.
Lawsuits seeking to establish a state constitutional right to same-sex marriage or the functional equivalent of civil unions have been brought in at least seven states: Hawaii, Alaska, Vermont, Washington, New York, Massachusetts, and New Jersey. In five of these states (Hawaii, Alaska, Vermont, Massachusetts, and New Jersey), the courts held that the state must recognize same-sex marriages or the equivalent. In two states (New York and Washington), the courts held that the state was not required to do so. Recognizing that the question was eventually going to be constitutionalized one way or another, at least twenty-seven states have passed amendments to their state constitutions similar to that proposed in S.B. 1250. Hence, more than half the states have already dealt with the constitutionalization of this issue. For the others, including Pennsylvania, it is simply a matter of time. A lawsuit that will require constitutionalization of the issue can be filed by almost anyone at any time, and, sooner or later, it will be.
Given that in all human probability the issue of whether we shall have same-sex marriages in Pennsylvania will eventually be constitutionalized, the next question is why the constitutionalization should be accomplished through the amendment process. After all, most questions of constitutional law are settled by the courts, and by and large the courts of the Commonwealth do a very good job of settling such questions. If this issue concerning marriage is to be constitutionalized, there is a real question as to whether it should be constitutionalized through the amendment process or through adjudication in the Pennsylvania Supreme Court.
To answer this question, I ask you to reflect for a moment on some of the considerations relevant to the issue of whether same-sex couples should be permitted to marry just as heterosexual couples are. Resolving this issue requires that one take positions on such things as (a) whether there is such a thing as sexual morality generally and, if so, which norms does it include, if any, related to homosexual conduct; (b) the moral significance, if any, of human sexual differentiation; (c) the moral connection, if any, between sexual activity and procreation; (d) the proper sphere of personal autonomy, including in connection with sexual activity; (e) the proper role of government, if any, in regulating sexual matters; (f) the governments interest, if any, in encouraging procreation; (g) the effect on children, if any, of being reared in single-parent or same-sex-parent homes as opposed to homes of married heterosexual couples; and (h) the importance, if any, of the philosophical, moral, and religious aspects of the Western tradition, which has up till now not recognized same-sex marriages. This list of relevant considerations is representative only; it is far from exhaustive.
The advocates of S.B. 1250 and the opponents of S.B. 1250 disagree about S.B. 1250 in large part because they disagree about considerations of the kind I have mentioned.
On the one hand, people who believe that marriage ought to be reserved to unions of one man and one woman tend to think that the biological connection between heterosexual sexual activity and procreation is morally significant; that heterosexual relationships, because they tend naturally to produce children, are morally different from homosexual ones, which do not; that, everything else being equal, children are best raised in families with their biological mother and biological father; that the state, because it looks to the common good of society not just in the present but as an intergenerational project, has a vital interest in the procreation of children and their rearing and education; that the state thus has a moral obligation to provide legal status and regularity to heterosexual relationships of the kind that tend to produce children¯that is to say, to marriages; and that other kinds of relationships, whether sexual or otherwise, are morally different and, although deserving of respect and many kinds of legal protection, are not in all relevant respects like marriages and so ought not legally be treated as marriages.
On the other hand, people who believe that the state should recognize same-sex marriages tend to believe that human sexuality functions primarily in the building of intimate personal relationships between the sexual partners and that its connection to procreation in the heterosexual case is not morally significant; that since gay men and lesbians undeniably fall in love, form relationships and have families, it follows that for all morally significant purposes, homosexual relationships are equivalent to heterosexual ones; that respect for the dignity of human persons demands that the state recognize this fact and not treat heterosexual relationships better than homosexual ones; that doing otherwise amounts to devaluing the intimate relationships of gay men and lesbians and brands them as second-class citizens; that the state has a legitimate interest in promoting stable, loving homosexual relationships just as it has a legitimate interest in promoting stable, loving heterosexual ones; and that the undeniable fact that gay men and lesbians have children, whether adopted or otherwise, means that such children deserve to have married parents just like the children of heterosexual couples.
Based on my work in moral and legal philosophy, I have views on many of the considerations that these arguments raise. In general, I think the first view is more likely to be correct. That, however, is not what is important here. What is important is that I recognize, and I think any honest person who looks at the arguments has to recognize, that the issues surrounding same-sex marriage are both very complicated and very deep. Any definitive view of the matter requires that a person, at least implicitly, take positions on any number of moral, philosophical, political, sociological, and empirical questions. As I consider these matters, my overwhelming impression is that the only thing obvious and certain about the question of same-sex marriage is that reasonable people can in perfect good faith disagree about this question.
But if resolving the issue of whether the state should recognize same-sex marriages or the equivalent requires us to make many difficult judgments in, among other areas, morality, philosophy, and politics, and if the question is one about which reasonable people can disagree in good faith, then it is clear to me that the issue is not one that should be resolved by courts. Courts are composed of judges, and judges are lawyers, and lawyers have expertise in the law. Legal knowledge and legal skills of the kind we convey in law schools will not resolve deep moral, philosophical, and political issues like those involved in the same-sex marriage dispute. The issues involved in same-sex marriage are much bigger than legal issues. They touch on profound questions such as the foundations of morality and meta-ethics, the relationship between the individual and the state, and the meaning of human sexuality. Lawyers, even judges, are no better than anyone else in forming opinions on such profound questions. In fact, on average, lawyers may even be worse than other people in dealing with such questions, for lawyers are often tempted to apply legal methods, at which they are adept, to philosophical problems, for which such methods are necessarily inadequate.
Having made the conceptual point that the question of same-sex marriage involves all manner of deep moral, philosophical, and political questions, I want to make a sociological point about the issue as well. That point is that, in any practical sense, the question of same-sex marriage cannot be resolved by argument. Intelligent, informed people, having heard all the arguments and considered them honestly and in good faith, will nevertheless disagree about the proper resolution of the question. The human ability to settle philosophical arguments like this one is, at least in practice, quite limited.
In a democratic society, these great questions of social policy about which reasonable people can and will disagree should not be settled in an authoritarian way. In particular, they cannot be settled by an opinion of a court that purports to contain arguments that determine the issue definitively. Everyone knows that, in reality, there are no such definitive arguments, and so a courts attempt to settle such an issue in fact settles nothing. In a democratic society, these great questions of social policy can be settled only by the people themselves through democratic procedures¯that is, by voting. The majority wins, which contributes to social peace, and the minority has not only the consolation of having had a fair opportunity to make its case but also the possibility of returning and prevailing in a subsequent vote. It loses, but only for today. When we have to settle questions of social policy that involve these deep questions of morals and philosophy, this is the only democratically legitimate way to proceed. As Lincoln said in his first inaugural address, [I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
Accordingly, the constitutionalization of the question of same-sex marriage should be settled not by the courts of the Commonwealth but by the people themselves.
Robert T. Miller is an assistant professor at the Villanova University School of Law. References
15 Vt. Stat. Ann. §1204(a)
The Federalist No. 53 (Madison)
Abraham Lincoln, First Inaugural Address (March 4, 1861)