Same-sex marriage cases misframed

[Jon Roland]

2015/04/27

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 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.

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 to the parties to 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.

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.

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