Same-Sex Marriage Makes Liberal Judges Irrational

One of the most striking features of the campaign for same-sex marriage has been the prominence of its assault on reasoning itself. The logical relations of legal categories with one another, as those categories represent persons, their interactions, and their rights and duties, are at the heart of all legal decision-making and ideally inform legislative and administrative policymaking as well. But the impulse to redefine marriage so that it is no longer understood as the conjugal union of a man and a woman has been consistently heedless of logic and the rational relations of legal categories.

Begin with the steadfast refusal of same-sex marriage advocates even to define what “marriage” is now supposed to mean. As the authors of What Is Marriage? have tirelessly argued, marriage has had a consistent core meaning, essentially the same rationally defensible one, in every human civilization. Those who reject that meaning haven’t offered an intellectually coherent new meaning for the word. Is marriage now simply an affective/sentimental/romantic/sexual relationship of two persons who wish to share their lives together? Then what limiting principle demands that it be sexual, and not affective in other non-sexual ways? Or that marriage be exclusive, with a requirement of fidelity to one’s spouse? Or that it be permanent—or even that its dissolution be governed by any standards other than the will of the parties? Or that the relation be limited to two persons, or that it rule out the union of close blood-family members?

Same-sex marriage advocates have offered no serious answers to any of these questions—or, at least, none that do not crumble under the slightest analytical pressure. Rather than say what marriage is—which anyone can see is an absolute prerequisite to saying whether “equality” demands its availability to partners never before thought capable of marrying—these advocates simply shout “marriage equality” ever more loudly, point to an array of “government benefits” linked to marital status, and make their desire for the thing substitute for an argument about what the thing is that they want.

But this is only the most obvious betrayal of reason by same-sex marriage advocates. There are many more. In 2009, the Iowa supreme court held that because “religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage,” therefore the law upholding conjugal marriage had disturbing implications for the separation of church and state. It did not occur to the court that the same could be said of the movement in favor of same-sex marriage, which includes many people moved by their religious sentiments. Nor was the court capable, it seemed, of making the elementary distinction between the distinctive commitments of religious faiths, which no sect is entitled to compel others to share, and the common moral norms supported by religious belief, which are inescapably part of any legal system for communities full of religious people, and which non-religious people too can support on other grounds.

In 2010, federal district judge Vaughn Walker presided over a kangaroo court with a predetermined outcome on the fate of Proposition 8, a California constitutional amendment passed by the people of the state to protect conjugal marriage. Among his many depredations on the integrity of legal reasoning, Walker argued that because marriage has “evolved” in modern times into an institution that treats the sexes more equally, it is not now a “gendered institution” in which the sexual complementarity of the partners can be said to matter any longer. The obviousness of the fallacy was shocking, but the assault on reason was no longer surprising.

When the Prop 8 case reached the Ninth Circuit on appeal, Judge Stephen Reinhardt added yet one more fallacy to the pile when affirming Judge Walker’s district court ruling. Reinhardt argued that because “the state” had briefly “recognized” same-sex marriage before the people passed Prop 8, therefore the amendment amounted to a “new rule” on marriage that committed the state to discrimination against a previously protected class. But it was never “the state” that foisted same-sex marriage on California. It was a state supreme court run amok that did, and the people of California—the real holders of the power of “the state”—went to the polls to restore the law to the condition it was in before the judicial demolition crew arrived.

When Justice Kennedy wrote for the Court in United States v. Windsor this June, invalidating Section 3 of the Defense of Marriage Act, he made his own characteristic contribution to shoddy legal reasoning. He observed that same-sex couples recognized as married by a state but not so recognized by the federal government had their feelings hurt by this federal policy. From this, without more, he concluded that harming such couples must have been the motive of DOMA’s legislators and the intention of the law itself. This he took to be the irrational “animus” that dooms any policy challenged for its rational basis. Not for a moment did Kennedy entertain the thought that there is a whole universe of rational arguments for conjugal marriage that have nothing to do with harming anyone.

But at least Kennedy did confine himself to the federal law in front of him. Setting aside his overheated rhetoric, the logic of his Windsor opinion does not mean that any state must abandon its exclusive commitment, in its laws, to conjugal marriage between a man and a woman. Justice Kennedy laid down a new rule: that wherever a state in which a same-sex couple resides considers that couple to be married, the federal government must likewise treat them as married.

The Obama administration has already taken steps to treat Windsor as saying more than it did—again displaying a disregard for the forms of legal reasoning. Before the summer was over, the administration made several maneuvers that Windsor cannot justify. The Defense Department announced that it would treat any same-sex couple in the military as married, for purposes of military spousal benefits, if they present “a valid marriage certificate,” regardless of whether the couple resided in a state that recognizes that marriage or not. The Pentagon even announced that same-sex couples who wish to leave a state where they cannot marry, travel to a state where they can, and then return to enjoy such benefits, would be granted brief furloughs to do so. This policy is contrary to the legal effect of Windsor, but no matter—it’s all for the cause!

Shortly thereafter, the Internal Revenue Service announced that same-sex couples considered married anywhere would be considered married everywhere for federal tax purposes, “regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.” At the same time, the Department of Health and Human Services made a similar announcement with respect to marital status under Medicare.

Like the Pentagon, the IRS and the HHS actually contradicted the legal principle of the Windsor case by treating state laws on marriage as having no impact on federal policy—if they happen to be the kind of law of which the Obama administration disapproves.

And now a rogue state judge has taken the next step, making a complete hash of the logic of Windsor in order to establish same-sex marriage in a state that doesn’t have it. Judge Mary Jacobson of the Superior Court in Mercer County ruled on September 27 that the constitution of New Jersey compels the state to permit same-sex couples to marry, thanks to the Windsor precedent. Since Windsor does not compel such a conclusion, and since the state supreme court held seven years ago that the principles of the state constitution were satisfied by civil unions with all the benefits of marital status but without the label “marriage,” the judge had to engage in some legal somersaults.

Judge Jacobson’s creative destruction of logic achieved a non sequitur par excellence. She held that because New Jersey’s same-sex couples in civil unions are treated by the state in every way as married, but, since the state does not call them married, the federal government does not treat them as having that status, therefore the state is violating its own constitution if it does not call them married.

This turns Windsor on its head—not to mention logic itself. As we have seen, the legal principle that decided the Windsor case—agree or disagree with it—is that states decide who is to be considered married, and the federal government must consider same-sex resident couples married if the state says they are. It is, by Windsor’s reasoning, right and proper for the federal government to consider same-sex couples married in Massachusetts if the state says they are, but to consider same-sex couples unmarried in New Jersey if the state says they are not married, even if they are in a civil union with many or even all of the local benefits of marital status.

Windsor means federal law now treats all state decisions on this question equally, as controlling federal treatment: laws and policies that grant no legal status recognition to same-sex couples, or that grant some status short of marriage, or that permit same-sex marriage, are all equally valid choices for a state to make, and the federal government will follow suit, and say “married” if that is what the state says.

So there is no possible way to get from Windsor to Judge Jacobson’s conclusion. She said herself that there was “a dearth of helpful precedent” to get her through the “tangled thicket” of the case. But the thicket was only tangled if by “helpful” she meant a precedent that would get her where she wanted to go, which was overturning New Jersey’s existing marriage law.

For what Judge Jacobson required, could not locate, and decided she could do without, was some principle that would make it a violation of New Jersey’s constitution that same-sex couples in civil unions aren’t treated as married by the federal government. As the counsel for the state argued in vain but quite correctly, in this situation there is no state action that can be challenged as causing an injury.

If there is even an allegation of an injury in this case, it is one caused by the federal government, which is behaving just as Windsor prescribes, treating couples as married if the state so treats them. The legal predicate for such federal treatment is the presumptive validity of state choices in the matter. To hold that New Jersey same-sex couples must be able to marry, Judge Jacobson would need independent state-constitutional grounds having nothing to do with Windsor, and such grounds are already foreclosed, for a lower court judge, by the state supreme court’s prior holding that civil unions will suffice. But the judge moved from an alleged wrong for which the federal government is responsible (and which she had no power to redress) to saying that the state was in a position to do something about it, thus it must be held responsible.

How can the “remedy” for the federal government’s “failure” to treat a couple in a New Jersey civil union as married be to force the state to permit them to marry? If there is a more splendid example, anywhere in legal history, of a judge doing violence to the most basic categories of legal reasoning about identifying the responsible parties in a case, I have yet to see it. Desperate to deploy the power of her court, the judge behaved lawlessly and irrationally.

Judge Jacobson has now denied a stay of her ruling while it is appealed, saying New Jersey will begin issuing marriage licenses to same-sex couples on October 21. Her ruling deserves a quick stay from the New Jersey Supreme Court and then a decisive reversal on appeal. Indeed, that reversal should be accompanied with a rebuke for her flagrant abuse of judicial authority. But in the new world that the movement for same-sex marriage is ushering in, one can never be sure that facts will remain facts, principles will still be recognized as principles, and logic itself will continue to compute.