Once More into the Breach

One of the things I love about blogging is its immediacy. Scholarly publication is frustratingly slow. But immediacy has its downside. Things get posted before they're ready. In terms of thoughtfulness, blogging lies somewhere between e-mail and scholarly publication. It's more thoughtful than e-mail, but less thoughtful than scholarly publication. My blog entries are like second drafts. I write them, then go back over them to correct errors. Sometimes, as you know, I get things wrong or don't say things well. Mea culpa.

Yesterday, in my entry entitled "Andrew, Andrew, Andrew," I proposed a constitutional amendment to the effect that no state is required to recognize another state's marriages. I thought this would achieve the federalist result I seek. But UCLA law professor Eugene Volokh, to whom I sent the entry, said it would not. Suppose the United States Supreme Court ruled that the Fourteenth Amendment forbids discrimination on the basis of sex (or sexual orientation) in marriage law. This would mean that each state must thenceforth recognize homosexual marriage. My proposed amendment would not stop that.

It took me a while to figure out what Professor Volokh was saying, in part because his messages were so short. He's right, of course. So let me try again. I hope you see what I'm trying to accomplish. Qua federalist, I believe that each state should decide for itself how to define "marriage." If Massachusetts wants to allow homosexual marriage, it should be able to do so. If Texas wants to disallow homosexual marriage, it should be able to do so. I haven't argued for (or defended) federalism; all I've done is draw out its implications for homosexual marriage. Here's an amendment that ought to do the trick:

Each state shall decide for itself how to define "marriage," except that no state shall require that the parties to a marriage be of the same race.

I was tempted to stop after the first occurrence of "marriage," but that would open the door for states to prohibit heteroracial (sometimes called "interracial") marriages. (I'm not saying that any state would, but it could.) It might be asked why a federalist would object to a state law banning heteroracial marriages. Is a federalist, as such, committed to viewing Loving v. Virginia (1967) as a mistake? I don't think so. There's a morally and constitutionally relevant difference between heteroracial, heterosexual marriage (on the one hand) and homosexual marriage (on the other). Heteroracial, heterosexual couples are capable of procreating. Homosexual couples are not.

The Equal Protection Clause of the Fourteenth Amendment requires equal treatment (by states) of similarly situated individuals. It does not require equal treatment of those who are differently situated. Since homoracial and heteroracial heterosexual couples are similarly situated with respect to procreation, to which there is a fundamental right (according to the Supreme Court), the amendment requires that they be treated equally. But heterosexual and homosexual couples are differently situated with respect to procreation, so the amendment does not require that they be treated equally.

Please don't say that not all heterosexual married couples procreate (or intend, upon being married, to procreate). I've addressed that objection. See here. The law, unlike morality, must draw lines. The line between homosexual and heterosexual is no more arbitrary, legally speaking, than is the line between people under twenty-one years of age and people twenty-one years of age or older with respect to the drinking of alcohol. The second part of my proposed amendment simply ensures that Loving v. Virginia, which struck down bans on heteroracial marriage, remains in effect.