Rational Relations

A recent edition of Faith! Magazine had a statistic in it – something like 61% of Catholic people support same-sex marriage. To many, I think it seems like a civil rights issue. “I have the right to be married to the person I love; why should the government restrict that right to others?”

I’ve struggled with that myself. While I believe the Church’s teaching on same-sex interactions, I’m not always sure I want my government to adhere to my Church’s teaching. Not because I don’t think it is right – rather, because I don’t know that my Church would always be in the majority on deciding issues. I wouldn’t want my government to decide things based on other religions that I had to adhere to. So, I’ve been trying to find some non-religious reason why government wouldn’t allow for same-sex marriages.

If you’ve been following the recent US Supreme Court case about the constitutionality same-sex marriage ban, you may have heard the phrase “rational basis” thrown about – usually in the context of “there’s no rational basis for the government to deny the right of same-sex couples to marry.” Having been through several years of law school, I understand that phrase in a slightly different way than you might.

Whenever the government treats groups of people differently – discriminates by granting benefits to some, but not all, of its citizens – the government must show why it is o.k. to treat one group differently than another group. Courts look closely at – the legal phrase is “scrutinize” – government’s reasons for alleged discrimination, but courts looks closer at some groups than others.

For example, if government is treating people of one skin color, nation-of-origin, or religion differently than another group, then courts look closest – the strictest level of scrutiny – at the government’s reasons. The government must show that there is a compelling state need to treat this group differently, the treatment is narrowly tailored to meet that need, and there’s really no other way for government to attain its need. (This is a VERY hard standard to meet.)

If government treats people of a different gender or children born out-of-wedlock differently, then courts look closely, but it is not quite as strict. We call this intermediate scrutiny. Here, the government must show that there is an important state interest, and the government’s actions that treat people differently are substantially related to attaining that state interest.

For every other group – wealthy or poor, democrat or republican, gay or straight – the court conducts a “rational basis” test. In this test, the group that feels there’s discrimination must prove either that there’s no legitimate government interest in whatever benefits the government is providing, or that the benefit provided doesn’t rationally relate to that government interest.

This is the heart of the same-sex marriage debate right now. Proponents claim that the government has no legitimate government interest in marriage that excludes the right to marry for gay couples. People who oppose same-sex marriage are branded as “haters,” “bigots,” or worse.

It’s a frustrating position to be in. Some are saying, “Give me what I want [here, same-sex marriage] because it’s fair, it’s right, and it’s equal. And, if you don’t, I’ll tell everyone you hate me.” Even if one doesn’t fully believe it is appropriate to give what they’re asking for, taking a stand – any stand – against it can be risky. After all, why would anyone say it’s o.k. to only let some types of people – heterosexuals – get married?

I think the answer can be found by rephrasing the question. I ask, “Why would government have any interest in heterosexuals getting married in the first place?” Michigan’s Bishops have answered this beautifully: The purpose of marriage is children. Same-sex unions can never result in creation of children, so government has no interest in regulating such marriages.

I’d like to take this same idea down a slightly different path.

In fact, every year in Michigan, there are 45,000 children – or more – born out of wedlock. These children are born to an unmarried couple, and I’d wager that nearly all of them were conceived without artificial insemination or other tools science has developed to help women attain pregnancy, and if not all at least a very large majority of these pregnancies were unplanned.

Children born out of wedlock have larger hurdles to battle than children born within a marriage. Children born out of wedlock struggle more with school, higher rates of poverty, suffer higher rates of abuse and neglect, and many other tragedies. If marriage helps avert any of these, then government has a legitimate interest in offering benefits to heterosexual couples that want to be married. That interest is that ensuring that children have a stable home environment to grow up in.

After all, marriage costs the government money. When a couple is married, they pay less in taxes than they would if they were single. Two single people live in two houses, with two sets of property tax, more likely have two cars than if they lived together – so more registration fees for single, rather than married, people. In short, there are all kinds of benefits paid to married people that single people don’t get. But that’s not even the most rational basis I can think of.

For each of those children, every year born out of wedlock, the government has an interest in making sure the child knows who the child’s biological father is. In fact, the state can be penalized by the federal government if less than 90% of the children born out of wedlock in a given year don’t get paternity established. (For a time in the 1970s and perhaps through today, the federal government was afraid of unintentional incest, when a half-brother and half-sister started dating, without realizing they were related because they never knew each other growing up with their respective mothers.)

After finding the biological father, the government will often set up a child support and parenting time order – an order the government will spend the next 18 years (or more) enforcing. Across the US in 2012, states spent $5.6 billion – with a b – on such establishment and enforcement. While we don’t know for sure, it’s probably evenly split between children born out-of-wedlock and those children raised by a divorced couple.

When people are married and have children, paternity is presumed to be the husband. Government spends no money trying to prove it. When people stay married, government spends no money, or time, or effort, establishing or enforcing a child support or parenting time order. Acknowledging that maybe half will still be spent working with divorced parents, that’s still $100 million county, state, and federal dollars spent when heterosexual couples create life without intending to.

So, any benefits that government provides to heterosexual couples through marriage can be seen as an enticement to get them married and keep them married – government may even save money in the end.

But, some counter, then why isn’t there a requirement to have children when a couple applies for a marriage license? Why are 60+ and 70+ aged people allowed to marry, when they are well-past their procreative years?

I have two answers: Legally, in a rational basis analysis, the court has never held that "overbroad" (e.g., too many people are helped by the treatment to achieve the rationally related result) to defeat a rational basis claim. But, perhaps the simple answer is stating the principle the questions ignore: Privacy. Government doesn’t have a right to invade people’s private lives. Government can’t require people to have sex or to procreate – but if heterosexual couples are going to have sex, then government does have a legitimate interest in regulating marriage.

In fact, Michigan Compiled Law, section 552.39, specifies that, if a couple gets married and one party is barren – unable to procreate – then the other party to the marriage has grounds to get a court of law to annul the marriage.

Note that a legal annulment is not the same thing as a divorce. In a divorce, the court says, “you were married once, but now you’re not. Your marriage has ended.” In an annulment, the court says, “you were never validly married in the first place.” The marriage you thought was valid was, in fact, void from the beginning.

This, then, is my point on the same-sex marriage debate. The legitimate government interest in regulating any marriage is procreation through intercourse – intended or unintended. When that’s not possible because one party is infertile, the marriage can be declared void from the beginning – under the laws of the state, not the laws of the Church. When government declares void a marriage that is absolutely, positively always going to be without genetic offspring resulting from sexual interactions, why would it matter whether it’s because a person is barren or because the sexual interactions themselves cannot create life?

It just doesn’t seem rational.