Posted by Orin Kerr:
Rational Basis and Constitutional Line Drawing in the Same-Sex Marriage Debate:
http://volokh.com/archives/archive_2009_09_13-2009_09_19.shtml#1251839249
I am not an expert in the constitutional debate on same-sex marriage,
but I was thinking recently about the relationship between the
rational basis test and the need for line-drawing, and how that might
impact the constitutional arguments in the same-sex marriage debate.
My pondering led me to a tentative argument that I haven't seen
directly in the opinions I've read, so I wanted to offer it up and see
what folks think. Here's the argument: When the state takes on the
task of defining who should receive a government benefit, and that
definition requires a great deal of complicated linedrawing, it is
presumptively rational for a legislature to draw lines in ways that
match traditions or common contemporary practices. As the amount of
required linedrawing increases, and it becomes harder to justify one
specific line over another, it becomes rational for a legislature to
simply mirror the status quo rather than craft a new approach.
I was thinking about this in the context of the same-sex marriage
debate because state recognition of marriage seems to require a lot of
linedrawing. It is widely agreed that the state has to impose limits
on the number of people who can get married (2? 3? more?), the age of
the couples (with or without parental consent), consanguinity (whether
cousins can marry), etc. It can be hard to justify the exact lines
that get drawn. For example, [1]in many states, couples can get
married at 18 without their parents' consent but 16 with their
parents' consent. The exact line here seems pretty arbitrary. Why 18
years, and not 17 years and 323 days? Why 16 years if a parent
consents, and not 16 years, 4 months, and 19.5 seconds? No matter who
draws the lines required to define marriage, some parts of the
definition are going to be rather arbitrary.
My claim -- albeit only a very tentative claim, as this isn't my
area and I haven't looked closely at the cases -- is that the fact
that some line needs to be drawn, and the legislature unimaginatively
drew it in some relatively traditional way, itself helps provide a
rational basis for the legislature's approach. It seems sensible for a
state legislature tasked with all the line-drawing of defining
marriage to stick with the common answers to the problem. Put another
way, deference to preexisting practices in areas that require
complicated line-drawing is a sensible default even if we lack a clear
argument for why those preexisting practices are normatively
preferable to other ways of drawing the lines.
Again, consider the case of age. Drawing the line at 16 instead of
16 years, 4 months, and 19.5 seconds isn't rational because we think
the age of 16 is actually better. Rather, it's rational because some
line is needed and there is a tradition of using integer years since
birth as a yardstick for entitlement to government benefits that we
rationally confer based on age. (It might also be rational because it
is easier to calculate, but I think the point stands.)
In the context of the same-sex marriage debate, then, it seems to me
that the need to draw lines and the traditional limitation of marriage
to opposing sex couples itself helps provide a rational basis for
using the traditional definition of marriage as between a man and a
woman. A legislature trying to answer the many questions and
line-drawing exercises required by any definition of marriage could
reasonably adopt the traditional way of doing things rather than have
to justify new lines. Adopting the traditional definition in the face
of the significant uncertainty of the best way to draw all the lines
required by state recognition of marriage becomes a reasonable means
-- perhaps not the best means, but a reasonable means -- of achieving
the legitimate state interest of all the traditional benefits of the
institution of marriage.
Two caveats apply. First, this argument is only in play if the
constitutional standard is mere rational basis scrutiny. If you
believe that heightened scrutiny should apply, I don't think this
argument is relevant. Second, I should emphasize that this is a
constitutional argument, not a policy argument. From a standpoint of
policy, I am in favor of laws permitting same-sex marriage. The
constitutional question is not whether I favor the law, however, but
only whether such a definition of marriage is a reasonable means of
achieving a legitimate government interest.
Anyway, that's my tentative argument. I'm interested in your
responses, especially if you disagree.
References
1. http://www.coolnurse.com/marriage_laws.htm
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