MARY ANNE CASE: I
told the organizers
that I didn't need
an introduction,
but I feel I should
say a few things
upfront for the few people who
do not know enough about me
to know this.
I am not an
evangelical Protestant.
I am also not an opponent
of same-sex marriage.
I am a strong supporter
of same-sex marriage
and have been advocating it,
not only as a normative matter
but as a matter of
the correct result
under a connect-the-dots
doctrinalism
in constitutional
law, basically since I
entered the legal academy
many, many years ago.
Justice Scalia and I agree about
few things, but one of them
is that a connect-the-dots
doctrinalist looking
at the majority opinion
in Lawrence against Texas
could only conclude that
same-sex marriage is now
something that's under
substantive due process people
have a constitutional right to.
Justice Scalia and I agree
about the descriptive
and disagree about
the normative.
I think that's terrific,
he thinks that's terrible,
but we both agree that that is.
Long before Lawrence, I have
been and remain of the view
that under connect-the-dots
doctrinalism
under equal protection
on grounds of sex,
the requirement that there
be one person of each sex
to have a marriage is
one of the last remaining
quote "fixed notions
concerning the roles
and abilities of
males and females"
unquote left in American law.
And if you recognize
that quote, you
will know that it is what the
Supreme Court has been saying
for decades now is the standard
by which a sex respecting
rule is judged unconstitutional.
If it embodies such
a fixed notion,
then it's got constitutional
problems as sex discrimination.
But notwithstanding
these views of mine,
I've been spending a fair
amount of time recently trying
to understand, as it
were, from the inside,
some of the most often and
vehemently voiced objections
to same-sex marriage.
And there are a
couple of them that I
have understood from
the beginning perfectly
but happen not to agree with.
For example, my old friend and
former employer Judge Robert
Smith wrote the majority opinion
in Hernandez v. Robles, the New
York same-sex marriage
case, in which
he, as many other judges also
have, said, among other things,
that the interests
of procreation
makes it appropriate
to limit marriage
to persons of opposite sexes.
Now, I understand
that perfectly.
I don't agree with
it at all, but I
have no problem grasping it.
Here are some that I have
a little bit more trouble
understanding, in
addition to the one
I'm going to focus on today.
One of the earliest
same-sex marriage cases from
the '70s, the judge deciding
against the lesbian couple who
sought a marriage
license said quote,
"the relief the plaintiff's
couples seek cannot be granted
because what they are seeking
is not a marriage" unquote.
Now, that seems to
me to put marriage
in the category
of natural kinds.
And I'm not sure
I understand it.
The best I can do
to understand it
from the inside is to say
maybe what they're seeking
is not a marriage
in the same way
that three can't be a couple.
Three people can be many
things, but not a couple.
Even if I can understand
that as a matter
of a philosophical objection,
I have a really hard time
understanding that as a
matter of American law.
Because plenty of
things are natural kinds
that are unproblematically
defined differently in law
and we accept that.
Without straying too far
from the matter at issue,
consider mother
and father, right?
We in a country that has a long
history of accepting adoption
define mother and father in law
very differently from the way
mother and father might
be defined in nature
or in philosophical reasoning.
One of the other ones
I've tried to understand
and I've had no success, and
if one of you can help me out
I'd appreciate
that, is the claim
that marriage is a
pre-political institution.
Among the people I've
tried to discuss this
with are a Catholic archbishop
from Chicago, Archbishop
Paprocki, who wrote about
this for a symposium
in Loyola Law School.
And [INAUDIBLE] the Bible
were God for this proposition.
And what I said to him is I
understand that pair bonding
might be pre-political, but
you as a Catholic believe that
marriage cannot involve divorce.
Without theological argument,
how can the absence of divorce
be something pre-political.
I mean that is to say, the
institutional structure
to keep people together
has got to be something,
at least in my view, that
postdates something political.
The one of the objections that I
think I've had the most success
understanding is
perhaps paradoxically
the one that gets the
most negative publicity,
the one that is seen as a joke.
And it's the one that you may
have seen in countless humorous
editorial cartoons and
humor columns, which
is the claim that I'm
going to focus on,
which is the claim most often,
although not exclusively
raised, by evangelical
Protestants,
that their own marriages are now
threatened by state recognition
of same-sex marriages.
Among the cartoons are
one, for example, there's
this nice elderly
heterosexual couple
sitting by the fireplace in an
easy chair saying the lesbians
down the street are
getting married,
now we really need
to get a divorce.
Now, the more I
thought about this,
the more I think that
these Protestant protesters
are exactly right.
And most of the
rest of my talk is
going to be explaining
why I think so.
And at the end, I'll give my own
normative take on this issue.
They're right because
Protestants in the United
States have
essentially abdicated
the definition of marriage,
it's formation and above all
its dissolution to the state.
There is no air really
between marriage
as the Protestants define it
to their flock and marriage
as the state defines it.
I think one way of
making this clear
is to point out that this is
not true for several other major
religious groups in
this country, notably
Catholics and Jews.
So Catholics famously do
not recognize divorce.
And this helps them
understand full well
that marriage in
their faith tradition
and marriage as
the state defines
it are not the same thing.
So that one can be married in
the eyes of the church and not
of the state, and vice versa.
The paradigmatic case is
the divorced and remarried
Catholic.
In the eyes of the state, he's
remarried to his new spouse.
In the eyes of the church, that
second marriage has no effect
and he still remains
married to the first spouse.
Catholics do, however, have
a means that de facto serves
to dissolve
marriages, and that's
the procedure for
annulment in canon law.
It's made famous in
the popular press
by, among other things,
Sheila Rauch Kennedy's book,
it's called Shattered
Faith, talking
about her annulment
procedure from one
of the political Kennedys.
And what this annulment
procedure allows
is through legal process,
through advocates and judges,
the dissolution of
a Catholic marriage.
Dissolution on the grounds
that it never really existed,
that the spouses
were in some way
disqualified from entering
marriage with one another.
There is a similar
difference between marriage
as the civil law defines it
and as the faith defines it
that's true of observant Jews.
I am less of an
expert in Jewish law
and I realize that
on Rosh Hashanah
I'm not likely to find many
experts in the audience.
But as I understand it, just as
Catholics have their annulment
procedure, so observant Jews
have a religious divorce
procedure.
The divorce is
called a get and it's
issued by the
husband to the wife
through the intermediary of a
tribunal known as of beth din.
And this is actually
something that
has become of great
relevance to family law
lawyers in the United States.
And the reason why is because
of the situation of someone
that under Jewish law is called
the agunah, or the bound woman.
That is to say she is
a woman religiously
married to a man who
then declines to give her
a religious divorce.
So the problem that occurs is
that there is a civil divorce
proceeding, sometimes
even initiated
by the very same
husband, which then
results in a civil
dissolution of marriage.
But if the husband
refuses to give his wife
a religious divorce, the wife
is still bound to him such
that she can't under
religious law remarry,
such that any children she
may have with her civilly
married new husband
might not be recognized
as legitimate under Jewish law.
And the civil law has actually
tried to do interesting things
to solve this.
The New York courts have been
in the forefront of this.
And they've tried to make it
a condition of civil divorce
that a Jewish husband
grant his wife a get.
They did this
initially by case law
and eventually then by statute.
A statute that talks in general
terms about a [INAUDIBLE]
different for civil
divorce being,
quote "for spouses to take
all steps within their power
to remove any religious or
conscientious restraints
on the other
spouse's remarriage."
Now, you may immediately see
interesting and difficult
constitutional
questions with this
and I'll come back to
some of them shortly.
But for the moment,
let me just reinforce
that Catholics and
Jews have reason
to understand the difference
between civil and religious
marriage.
Protestants have reasons not to.
I'm going to talk a little
bit about the legal historical
reasons why this is so.
But before I do,
I want to give you
what for me was the aha
moment for this theory, when
I realized, at least by my own
lights, I was on to something.
Which is that in
a series of polls
taken over the
last several years
since same-sex marriage
became a front burner
topic in the American
political scene,
there's a fairly consistent
set of statistics.
These are polls which
whatever their underlying
view of homosexuality--
that is to say both
among populations
that are relatively
sympathetic to gay rights,
otherwise in populations that
really are unsympathetic--
there's the following
fairly consistent difference
which you don't see as
strongly with respect
to other gay rights issues, like
employment, nondiscrimination,
like Don't Ask Don't Tell,
like hate crimes legislation
for gays and lesbians.
It is that there is
roughly a 20% difference
between the attitudes of
Protestants and Catholics
when it comes to
same-sex marriage.
Let me just give you
the representative poll
numbers from a Pew poll
from about three years ago.
As far as I understand, this
hasn't changed significantly
over time.
In that Pew poll, 55% of Jews
supported same-sex marriage.
Now you're saying,
not surprising.
Jews are, on average, more
liberal than the population
as a whole and observant Jews
are a minority among Jews.
But then among white
Roman Catholics, only 48%
opposed same-sex marriage.
And this was lower than
the population as a whole.
That is to say the
population as a whole
more hostile to
same-sex marriage
than the Catholic population.
52% percent of Latino Catholics,
71% of Latino Protestants,
72% of black Protestants, 75% of
white evangelical Protestants.
One of the most recent polls
in connection with an election
issue that has taken
a low second place
to the presidential
elections, which
is the question in California
whether the Supreme
Court of California's decision
that marriage rights must
be given to same-sex
couples should
be overturned by
constitutional amendment,
there is a similar division.
Protestants by a majority
favor the proposition,
oppose same-sex marriage.
Catholics by a majority
oppose the proposition.
55% of Catholics think
same-sex marriage
is just fine with
them, notwithstanding
that Archbishop Paprocki
and Pope Benedict have
been inveighing against same-sex
marriage at least as urgently
as any Protestant pastor.
Now, before I talk to you
about what this may mean for us
and what the law
to do about it, I
wanted to give you a
little bit of legal history
to show you why I
think we got here.
You may or may not know
that the English state
came relatively late to
the regulation of marriage.
Initially, marriage in the
English legal tradition
was a private contract for
the purchase of a wife.
Purely private, no trace of
public license or registration.
No authoritative intervention
by either a priest
or a civil functionary.
Purely a private
business transaction.
And when there came
to be more regulation,
it did not come in the first
instance from the state
but from the church,
through the canon law.
So it is the canon law that
defined who was married
and who was not, and the
state was, as it were,
a taker and not a
maker of marriage.
Various civil consequences
followed from the question
of who was married.
For example, consequences
like inheritance of property
and legitimacy of children.
But it was the church who
decided in the first instance
who was married.
And it did so from the
time of Pope Alexander
III in the Middle Ages simply
by requiring the exchange
of words of present consent.
So two people of
opposite sexes who
were of legal age, not too
closely related to one another,
and not otherwise married
would be married simply
if they said to each other
in private in a hayloft
as well as in public
before witnesses, the words
I marry you.
Now it's very important
that those words
be in the present tense.
Because words in the future
tense were words for a promise
to marry and unless sexual
intercourse followed
they didn't produce a marriage.
And there's umpteen lawsuits
about the use of the tenses
here.
A famous legal
historian famously
said lovers of all
people are the people who
have the most difficulty
distinguishing
between the present
and the future.
And I think that that was a
problem, a practical problem,
for Pope Alexander III's views.
So eventually there came to
be more formality injected
into marriage.
The English church became
fussier and the English state
became fussier.
But it wasn't until
the 18th century
that the English state finally
and definitively asserted
control over marriage, saying
none of this merely contractual
stuff.
No words of present
consent will do.
Not even more formal
private contracting will do.
But you have to come to us.
You have to come to our
official representatives
if you want to be
recognized as married.
But it did so through the
established Church of England,
not through any
secular mechanism.
And the act was
known as the 1753 Act
for the Better Prevention
of Clandestine Marriages,
popularly known as Lord
Hardwick's Act for the Lord
Chancellor that shepherded
it through Parliament.
One of the things that
has also obsessed me
in my study of the
law of marriage
has been that Lord Hardwick's
Act was almost simultaneous
with the Bubble Act in
which the English state did
similar things for corporations
as it did for marriage.
That is to say, it said
no private contracting
for corporate status
or limited liability.
You have to come to us if
you want to be a corporation
and we are going to set the
terms on which you do that.
More of that later.
But for the moment, it's
important to recognize
that it was the established
church and ministers
of the established church
who could perform marriages.
There were some exceptions for
the marriages of Jews and none
for other groups,
including Catholics.
Now, 1753 was after
habits of marriage
had already been developed
in the United States.
But even in the United
States in the colonies
there's an
interesting difference
in the formation of marriage.
The southern colonies
dominated by members
of the Anglican church
had the tradition
that we have today, which
is that ministers were
the principal celebrants of
marriage, which marriages
were then civilly
legally recognized.
On the other hand, in
pure New England marriage
was a civil contract.
And not only were
clergy not authorized
to perform marriages, they were
dis-invited from even attending
the ceremony because
it was thought
that this would create too
much confusion between marriage
which the Puritans saw as a
civil contract and religion.
Now, I want to pause on that
interesting distinction,
push it back into
history, and forward
into the present and future.
So why did the Puritans
have this view?
They might have gotten it
from the Netherlands, which
is where they came from
directly before they
came to Plymouth Rock.
The Netherlands
also had the notion
that marriage was
a civil contract.
And if you look beyond
the United States
into the rest of the
world for places where
the recognition of
same-sex marriage
has been in the
forefront, you look
to the Netherlands, one
of the first countries
to recognize any
legal relationship
at all between members of a
same-sex couple with rights
and obligations
approximating marriage.
And then a few years
later, perhaps the first
in the world to grant civil
marriage to same-sex couples.
If you come back to
the United States,
look at where civil recognition
for same-sex couples
has been in the
forefront and you'll
see that it has
been in New England,
in the former Puritan colonies.
Vermont was the first
state, through litigation
called Baker v. Vermont and
subsequent legislation that
was demanded by the
Vermont Supreme Court
under the state constitution,
to grant same-sex couples
civil union status,
which is very
close to the legal
obligations of marriage
without the name of marriage.
Massachusetts was
the first state
to grant same-sex couples
full civil marriage.
Connecticut was the
first state to do either
without there being litigation
pushing them forward.
The legislature of Connecticut,
without judicial prompting,
passed the civil union law
very much like Vermont.
Now, what do these three states
have in common, these three
states in the forefront?
One of the things that
is most obvious and most
frequently cited is they're
among the bluest states
in the country.
They're liberal and
you would imagine
that same-sex marriage would
be less threatening to them.
But two other things should
probably be taken into account.
One is that each
of these states has
a legal historical tradition
of Puritan marriage,
of recognizing
marriage principally
as a civil contract with
religion taken as far as
possible out of the picture.
And the second is something
that you might initially
think is a problem
and I actually
think contributes, which is
that each of these states
has a comparatively high
percentage of Catholics
in the population.
And this turns out to work
in favor of same-sex couples,
I would argue, even
though the hierarchy
of the Catholic church would
wish it were otherwise.
Now, the tendency of
Protestants to conflate
civil and religious marriage
doesn't just, I think,
explain the virulence
of objections
by evangelical Protestants
to state recognition
of same-sex marriage.
It also explains another
interesting development
in family law, which
is covenant marriage.
Do you all know what
covenant marriage is?
OK.
It's something that's now
only available largely
in those states that were
part of the Anglican early
settlement, that is to say in
southern states in the United
States.
And it's somewhat
harder to get out
of than ordinary civil marriage.
Ordinary civil marriage
is terminable at will
in most states.
And covenant marriage doesn't
make divorce impossible,
but it makes divorce much, much
harder, or somewhat harder,
to get.
Now, political
scientists that have
been looking at how
covenant marriage laws got
to be passed in the last decade
or so in the United States
have noted that particularly
Louisiana, the first state
to adopt it, evangelical
Protestants played a leading
role.
Evangelical Protestants
including Tony Perkins,
whom you may have
heard of, who thought
that this legislation was a
politically more palatable
alternative to their
preferred option
of generally re-instituting
state laws limiting access
to divorce and restoring
the requirement
that someone must be to blame
for the failure of a marriage.
That is say in most states,
New York being an exception,
divorce is no fault.
I think this is also
accounted for by the fact
that there's nowhere between
civil and religious marriage
for Protestants.
So a Catholic priest can wave
his finger at the faithful
and say don't get divorced
and make it stick legally
through canon law.
Protestant pastors can
also wag their fingers
and say don't get
divorced, but there's
nothing legally in
either church law
or in civil law that gives
them enforcement power.
And there are rumors that when
covenant marriage first passed,
Protestant pastors
threatened not
to marry members of
their congregation
unless they were getting
a covenant marriage.
Actually it didn't work.
The percentage of
covenant marriage
as preventative
marriage is minuscule,
but I still think it's
an interesting fact.
Catholics, on the
other hand, were not
thrilled about the passage
of covenant marriage.
The Catholic hierarchy
did not support this,
nor did the Catholic populace.
Now, I hope you've been
able to see that there
are interesting parallels in
this historical and analytical
account to another major
contemporary issue about which
evangelical Protestants
are also exorcised.
And that's the public schools.
What I think you
see with marriage
is you have Protestants taking
a nominally secular institution,
co-opting it for
sectarian ends, getting
accustomed to their ownership
of this institution,
and then feeling an
understandable, although not
in my view, justifiable
sense of grievance
when that ownership is
challenged and taken away.
And those of you
who may have looked
at the history of public
education in the United States
can see that this
is directly parallel
to the more longstanding
and famous arguments
about public schools.
So Protestants also with the
schools, as with marriage,
took this institution that's
civil and nominally secular,
state funded, state sponsored,
state regulated, co-opted it
for sectarian ends and then
felt this loss of grievance when
their control was challenged.
And they started feeling this
sense of loss and grievance
in the 19th century Bible
wars, where there was dispute
about whether the King James or
some other version of the Bible
should be taught continues
through the 20th century
through disputes about
prayer in the schools
to their present day
disputes about creationism
versus intelligent design.
Now, as with the schools,
so with marriage.
Catholics initially
went into the Bible wars
thinking we're going to win.
We want our Douay
version of the Bible
to be taught right
next to the King James.
We want state funding
for our sectarian schools
if the Protestants
are going to get it.
They lost that war long
ago and then developed
their own institutions.
There are Catholic
parochial schools.
There are Jewish schools.
There were not until fairly
recently Protestant schools
in large numbers.
And Protestant schools developed
in the South in large numbers
partly as a result
of Brown v. Board
and mandatory
desegregation, but also
partly as a result
of the bans on prayer
and Bible reading in the schools
that reared their head almost
coterminously.
So that's the first half
of the presentation.
That's the descriptive
historical part.
Now I want to for the
second half give you
my own views about what the
law should do about this.
And I come at this
not just as a feminist
and a supporter of
same-sex marriage
and a scholar of the
regulation of sexuality,
but also constitutional
law scholar,
as a teacher of the
First Amendment,
and as a comparativist.
Now, anyone who has even just
a colloquial understanding
of the First Amendment's
non-establishment clause
and the separation
of church and state
that many people
believe it to mandate
should be surprised
by the way in which
the civil law of the United
States regulates marriage.
The idea that a minister of
the gospel or other member
of the clergy can simultaneously
and seamlessly perform
both a religious
and a civil marriage
should be pretty antithetical
to our views of separation
of church and state.
And it's important to note that
this is not the way a whole lot
of other countries-- including
some like, for example,
Germany, which I study, which
constitutionally enshrined not
the separation of church and
state but cooperation between
church and state--
go about regulating marriage.
So in Germany, for example, and
there are many other examples,
only civil marriage
has the force of law
and it may be performed
only by a civil registrar.
German couples can have
an entirely separate
religious ceremony
if they want to,
but that ceremony has no
legal effect under German law.
And it seems to me that one of
the things we might consider
doing is following
the German example,
either by disaggregating
civil and religious marriage
while calling both
of them marriage,
or by adopting innovative
terms, like civil union,
for anything the state does
and leaving the term marriage
to religious communities.
This would incidentally
solve some problems
other than the one I'm
centrally addressing.
For example, I don't
know whether you know,
but it's in most states
some sort of a crime.
Not a capital offense as it
was under Hardwick's Act.
It was a death penalty
offense and ministers
were executed for
performing marriages
without a civil license.
It's a crime, again, more
like a misdemeanor for members
of the clergy authorized to
perform marriages, in most
states, to do so in the
absence of a civil license
and in a way not
designed to have
binding effect under civil law.
This leads me to a
fun quiz question,
which is what does a
marriage license license?
And the answer most people
would instinctively give
is that it licenses the couple.
It doesn't.
It licenses the celebrant
to perform the marriage.
And the notion that someone
needs a state license
to perform a
religious act should
be a bizarre and frightening
from an Establishment Clause
perspective but also from a
religious liberty perspective.
And the current configuration
of the legal regulation
of marriage is making
this far more salient.
Because an under
explored facet of several
of the states that have
allowed legal recognition
for same-sex couples through a
mechanism other than marriage,
like domestic partnership, is
that, among them California
and New Jersey, have
allowed domestic partnership
for a small subset of
heterosexual couples.
That subset includes
opposite sex couples,
one of whose members is a senior
citizen, is over the age of 62.
And as I understand
it, the reason for this
was principally to
preserve pension rights
and to facilitate
inheritance for people
who were widows and widowers
from a prior civil marriage who
wanted a companion in
old age, but didn't want
to lose the pension
benefits they had inherited
from their now-deceased spouse.
Now, you can easily
imagine, and I've
been presented by rabbis,
with the problem of some
of these couples who want to
get married under a chuppah
but do not want this to
have civil legal effect.
For civil legal
purposes they only
want a domestic partnership.
As the law now
stands, a minister
or a rabbi who accommodates
them in this request
could be at risk of
breaking the law.
Now, one possibility is getting
the state out of the business
of recognizing
marriages entirely,
and some people
do advocate this.
I have set out at
length elsewhere reasons
why I don't think this
is a good idea, reasons
that also demonstrate why I'm
at the University of Chicago.
Because the reason I
think is most salient
is that quintessential
UFC reason, efficiency.
What a marriage licensed through
the state does, it seems to me,
is precisely what a corporate
charter through the state does.
It signals not so much to
the members of the couple
themselves who are relatively
free under current law
to contract and to live freely
their lives as they see fit,
but to third parties with
whom they are dealing.
So that a marriage license
serves as a mutual pointing
over as a default matter of
the members of the couple
to each other saying I/you, and
you/me as the default person
for, for example, who
makes my medical decisions.
Only the default
person, but it's
useful to have a default person.
And this is an efficiency,
an efficiency that
also, interestingly,
it would allow
those who wanted to
to stop sliding down
the slippery slope to polygamy
because it only efficiently
works for two people.
With more than two
people, you are already
in the realm of contracting
and individual decision making.
Again, imagine a situation
where one of the spouses
is lying in the hospital and
one of the two polygamous
co-spouses says pull the
plug and the other one
says all heroic measures.
Not so simple, right?
Whereas two, one pointing
over at the other,
has its efficiency advantages.
And state recognition has
its efficiency advantages,
partly because of the
numerus clausus rule.
That is to say, not too many
different forms and easily
recognizable forms.
In any event, coming
back to the question
of the reaction of
religious communities
to this, some of the evangelical
Protestants I'm discussing
might well be amenable to the
situation of the state getting
entirely out of the business
of regulating and licensing
adult relationships.
They would think
that this would allow
them to develop their notion
of marriage more fully
with respect to their community.
There are some Protestants
in the United States
who think this way.
John Witte of Emory has
written and thought about them
a fair amount.
You also see this
happening with respect
to Muslims in
countries like Canada
who have sought to have
arbitral tribunals recognized
to apply the Muslim law
of marriage and divorce,
and so far are not
getting much receptivity
from the Canadian government.
There are, however,
other Protestants
in the United States--
Tony Perkins, I think, is
a great example of this--
for whom that would
not be a good solution.
Because what they
want to do is not just
influence their
own congregations
to live by their
rules of marriage,
but to affect all
the rest of us.
I called in other work
these latter group
of people perfectionists.
They are not talking
only in the first person,
they're also talking in
the second and third person
about what you and
they ought to do,
not just about what I and
we, the members of our faith
community, ought to do.
But I would urge on this
latter group of people
a couple of things.
First of all, when they talk,
as in the same-sex marriage
context they so
often do, about quote
"preserving traditional
marriage" unquote,
one thing I think
they ought to realize
is how little of traditional
marriage by anyone's definition
there is left to preserve in the
American civil law of marriage.
And here I'm making simply
a descriptive claim.
You may think this
is a terrible thing,
you may think this
is a terrific thing.
But I don't think you can
dispute, if you think about it,
that it's a fact.
For example, marriage used
to be for life and monogamous
as enforced by the civil law.
It isn't anymore.
Anyone can get a
divorce, and few, if any,
are at risk of being charged
criminally with adultery.
Marriage used to be
a status institution
with mandatory rules
imposed by the state.
It's become far more contractual
with couples free to structure
their relationship.
Again, I'll come back to
the analogy between marriage
and business corporations.
If you look at the long history
of the legal recognition
of both marriage and
corporations in Anglo American
law, one of the
things you'll see
is that they both
used to be only
for the favorites of
the state and only
for enumerated worthy
purposes, like, for example,
having children on the
one hand or exploring
the West Indies on the other.
And over those enumerated
worthy purposes
they held a legal monopoly.
Now marriage no longer has a
legal monopoly over either sex
or reproduction.
And it also used to be--
and anyone can get married for
any purpose whatsoever, which
need not even be articulated
so long as it's legal,
just as anyone may incorporate
for any legal purpose
without even meaning to
disclose that purpose.
Consider, for example,
also the analogy
between divorce and bankruptcy.
Both of them used to be seen
as deep moral failings that
were designed to provoke
shame and moral condemnation.
And you can only get them on
certain enumerated grounds.
Not only were there fault
grounds for divorce,
but Douglas Baird
assures me there
are some things called
acts of bankruptcy, which
if you didn't engage in you
couldn't go bankrupt no matter
how insolvent you were.
Now both divorce
and bankruptcy are
seen as something that is not,
at least as a matter of law,
infused with deep moral
fault. Their purpose is--
and this word is salient
in both legal contexts--
to provide a fresh start, to
put assets to productive use
as soon as possible,
whether those
be reproductive
assets in the marriage
context or financial
assets in both contexts.
And then for me the most
important difference
between traditional marriage
and the marriage we have today
is that which pertains to
sex role differentiation.
And one of the other
projects that I've engaged in
is looking at the
history of marriage
to see what, if anything,
is constant in the history
of marriage.
Now, if you go back in long
history and around the world,
what is there about marriage
that you always see?
And I have to say that
one of the aspects
of traditional marriage
that is both the most
traditional and
the most dominant
is sex role differentiation.
Used to be not only sex role
differentiation but sex role
subordination of women, right?
Blackstone, the husband
and wife are one
and the one is the
husband, right?
But this sex role
differentiation
is completely
ruled out of bounds
as a matter of constitutional
law in the United States.
All of the role differentiation
within marriage,
to the extent that role
differentiation tracked sex,
is gone from the law of marriage
and cannot be brought back--
unlike, for example,
prohibitions on divorce or sex
outside of marriage--
without major constitutional
change in the United States.
And it is perfectly
clear that one
of the things many of these
evangelical Protestants
would like to bring back is this
aspect of traditional marriage.
But it's not there
to be brought back,
and they can't bring it back.
And let me come up
with another analogy
here, which is that it was
not coincidentally until 1998,
which was after the US civil
marriage law stopped enforcing
sex role differentiation, that
the southern baptists famously
promulgated a directive that
it was a wife's duty graciously
to submit to her husband's
servant leadership.
Now before then they could
depend on the civil law
to enforce the submission
to some extent of wives
to their husbands.
Now they're promulgating
it in a religious fashion.
And if they're going
to do it, that's
the way they ought
to be doing it.
Within the civil law, one of
the spouses can be a breadwinner
and the other a homemaker,
but the law not only does not
but cannot demand that
the breadwinner be male,
that the homemaker be female.
This is also something that
many evangelical Protestants
have seen as a loss.
But unlike the disaggregation
of religious and civil marriage,
they've already
suffered this loss.
And like the disaggregation of
religious and civil marriage,
I think it's a loss that
the Constitution demands
that they suffer.
Let me stop there.
[APPLAUSE]
I'm happy to take questions,
comments, expressions
of outrage or puzzlement.
Yes.
STUDENT: Is there any indication
of whether in legal systems
where Catholics would
have been the majority
[INAUDIBLE] development
of a legal system
that Protestants may have also
built this sort of parallel
[INAUDIBLE]?
MARY ANNE CASE:
Not that I know of.
And I would welcome
information about this.
I've actually been
trying to do find out
what kinds of legal or
quasi legal structures
for the dissolution of
marriage there might
be in Protestant communities.
Anybody else?
Yes.
STUDENT: You mentioned
really quickly
at the beginning the
regulation of reproduction.
Talk about why or
why not you think
that that has any
implication on marriage
and homosexual marriage,
or if it does or does not?
MARY ANNE CASE:
Let me first of all
say I'm going to keep using
the term same-sex marriage.
Because homosexual
marriage has been
a possibility in the United
States forever, right?
In any state in the country at
any time in American history,
a gay man and a
lesbian could marry.
It's two men who cannot marry
and two women who cannot marry
under civil law in
the United States.
And let me first
talk about it from
the constitutional perspective.
My view is that if we take
ordinary connect-the-dots
black letter doctrinalism
on sex discrimination,
fixed notions concerning the
roles and abilities of males
and females are anathema
when embodied in law.
Saying that you need one
of each to raise a child
is such a fixed notion.
I have repeated
this joke so often
that it's no longer
funny, but it is true
that one of my
first reactions when
I read the opinion of my
old friend Robert Smith
in the New York same-sex
marriage opinion he said, well,
one reason that the state
might limit marriage to a man
and woman is that
children are benefited
by seeing on a daily basis
living examples of what
a man and a woman are like.
And I have said that this has
to be an argument for more
nudity in the home
because there is nothing
else under American
constitutional law
than a man and a woman can be
said categorically to be like.
If you look at the earliest
of the same-sex marriage cases
that was on the verge of ruling
in favor of same-sex marriage,
the Hawaii case
from the mid-90s.
The anti same-sex marriage
side brought in experts
to talk about how children
were better off raised
by their natural parents
in a monogamous marriage.
And every one of
those experts said
gay people can do a fine
job raising parents,
it's not categorical.
And what the United States
law of sex discrimination
requires-- and this is something
I've written on separately
at great length--
is a categorical difference
between males and females
if there is going to be a
legal difference between male
and females.
And there's no
categorical difference
relevant to marriage
between males and females.
The second part of
this, of course,
is that marriage and child
bearing and child rearing
have been disaggregated
in American law.
There are virtually no
differences between the rights
and obligations of parents
vis-a-vis their children
depending on whether or
not the parents are now
or were ever married
to one another.
The one difference
that I know of
is that it is the
presumption of paternity
for the husband of a married
woman who bears a child.
That child is presumed
to be his child.
But other than
that, the vast gap
between treating
illegitimate children
as, in the Latin phrase, filius
nullius, no one's children.
And no one's means
not only their fathers
but, if you took the
law seriously enough,
not even their mothers.
And children of
married couples having
all kinds of rights
and obligations
vis-a-vis their
parents, that's gone.
And so leaving this in
place seems anomalous.
STUDENT: So my question is--
so you're talking
about this from
a constitutional perspective?
MARY ANNE CASE: Yes.
STUDENT: So the idea, if
I'm understanding correctly
is that by leaving this in place
is arbitrary and discriminatory
and blatantly so given
the fact that there's
other constitutional
notions of [INAUDIBLE]?
MARY ANNE CASE: I
would start there.
I would also have
policy arguments,
but I am principally a
constitutional lawyer.
And if I can start with and win
with constitutional arguments,
that's where I will go.
Yeah.
STUDENT: As a Baptist, I
think you are underestimating
the traditional role of the
Protestant churches in terms
of rules.
One of the things
this is clearly
done within many
Protestant churches
is the question of someone
else has made a determination
that this person is baptized.
But we look at this
person and say, I'm sorry,
you were baptized as an infant.
You were baptized
at eight years old.
We only accept adult baptism.
Questions of membership.
My church has gone
through the question
of, do we have you submit
to a list of questions
about your beliefs.
That was one of our
methods in the past.
Now it's by altar call.
But there's very
strong tradition.
Can you drive by
letter of transfer?
Do you have to take
a different method?
And so when it comes to
the question of marriage,
I think actually as same-sex
marriage and the discussion
of same-sex marriage, I think
comes more common in America.
What we're going to find
is a re-emphasis fro
the Protestant churches,
maybe one it never had before,
on the role of the church as
the institution of marriage.
And I actually do think that the
fact that last month my pastor
married two people who
were both of the same sex
and members of the church.
And that was an act of,
[INAUDIBLE] by the church,
we disagreed with the state.
And whether or not
an individual church
comes down on the side of we
disagree with the state's rules
so we're going to marry
couples of the same sex,
or we disagree with
the state's rules
so we're not going to do it.
I think that that is
some sort of diversion.
Difference has
developed, it's actually
going to re-emphasize
religion in America.
MARY ANNE CASE: I don't
disagree with you.
Indeed, what you are describing
is what I would hope for.
I would urge those Protestant
churches and individuals
with those churches who
have focused their attention
on the civil law of
marriage to instead focus
their attention on the
religious law of marriage
and mechanisms akin
to the mechanisms
you're describing for
recognizing membership
for recognizing marriage
within that tradition.
Because the state did
not help out the baptists
in determining who is a
member of their church and did
help out the baptists
in determining
who was married, the
baptists have developed,
as you've described, a
mechanism for the former
and not yet for the latter.
You've also given
me the occasion
to make one other thing clear.
All forms of Protestantism
in the United States
have been dependent on
the state for marriage.
What I've said about
evangelical Protestants
is no less true of
mainstream Protestants
of liberal
Protestants, of people
from the Episcopal or
congregational churches,
for example.
But the difference is that it's
the evangelical Protestants
for whom there is now a gap
opening up between marriage
as the state of Massachusetts,
for example, defines it
and marriage as their
faith tradition defines it.
Whereas a lot of
the churches that
are descendants of
the Puritan churches
were ahead of the
state in recognizing
the ability of members
of the same sex to marry.
There are still, I believe, more
faith communities in the United
States than there are states in
the union that would recognize
same-sex marriage.
Yes.
STUDENT: I'm having [INAUDIBLE]
in understanding [INAUDIBLE]
for categorical
differentiation between a man
and a woman is seen not
constitutional [INAUDIBLE]
constitutional position.
MARY ANNE CASE:
Stereotyping on the basis
of that categorical distinction.
That is to say, something
that is true of all men,
or no men, or all
women, or no women
can be the basis for a
constitutionally acceptable sex
distinction in law.
But something that is true
of the vast majority of women
but not all women isn't.
STUDENT: [INAUDIBLE]
just wondering
what your take is on
certain states that
have amended their state
constitutions to define
marriage specifically.
MARY ANNE CASE: I would think
that correctly interpreted
federal constitutional
law would declare
that to be unconstitutional.
This is why I began
with Justice Scalia.
I think Justice Scalia
and I are in many respects
on the same page
when it comes to this
as a matter of descriptive
constitutional law.
Again, he thinks it's
a terrible thing,
I think it's a great thing.
We both think that that's
how the dots connect.
Now, for understandable
reasons, the federal courts
in the United States
have not wanted
to take this on and
connect the dots.
And it happens that the
lower federal courts
have a great excuse
not to, which
is that the earliest same-sex
marriage case actually made
its way up to the Supreme Court
in the early 1970s before all
of the modern substantive
due process decisions.
Beyond Griswald, for
example, Eisenstat,
and before any constitutional
decision by the Supreme Court
had held any discrimination
on the basis of sex
to have constitutional problems.
That case, Baker versus
Nelson, involving,
as it happens, a law
student from the University
of Minnesota, and the partner
with whom I understand he still
is 35 years later, the
Supreme Court dismissed for
want of a substantial
federal question.
And that means that there's some
precedential value on the lower
federal courts so
that they would
have to be reaching if
they were to declare
that same-sex marriage was
constitutionally mandated
by the federal constitution.
And I think that the
Supreme Court is going
to try like mad to duck this.
I have pointed out before
that in, of all cases,
the under God flag salute
case, Justice Stevens
spent a couple of
paragraphs talking
about how the court
as a prudential matter
tended to stay out of
domestic relations issues.
And I think given the timing
of that piece of dicta,
or not quite dicta but went
on longer than it needed to,
I think he was signaling we
really don't want to decide,
among other things,
same-sex marriage.
We're going to leave this
to the states to decide.
Yes.
STUDENT: I just
find those arguments
from reproductive really
interesting because I
don't know how they would--
I'm sure you know more
about them than I do.
How do they deal
with, let's say,
elderly couples getting married,
or sterile couples getting
married, or people who just have
decided not to have children?
MARY ANNE CASE: That's
where Justice Scalia and I
are on the same page.
He makes exactly that
point, and I would too.
And this gets back to the
notion of stereotyping, right?
We do not require of couples
that they be fertile,
that they intend to
reproduce, that they
be able to reproduce in
order for them to marry,
which then means that
it's over-- yeah.
Yeah.
Again, I think they deal with
this as a matter of law badly.
And I keep invoking Justice
Scalia in this context
because what I want
to reinforce is
that there is an ordinary
interpretation of law
beyond ideology that
your ideology may
lead you to repudiate.
And even under this
ordinary interpretation,
you are lead to a conclusion
which, for some people,
like Scalia, is
terribly unpalatable,
but you are led to it.
STUDENT: So people
like that, I guess,
would have to be in
support of some sort
of federal
constitutional amendment.
MARY ANNE CASE: Which is
one of the reasons why
so many people
like that are, yes.
I think we need
to call it quits.
Thank you so much for
coming and for listening.
[APPLAUSE]
