Marriage and Equality Reexamined: Explaining Windsor and How the Courts are Getting It Wrong

Many courts have recently relied on the Supreme Court’s decision in Windsor to invalidate State laws which limit marriage to only heterosexual couples.  Most interestingly, many of these courts have pointed to Justice Scalia’s dissent in Windsor to support their decisions.  However, I believe that Justice Scalia’s dissent overstates the case for gay marriage, and I hope that the Supreme Court will explain its ruling in Windsor more fully in a subsequent case. 

Explaining Windsor

The Court’s reasoning in Windsor revolved around the tension between the federal government’s powers and the States’ powers regarding the regulation of marriage.  The Court acknowledged that the federal government “has a wide choice of mechanisms and means to adopt,” U.S. v. Windsor, 133 S.Ct. 2675, 2683 (2013), in enacting discrete statutes pursuant to an otherwise legitimate federal power and may thereby incidentally affect the rights and privileges associated with marriage, id. at 2689-90.  However, “[b]y history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States.” Id.  The only restrictions on the States’ powers to regulate marriage are those imposed by incidental federal laws and those otherwise imposed by “the constitutional rights of persons.”  Id. at 2690-91.

Indeed, the Court quoted extensively from prior cases to emphasize the general police power of the States over domestic relations: “The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities,’”  id. at 2691 (quoting Williams v. North Carolina, 317 U.S. 287, 298 (1942)); “‘[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce,’” id. (quoting Haddock v. Haddock, 201 U.S. 562, 575 (1906)); “‘[W]hen the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States,’” id. (quoting Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-84 (1930)).  Thus, the Court in Windsor relied upon, and even reinforced, the long-established understanding that the States, not the federal government, have the power to regulate domestic relations.

However, the Court did not rely on the States’ powers over domestic relations to hold that Section 3 of DOMA, a federal law, was unconstitutional.  Instead, the Court turned to equal protection and due process.  As the Court explained, “[t]he liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.”  Id. (relying on Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217-18 (1995)).  Normally, an equal protection analysis centers on whether a law attempts to distinguish between people based on suspect classifications.  Under this analysis, there are three separate tiers of protection: 1) Laws distinguishing between people based on suspect classifications (e.g. race) must be strictly necessary to the achievement of a compelling governmental interest; 2) Laws distinguishing between people based on semi-suspect classifications (e.g., gender) must be substantially related to achieving an important governmental interest; and 3) Laws distinguishing between people based on non-suspect classifications (e.g, age) must merely be rationally related to any legitimate governmental interest.

Notably, the Court’s opinion in Windsor did not follow this traditional analysis.  The Court did not recognize homosexuality, sexual identity, sexual preference, or any other category as a suspect, or even a semi-suspect, classification.  In the absence of any degree of suspect classification, the Court usually applies the highly deferential “rational basis” standard.  Usually, it is extremely difficult to show that a law either pursues an illegitimate governmental interest or that it pursues a legitimate interest in an utterly irrational way.  “In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.”  Romer v. Evans, 517 U.S. 620 (1996).

However, a class of cases has arisen in which the Court applies a standard which has been referred to as “rational basis with bite.”  These are curious cases because they seem to apply a stricter standard of rationality and legitimate interest than “pure” rational basis, yet they do not recognize classifications as suspect.  The chief case along these lines is Romer v. Evans, 517 U.S. 620 (1996), which was in turn relied on by the Court in Windsor.  In Romer, the Court considered the constitutionality of a State law (State constitutional amendment) which the Court significantly described as, “declaring that in general it shall be more difficult for one group of citizens [homosexuals] than for all others to seek aid from the government.”  The Court further stated:

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.

Id.

The Court in Romer did not recognize homosexuality as a suspect classification.  It did hold, however, that this particular exercise of governmental power (i.e., attempting to forbid people from “seeking aid from the government”) was not a legitimate governmental interest, regardless of the basis upon which people are being distinguished.  

However, that was not the extent of the Court’s ruling in Romer.  The Court also held that such an unusual exercise of governmental power calls into doubt the rationality of the law.  Such laws, the Court reasoned, “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”  Id.  Moreover, the Court pointed out that “a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."  Id. (quoting Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973)).  In other words, something about a State’s exercise of power can be sufficiently unusual that it raises a presumption that it is “born of animosity toward the class of persons affected” (an illegitimate governmental interest), regardless of whether the classification is suspect or not.  As the Court stated in Windsor, “[i]n determining whether a law is motivated by an improper animus or purpose, ‘[d]iscriminations of an unusual character’ especially require careful consideration.”  Windsor, 133 S.Ct. at 2693 (quoting Romer, at 633).  

In Romer, the unusual exercise of governmental power was extreme because it sought an independently illegitimate interest, i.e., forbidding people from seeking aid from the government.  In Windsor, the unusual exercise of governmental power was not so extreme (at least so far as individual rights are concerned).  The Court in Windsor neither recognized homosexuality as a suspect classification, nor did the Court indicate that restricting marriage to heterosexual couples was an unusual exercise of governmental power.  Rather, the Court highlighted “DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage.”  Id.  As Justice Roberts explained in his dissent in Windsor, “[t]he dominant theme of the majority opinion is that the federal government’s intrusion into an area ‘central to state domestic relations law applicable to its residents and citizens’ is sufficiently ‘unusual’ to set off alarm bells.”  Id. at 2697 (quoting Ante, at 2690, 2692).  Once this unusual exercise of governmental power was established, a presumption of irrationality applied to its distinctions between classes because of the “inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”  Romer.  After looking to the various effects and expressed purposes of DOMA, the Court concluded that the presumption was not overcome.  Windsor, at 2693-95.

 

How the Courts are Getting It Wrong

Thus far, distinctions between people based on sexual identity are not suspect.  Therefore, my thoughts as expressed in my previous post, Marriage and Equality, are unaffected.  The only new issue is whether State laws restricting marriage to only heterosexual couples are sufficiently “unusual” to raise a presumption of improper animus, and, if so, whether that presumption can be overcome. 

The mere fact that the States have exercised their traditional power in defining and regulating marriage cannot be described as “unusual.”  Indeed, Windsor does not indicate that such State laws are somehow “unusual.”  Rather, Windsor reinforces how usual and unremarkable such exercises of State power are. 

If these State laws are to be described as “unusual” exercises of power, demanding a presumption of irrationality, then the “unusualness” must be based on something else.  This is a major problem with the “rational basis with bite” standard – on what grounds is a law sufficiently “unusual?”  The danger is that “usual” and “unusual” seems to be in the eye of the beholder, and, therefore, it would be an unmanageable legal standard.  However, a good argument can be made that for a law to be sufficiently “unusual” so as to demand a presumption of irrationality, that law must implicate other constitutional grounds for invalidity, even if it is not absolutely clear that it would be invalid on such grounds.  For example, in Windsor, the federal law encroached on State powers and probably could have been invalidated on those grounds alone.  Furthermore, in Romer, the State law (in fact an amendment to the State constitution) prevented a class of people from seeking redress and aid from the State, and arguably could have been invalidated on those grounds alone.  Regardless of what the Court decides is the standard for “unusualness,” the presumption of irrationality, the “inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected,” Romer, cannot arise without first finding “unusual” exercise of State power.

Justice Scalia’s dissent, and therefore all of the subsequent opinions citing his dissent, seems to overstate the power of this “rational basis with bite” standard.  Scalia highlights several passages from the Court’s opinion which he suspects will be used to invalidate State laws defining marriage as solely between one man and one woman.  He states: 

Consider how easy (inevitable) it is to make the following substitutions in a passage from today's opinion ante, at 2694:

“DOMA'sThis state law's principal effect is to identify a subset of state-sanctioned marriagesconstitutionally protected sexual relationships, see Lawrence, and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMAthis state law contrives to deprive some couples married under the laws of their Stateenjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities.”

Or try this passage, from ante, at 2694:

“[DOMA]This state law tells those couples, and all the world, that their otherwise valid marriagesrelationships are unworthy of federalstate recognition. This places same-sex couples in an unstable position of being in a second-tier marriagerelationship. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence,....”

Or this, from ante, at 2694 —which does not even require alteration, except as to the invented number:

“And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

Windsor.

            Notably, Scalia fails to account for what stage of the inquiry the Court was engaged in when it wrote each of these passages.  The Court was considering whether the presumption of irrationality could be overcome, not whether the law was sufficiently “unusual” (such as seeking an independently illegitimate purpose or encroaching on another branch of government’s powers).  The transpositions which Scalia fears will only be relevant in the inquiry of overcoming presumed irrationality, not in the preliminary inquiry of whether the laws in question are “unusual” exercises of power.  Indeed, none of these transpositions make sense in light of States’ powers to define and regulate marriage.  First, constitutionally protected (from criminalization) sexual relationships do not demand the further support and approval afforded by marriage merely on the grounds of their permissibility.  Otherwise, “polyamorous” relationships would be entitled to polygamous marriages.  Such a conclusion would fly in the face of many Supreme Court opinions.  Defining marriage in such a way as to restrict it to a subset of those engaged in permissible sexual activity is utterly unremarkable.  Second, children being affected by their parents’ permissible sexual activity that is not simultaneously supported and approved of by the State happens all the time.  The simple reality is children are affected by their parents’ decisions.  The more unusual exercise of power would be to try to protect children from such parental decisions (unless, of course, those decisions positively harm the child, in which case they can hardly be described as constitutionally protected).  Thus, Scalia overstates the case for challengers to State laws restricting marriage to its traditional definition.

            However, as I have indicated above, if the Court should find that such State laws are “unusual,” (perhaps finding a more lenient standard of "unusualness") that does not necessarily mean they are invalid.  It merely means that a presumption of irrationality is applied.  The burden shifts to the State to show that its law is in fact rationally related to a legitimate governmental interest.  I believe that my previous post, The ConservativeVersion of Marriage, sufficiently addresses this point.

Marriage and Equality

Equality is about preventing and abolishing social stratification.  This is the issue which is raised when advocates of "marriage equality" use phrases like "Current marriage laws create a set of second-class citizens."  However, not all distinctions which "create second-class citizens" stratify society in an inappropriate way.  For example, laws against drunk driving create a set of second-class citizens out of all those who would like to drink and drive.  Tax breaks for certain behaviors, such as for buying a house or for having a child, create a set of second-class citizens out of those who do not qualify for those tax breaks.  These distinctions are not inherently improper unless all laws and all public policies are improper.  I sincerely hope nobody is saying this because it is patently absurd.  What advocates of "marriage equality" seem to be saying is that an individual's sexuality is not an acceptable distinction like drunk driving is.  Because equality is about preventing social stratification, the further point seems to be that this distinction is inappropriate because an individual's sexuality is an immutable characteristic, an essential quality of that individual which, by virtue of marriage laws, has condemned that individual to a particular social status.  Therefore, if it were not for marriage laws, as they have historically been, there would not be social stratification in this regard. 

At first blush, I balk at the notion of marriage as a symbol of status within society.  But that, I think, is misapprehending the point.  Marriage laws which would prevent a member of one race from marrying a member of a different race are inappropriate, but not because of any desire of a "lower" race to climb the ladder of social status by "marrying up."  Such laws are inappropriate principally because they interfere with the inalienable right to marry.  Recall from an earlier post that marriage is an inalienable right derived from the combination of a child's right to be protected and guided as it matures and from the biological parents' rights to be the primary providers for their own children.  Given a further inalienable right of adults to engage in sexual activity in a private location, members of different races can have sexual relations with each other, thereby creating human life.  Thus, they have the right to marry and to receive societal support and recognition in their efforts to raise any child which they may or may not conceive.  To prevent these biological parents (or potential biological parents) from marrying not only violates their inalienable right to marry, but it stratifies society by preventing a select group from exercising their inalienable rights for the sole reason of a quality which the members of that group were born with and which cannot be altered.  Similarly, the argument goes, marriage laws which would prevent people of a particular sexuality from marrying is not so much about marriage as a symbol of social status, as it is about being denied access to an inalienable right based on a characteristic that they are born with and which they cannot alter.

However, I must seriously disagree with some of these premises.  As I argued in another post, homosexuals do not have an inalienable right to the same recognition and support that heterosexual couples do.  Of course, the argument for "marriage equality" can easily be altered to merely say that, while the laws and public policy which they reflect may not necessarily implicate an inalienable right, the laws themselves deny homosexual couples the same recognition and support for no other reason than their sexuality, which is something they are born with and cannot alter, and hence stratifies society in an unacceptable way.

Once again, I have serious objections.  I am not at all convinced that one's sexuality is determined at birth.  I suppose the theory is that sexuality is determined by one's DNA.  I am unaware of that hypothesis having been proven by any scientific research anywhere.  There are certainly some scientific hypotheses along these lines, and there are some studies attempting to prove these hypotheses, but they have not been demonstrated with any amount of certainty to be correct.  In fact, the latest and most scientifically promising hypothesis involving DNA and sexuality only muddies the picture by throwing in epigenetics, arguing that external factors that an individual is exposed to, both in the womb and throughout life, effectively activate an otherwise dormant "gay" gene.  Besides all this talk of genetics, I myself can't see how sexual identity is anything other than a psychological phenomenon.  We are born with sexual potential, clearly, but it is only as we begin to mature that we must make sense of this facet of our physical selves in light of our experiences.  It is how one makes sense of one's own sexual potential that determines one's own sexual identity.  The sexual potential itself does not determine one's sexual identity.  Hence, sexual identity can be an incredibly fluid concept, both between individuals and for the same individual over time.

At any rate, the reason why some people are homosexual and not heterosexual, or vice versa, is not explained by science or shown to be determined at birth.  When one considers this basic fact with the dangers of a court system which "leads" science, I would think that even the most sympathetic yet empirically minded individual would hesitate to accept judicial action that seems to rely on such unproven hypotheses.  Furthermore, the lack of a clear understanding as to why some people develop a particular sexual preference makes comparisons of homosexuality to race or gender completely unwarranted.  How and why people develop a particular skin color or a particular gender is known and found to be an immutable characteristic, and hence an inappropriate foundation for legal distinctions.  I'm sorry if this offends anyone, but it has NOT been shown that homosexuality is such an immutable characteristic.   One need not conclude that homosexuality is a mutable characteristic, unlike race and gender, but I do think that intellectual honesty would result in the conclusion that there is scientific uncertainty as to whether homosexuality is an immutable characteristic or not.  This uncertainty, combined with the principle that the judiciary should not lead the way for science, leads to the conclusion that the Supreme Court should not, at least at the present time, conclude that traditional marriage laws stratify society in an inappropriate way.

Furthermore, if sexual identity is a protected "class" because it is an immutable characteristic, I don't see any reason why the equality argument should end with homosexuals.  Only a narrow and truncated view of life results in the idea that sexual identity is merely bi-modal, that the only options when it comes to sexuality is that you're either heterosexual or homosexual.  (For an interesting article on this point, see http://dailycaller.com/2014/03/19/nobody-is-born-that-way-gay-historians-say/).  Even the term LGBT refutes that view.  So, what then of people whose sexuality involves multiple partners?  It could probably be argued that such a sexual identity has been around far longer than homosexual identity (which has only existed for roughly 100 years as a distinct sexual identity).  Why not extend marriage to relationships with multiple partners in their many potential forms?  Shouldn't we encourage people with multiple partners to be committed to all of their relationships?  After all, as the theory goes, love is love, people are born with their sexual identities, and laws which distinguish based on those identities offend the principle of equality.  I know many advocates of "marriage equality" don't necessarily want to conclude that anti-polygamy laws are inappropriate, but why should one particular class of sexual identities (i.e. homosexuals) be more protected than others?  (For a somewhat more disturbing implication of the argument of, "I was born this way and can't help it," see http://www.theatlantic.com/health/archive/2013/08/what-can-be-done-about-pedophilia/279024/).

As a final objection, I do not think that it is at all clear that the laws discriminate against homosexuals for no other reason than their sexuality.  As I indicated in my previous post discussing inalienable rights and marriage, marriage laws are based on the child's inalienable right to be raised and protected as it matures, and on the biological parents' inalienable rights to be the primary caretakers of their child.  Hence, marriage laws only "discriminate" against homosexuals to the extent that it reflects the fact that homosexuals cannot be biological parents of the same child.  If society cannot pass laws buttressing and providing various forms of support and recognition to those who decide to exercise their inalienable rights in a responsible manner, what can society do?

However, as I believe I have stated elsewhere, this does not mean that the laws surrounding marriage cannot be altered through the regular legislative process, thereby expressing a different public policy for a different time.  The wisdom of such a policy change may be debated, and probably should be.  But that simply is not the direction the national discussion is going, and so I will leave that to another day, should the issue arise.

The Conservative Version of Marriage

The issue of whether to extend marriage to homosexual relationships seems to be a defining characteristic of our time, and I suppose I should put forth my two cents, seeing as the Supreme Court will take up a few cases addressing the issue.  I think that an argument for the conservative position regarding marriage should be expressed as clearly as possible, if for no other reason than because of the ease with which the opposing side can set up a divisive straw-man/ad hominem attack . . . after all, do "we" need any more evidence of the bigotry and hatefulness of "those" crazy  right-wingers?  They're just a bunch of old, angry white men anyway.  Right?

In this post I will limit my inquiry into whether there is any inalienable right connected to marriage, and if there is, whether that right extends to homosexual relationships.  This is a distinct inquiry from one centering on equality.  This distinction I suppose will be disappointing to some, since the two inquiries are often jumbled together in everyday discussions regarding this issue.  However, equality and inalienable rights are distinct matters and clear thinking on any particular issue should treat them accordingly.  I will further limit my inquiry to the philosophical underpinnings of the arguments of both sides rather than delving into legal arguments.  This is because, in my opinion, there are perfectly good legal arguments to be made on either side.  For example, the Supreme Court has indicated on several occasions that the decision of who to marry is a personal choice that should not be restricted by the state.  However, such a "right to marriage" is muddied by case law indicating that it can be regulated, as can be seen in this excerpt from a still valid Supreme Court case: "Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.  Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal."  Honestly, as far as purely legalistic arguments go, there are perfectly good arguments to be made on both sides and my two cents in that arena are, at present, worthless.  So, what I am concerned with here, are the more philosophical underpinnings for the arguments because it is there that my thoughts may have an impact on the minds of those who read this post.

The Two Versions of Marriage
The two sides approach this debate with very different understandings of what function marriage serves in society. The LGBT community, as far as I can tell, is advocating an approach in which marriage functions as a recognition of and support for loving, committed, sexual relationships. The conservatives are advocating for an approach in which marriage functions, similarly, as a source of support and recognition, but for those who are engaged in, or who anticipate being engaged in, a sexual relationship and are committed to each other in such a manner that they will together assume the primary responsibility of raising any children conceived as a result of their sexual activities.  The divide is not very difficult to appreciate. For the conservative, homosexual activity alone, no matter how loving and committed the participants are to each other, cannot result in bearing children, and so marriage is inapplicable.  For the LGBT community, love, commitment, and sexual activity are clearly not contingent on a particular sexual preference, namely a heterosexual relationship.

Inalienable Rights Associated with Relationships
Both of these versions of marriage address relationships, suggesting that some relationships are such that the participants are entitled to societal support and recognition.  I have to believe that even the LGBT community will accept that, if there is such an entitlement for some relationships, not all relationships are similarly entitled (at least on their own terms - remember an equality analysis is distinct from an inalienable rights analysis).  For example, I have a friend.  We enjoy each others' company.  We watch sports, we play sports, we discuss politics, we eat food.  There is no reason why our friendship warrants the same kind of recognition and support from society as my relationship with my wife.  Or as another example, my wife and I own a dog.  We love our dog.  I like to think she loves us.  But clearly our relationship with our dog is not entitled to the same recognition and support from society as my relationship with my wife.  Finally, many people have participated in one-night stands, engaging in sexual activity that, while I'm sure its exciting and fun, does not really seem to deserve recognition and support from society.  So, on their own terms, not all relationships are entitled to the same support and recognition.

Some might think that there is no inalienable right to societal support and recognition for any relationship, and I can understand that initial reaction.  It seems odd to think that the relationships that I form might create some sort of entitlement from society.  But it does seem to me that there are some inalienable rights (if not a right to support and recognition) associated with relationships.  In fact, my concept of inalienable rights hinges on relationships.  To me, an inalienable right is an individual's expectation regarding the behavior of others and of society which arises necessarily from the relationship between that individual and society.  Because an individual does not live in isolation, the role of the individual in this formulation can easily be expanded to include the particular relationships that individual is in.  Thus, there may be an inalienable right regarding one's relationship with another if that right arises necessarily from the connection between that relationship and the rest of society.  For example, the Supreme Court has expressed an inalienable right regarding sexual relationships involving consenting adults acting in the privacy of one's home.  The Court has recognized that individual's have a reasonable expectation to be free from government regulation, interference or intrusion regarding such a sexual relationship.  Clearly there is an interplay with the idea of privacy, and without getting too far off topic, I'm willing to go with the Court on this one.  So, for purposes of this post, we can stipulate that sexual relationships between consenting adults, in which their sexual activity is conducted in private, are such that the connection between those relationships and the rest of society necessarily creates an expectation to be free from governmental regulation, interference, or intrusion. 

Inalienable Rights of Children
There is a fact, which I should hope is well known, that some kinds of sexual activity present the "risk" of creating children.  This has a very serious significance for society.  In fact, society cannot continue to exist without the creation of new members to at least replace those who die.  The necessary expectation would seem to be that society may act to preserve itself, and hence to take some sort of action regarding the creation, or potential creation, of new members, i.e. children.  Society exists, in part, to provide a greater chance of successful procreation and insofar as the right to sexual activity is recognized, that basic relationship between society and individuals seems to be satisfied.  However, once a child is created, it cannot provide for its own needs and is not prepared to confront the challenges of life or to be a contributing member of society.  The child relies on society to provide, in particular, the protection required to allow it to mature physically, mentally, and emotionally.  Theoretically, there are many ways in which society could provide this protection and guide a child through the maturation process.  However, biology has presented the most straightforward manner - the biological mother and father are generally imbued with an enormous amount of love and concern for the new child that they are willing to take on many hardships to provide the protection and guidance themselves.  In fact, this parent-child relationship is another relationship regarding which the Supreme Court has recognized an inalienable right, which I am equally willing to follow.  The right is essentially that the biological parents of a child have the necessary expectation to be free from societal regulation, infringement, or intrusion regarding their relationship with that child, insofar as they are not damaging the maturation (physical, mental, or emotional) of the child.  It should be especially noted that this inalienable right of the parents is actually dependent on the inalienable right of the child to be protected and guided throughout its maturation process until it is able, or should reasonably be able, to confront the challenges of life and to be a contributing member of society.  Hence, there is an inalienable right which is in fact an entitlement upon society - the right of the child to be protected and guided until it has matured. 

The Inalienable Right of Marriage
It is upon this entitlement, and its connection to the biological parents of a child, that the conservative version of marriage is predicated.  Because society has essentially outsourced its responsibility to care for and guide its new members to the biological parent-child relationship, it is reasonable that those who have assumed the responsibility are "compensated."  Furthermore, it is reasonable that society "encourage" the parents in their commitment, both to cooperate with each other and to actually care for the child, which can understandably wax and wane over time.  Therefore, it can be argued that the biological parents of a child also have an inalienable right to some form of societal support and recognition.  Historically, this support and recognition has taken the form of marriage, which has enjoyed varying levels of actual support over the centuries, but has for millennia been a form of recognition of those who either have created a child through their sexual activities, or who reasonably anticipate creating a child through their sexual activities.  These relationships which warrant societal support involve partners who are sexually active and are committed to their relationship to each other.  This commitment has generally been recognized to be most successful when there is a level of love between the participants.  Hence, the elements of the LGBT version of marriage are present: sexually active, and lovingly committed couples.  However, the reason of the societal support is not because of these elements, but because these elements have the potential of creating new life, of bringing new members into the society, and that these elements are the best known to prepare these new members for success in society.  In other words, while the elements of the LGBT version of marriage are necessary for the success of this relationship deserving of societal support, they are not sufficient to establish that relationship.

Homosexual Potential for Creating Life
However, it can be argued that homosexual relationships have the potential of creating new human life as well.  For example, a male couple could use the semen from one of them to fertilize an egg which has been harvested from a woman, known or unknown, and have that egg implanted into another woman.  Nine months pass, and ... voila! A child is born.  Here, the "biological" parents are significantly less clear than in a conventional birth. The "mother" could be either the surrogate who carried the child to term or the woman who donated her egg, or both. The father's identity, however, is clear - the man who donated the semen. This however leaves out the father's male partner.  Assuming that they are in a lovingly committed relationship, it is highly likely that the father's partner played a significant role in the decision to create a new human life.  Would it not be in the best interest of the child to be raised by the gay couple which are responsible for the decision to bring the child into the world, and in the best interest of the gay couple who feel connected to the child in a deep emotional way?

However, this scenario must address the issue of whether there is an inalienable right to pursue such modern forms of conception.  An inalienable right cannot be predicated on an alienable right.  In other words, if there is no inalienable right to to modern forms of conception (or phrased differently, if the state can legitimately outlaw such modern forms of conception), then an inalienable right to marriage cannot be predicated upon those modern forms of conception. 

Perhaps one might try to argue that such an "anchor" right is a right to contract.  However, such an argument is pretty clearly sailing against some strong headwinds.  Do parents have a right to enter into a contract selling their child's labor?  Does an individual have the right to enter into a contract to kill some 3rd party, or even to kill the other party to the transaction?  Can't the state regulate employment contracts, especially regarding minimum wage or safe working conditions?  The general consensus would be that there is no inalienable right to contract in any manner or for any purpose, although philosophically I suppose that is debatable.  Just going with that consensus though, the power of the state to regulate contractual relationships would at least initially include the right to contract with other parties to pursue modern forms of conception.  So it seems that a general right to contract can't be the anchor for such a right.

It might be argued that there is an inalienable right to be a parent, and that the right to contract for modern forms of conception is therefore predicated on that right, and the right to marry therefore extends to homosexual relationships.  While being a parent is a satisfying, though obviously difficult, experience and while I would personally consider it a necessary part of a full and satisfying life, I find it difficult to find that one has an inalienable right to become a parent.  We previously found that those who do become parents have an inalienable right associated with their child, but that doesn't mean that any given individual has the right to become a parent.  For example, no normal human being can become a parent individually.  One may become a parent individually through adoption, but that I should think is pretty clearly a matter of societal discretion - the biological parents have abdicated their rights, therefore it is society's responsibility to care for the child, and society may find that a particular individual is better capable to care for that child.  May find.  It is society's responsibility to make sure that the best interests of the child are the deciding factor, regardless of any interest that individual may have.  So any  supposed right to be a parent must come down to a right to engage in any relationship which can create human life, including those contractual relationships necessary for modern forms of conception. One can point to one of the purposes of society already mentioned, i.e. to provide a greater chance of procreation.  The fact that science has developed these modern forms of conception is simply another way in which society fulfills this basic function.  Originally, only the right of consenting adults to privately engage in sexual activity fulfilled this function.  Now, modern forms of conception can supplement that right.

A Further Refinement of the Concept of Marriage
Prior to this point, I have addressed marriage in connection with biological parents and with those who reasonably anticipate that their sexual activity might result in the creation of children.  The significance of being a biological parent is that the biological parent-child relationship gives rise to a necessary expectation that one would be the primary provider of the protection and guidance required by the child.  Because there are generally two surviving biological parents with equal expectations to be the primary provider, it is in society's interest, the parents' interest, and the child's interest, to unite the expectations of the two biological parents into a single "entity."  Hence, marriage is meant to unite those individuals who have equally legitimate expectations to be the primary caretaker of a new child, encouraging cooperation etc.  Where those expectations are not equal, then the primary caretaker is clear, and a unity of expectations is not necessary and marriage does not apply (although that primary caretaker may be entitled to some form of support and recognition from society which is distinct from marriage).  The significance of reasonably anticipating that conception may result from the sexual activity of the marriage partners is that such a reasonable anticipation creates a presumption that a child actually conceived by a married woman would be the result of the sexual activity of the married couple, thereby establishing a presumption that both the husband and the wife are the biological parents.  Of course, this presumption can be rebutted, but it is a convenient preliminary method to quickly establish who has what expectations.

Back to Modern Forms of Conception
Accepting an inalienable right to modern forms of conception for the sake of argument, our inquiry then turns to whether this "right" translates into a similar right to marriage for homosexual couples.  I do not think it does.  In other words, I think such a situation is sufficiently distinct from the conditions which give rise to the right to marriage so as to make that right inapplicable.  As one will recall, the right to marriage arose from 1) the right of the child to be protected and guided through its maturation process, and 2) from the right of the biological parents to be the primary source of protection and guidance for the child insofar as they do not actually impede its maturation process.  Clearly, the right of a child conceived through modern forms of conception does not change.  It is still entitled to protection and guidance.  However, the right to be the primary source of that protection and guidance does not seem to be the same when modern forms of conception are employed by a homosexual couple.  As indicated above, the relationships of the parties involved are complex.  It may be that the birth mother has a legitimate interest in the well-being of the child as well.  She, after all, would be the one most potently affected by the biological facts of life.  In our scenario, only one of the male partners was responsible for creating the child, i.e. is the biological parent.  The other may have been a significant factor in the decision to create the child, but was not a physical causal force.  Because only the biological parents have a necessary expectation of being the primary provider of the child's protection and guidance, there is no need for a uniting of interests between the male partners.

It seems to me that the strongest argument in favor of an inalienable right to societal support and recognition for homosexual couples would be that the lovingly committed nature of their relationship warrants an extension of the generalization that biological parents are the best positioned to provide the necessary child care.  However, that assumes that the biological parents' rights are because they are actually better positioned to care for a child.  That is not the case.  The biological parents' rights arise because the biological facts of life are so powerful that to ignore them would violate the parents' reasonable, and necessary, expectation that they would be the primary providers.  The same kind of necessary expectation as that of a biological mother and father does not arise in the case of a homosexual couple.  I would be willing to grant that the loving, committed, and sexually active nature of the relationship should be considered if there is ever a problem regarding custody.  They are two adults in a presumably mature and reasonably healthy relationship.  It certainly is relevant in showing a capacity to provide for the needs of a child during its maturation process.  However, the issue of who is best positioned to provide for the needs of the child is only relevant in the exercise of society's discretion to "outsource" its responsibility of providing the protection and guidance for a child.  One does not have an inalienable right to be the provider of a particular child's needs merely by the fact that one is better positioned to provide those needs than society itself is.

For example, consider a heterosexual married couple.  They have some children together, but one of them also had a child with another individual prior to this marriage.  Now, the biological parent of that child dies.  Who has what necessary expectations regarding that child?  First, if there is a surviving biological parent who is capable of providing for the child's needs, that biological parent has the necessary expectation of being the primary provider.  What of the step-parent?  That step-parent may become the provider of the child's needs if it is shown that the biological parent is incapable of providing those needs.  However, if that is shown, the step-parent-step-child relationship does not in itself create a necessary expectation that the step-parent will become the primary provider for the step-child.  The fallback provider is society.  It is then society which exercises its discretion to determine whether providing that child care should be outsourced to the step-parent.  In many cases, I would expect society to decide that the step-parent should be the provider, but that does not diminish the fact that society is exercising a discretionary function in so deciding.  Similarly, a male partner of a biological father may become the provider for a child, but he does not have that expectation so long as 1) the biological father or the biological mother is still capable and willing to provide for the child's needs, and 2) society has not actually exercised its discretion to outsource its responsibility to the male partner.

Support and Recognition for All Child-Rearing
One might argue that all child rearing situations warrant societal support and recognition, including when the parents are homosexual - that no matter what the situation, those who are involved in raising a child warrant societal support and recognition.  Therefore, marriage should be extended to the LGBT community.  This, however, seems to be more of an argument revolving around equality than around inalienable rights.  To the extent that it is about inalienable rights, any right to societal support in child rearing alone does not indicate that all child rearing situations warrant the same societal support and recognition.  The concept of marriage simply does not apply to a single mother, no matter how deserving she might be of societal support. Similarly, the situation with homosexual parents is sufficiently unique (only one of the partners actually has a necessary expectation regarding his/her relationship to the child such that he/she is the primary provider of the child's needs) that regardless of how deserving they are in receiving societal support and recognition for raising a child, the right to marriage does not apply as of necessity.

Heterosexual Couples Without a Reasonable Anticipation that Sex will Create Life
Which brings me to another point often raised against the conservative version of marriage.  If marriage is about those who can have children as a result of their sexual activities, why should an infertile heterosexual couple, or an elderly couple, be allowed to be married if they can't have children?  The implication being that they are allowed to be married because they are in a loving, committed and sexually active relationship, just like homosexual couples.  Therefore, the argument goes, homosexual couples should be allowed to be married too.  However, it seems to me that a young infertile heterosexual couple generally marries with a good faith belief that they are both fertile.  By way of making this distinction as clearly as possible, the question is, "Why should an infertile heterosexual couple be allowed to be married, unless its because they are in a loving, committed, and sexually active relationship?"  The answer is, "Who reasonably anticipates being infertile?  Basically nobody.  Who reasonably anticipates that children will not result from a homosexual relationship?  Basically everybody."  Furthermore, while one partner in a heterosexual couple may know that they have fertility issues, it is practically impossible to know that fertility treatments will not empower the heterosexual couple to create a child.

The situation of the elderly couple is more difficult.  Simply put, there is no reason inherent to their relationship alone that they would give rise to an inalienable right to get married under the conservative version of marriage.  For example, what 80 year old woman reasonably anticipates that she can't get pregnant?  Basically, every 80 year old woman.  Therefore, it may be that the extension to elderly couples of the right to get married is merely a policy decision.  That is, unless it can be shown that the right to get married extends to the elderly as the result of some other inalienable right.  In other words, if  there is some other reason why individuals have a necessary expectation that society will not inquire into their biological fertility, then it is actually improper to exclude infertile or even elderly people from the right to marry.

The Right to Security in One's Person
One expectation which follows necessarily from the nature of the relationship between individuals and society is the expectation to be secure in one's person (which pretty clearly includes one's body if not more).  In American parlance, this is often referred to as the right to life, though it actually involves much more than that, overlapping in many ways with what is commonly called the right to privacy.  Society exists for the purpose of improving the lives of individuals through cooperation and peaceful coexistence.  This purpose does not arise out of some pre-societal natural state of humanity - no such condition ever existed.  However, even in evolutionary terms, society developed among various species as a way of providing greater protection for individual members so as to increase the overall chances of successful procreation.  As humanity emerged, more interests beyond mere procreation (such as a desire for meaningfulness, purpose, self-actualization, what have you) were introduced, and the role of human society has adapted to acknowledge these needs.  The basic premise underlying society, however, remains the same - securing individual members in their persons.  Should an individual, a group of individuals, or even the rest of society breach this inalienable right, the premise of society has been undermined.  Their actions are thus anti-social, constituting a rejection of the symbiotic relationship between individuals and society.  In other words, by virtue of the mere existence of society, an individual member of that society has the necessary expectation not to have their bodily integrity violated.  So, an individual has an expectation, which arises necessarily from their relationship with society, that other individuals, whether acting in their capacity as individuals or as agents of society, will not conduct medical investigations into that individual's body without that individual's consent.  Hence, society is prohibited from determining, without the consent of an individual, whether that individual is infertile.  Therefore, regarding the scope of individuals to which marriage must extend by right, there can only be a presumption that individuals are fertile.  The case of the elderly woman desiring to get married is difficult because it doesn't seem like there should be a presumption that she can have children.  However, if one considers the difficulty of determining at what age such a presumption no longer applies, it becomes clear that age is not determinative.  For example, young men and young women are physically maturing earlier and earlier, while there are more and more instances of women conceiving when it was thought that they could no longer conceive.  There simply doesn't seem to be an age at which one can affirmatively declare that no individual will ever be fertile. 

One might object that we have inquired as to the procreative success of homosexual couples, so why not others?  It seems clear to me that the nature of the inquiry is critical.  Homosexual individuals are just as free from imposed medical examinations to determine whether they are fertile or not.  The security of their persons, of their bodily integrity, is just as important.  However, there is no need for any further medical examination to conclude that a homosexual relationship between partners who are presumed fertile still cannot result in both partners being the biological parents of a child.  On the other hand, there is no need for any further medical examination to conclude that a heterosexual relationship between partners who are presumed fertile can result in both partners being the biological parents of a child. 

The LGBT Version of Marriage Briefly Considered
Having considered the conservative version of marriage and found it entirely plausible, what then of the LGBT version of marriage?  As indicated much earlier in this post, I think it is pretty evident that there is no inalienable right to societal recognition of and support for all relationships.  So, is there such a right in the particular circumstances presented by homosexual couples, and if so, is that right to societal recognition and support essentially the same as that historically provided by marriage?

The LGBT version of marriage, as I understand it, is that loving, committed, and sexually active relationships are entitled to societal support and recognition.  Each of these elements alone does not seem to create any sort of necessary expectation in connection with its relationship with society.  A loving relationship, alone, does not indicate either commitment, or even active involvement such that there is any sort of expectation from society, beyond perhaps general privacy expectations which might apply.  A committed relationship, alone, does not indicate the motivation for that commitment - the relationship could be coercive.  Similarly, a sexually active relationship, alone, does not seem to warrant any expectation from society, beyond privacy expectations (associated with the aforementioned right to have sex).  Sexual activity in conjunction with either love or commitment, also does not seem to create a reasonable expectation to societal support and recognition.  Sexually active and loving relationships have no inherent indication of duration or commitment that might warrant any such expectation.  I can only think of expectations associated with a general right to privacy or right to have sex.  On the other hand, sexually active and committed relationships also do not necessarily create any rational expectation of support and recognition.  Once again, mightn't such a committed relationship be coercive?  Many battered women are plenty committed to their abusers.  That hardly seems worthy of societal support and recognition.  So, we come to the conjunction of all three elements.  A general policy of encouraging sexual relationships to be committed and loving might be wise, but I just don't see that being a necessary expectation from society.  I don't see anything in the nature of the relationship between society and such lovingly committed, sexually active relationships which necessarily creates an expectation beyond a general expectation of privacy, clearly associated with an expectation of consenting adults to be free to enter into sexually active relationships, and to engage in such sexual activity in the privacy of their own homes. 

Furthermore, if there is some expectation to societal recognition and support for such relationships, is there any reason why that recognition and support must be the same as that provided in "traditional" marriage?  First, I recognize that my analysis here must be limited because I have not identified any potential justification for such societal recognition and support, so I cannot compare the justification with my discussion of the conservative version of marriage.  Furthermore, I recognize that there seems to be a strong equality argument here.  However, like I said at the beginning, arguments about equality and arguments about inalienable rights are distinct and should be treated accordingly.  So, as far as inalienable rights go, I don't see any reason why the two kinds of relationships addressed by the conservative version of marriage and the LGBT version of marriage would necessarily warrant the same support and recognition.  Marriage itself is only a right to societal recognition and support, the level of which is to be determined by policy considerations relevant to the time and place.  Why should any inalienable right to support and recognition connected to lovingly committed and sexually active relationships be tied by necessity to such policy decisions?  Furthermore, some states have begun to offer domestic partnerships.  If there is an inalienable right to societal recognition and support, why can't these suffice?  Therefore, the LGBT case must offer some reason why the validation of marriage in particular should be extended to their relationships.  From what I can tell, the further argument is that any difference in the rights and responsibilities granted in varying forms of societal validation is unequal and therefore illegitimate.  However, that does not create an inalienable right on its own terms, but is an argument about equality which must be considered separately under an equality analysis.

Conclusion
The LGBT version of marriage does not present a clear reason why all individuals involved in lovingly committed and sexually active relationships have a necessary expectation of societal support and recognition by virtue of the connection of those relationships to society.  Therefore, there does not seem to be an inalienable right to recognition and support for such relationships.  Supposing that there is a reason, there doesn't seem to be any reason under an inalienable rights analysis that would warrant the same policy decisions regarding the level of support and recognition as those made regarding the conservative version of marriage. 

The conservative version of marriage presents a reason why there is an inalienable right to marriage for heterosexual individuals involved in a loving and committed relationship.  Children are entitled to protection and guidance throughout their maturation process.  Those who provide that protection and guidance are entitled to societal recognition and support.  The biological parents of children are entitled to be the primary providers of that protection and guidance.  Where there are two surviving biological parents, they are equally entitled to be the primary providers of their children's protection and guidance, and if the parents so desire, they are entitled to particular support and recognition so as to encourage unity in the rearing of the child.  This particular support and recognition has historically been called marriage.  Two individuals in a homosexual relationship cannot both be the biological parents of a child.  Therefore, if any child is created as a result of the actions by either of the two individuals in a homosexual relationship, only one of them will have the right to be the primary provider of protection and guidance for that child.  Therefore, there is no entitlement to unite the child rearing interest of the primary provider with any interest held by the homosexual partner.  Therefore, the societal support and recognition involved with the relationship identified by the conservative version of marriage do not also apply to homosexual couples.

So, I hope you, my dear reader, have made it this far.  While I certainly don't expect to convince everybody (heck, I'd be pleasantly surprised if I convinced anybody given the emotionally charged nature of this issue), I do hope that those who agree with my view have a better understanding of their own position while those who do not agree with my view can better appreciate it and not merely conclude that their opposition is just a bunch of haters.