July 14, 2010

Getting Past the Circular Fiat

Justin Katz

Accusations of bigotry notwithstanding, I've long maintained that what drew me into the same-sex marriage debate about a decade ago was the intriguing and telling argument driving the innovation. The point is perhaps best summed in a passage from Andrew Sullivan's Virtually Normal, which I quoted in a post some years ago:

Some might argue that marriage is by definition between a man and a woman; and it is difficult to argue with a definition. But if marriage is articulated beyond this circular fiat, then the argument for its exclusivity to one man and one woman disappears.

My proximate concern was that this reasoning justifies any change to marriage, and its method any change to anything. If we put aside, for example, that marriage is by definition a relationship between two people, well, the argument for polygamy is perfectly coherent and logical. Obviously, if we define marriage beyond its definition, then its definition is something else. That there are reasons for the mere definition is a fact that we neatly put aside.

That dynamic has occurred to me as we've had internal debate about the Tenth Amendment reasoning in District Court Judge Joseph Tauro's rulings on the topic of same-sex marriage (here, here, here, and here). From my perspective, Tauro's reasoning proceeds as if from the "what if" of whether the federal government has a right to tie strings to its spending. The argument may be perfectly coherent and logical from that point on, but I haven't yet heard a satisfactory argument about why that's an appropriate starting point.

It's certainly an attractive way to begin an argument for some fundamental change in previously held beliefs — putting, as it does, defenders in the position of decoding all of the internal justifications that cultural evolution has built into the definition and belief. But it's surely inadequate. Back when I was arguing against Sullivan and his allies, in the earlier days of the public debate, nobody considered this route to finding the Defense of Marriage Act unconstitutional. The two paths to that result were thought to be the Full Faith and Credit clause of the Constitution or the Equal Protection provisions of the Fourteenth Amendment.

One can argue that Massachusetts Attorney General Martha Coakley divined an argument that we all had overlooked, but it seems to me at least probable that the reason we overlooked it was that it conflicted with our beliefs about the government's right to set policy around its own programs. Perhaps we were wrong, but a bit more explanation related to that error should be required.

Be that as it may, we're well into the realm of folks who prioritize cranial activity, and that's simply not how most people come to their conclusions. For most, the answer to the question of "what if there's no difference between opposite-sex couples and same-sex couples" is something like: "Then I can stop being called a bigot by emotional people and feel as if I'm on the 'right side of history.'" Well, as understandable as that response may be, it's not a formula for the preservation of principles that have worked for our society or for progress as we seek to move forward.

The same is true of Tauro's rulings, which add a legal, wonkish layer of recircled fiat on top of the cultural one that men and women are interchangeable within sexual relationships.

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With regard to the circular definition of marriage, the problem is not with how you define marriage, it's with why you define it the way you do. Opponents of same-sex marriage say marriage is defined as being between a man and a woman, but what they really mean is marriage has always been defined that way and thus it should stay that way. Proponents of same-sex marriage, on the other hand, say that the fact we've always defined marriage in one way is no reason not to include homosexual relationships within the government-recognized definition of marriage.

That's why the "slippery slope" argument doesn't work. Of course, if same-sex marriage proponents were just arguing "we can define marriage outside its definition, in whatever way we want," well, then yes, anyone could use that same argument to make polygamous marriage or marriages between people and animals legal. But that's not the end of the proponent's argument. What they are really saying is that all the reasons the state should recognize unions between men and women apply in favor of recognizing unions between homosexual couples as well. And there is no sense in using a separate name to label something meant to be equal under the law. Separate but equal, after all, went out of style with Brown v. Board of Ed.

Posted by: Joe at July 14, 2010 11:40 AM

Joe writes:

"anyone could use that same argument to make polygamous marriage or marriages between people and animals legal."

I think there is now small reason to argue that polygamous marriage would be illegal. In fact, polygamy seems the next logical step.

People, more familiar with the Massachusetts decision than I, believe that a marriage between a person and an animal wpuld now require recognition.

Posted by: Warrington Faust at July 14, 2010 11:57 AM

There are really two arguments going on here. The first is about what relationships the state should recognize. Some people might say, "if we recognize homosexual relationships, then we would have to recognize sexual relationships between humans and animals and among multiple humans and all sorts of other things." The problem with this slippery slope argument is that it calls homosexuality the moral equivalent of bestiality and polygamy. Homosexuality is not morally equivalent to those two phenomena, and few people argue that it is. Moreover, if you accept that homosexual relationships are different and more deserving of recognition than polygamous relationships and bestial relationships, then there is no slippery slope because there are articulable reasons for recognizing some sexual relationships and not others. Thus, there is no risk that in recognizing homosexuality, the state would necessarily have to recognize various forms of sexual deviance as well--of course, that is only if you believe homosexuality to be morally superior to those forms of sexual deviance. Again, however, this is only the first argument in the discussion.

The second argument occurs after we agree the state should recognize same-sex relationships at all, and this argument is over what to call it. This point in the discussion is where the "circular fiat" takes place. The problem is the circularity problem Justin points out in the post isn't an issue at this place in the discussion. We're not worried about the state having to recognize polygamous unions because, as we discussed above, they are morally different from homosexual relationships in a serious way. So sure, if you expand "marriage" beyond its traditional definition, you could conceivably cover any number of dysfunctional behaviors in a new definition. But who cares? We're just talking about what to call relationships that the state should recognize. We're not talking, in this second argument, about what relationships the state should recognize in the first place. That is a different argument altogether.

Posted by: Joe at July 14, 2010 1:11 PM


It seems to me that defining the fundamental principle at issue in Mass. vs. HHS as only "whether the federal government has a right to tie strings to its spending" concedes a very progressive interpretation of the Constitution, where the Federal government has the power to do anything that it wants, so long as it doesn't violate rules it either sets and/or interprets for itself.

But if you look at Coakley's initial complaint, the Spending Clause and the Tenth Amendment are two distinct sections. The Tenth Amdendment section (80-86) does not refer to to spending as a special subset of what the Federal Government does, it is concerned with who sets rules for marriage and domestic relations and whether the Federal Government can compel a state to act in a certain way, in areas where there is no enumerated basis where states have given away their power to the Feds. (Note that the issue here is not what's the most efficient way to set a policy, but simply who has the right to do it.)

The issue of specific spending programs is taken up in the next section of the complaint the Spending Clause section (87-98), which makes no mention of the Tenth Amendment. Even without the Tenth Amendment section of this complaint (or to the US Constitution), the Spending Clause argument would still be whole.

This is related to why I brought up the Jack Balkin quote in one of the previous posts. It is possible that a progressive dream-ruling is being teed-up here: 1) Of course that silly, arcane Tenth Amendment doesn't matter. According to the living constitution, the Feds have the power to do anything not expressly forbidden. 2) But we've got to treat Constitutional limitations on the Spending Clause, the section of the Constitution that gives the Federal Government a potentially unlimted scope, seriously (especially in the absence of a Tenth Amendement that means anything) 3) And since it's been ruled that the Federal Government cannot restrict same-sex marriage on Fifth Amendment grounds (in Gill v. OPM), section 3 of DOMA is out.

The circular fiat which you speak of in the title of the post involves the Fifth amendment limitation defined by Judge Tauro on the Spending Clause, and not the Tenth Amendment directly. The Tenth Amendment in this context is an attempt to limit that number of places where government can apply its fiat.

Posted by: Andrew at July 14, 2010 2:28 PM

If marriage were being redefined to include same-sex unions through the democratic process then it would be possible to say there are material differences between homosexuality and polygamy. However, because this redefintion is coming largely through the courts, that distinction is not so easily made. After all, those courts that have conjured up a right to same-sex marriage have done so on the basis that the individual is free to define his own morality without restriction by the society at large. If that is the case, then restriction of marriage to one man and one woman is no more arbitrary than the restriction of marriage to just two people of whatever sex. I wouldn't go so far as to say that it necessarily implicates bestiality since animals are incapable of consent the way people are. But once you deny society the right to restrict marriage to its traditional definition, how do you exclude any arrangement between consenting adults of any number?

As a postscript, based on the way these trends have developed in the past, many of those who deny that same-sex marriage could ever lead to polygamy will be among those arguing most loudly that polygamous marriage must be recognized several years down the road.

Posted by: David P at July 14, 2010 3:17 PM

David P.

On a related note, I was thinking, earlier, of the assurances that SSM advocates made back when the possibility of a Federal Marriage Amendment was in the public consciousness. The measure was extreme, they said, because we already have DOMA. Well, it wasn't difficult to see where that was going...

Posted by: Justin Katz at July 14, 2010 6:40 PM


Coakley and Tauro can structure their arguments however they like, but the basic premise is the same. From my perspective, it isn't accurate to say that the government is "regulating" marriage as a supervening government structure; it's offering money and programs in which the states needn't participate and regulating them. Again, I bring up the question of how the government could hire anybody if it can't set terms of employment that, in external contexts, the individual is Constitutionally empowered to decide for him or her self.

To add something new to the discussion, I just noticed what I would characterize as an outright error in Tauro's ruling:

That DOMA plainly intrudes on a core area of state sovereignty -- the ability to define the marital status of its citizens -- also convinces this court that the statute violates the Tenth Amendment...

In issuing marriage licenses, a state is also empowered to define the marital status of citizens of other states, which brings us to the Full Faith and Credit clause of the Constitution. It also may not be empowered to regulate a marriage as it likes when other states' laws come into play.

The federal government currently faces a situation in which the states differ in their very definitions of what a marriage is, and in advance of that bifurcation, Congress affirmed that, for its own purposes, marriage would remain as every state, at that time, understood it to be defined.

Which means that we're really just going in circles, because I've already pointed out that Tauro's ruling appears to deprive national taxpayers the right to set terms of use for their dollars in the states that spend them. It also will surely require the federal government to recognize same-sex marriages in states that do not, themselves, recognize them.

Of course, I'd caveat this all by noting the complexity and the profound changes that can be wrought through arcane legalistic debate as evidence that the federal government should be much smaller and less of a financial sponsor of the states.

Posted by: Justin Katz at July 14, 2010 7:12 PM

The claim of circularity (made by a leading SSM advocate, not me) is an attempt to ignore the fact that marriage has a definition and that its constituent parts are substantive. Morality doesn't enter into it.

Sexually intimate male-female relationships are profoundly different from sexually intimate male-male and female-female in a way that has huge implications for our society, but that has nothing to do with the morality of any of the above. Sexual male-female relationships — by design — tend to produce children, whether the couple wants to do so or not. Regulating the form that the families that such behavior tends to create is of central civilizational interest. (I'd stress, though, that regulation in this context isn't exclusively a government activity. A society regulates itself in other ways than by law.)

Posted by: Justin Katz at July 14, 2010 8:12 PM
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