To rule last week that it was constitutional for Nevada to bar gay couples from getting married, U.S. District Judge Robert Jones had to determine that there was a “reasonably conceivable state of facts that could provide a rational basis” for the state to reserve marriage to straight couples. Here’s what he came up with: Marriage is important to maintaining a stable society, and if it is expanded to include gays, “it is conceivable that a meaningful percentage of heterosexual persons would cease to value” marriage because “they no longer wish to be associated with the civil institution as redefined.”
One of the benefits of a court case is it allows the airing of most of the arguments that exist for and against gay marriage. (The exception is opposition based on religious conviction. Because of the separation of church and state in the Constitution, that’s not a basis the government can cite for barring gay unions.) This is particularly true of “equal protection” challenges—those claiming that a law violates the Constitution’s guarantee of equal treatment—that require the government to show at least a “rational basis” in defense of the law. But one of the lessons of history is that one era’s rational thinking is another’s irrational prejudice. If Judge Jones came up with the best legal argument there is, the future of straight-only marriage looks bleak indeed.
Let’s assume, as most courts have, that the state has a sound interest in preserving marriage for the sake of social stability and child welfare. Is it rational to assume that allowing gay marriages could deter straight ones and thus undermine the institution?
On the face of it, there are two possible reasons why a straight couple might react to gay marriage by opting out. One is that straight people conceive of marriage as a precursor to procreation, and letting gays share the term changes that. Does this make enough sense to qualify as rational? Childless marriages have long been legal and are on the rise. Anyone contemplating a wedding would have to acknowledge that procreation has not been an entry requirement—or even a strong cultural expectation—for years. Excluding only gay unions—blessing the marriage of two straight octogenarians but not a lesbian couple planning to raise kids—can only seem suspect.
What if straights simply don’t like gay people and don’t want to share an institution with them? Could this count as rational? The old saying, “you can’t argue with taste,” suggests it could, but the courts have generally said it doesn’t pass rational-basis muster to deny equal treatment to a disfavored group. In the 1996 case Romer v. Evans, the Supreme Court specifically said that “animus”—in other words, dislike based on group identity—could not be the permissible basis for Colorado to pass a law that eliminated protections against discrimination provided by local gay rights ordinances.
All of which raises a deeper question: If people are likely to behave irrationally, can a law designed to incorporate that likelihood—even to protect institutions based on that likelihood—pass the rational-basis test?
Theoretically, the answer could be yes. If irrational dislike of gay people (what the Associated Press no longer calls homophobia) could undermine marriage by causing a kind of mass boycott, then even if the reason for the harmful behavior is irrational, the law protecting against such behavior—a ban on gay marriage—might not be. Judge Jones writes in his decision that the question is not whether people “have good reasons” for believing gay marriage could harm their marriages, but whether there is “any conceivable basis, even speculatively, to believe that spouses or prospective spouses might feel this way, for whatever reason, and that their reaction to the redefinition of civil marriage to include same-sex couples might have detrimental societal effects.”
But the courts, whose job, in part, is to protect minorities against majority whim, have seen things differently. A 1984 Supreme Court case sets an important precedent. A white father sought child custody by arguing that his ex-wife’s remarriage to a black man could cause the child to suffer because of other people’s opposition to interracial marriage. Denying the man’s claim, the court ruled that, “The Constitution cannot control such prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”
It’s true that when the government distinguishes on the basis of race, its reasons must pass a higher “strict scrutiny” test rather than have a mere rational basis. But even by the lower standard Judge Jones used to make his decision, it is increasingly hard to find a rational basis for straight-only marriage. This is because of the actual facts we’ve gathered in the decade or so since gay equality has started to become a reality.
For starters, gay marriage doesn’t reduce marriage rates. In the handful of U.S. jurisdictions that allow same-sex couples to wed, overall marriage rates have stayed the same or risen slightly. M.V. Lee Badgett, an economist and the research director at UCLA’s Williams Institute, has also found that marriage rates in five European countries didn’t drop after they began to recognize same-sex unions. These findings echo the 17-year debate over whether to let gays serve openly in the military. Dire prediction: Straight troops would flee in droves rather than serve with openly gay peers. Research from foreign militaries had long shown these concerns to be alarmist, and after our own ban ended, research here showed the same: While some had predicted half a million departures, the military confirmed a grand total of two. My own decade of research for a book on “don’t ask, don’t tell” showed not only that predictions of harm were unfounded but that they were solidly rooted in anti-gay hostility. In other words, irrational prejudice.