Marriage facts.

• Author: Stewart, Monte Neil

Do constitutional norms, particularly of equality and liberty, require the redefinition of marriage from the union of a man and a woman to the union of any two persons? In the present judicial contest over this issue, the real dispute is not over principles of law but about the facts of marriage. This Article identifies the marriage facts presented by those on each side of the debate and articulates each side's responses to the other's factual position. A critical examination of the two accounts reveals that the factual description of marriage advanced by proponents of man-woman marriage is more accurate. The Article then analyzes the widely held assumption that judicial selection of the standard of review-rational basis, heightened (but not strict) scrutiny, or strict scrutiny-determines the outcome in cases addressing the constitutionality of traditional marriage laws. That analysis concludes that the choice of marriage facts, not the standard of review, is ultimately dispositive.

INTRODUCTION I. THE FACTS OF MARRIAGE A. The Factual Basis of Man-Woman Marriage's Constitutionality B. The Factual Basis of the Case for Genderless Marriage C. Responses--and a Critical Examination 1. The factual basis of the narrow and broad marriage descriptions a. Is, ought, and the relationship between the two descriptions b. The weight of the evidence 2. Social institutional realities a. The "no-downside" argument, or "what's the harm?" b. The optimal child-rearing mode c. The "big differences" and the "law's power" marriage facts d. Child welfare 3. Religion, law, and the singularity of the marriage institution II. THE FACTS OF MARRIAGE AND THE STANDARD OF REVIEW CONCLUSION INTRODUCTION

The marriage issue of our time is whether constitutional norms, particularly of equality and liberty, require the redefinition of marriage from the union of a man and a woman to the union of any two persons. Perhaps no great issue in American constitutional law has been so plagued by conflict, confusion, and carelessness regarding the relevant facts. This is not to say that divisiveness over certain facts has not influenced earlier constitutional contests. (1) Typically in those earlier contests, however, legislative or administrative action provided some coherent and even authoritative body of facts helpful to judicial consideration of the subject matter. (2) Even in the absence of such legislative or administrative guidance, courts have often managed to develop clear understandings of the factual underpinnings of contested constitutional issues. (3) By contrast, the treatment of constitutional facts in recent American appellate court decisions addressing the marriage issue (4) has been confused and even careless. (5)

Such factual confusion in the marriage cases, although it does not bode well for constitutional adjudication, is at least understandable for three reasons. First, man-woman marriage is an ancient and virtually universal social institution; (6) hence, those enacting or interpreting marriage laws in recent centuries apparently sensed little or no need to articulate the factual basis for the man-woman meaning reinforced by those laws. (7) Even congressional deliberation leading up to the 1996 Defense of Marriage Act (8) focused largely on the role of individual states in fashioning their own marriage laws; Congress did not conduct a thorough examination of the man-woman marriage institution or the factual consequences of replacing it with a marriage scheme in which the parties' genders are legally irrelevant and socially inconsequential. (9) Second, at least until quite recently, the key players in the constitutional debates surrounding marriage (lawyers, judges, and legal scholars) had little specialized knowledge about marriage. (10) Third, those participants thought they had a great deal of general knowledge about marriage. This is understandable because marriage is a ubiquitous social reality, encountered or experienced by nearly everyone; as a result, most people believe that they understand marriage. As we will see, however, that belief can impede defensible legal work on the marriage issue.

Before outlining the structure of this Article, a few notes about terminology are warranted. By "the facts of marriage" or "marriage facts," I mean those facts that almost fifteen years (11) of litigating the marriage issue in sixteen states and the District of Columbia (12) have shown to be relevant to that issue. Thus, the word "facts" is used in a narrow, lawyerly way; it includes those matters disputed in litigation other than legal principles and procedures, a distinction seen in such oft-used phrases as "issue of fact," "question of law," and "mixed question of law and fact." (13) As described by those terms, a fact is not necessarily "[s]omething that has really occurred or is actually the case" (14) but rather what a judge, for purposes of resolving a case, will accept as such--or will accept as something that a reasonable legislator could accept as such. Thus, in the lawyer's realm, the notion of "alleged fact" or even "false fact" is not unintelligible. (15) References in this Article to the facts of marriage or marriage facts are of that realm.

On one side of the marriage issue are those who want marriage to be legally redefined to encompass "the union of any two persons," with the law treating the parties' genders as irrelevant to the meaning of marriage--hence, "genderless marriage." (16) On the other side are those who want to preserve "the union of a man and a woman" as a core meaning of the marriage institution--hence, "man-woman marriage." I do not use the terms "same-sex marriage," "homosexual marriage," or "gay marriage" because they are misleading, in two related ways. First, nowhere in the world is marriage defined legally, socially, or otherwise as the union of two persons of the same sex. It is defined either as the union of any two persons, as in Massachusetts (at least legally), or as the union of a man and a woman, as in the other 49 states (both legally and socially). Second, when people confront the marriage issue, the term "same-sex marriage" and others like it often prompt them to think of a new, different, and separate marriage arrangement or institution that will coexist with the old man-woman marriage institution. But once the judiciary or legislature adopts "the union of any two persons" as the legal definition of civil marriage, that conception becomes the sole definitional basis for the only law-sanctioned marriage that any couple can enter, whether same-sex or man-woman. Therefore, legally sanctioned genderless marriage, rather than peacefully coexisting with the contemporary man-woman marriage institution, actually displaces and replaces it.

The opposing sides have repeatedly presented to the courts two quite different "packages" of marriage facts; each judge, in upholding man-woman marriage or mandating its replacement with genderless marriage, has to some degree both premised her ultimate legal conclusion on one package and attempted to counter the contents of the other package. (17) Part I describes the contents of the two packages, as presented in the litigation of the marriage issue, and examines their divergence. This critical evaluation of marriage facts leads to the conclusion that the package supportive of man-woman marriage is decidedly more defensible. Part II then examines the conventional wisdom that, in adjudication of the marriage issue, judicial choice of a particular standard of review is generally dispositive. That analysis concludes that the choice of marriage facts, not the standard of review, actually determines the outcome.

1. THE FACTS OF MARRIAGE

   This Part begins by identifying the marriage facts as they have been presented by litigants, starting with the factual basis of man-woman marriage's constitutionality.

   1. The Factual Basis of Man-Woman Marriage's Constitutionality

      "Marriage is a vital social institution." (18) Like all social institutions, marriage is constituted by a unique web of shared public meanings. (19) For important institutions, including marriage, many of those meanings rise to the level of norms. (20) Such social institutions affect individuals profoundly; institutional meanings and norms teach, form, and transform individuals, supplying identities, purposes, practices, and projects. (21)

      Those meanings, as the constitutive elements of social institutions, are therefore the source of the social goods that any institution provides. In other words, it is by teaching and transforming individuals across society that an institution's constitutive meanings generate social goods. These social goods lead to the institution's evolution and justify its perpetuation. (22)

      Across time and cultures, a core meaning constitutive of the marriage institution has nearly always been the union of a man and a woman. (23) This core man-woman meaning is indispensable for the marriage institution's production of at least six valuable social goods. (24) The man-woman marriage institution is:

      1. Society's best and perhaps only effective means to secure the right of a child to know and be raised by her biological parents (with exceptions justified only when they are in the best interests of the child). (25)

      2. The most effective means yet developed to maximize the private welfare provided to children conceived by passionate, heterosexual coupling (with "private welfare" meaning not only basic requirements like food and shelter but also education, play, work, discipline, love, and respect). (26)

      3. The indispensable foundation for that child-rearing mode--that is, married mother-father child-rearing--that correlates (in ways not subject to reasonable dispute) with the optimal outcomes deemed crucial for a child's, and therefore society's, well-being. (27)

      4. Society's primary and most effective means of bridging the male-female divide. (28)

      5. Society's only means of...