Whose Marriage Is It, Anyway?

"Marriage is the right of the individual. It is not the right of the state."

~ Theodore Olson

On February 4, 2014, the day after Utah filed its opening brief in the Kitchen v Herbert case with the 10th Circuit Court of Appeals, a hearing was held in a federal district courtroom in Virginia. Oral arguments were heard as to whether or not Virginia's ban on same-sex marriage is constitutional. Ted Olson - who played a pivotal role in arguing the Prop 8 case from federal district court all the way to the Supreme Court - argued on behalf of the plaintiffs.

As I read a transcript of Mr. Olson's argument, I was electrified by these passages that touched on something that had deeply troubled me about Utah's arguments in our own same-sex marriage legal battle:

"[Marriage] is the right of the individual. It is not the right of the state. That is the country that we live in. We have rights as individuals which are fundamental and cannot be taken away." [at p. 6, emphasis added] 

"The State wants to have marriage for people of opposite sexes so that they will channel their sexual activity into the institution of marriage. But there's two points with respect to that. It's not the state's right to impose a restriction on marriage because it wants to accomplish some social objective. The state could decide tomorrow we don't want procreation or we don't care about responsible procreation and change the rules. No because it's an individual right. It goes to the heart of who the individual is, their liberty, spirituality, and so forth" [at p. 9, emphasis added].

What had deeply troubled me about Utah's argument, as reflected in both its (multiple) applications for a stay of Judge Shelby's ruling as well as in its opening brief in support of its appeal of that ruling, is that it is ultimately based on the proposition that it - the State - has a right to promote a particular kind of marriage and family unit and that this right trumps an individual's right to marry.

At the time, I thought, "Do we as citizens exist for the benefit of the state, or does the state exist for the benefit of its citizens?" More to the point, "Does marriage exist for the state, or the state for marriage." Ted Olson's words articulated the response to these questions.

After reading the transcript of the oral arguments, I read the plaintiffs' briefs filed in the Virginia case, in which Olson and his team of lawyers wrote the following (in their second brief) with respect to these issues:

"If marriage exists solely to serve society’s interest, as Defendants argue, it makes no sense to speak of an individual’s right to marry" [at p. 1]. 

"There is only one fundamental “right to marry.” It is a liberty of association that fosters “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965). It is safeguarded by the Constitution not to promote “causes,” “political faiths,” or “social projects,” but instead “a way of life,” “a harmony in living,” and “a bilateral loyalty.” Id. It is a right to which everyone—including gay men and lesbians—is entitled" [at p. 8].

I then went back and re-visited Judge Shelby's ruling and read the following passages with additional insight:

"[T]he [US Supreme] Court’s decision in Griswold v. Connecticut, in which the Court struck down a Connecticut law that prohibited the use of contraceptives, established that the right to marry is intertwined with an individual’s right of privacy. The Court observed: 'We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.' 

"In Planned Parenthood of Southeastern Pennsylvania v. Casey, the [Supreme] Court emphasized the high degree of constitutional protection afforded to an individual’s personal choices about marriage and other intimate decisions: 'These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.'"

There are many legal challenges going on right now in various states across the country. Utah is not alone in basing its argument against marriage equality on not only "states rights" but, more importantly, on a state's right to do precisely what the Supreme Court in Griswold said it could not do - use marriage to promote "causes," "political faiths," and "social projects."

It is ironic that, in a state that is considered to be one of the most conservative in the nation, a state whose citizens typically pride themselves on their staunch defense of personal liberty, Utah's government is insisting that its citizens do not have the right to enjoy "the heart of liberty," a "liberty projected by the Fourteenth Amendment": the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life" without being subject to the "compulsion of the state."