Public Acts, Compelling State Interest, and the Santorum "Man on Dog" Test

This review of recent Supreme Court cases involving the rights of gay and lesbian Americans shows increasing recognition of the basic rights of homosexuals and their private relationships. Contrary to the hopes of gay-rights advocates and the fears of their opponents, the precedents to date may not be sufficient in upcoming cases to conclusively define and protect a right to marriage for gay citizens. (In January 2004, the 11th Circuit Court of Appeals upheld Florida’s statute banning adoption by gay residents.) The threats are not just those posed by potential future Bush judicial appointees.

A first major obstacle could be the distinction between private behavior and public acts. Unlike the private, consensual acts covered by Lawrence, marriage is a public act, witnessed and sanctioned by the state. It is recognized by the community and often sanctified by religious institutions and ceremonies. Financial, legal and social benefits are inherently tied to marital status. Justice Kennedy’s language in Lawrence does not per se extend that far, focusing instead on laws:

Touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.

It is possible but by no means certain that the Loving, Romer and Lawrence cases taken together with the broad rights described in Planned Parenthood of Southeastern Pa. v Casey (1992) could be authoritative. In Lawrence, Kennedy did note that “the Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” and cited Casey directly:

“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.”

A second major stumbling block to judicial recognition of same-sex marriages concerns the test of compelling state interest in regulating or prohibiting them. States today have broad latitude in the age, citizenship and health requirements for residents to marry. Cases like the Florida adoption case and the Bottoms custody case in Virginia show courts will give legislatures a wide berth in family issues and accept their strong predisposition against gay-parented families.

Regarding gay marriage, courts may or may not uphold states’ claims that their laws legitimately aim to protect families and children; the Romer and Lawrence cases make that increasingly difficult. However, the “legitimate state interest” argument rejected by Kennedy in Romer could be raised by indirection. That is to say, states could claim that with the barrier to gay marriage removed, they would be powerless to prevent evils such as polygamy, incest and bestiality.

In his own bizarre, strident and disturbing way, Pennsylvania Senator Rick Santorum raised both concerns in the wake of the Lawrence decision:

It destroys the basic unit of our society because it condones behavior that's antithetical to strong healthy families. Whether it's polygamy, whether it's adultery, where it's sodomy, all of those things, are antithetical to a healthy, stable, traditional family…Every society in the history of man has upheld the institution of marriage as a bond between a man and a woman. Why? Because society is based on one thing: that society is based on the future of the society. And that's what? Children. Monogamous relationships. In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be.

In all seriousness (Santorum’s antics aside), same-sex marriage advocates can and should address the issue of compelling state interest in banning practices such as polygamy and incest. Incest necessarily involves issues of consent and coercion, as well as public health, and its prohibition does rise to the level of a legitimate state interest. Similarly, polygamy raises concerns over coercion, as well as inherent red flags over equal protection.

1. States' Blights:  Introduction
2. Here Comes the Judge
3. Public Acts, Compelling State Interest, and the Santorum "Man on Dog" Test
4. What is to be Done?  A Measured Approach for 2004