I anticipated some uproar following this week’s decision saying South Dakota’s ban on gay marriage is unconstitutional. Either I’m not familiar with the places it’s showing up (which may be a good thing) or the response to date has been quite muted.
What struck me about the decision wasn’t the result or the legal framework Judge Karen Schreier applied. I haven’t been following these kinds of cases but I was struck by how meager the State’s arguments seem. It offered essentially four reasons why gay marriage shouldn’t be a protected right and two to justify the ban even if Judge Schreier ruled it was protected.
As to the former, the State asserted that claimed rights need to be narrowly defined, meaning that what was at issue was same-sex marriage, not marriage. Like other judges, Judge Schreier said the right at issue is the right to marriage itself. It isn’t carved up into categories, such as whether disabled persons or people of different races have a right to marry.
Next the State said the ban should stand because recognizing a right to marriage in these circumstances would remove the issue from public debate. Yet this argument would render any voter-approved measure, even one banning non-Christian religious services, virtually unassailable. Appropriately, Judge Schreier quoted the Supreme Court: “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” (Emphasis added by Judge Schreier.)
Somewhat related is a claim that the ban simply reflects longstanding tradition of not recognizing same-sex marriages. But traditions, like elections, don’t determine constitutional rights. After all, through the first half of the 20th Century, state law said any marriage between a white person and “any person belonging to the African, Korean, Malayan or Mongolian race” was void. Just because plenty of states had anti-miscegenation laws didn’t make them constitutional.
Finally, the State claimed that recognizing a protected right here was a step toward allowing polygamy and incest. Even non-lawyers can recognize the “slippery slope” argument and its logic. After all, if you allow gay marriage the next thing you know Jews will marry goys or shiksas, humans will wed the livestock, fowl or fish of their dreams and dogs will be marrying cats.
What justifies the ban if the marriage right is recognized? Well, South Dakota wants to encourage “heterosexual couples—the couples most likely to have children—to accept the obligations and liabilities associated with a state marriage laws [sic] so that children, and particularly unplanned children, are not abandoned” and don’t end up on the public dole. Judge Schreier astutely observed, among other things, that if the goal is “channeling accidental reproduction,” it’s hard to explain why “infertile or otherwise non-procreative heterosexual couples are allowed to marry[.]”
The other justification was that gay marriage “fundamentally alter[s]” our societal structure and will affect the public purse by “extending state marriage benefits to a new group of couples.” Given that, the State argued, society should proceed with caution. This didn’t survive analysis for long. If proceeding with caution can justify restrictions on fundamental rights, virtually any discriminatory law would pass muster.
The State’s arguments aren’t unique; they’ve been used to support other gay marriage bans when challenged. They’ve also met with fairly uniform rejection. In fact, in one of the more thorough analyses, which invalidated bans in Indiana and Wisconsin, Judge Richard Posner said these grounds weren’t just conjectural, “they are totally implausible.” In October, the Supreme Court declined to review the case.
The rulings here and in other states reinforce that there’s very little, if any, policy or law to support or justify these bans. They essentially seek to impose religious views. But if same sex couples are allowed to marry, that doesn’t mean that you have to marry someone of the same sex if you don’t want to.
UPDATE: Within hours of posting this, the Supreme Court decided to address the constitutionality of same-sex marriage bans.
Plaintiffs have a fundamental right to marry. South Dakota law deprives them of that right solely because they are same-sex couples and without sufficient justification.
Rosenbrahn v. Daugaard (Jan. 12, 2015)
For example, there was just a bit of racism around. This doesn’t mean comics such as 
