Stewart, Monte Neil, Harvard Journal of Law & Public Policy
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
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. …