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I was delighted to see the Supreme Court of the United States catch up with the Supreme Judicial Court of Massachusetts, and hold last week in Obergefell v. Hodges that same-sex couples must be allowed to marry on the same terms as opposite-sex couples. That result seems to me a perfectly straightforward application of well-established legal principles, in particular, the Fourteenth Amendment’s guarantee of equal protection under the law. Laws saying that same-sex couples can’t get married are obviously “discriminatory” in the literal sense of that word – they discriminate between people by denying a particular group of people benefits that other people get. The state therefore has to justify the discrimination under the Equal Protection Clause, and in this case, they can’t. And that’s pretty much it. (Legal wonks: yes, there are complications relating to levels of scrutiny and the like – see the flip for more – but that’s the basic idea.)
Unfortunately, that’s not the approach that Justice Kennedy took in writing the Court’s majority opinion. Instead, Kennedy delivered a soaring paean to the institution of marriage (sorry unmarried folks, you’re missing out on “our most profound hopes and aspirations”), and then went on for pages about autonomy, personhood, destiny, and dignity – all interesting and worthy topics, to be sure, but topics that are not well defined in legal terms. He concluded as a result that the Court’s doctrine of “substantive due process,” specifically its “fundamental rights” jurisprudence that preserves rights deemed “fundamental” (by the Court) from government interference, gave same-sex couples the right to marry.
Substantive due process is risky territory (in addition to being something of an oxymoron). Most notoriously, in the early 20th century, the Court repeatedly used substantive due process to invalidate a variety of worker protection and other progressive state laws in the so-called Lochner era, on the ground that they interfered with the supposedly constitutionally-protected liberty of workers to enter into any kind of contractual arrangement they pleased, however exploitative it may have been. (Lochner v. New York itself invalidated a New York law limiting the number of hours that bakers could work in a single day to 10.) Over the years, substantive due process has been criticized as simply an excuse for judges to enact their policy preferences into law, and there is a kernel of truth there. For a similarly skeptical take on Kennedy’s opinion from another supporter of equal marriage, you can read Brian Beutler at TNR.
None of which is to say that I disagree with what Kennedy’s opinion said about the importance of marriage. I actually agree with a lot of it. But he could have gotten most of that in had he used the better-established, less-prone-to-judicial-abuse doctrine of equal protection. An equal protection analysis would have required the Court to examine the stated justifications for the marriage bans, and to assess whether they are good enough to justify discriminating against LGBT people. The answer, of course, is that they aren’t, and much of Kennedy’s rather free-floating commentary about marriage could have been put to better use in supporting that conclusion.
But is there really anything wrong with Kennedy’s opinion? Maybe. One possible problem with giving constitutional protection to, say, “dignity,” which is more or less what Kennedy did, is that it’s not hard to imagine “dignity” cropping up in other contexts where the result might be far less pleasing to those of us who liked the result in this case. For instance, to return to everyone’s favorite example, is it so hard to imagine a Christian baker claiming that having to make a wedding cake for a gay couple infringes not only on her free exercise of religion, but also on her dignity? Is there a legal basis for distinguishing a constitutionally-protected dignity interest from a non-protected one, beyond garnering the vote of a majority of judges on whichever court is hearing the case? Will we now face a barrage of dignity-based lawsuits, with the courts having to distinguish among the various types and manifestations of “dignity” that come before them? I’m not sure that’s a road down which we want to travel very far.
In other words, I think that the Obama administration’s suggested approach was right. In arguing that the marriage bans should be struck down, the administration relied solely on equal protection, and did so in exceptionally convincing fashion (to me, at least). You can read the whole brief for the United States here (PDF). I’ve pasted in the brief’s summary of argument on the flip. (Disclosure: Stuart Delery, one of that brief’s principal authors, is a friend and former colleague.)
The marriage bans challenged in these cases impermissibly exclude lesbian and gay couples from the rights, responsibilities, and status of civil marriage. These facially discriminatory laws impose concrete harms on same-sex couples and send the inescapable message that same-sex couples and their children are second-class families, unworthy of the recognition and benefits that opposite-sex couples take for granted. The bans cannot be reconciled with the fundamental constitutional guarantee of “equal protection of the laws,” U.S. Const. Amend. XIV.
A. This Court has appropriately recognized only a small set of legal classifications as constitutionally suspect and subject to heightened equal-protection scrutiny. Classification on the basis of sexual orientation presents the rare circumstance of a classification that should be added to that list. Sexual orientation satisfies all four factors that this Court has looked to in determining whether to recognize a suspect class. First, lesbian and gay people have been subject to significant and continuing discrimination in this country. That history includes criminalization of intimate relations, treatment as deviants, denial of rights to care for children, targeting in hate crimes, and limitation of employment opportunities. See pp. 3-6, supra. Second, sexual orientation bears no relation to ability to participate in and contribute to society. Lesbian and gay people make critical contributions in every significant area of this Nation’s life. Third, discrimination against lesbian and gay people is based on an immutable or distinguishing characteristic. Sexual orientation is a core aspect of a person’s identity, and it defines lesbian and gay people as a class. Fourth, lesbian and gay people are a minority group with limited political power. Recent progress toward eradicating some of the harshest and most overt forms of discrimination has in significant respects been the result of judicial enforcement of the Constitution, and legislative gains have often generated political backlash. Heightened scrutiny under the Equal Protection Clause is particularly appropriate in the context of legal barriers to marriage. A State should be required to present an especially strong justification for a law that excludes a long-disadvantaged class of persons from an institution of such paramount personal, societal, and practical importance.
B. The marriage bans at issue here cannot survive heightened scrutiny because they are not substantially related to an important governmental objective. Respondents’ contention that the marriage bans encourage biological parents to jointly raise children ignores the many non-procreative aspects of marriage, assumes counterintuitively and without evidence that allowing same-sex couples to marry would discourage opposite-sex couples from staying together, and unjustifiably disfavors children raised by same-sex couples by denying those couples the same incentives to remain together. Respondents’ contention that the marriage bans further a state interest in proceeding with caution before departing from the traditional understanding of marriage echoes similar arguments advanced, and properly rejected, in other contexts, such as integration of public facilities and interracial marriage. And respondents’ contention that the marriage bans return the issue of marriage to the democratic process simply begs the question whether those bans exceed the limits that the Equal Protection Clause imposes.
C. The Court’s recent decision in United States v. Windsor, 133 S. Ct. 2675 (2013), reinforces the conclusion that the state marriage bans are unconstitutional. In Windsor, the Court held unconstitutional a federal statute that denied recognition to same-sex couples who were validly married under state law, notwithstanding attempts by the law’s defenders to justify the statute on substantially the same rationales that respondents advance here. The primary distinctions between these cases and Windsor—that these cases involve state rather than federal law, and that petitioners seek not only recognition of existing marriages but also licensing of new ones—mean that the marriage bans here inflict even more legal and practical harm than the law at issue in Windsor. They impose a more direct stigma that is all the more painful because its source is the home State and not the federal government; they exclude lesbian and gay couples from the institution of civil marriage; and they deprive the children of those couples of equal recognition of their family structure. There is no adequate justification for such a discriminatory and injurious exercise of state power.