Marriage Equality

This entry is dedicated to equal marriage opportunity and the Constitution.

A series of cases will come before the Supreme Court this year pertaining to recognition of marriages for same-sex couples.  These cases will address various issues, some relating to the states, some to the federal government (challenging the constitutionality of the Defense of Marriage Act).  The Court here faces a complex set of questions.  I will address but one.

Does the Constitution require that the states recognize marriages between same-sex couples?

            To begin, I will separate this issue along two lines.  As a legislative matter, this issue seems very clear-cut to me.  I have been able to glean little more than a naked distaste for homosexuality and a deep-seated animus against homosexuals driving the laws and constitutional amendments in the states prohibiting legal recognition of those unions.  Were I to sit on any state’s legislature, I would be honored to vote for a statute recognizing marriages between same-sex couples.  I would be similarly honored to vote for state constitutional amendments to that end, or to vote against amendments outlawing such recognition (as I did in Florida in 2008).

            But the policy of marriage recognition is different from its constitutionality.

            This question raises competing claims: the Constitution’s demand that the states provide the equal protection of the laws, and the states’ police power: their undifferentiated authority to regulate on behalf of the health, safety, welfare, and morals of their citizens.  The states have historically dictated the terms of the marriages they will recognize with few exceptions (like the Court’s intervention in Loving v. Virginia, which ruled that a Virginia law prohibiting interracial marriages violated equal protection).  Defining the terms of marriage drives to the heart of the states’ police powers.

            The Court has spoken on issues involving state action and homosexuality before.  Important cases like Lawrence v. Texas and Romer v. Evans set a precedent for equal treatment toward those of whatever sexual orientation, though they conspicuously declined to name sexual orientation as a protected class under EP jurisprudence. 

Lawrence involved the invalidation of a Texas statute criminalizing sexual activity between same-sex couples.  The Court’s majority opinion relied on a right to privacy grounded in the Due Process Clause of the 14^th Amendment, and recent decisions elaborating (creating?) that right.  Justice Stevens, writing the majority opinion in Lawrence, made a special effort to foreclose the possibility that his opinion would be used in future cases to impose same-sex marriage recognition on the states by distinguishing this case from a hypothetical one involving marriage recognition by implying that the states would have an interest in reserving marriage for heterosexual couples.  But more pertinent to this discussion is Justice O’Connor’s (more cogent) concurrence noting that to prohibit sexual conduct for homosexuals but not for heterosexuals constitutes a violation of Equal Protection insofar as such a law treats similarly situated people differently without a rational basis. 

Romer overruled an amendment to the Colorado constitution forbidding anyone to claim protection from Colorado’s anti-discrimination laws on grounds of sexual orientation.  Stevens, writing for the majority again, unearthed as the amendment’s motivation nothing more than a transparent prejudice against homosexuals.  But again, he declined to say anything more than that these laws failed the rational basis test

Justice Scalia’s scathing dissent in Lawrence reveals inconsistency in the majority opinion, but also could portend the future: the Court’s opinion delves deeply into American and common law history to find and distinguish the motivations behind anti-sodomy laws from modern statutes like Texas’.  Such a painstaking analysis reaches far beyond normal rational-basis jurisprudence into the demanding standards of strict-scrutiny review.  The Court acts disingenuously when it says one thing and does another.  However, such an argument may reveal that the Court was merely unwilling to reveal its true intentions at that time.  The full revelation of this more exacting standard of review may await us this year.

            However, both of these cases differ from the issues at hand: they forbid the states from engaging in discrimination, but they do not require legal recognition of marriages between same-sex couples.  There is a difference between a laissez-faire approach to personal relationships between consenting adults, and the active recognition of such relations’ equality before the law and the polity.  Hands-off is different from thumbs-up.  

            However, one could say that Romer does involve equal recognition of homosexuals in the states before the law insofar as it deals with self-identification along lines of sexual orientation, which in turn depends on sexual conduct.  Perhaps this case does involve thumbs-up recognition insofar as it demands that the states regard homosexuals legally as they would any other identifiable group.  Lawrence similarly involves non-discrimination along lines of sexual conduct (although again, Stevens denied to expand such recognition into the marital arena), and insistence that to criminalize certain sexual conduct stigmatizes those who engage in it, weakening regard for the law.  Both themes are present also in Romer, as arguably in any case challenging state failure to recognize same-sex marriage.  Such failure arguably perpetuates a stigma against homosexuals and homosexual conduct by enshrining it in law; further, such failure denies to homosexual couples the full measure of the law’s protection in such matters as taxation and inheritance.

            (I don’t know enough about civil unions to know whether this is strictly true, but in the event that they are not equal in such matters strengthens the EP argument.)

            Still, Lawrence mainly involves a hands-off policy toward homosexual relations more than it involves an active recognition and approval of such unions.  I’ve tried in the previous paragraph to argue as strongly as possible for active state recognition on Lawrence and Romer’s precedent.  But even Romer strictly requires the states not to disqualify sexual orientation as a protected class under their non-discrimination laws.  This decision did not require recognition of such a group, only that they not be disqualified out of hand.  It’s a stretch to say that the Court’s previous decisions regarding homosexuality pave the way for legal recognition of marriage between such couples.  Again, even Lawrence required only that the state’s coercive mechanisms not be used to stigmatize homosexuality and invade the privacy of adults’ bedrooms.  Romer dealt with nothing so private as sexual intimacy.

            The federal government has traditionally kept its hands off state regulations of marriage.  A notable recent exception was the case Loving v. Virginia in which the Supreme Court invalidated a Virginia stature forbidding interracial marriages on Equal Protection grounds.  The state had claimed that it was not treating the races unequally, since both white people and black people were subject to the same restrictions: neither group was allowed to intermarry.  In striking down the law, the Court declared that the right to marry was fundamental to individual liberty, and that such separation of the races necessarily violated equal protection despite its ostensibly equal treatment (both races were forbidden from intermarrying, but practically the Court understood that the legal and social burden would fall to black people).

Most important in this case for our purposes is Earl Warren’s declaration that the freedom to marry is fundamental.  Clearly, Loving pertains to racial inequalities, but it sets a precedent that the federal government will not hesitate to examine how states regulate marriage if certain lines of fairness are crossed.

            Are they crossed here?

            Equal Protection jurisprudence has recognized five classes against which discrimination will trigger heightened review: race, gender, alienage, illegitimacy, and exercising constitutional rights (the last is seldom used; usually the right at issue defends whoever exercises it without recourse to the EP Clause).  Sexual orientation is not among them.  Again, Romer and Lawrence involved no more than rational-basis review, requiring no greater scrutiny than cursory examination.

            So, the Court has not recognized that sexual orientation is a “discrete and insular minority” (U.S. v. Carolene Products Co.): deserving special protection because of political powerlessness, with a history of invidious discrimination.  As such, discrimination along lines of sexual orientation triggers the same standard of review as would state discrimination against any other lines, which is almost always permissible.

            Should discrimination against homosexuals trigger heightened review?  Few would dispute that this group has been victimized by discrimination in American history; they have indeed been victims of onerous discrimination.  And because social stigmas force many homosexuals (or those who question the certainty of their sexual orientation) to remain in hiding, this minority remains politically vulnerable due to its small size and disorganization.  It should not surprise—it is barely worth mentioning—that homosexuals are underrepresented in the political process.  There are surely far fewer openly gay legislators and other politicians in proportion to the population at large.

However, on the other hand, how discrete and immutable is this minority is questionable, since many consider sexuality to be a spectrum rather than a zero-sum game.  Still, homosexuals cannot change their orientation at a whim; this much should be apparent and accepted in the present day.  We should have long ago left behind the notion that homosexuals can be “cured” or otherwise treated for their “condition”.  However, sexual orientation is difficult to demonstrate, as opposed to race or gender, which are usually immediately apparent.  Thus, it would be easy for conniving individuals to take advantage of any special dispensations afforded homosexuals under non-discrimination laws. 

            Though homosexuals may not qualify as a discrete class, others fail to meet the criteria fully as well.  For example, women comprise slightly over half the American population; as such they cannot even be thought of as a minority, let alone one discrete and insular.  Though women have clearly been considered subordinates, and have been badly victimized by a political process to which they were not privy for generations, gender discrimination does not fit the EPC bill entirely.  As such, perhaps the best place for sexual orientation discrimination lies in the same category of mid-level scrutiny due to gender discrimination.

            Now, to argue for the opposite side: this case implicates the powers of the states.

            Once again, I will not address religious arguments, assuming for the moment that such laws founded on purely religious grounds would violate the Establishment Clause as incorporated against the states by Everson v. Board of Education (establishment) and Cantwell v. Connecticut (free exercise).  Solely on constitutional grounds, federal involvement in marriage runs up against the states’ police powers, which has traditionally involved regulation and recognition of marriage as part of their power to regulate on behalf of their citizens’ morals.

            Further, the political power of homosexuals and their allies is growing, demonstrated by some states’ legalization of marriage equality in the 2012 elections.  The national trend may be shifting in this direction, taking the wind out of the sails of any judicial efforts to remove this issue from the political process.  If this process fixes its problems on its own, there is no need for judges to step in.  Indeed, I posit that they have a duty not to become involved absent pervasive, persistent, and invidious inequalities in the political process.

            Regulating marriage drives right to the heart of these powers, especially as they have been eroded over time.  Though the federal government has the power and an interest in promoting and ensuring equality, the states have an interest in safeguarding those powers that still redound to them in an era in which most issues of substantive concern are resolved at the national level.

            If the federal government nationalizes marriage, what will remain to the states?  If either the Congress or the Supreme Court exercises its 14^th Amendment power to require all the states to recognize same-sex marriages, little will remain of their once-sovereign power.  Few issues drive deeper to the heart of the police power than regulating public morality, since today much of regulation on behalf of health and welfare is either handled by the federal government, or at least conceived from the top, and only executed on the bottom.  The expansion of federal commerce power to near limitlessness has enervated the states’ power to act for the health and safety of their citizens; to strike at public morality nearly destroys state sovereignty altogether.

            Moreover, the scenario presented above does not entail a Congressional act dictating rules of marriage recognition nationwide, but the Supreme Court claiming that such is the command of the Constitution.  Congress can only enact legislation appropriate to enforce the 14^th Amendment; the Court would implicate the issue in the Constitution itself.  The distinction is important.  The people can, if they choose, order that Congress reverse a statute.  A Supreme Court opinion can only be overturned by Constitutional amendment, or by a future Court decision.  The latter scenario largely cuts the people out of the equation, ostensibly (and ironically?) by invoking the people’s highest will and supreme law.

            Using statutory law to enforce marriage equality presents a different problem: what to do when the bare national majorities drawn on party lines shift Congressional power.  What happens to this hypothetical statute when Congress falls into conservatives’ hands again?  What happens when the small national liberal majority tilts back toward the Republicans?  Constant vibrations in national public policy compromise the predictability necessary to the legal system,

            One lesson that the nation should take from the abortion struggles is that a Supreme Court decision claiming a segment of public policy for its very own can stoke the flames of a debate that may have otherwise simmered more civilly.  With Roe v. Wade and subsequent cases, the people lost their voice; the policy choice became mysteriously and questionably embedded in the Constitution rather than decided by the people at large, or within their states.  This frustration may have caused the debate to become more acrimonious that it might have done otherwise (several states had begun moving to liberalize their abortion laws before Roe), the bitter backlash sparking a defensive response from other parts of the public.

            Those who disagree with given Supreme Court decisions are cut out of the political process.  Participation in this process should be seen as a positive good in itself, an example of the civic virtue without which a democracy cannot function.

            The bottom line: when the Court implicates social issues in the Constitution without clear mandate, it removes a segment of the people’s power to decide issues for ourselves, which is understandably frustrating.  Furthermore, such decisions come dangerously close to making the Court into a roving super-legislature, creating public policy under the guise of Constitutional mandate and judicial review, but without the check of popular accountability.  This is arguably a violation of the separation of powers and due process of law.

            My refusal to endorse a Supreme Court decision imposing marriage equality on the states stems not from any prejudice against homosexuals, but a respect for the political process, and concern for the Constitution’s legitimacy, endangered by its persistent use in resolving contentious social ills.  The more we force the Constitution to take sides in our political debates, the more we risk fracturing the polity it constitutes irreconcilably.  It is cast in general principles, standing above the everyday political struggles that define our democratic order.