When the U.S. Supreme Court made same‐sex marriage the law of the land last month, did it create a “new right” as the dissents claimed?
Or is it rather, as some of us have long argued, that the Constitution protected that right for nearly a century and a half, like the right to same‐sex sodomy (Lawrence v. Texas), to interracial marriage (Loving v. Virginia), to sell and use contraceptives (Griswold v. Connecticut), to integrated public schools (Brown v. Board of Education), to educate one’s child in a parochial school (Pierce v. Society of Sisters), and, dare I say, to freedom of contract in employment (Lochner v. New York)?
Indeed, several conservatives wasted no time in pressing the distinction between what the law is and what the court says it is — aiming to justify the refusal by some state officials to enforce the court’s reading. That long‐standing enforcement issue won’t be resolved here.
But while Obergefell v. Hodges is still fresh in mind, we can shed a bit of light by looking briefly at the reasoning on both sides, neither of which was covered in glory. And it turns out that Justice Anthony Kennedy, toward the end of his opinion, stumbled on the truth of the matter, even if it’s unclear whether he fully noticed it. The basic jurisdictional difference between the two sides was over who decides. The regulation of marriage resting from time immemorial with the states, the four dissenters, in their separate opinions, would have left it there, letting states decide whether to recognize same‐sex marriage.
Citing several precedents, the majority rightly found that power limited by the 14th Amendment, however vague and incomplete its reasoning. Kennedy cited four “principles and traditions” that he believed made marriage a “fundamental right” under the liberty the due‐process clause protects, and those reasons, he argued, apply equally to same‐sex couples. But as Justice Clarence Thomas noted, that clause merely prohibits states from restricting one’s liberty. Same‐sex couples remain free to marry. What they want is the state’s positive recognition, and the entailed legal benefits.
Properly, then, Kennedy’s conclusion belongs not under the due‐process but under the equal‐protection clause. If a state recognizes marriage and affords its benefits, it cannot discriminate against same‐sex couples unless it has a very good reason, like absence of consent due to age or infirmity.
Such policy reasons as were urged in the dissents — promoting procreation, for example — will not avail. Nor may a state discriminate, as Chief Justice John Roberts would allow, based on a conclusory definition of marriage. But by merely touching on equal protection, Kennedy missed the mark, as did the chief justice. Roberts’ opening bromides about the separation of powers and judicial restraint aside, he directed most of his fire at the court’s mistaken due‐process argument. What little he said about equal protection, however, is instructive. Prior decisions expanding marriage — to interracial couples, for example — never challenged “the core definition of marriage as a union of a man and a woman.”
Thus our restrictive marriage laws don’t violate equal protection, he continued, because they are “rationally related to the states’ ‘legitimate state interest’ in ‘preserving the traditional institution of marriage.’ ” Alas, Roberts’ argument is conclusory and hence circular. What privileges that definition? Why not define “marriage” as, say, a mutual commitment concerning a personal relationship?
STRUGGLING WITH DEFINITIONS
Here and throughout these opinions the justices are struggling with definitions — most often appealing to purposes or policies to flesh out a “core” definition. And because the focus is mainly on rights protected under the due‐process clause, however off‐center in this case, the discussion turns to the court’s feeble 1997 effort in Washington v. Glucksberg to establish criteria for recognizing unenumerated “fundamental” rights pursuant to that clause’s protection of liberty. The Glucksberg decision said that the rights claimed must be “carefully defined” and “deeply rooted in this nation’s history and tradition.” But there’s the problem: If they’re deeply rooted, they’re likely already protected; and if they’re not, they’re likely not to get protected.
The judicial postures here are familiar. Save for enumerated rights, strict conservatives would allow state legislatures to limit liberty as they wish, albeit with due process. Loose liberals would urge judges to define liberty pursuant to evolving enlightened thought. Libertarians would encourage them to discover and define the natural rights that are implicit in the Constitution’s text.
As such, Scalia finds few rights under the 14th Amendment. And Roberts, pointing to the “discredited” Lochner court, railed that the court’s decision rested on the majority’s conviction “that same‐sex couples should be allowed to marry because they want to.” Is that a problem?
His misplaced argument aside, Kennedy at least put its finger on the definitional solution when he wrote that extending marriage licenses to same‐sex couples would “pose no risk of harm to themselves or third parties.” That’s right. And that’s true also of the parties in Lawrence, Loving, Griswold, Brown, Pierce and Lochner. What rights did state police power protect in each of those cases? The rights those laws violated are clear: The rights of the parties to come together “because they want to.” Is that a problem?