Preamble

Many people know that I. and I used to talk and argue about this matter, especially around the time that U.S. Supreme Court was convening for sessions on the Obergefell v. Hodges case. Throughout, we revisited many precedent decisions made by the Court as well as those by the lower-courts that culminate in this high-profile lawsuit. Thanks to I., I learned a great deal about the constitution of this nation and the idiomatic antithesis of the letter and spirit of the law. That said, it wasn’t until a few months ago did I find this book titled Same-Sex Marriage and the Constitution by Evan Gerstmann when I was working on my real job (a.k.a. theoretical scientist) in the law school library. Though I’m not a legal expert or commentator, I took the liberty to make a summary of this inspirational tome which I’m about to share with the audience of this blog. Before you start to read, here’s the disclaimer– this summary excerpts heavily on this book and the Court decisions cited. The itemized format is more of my working, and it only reflects the logic I followed when navigating the many cases pertinent to this discussion, especially those confounded by arcane legal terms and maxim. On top of that, I might have inadvertently embeded my personal opinion here and there. For this reason, I suggest readers take what I said with a grain of salt. Finally, this summary does not indicate or represent the view of the author on the subject matter.

(I) Introduction: key cases

• In 1993, Hawaii supreme court ruled that the ban on same-sex marriage most likely violated the equal protection guarantee of the state constitution.

• In June 2003, U.S. Supreme Court overruled Bowes v Hardwick and struck down Texas’ homosexuality sodomy statute in Lawernce v. Texas (2003).

• In 2004, highest court of MA ruled in Goodridge v. Department of Public Health that there’s no “constitutionally adequate reason for denying civil marriage to same-sex couples.”

• In United States v. Windsor (2013), U.S. Supreme Court struck down the Defense of Marriage Act (DOMA), which denied federal recognition of same-sex marriage.

(II) Reason and Prejudice

• In the 14th amendment, there are two clauses pertinent to Obergefell v. Hodges: Equal protection of the law and due process of the law. Justice Kennedy wrote that they converge to define the contour of marriage equality and other rights. He also relied heavily on the notion of immutability— that gays and lesbians can’t change their sexual orientation.

• The three-tier framework of equal protection: Supreme Court subjects laws under three level of scrutiny that varies in strictness. The stricter the scrutiny is, the more likely the supreme court is to strike down such law.

1. Strict scrutiny: under this, a law will be struck down unless it is “narrowly tailored to further a compelling interest.”

2. Intermediate scrutiny: To withstand such scrutiny, a law “must serve important governmental objectives and must be substantially related to the achievement of such objective.”

3. Rational basis scrutiny: The challenged law must be rationally related to a legitimate governmental interest.

• Reasons often cited to support heterosexual marriage:

1. Moral disapproval of homosexuality Bare decision to harm an unpopular group is not a rational basis for any law. Key cases that justice Kennedy drew upon: U.S. v. Windsor, USDA v. Moreno. Indeed, none of the four states defending their various bans on homosexuality used any leverage by invoking moral disapproval.

2. Definition, tradition, and religion: In the Obergefell case, justice Roberts cited several authoritative dictionaries on the definition of marriage to argue that marriage is “by definition” dual-gendered. Dissenting arguments in the category has intuitive appeal to many people, but none of which qualifies itself as a rational reasoning to support the monopoly of marriage to heterosexual couples. Definition is arbitrary, and it should be interpreted not purely based on the literal meaning of the words chosen but the spirit it embodies. Respect for tradition is a reason for caution, not stasis. Respect of religion should be applied equally, not just to those who are against same-sex marriage.

3. Natural laws

4. Promoting an optimum environment for procreation and child rearing

5. Caution about changing an important institution

(III) Looking for stricter scrutiny

• Can the court subject the laws that discriminate based on sexual orientation to heighten scrutiny based on the minority status of gays and lesbians (i.e., suspect class)? To qualify such heightened protection, gays and lesbians must establish the following:

1. They have suffered a history of discrimination

2. They are defined by an immutable characteristic

3. They are politically powerless, and therefore need extrajudicial protection

4. Homosexuality is a characteristic that does not bear upon their ability to contribute to society.

• In practice, this is hard to establish, especially the notion of “immutability” and “powerlessness”. In fact, the Supreme Court has not found any group to be a suspect class since after the mid-1970s.

(IV) Fundamental right to marry

• The Court has long held that Constitution protects numerous “fundamental rights” that are not explicitly stated therein; sometimes they are called “unenumerated” rights.

• “Substantive due process”: a principle in U.S. Constitution that protects certain fundamental right from government interference, even if procedural protections are present or not explicitly mentioned elsewhere in the Constitution.

• This principle was ushered into both state and federal judges since after the laissez-faire capitalism reached its zenith in the 1890s.
• The three cases that reached the Supreme Court regarding the fundamental right to marry [all relied on the principle of substantive due process on the unenumerated right.]:

1. Loving v. Virginia (1967): The Court invalidated laws prohibiting inter-racial marriage, which, in this case, refers to the anti-miscegenation statue and the Racial Integrity Act of 1924 of Virginia. Note that the ruling was unanimous.

2. Zablocki v. Redhail (1978): The Court held that Wisconsin Statutes §§ 245.10 (1), (4), (5) (1973) violated the Fourteenth Amendment Equal Protection Clause. Section 245.10 required noncustodial parents who were Wisconsin residents attempting to marry inside or outside Wisconsin to seek court order before receiving a marriage license. To obtain such order, non-custodial parents shall not be in arrears on their child support, and that the court has to believe that the child(ren) would not become the burden of the State. [Fundamental right to marry]

3. Turner v. Safley (1987): The Court ruled that Missouri prison’s regulation that restricts inmates from getting married without permission violates their constitutional right to marry.

(V) Same-sex marriage and the fundamental right to marry

• In the Obergefell dissent, Justice Roberts conceded that

  There is no serious dispute that, under our precedents, the Constitution protects the right to marry and requires states to apply their marriage laws equally.” The question is, therefore, why same-sex marriage is not included in the fundamental right to marry?

• Three explanation that have been proffered to exclude same-sex marriage:

1. Rather than being a primary right, marriage is merely a predicate of the right to procreate and raise children in a traditional family setting.

2. The ability to have children is at the core of marriage.

3. Marriage is, by definition, dual-gendered.

• Why these arguments cannot survive analytic scrutiny?

1. The right to marry is a primary right?

• The right to marry is a derivative of reproductive right ignores the development of both sets of rights. In Meyer v. Nebraska (1923), the justice averred that marriage was “without a doubt” among the liberties protected by the Fourteenth Amendment. In Skinner v. Oklahoma (1942), the Court explicitly expounded that “marriage and procreation are fundamental to the very existence and the survival of race.”

• Justice Marshall: Marriage is

essential to the orderly pursuit of happiness by free men…the most important relationship in life, an association that promotes bilateral loyalty…among the personal decisions protected by the right to privacy.

• Marriage is not a derivative of the right to bear children and to raise them in a traditional family is delineated in Turner, which ruled that felons have their right to marry, even though they’re serving their sentence.

1. Children as the Sine Qua No of marriage?

• Justice Alito’s dissent in Obergefell endorsed such assertion:

[Kennedy’s] understanding of marriage, which focus almost solely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.

• Many dissenting arguments have made up standards out of thin air. For example, it is nonsense that state would allow incestuous marriage as long as they cannot produce children and then tell same-sex couples that they cannot get married because they cannot have children.

• The legal provision cannot justify allowing only dual-gendered couples to marry, as it is the result of the fact that only dual-gendered couples are allowed to marry. The argument that only dual-gendered couples are allowed to marry because only them can have children is a tautology.

1. Marriage as dual-gendered by definition?

• Mark Strasser

The argument is fallacious insofar as it implies that the legislature is itself not responsible for the legal definition of marriage or insofar as it implies that definitions can escape judicial scrutiny. (Strasser, 1995)

• Does the right to marry apply to polygamous marriage? Is Obergefell going to push us down the slippery rope to constitutionalizing a right to polygamous marriage? Need to address two questions:

1. Whether there’s a strong argument that the fundamental right to marry that protects both heterosexual and homosexual couples also applies to polygamous marriage?

2. If there is, is there real harm that would stem from allowing polygamous marriage so that the state has a compelling interest in preventing them?

• The Obergefell Court identified four reasons that marriage is a fundamental right and held that all of the following reasons apply to same-sex couples:

1. “the right to personal choice regarding marriage is inherent in the concept of individual autonomy”

2. “A second principle in the Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals”

3. “Marriage also affords the permanency and stability important to children’s interests… that gay and lesbians can create loving, supportive families;” and

4. “marriage is a keystone of our social order… There’s no difference between same- and opposite-sex couples with respect to this principle”

• The Court majority did not see its decision as extending to polygamy.

• Reason 2 is certainly not the issue for it is concerning the two-person union.
• Reason 1 doesn’t apply either. The ban on same-sex marriage violated the autonomy of gays and lesbians by preventing them from getting married at all. The Obergefell majority specifically cited the immutable nature of sexual orientation:

Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.

Telling gays and lesbians that they had a right to enter a loveless heterosexual marriage does not further or respect their autonomy. On the other hand, there’s no evidence that there exists an innate orientation for polygamy.

• There is empirical evidence that polygamy is often harmful to women and children, see, for example, one of the most authoritative statistical studies conducted by Dr. Rose McDermott of Brown University at the request of the attorney general of British Columbia in Canada. This establishes that Obergefell decision is extremely unlikely to apply to polygamy under Reason 3 and 4.

• The argument presented in this part is nothing more than straightforward conclusions that logically stem from the constitutional protection on the fundamental right to marry. To recap,

1. There’s a well-established, fundamental constitutional right to marry that is not limited only to childbearing couples.

2. There’s no reason why this right does not apply to same-sex couples.

3. The fear that this right could open doors to the constitutionality of polygamy is over-exaggerated.

• In gist: The central argument is that the constitution has, does, and should protect everyone’s right marry the person on his or her choice. Gays and lesbians are not asking for a special right, but a right that heterosexuals have long been granted and protected by the constitution: the freedom to marry. This allows gays and lesbians to frame their arguments in terms of equality instead of difference, in terms of aspiration instead of victimhood.

(VI) Should court create new rights?

• Supreme Court justices have long been unable to articulate a consistent theory to explain which rights qualify as fundamental. Furthermore, they are unable to even to settle upon what part of the constitution they are ostensibly interpreting when they declare something to be a fundamental right. Sometimes the Court find fundamental right in the Due Process Clause of the Fourteenth Amendment, sometimes it finds them in the equal protection clause; sometimes it cannot agree upon the source.

• The Court has vacillated among at least four tests. Justices have asked:

1. Whether the law “is deeply rooted in this Nation’s history and tradition,” as they did in Moore.

2. Whether the right is explicitly or implicitly protected by the Constitution?

3. Whether the right is “implicit in the concept of ordered liberty.”

4. The Court has said that the delineation of fundamental rights is a matter of “reasoned judgment.”

• Lochner v. New York (1905): The Court ruled that New York’s regulation of the working hours of bakers was not a justifiable restriction on the right to freedom of contract under the Fourteenth Amendment’s guarantee of liberty.

• What follows is the so-called Lochner era: from 1897 to 1937, the Court is said to have made it a common practice to “strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies,” by using its interpretation of substantive due process to strike down regulations on economic liberty and private contract rights.

• Fundamental rights are best understood as an essential part of equal protection clause rather than due process clause. One reason to argue that equal protection clause is most suitably interpreted as protecting certain fundamental rights is the crucial requirement that these rights be protected equally for all people.

• Note that due process clause appears in both the Fifth Amendment and the Fourteenth Amendment. The Fifth Amendment says to the federal government that “no one shall be deprived of life, liberty or property without the due process of the law.” The Fourteenth Amendment, ratified in 1868, used the same sever words to describe the legal obligation of all states.

• Nonetheless, in Obergefell, chief justice Kennedy chose to ground the fundamental right to marry in both the equal protection and due process clause:

The right of same-sex couple to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet, in some instances, each may be instructive as to the meaning and reach of the other. In any particular case, one Clause may be thought to capture the essence of the right more accurately and comprehensively, even as the two Clauses may converge in the identification and definition of the right. This interrelation of the two principles furthers our understanding of what freedom is and must become.

• [Equal protection and the necessity of substantive right] The concept of equal protection of laws inherently requires substantive content to have meaning as a constitutional principle.

• Peter Weston has ably demonstrated that “equality” cannot have real meaning without a system of substantive right. Thus, while there’s virtual unanimity on the goal of legal equality, this goal cannot be pursued meaningfully without reference to some substantive values beyond those expressed in the text of the Constitution. However, some questions remain: Is it reasonable for this substantive content to include the right to marry? If so, should it be broad enough to include same-sex marriage?

(VII) Identifying fundamental rights

• Continuing on the questions raised in the previous part, here’s one attempt to set forth a plausible account of what that interpretation might look like and whether it should include the fundamental right to marriage. Four factors are set out for identifying non-textual fundamental rights:

1. Precedent

2. Relation to existing established rights

3. Whether the right in question grants protection against governmental monopoly power

4. The political question doctrine.

• Let’s examine these criteria one by one:

1. Precedent:

• A pragmatic approach to equal protection must begin by recognizing that the Court will never be starting with a constitutional tabula rasa.

• The rule of stare decisis– that the Court follows its own precedents– is fundamental to the judicial process.

• Keith Whittington: “judges should not assume their infallibility.”
• The Court also spelled out four “prudential and pragmatic” reasons for which it might ignore stare decisis:

We may ask whether the rule has proven to be intolerable simply in defying practical workability, whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.

1. Relation to other rights:
   • Meaningful protection for established rights sometimes requires protections of other rights. For example: NAACP v. Alabama (1958) [freedom of association derived from First Amendment], Shahar v. Bowers (1997)[First Amendment, freedom of expression and religion]

• Even if there were no precedents for a fundamental right to marriage, the freedom of expression, of association, and of parental control over the upbringing of children would strongly point to such a right. The Court has consistently protected decisions about we structure our family lives so the right to marry fits well with the rights discussed above.

1. Consideration of “Monopoly”:

• When the government acts as a ‘monopolist’ then the due process constraint is properly applied to balance the power of the government over the individual’s life.

• Courts should be (and often are more willing to) apply increased scrutiny to governmental decision making when the decision affects a benefit over which the state has monopoly. For example, Massachusetts v. Murgia (1976) and Bell v. Burson (1971).

• The court implied that it considered itself in the business of balancing the importance of a right to an individual against the state interest furthered by the law.

1. The political question doctrine:

• Justice William Brennan spelled out the elements of the decision in his opinion in Baker v. Carr (1962). A controversy involves a political question when one or more of six criteria are met:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncement by various departments on one question.

• The Court has elaborated a doctrine that nicely spelled out the factor distinguishing between legal and political questions. Legal questions are the legitimate province of the Court while political questions are that a reserved for the politically accountable branches of government. “Political question” doctrine is superior to the vague formulations justices have usually offered about due process and equal protection. Unfortunately, the doctrine has rarely been used by the Court to limit the type of cases upon which it is entitled to rule substantively.

• This doctrine is irrelevant in the case of same-sex marriage for this is never a political issue. For the reasons discussed above, it is apparent that a decision requires value judgment does not make it a political question; virtually all decisions regarding the Bill of Rights and other fundamental rights involve value judgment.

• Public opposition cannot be an objection to judicial action; many of what are considered the finest moments of the Court came in the face of virulent popular objection.

(VIII) Democracy, Neutrality, and Consistency of Principles

• A major theme in the dissenting opinion in Obergefell was the anti-democratic nature of this decision. Roberts opinioned: “The courts accumulation of power does not occur in a vacuum. It comes at the expense of the people and they know it.” Justice Scalia joined:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases in the furthest extension in fact – and the furthest extension one can even imagine – of the Court’s claimed power to create “Liberties” the Constitution and its Amendment neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

(IX) Principles and Practicalities: The Road to Same-Sex Marriage

Postamble

Obergefell v. Hodges (2015)

Argued April 28, 2015 Decided June 26, 2015

The Court held that:

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex, and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. United States Court of Appeals for the Sixth Circuit reversed. Baker v. Nelson overturned.