In what will surely be the two most closely watched cases of the 2012-2013 term, the Supreme Court must answer a question that no one would have dared to ask a generation ago: Do the restrictions on gay marriage at the state and federal level violate the United States Constitution?

In Hollingsworth v. Perry, the target of attack is California’s Proposition 8, approved by popular referendum, which adopts the definition of marriage “as the union of one man and one woman.” Critics argue that Prop 8 violates both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Illustration by Barbara Kelley

At issue in the companion case of United States v. Windsor is the Defense of Marriage Act, or DOMA, which was passed in both houses of Congress by comfortable margins in 1996. Its key provisions were intended as an artful compromise that allowed those states that wished to do so to adopt gay marriage laws. Yet, at the same time, DOMA contained two provisions that have raised hackles ever since.

Section 2 of the statute says that a state is not required to give full faith and credit to gay marriages performed in other states if doing so is against their own public policy. This was not a real innovation, but reflected the common view on how to settle disputes when the laws of two states are in conflict. Normally, the law of the state where the marriage took place controls, but that rule does not apply to marriages that are against the public policy of the state wherein the couple chooses to live. Unless that caveat is accepted, one state can dictate the marriage policy of the whole nation by validating gay marriages that other states would then be bound to respect.

Section 3 of DOMA tackled a different problem by defining marriage as “a legal union between one man and one woman as husband and wife” in matters of federal law, including the distribution of government benefits. One lesbian woman, Edith Windsor, was caught in the crosshairs of this provision when the federal government refused to allow her the benefit of the marital deduction, even though she and her spouse were regarded as legally married under New York law.

In examining the normative and constitutional issues, we can ignore the fine points of difference between Prop 8 and DOMA. Wholly apart from the law, there has culturally been a huge sea change in popular sentiment in the last several months, as many prominent personages, from Hillary Clinton to Rob Portman, have come forward supporting gay marriage, which now is poised to gain widespread public acceptance.

To libertarians, the fact that many people disapprove of gay marriage carries no normative weight. Gay marriage is a case where the legal norms would do well to get in line with social practices—but with one caveat. The libertarian norms are equally offended when the defenders of gay marriage insist that all private parties, including private religious organizations, be required to treat same-sex couples equally. That forced acceptance is not in line with the principle of freedom of association, and we would all be better off if both traditional and progressive groups respected the rights of others to live their lives as they please.

But is there agreement between this libertarian approach and the constitutional text? That question raises a rich irony in light of the sharp division between champions of originalism and champions of the living constitution.

Constitutional Originalism

A sound originalist approach on this matter looks to both text of the Constitution and the context in 1868, when the Fourteenth Amendment was passed. By that originalist standard, the constitutional case for gay marriage is dead on arrival for two related reasons.

First, it is clear that the Equal Protection Clause, which applies to all persons, was concerned chiefly with the administration of the criminal law. After the racial turmoil of the Civil War, it was no small achievement to insist that state officials (including the states of the Old Confederacy) not play favorites in deciding whom to prosecute. They could not target blacks for special punishment; nor could they turn a blind eye to any crimes committed against them.

The more extensive rights dealing with marriage or other economic and social relations fell outside of the realm of the Equal Protection Clause; they were subject to the greater protections afforded only to citizens under the “Privileges or Immunities” Clause of the Fourteenth Amendment, which says flatly, ”No state shall make or enforce any law abridging the privileges or immunities of the citizens of the United States,” which now included the free slaves.

The second reason is that even if marriage is treated as one of the privileges and immunities, it would be subject to the standard constitutional caveat of the so-called police power, which recognizes the power of the state to regulate the “safety, health, morals, and general welfare” of the community at large. The morals component has long imposed strong limitations on the role of individual choice, especially in marriage and other sexual relationships. The vicious extent of this prohibition became clear in Reynolds v. United States (1878) in which the Free Exercise Clause of the First Amendment was set up as a defense for the practice of polygamy, which prompted a fierce response by Chief Justice Waite for a unanimous court:

Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.

Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. 

It is a pipe dream to believe that any Court that took this harsh attitude toward polygamy, which was itself a traditional heterosexual practice, would have sanctioned gay marriage.

Indeed, the comprehensive state power over marriage in the late nineteenth century was well documented by Justice White in the bitterly contested and much reviled 1986 case of Bowers v. Hardwick, which found that it lay within Georgia’s police power to punish consensual homosexual sodomy between two adults in a private home. An anti-libertarian worldview suffuses every syllable of that majority opinion. Speaking for a five-member majority, Justice White wrote:

No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by the respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.

Then, for good measure, Justice White piles on:

Sodomy was a criminal offense at common law, and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. 

His message was clear: To the originalist, the wisdom of this legislation is not for the courts to decide. The modern sociologists, historians, and moralists may stay at home.

The Modern Approach

The only reason why Perry and Windsor are taking center stage is that the Supreme Court totally and emphatically rejected its earlier framework in the 2003 decision in Lawrence v. Texas, which, by a six-to-three vote, unceremoniously overruled Bowers. The moral authority of the state gave way to individualism and liberty. As Justice Anthony Kennedy wrote for the six-member majority:

Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.

Justice Kennedy’s position is a stunning reversal from the earlier definition of liberty that spoke of the liberty of every person “to earn his livelihood by any lawful calling.” The government may not criminalize “deviate sexual intercourse,” but it could constitutionally impose minimum wage requirements that kept ordinary citizens from getting jobs.

The question left on the table in Lawrence was just how far this new-found autonomy right would go. On that point, Justice Kennedy blinked. Although he insisted that “the State cannot demean their existence or control their destiny by making their private sexual conduct a crime,” he did not, at that time, reject the view that the state in question, Texas, had a legitimate interest in “preserving the traditional institution of marriage.” He left that question open for another day.

Has that day now come? Not according to Professor Michael McConnell, who has argued that the Court should decline to hear the gay marriage cases on the basis that the democratic process should be left to work through this issue on a decentralized basis. In his view, the Court should steer clear of the endless strife that arose after Roe v. Wade. Any decision on the merits, either way, will only enmesh the Court in a political debate. The refusal of either California or the United States to defend the constitutionality of its own laws offers the Supreme Court the golden opportunity to get out of the Perry case on standing grounds. McConnell likewise thinks that it should be possible to avoid deciding Windsor on the ground that our tradition always leaves the definition of marriage to state law.

I am far less sanguine about these strategic evasions. So long as someone is prepared to defend Prop 8, the Court will hear both sides of an issue that, after Lawrence, does deserve a resolution on the merits. In many places, the federal government offers its own definition of marriage for the distribution of federal benefits and other issues, such as dealing with conflicts of interest.

Beyond that, it would be odd to now reverse course and sing the praises of state’s rights after the Court’s decision to uphold Obamacare. I don’t think that the Court will, or should, sidestep two cases that deal powerfully with the issue of individual rights. A clean decision in favor of gay marriage ends this debate because there are no follow-on questions of implementation of the sort that would have happened on abortion, even if Roe had been decided the other way.

At this point, the question is whether Justice Kennedy is trapped by his earlier decision in Lawrence. I think that he is. The strongest case for striking down all barriers to gay marriage rests, I think, on the inability of the state to find any defensible rationale to insist on the same traditional definition of marriage that it rejected in the criminal sodomy cases. The key point here is that the state exercises a monopoly power in the use of the criminal law and in the granting of marriage licenses or tax deductions.

In the Prop 8 case, California uses that power to ban the relationship. In Windsor, the United States uses that power to deny some citizens tax benefits that only it can confer upon others. Once the morals argument is rejected, the correct view of the situation is that the state, as a monopolist, cannot discriminate among individuals that are otherwise equal before it in all relevant respects.

The major proposition derives from the standard rules of rate regulation in natural monopolies. The power of the state to control that relationship imposes a non-discrimination duty on the government. This odd intersection between gay rights and state power was brought to the fore in 1979 in Gay Law Students Association v, Pacific Telephone. The issue before the California Supreme Court started from this general proposition: “Since medieval times, the common law has imposed various obligations upon enterprises that exercise monopoly power to assure that such power is not exerted in an arbitrary or discriminatory manner.” This led the court to reject Pacific Telephone’s “alleged employment discrimination against homosexuals.”

Oddly enough, this fundamental proposition was misapplied in this case because the public utility does not have the same monopoly in its labor relations that it has in its delivery of telephone services. But the state surely has a monopoly in the case of marriage, to which the general proposition applies.

Choosing between Fidelity and Liberty

Under the current law, this prosaic argument goes a long way to diffuse the charge that the advocates of gay marriage are making up their case out of whole cloth. At this point, therefore, we come down with a split decision.

Writers like me are required to choose between an originalism that cuts strongly against any recognition of gay marriage, and a libertarianism that cuts equally strongly in the opposite direction. The side of me that embraces fidelity to the Constitution strongly hopes for a legislative solution that may be soon coming. That solution answers the concern that a new legal regime favoring gay marriage will be foisted on an uneasy public by an elitist Supreme Court that is unduly swayed by a small and determined faction whose political influence is far in excess of its social support.

But the libertarian side of me rebels at the intellectual incoherence of the traditional solution, and thinks that the same conception of liberty should apply whether the government is punishing crime or doling out benefits only the government can supply. That view leads to the necessary conclusion that both the California and federal law should be struck down in a forceful opinion that also overrules Reynolds with its impermissibly authoritarian view of religious liberty.

Though I am still uncertain of how I would come down in these two cases, in the interest of full disclosure, I did lend my help to the anti-DOMA team, which is being led by the ever-energetic lawyer Roberta Kaplan of the firm Paul, Weiss. But my equivocation on the case should not slow down Justice Anthony Kennedy. If he wants to maintain his own definition of liberty consistently, the author of the Lawrence opinion has to go the whole nine yards and come down in favor of gay marriage. Now, if he would only agree to return to the more general principle of freedom of contract embodied in Lochner v. New York as part of that decision, then it would indeed be a red-letter day for the Court.

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