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.”
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.
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. . . .