Marriage equality: A question of equality rather than liberty

Deborah Hellman is Professor of Law, and the Jacob France Research Professor, at the University of Maryland.  She is the author of When Is Discrimination Wrong? (Harvard Univ. Press) and several articles on discrimination and equal protection.  She is currently a Visiting Professor at the University of Virginia School of Law.

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Erwin Chemerinsky begins his contribution to this symposium with the following claim: “The Supreme Court will recognize a right to marriage equality for gays and lesbians; it is just a question of when.”  This term — “marriage equality” — suggests two distinct bases for such a decision.  First, emphasizing the term “marriage” in “marriage equality,” that same-sex couples have a fundamental right to marry, a right which includes the right to marry the person one chooses.  Second, emphasizing the term ‘equality” in “marriage equality,” that same-sex couples have a right to be treated as equals, with equal concern and respect by their government, a right which prohibits the government from providing different forms of recognition for same-sex unions than for opposite-sex unions.  The right to “marriage equality” asserts a liberty-based right and thus finds its home in the Due Process Clause of the Fourteenth Amendment.  The right to “marriage equality” asserts an equality-based right and thus derives from the Equal Protection Clause of the Fourteenth Amendment.  Dean Chemerinsky believes that Proposition 8 violates the Due Process Clause and that the Court should rely on it in striking down the California ban on same-sex marriage.

William Eskridge, by contrast, favors an equal protection-based ruling striking down Proposition 8, if the Supreme Court is to reach the merits at all, which he hopes it will not.  His preference for avoidance or what he terms a “narrower ruling” based on Romer v. Evans is grounded in pragmatic considerations, especially worries that if the Court affirms a fundamental right to same-sex marriage, this will lead to a political backlash.

In my view, both approaches are flawed.  Professor Chemerinsky is wrong to suggest that the Court should invalidate the law under the Due Process Clause and Professor Eskridge is wrong to suggest that if the Court decides the case on the merits, equal protection is to be preferred for pragmatic reasons.  Rather, the Court should rule that Proposition 8 is indeed unconstitutional, if it reaches the merits, but it should choose equal protection over due process for reasons of principle rather than reasons of policy.

To see why, consider the due process claim.  The plaintiffs in Perry argued that Proposition 8 violated their fundamental right to marry, citing Loving v. Virginia and Zablocki v. Redhail.  The extent to which these cases recognize a fundamental right to marry is not clear, as both can be explained in equal protection terms as well; still, the district court and plaintiffs must explain why this right to marry isn’t a right to marry someone of the opposite sex.  In order to do so, U.S. District Court Judge Vaughn Walker describes the evolution of the institution of marriage from a hierarchical and gendered one to the modern institution he finds today, a “union of equals.”  In the old marriage, the sex of one’s partner was important precisely because it determined one’s place in this hierarchical relationship.  Now that marriage is a union of equals, however, the sex of partners is no longer relevant.  On this basis, Judge Walker concludes that the “marriage” to which a person has a fundamental right is a partnership between two people rather than exclusively between a man and a woman.

While this all sounds eminently reasonable, pause for second to think about the reasoning.  Under this approach, the claim that same-sex couples have a fundamental right to marry depends on a court defining marriage in a particular way.  But should a federal court be defining marriage?  This isn’t simply a point about either federalism or separation of powers (important issues to be sure) but about the nature of constitutional principles used to invalidate legislation. For a court to strike down a state law on the grounds that the law is based on the wrong conception of marriage is, or should be, constitutionally troubling.  People understand marriage in very different ways.  Constitutional principles should aspire to be those that we can reasonably expect people with different views to be able to endorse.  To invalidate a state law on the grounds that it rests on the wrong conception of marriage is inconsistent with this aspiration, and unnecessarily alienating to those whose views of marriage it rejects.

The fact that the due process-based argument employed by Judge Walker rests on a particular conception of marriage isn’t an anomaly.  When the Court recognizes a fundamental right, it must define its scope.  A fundamental right to marry requires a definition of marriage, the values it enshrines and purposes it serves; a fundamental right to speech requires a definition of speech, supplemented by a similar theory of its scope, values, and purposes.  While defining rights is often unavoidable, as in the speech context, where a case can be addressed either through the Due Process Clause or the Equal Protection Clause, the Court has a choice between a route that requires a thick conception of controversial institutions (like marriage) or a route that relies on thinner constitutional principles.

Were the Court to strike down Proposition 8 because it conflicts with the Equal Protection Clause, by contrast, it need not define marriage.  Rather, it need only say that excluding same-sex couples from this institution, given its significance in our culture, sends the message that gays and lesbians are second-class citizens.  It is ‘practically a brand upon them, … an assertion of their inferiority” as Justice Strong said in Strauder v. West Virginia, speaking of the exclusion of African Americans from jury service.  I am not naively suggesting that opponents of same-sex marriage will agree that Proposition 8 sends this message.  Clearly they will not.  In this very symposium, Brian Raum argues that limiting marriage to opposite-sex couples sends a very different, non-demeaning, message.  People will surely disagree about this issue.  What matters, from a constitutional perspective, is what they are disagreeing about.  We can reasonably expect Mr. Raum, and other opponents of same-sex marriage, to accept the constitutional principle on which such an equal protection-based ruling rests: that the state must treat each person with equal concern and respect.

In a diverse society like ours, constitutional principles used to invalidate state or federal laws should, as far as possible, be those that people of very different views can accept.  While our diversity is indeed a strength, it is also a challenge.  The structure of our government best respects this diversity when the constitutional principles used to structure our relationships are ones that people with very different views could each adopt.  This traditional liberal approach animates the religion clauses of the Constitution, as well as recognition of some of our most cherished fundamental rights, like the right to free speech.  Thus, the Supreme Court’s decisions holding that the Constitution protects or requires X should aim to rely on principles of this kind.

For this reason, equal protection provides a better framework, normatively and constitutionally, to approach the issue of same-sex marriage.  Because a due process approach requires a court to define marriage and thus enshrine one constitutionally acceptable view of an institution that people view in significantly different ways, the court’s decision rests on principles that we cannot fairly expect people with different views to accept.  By contrast, equal protection analysis deploys a thinner principle: that the state must treat everyone with equal concern and respect.  While people will disagree about whether this principle is or is not violated by Proposition 8, this part of a court’s ruling is merely its interpretation of the best way to read or understand the California law, not a statement of constitutional principle.  The principle on which an equal protection approach relies is one that we can ask reasonable people with very different religious, ethnic or moral values to accept: namely that the state should treat each of us with equal respect.