Same-sex marriage symposium: Time for an answer – does the Constitution require same-sex marriage?

The following contribution to our same-sex marriage symposium comes from William C. Duncan. Mr. Duncan is director of the Marriage Law Foundation and filed an amicus brief in support of cert. in Hollingsworth v. Perry.

Does the United States Constitution require a redefinition of marriage to include same-sex couples?

The U.S. Supreme Court answered that question in the negative forty years ago in a summary opinion. It is now being asked to revisit the question and, presumably, offer more detail. The Court should accept the invitation but stick with the original answer.

It is important to emphasize that the simple question posed at the outset of this essay is actually the simple question the Court needs to address in deciding whether to take and how to dispose of the challenges to California’s marriage amendment (Proposition 8) and to the federal Defense of Marriage Act. This fact needs emphasis because the lower-court decisions that the Court would be reviewing have attempted to obscure this reality.

The First Circuit’s DOMA opinion is premised on the theory that adding up invalid legal claims (Congress has no power to define federal terms; sexual orientation classifications deserve heightened scrutiny) can result in a valid claim under extra-strength rational basis review.

A number of the trial court decisions on DOMA have posited a sort of reverse Supremacy Clause, by requiring Congress to defer to state law in determining what terms used in federal law will mean. (A test, moreover, not used in other legal contexts such as immigration or Social Security.)

In the Ninth Circuit decision invalidating California’s Proposition 8, the majority advanced another novel theory: if a state court holds that the state constitution requires same-sex marriage and the legislature has provided all marriage incidents to same-sex couples, and the people of the state enact an amendment to the constitution defining marriage that does not reject the alternative legal status for same-sex couples, then the amendment is unconstitutional. (Perhaps the majority had discovered a hitherto-unknown Mistimed Amendment Clause in Article I.)

Notwithstanding this panoply of theories, all have one important element in common. Each holds that the government is not justified in retaining in the law the understanding of marriage as the union of a man and a woman. As a result, each court concludes, the challenged marriage laws violate the Constitution. So, at their core, these cases present the very simple question of whether the Constitution creates a positive obligation for the national and state governments to redefine marriage.

Behind the arguments about congressional power to determine the meaning of the laws it enacts or whether a state that provides benefits to same-sex couples is actually more culpable than a state that provides no recognition, is this foundational matter of what the Constitution requires. The Defense of Marriage Act and the California marriage amendment are being challenged because neither allows for the redefinition of marriage as the close relationship of any two adults. It’s just that simple.

There are plenty of reasons the Court should answer this question now, answer it directly, and answer it by reaffirming the ability of the people of the United States to preserve in their laws the social institution of marriage as the union of a husband and a wife.

The most obvious reason is that the lower-court opinions impugn the motives and actions of the people of California and of the United States who have, directly or through their representatives, enacted the laws being challenged. The Constitution does not, of course, allow citizens and legislators to act without restraint in making law, but it only hampers their ability to do so when their judgments as to what the law should be violate a clear constitutional command, not an ad hoc theory.

The varieties of novel theories that have been put forward to cast doubt on the constitutionality of marriage laws provide another reason for the Court to take the case and reject the claims. These holdings are unanchored by constitutional text or precedent and likely will create unnecessary confusion as courts try to apply them in other settings (if indeed they can be understood as anything other than results-oriented jurisprudence for the same-sex marriage question).

Advocates of same-sex marriage understand that whatever the legal theory, the result is marriage redefinition. As already noted, the majority in the Ninth Circuit’s Perry v. Brown decision went to some pains to issue a ruling that purported to affect only the “unique” California marriage amendment. Lawyers challenging Hawaii’s marriage amendment (Jackson v. Abercrombie) still argued that it applied to that case even though the challenged amendment was starkly different from California’s:  it allows the state legislature to decide the marriage question and was enacted five years before any state had same-sex marriage and over a decade before Hawaii offered all the incidents of marriage to same-sex couples. The Perry decision was similarly invoked in a challenge to DOMA in Dragovich v. Department of Treasury, also not a close analogue to Proposition 8. The plaintiffs in a new challenge to Nevada’s marriage amendment have also cited Perry.

Despite the varying theories of the lower courts, there is a common theme – that retaining the husband-wife definition of marriage is unconstitutional because the choice to do so can only be motivated by animus. If this is true of DOMA and Proposition 8, what would stop advocacy groups from suing to establish that the same is also true of Oregon’s marriage amendment or Michigan’s or of the provision of DOMA that allows states to choose not to accord recognition to out-of-state same-sex marriages, or indeed of any state law that does not endorse same-sex marriage? The history of the litigation now before the Court suggests they will be able to find sympathetic judges willing to accept such claims, no matter how implausible.

Failing to reverse the lower courts in the DOMA and Proposition 8 cases will ensure that every state’s marriage law (and likely the interstate recognition portion of DOMA) will be subject to challenge on federal constitutional grounds as courts are asked to extend these holdings in increasingly broader ways (as language in those opinions seems to invite).

The previous right-to-marry cases all raised questions about how far the state could go in regulating marriage. The cases the Court is now being asked to consider this Term have a much different aim – to establish a positive duty for the government to change the understanding of the social institution of marriage. This is a departure from our understanding of what the Constitution is for – to restrain government overreach rather than to provoke it. This too suggests the need for the Court to take these cases and correct the fundamental misunderstanding of the courts below.

Allowing the decisions redefining marriage to stand also would create a circuit split. In Citizens for Equal Protection v. Bruning, a challenge to Nebraska’s marriage amendment, the Eighth Circuit held that the  amendment “and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.”

Cases challenging the marriage amendments in Hawaii and Nevada, piggybacking on the Perry v. Brown decision, could result in a requirement for the states in the Ninth Circuit to recognize same-sex marriages, while those in the Eighth Circuit would be specifically assured of the constitutionality of the choice not to do so.

The core question has been squarely raised: are the citizens of the United States allowed to retain the understanding of marriage as the union of a husband and wife in their laws or does the U.S. Constitution contain an unwritten mandate to redefine marriage?

The answer to that question implicates questions of social policy, self-governance, constitutional meaning, and more. There’s no reason for the Court to hesitate in answering that question now and to answer it in a way that vindicates (1) the core social purposes of marriage in connecting children to their mothers and fathers, (2) the ability of the people of the United States to make judgments about matters of deep public concern, and (3) the principle that our Constitution is to be respected on its own terms, not manipulated to produce outcomes that seem expedient in the short term.