Symposium: Original meaning, public deliberation, and marriage equality

William N. Eskridge Jr. is the John A. Garver Professor of Jurisprudence at Yale Law School.

The Supreme Court’s decision to grant review of the four petitions challenging marriage exclusions for lesbian and gay couples in Michigan, Ohio, Kentucky, and Tennessee comes as no surprise.  The Sixth Circuit’s decision upholding the discriminations in DeBoer v. Snyder was in direct conflict with recent decisions from the Fourth, Seventh, Ninth, and Tenth Circuits.  Will the Court strike down the marriage discriminations in those states and recognize a constitutional right to marriage equality for lesbian, gay, bisexual, and transgender (LGBT) persons and their chosen partners?

Twenty years ago, in The Case for Same-Sex Marriage, I laid out what are now the standard doctrinal arguments for striking down such marriage exclusions:  because such laws deny a despised minority a fundamental civil right, they are questionable discriminations requiring strong public justification; because LGBT persons form marriages and families for the same kinds of reasons straight persons do, the prevailing justifications are inadequate.  In the twenty years since that book, more lawyers and judges have come to the view that sexual or gender orientation is a suspect ground for denying fundamental rights (including marriage), while the diminished band of the exclusion’s defenders has raised and then abandoned one justification after another. 

Federal judges all over the country (including dissenting Judge Daughtrey in DeBoer) have found these suspect classification and fundamental rights arguments persuasive – but I have noticed that the Supreme Court in general, and Justice Anthony Kennedy in particular, have not shown great interest in recognizing new suspect classifications or expanding upon fundamental rights analysis.  In sexual privacy and abortion cases and in many equal protection challenges, the Justices have steered clear of announcing strict or even heightened scrutiny yet have in practice subjected discriminations to “more searching forms of rational basis review” (as Justice Sandra Day O’Connor once put it) than they normally accord distinctions and regulations found in ordinary social and economic legislation.   Starting with his landmark opinion for the Court in Romer v. Evans and continuing through his recent opinion for the Court in United States v. Windsor, Justice Kennedy has subjected a variety of discriminations against LGBT persons to this kind of searching but unspecified review and has found them wanting.

Upon reflection, I believe that Justice Kennedy’s opinion in Romer provides the constitutional starting point, one grounded in the text and original meaning of the Equal Protection Clause.  Romer opened with a reminder that the Fourteenth Amendment’s original meaning was to bar class or caste legislation, including laws that discriminate against minorities, “not to further a proper legislative end but to make them unequal to everyone else.”  Judge Jeffrey Sutton’s thoughtful majority opinion in DeBoer invoked the original meaning of the Fourteenth Amendment but declined to engage with (or even acknowledge) Romer’s articulation of that original meaning.   In the marriage cases to be heard this Term, the Cato Institute (and other amici) will argue that original meaning strongly supports the equal protection challenges in these cases, a line of argument I wholeheartedly support.

Each state involved in the pending Supreme Court cases (Michigan, Ohio, Kentucky, and Tennessee) has adopted legislative and constitutional measures specifically targeting LGBT persons for exclusion from one of the state’s central institutions, namely, civil marriage.  Each has announced that exclusion of committed LGBT couples, many of whom are raising children within their unions, is so important that it is a matter of strong public policy to those states.  Indeed, two of the states have gone out of their way to exclude LGBT persons not just from civil marriage, but also from any other institution “similar” to marriage, which the Michigan Supreme Court has read so broadly as to include employment benefits for persons designated as “domestic partners” but having no other legal rights or benefits.

Read in light of each state’s historic persecution of LGBT persons in the mid-twentieth century, these targeted exclusions seek to perpetuate exactly the kind of class or caste legislation outlawed by the Fourteenth Amendment.   These are laws that discriminate against minorities, “not to further a proper legislative end but to make them unequal to everyone else.”

To be sure, the original meaning of equal protection does not prevent the state from making neutral distinctions that advance the public interest, and traditionally judges have given the state wide leeway to make policy judgments.  So the central question in these appeals will be this:  What public interest justifies the exclusion of this minority group from a central state institution like civil marriage?   Here, the evolution of the debate since The Case for Same-Sex Marriage has been most illuminating.

In 1996, many Americans, including members of Congress who spoke in favor of the Defense of Marriage Act (DOMA), advocated the permanent exclusion of LGBT persons from civil marriage because such Americans were said to be selfish, sex-crazed, predatory people incapable of committed relationships.  (By the way, there has never been a scintilla of evidence supporting these anti-gay stereotypes.)  Although some Americans still harbor such views, they have been discredited, partly by the success of marriage equality.  No reasonable person can doubt that LGBT people form committed relationships, raise children (quite capably), and contribute to their communities and their churches.  So why should they not be treated the same as everyone else with regard to civil marriage?

The more popular argument for exclusion in 1996 was one endorsed by the President of the United States, the Speaker of the House, and the Senate Majority Leader, all of whom were supporters of DOMA and were critical to its enactment.  The defense of marriage argument was that “homosexuals” might be nice enough, but allowing “them” into civil marriage would ruin that institution for everyone else.  However popular this argument was, it had a huge problem:  Why would marriage decline or collapse because LGBT people were welcomed into its fold?  Would straight people run away from the institution for that reason?  In 2006, Darren Spedale and I debunked this canard with empirical evidence from Europe in Gay Marriage: For Better or For Worse?  What We’ve Learned from the Evidence.  Soon enough, Americans could see for themselves that gay marriage in Massachusetts (2003-04) and other states did not undermine the institution.   This argument, too, has faded but not disappeared – and it has been succeeded by fresh justifications.

The most recent justification is the idea that the main point of marriage is to channel straight people, many of whom are prone to “irresponsible procreation,” into committed relationships, for the benefit of their irresponsibly procreated children.  Judge Sutton accepted a variation of this argument when he opined that it is not an invidious discrimination for the state to limit an institution to the people who would most benefit from its regulatory regime (i.e., the procreative straights, not the sterile gays).  One may find some solace in the fact that LGBT rights-denying rhetoric has moved away from demonizing “selfish predatory homosexuals” to demonizing “irresponsibly procreating heterosexuals.”   But this justification is no reason to deny access to a fundamental rights- and benefits-conferring institution (marriage) to consenting adults and their children who would benefit from it.

Indeed, Windsor rejected the defense of marriage and irresponsible procreation arguments as justifications for DOMA’s exclusion of same-sex couples from federal regulations and benefits.   Justice Kennedy’s opinion for the Court made the important point that family values cut against these discriminations:  DOMA’s discrimination against lesbian and gay parents “humiliates” the children now being raised by same-sex couples and “makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

So what argument is left for the states to justify their exclusions?   When substance fails the advocate, procedure is a last resort.  Following Judge Sutton, the states will argue that the issue of marriage equality ought to be worked out state by state.  If marriage equality is to come to the entire country, it is more legitimate that it arrive through democratic deliberation at the local level, rather than through a judge-announced constitutional rule.   Can this kind of federalism and democratic process argument trump the original meaning of the Equal Protection Clause?   Such a notion would paralyze constitutional law if openly accepted.

And, of course, we have seen this argument before – when Virginia defended its law barring different-race marriages in Loving v. Virginia.  For perfectly understandable reasons, the Supreme Court ducked this issue for a number of years, but when they decided the issue the Justices were unanimous that denying a fundamental right (marriage) to a minority without a neutral public justification violates the Fourteenth Amendment.  Loving looks a lot like the marriage equality cases pending now:  Virginia had always defined marriage to exclude couples like the Lovings; the exclusion was part of a larger caste system created by the state to denigrate its citizens of color; once it came under fire, the defenders of the exclusion raised one pretext after another (starting with natural law and religion, then science and responsible procreation, then tradition and custom); and by the time the Court acted more than two-thirds of the other states in the country had abandoned their exclusionary laws or practices.

The biggest difference between the same-sex marriage cases today and the different-race marriage case a generation ago is that public opinion in 1967 did not agree with the Court, while opinion today has shifted to support marriage equality for LGBT persons.  That shift has come through a deliberative process that has not only exposed the unpersuasive justifications advanced for the exclusion, but has demonstrated the importance of marriage rights for hundreds of thousands of families affected by the discrimination.  In my view, a majority of the Supreme Court will come to the same conclusion.