By Michael C. Dorf
Since the Supreme Court’s 2013 decision in United States v. Windsor, invalidating Section 3 of the Defense of Marriage Act, a clear majority of lower courts to hear challenges to state laws forbidding same-sex marriage have found for the plaintiffs. Some state executive officials—like those in New Jersey and Pennsylvania—graciously accepted defeat and did not appeal. Some—like those in Virginia—saw the light and became vigorous advocates for the rights of their gay and lesbian citizens.
But other state officials sought relief in the highest court in the land. They asked the Justices to stay the orders that allowed same-sex marriages to go forward, claiming, inter alia, that if the Court were ultimately to rule against a right to same-sex marriage, it would be very difficult to unwind the marriages that occurred in the interim. Last fall, the Court denied the stay applications, thus sending a very clear signal that at least five Justices intended to recognize a right to same-sex marriage when the issue came before them.
And now the issue is before the high Court. In light of the Court’s refusal to block the thousands of interim same-sex marriages, it is essentially a foregone conclusion that the plaintiffs will prevail in the cases consolidated under the caption Obergefell v. Hodges. The remaining question is how the Court will reach that conclusion.
There are essentially four options. First, the Court could conclude that the justifications offered for the same-sex marriage bans are so weak that they are not even rational—and thus fail the most forgiving test in constitutional law. Judge Richard Posner’s opinion for the U.S. Court of Appeals for the Seventh Circuit in Baskin v. Bogan provides a template for this approach. Responding to the argument that same-sex marriage bans somehow address the problem of accidental procreation by heterosexuals, Judge Posner snarkily observed: “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”
Second, the Court could hold that sexual orientation is a suspect or semi-suspect classification analogous to race or sex, thus requiring heightened scrutiny. Because the same-sex marriage bans are not even rational, a fortiori they fail heightened scrutiny.
Third, the Court could follow the path it blazed in Loving v. Virginia, in which it struck down a state ban on interracial marriage on equal protection grounds but added a separate and independent basis for the ruling: marriage is a fundamental right. Just as laws that discriminate based on the race of a spouse violate that right, so do laws that discriminate based on the sex of a spouse.
Fourth, the Court could follow the approach set out by Justice Kennedy in his majority opinions in Romer v. Evans, Lawrence v. Texas, and Windsor, which eschew formal reliance on the doctrinal boxes of suspect classifications and fundamental rights, instead evaluating the bans against the Constitution’s core guarantees of equality and liberty. As in those earlier landmark rulings, so in Obergefell, the Court could be expected to reject the challenged laws as inconsistent with the dignity of gay and lesbian Americans.
Which path is best? There are advantages and disadvantages to each. Because LGBT Americans continue to face discrimination outside the context of marriage, I would like to see the Court apply heightened scrutiny to sexual orientation distinctions—and thus I have joined with other constitutional law professors in filing an amicus curiae brief urging that approach. Other signatories include Harvard Law Professors Frank Michelman and Laurence Tribe.
But as recognized by Loving and other cases, it is not necessary to choose between equality and liberty. The Constitution protects both, and while there are circumstances in which these values can conflict, they are not generally zero-sum. As Justice Kennedy explained for the Court in Lawrence, “[e]quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.”
Accordingly, in addition to the amicus brief urging heightened scrutiny under the Equal Protection Clause, Professor Tribe and I have filed another amicus brief just on our own behalf, urging the Court to find that same-sex marriage bans violate the fundamental right to liberty as well. In that brief, we respond to an argument made by Judge Paul Niemeyer in his dissent from the Fourth Circuit ruling for a right to same-sex marriage in Bostic v. Schaefer: that the Constitution protects a fundamental right to heterosexual marriage because, until recently, government had not sanctioned same-sex marriage.
Judge Niemeyer’s argument attempts to revive an approach to fundamental rights that Justice Antonin Scalia has advanced for a quarter century but that his colleagues have decisively and repeatedly rejected. Relying in part on an argument set forth in our 1990 article Levels of Generality in the Definition of Rights and our 1991 book On Reading the Constitution, Professor Tribe and I explain in our brief that defining fundamental rights in terms of narrow historical traditions does not achieve the objectivity claimed for this approach, because there is no single dimension or direction to tradition. More basically, as cases like Loving illustrate, specific historical traditions may themselves be inconsistent with the Constitution’s protection of equality and liberty.
Justice Kennedy (for whom I was a law clerk in 1991-92) is sometimes criticized for the soaring rhetoric and doctrinal unorthodoxy of his most important opinions. But when it comes to minority rights, the criticisms miss the mark. Our most fundamental constitutional commitments—found in Section One of the Fourteenth Amendment—sought to uproot America’s original sin: slavery. But what was slavery, if not the negation of both the equality and liberty of enslaved African Americans? The boxes are artificial; Justice Kennedy’s rhetoric rings true.
By recognizing the thread that ties together the plaintiffs’ equality and liberty claims in Obergefell, the Court would be honoring our country’s most important tradition—the tradition of moving our practices closer to our constitutional values.
Michael C. Dorf (HLS class of 1990) is the Robert S. Stevens Professor of Law at Cornell University Law School. This essay also appears on his blog, Dorfonlaw.org.