Same-sex Marriage Preview IV

By Tom Watts*

This is the fourth and final post in a series of blog posts previewing some of the conceptual questions that may appear in the same-sex marriage oral arguments on Tuesday. Part I is here, Part II is here, and Part III is here.

In the previous three posts, I discussed the ways in which the Supreme Court might analyze the validity of the state same-sex marriage bans under the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs also argue that the bans violate the Due Process Clause of the Fourteenth Amendment. In this post, I will turn to that issue.

As an initial matter, one might fairly ask, “What on Earth does same-sex marriage have to do with ‘due process’?” The answer is somewhat tortuous. The Due Process Clause provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” These words might be read to say that a state could deprive a person of liberty, such as the liberty to engage in same-sex intercourse, as long as it goes through the right processes. The Supreme Court held otherwise, though. The Supreme Court has decided that some liberties are so fundamental and traditional (perhaps because they are “implicit in the concept of ordered liberty” or perhaps because they are “deeply rooted in our nation’s history and tradition”) that a state cannot deprive people of them regardless of the process used. (As Justice Scalia pointed out in dissent in Lawrence, the Court sometimes recognizes a “fundamental right” under the Due Process Clause and then applies strict scrutiny to any law burdening that right, but because few laws survive strict scrutiny, this approach comes to nearly the same thing as that described in the previous sentence.) This is termed “substantive due process,” a phrase that has been compared to the phrase “green pastel redness” for its oxymoronic quality.

If it sounds as though the concept of substantive due process has little to recommend itself, that may be true, but a series of decisions from Roe v. Wade (and its more recent counterpart) to Lawrence v. Texas have taken substantive due process to be a guarantee of a kind of bodily autonomy and control over personal intimate decisions and relations. Some of the most progressive decisions of the Supreme Court have been under the rubric of substantive due process.

For this case, the most relevant aspect of the autonomy right guaranteed by substantive due process is the right to marry, recognized in 1967 in Loving v. Virginia. Loving struck down the interracial marriage bans that existed throughout the South at the time. (In one of the ironies of history, Justice Thomas vocally opposes substantive due process and is in an interracial marriage that might still be illegal if not for the Loving decision.) The plaintiffs argue that the same reasoning ought to apply here as in Loving: the liberty involved in the right to marry includes the liberty to choose your partner, and the government can’t take that away from you.

Plaintiffs have the advantage that Loving already recognized a right to marry. However, one difficulty that the plaintiffs face with this argument, although it didn’t come up as plainly as it might have in the briefs, is that they need some limiting principle. The Supreme Court is not going to be willing to say that the Constitution requires recognition of plural marriages, for example. How can we say that a gay person can marry whoever he wants but a polygamist can’t?

In an earlier Notice & Comment post, the Virginia Solicitor General suggested that the answer was stare decisis: the Supreme Court upheld a polygamy ban in 1879, and the Court doesn’t like to overturn its old decisions. This has some force, but it seems unsatisfying. After all, when developments in the law undermine an existing precedent — and a broad recognition of a fundamental right to marry would do so — then the Court may well overturn an old decision.

The plaintiffs appear to take on the issue of the breadth of the right on page 12 of one of their briefs (among other places). Their answer is that “a fundamental right does not belong exclusively to those who have historically enjoyed it.” It’s not clear that this is true; interracial marriage has much more of a history in the United States than same-sex marriage does. More to the point, though, it still has no limiting principle. How do we know the scope of the right, then, if we unmoor from history?

In contrast to what I have done with many of the other conceptual difficulties that the plaintiffs face in this case, I have no answer to suggest here. I do not know how to use substantive due process to declare a right to marry that includes same-sex marriage but not polygamy. It’s worth noting that the federal government’s brief does not put forward the substantive due process rationale at all.

It’s also worth noting that polygamy is much easier to distinguish from same-sex marriage under the Equal Protection Clause. Being gay is a property of the person, but being polygamous is a property of the relationships. There are people who are able to form romantic relationships only with persons of the same sex (gay people), but there are no people who are able to form romantic relationships only with multiple people at the same time. One can be gay and single, but one can’t be polygamous and single. This goes to the “immutability” prong of the heightened scrutiny analysis discussed in a previous post, so there need not be heightened scrutiny for discrimination against polygamists.

I think this question is very likely to come up at oral argument, so it is worth watching for the plaintiffs’ lawyer’s response. The way she answers, and the way the Justices respond, will give some idea where the Court may land on the substantive due process issue.

* Tom Watts is a fourth-year JD/MPP student at HLS and HKS and is the Executive Online Editor of HLPR.

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