By Tom Watts*
Today, on the anniversary of Lawrence v. Texas and United States v. Windsor, the Supreme Court declared in Obergefell v. Hodges that states that deny legal recognition to same-sex couples are violating the Constitution. Marriage equality is the law of the land. This is a victory for the gay rights movement, which has been fighting for the right to marry for over forty years. It vindicates the enormous tide of lower-court decisions over the past two years. This is a great outcome.
But I’m disappointed.
I’m disappointed because this could have been so much more. Yes, from this day forward, same-sex couples will be able to marry on equal terms as opposite-sex couples can, and this is clearly good. However, the victory today could have been a broad one, declaring a new protected classification that gives gays and lesbians the same constitutional protections that racial minorities have, or at least the same protections that women have, so that states couldn’t adopt discriminatory laws aimed at gay people. It could at least have been a strong, well-supported decision immune from criticism by the legal community because of its clear application of legal principles. It was none of these things. Instead, we have a decision that just says that states have to issue marriage licenses to gay couples who want them. Great, but… I feel let down.
Part of the problem is that Justice Kennedy’s opinion seems deficient in crucial ways. His logic appears to be, in essence, that the right to marry is a fundamental right under the Due Process Clause, so bans on same-sex marriage violate substantive due process. (He also gestures in the direction of the Equal Protection Clause, but it is not clear to me, nor, apparently, to Chief Justice Roberts in dissent, what he intends by these references.) The difficulty is that, as the Chief Justice’s dissent correctly points out, substantive due process is a dangerous weapon to wield. Substantive due process has been a means of protecting certain unenumerated rights, but in the hands of the wrong judges, this doctrine at times became a means of enforcing white supremacy and Social Darwinism. In the first opinion to apply substantive due process, the Supreme Court wrote that black people have “no rights which the white man was bound to respect.” It is important to find some way to rein in substantive due process in order to prevent it from becoming a force for evil, as it has been in the past.
One way that judges have sought to rein in substantive due process is by appealing to history — the unenumerated rights protected by substantive due process are those “deeply rooted in our nation’s history and tradition,” under one formulation — but the result of that effort in this case has been an embarrassingly poor discussion of ancient history, other cultures, and universal values. Justice Kennedy acknowledges that same-sex marriage has never been officially recognized in Anglo-American law until recently, but then he shrugs and gives four policy reasons it should be. This seems unacceptable. Substantive due process cannot simply be a means of constitutionalizing the policy preferences of a majority of the Supreme Court, or else it is so untethered that it may fall astray as it did before.
The Chief Justice’s dissent points all this out, but his approach is no better. His conclusion seems to be that the right to marry is limited to marriage “as traditionally defined.” But the definition of marriage has changed radically over time. Do we look to marriage as it existed in 1950? 1900? 1850? In which state? The Chief Justice comes closest to an answer when he suggests that Loving didn’t change the traditional definition, because the traditional definition wasn’t “a union of a man and a woman of the same race.” For this proposition, he cites an old law review article that says that there was no ban on interracial marriage at common law. (It seems probable that there was no ban on interracial marriage at common law because there was basically no racial diversity in England in the Middle Ages, so interracial marriage wasn’t really an issue when the common law developed, but his point is true nonetheless.) But the Chief Justice cannot seriously mean that the right to marry is the right to have precisely the same marriage as existed at common law. Marriage at common law included coverture; there cannot possibly be a right to coverture today.
Thus, Justice Kennedy’s unmoored substantive due process seems unacceptable, but Chief Justice Roberts’s effort to moor us to the common law seems much, much worse. This problem vexed the Justices at oral argument (consider Justice Alito’s line of questioning about Ancient Greece, linked above), but there was an answer that was in the air, though no one clearly articulated it. The crucial fact is that any comparison to historical marriage is simply irrelevant, because while it is apparently true that never before in Anglo-American legal history has same-sex marriage been officially recognized, it is also true that never before in Anglo-American legal history has there been marriage quite like marriage as it has come to be in the past few decades.
In particular, marriage was always a gendered institution after formation: there were roles for husbands, and roles for wives, and those roles were legally different. Until recently, the rights and responsibilities of a married woman and a married man were not the same. That has all changed. The right question to ask is not what the Greeks and Romans did (because marriage in antiquity was gendered, unlike marriage today), or what existed at common law in medieval England (because common-law marriage was gendered, unlike marriage today). The right question to ask is: now that we’ve eliminated all the gender differences after a marriage has been formed, so that a married man and a married woman are legally equal, is there any reason left to require a man and a woman in order to enter into marriage? Now that we have genderless marriage, is there any reason except prejudice against gays and lesbians that could possibly justify having gender requirements to enter into marriage?
The answer is no. Prohibiting gays and lesbians from marrying their partners of choice may or may not have made some sense when marriage was an altogether gendered and unequal institution, when coverture was practiced and when women were legally subordinate to men, but today, genderless marriage is the law, and there is no good reason to have gender requirements to form a genderless marriage. It violates the Equal Protection Clause of the Constitution to do so, because it’s both sex discrimination and sexual orientation discrimination (which are kind of the same thing here) without any basis except sheer animus.
This is what the Supreme Court should have held. Justice Kennedy could have given us a strong equal protection opinion (instead of his vague substantive due process opinion), and he could have declared a new suspect classification under the Equal Protection Clause in order to protect gays and lesbians well beyond simply letting them get married. But he didn’t, and I’m disappointed, even as I celebrate with all my gay and lesbian friends today.
* Tom Watts is a recent graduate of the JD/MPP program at HLS and HKS and is the outgoing Executive Online Editor of HLPR.
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