In this post I will take a look at the Due Process argument made in favor of SSM. Again, it is important to note that I am staunchly against this analysis (more so than the Equal Protection argument).
This isn't really the place to explain why I am against the concept of substantive due process. Suffice it to say that courts routinely use this concept to find rights that are nowhere in the Constitution in order to strike down laws they don't like.
In order to ascertain if SSM is a legal right protected by the Constitution, we must determine what type of rights are protected under the Due Process clause.
In one of more famous SC decisions, Griswold v. Connecticut, the Court ruled that a law prohibiting the sale of contraceptives to married couples is unconstitutional. Justice Douglas argued that a "zone of privacy" can be inferred from the penumbras of the various amendments that protect privacy. At the end he noted that,
"We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system."
Justice Goldberg in his concurrence mentioned that,
"the Due Process Clause protects those liberties that are so rooted in the traditions and conscience of our people as to be ranked as fundamental." (internal quotations omitted).
In Zablocki v. Redhail, the Court noted that the right to marry is "a central part of the liberty protected by the Due Process Clause." The Court also recognized that a state can only interfere with a fundamental right if the interference is "supported by sufficiently important state interests and is closely tailored to effectuate only those interests."
The most important question in this analysis is how we frame this issue. Do we say that when the law forbids John and Bill from marrying it is infringing on their general right to marry, or do we say it is preventing them from exercising their right to a same-sex marriage? In other words do we construe the right broadly and say that marriage is a fundamental right that encompasses SSM, or are advocates of SSM asking the court to create a new right of marriage?
The Hawaii Supreme Court in Baehr v. Lewin recognized that they were being asked to broaden the right to marry that is embedded in the right of privacy to include SSM. While ruling that the Equal Protection clause denies the state the ability to proscribe SSM without an important governmental objective, it expressly noted that under federal law SSM is not included in the fundamental right of marriage laid out in Zablocki.
However, a NY Supreme Court judge argued in Hernandez v. Robles, 2005 NY Slip Op 25057 that the state did not provide a rational interest for excluding SSM since the right whom to marry is encompassed in the right to marry. The Court viewed the right broadly and assumed the issue was about the right to marry generally.
Notwithstanding the equal protection analysis that I've attempted to deal with on this blog, the 14th Amendment does not require the state to recognize SSM. As I just explained, the debate comes down to how we frame the issue. I choose to recognize the former and agree with Baehr.
Like many other legal issues, as I've noted before, the judge has discretion of how to frame the issue. Originalists believe that when the court is looking at a right, it must try to find the original understanding of the proper level of abstraction. But in reality, there really is little guidance for the judge as to what level of abstraction to use.
In this case, though, we need to look at how we define the right to marry and see if it logically could encompass SSM. As I've argued before, marriage throughout history was a concept that could only apply to men and women because its primary basis was procreation. If one agrees with my analysis, marriage, at its broadest limits, could only be limited to members of the opposite sex.
One might argue that marriage should not be limited to that pairing. Maybe not. The proper question though is whether conceptually marriage has been limited to men and women. Does the institution of marriage include more than just men and women? If yes, why would such an arrangement come into existence? What interest was being served thousands of years ago when marriage was first envisioned?
Gabriel argued in this blog's comments section that the only thing stopping a person from suing on behalf of a tree he wishes to marry is the lack of rights afforded to trees by our Constitution. In the same comment he argues that the state defines the right to marry and can only exclude a person if it has a compelling interest (or governmental objective).
I can only see two possible explanations for what he is referring to (maybe there are more). One is that the government is granting a right to marry and cannot limit that right to only certain people without a legitimate reason. So using my man-tree example, the State has chosen to grant the right of marriage to humans but not to trees and since trees are not afforded equal rights by the Constitution, that classification is not a problem.
The problem with this argument is that it presumes we have no right to marry independent of the State's conferral of this right. This argument ignores the fact that the right to marry is included in the right of privacy, which, as Justice Douglas pointed out, is older than our Constitution and our states. In other words, the right would exist even independent of any laws.
The other argument is that the right precedes the State, but the government has a right to define the contours of the right insofar as it does not discriminate against people, who are protected by the Equal Protection clause. So in the man-tree example the government has limited the right to marry to encompass only humans and not trees. Conceptually though, trees could marry, but we do not allow them.
This argument, which is better than the first one and is more likely to be Gabriel's point, does not explain why society would create a right of marriage that could include anything. Why, in theory, would we make an institution that allows rocks and trees to marry? Until someone can explain this point to me, I'm going to stick to my understanding of marriage historically being rooted in procreation.
If marriage is rooted in procreation, it cannot include SSM, or man-tree relationships for that matter. Legislatively, we can expand the concept to include anything we want, because we are not required to define marriage based on procreation. But I'd rather leave that up to the people to decide rather than have the courts create this new right.