Same-Sex Marriage and Equal Protection

In the post I'll take a look at whether current state laws that limit marriage to only a man and a woman violate the Equal Protection clause of the 14th Amendment. In later posts I'll try to deal with the claim that they violate the Due Process clause and whether the legislature should expand the definition of marriage to include same-sex marriage (SSM). Although they overlap I feel I should try to focus on each point separately.

In the interest of total disclosure, I'd like to make clear that to me, the argument that follows holds no weight. I'm a textualist/originalist which means that I believe the Constitution should be interpreted according to its original understanding. That basically means that unclear constitutional provisions should be interpreted according to how they were understood at the time of their passing.

Jack Balkin argued on his blog that one of the theories the SSM advocates use to explain why opposition to SSM is unconstitutional is gender discrimination. For example if Mike and Susan both want to marry Bob, under the laws of most states only Susan can marry Bob. That is discrimination based on gender because Mike is prohibited from marrying Bob because of his gender. This discrimination would violate the 14th Amendment's Equal Protection clause because it limits who the two sexes could marry.

Balkin claims the disadvantage of this theory is that it frames the issue in a way that most people would look at as a sexual orientation issue. Most people would say that the reason Mike cannot marry Bob is because Mike and Bob are homosexuals, not because they are male.

Galois disagrees because he feels that sexual orientation is inherently linked to gender so discrimination based on orientation is just another way of discriminating based on gender. What we basically have is two different ways of framing this issue. We could look at it as gender discrimination based on my example above. Or we could look at it as discrimination based on sexual orientation. So the question is which way we frame it (Galois specifically argues that it can be framed both ways).

To me, it doesn't really matter. The original understanding of the equal protection clause is limited to discrimination based on race. The equal protection clause does not forbid discrimination based on gender because of that reason. And it obviously says nothing about discrimination based on sexual orientation.

Furthermore we need to understand how the Court applies the equal protection clause. The Court today uses a tripartite system, which creates three different standards of scrutiny.

Strict scrutiny is used when the classifications are based on race, religion, national origin, etc. For a statute to survive, the government must prove the statute serves a "compelling state interest" and "is narrowly tailored to fit that interest." This standard is usual fatal. See Grutter v. Bollinger.

Intermediate scrutiny is applied when the classification is based on gender. Here to survive the government only needs to show an "important governmental objective" that is " substantially related to achievement of that objective" See Craig v. Boren.

The rational basis test is used in all other cases. The government must merely show a rational basis for the law. When the Court applies this test, the challenged legislation usually survives.

The basis of this system is a footnote in United States v. Carolene Products Co. Chief Justice Stone argued that prejudice against "discrete and insular minorities" should give rise to higher scrutiny. But the question is how this standard should apply to discrimination based on gender. Neither men or women is an insular or discrete minority. They both have the ability to make changes through the political process. So why should we apply a higher standard of review? Gener issues should then be analyzed under the rational basis test.

But let's try to look at the issue based on the Court's finding in Craig and assume that discrimination based on gender should be subject to intermediate scrutiny. We're back to the problem of how to frame the issue.

How we frame the issue has a huge practical difference constitutionally. According to Craig discrimination based on gender is viewed under intermediate scrutiny. But at this point in time discrimination based on sexual orientation is merely analyzed under the rational basis test, which usually means the courts will refuse to strike down the discriminatory legislation. So framing the issue in terms of gender is imperative for advocates of SSM.

I admit that it could be viewed either way. But we need a reason to view it either way. Why would a government refuse to recognize SSM? Galois argues that opposition to SSM is about perpetuating gender roles. Because this is the goal, the discrimination is based on sex since that's the only way to insure that these gender roles remain.

But I think there's at least a compelling argument that the goal of the state is to prevent homosexuals from marrying. I can't speak for all the states but New York's Domestic Relations law does not specifically bar homosexuals from marrying, but requires marriage to have a husband and wife. The idea that homosexuals can marry never really came up. To the drafters of this law, marriage was between a man and woman. The idea of a homosexual bond was heretical to the extent that it was immoral. The view that homosexuality was immoral was obviously a prevalent view at that time.

An attempt to frame the issue this way should be afforded at least equal weight as the view that our laws are discriminatory on the basis of gender. If you look at the reasons why homosexuality was banned in the US for so many years, it had nothing to do with women's roles. Even in Lawrence v. Texas the majority specifically did not decide the issue on equal protection grounds. Rather, as Justice Scalia noted in his dissent, the Court rejected that morality could serve as a rational basis to forbid homosexual conduct. The issue then could properly be framed as one of morality. Should society's prohibition on SSM, which is rooted in its view of the immorality of the concept, be allowed? This conception is more logical than the idea that SSM is prohibited because misogynistic purposes.

But let's say we should frame it as discrimination based on gender and therefore subject to intermediate scrutiny. SSM adovates would then argue that it discriminates based on gender and should struck down. One rebuttal to this argument is that it imposes equal restrictions on both genders.

Galois argues that the Court in Loving v. Virginia struck down an anti-miscegenation law even though it imposed equal burdens. So we should similarly require the states to allow SSM.

This argument fails for two reasons.

One, the law struck down in Loving created a segregation rule that forcibly separated the two groups (Whites and everyone else). Here the effect of the law is to integrate the two groups. The reason why the Court applied strict scrutiny is because is believed that any racial classification could be indicative of racial animus and should be struck down.

But let's say the law had required all Whites to marry Blacks and vice versa. Would that law be struck down on the same grounds? Probably not. The reason why the Court applied strict scrutiny is because it believed any racial classification should be analyzed as though it is based on arbitrary and invidious discrimination. But a law requiring the two races to marry would have been designed to mix the two races and show one is not superior to the other. Hence it is unlikely the Court would have struck down such a law on the same grounds (although the Warren Court surely would have found such a law unconstitutional).

The truth is integration is far less constitutionally suspect than segregation. Galois argues that integration is just as suspect as segregation. Citing the recently decided case, Johnson v. California (ruling that requirements to segregate incoming prisoners violated the Equal Protection clause), he argued that the Court would just have easily struck down a law that required them to be integrated.

I disagree. The Supreme Court has allowed integration efforts, such as affirmative action, even if done by a public university. (see Grutter) Does anyone really believe that if the university had a policy that only allowed Whites the Court would have upheld it?

Sometimes the Court has even forced integration. The Supreme Court has required school districts to provide busing to insure that schools would be more integrated.

The second problem with this argument is the definition of marriage is between a man and woman. The reason for that is that when the law was passed the primary (if not sole) purpose of marriage was about procreation and child rearing. In Loving the point of the law was to promote racial superiority of whites and by extension maintain the racial inferiority of Blacks. Laws designed to promote racial superiority were found to be contrary to the Equal Protection clause. Blacks were denied the right to marry because of this bigoted social engineering project.

The situation here is different. We must try to understand what right is being denied. In Zablocki v. Redhail, the Court ruled that the right to marry is fundamental and supported by the right to privacy. But what is marriage? And what is that right being denied in this case? If the right to marry is merely the choice of any two people to form a legally binding, lasting relationship, then two males or females could not be denied that right. But since the primary function of marriage certainly has been since time immemorial for procreation purposes, marriage, by definition, is between men and women.

Could we define marriage in a broader vein? Sure, if we could explain how and why such a concept originated. In theory we could define marriage as a relationship between two people, or between a person and an object. Right now, people and trees are prevented from marrying under the laws of every state. Can we actually argue that the person who wants to marry a tree is denied his right to marry? Obviously not, because the institution of marriage was not created for that purpose. Perhaps we could call it something else, but it would not be a marriage. Maybe even the legislature could extend the definition of marriage to include man-tree relationships. But the Court cannot extend the definition of marriage to include something that does fall within the purpose of the institution.

Couldn't we just say that the law in Virginia before Loving was similar to the extent that marriage was defined as between Whites or between Blacks and that the court redefined the term? Not really. The problem with claiming that Virginia defined marriage that way is it needed to pass a law disallowing mixed marriages. The anti-miscegenation law created a penalty for "intermarrying." I would argue that the law did not change the definition of marriage as much as it created impediments between people who wished to marry. The law that was struck down was passed only in 1924. If marriage in Virginia was only between people of the same race, why would the state need to pass a law preventing mixed marriages?

Supporters of SSM will argue that the "marriage is for procreation" argument is wrong because we allow sterile and elderly couples to marry. The implicit idea is that marriage as defined by society must be broader because it includes people who cannot procreate. In other words, marriage is between two people and our laws have created illicit exceptions for SSM. If that's true, then the case is similar to Loving because in both cases arbitrary impediments were put up to stop people from marrying.

I think this argument misses the point. It's much more plausible that marriage is between a man and woman since I think everyone would agree that a primary purpose of marriage throughout the years was procreation. Marriage was therefore between men and women, two parties who could procreate the vast majority of the time. The law often does not create categories and then find exceptions to create limitations. So the question is whether the law should have created an exception and denied marriage to sterile couples.

One of the more difficult concepts in property law is the rule against perpetuities. Without getting into too much detail, the purpose of the rule was to prevent people from granting land to their heirs for eternity. One of the more interesting ideas in this rule is that we take it to its logical extreme. A classic case is the fertile octogenarian. For the purposes of this law we assume that even women who are well past child-bearing age can still have children.

Why did the law makes this assumption? I'm not sure. Maybe because it did not want to have to analyze every women's ability to procreate each time it construed a will. It would be very difficult and very invasive for courts to make this determination, so most likely courts just refused to do it.

I believe the same concept applies here. If each time people wanted to marry we required medical records to see if they can bear children, that would create a huge burden on the courts. This was certainly true before modern medicine. Therefore the legislature just decided to not make an exception for people who could not bear children and allowed basically any man and woman to marry.

Such is not the case with SSM. With sterile couples banning them from marrying is creating an exception to the general rule. With same-sex couples, they do not fall under the concept at all. Second of all, even if they did, there would be no burden on the courts because determining if a same-sex couple is capable of producing children is very easy and not invasive at all. Therefore an exception to the general rule would make sense.

On a last note, this analysis is limited only to the legal issues related the Equal Protection clause. Supporters of SSM argue that saying that marriage is by definition only between a man and woman is circular because we are assuming what we are trying to prove. Maybe that's true, but for the purpose of analyzing whether the courts should allow SSM on this ground, we must accept this definition because only the legislature has the power to make this change.