Friday, January 23, 2015
Nothing in the Constitution, even read loosely, requires states to recognize same-sex romantic or sexual partnerships as marriages. Here are two pieces on that point.
First, an important Case Western Reserve Law Review piece by my former student and coauthor Sherif Girgis (available here). As Sherif shows, opponents of a judicial redefinition of marriage needn't be originalists, or conservatives in any sense of the term. For if the justices invalidates state laws enshrining the concept of marriage as a conjugal union, they will be following in the footsteps of a case that conservative and liberal scholars alike decry with something close to unanimity: Lochner v. New York. There, as Justice Holmes showed in what became a famous dissent, the majority was imposing its conservative economic policy choices over perfectly reasonable alternatives, without Constitutional warrant. The justices would be doing just that--but in the cause of imposing liberal social principles--if they were to strike down state marriage laws. In particular, Sherif shows in careful detail, they would be choosing between competing views of what marriage is and of why it ought to be regulated--views about which the Constitution says nothing at all.
To put it simply, I haven't seen a more comprehensive treatment (and demolition) of the Equal Protection argument against state conjugal marriage laws.
The piece was written for a symposium on Windsor, but (bracketing a section on federalism) its argument applies to state laws. It addresses the increasingly fashionable (albeit, as Sherif shows, untenable) sex-discrimination argument. It offers historical proof that the conjugal view can't be attributed simply to animus or any particular religion. It shows that the Court would have to Lochnerize (to strike down state marriage laws) even if it adopted the more capacious equal-protection tests proposed by scholars like my friend Prof. Andy Koppelman and Prof. Jack Balkin. It addresses objections based on infertility, right-to-marry case law (Loving, Turner, Zablocki), and much more.
As the nation gears up for a decision, of course, all eyes will be on Justice Kennedy, widely regarded as the swing vote on marriage. Kennedy has famously expressed concern that state marriage laws might unconstitutionally infringe the dignitary interests of children reared by same-sex couples. But that argument fails, as Sherif and I show in a second piece, an amicus curiae brief submitted in the course of Utah's marriage litigation. The brief is available here:
Here is a summary of our argument:
Moral claims of equal dignity, a child’s entitlement to a mother and father, and democratic self-determination can be appropriately assessed and settled in the normal political process and have been here by the people of Utah.
The Tenth Circuit believes that Utah’s marriage laws harm the personal dignity of same-sex couples and of the children they rear. But no one disputes their equal dignity. The Tenth Circuit's conclusion misunderstands the social purpose of marriage law, which never has functioned—and could never function—as a mechanism for expressing individual dignity or social inclusion. Accepting this view would have absurd logical implications and harmful effects.
First, it would deprive the State of any limiting principle for its marriage law.
Second, by dissolving the links between marriage and any historic marital norm besides consent, it would harm the state’s material interest in providing children with stable ties to their own parents. It would undermine their right to be reared by their own parents wherever possible--a right affirmed by the United Nations Convention on the Rights of Children.
Third, it could also thereby spread the stigmatic harms that children and partners of broken homes often suffer. And fourth, by reducing marriage to a primary mark of social inclusion and equality, it would—ironically—spread the very social message it was intended to oppose: that those outside the institution of marriage matter less.
In these ways, finally, it would deprive the People and the State of Utah of their own right to settle the purposes and contours of family policy for themselves--a right they can exercise, and have exercised, while respecting the social equality, and personal and romantic freedoms, of same-sex couples in full.