The state briefs in the pending SSM cases have been filed by the representatives of Kentucky, Michigan, Ohio, and Tennessee. They include a predictable mix of three arguments: (1) restricting marriage to heterosexuals serves the rational, non-animus-y interest in addressing the evils of accidental procreation; (2) changes in the institution should come, if at all, through democratic means; and (3) the traditional institution of marriage does not encompass same-sex couples. Needless to say, I'm not persuaded, and I very much doubt that the SCOTUS will be. But prompted by the particulars of the state briefs on point (3), I want to note a very brief follow-up to my March 16 post regarding the brief that Professor Tribe and I submitted, in which we argue that, in addition to striking the challenged laws on equal protection grounds, the Court ought to strike them on the ground that they violate the fundamental right to marriage.
All four of the state briefs cite Washington v. Glucksberg for the proposition that the Court must be careful in how it defines the fundamental rights it recognizes. That's fair enough, I suppose. Not only Glucksberg but other cases as well describe the enterprise of recognizing fundamental rights as rooted in history and tradition. But what the state respondents apparently mean is something more radical: That the plaintiffs' claim should be rejected because the right to marriage traditionally did not include the right to same-sex marriage.
Glucksberg does not authorize the maneuver attempted by the state respondents in the SSM cases. In Glucksberg, the plaintiffs sought a right of the terminally ill to assisted suicide. The Court rejected that formulation as too narrow, substituting instead a broader formulation (which the Court then rejeted). Chief Justice Rehnquist wrote: "the question before the Court is more properly characterized as whether the 'liberty' specially protected by the [Due Process] Clause includes a right to commit suicide which itself includes a right to assistance in doing so." That is nearly the opposite of the move the state respondents urge in the SSM cases: characterizing the right as too broad, substituting instead a narrow formulation (which they urge the Court to reject).
The idea that the asserted right should be narrowed and then compared with historical traditions was expressed most clearly by Justice Scalia, but only for himself and the late CJ Rehnquist, in footnote 6 of Michael H. v. Gerald D. The Ohio brief cites that footnote once for another proposition and also cites another footnote of Michael H., carefully avoiding expressly relying on footnote 6--but the care is unavailing because it's obvious that Ohio and the three other state respondents in fact are making the footnote 6 argument. That argument has been repeatedly rejected by the full Court, as Professor Tribe and I note in our brief.
But we're hardly the only ones to note in the context of marriage that the Court's precedents reject reliance on tradition narrowly defined. As Judith Schaeffer explained on Slate last week, then-Judge John Roberts said the same thing at his SCOTUS confirmation hearing.