by Michael Dorf
In my latest Verdict column, I discuss bills in Alabama and other states that would eliminate the obligation of couples seeking to marry to obtain a marriage license from a state or local official. Although these proposals have been touted as a means by which states can evade the obligation to permit same-sex marriage, I note that they don't go nearly that far. They would abolish marriage licenses; they would not abolish marriage itself.
But what if a state were to abolish marriage as a legal status for everyone? Would that be unconstitutional? I first consider the equal protection objection. To evaluate that requires grappling with the extent to which Palmer v. Thompson remains good law. Palmer upheld Jackson, Mississippi's closing of all public swimming pools in response to the obligation to desegregate its public swimming pools. Although I think Palmer was wrongly decided on its facts, I argue that the general principle it articulated--that a facially neutral law adopted for a discriminatory purpose only violates equal protection if it also has a disparate impact--remains good law, at least for now.
My column next turns to the liberty claim. Obergefell v. Hodges rooted the right to same-sex marriage chiefly in the fundamental right to marry under the doctrine of substantive due process. Assuming that's correct, then denying the right to marry to everyone in a state would obviously be unconstitutional. But is it right? Justice Thomas argued in dissent in Obergefell that marriage is not an exercise of "liberty" in the same way that other fundamental rights are. Those other rights protect against government interference. The marriage right protects a right to state recognition. Given that we have a mostly classical liberal Constitution that protects negative rights, a fundamental right to marriage looks like an anomaly.
In the column, I suggest that an affirmative right to marry is not necessarily ruled out by the Constitution's text and that it would hardly be disruptive. States and their predecessors have recognized marriage for some people since colonial times. But my column concedes that it is technically an open question whether the fundamental right to marry would be violated by a law denying marriage to everyone.
Here I want to explore another possibility? What if marriage is a fundamental right "in equal protection?" To do so requires that we first examine that oxymoronic-sounding category of constitutional rights.
Under Supreme Court doctrine that is not always followed exactly but remains the basic framework, courts generally defer to legislative judgment. However, where a law employs a suspect classification (like race) or burdens a fundamental right (like the right to bear or beget a child) then heightened judicial scrutiny applies. Those two methods of triggering heightened scrutiny correspond to substantive due process and equal protection claims, respectively. There is, in addition, a third way to obtain heightened scrutiny that bridges liberty and equality, although it is technically speaking within the equal protection branch: Where a law discriminates (even on a non-suspect basis) in the burdens it imposes on fundamental rights, heightened scrutiny applies.
One account of the doctrine of fundamental rights in equal protection views it as a transitional doctrine that arose relatively early in the post-1937 era at a time when the justices were still traumatized by the Lochner-New Deal rulings, and so sought to deny that it was back in the business of substantive due process. In this view, there's no justification for an intermediate category of fundamental rights in equal protection: If a right is fundamental for substantive due process purposes, then all burdens on it--whether discriminatory or not--trigger heightened scrutiny; while conversely, if a law does not discriminate on the basis of a suspect (or semi-suspect) classification, then only rational basis (i.e., toothless) judicial scrutiny applies.
There is some historical accuracy to that critique. Skinner v. Oklahoma is a prime example. There the Court invalidated a law that required the sterilization of "habitual criminals." The Court first declared that the law infringed "one of the basic civil rights of man," noting that "[m]arriage and procreation are fundamental to the very existence and survival of the race." But rather than invalidate sterilization per se, Justice Douglas's majority opinion invalidated the penalty on the ground that it applied to blue-collar but not white-collar crime, an equal protection violation. Skinner has subsequently been cited as precedent in substantive due process cases, based on the quite logical assumption that the problem with sterilizing people as punishment for crime is an infringement on liberty, regardless of any distributional issues.
Yet even if some cases in which the Court has found a fundamental right in equal protection are better understood as recognizing substantive due process rights, there is a narrow category of rights that are sensibly understood as fundamental only for equal protection purposes. The three that one finds in the Court's doctrine are voting, travel, and court access. Here's how my casebook co-editors and I explain a fundamental right in equal protection with respect to voting: "A city may not need to allow anyone to vote for candidates for mayor. If the mayor were chosen by an elected city council, no constitutional issue would arise. But if a city has mayoral elections at all, the rules allowing some residents to vote, while denying the vote to others, would trigger strict judicial scrutiny."
To be clear, when Justice Kennedy describes marriage as a fundamental right in Obergefell, he uses the language of substantive due process. But as I note in the column, neither Obergefell nor the prior marriage cases actually involved a blanket denial of the right to marry; they were all cases in which the marriage right was distributed unequally. And it is notable that even if the Court was wrong to treat the right against forced sterilization as fundamental for equal protection purposes only in Skinner, the Court did identify marriage specifically in that case. So there is at least precedent for calling marriage (at least) a fundamental right in equal protection.
Finally, reconceptualizing marriage as a fundamental right in equal protection would make more sense of Justice Kennedy's discussion of the "synergy" between liberty and equality in Obergefell. Chief Justice Roberts in dissent in Obergefell complained that the synergy idea was "difficult to follow." I disagreed with that point, but I also think that the majority opinion in Obergefell would have been stronger still if it had said that regardless of whether there is a freestanding substantive due process right to marry, marriage is at least a fundamental right in equal protection.
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The "synergy" discussion of Obergefell v. Hodges to me was far from surprising and this was seen in many opinions where equality & liberty mixed, so much that at times some justices used one, one or more justices the other to decide the very case. But, somewhat unfair bashing of Kennedy opinions is something that people on all sides appear to favor these days.
Obergefell v. Hodges spoke ala Lawrence v. Texas about the individual liberties that have been protected in our constitutional tradition. At this point, many of the things for which marriage was a monopoly (including cohabitation, sex, raising children [illegitimate children once given the offense term "bastards"] etc.) is also enjoyed by the non-married. But, traditionally, only marriage brought these things. And, these were "negative liberties" in some ways -- e.g., the average person could be arrested for fornication, sex with one's spouse was protected. So, I found Thomas' dissent unconvincing.
The right to marriage had more bite. And, since conservatives find constitutionally protecting those rights to the unmarried questionable, for them it really should have bite.
The right to marry still brings forth various rights and privileges including entry to a ready-made long recognized institution with a special cachet. Testimonial immunity particularly comes to mind. A few find this a bad thing, wanting to restructure marriage as a whole. But, that's a small group. So, though I agree with the text here, the voting example a good one, it is largely theoretical.
Perhaps the right to marriage is more properly viewed as an unenumerated right from the 9th or 10th amendment, rather than from substantive due process or equal protection. Not being a legal scholar, it sometimes seems to me that substantive due process is just another way of saying unenumerated rights.
Substantive due process is used to apply the First Amendment and Second Amendments to the states via the Due Process Clause of the Fourteenth Amendment, so it does apply to enumerated rights. These are not merely rights of fair procedure, but substantive protections.
The Ninth Amendment does provide grounds to go further than enumerated rights & three justices in Griswold v. Connecticut, for example, expressly said so as applied to the right to marry. The Ninth Amendment was also cited for that point by the Supreme Court to uphold the right to choose an abortion. But, many do think the Ninth Amendment can merely work on its own.
If a state were to really get out of marriage all-together, what would be the effect of the full faith and credit clause or possibly the commerce clause on recognition of marriages performed in other states?
In particular: Would testimonial immunity still exist for those married in other states? Would individuals married in other states still be able to claim married status on their federal taxes?
I ask because another thing that a state could do is to remove all effects of marriage, thus making a marriage meaningless from a legal perspective, even if the state were forced to recognize it.
Some would argue that the right to gay-marry is fundamental. Others respectfully disagree. But no one has ever articulated where a distinction is drawn in the Constitution between fundamental and non-fundamental rights, or how judges can reliably tell the difference.
Madison would have found the distinction nonsensical. In introducing his draft of our Bill of Rights to the House of Representatives, he explained that he consciously avoided attempting to enumerate all the rights retained by the people, arguing that
….by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution. [1 Annals of Congress 456 (1789) (remarks of Rep. Madison).]
The clause Rep. Madison refers to reads as follows:
"The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.” [Id. at 452.]
This is the Rosetta Stone for interpretation of our modern-day 9/10Am. While the Ninth doesn’t create rights, it is a constitutionally mandated canon of construction, prohibiting judges from interpreting the Constitution in any manner that would "deny or disparage [unenumerated rights] retained by the people," U.S. Const, amend. IX, and the Tenth is an express reservation of powers to "the States respectively, or to the people." Id. amend. X. As such, government can only infringe upon those rights that were willingly relinquished by the people, and only when needed in order to discharge its legitimate duties as our authorized agents.
The Footnote Four approach to rights jurisprudence relegates the 9Am to the dust-bin of history—-invoking the ethereal concept of substantive due process to specially protect only rights which judges deem as being “deeply rooted in this Nation's history and tradition,” e.g., Moore v. East Cleveland, 431 U.S. 494, 503 (plurality opinion), or somehow "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937). Courts require a "careful description" of the asserted “fundamental” liberty interest, Reno v. Flores, 507 U.S. 292, 302 (1993)—an engraved invitation to an orgy of judicial discretion. In turn, it has the noxious effect of elevating some rights to the exalted status of ‘fundamental’ while disparaging and denying others, thereby doing violence to the plain meaning of the Ninth Amendment. Barnett, Lost Constitution at 254. It creates no principled rule of decision, as the outcome of any given dispute is more a function of the judge’s personal predilections than anything else. It describes the law as it is, but not why it is as it should be.
Constitutionally, we never get to that question. Marriage is simply a contract; states can only impair that right and then, only for good cause shown.
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