Just when liberals had begun to appreciate the virtues of federalism in the efforts to secure the right to same-sex marriage in states where the courts, legislatures and voters are most hospitable to it, the U.S. Supreme Court decided to hear an appeal from the Ninth Circuit's decision that held that California's Proposition 8 -- defining marriage as the union of one man and one woman -- violates the Equal Protection Clause of the U.S. Constitution.
Expect conservatives to make arguments against the court recognizing a federal constitutional right to same-sex marriage. Many will build upon arguments of Justice Scalia in dissents in Romer v. Evans and Lawrence v. Texas, the two landmark decisions protecting gays and lesbians. In research for our new book, Ordered Liberty, about same-sex marriage law, we expose five misconceptions in such arguments.
1. "The Constitution says nothing about a right to same-sex marriage and therefore does not protect it."
This argument misconceives the character of the Constitution, which establishes abstract principles like equal protection that do not enumerate the specific rights they protect. The Constitution "says nothing about" a right to interracial marriage, yet the Supreme Court properly interpreted equal protection and basic liberty to condemn laws denying that right, holding that the right to marry is "essential to the orderly pursuit of happiness by free men." Those same principles require extending the rights, responsibilities and protections of marriage afforded to opposite-sex couples to same-sex couples. The Constitution does not leave the legal definition of marriage entirely to the democratic processes.
2. "Recognizing a right to same-sex marriage will spell (as Scalia warned) the 'end of morals legislation' and put us on a slippery slope toward protecting a right to bestiality and incest."
Lawrence's recognition of a right to same-sex intimate association does not stem from rejecting traditional morals legislation as such, nor from accepting an "anything goes" right to choose one's sexual partner. The same is true of the Massachusetts Supreme Judicial Court's recognition of a right to same-sex marriage in the Goodridge decision. Instead, those courts extended rights already recognized for opposite-sex couples to their analogues for same-sex couples. They recognized that gays and lesbians seek rights to pursue the same moral goods that straights do: "commitment, mutuality, companionship, intimacy, fidelity, and family," as Goodridge put it.
3. "Courts have foisted the right to same-sex marriage upon the people. The people should decide this question, and they have consistently rejected same-sex marriage."
This certainly is not true after Nov. 6, 2012, when the people of Maine, Maryland and Washington adopted same-sex marriage through referenda. It was not really true before then. In the states where courts have recognized rights to same-sex civil union or marriage -- such as Vermont and Massachusetts -- legislatures already had extended numerous protections to same-sex couples and their children. Conservatives belie their argument for letting the people decide. When state legislatures pass marriage equality laws, they say voters should decide through referenda. Now that three states have embraced same-sex marriage through referenda, conservatives likely will argue that it should be decided through constitutional amendment.
4. "Courts protecting gays and lesbians from discrimination and recognizing rights to same-sex marriage have invented a novel standard of judicial review."
On this view, courts must either 1) recognize a fundamental right or suspect classification, triggering "strict scrutiny" that almost automatically invalidates the law, or 2) apply deferential "rational basis scrutiny" that all but automatically upholds it. In Ordered Liberty we debunk this myth. Justices Stevens and Marshall famously argued that, under the Equal Protection Clause, the Supreme Court instead has applied a continuum of standards. The same is true under the Due Process Clause. The California case, Hollingsworth v. Perry, did not apply a "novel" standard but followed the approach of Romer and Lawrence. It avoided recognizing a fundamental right or suspect classification, yet put teeth into its analysis of whether the law was rationally related to a legitimate governmental purpose -- holding that Proposition 8 instead manifested "animus" against or a rejection of the "worth and dignity of gays and lesbians as a class."
5. "If the Supreme Court invalidates Proposition 8, it will decide the question of same-sex marriage for the whole nation."
In fact, like Romer, Perry was decided on narrow, "minimalist" grounds. The Ninth Circuit stated, "We need not and do not answer the broader question in this case." California "had already extended to committed same-sex couples both the incidents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents." Applying Romer, the appeals court found the amendment unconstitutional because it was "left with 'the inevitable inference that the disadvantage imposed is born of animosity toward,' or ... mere disapproval of ... gays and lesbians as a class." Perry is thus a narrow decision that does not impose same-sex marriage on the whole nation.
Like many liberals heartened by the progress of the state-by-state campaign to extend same-sex marriage, we are concerned that the Supreme Court decided to review Perry. We believe our constitutional democracy would do better to proceed as it has, at least for the foreseeable future. The outcome may come down to the vote of one justice: Anthony Kennedy. Supporters of marriage equality should take some comfort from the fact that he wrote the opinions in both Romer and Lawrence.
Constitutional change typically proceeds slowly from one generation to the next. It took the Supreme Court 17 years to move from Bowers v. Hardwick (1986), rejecting a right to same-sex intimate association, to Lawrence (2003), protecting such a right. We hope it now will have taken the court 17 years to move from Romer (1996), invalidating laws reflecting animus or a bare desire to harm gays and lesbians, to striking down Proposition 8 in Perry (2013).
Boston University law professors Linda McClain and James Fleming are co-authors of Ordered Liberty: Rights, Responsibilities, and Virtues, about same-sex marriage law.