01/23/2013 05:44 pm ET Updated Feb 02, 2016

Liberty, Equality and the End of Marriage Discrimination

"I trust the Constitution," Edie Windsor told BuzzFeed reporter Chris Geidner in an interview for his recent profile of the 83-year-old whose lawsuit challenging the constitutionality of Section 3 of the Defense of Marriage Act will be heard by the Supreme Court this March. "Sometimes there's a mistake, but mostly we move forward. I think we're going to win just because I think justice will prevail. Is that crazy?"

Edie Windsor's faith in the Constitution is well-placed, I think, and a sign of how long-term her thinking about the marriage equality issue is: In the end it isn't really the Supreme Court or even one specific case that will determine whether LGBT Americans are provided with full equality; it is the Constitution, a document that holds within it the possibility of future equality even if the generations before ours would never have read it that way. To borrow an idea from the great Walt Whitman, the U.S. Constitution contains multitudes.

But this is 2013, not some unspecified and more enlightened year of the future, and the U.S. Supreme Court will be asked this March what the Constitution has to say about Proposition 8, the Defense of Marriage Act and marriage equality in general. And as Jon Davidson, legal director of Lambda Legal, writes at the law blog Balkinization, 2013 is a fitting year for the court to answer these significant questions of liberty, equality and marriage, because it is the year when we mark the 40th anniversary of Roe v. Wade and the 10th anniversary of Lawrence v. Texas. In fact, in a rather remarkable display of cosmic timing, the Supreme Court will hear oral arguments in the Prop 8 case, Hollingsworth v. Perry, on March 26, exactly 10 years to the day after the arguments in Lawrence, arguably the most significant LGBT legal decision in American history.

As Davidson points out, liberty and equality are not the same, and while the Supreme Court could reach for either legal principle in a ruling declaring Prop 8 unconstitutional, the principle that it ends up choosing could matter a great deal. The two gay couples who filed the Prop 8 suit in a Northern California district court in 2009 (along with the American Foundation for Equal Rights, the case's sponsor, and Ted Olson and David Boies, their attorneys) made two distinct arguments that Prop 8 violated the Constitution's 14th Amendment. One of these arguments was a liberty argument: Prop 8, they wrote in their complaint, infringes upon same-sex couples' fundamental right to marry by limiting them to the "separate and differently named 'domestic partnership' relationship," thereby "stigmatizing gays and lesbians, as well as their children and families, and denying them the same dignity, respect, and stature afforded officially recognized opposite-sex family relationships." The second charge was an equality argument: Prop 8 violates the principle of equal protection under the laws because it discriminates on the basis of sexual orientation and sex. Opposite-sex couples may marry while similarly situated same-sex couples may not; men may marry women, but women may not, and vice versa.

While both of these arguments are persuasive, the Supreme Court need only rely on one in a determination that Prop 8 is unconstitutional; for instance, although the California district court judge struck down the law on both due process (liberty) and equal protection (equality) grounds, the Ninth Circuit Court of Appeals chose to base its decision only on the equal protection argument.

Davidson's piece connects the liberty/equality dualism presented by the Prop 8 case to Roe and Lawrence before it, noting that Roe was decided by the Supreme Court on liberty grounds (specifically, the right to privacy) even though the plaintiffs in the case presented equality arguments based on sex discrimination. Likewise, in Lawrence, the court focused principally on liberty precedents as opposed to the equal protection arguments raised by the plaintiffs, writing that "[e]quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects."

Over at Towleroad, Brooklyn Law School instructor Ari Ezra Waldman engages in some Supreme Court tea leaf reading and asks whether we can glean anything instructive from the specific questions posed by the court to the plaintiffs in the certiorari grants for Hollingsworth (the Prop 8 case) and Edie Windsor's DOMA case (known as Windsor v. USA). Through his close reading, Waldman determines that the court has deliberately worded the questions presented quite broadly to allow itself the most latitude for its eventual decisions; in other words, there's not much there to help us attempt to predict the way the court may come down in either case.

However, he does point out that the question presented in the Prop 8 case only references the Equal Protection Clause of the 14th Amendment, and not the Due Process Clause -- no indication that the court will not end up addressing due process during oral arguments or in its eventual decision, but still a sign that "may indicate that the Court is most interested in the equal protection implications and maybe less interested in whether marriage is a fundamental right," Waldman writes.

Why does this matter? Because it is significant that there exists more than one constitutional provision that points toward full marriage equality regardless of how the Supreme Court resolves the issue this spring. This line of thinking perhaps applies less to the Windsor case or any of the other challenges to DOMA, which present a fairly straightforward equal protection violation: Some duly married couples (opposite-sex ones, to be precise) are afforded certain rights and recognition by the federal government while other duly married couples (same-sex ones) are not. This isn't a matter of liberty rights; it's a matter of equality rights -- and, it could be argued, a fairly straightforward one, which is why some legal observers believe that a Supreme Court decision to strike down DOMA as unconstitutional could end up being more lopsided than the oft-mentioned 5-to-4 divide between the court's conservatives and its liberals plus Justice Anthony Kennedy.

In the Prop 8, case, though -- and in the marriage equality debate in general -- there are equally valid liberty and equality arguments for why same-sex couples should be allowed to marry. Of course, the questions that the court has presented point to a focus on the equality argument, as does the calculus of the equal marriage movement as it stands in 2013: If there is a fundamental right to marriage equality in the Constitution's liberty provisions, that right would have to extend to same-sex couples across the nation -- and not just those in California but those in Mississippi and Michigan, as well. That would be a provocative move for the Supreme Court to take, which is not to say that it won't, but it seems far more likely the court will rely on a narrower equality argument if indeed it chooses to declare Prop 8 unconstitutional.

But even if the court does base its ruling on the Constitution's equal protection provisions but limits its effects to California, or indeed if it decides that Prop 8 does not violate the Constitution, the broader liberty argument for the freedom to marry will still be available for a future court case to establish equal marriage nationwide. Just as there were equality arguments in the Roe and Lawrence challenges that were not included in the court's final decisions, the liberty argument for marriage equality will remain an option even if the court declines to address it when it considers Prop 8.

In this vein it's worth remembering that Loving v. Virginia, the landmark case that ended marriage discrimination against interracial couples in the U.S, was decided on both liberty and equality grounds. In that ruling, written by Chief Justice Earl Warren, the Supreme Court held that Virginia's anti-miscegenation law violated both the due process and equal protection provisions of the 14tg Amendment, writing that "marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."

Many observers following the Windsor and Prop 8 cases -- including me -- remain skeptical that the court (as it is currently composed) is prepared to issue a Loving-esque decision in the Prop 8 case that would establish marriage equality nationwide. That would mean foisting equal marriage on many states where the body politic simply is not ready to make that change. It seems far more likely that Prop 8 will be declared to violate the Equal Protection Clause in its irrational attempt to strip California's same-sex couples of the rights their opposite-sex counterparts enjoy.

Which brings me back to Edie Windsor. When I mentioned at the beginning of this piece that I believe Edie's faith in the Constitution is well-placed, I wrote so precisely because the Constitution's myriad protections provide us with several routes to full equality. In all likelihood the victories we may win before the Supreme Court this year will be based on the Constitution's equality protections. But although the current of progress may sometimes run frustratingly slow, as Edie puts it, "mostly we move forward."

Someday the Supreme Court will rule that all American citizens, regardless of their sexual orientation, have a fundamental right to the personal liberty of marrying the partner of their choosing.  And on that day the Constitution, with its multitudes and its many layers of complexity, a document that has been used to perpetuate wrongs but has ultimately proven itself a dynamic and powerful protector of what is right, will be the reason.