Memo
to Supreme Court: State Marriage Laws Are Constitutional
Abstract
There is nothing in the U.S.
Constitution that requires all 50 states to redefine marriage. The only way one
can establish the unconstitutionality of man–woman marriage laws is to adopt a
view of marriage that sees it as an essentially genderless, adult-centric
institution and then declare that the Constitution requires that the states
(re)define marriage in such a way. In other words, one needs to establish that
the vision of marriage our law has long applied is wrong and that the
Constitution requires a different vision. There is, however, no basis in the
Constitution for reaching that conclusion. Marriage is based on the
anthropological truth that men and women are distinct and complementary, the
biological fact that reproduction depends on a man and a woman, and the social
reality that children deserve a mother and a father, and states have
constitutional authority to make marriage policy based on these truths.
Over the past year, four federal
circuit courts—the Fourth, Seventh, Ninth, and Tenth Circuits—have ruled that
the states and their people lack the ability under the federal Constitution to
define marriage as it has always been defined: as the legal union of a man and
a woman.[1]
In their breathtaking sweep, those four rulings are reminiscent of the U.S.
Supreme Court’s now-discredited decision in Dred Scott v. Sandford,[2]
which likewise limited the people’s right to decide an issue of fundamental
importance: whether their representatives in Congress had the constitutional
authority to abolish slavery in the federal territories.[3]
Last fall, the Supreme Court allowed
those four circuit decisions to go into effect, thereby overriding the votes of
tens of millions of citizens in many parts of the nation. Fortunately, however,
the Court has now agreed to revisit the issue in the context of a decision
issued by the Sixth Circuit, which reaffirmed the right of a state’s people to
choose the traditional man–woman definition of marriage.
The overarching question before the
Supreme Court in the four cases that were consolidated before the Sixth Circuit
and for purposes of review by the Supreme Court—Obergefell v. Hodges, Tanco
v. Haslam, DeBoer v. Snyder, and Bourke v. Beshear—is not
whether an exclusively male–female marriage policy is the best, but only
whether it is allowed by the U.S. Constitution.[4]
In other words, the question is not whether government-recognized same-sex
marriage is good or bad policy, but only whether it is required by the U.S.
Constitution.
To resolve that overarching
question, the Supreme Court has directed the parties in those cases to address
two precise questions:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?
Those suing to overturn the marriage
laws in the four states covered by the Sixth Circuit (Ohio, Kentucky, Michigan,
and Tennessee) thus have to prove that the man–woman marriage policy that has
existed in the United States throughout our entire history is prohibited by the
U.S. Constitution.
The only way someone could succeed
in such an argument is to adopt a view of marriage that sees it as an
essentially genderless institution based only on the emotional needs of adults
and then declare that the U.S. Constitution requires that the states (re)define
marriage in such a way. Equal protection alone is not enough. To strike down
marriage laws, the Court would need to say that the vision of marriage that our
law has long applied equally is just wrong: that the Constitution requires a
different vision entirely.
The U.S. Constitution, however, is
silent on what marriage is and what policy goals the states should design it to
serve, and there are good policy arguments on both sides. Judges should not
insert their own policy preferences about marriage and declare them to be
required by the U.S. Constitution any more than the Justices in Dred Scott should
have written into the Constitution their own policy preferences in support of
slavery.
That, of course, is not to suggest
that same-sex marriage is itself comparable to slavery. The point is simply
that, as in Dred Scott, this is a debate about whether citizens or
judges will decide an important and sensitive policy issue—in this case, the
very nature of civil marriage.
The
Fourteenth Amendment’s Original Meaning
A legal challenge to these state
marriage laws cannot appeal successfully to the text or original meaning of the
Fourteenth Amendment. The text, invoking American citizens’ “privileges or
immunities,” the “equal protection of the laws,” and the “due process of law,”
nowhere mentions marriage. Back in the 1860s, could anyone who drafted that
amendment or any of the citizens who voted to ratify it have reasonably thought
that it could be used to invalidate state marriage laws defining marriage as a
man–woman union?
Imagine, for example, how President
Lincoln—an accomplished lawyer and an ardent opponent of Dred Scott—would
have reacted if the amendment had been introduced before his death and someone
had suggested that it might one day be interpreted to require states to
recognize same-sex marriages. He would have viewed that suggestion as
preposterous. There has never been any general right, he would have said, to
marry anyone you claim to love, so a state’s rejection of that claimed “right”
could not possibly be a denial of due process.
Lincoln would also have noted the
similarities between Dred Scott and a decision imposing same-sex
marriage. As distinguished law professor Michael Stokes Paulsen has elegantly
argued, “in the structure and logic of the legal arguments made for judicial
imposition of an across-the-board national rule requiring every state to accept
the institutions [of slavery and the redefinition of marriage], the two
situations appear remarkably similar.”[5]
Moreover, unlike miscegenation laws,
the man–woman definition of marriage does not offend the Amendment’s
equal-protection guarantee because it allows any otherwise qualified man and
woman to marry, regardless of their sexual orientation or other
circumstances. The fact that the institution of marriage, rightly understood,
may be more attractive to some of a state’s citizens than others does not mean
that a state violates the Fourteenth Amendment simply by refusing to redefine
the institution to make it more attractive to more romantic partnerships.
Indeed, as the Sixth Circuit pointed
out, all sides agree that the original meaning of the Fourteenth Amendment does
not require the redefinition of marriage: “Nobody…argues that the people who
adopted the 14th Amendment understood it to require the States to change the
definition of marriage.”[6]
The Sixth Circuit continued: “From the founding of the republic to 2003, every
state defined marriage as a relationship between a man and a woman, meaning
that the 14th Amendment permits, though it does not require, states to define
marriage in that way.”[7]
The opinion closes by noting that
“not a single U.S. Supreme Court Justice in American history has written an
opinion maintaining that the traditional definition of marriage violates the
14th Amendment.”[8]
United
States v. Windsor
Nor can a challenge reasonably
appeal to the Supreme Court’s Windsor decision, which was written by
Justice Anthony Kennedy and applied the Fourteenth Amendment’s protections in
striking down a portion of the federal Defense of Marriage Act (DOMA). Whether
it was right or wrong as to DOMA, Windsor strongly supports the
authority of states to define marriage: Every single time that Windsor
talks about the harm of DOMA, it mentions that the state had chosen to
recognize the bond that the federal government was excluding. Every single
time, Justice Kennedy expressly said it was Congress’s deviation from the
default of deference to state definitions that drove his opinion.
Kennedy’s opinion for the Court
hinged on the reality that “[t]he significance of state responsibilities for
the definition and regulation of marriage dates to the Nation’s beginning.”[9]
“The definition of marriage,” Windsor explained, is “the foundation of
the State’s broader authority to regulate the subject of domestic relations
with respect to the ‘[p]rotection of offspring, property interests, and the
enforcement of marital responsibilities.’”[10]
United States District Judge Juan
Pérez-Giménez recently highlighted this feature of Windsor:
The Windsor opinion did not create a fundamental
right to same gender marriage nor did it establish that state opposite-gender
marriage regulations are amenable to federal constitutional challenges. If
anything, Windsor stands for the opposite proposition: it reaffirms the
States’ authority over marriage, buttressing Baker’s conclusion that
marriage is simply not a federal question.[11]
Windsor also taught that federal power may not “put a thumb on the
scales and influence a state’s decision as to how to shape its own marriage
laws.”[12]
Yet since that time, the federal government—through federal judges—has
repeatedly put its thumb on the scales to influence a state’s decision about
its own marriage laws—all the while claiming that Windsor required them
to do so.
Judge Pérez-Giménez bemoaned this
reality, noting that “[i]t takes inexplicable contortions of the mind or
perhaps even willful ignorance—this Court does not venture an answer here—to
interpret Windsor’s endorsement of the state control of marriage as eliminating
the state control of marriage.”[13]
Fundamental
Right Under the Fourteenth Amendment’s Due Process Clause
Just as neither the actual text nor
the original meaning of the Fourteenth Amendment, nor the Windsor
decision, requires the redefinition of state marriage laws, nothing in the
Supreme Court’s Fourteenth Amendment jurisprudence requires states to abandon the
male–female definition of marriage. Consider first the Court’s “fundamental
rights” doctrine under the Due Process Clause, where, if the Court finds a law
infringing upon a fundamental right, the law is subject to “strict scrutiny,”
meaning that the government must provide a compelling interest in having the
law and the law must be narrowly designed to promote that interest. Not
surprisingly, laws almost always fail strict scrutiny.
Glucksberg. As the Supreme Court held in Glucksberg
in rejecting a fundamental right to assisted suicide, fundamental rights must
be “deeply rooted in this Nation’s history and tradition” and “implicit in the
concept of ordered liberty” such that “neither liberty nor justice would exist
if they were sacrificed.”[14]
Clearly, a right to marry someone of
the same sex does not fit this description. As the Supreme Court explained in Windsor,
including same-sex couples in marriage is “a new perspective, a new insight.”[15]
Same-sex marriage is not deeply rooted in the nation’s history and tradition;
thus—whatever its policy merits—it cannot be a fundamental right under the Due
Process Clause. Windsor correctly observed that “until recent
years…marriage between a man and a woman no doubt had been thought of by most
people as essential to the very definition of that term and to its role and
function throughout the history of civilization.”[16]
Whenever the Supreme Court has
recognized marriage as a fundamental right, it has always been marriage
understood as the union of a man and woman, and the rationale for the
fundamental right has emphasized the procreative and social ordering aspects of
male–female marriage. None of the cases that mention a fundamental right to
marry deviate from this understanding, including decisions that struck down
laws limiting marriage based on failure to pay child support,[17]
incarceration,[18]
and race.[19]
Those decisions took for granted the historic, common law, and statutory
understanding of marriage as a male–female union having something to do with
family life. Thus, a challenge to state male–female marriage laws cannot appeal
successfully to the fundamental-rights doctrine under Glucksberg.
Loving. Comparisons to interracial marriage
fare no better.[20]
As Fourth Circuit Judge Paul Niemeyer explained in his dissent in Bostic v.
Schaefer, in Loving v. Virginia, where the Supreme Court found laws
that prohibit interracial marriage to be unconstitutional, the couple was
“asserting a right to enter into a traditional marriage of the type that has
always been recognized since the beginning of the Nation—a union between one
man and one woman.”[21]
He concluded:
Loving simply
held that race, which is completely unrelated to the institution of marriage,
could not be the basis of marital restrictions. To stretch Loving’s
holding to say that the right to marry is not limited by gender…is to ignore
the inextricable, biological link between marriage and procreation that the
Supreme Court has always recognized.[22]
In Loving, the Supreme
Court defined marriage as one of the “‘basic civil rights of man,’ fundamental
to our very existence and survival.”[23]
Professor John Eastman of Chapman Law School has helpfully explained why the
Supreme Court did so:
Marriage is “fundamental to our very existence” only because
it is rooted in the biological complementarity of the sexes, the formal
recognition of the unique union through which children are produced—a point
emphasized by the fact that the Supreme Court cited a case dealing with the
right to procreate for its holding that marriage was a fundamental right.[24]
Thus, a challenge to state
male–female marriage laws cannot properly rely upon Loving.
Limiting Principle? To be sure, the Supreme Court has ruled that entering into
and having the government recognize a marriage—understood as a union of husband
and wife—is a fundamental right, but if this right is redefined to be
understood simply as the committed, care-giving relationship of one’s choice,
where does the logic lead? Justice Sonia Sotomayor asked this of Ted Olson, the
lawyer for the same-sex couples, during oral argument in California’s
Proposition 8 case, and he had no answer. If marriage is a fundamental right
understood as consenting adult love, Justice Sotomayor asked, “what State
restrictions could ever exist,” for example, “with respect to the number of
people…that could get married?”[25]
The Sixth Circuit saw Justice
Sotomayor’s logic. With respect to those who would redefine marriage, the court
observed that:
Their definition does too little because it fails to account
for plural marriages, where there is no reason to think that three or four
adults, whether gay, bisexual, or straight, lack the capacity to share love,
affection, and commitment, or for that matter lack the capacity to be capable
(and more plentiful) parents to boot.[26]
The Sixth Circuit concluded that “if
it is constitutionally irrational to stand by the man–woman definition of
marriage, it must be constitutionally irrational to stand by the monogamous
definition of marriage. Plaintiffs have no answer to the point.”[27]
Just so. And for that reason too, a challenge to state male–female marriage
laws cannot properly invoke the Fourteenth Amendment’s Due Process Clause.
The
Fourteenth Amendment’s Equal Protection Clause
Equal protection jurisprudence
likewise does not require the redefinition of marriage.
Animus. Although a couple of Supreme Court decisions have relied
upon the concept of “animus” in invalidating on equal-protection grounds state
laws that impinged upon the interests of gays and lesbians,[28]
anyone with passing familiarity with the history of marriage knows that the institution
did not arise because of animus toward gays and lesbians. Ancient thinkers as
well as the political society in Greece and Rome, without being influenced by
Judeo–Christian teaching, affirmed that marriage is a male–female union even as
they embraced same-sex sexual relations.[29]
Even in Windsor, Justice
Kennedy did not claim that the man–woman definition of marriage was fueled by
animus. Rather, as noted, he held that the federal government’s refusal to
recognize state-sanctioned same-sex marriages was based on animus. One need not
agree with Justice Kennedy on DOMA to see that the holding in Windsor
does not undermine state marriage laws.
The Sixth Circuit acknowledged that
same-sex couples have experienced unjust discrimination but noted that marriage
laws are not part of that phenomenon:
But we also cannot deny that the institution of marriage
arose independently of this record of discrimination. The traditional
definition of marriage goes back thousands of years and spans almost every
society in history. By contrast, “American laws targeting same-sex couples did
not develop until the last third of the 20th century.” (citing Lawrence).[30]
While Lawrence struck down
laws that prohibited sex between persons of the same gender, it did not—and
does not—require the redefinition of marriage. Laws that banned homosexual
sodomy are radically different from laws that define marriage as the union of
husband and wife. The Supreme Court found that the former infringed a privacy
and liberty right, while the latter specify which unions will be eligible for
public recognition and benefits. A right to liberty or privacy is a right to be
left alone by the government, not a right to have the government recognize or
subsidize the relationship of one’s choice.
Protected Class. Other advocates of same-sex marriage, including the Ninth
Circuit,[31]
have argued that the denial of marriage to same-sex couples infringes the
rights of a protected class: namely, gays and lesbians. But the Supreme Court,
including in Windsor, has never held sexual orientation to be a suspect
class and thus has not applied “heightened scrutiny” to laws implicating their
interests.[32]
In contrast, the Court has held that race is a suspect class and gender a
quasi-suspect class (which invokes heightened scrutiny but not quite strict
scrutiny).[33]
Even if the Supreme Court did find
sexual orientation to be a suspect class, as liberal scholars like Andrew
Koppelman have recognized, marriage laws do not discriminate on the basis of
sexual orientation anyway. They have a disparate impact on gays, but that is
not the Court’s test. The reason Koppelman believes—correctly—that they do not
discriminate based on orientation is that they simply do not require checking
someone’s orientation at all in determining whether that person will receive
the benefits of civil marriage.[34]
Thus, under man–woman marriage laws, a gay man may marry a lesbian woman, while
two heterosexual men cannot receive a marriage certificate from the state.
Nevertheless, if one were to argue
that sexual orientation should be a protected class under equal protection
jurisprudence, one would have to establish that sexual orientation creates a
“class…[which] exhibit[s] obvious, immutable, or distinguishing characteristics
that define them as a discrete group.”[35]
Gays and lesbians do not satisfy that requirement.
The American Psychological
Association (APA) describes sexual orientation as a “range of behaviors
and attractions” and reports that “[r]esearch over several decades has
demonstrated that sexual orientation ranges along a continuum, from
exclusive attraction to the other sex to exclusive attraction to the same sex.”[36]
The APA also reports that “there is no consensus among scientists” on why
particular orientations develop and that, despite extensive research,
scientists cannot conclude whether sexual orientation is determined by
“genetic, hormonal, developmental, social, [or] cultural influences.”[37]
The APA, in short, says that no one
can agree on the causes or even the definition of homosexuality, so it is not a
readily identifiable group. These APA findings fatally undermine the idea that
sexual orientation describes a “discrete group” for suspect-class purposes.
This point is confirmed by Dr. Paul
McHugh, former chief of psychiatry at Johns Hopkins Hospital and former
chairman of the psychiatry department at Hopkins medical school, and legal
scholar Gerard Bradley:
“Sexual orientation” should not be recognized as a newly
protected characteristic of individuals under federal law.… In contrast with
other characteristics, it is neither discrete nor immutable. There is no
scientific consensus on how to define sexual orientation, and the various
definitions proposed by experts produce substantially different groups of
people.
Nor is there any convincing evidence that sexual orientation
is biologically determined; rather, research tends to show that for some
persons and perhaps for a great many, “sexual orientation” is plastic and
fluid; that is, it changes over time. What we do know with certainty about
sexual orientation is that it is affective and behavioral—a matter of desire
and/or behavior.[38]
In a February 2015 interview,
Justice Ruth Bader Ginsburg admitted as much. While asserting incorrectly that
it would not be a major adjustment for the American public to accept same-sex
marriage, she correctly observed that:
[Americans have] looked around, and we discovered it’s our
next door neighbor, we’re very fond of them. Or it’s our child’s best friend.
Or even our child. I think that as more and more people came out and said,
“This is who I am,” and the rest of us recognized that they are one of us, that
there—there was a familiarity with people that didn’t exist in the beginning
when the race problem was on the burner, because we lived in segregated
communities and it was truly a we/they kind of thing. But not so, I think, of
the gay-rights movement.[39]
A better argument why gays and
lesbians are not discrete and insular minorities—not easily identifiable or clustered
together apart from the rest of society—could not be offered.
Furthermore, to be a protected class
under equal protection jurisprudence, a group must be “politically powerless in
the sense that they have no ability to attract the attention of the lawmakers.”[40]
Yet, as Chief Justice John Roberts pointed out during oral arguments in Windsor,
“political figures are falling over themselves” to support gay marriage.[41]
Indeed, support for same-sex marriage and for LGBT (lesbian, gay, bisexual, and
transgender) non-discrimination laws has been embraced by the President of the
United States and the Democratic Party—the largest political party in the
nation.[42]
In short, it is hard to say that
gays and lesbians are politically powerless. It is therefore impossible for the
Court to find that they are a suspect class.
Rational Basis: Social Function. One could also argue, as the Fourth, Seventh, and Tenth
Circuits have held, that there is simply no rational basis for man–woman
marriage laws, meaning either that there is no legitimate purpose in such laws
or that the laws are not rationally related to a legitimate purpose.[43]
This argument fails completely as it ignores the universal historical record
witnessing to the rational basis of man–woman marriage laws based on the social
function that marriage plays.
From a policy perspective, marriage
is about attaching a man and a woman to each other as husband and wife to be
father and mother to any children their sexual union may produce. When a baby
is born, there is always a mother nearby: That is a fact of biology. The policy
question is whether a father will be close by and, if so, for how long.
Marriage, rightly understood, increases the odds that a man will be committed
to both the children that he helps to create and to the woman with whom he does
so.[44]
The man–woman definition of marriage reinforces the idea—the social norm—that a
man should be so committed.
The man–woman definition, moreover,
is based on the anthropological truth that men and women are distinct and
complementary, the biological fact that reproduction depends on a man and a
woman, and the social reality that children deserve a mother and a father. Even
President Barack Obama admits that children deserve a mother and a father:
We know the statistics—that children who grow up without a
father are five times more likely to live in poverty and commit crime; nine
times more likely to drop out of schools and twenty times more likely to end up
in prison. They are more likely to have behavioral problems, or run away from
home, or become teenage parents themselves. And the foundations of our
community are weaker because of it.[45]
In short, fathers matter, and
marriage helps to connect fathers to mothers and children. But you do not have
to think this marriage policy is ideal to think it constitutionally
permissible. Unless gays and lesbians are a suspect class, for an equal
protection challenge to succeed, this simple analysis of the social function of
marriage would have to be proved not just misguided, but positively irrational.
Universal human experience, however, confirms the rationality of that policy.
Compelling Interest and Narrowly
Tailored: Constitutional at Any Level of Scrutiny. Even if one (implausibly) granted that sexual orientation
was a suspect class and that marriage laws thus had to be held to heightened
scrutiny, man–woman marriage would still be constitutional. A strong marriage
culture is a compelling interest because it affects virtually every other state
interest, and defining marriage as the permanent and exclusive union of a
husband and wife is a narrowly tailored means of allowing it to fulfill its
social function.
As noted, there is no dispute that
marriage plays a fundamental role in society by encouraging men and women to
commit permanently and exclusively to each other and to take responsibility for
their children. As the Sixth Circuit concluded, “[b]y creating a status
(marriage) and by subsidizing it (e.g., with tax-filing privileges and
deductions), the States create[] an incentive for two people who procreate
together to stay together for purposes of rearing offspring.”[46]
In addition to financial incentives,
as ample social science confirms, this combination of state-sanctioned status
and benefits also reinforces certain child-centered norms or expectations that
form part of the social institution of marriage. Those norms—such as the value
of gender-diverse parenting and of biological connections between children and
the adults who raise them—independently encourage man–woman couples “to stay
together for purposes of rearing offspring.” Given the importance of those
norms to the welfare of the children of such couples, the state has a
compelling interest in reinforcing and maintaining them.
Most of those norms, moreover, arise
from and/or depend upon the man–woman understanding that has long been viewed
as central to the social institution of marriage.[47]
For example, because only man–woman couples (as a class) have the ability to
provide dual biological connections to the children they raise together, the
state’s decision—implemented by the man–woman definition—to limit marital
status and benefits to such couples reminds society of the value of those
biological connections. It thereby gently encourages man–woman couples to rear
their biological children together, and it does so without denigrating other
arrangements—such as adoption or assisted reproductive technologies—that such couples
might choose when, for whatever reason, they are unable to have biological
children of their own.
Like other social norms
traditionally associated with the man–woman definition of marriage, the
biological connection norm will be diluted or destroyed if the man–woman
definition (and associated social understanding) is abandoned in favor of a
definition that allows marriage between “any two otherwise qualified
persons”—which is what same-sex marriage requires. And just as those norms
benefit the state and society, their dilution or destruction can be expected to
harm the interests of the state and its citizens.
For example, over time, as fewer
heterosexual parents embrace the biological connection norm, more of their
children will be raised without a mother or a father. After all, it will be
very difficult for the law to send a message that fathers and mothers are
essential if it has redefined marriage to make fathers or mothers optional, and
that in turn will mean more children of heterosexuals raised in poverty, doing
poorly in school, experiencing psychological or emotional problems, having
abortions, and committing crimes—all at significant cost to the state.
In short, law affects culture.
Culture affects beliefs. Beliefs affect actions. The law teaches, and it will
shape not just a handful of marriages, but the public understanding of what
marriage is. Consider the impact of no-fault divorce laws, which are widely
acknowledged to have disserved, on balance, the interests of the very children
they were supposedly designed to help. By providing easy exits from marriage
and its responsibilities, no-fault divorce helped to change the perception of
marriage from a permanent institution designed for the needs of children to a
temporary one designed for the desires of adults. Thus, not only was it
technically much easier to leave one’s spouse, but it was psychologically much
easier as well, and the percentage of children growing up with just one parent
in the home skyrocketed, with all of the attendant negative consequences.
This analysis also explains why a
state’s decision to retain the man–woman definition of marriage should not be
seen as demeaning to gay and lesbian citizens or their children and why it
satisfies any form of heightened scrutiny. In the early 2000s, in the face of
state judicial decisions seeking to impose same-sex marriage under state law,
the definitional choice a state faced was a binary one: Either preserve the
man–woman definition and the benefits it provides to the children (and the
state) or replace it with an “any two qualified persons” definition and risk
losing those benefits.
There is no middle ground. A state’s
choice to preserve the man–woman definition is thus narrowly tailored—indeed,
it is perfectly tailored—to the state’s interests in preserving those benefits
and in avoiding the enormous societal risks that accompany a
genderless-marriage regime. Under a proper means–ends analysis, therefore, a
state’s choice to preserve the man–woman definition passes muster under any constitutional
standard.[48]
Recognizing
Same-Sex Marriages from Out of State
If the points made above succeed—on
the rational basis of state marriage laws defining marriage as the union of
husband and wife and the reasonableness of thinking that redefining marriage
will undermine the public policy purpose of such marriage laws—then a state
should not be required to recognize other state marriage laws that would
undermine its own public policy.
This conclusion follows from Article
IV of the Constitution, which requires that “Full Faith and Credit shall be
given in each State to the public Acts, Records, and judicial Proceedings of
every other State.”[49]
This clause enabled the sovereign states to come together to form one union
without everything having to be relitigated when parties moved to a new state,[50]
but the Full Faith and Credit Clause does not require a state to recognize the
policies of another state when doing so would undermine that state’s own public
policy. Full Faith and Credit “does not compel a state to substitute the
statutes of other states for its own statutes dealing with a subject matter
concerning which it is competent to legislate.”[51]
Windsor points out that “[m]arriage laws vary in some respects from
State to State,” such as “the required minimum age” and “the permissible degree
of consanguinity.”[52]
If a state has good policy reasons for promoting marriage as the union of a man
and a woman, then it does not have to accept out-of-state marriages that
undermine its own policy preferences.[53]
A state may apply its own marriage laws in preference to an out-of-state policy
that it judges would undermine its own policy, because “as a sovereign [it] has
a rightful and legitimate concern in the marital status of persons domiciled
within its borders.”[54]
Moreover, given that the Full Faith
and Credit Clause deals specifically with the recognition of official acts in
other states, there is no sound basis for invoking the Fourteenth Amendment as
a stand-alone basis for requiring a state to recognize a marriage performed in
another state.
Conclusion
At the end of the day, there simply
is nothing in the U.S. Constitution that requires all 50 states to redefine
marriage. Part of the design of federalism is that experimentation can take
place in the states: As the Sixth Circuit noted, “federalism…permits
laboratories of experimentation—accent on the plural—allowing one State to
innovate one way, another State another, and a third State to assess the trial
and error over time.”[55]
To a make a plausible case to the
contrary, as we have seen, one cannot reasonably appeal to the authority of Windsor,
to the text or original meaning of the Fourteenth Amendment, to the fundamental
rights protected by the Due Process Clause, or to Loving v. Virginia.
So, too, one cannot properly appeal to the Equal Protection Clause or to animus
or Lawrence. Nor can one say that gays and lesbians are politically
powerless, so one cannot claim they are a suspect class. Nor can one say that
male–female marriage laws lack a rational basis or that they do not serve a
compelling state interest in a narrowly tailored way.
The only way one can establish the
unconstitutionality of man–woman marriage laws is to adopt a view of marriage
that sees it as an essentially genderless, adult-centric institution and then
declare that the Constitution requires that the states (re)define marriage in
that way. In other words, one needs to establish that the vision of marriage
our law has long applied is just wrong and that the Constitution requires a
different vision entirely.
There is, however, no basis in the
Constitution for reaching that conclusion any more than there was a basis in
the Constitution for concluding—as Dred Scott did—that the people of the
United States lacked the power to abolish slavery in their territories.
Accordingly, any decision requiring states to redefine marriage is as much a
usurpation of the people’s authority as Dred Scott was.
—Gene Schaerr is a Washington, D.C.-based attorney who specializes in
constitutional and appellate litigation. He has previously served as Associate
Counsel to the President and as law clerk to Justice Antonin Scalia and has
handled dozens of cases (including six he personally argued) before the U.S.
Supreme Court. Ryan T. Anderson, PhD, co-author of the book What Is Marriage? Man and Woman: A Defense, is William
E. Simon Fellow in the Richard and Helen DeVos Center, of the Institute for
Family, Community, and Opportunity, at The Heritage Foundation.
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