The very first sentence of Chief Justice Roberts' opinion for the Supreme Court in the challenge to California's Proposition 8, Hollingsworth v. Perry [PDF], observes that "[t]he public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry." Justice Kennedy, dissenting in that case unlike the majority, he would have found that Prop. 8's proponents had standing to defend its legality also referred to the debate over marriage equality as "a realm of controversy where the legal community and society at large are still formulating ideas and approaches to a most difficult subject." Polls show that even as most Americans generally support marriage equality for gay and lesbian couples, with younger voters the strongest supporters, a majority of Americans also believe that the decision to recognize same-sex unions should be left up to the individual states.
Accordingly, in the wake of the Court's rulings striking down the federal government's discrimination against legally married same-sex couples that was perpetuated by the so-called Defense of Marriage Act (DOMA) in Windsor v. United States, and letting stand the California trial court decision declaring California's ban on same-sex unions unconstitutional in Perry, some advocates for marriage equality may actually be relieved that the Court did not recognize a nationally applicable right to marriage equality, which it could have done in the Prop. 8 case. Before the Court handed down its decisions, some advocates for marriage equality, even as they hoped for victory from the Court, had openly worried that if the Court were to recognize a right to marriage equality that would apply in all fifty states, it could cause a backlash. As more states pass laws recognizing same-sex unions, some marriage equality supporters essentially said "don't mess with progress."
Regardless of whether it is sound political strategy to focus on legislatively establishing marriage equality in as many states as possible before heading back to the steps of the Supreme Court, the true promise of the Constitution's guarantee of equality shouldn't be forgotten. The fact is "letting the states decide" marriage equality is not what the Constitution demands.
While the Constitution creates a vibrant system of federalism, with states free to experiment with diverse policies that best fit their communities' needs and preferences, the Constitution also places certain rights and freedoms beyond the reach of state experimentation. America does not put her most cherished rights and liberties up to a vote. Indeed, many provisions of the Bill of Rights such as the guarantees of freedom of speech and religion, safeguards against bills of attainder, the prohibition against warrantless searches were specifically intended to protect the politically unpopular. The Constitution stands for the proposition that some rights aren't left to the whims of a democratic majority. Equality before the law is one of those rights.
This is true even in areas of regulation that have traditionally been left to the states. As Justice Kennedy noted in his DOMA interpretation in Windsor, "[b]y history and tradition the definition and of marriage ... has been treated as being within the authority and realm of the separate [s]tates." But even as the Court's opinion in Loving v. Virginia noted that marriage is something traditionally left to the states, the Court nonetheless applied the Constitution's guarantees of equality and liberty to strike down Virginia's racially discriminatory marriage law as unconstitutional, taking down fifteen other state laws with it.
Similarly, the argument that restricting civil marriage to opposite-sex couples is constitutionally safe because it is the "traditional" definition of marriage fails. The US Supreme Court has repeatedly emphasized that the historical persistence of bias and discrimination cannot save such practices from being struck down as unconstitutional. If a history of discrimination could carve out an exemption from the Constitution's guarantee of equality, we'd still have segregated schools and swimming pools. Indeed, in Loving, the Court observed that there was a long history of limiting marriage to persons of the same race Virginia's law had roots in the colonial period before striking down such discriminatory laws.
It may have taken us 100 years to get it right with respect to race-restrictions on the freedom to marry, but it doesn't mean those laws weren't unconstitutional in 1868. The same is true, nearly 150 years after the ratification of the Fourteenth Amendment, for laws that deny gay and lesbian couples the freedom to marry.
The Constitution guarantees equal protection of the laws to "any person." In looking to what rights were understood to be protected equally, the framers of the Fourteenth Amendment understood state-sanctioned marriage as a personal, individual right that must be made available on an equal basis to all persons. Accordingly, by writing into the Constitution a requirement of equality under the law and equality of basic rights for all persons, which included the right to marry, the Amendment's framers ensured that discriminatory state laws would not stand in the way of Americans exercising their right to marry the person of their own choosing. Laws that discriminate and deny to members of certain groups, including gays and lesbians, the right to marry the person of one's choice thus contravene the original meaning of the Fourteenth Amendment.
Given that the majority of Americans now support marriage equality, there is hope that the states will right this wrong on their own through legislative action or popular referenda. But the Constitution tells us in no uncertain terms that equality is not to be apportioned based on popularity or political convenience. The courts should not shy away from applying the Constitution's guarantee of equality under the law &151; and, in fact, there are currently lawsuits pending in at least ten states that cite to the Constitution's guarantee of equality in an effort to overturn state limitations on marriage for same-sex couples. As these cases wind their way through the court system, the question of whether the Constitution guarantees a right to marriage equality that applies across the US could end up right back at the high court.
Elizabeth B. Wydra is Chief Counsel at the Constitutional Accountability Center, a public interest law firm, think tank, and action center dedicated to the progressive promise of the Constitution's text and history. She frequently participates in Supreme Court litigation, and appears on television and in print as a legal expert. Elizabeth is a graduate of Yale Law School and clerked on the US Court of Appeals for the Ninth Circuit.
Suggested citation:Elizabeth B. Wydra,The Fight to Vindicate the Constitution's Guarantee of Marriage Equality Is Not Over, JURIST - Sidebar, July 31, 2013, http://jurist.org/sidebar/2013/07/elizabeth-wydra-prop-8.php.
This article was prepared for publication by Alexandra Cabonor, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org