Same-Sex Marriage in America

between Substantive Due process and the Equal Protection Clause

The aim of this essay is to illustrate the current debate over same-sex marriage in the United States by exploring whether prohibiting same-sex marriage violates the US Constitution. Although not directly involving the issue of homosexual marriage[1], the Supreme Court's judgment in Lawrence v. Texas overturned a statute prohibiting homosexual sodomy on due process grounds by holding that the right to private consensual sexual conduct was protected under the Fourteenth Amendment[2]. J. O'Connors, concurring, reached the same result of the majority opinion (struck down the Texas anti-sodomy law), but relying exclusively on the Fourteenth Amendment Equal protection Clause. As explicitly recognized by both supporters and opponents to same-sex marriage, this judgment left on “pretty shaky grounds” the state laws limiting marriage to opposite-sex couples (J. Scalia, dissenting in Lawrence ). The debate is therefore currently ranging over whether anti-gay statutes are under a risk to be declared unconstitutional under the substantive due process or under the equal protection clause. In the following pages, I will try show the pros and the cons of each of these constitutional legal arguments. This exercise may be particularly useful to the extent more than 35 states have passed laws banning same-sex marriage, and in some cases, civil unions. The constitutionality of the non-availability of gay marriage, or its prohibition, is an open question since the Supreme Court has not had the opportunity to decide a case involving this issue as yet[3].

 

An introduction to the legal debate on same-sex marriage:  a State or a Federal issue?

Although efforts to legalize same-sex civil marriage or to ban it have been made all over the world in the late 1990s and early 2000s[4], this issue has raised a fascinating “cultural war” in the United States especially since the 2004 presidential election campaign[5].

The timing of this paper is particularly appropriate as it coincides with the presentation to the US Senate by the majority leader, Bill Frist, of the Federal Marriage Amendment (FMA)[6]. This measure aims at amending the US constitution to forbid gay couples from marrying[7].

It might be surprising at first sight that the opponents to gay marriage are trying to ban it at federal level when in the United States civil marriage is governed by state law. However, the explanation is simple. It is worth recalling that while under US law each state is free to establish the conditions for a valid marriage, in doing so it is subject to both the limits imposed by the state's own constitution and the US Constitution. Subsequently, according to its supporters, a federal ban would be necessary to prevent marriages contracted in one state to ‘pour out' into another through the Constitution's Full Faith and Credit Clause[8]. In other words, the Act is meant to prevent the courts from relying on this constitutional clause to import same-sex marriage to states that have rejected it by forcing one state to recognize the marriages of another state. However, it is precisely to fix this problem that in 1996 the Defense of Marriage Act (DOMA) has been voted in order to allow each state to deny any gay marriage contracted in another member state[9].  It has been argued that DOMA would largely be unnecessary to the extent the Supreme Court has long recognized a "public policy exception" to the Full Faith and Credit clause. Under this case law, a state can refuse to recognize a marriage if the marriage violates a public policy of the state, even if the marriage was legal in the state where it was performed. States historically invoked this "public policy exception" by refusing to recognize out-of-state polygamous marriages, underage marriages, incestuous marriages and interracial marriages. However, as the United States Supreme Court has not directly ruled on this question, the exact state of the law is uncertain. In any case, after Lawrence, the DOMA, likewise state prohibitions on same-sex marriage, lies on tenuous ground.

In the light of this, the FMA supporters are even proposing a preemptive constitutional amendment that would limit marriage to its traditional form.

Same-sex marriage is currently legal in one state[10]. In 2003, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that the Massachusetts constitution requires the state to permit same-sex marriage[11]. At the same time, more than 35 states have passed state laws banning same-sex marriage, and in some cases, civil unions. Given this turn of events, it seems crucial to look at the ways in which a right to same-sex marriage could find its way in the American constitutional order.

 

Right to Same-Sex Marriage: Substantive due process or equal protection?

It is generally felt that many of the state and federal provisions discriminating against gays and lesbians are mainly directed to keep these people in the closet, or at least to discourage them from being blatant about their sexual identity. These laws reflect what part of the American society does not like about homosexuality: its growing visibility (J. Scalia, dissenting in Lawrence). This is the perception one may have from the reading of some cases decided by the Supreme Court examining the constitutionality of provisions of such a kind (Bowers[12], Romer[13], Lawrence[14]). In support of this observation, one may notice that, although the petitioners in Lawrence, seeking to challenge the Texas anti-sodomy statute, could have relied on two different constitutional arguments: substantive due process and equal protection, they have decided to build their argument upon the former. They perceived the statute as being more directed against their sexual orientation than as affording unequal treatment. They somehow identified the intention of the legislature to stigmatize the gay population by denying them access to the only way they dispose to have sexual intercourse. The same Supreme Court would seem to have embraced this perspective when in the same judgment held:

 

“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres”. 

 

However, a less superficial reading of this case seems to show that although the main focus of the decision is on sexual freedom rather than on equality, the Supreme Court used in its analysis the language of equality. Thus, for instance, J. Kennedy, writing for the Court, stated that:

 

“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests”.

 

J. O'Connors, concurring, reached the same result of the majority opinion (struck down the Texas anti-sodomy law), but relying exclusively on the 14^th Amendment Equal protection Clause. Contrary to the Court's opinion, she focused on the inequality stemming from the application of the Texas's sodomy law by stressing that this

 

“makes homosexuals unequal in the eyes of the law by making particular conduct – and only that conduct – subject to criminal sanction”.

 

Taking a similar line of thought (it is more about equality than sexual freedom), the Supreme Judicial Court of Massachusetts, has recently stated that the non-availability of marriage for same-sex couples is a discrimination based on sexual orientation rather than a violation of a fundamental right (Goodridge).  

Against this backdrop, we may proceed in the exam of the two possible legal approaches one may rely upon to challenge the constitutionality of state laws prohibiting same-sex marriages.

 

Substantive Due Process:  it is more about sexual freedom than equality   

Assuming first that the Court's opinion approach in Lawrence is accurate (it is more about sexual freedom than equality), I will examine the constitutionality of both state and federal provisions banning homosexuality. I will then try to examine which are the constitutional implications stemming from the opposite perspective (it is more about equality than sexual freedom) promoted by both J. O'Connors, concurring in Lawrence, and the Supreme Judicial Court of Massachusetts.

As example of enactments aimed at discouraging homosexual practices, one might examine, for instance:

1.      a prohibition of sodomy.

2.      a prohibition of gay marriage (or simply the non-availability of marriage for gay-people)

 

1. Anti-sodomy laws

Depending on whether the statute is construed and/or interpreted, an anti-sodomy law may be addressed to both heterosexuals and homosexuals (Bowers) or merely to homosexuals (Lawrence). The question remains however the same: are these statutes constitutional?

After Lawrence v. Texas, also the answer is the same: all anti-sodomy laws, regardless of whether they are addressed to both hetero and homosexuals or to homosexuals only, are invalid because they go against the substantive due process clause of the XIVth Amendment.

The unconstitutionality of these regulations has therefore deliberately been established under substantive due process, rather than under equal protection.

Should these regulations be unconstitutional solely under the equal protection clause (J. O'Connor's concurring opinion), facially-neutral regulations (applicable to both homo- and hetero-) would be allowed. In other words, states with Texas-style anti-sodomy laws would be invited to replace those laws with Georgia-style statutes[15]. However, regulations of this kind could potentially be struck down in two precise circumstances. Although facially non-discriminatory (nobody can practice sodomy), these prohibitions could be held invalid should it be shown that have a discriminatory intent (Washington v. Davis)[16]. Moreover, the same result could be achieved should it be proved that they are applied in a discriminatory way (Yick Wo). [17] To legislate against a particular class of persons (gays and lesbians, for example) would violates the due process clause because it deprives that group of equal protection of the laws without a public reason.

 

2. A prohibition of gay-marriage (or the non-availability of marriage for gays)

If it is unconstitutional to prohibit homosexual intercourse (Lawrence ), should gay people be entitled to get married?  In other words, why gay people cannot get married?

Apart from the Massachusetts State, where same-sex couples have access to the marriage (Goodridge), the marriage is not an option for American gay citizens.

The constitutionality of the non-availability of gay marriage, or its prohibition, is an open question since the Supreme Court has not had the opportunity to decide a case involving this issue as yet.

Assuming that the underlying purpose of a regulation prohibiting gay marriage is less to afford unequal treatment than is to keep gay people in the closet, the main argument it could be raised against such a prohibition would presumably be found in the Substantive Due process Clause.

Lawrence per se does not suffice to show the existence of a right to gay marriage since, as it was stated by the Supreme Court in that occasion,

 

“this case does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter”.

 

However, as we will see, Lawrence constitutes an important point of reference upon which to build a macro legal reasoning based on the long line of cases decided within the substantive due process clause.

The substantive due process clause could be relied upon to argue that there is a right to gay marriage stemming from the notion of “substantive guarantee of  liberty” or “right to privacy” construed by the Supreme court case law throughout the time . By relying on the consistent line of cases, starting from Griswold[18] through Eisenstadt [19]and Roe[20] up to Lawrence, it could be argued that this right finds protection in the sphere of liberty individuals enjoy vis-à-vis the State.

After having recognized the right to sex, not only within the marriage (Griswold), but also outside of it (Eisendstadt), the Supreme could rely on the door left open in Lawrence when it stated that

 

“Had those who drew and ratified the Due Process Clause of the Fifth Amendment or the Fourteenth Amendment known the components of liberty and its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew that times can blind us to certain truths and later generations can see that laws once necessary and proper in fact serve only to oppress”. (emphasis added)

 

The main argument against this line of reasoning deserves some attention. There is a fear that a further expansion of the Substantive Due Process clause would open up this clause in an excessive way by transforming it into a Pandora's box from which many unexpected relationships could obtain protection … In other words, the decriminalization of sodomy and the opening up of the marriage institution to gays would lead to authorize one day also incest or bigamy.

Are these fears justified?  Would it be reasonable to compare a homosexual relationship between consenting adult with incest? I do not find this argument persuasive to the extent while the latter inevitably involves people having the same blood, therefore potentially leading to negative procreative consequences, the former engage in an activity that it does lead to any negative impact neither on society nor on their lives.

 

 

Equal protection or it is more about equality than sexual freedom

Should our initial assumption turn out to be inaccurate (prohibition of gay-marriage would aim at denying equal treatment rather than at discouraging the showing of homosexual identities), a prohibition of gay-marriage could be reasonably challenged under the Equal Protection Clause.

Under Equal-protection analysis, it may be argued that the non-availability of marriage for same-sex couple, or the prohibition of having it, is a discrimination based on sexual orientation since it would discriminate between homosexuals and heterosexuals. Why should the former not been able to get married among them?

In adopting this approach, it is crucial to remind that "the group that is being discriminated against is homosexuals, be they male or female. They are the ones being told that their love and commitment is not worthy of being solemnized by marriage; that their relationships are not worth the legal protection that marriage would bring"[21].

While the non-availability of same-sex marriage may be seen as a purposeful, indirect discrimination based on sexual orientation, a clear prohibition of same sex marriage would be a purposeful, direct discrimination also based on sexual orientation.

 

By following this line of reasoning, one could argue that it exists a fundamental right to marriage regardless of your sexual orientation (this is what the Supreme judicial court in Massachusetts has established in the Goodridge opinion). 

Would it follow that sexual orientation automatically become a suspect class?  

Not even Goodridge dared to go so far!

Lawrence did not established neither whether classifications against gays would be subjected to heightened scrutiny under equal-protection analysis.

This is a tricky point because only if sexual orientation becomes a suspect category there are chances that prohibitions of gay marriage be struck down under strict scrutiny. Indeed, if subject to the lowest-level rational-relationship test, it is easy to imagine the Supreme Court (or any court) conjuring excuses that anti-gay marriage laws are rationally related to a legitimate governmental interest. However, should the Court consider sexual orientation a suspect class[22], this would subject statutes prohibiting gay-marriage to strict scrutiny. This would imply that states should prove the existence of a compelling interest. Which could it be?

I guess J. Scalia already has in mind a plenty of suggestive arguments to prove the existence of such an interest! Like, for example, morality. However, we know since the J. Stevens' dissenting opinion in Bowers (that controls in Lawrence) that the fact that a particular practice has been seen as immoral is not a

 

“a sufficient reason for upholding a law prohibiting the practice”.

 

Similarly, J. O'Connors, concurring in Lawrence, confirmed that

 

“we have never held that moral disapproval […] is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons”.

 

Conclusion

In light of the above, it seems that both approaches could potentially find their way to the Supreme Court. However, regardless of whether the Supreme Court will invalidate prohibitions of same-sex marriage by relying on Substantive due Process (Lawrence) or on Equal Protection (Romer), it remains to be seen whether the Court will get that far. When the FMA seems irremediably condemned not to obtain the two-thirds majority vote in the Senate, a judicial intervention is highly expected.

Despite the final outcome, it is not difficult to predict that, in any case, America will be divided over same-sex marriage at least as much it is over abortion (after Roe v Wade). This is so because judicial intervention will inevitably federalize the matter by imposing a single solution for all America.

 

Alberto Alemanno