1. My first two posts on same-sex marriage (12-10 and 12-18-2012)[i] were intended to  show that for the time being it is very unlikely that the Supreme Court will hold that there is some broad fundamental liberty-right to marry; i.e., one which includes as a component the right to marry a person of either gender, and as such is embodied by the due process clauses of the Fifth and Fourteenth Amendments.[ii]  My reason for this conclusion is that the hypothetical fundamental liberty-right in question, with its radically altered meaning of “marry,” would probably (and surely should) not be deemed by the Court as having been deeply rooted in this nation’s history and tradition; or so rooted in the traditions and conscience of our people as to be ranked as fundamental; or so implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed (Washington v. Glucksberg; 521 U.S. 702, 722 (1997)) —even after giving due allowance for the development of relevant judicial principles and doctrines; especially so since the legal authorization of same-sex marriage by any state is indeed of very recent vintage (i.e., 2003).[iii]  And furthermore, if my analysis is sound, it is highly unlikely that the Court would rule that a legislative denial (whether by virtue of a federal or state statute, or of a state constitutional provision) of a claimed right of same-sex marriage fails to satisfy the ordinary test of the federal constitutional validity of legislation applicable to non-fundamental rights (including immunities from discrimination) , i.e., the rational basis test. According to this test, the challenged legislation must be rationally related to a legitimate governmental purpose.[iv] 

2. I had hoped to devote this post exclusively to equal protection issues pertaining to the two cases now pending before the Supreme Court. However, I now think that it would be better for me to further discuss why the extant federal constitutional liberty-right to marry should remain in place and its relation to the fairly novel claim that there is a fundamental right to be free from discrimination based upon a homosexual orientation manifested in behavior.

3. Consider some questions that a well-informed, pro-gay marriage supporter might pose:  “Well what about interracial marriage? Did not the Supreme Court hold in Loving v. Virginia, 388 U.S. 1 (1967) that the Virginia ban on interracial marriage violates, not only the equal protection clause, but also the fundamental right to marry embodied in the due process clause of the Fourteenth Amendment? Is it not the case that the Court thereby ruled that the anti-miscegenation laws of fifteen other states were unconstitutional?  Is it not true that after the California Supreme Court’s decision in Perez v. Sharp, 32 Cal.2d 711 (1948), holding the California  miscegenation laws to be invalid on state constitutional grounds, fourteen other states (including Maryland which did so while the Loving case was pending) subsequently overturned their anti-miscegenation laws before the Loving v. Virginia decision? So Is it not true that before Perez decision in 1948 thirty of the forty-eight states had anti-miscegenation laws in force? Indeed, had not the United States Supreme Court in Pace v. Alabama, 106 US. 583 (1883),[v] strongly Indicated that miscegenation laws were valid? So is not the right to marry persons of the same gender so similar to the right to marry a person of another race that the Court would be justified in ruling that the due process clauses embody the former as also a component of a broader fundamental right—one in which “marry” has an expanded meaning.?  To all the questions, save the very last, I can only answer: “Of course, yes.” But there still remains a crucial difference between interracial marriages, in which case “marriages” is understood to essentially involve a union of two persons of opposite gender, and intergender marriages, where “marriages” is morphed to bear another and altogether novel meaning.

4. Here, I pause to remind the reader that it is only in very recent times (i.e., 2003) that same-sex marriage was first authorized by a state thanks to judicial construction of the state constitution in Maryland. And today, the overwhelming majority of states plus the D.C. and the two commonwealths (43/53) do not authorize same-sex marriage. Nothing has happened in the last several decades that warrants the conclusion that our federal constitutional law has been radically changed with respect to the status of traditional right to marry. Similarly, nothing in the last several decades has happened that warrants the conclusion that any rights to be free from discrimination based upon one’s behaviorally manifested homosexual orientation should be deemed to be fundamental because it is suspect in the same sense as race, color, ethnicity, and similar birth status.  Nothing has happened that warrants us in saying that it would be legitimate for the Court to override something as deeply rooted in the traditions and conscience of the American people as the notion that the traditional marriage constitutes the foundation for any claim that there is any fundamental ‘right to marry’, embodied as such in the due process clauses of the Fifth and Fourteenth Amendments, or that there is a fundamental right to be free from any discrimination based upon a behaviorally manifested homosexual orientation, embodied as such by the equal protection clause of the Fourteenth Amendment and the equal protection component of the Fifth Amendment.

5. However, something very important had happened in the nineteenth century that radically changed the status of ‘persons of color’—notwithstanding the fact that the widespread ban on interracial marriage was then deeply rooted in our nation’s history. The Supreme Court in the infamous Dred Scott Case (Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) had ruled (among other things)  that free, native-born Blacks were not, nor could they ever be, citizens of the United States because of their inferior and degraded caste status based upon their race and color. According to the Court, free Blacks “can … claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States” (ibid., 405). Thus, they were not constitutionally entitled to “the rights of man and the rights of the people.”  (Ibid., 409). (I suppose Taney meant the specific rights of the First, Second, and Fourth Amendments.) It was because of that inferior and degraded caste status that all slave states and most free states had prohibited intermarriage between Whites and Blacks. (Ibid., 408-09, 413-14.) According to the Court, were native-born free Blacks citizens of the United States, then they would have been exempt from discriminatory laws and practices that were the badges and incidents of an inferior and degraded caste status based upon race and color. (Ibid., 416-17.)

6. Recall that the Thirteenth Amendment (1865), thus before the adoption of the Fourteenth Amendment (1868), had abolished slavery, and arguably had nullified all the legal disabilities which were the essential badges and incidents of slavery. However, it was much disputed whether the Civil Rights Act of 1866, which had declared that virtually all native-born persons (with certain exceptions) are American citizens and entitled to certain civil rights, was constitutional with respect to its applicability to the states—or had even constitutionally altered the status of free, native-born Blacks as to their status as nationals but not citizens of the United States. The adoption of the Fourteenth Amendment, however, indeed radically altered the constitutional status of native-born Blacks. First, citizenship clause overruled Dred Scott decision insofar as it held that native-born Blacks were not, and could not become, American citizens. (The Slaughter-House Cases, 83 U.S. (Wall.) 36, 72-73 (1873.) Second, the Court declared in Strauder v.West Virginia, 100 US. 303, 307-08 (1880):

 The words of the [Fourteenth] Amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race—the right of exemption from unfriendly legislation against them distinctively as colored; an exemption from legal discrimination, implying inferiority in civil society, lessening the security of their enjoyment of the rights that others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.

7. It was by virtue of the Fourteenth Amendment that the right of persons (otherwise qualified) to racially intermarry became a component of the fundamental right to marry.  Unfortunately, it was almost a century before the Court ruled in Loving v Virginia, 388 US 1 (1967) that persons cannot be constitutionally forbidden from racially intermarriage by virtue of the equal protection and due process clauses. Thereby the Court commendably continued to undo the damage due to its pernicious, crabbed notion of what constituted racial equality as codified in its separate-but-equal rulings.[vi] However the Court was quite accurate in noting that “[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States” (ibid., 10). Since the fundamental right to marry in state cases is embodied by the Fourteenth Amendment’s due process right, this right in federal cases is equally embodied by the due process clause of the Fifth Amendment. Moreover, the holding in Loving, insofar as it is based upon the equal protection clause of the Fourteenth Amendment in a state case, equally applies to a federal case because the Fifth Amendment due process clause has an equal protection component of the same potency as the equal protection clause in racial discrimination cases. (See Bolling v. Sharpe, 347 U.S.497 (1954), decided on the same day as Brown v. Board of 347 U.S. 497 (1954), in which the Court ruled the federal government could not operate racially-segregated schools any more than could the states because “[i]t would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”[vii])

8. What is frequently overlooked is the following. In 1866-68, during the process of ratifying the Fourteenth Amendment, there were thirty-seven states in the Union. (It was only in 1876 that Colorado became the thirty-eighth state.) There were eleven states in the Confederate States of America (i.e., AL, AR, FL, GA, LA, MS, NC, SC, TN, TX, VA) After the Fourteenth Amendment was submitted to the states for ratification in 1866,  Tennessee (TN) adopted that amendment in the same year and was thereafter admitted to representation in the Congress. The other ten ex-Confederate states each rejected the proposed amendment in 1866. However, the 40th Congress, dominated by Republicans, inaugurated the era of Congressional Reconstruction (1867-77), imposed military rule over then ex-Confederate states (but not the already restored TN) and required them to ratify the Fourteenth Amendment as a condition for being practically restored to the Union (including representation in the Congress). Ratification by twenty-eight states was constitutionally required; there being thirty-seven states in the Union. The amendment was deemed a part of the Constitution by the Congress on July 21, 1868 and so certified by Secretary of State Steward on July 21 of that year. All ten former-Confederate, congressionally reconstructed states in turn ratified the amendment during the period April 6, 1868-February 18, 1870. As of 1875, seven of these states (i.e., AL, AR, FL, LA, MS, SC, TX) had abrogated anti-miscegenation laws either by statute or judicial decision. Eleven ante-bellum free states (i.e., CT, IA, IL, KS, MA, MN. NH, NJ, NY, PA, VT, WI) as of 1866-68 did not have anti-miscegenation laws.. Illinois abandoned its anti-miscegenation law in 1874. So for some time (circa 1875), nineteen of the thirty-seven states (i.e., a majority in the Union before the admission of Colorado in 1876) did not have anti-miscegenation laws. Bear in mind, that the well-informed legislators and voters of the ten former-Confederate states in question knew exactly why their states initially rejected (in 1866) but then subsequently ratified the Fourteenth Amendment (1868-70): to wit, that the proposed Fourteenth Amendment would overturn the Dred Scott doctrine that native-born Blacks were not, and could not be, American citizens; together with the corollary that native-born persons of color were not constitutionally entitled to be free from invidious discrimination as to civil rights and benefits due to an inferior an degraded caste status based on their race and color—including the bar to interracial marriage with Whites. The adoption of the Fourteenth Amedment radically changed the fundamental law of the land with respect to persons of color notwithstanding the deeply-rooted institutions assigned to them an inferior and degraded legal status. But with the rise and until the demise of separate-but-equal jurisprudence, there was a widespread reluctance to concede that anti-miscegenation bans were predicated upon a constitutional theory inconsistent with the Fourteenth Amendment’s nullification of the doctrines of Dred Scott concerning the ante-bellum legal status of native-Blacks, denying them the status and the essential rights, privileges, and immunities of American citizenship.[viii]

9. My thesis is that a special freedom from discrimination based upon behaviorally manifested homosexual orientation is not per se a fundamental freedom-from right—quite unlike the freedom from invidious discrimination based upon race or color. It is utterly far-fetched to hold that the status of having a homosexual orientation manifested in behavior is sufficiently similar to an inferior and degraded caste or class status based upon race or color, or some other similar birth status to warrant a different conclusion. On the other hand, freedom to marry (in the traditional sense), a fundamental personal right embodied by the due process clauses, encompasses the right to marry of adult person to marry another person of the opposite gender of his or her own choice, whatever the sexual orientation of either party, whether or not behaviorally manifested. There are also freedom-from rights against discrimination necessary to safeguard fundamental liberty-rights embraced by the due process clauses; as well as the ordinary immunity against any governmental discrimination that fails the rational-basis test of validity. Among the fundamental liberty-rights embraced by the due process clauses is the right not to be subject to any governmental infringement with respect to intimate, noncommercial sexual association and conduct by consenting adults of either gender in the privacy of a home (or a functionally equivalent place), unless the particular infringement is narrowly tailored to serve a compelling state interest.[ix]

10. Moreover, not to be forgotten, there is a broad constitutional freedom from such governmental discrimination with respect to civil rights and benefits that is arbitrary or incompatible with the dignity of all free persons that obtains by virtue of the universal civil freedom established with the adoption of the Thirteenth Amendment (abolishing slavery), which establishment radically transformed the fundamental law of the land (i.e., the fifth amendment due process clause).[x] Thus each due process clause embraces a fundamental freedom-from-invidious-discrimination right applicable to all free persons regardless of their individual physical or mental attributes including abilities or disabilities, as the case may be (e.g. sexual orientation, weight, height, skin or hair color, intelligence quotient, etc.).

11. In any event the decision in Lawrence v. Texas does not provide any substantial plausible basis for the argument that the due process clauses embrace a fundamental right to marry understood to extend to couples of the same gender. As the Court explained:

The statutes [in Bowers and Lawrence] do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. [539 U.S. at 567]

[The Lawrence case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. [Ibid., 578]

Justice Sandra Day O’Connor, in her concurring opinion based her concurrence in the Court’s judgment solely upon equal protection grounds, maintaining that the government may not validly criminalize homosexual but not heterosexual non-coital intercourse. However, she declared:

That this [Texas sodomy] law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. [Ibid., 585]

12. Given the foregoing, the cardinal issue in same-sex marriage cases is whether governments are constitutionally obligated to give formal recognition to same-sex marriages or the functional equivalent (i.e., provision for equal rights and benefits other than the designation of  “marriage”), which recognition would necessarily have many serious fiscal and other consequences. And, in this connection, it may be asked would the justices be prepared and willing to overturn the now well-established rule that the federal and state governments are not constitutionally required to publicly fund abortions or to permit the use of public facilities and publicly-employed staff in abortions—notwithstanding the constitutional right that having abortions are to be free from undue governmental burdens. See Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980); Webster v. Reproductive Health Services, 492 U.S. 490 (1989); Rust v. Sullivan, 500 U.S. 173 (1991). In short, entitlement to a constitutionally-protected right to be free from coercive infringement does not entail entitlement to have the government provide public funds, facilities, or staff needed to exercise that right. It is significant, for our purposes, to note that Justice Kennedy shares this view. In my next post, I shall discuss equal protection issues (the only nonprocedural issues under review) as they pertain to the two cases now pending before the Supreme Court

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