When President Obama announced his support of same-sex marriage, he talked broadly about “equality” and “fairness.” He spoke of “opposing discrimination against gays and lesbians” and making sure that nobody is treated as “less than full citizens when it comes to their legal rights.” It was a powerful moment—historic and emotional. In the Aaron Sorkin version, the orchestra would have soared at this point as the supporting cast members exchanged teary-eyed yet knowing nods.
But then President Obama described how these rights should be protected and the music stopped with a squawk. Same-sex marriage, he said, is not in fact a federal issue but should be left to the states. He praised as “a healthy process and a healthy debate” the current patchwork of state referenda, amendments, laws, and judicial opinions that our marriage federalism has produced. He said he didn’t want “to nationalize this issue” and added that the states are “working through this issue … all across the country.” Adam Serwer and the New York Times editorial page were quick to point out that this doesn’t represent much equality and fairness for Americans who live in, say, North Carolina, a state that just did away with both gay marriage and civil unions by referendum. Lyle Denniston goes further, suggesting that the president opposes the Defense of Marriage Act because it’s an attempt to federalize marriage.
The “marriage is a purely state issue” rhetoric has been around for some time. It’s become a familiar default argument, maybe because it sounds fair and feels safe. But having “evolved” this far on gay marriage, the time has come to evolve our own thinking on what is really at stake when we talk about marriage equality. We must embrace that this is a constitutional and not a democratic issue. Equality is not a popularity contest. This is hardly a radical argument. It’s Supreme Court doctrine: Our rights to be treated as equal and full citizens do not evaporate when we cross state lines. Rather there are certain essential liberties, even in the realm of marriage, we all enjoy regardless of our ZIP code.
Obama wasn’t technically wrong to observe that states have broad latitude to fashion their own marriage rules and usually have to recognize marriages solemnized in other states. But that state power has important constitutional limitations. The Supreme Court recognized, in its landmark 1967 decision in Loving v. Virginia that the “right to marry is of fundamental importance for all individuals” and “one of the vital personal rights essential to the orderly pursuit of happiness.” After Loving, marriage is deemed a “fundamental freedom” protected by the Constitution, and states cannot deny an individual of this basic right without an exceedingly good reason. If it’s not a good enough reason for a state to prohibit someone from getting married because he committed a crime or failed to pay child support, then it’s clearly not enough that he happens to be gay.
We pause now for a quick constitutional law primer: The Supreme Court has decided marriage cases under both the Due Process and Equal Protection Clauses of the 14th Amendment. The Due Process Clause protects fundamental rights while the Equal Protection Clause prohibits discrimination. Seen as a denial of a fundamental right under the Due Process Clause, the case for marriage equality for same-sex couples should be obvious. Viewed as a matter of discrimination under the Equal Protection Clause it becomes slightly more complicated. The court has acknowledged that certain groups of people are more likely to face discrimination and thus it demands more of the government when it tries to treat them differently. The court has been coy, however, about telling us whether people who are denied a government benefit based on their sexual orientation receive this kind of heightened protection. But the logic for stronger constitutional protection is undeniable. Like racial minorities and women, homosexuals as a group have historically faced societal and government discrimination based on a personal characteristic they cannot control. Thus, as with race and gender, the federal courts must be the guardians of justice and ensure that they are treated equally. That is the argument Cory Booker, mayor of Newark, N.J. has been advancing most vocally.
But if we’re right that this is such a clear federal constitutional issue, then why have both liberals and conservatives continued to insist that this is a matter best left to the states? Two reasons. The first reflects our country’s unique way of dealing with social change through an initial debate at the state level. And the second acknowledges that up until now it made strategic sense.
Much as we may love the idea of our court as the fearless defender of our liberties, as a practical matter, the court has always worked in tandem with the public on matters of civil rights. From slavery to segregation to abortion, we as a nation begin our discussions at the local level. We debate, we argue, we vote, and we enact laws. In theory, the arc of justice is long but we all get there eventually. When the time is right, the court steps in to solidify the consensus, frame the constitutional role, and force acceptance by the outliers. That’s what happened in the civil rights era.
If the court, however, acts too early or misjudges trends, it risks generating a public backlash, perceptions of illegitimacy, and, once, a civil war. Thus timing is everything. When it works smoothly, it looks like Loving v. Virginia, where the court ruled that state anti-miscegenation laws were unconstitutional. At the time, there were only 16 states that still outlawed interracial marriage. Clearly the tide had turned and it was time for the court to act. Less smooth, however, was Brown v. Board of Education. When Brown was decided, the opposition to school desegregation was much stronger and there was no obvious consensus or trend. While universally revered now, it took a contentious and violent decade and every branch of the federal government to ultimately enforce that court decision.
Later in Roe v. Wade, there were signs that the states were already peacefully resolving the issue. Thirteen states had passed laws permitting abortion in the prior 10 years and a number of court decisions had ruled other prohibitions invalid or ineffective. The court’s decision, however, ignited the abortion wars that have been a staple of our time. An enormous amount of constitutional research suggests that Roe v. Wade may have hurt the cause of reproductive freedom by forcing the issue onto the country before Americans were ready. (There is also persuasive research to suggest otherwise, but this has become something of a truism when talking about the court and social change.)
Thus the question is a tactical one, not a constitutional one: Is the timing right to move the debate from the state to the federal battlefield? Are we all ready for Brown or detonating Roe? With marriage equality there is no consensus position. Currently states span the spectrum from constitutional bans to full marriage rights with plenty of “civil unions” and “domestic partnerships” occupying the middle. There are arguments that the trend favors marriage equality (opinion polls and the bulk of the recent movement among states have been in favor of marriage equality), but you can’t just ignore 30 states with same-sex marriage bans.
There are more important practical distinctions with Brown and Roe, however, than just approximating the head count of the state laws. And here it’s important to distinguish arguments about states rights and civil rights. Part of the problem the court experienced with Brown and Roe was that they were messy. Brown was almost too messy to implement and Roe was pretty much too messy to write. In its original Brown decision, the court didn’t even try to figure out how to desegregate the schools, which ultimately involved a complicated system of busing and regulation. The Roe case, meanwhile, required a difficult parsing of stages of pregnancy and hinged on a vague standard of viability that changed with advances in medicine. The court produced an opinion that looked too much like legislation and not a judicial decision. Both of these problems opened the court up to criticisms that it was activist, micro-managing, and anti-democratic.
That is not the case with marriage equality. A federal constitutional opinion would be easy to write and easy to implement. Judge Vaughn Walker already wrote it in his decision about the Prop 8 ballot initiative. There is a right to marry the person you love. Americans cannot be discriminated against simply because of their sexual preference. Justice Anthony Kennedy could go to town with the “poetry of the law.” It wouldn’t be messy; it would be beautiful.
You wanna know what is messy? What’s messy is what we have now—an oddball collection of marriage laws, civil unions, and same-sex bans that stop and start at state lines. This is simply unworkable in a country where we all have the right to travel (another one of those “fundamental rights”) and there’s no way to ask people to check their marriages at the border. Add to the mix that nobody has any idea whether the Defense of Marriage Act can overrule the Full Faith and Credit Clause by telling states that don’t recognize same-sex marriages that they can ignore unions from states that do. We have interstate child custody disputes that are Solomonic in scope. And our schizophrenic tax codes treat the same couple as married on one form and not married on the next. Social Security, Medicaid, health care directives, estate planning, and immigration all hinge on marital status, which in turn hinges on the whim of the voters. The courts are just now wading into that morass and we won’t lie, it’s ugly out there.
The current system is unsustainable. Just as our country couldn’t go on with a mix of free states and slave states, we cannot continue with this jumble of equal marriage states and discriminatory states. Recognizing a federal constitutional right is the only, and the best, method to put this issue to rest.
Advocates (perhaps including the president) will say that the timing is wrong. Gay-rights supporters learned all too well with Bowers v. Hardwick that an ill-timed, unfavorable decision can set back their cause by decades. But eventually we do reach a tipping point where, as a country, we need to address this as the federal civil rights issue it truly is. Or more appropriately, we need to acknowledge that basic equality is not subject to popular vote, even when majorities would like it to be. President Obama’s announcement, we believe, knocked our country over that tipping point, but it needs to go further. The court has been clear that we can go further.
It’s time to fight this battle where it belongs, which is on the federal stage. It’s time to embrace the language of constitutional justice. It’s time to say what is at stake here—true equality, full citizenship for everyone, basic human dignity and, yes, a fundamental right. The state-by-state rhetoric gives too much credence to the argument that the states have an option to discriminate, sometimes, so long as enough of their citizens cast a vote. They don’t. The Constitution forbids it.