A Stitch in Haste

More academically minded same-sex marriage advocates might want to download "The Fourteenth Amendment, Same-Sex Unions, and the Supreme Court," Loyola University Chicago Law Journal, Vol. 38, p. 101, 2006, by Professor Michael J. Perry of Emory University School of Law (PDF - 32 pages).

The paper raises, inter alia, two interesting points about trying to bring same-sex marriage to the Supreme Court under a Fourteenth Amendment challenge:

1. Same-sex marriage might be a way to revive the Privileges or Immunities Clause, which has been a nullity ever since the very first case trying to invoke it:

The thought here is that although not every law that treats some citizens less well than others fails to respect the equal citizenship of those the law treats less well, some laws do, namely, laws that do not serve the public good in a reasonable fashion. A law fails to serve the public good in a reasonable fashion if either (1) it fails to serve the public good at all or (2) it serves the public good — it achieves some public benefit or benefits — but fails to do so in a reasonable fashion. [Emphasis in original.]

Almost every unbiased (i.e., unbigoted) observer accepts the premise that gay marriage bans fall into category (1): nothing is achieved by a bigot amendment except bigotry, which in no way serves "the public good" regardless of how many bigots there may be in "the public." This was why Hernandez v. Robles*, the New York defeat, was so infuriating — the court allowed the legislature literally to guess that there might be some rational basis (i.e., some "public benefit") to denying same-sex marriage (i.e., the court showed absolute deference to the legislature, which is not the definition of "rational basis review").

Perry points out, however, that a case can be made that even if gay marriage bans can, somehow, convey a "public benefit" and therefore not be invalid under category (1), then the bans would, almost by definition, still fall into category (2) and therefore violate the Fourteenth Amendment.

The cost of the (still unidentified) "public benefit" of gay marriage bans is the cost of demeaning gays and relegating them to second-class citizenship in defiance of the Privileges or Immunities Clause. Such a cost is simply too great to justify the bans, especially when the anti-gay discrimination derives from a preconception of homosexuality as "deviant" or "defective" — a view that is not only unsupported by science but is also increasingly contradicted by it. To treat gays so unfairly because of views that are increasingly understood to be just plain wrong (in the nonreligious sense) — all to to eek out a few scraps of "public benefit" — simply cannot be rational and therefore cannot conform to the Fourteenth Amendment.

I still prefer arguing from category (1); but advocates and brief writers should certainly be prepared to argue from category (2) as a fallback position.

2. Advocates of gay marriage should not cite to Loving v. Virginia** without acknowledging the historical context of the case. Stated differently, it is far too early to try to "federalize" same-sex marriage:

Loving involved Virginia's antimiscegenation law, and no doubt some Virginia citizens believed that interracial marriages were contrary to the will of God. By 1967, however, most Americans — even, probably, most Virginians — rejected that belief. As the Court noted, in the fifteen years before Loving reached the Court, fourteen states had repealed their antimiscegenation laws; only sixteen states retained such laws, which were largely unenforced. Thus, by the time the Court decided Loving, [thi]rty-four states did not have antimiscegenation laws on their books.

Cf., Lawrence v. Texas‡ (only nine states had gay-specific anti-sodomy statutes in 2003), or Perry note 74, quoting Richard Posner: "Brown [v. Board of Education‡‡] would have been unthinkable ... had the case arisen in 1900 rather than the 1950s."

This is another version of the "too much too soon" argument that I reject on normative grounds; bigot amendments are either unconstitutional or they're not. I think it's also critical to acknowledge that the only reason that attitudes are changing, especially among the young, is precisely because gay marriage is now a tangible concept and a bona fide political and social issue (i.e., gays had to start somewhere, and regardless of when or where we had started, there was going to be an initial "backlash" anyway).

As a question of pragmatism, however, we may indeed have to wait "a generation or two" as Professor Perry puts it, until the populace, and by proxy the federal courts, will be ready for the inevitable extension of Loving and its progeny to gay marriage. But that does not suggest that state-by-state skirmishes are ill-advised.

(Via Legal Theory Blog.)

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*No. 86 (N.Y.S. Ct. App., July 6th, 2006) (PDF)
**388 U.S. 1 (1966) (HTML)
‡539 U.S. 558 (2003) (HTML)
‡‡347 U.S. 483 (1954) (HTML)