The Supremes, Marriage, and Civil Rights in the 21st Century

When the Supreme Court hears oral arguments in two seminal cases concerning the equal legal treatment of LGBT Americans this coming week, the justices will squarely confront the question of marriage equality for the first time in the Court’s history. At the outset, it should be noted that the Court’s decision to grant certiorari in the first place is a sign of the extent of the progress that’s been made: the last case to even remotely address the question, Baker v. Nelson (1972), was a mandatory appeal from a decision by the Minnesota Supreme Court, and the case was disposed of in a summary dismissal “for want of a substantial federal question” (translation: the denial of nuptials to gays and lesbians is so obviously constitutional that we need not even dignify the question with arguments or an opinion explaining our reasoning). This year, the Court will hear arguments after full briefing, and the outcome (whatever it may be) will be accompanied by a full explication of the justices’ legal reasoning. Whereas in 1972 the legal academy did not consider the exclusion of LGBT couples from marriage to present a substantive constitutional issue, in 2013 numerous federal courts throughout the United States, including two federal appeals courts, have invalidated prohibitions of same-sex marriage. We’ve reached a watershed, and the outpouring of public support and breathtaking pace of societal acceptance of gay rights may indeed be judged by constitutional theorists as one of Bruce Ackerman’s “constitutional moments.” Only time will tell.

I am a second-year law student, and approach discussions of this particular issue from that perspective. After two years of legal training, I really can’t help it. For many advocates, I suspect that the Supreme Court is viewed as merely a means to an end: “we believe in the cause of gay rights, and we don’t care how it happens. If we get it through the action of state courts and legislatures, so be it; if the U.S. Congress takes action, so be it.” This is the political/policy advocate’s perspective, and I’ll leave issue advocacy to those who are involved in that sort of thing. For me, the importance of the upcoming oral arguments in two cases, Hollingsworth v. Perry (the litigation surrounding California’s Proposition 8, which amended that state’s constitution to define marriage as limited to unions between one man and one woman) and U.S. v. Windsor (challenging the constitutionality of the Defense of Marriage Act passed in 1996) entails a basic question, an age-old debate we’ve been having in this country in respect to the approach we use when interpreting our Constitution. For those who think that this is about a “cutting-edge,” “novel” culture wars clash limited to the second half of the twentieth and twenty-first centuries, think again. This is about a philosophical divide which first manifested itself in the Supreme Court’s jurisprudence in 1798, when the justices were called upon to pass on the constitutionality of an act of the Connecticut legislature. Although the court was unanimous in the case, Calder v. Bull, in holding that the statute under review did not violate the Ex Post Facto Clause found in Art. I, §10 of the federal Constitution, today’s constitutional law students do not generally read the case for that holding. The otherwise obscure litigation has become famous in constitutional legal history because of the divergence between the reasoning of Justice Chase, who wrote for the majority, and Justice Iredell, who wrote separately in a concurring opinion. Justice Chase framed the Court’s power of judicial review in the context of natural law: there is a higher-order source of individuals’ legal rights, and no legislature may properly infringe these rights. Essentially, the idea is as follows: we do not possess individual, inalienable rights because of the constitutional text; rather, the text of the Constitution, a foundational charter containing broad principles to be elaborated over time, is a reflection of those rights. Justice Iredell rejects this view in his concurring opinion. Iredell, and those who hold his view of constitutional interpretation, believe that our founding charter operates more like Hammurabi’s legal code of antiquity: individual rights are derived from the text, and government’s power to infringe individual liberty is only narrowly circumscribed by the express limitations contained therein.

In the parlance of modern day constitutional theory, this is essentially the debate between what I’ll call the “foundational charter” view and originalism. Advocates of the former approach to interpretation believe, as Chief Justice Marshall said in McCulloch v. Maryland, that “it is a Constitution we are expounding” (emphasis added). In other words: the framers and ratifiers crafted a foundational charter of principles, articulated in broad-sweeping terms, the application of which to specific legal disputes would be for the courts and the people over time. How could it be, after all, that a document forged out of bitter compromise between delegates to the Constitutional Convention, men who bitterly disagreed over slavery and indeed the very nature of the powers to be exercised by the new national government, could have intended for the Constitution to ossify around a singular, fixed meaning, tethered to the world of the eighteenth century? Essentially, advocates of the foundational charter view (sometimes referred to as “pragmatism” or “living constitutionalism”) believe that, while the Constitution has enduring principles, such as equal protection and due process, it is for each generation to interpret those principles in the context of new legal questions which the framers and ratifiers could never have anticipated. In other words, the principles protected by the Constitution remain the same, but the growth and evolution of a dynamic society require our courts and legislatures to give them meaning in our modern world. 

Then, there is a view the growth in popularity of which is of relatively recent vintage: originalism. More than any other single jurist or legal mind, this view may be ascribed to Justice Antonin Scalia and his ideological companions. Justice Scalia would describe it in the following way: how do we know whether or not the Equal Protection Clause of the Fourteenth Amendment or the equal protection component incorporated in the Fifth Amendment’s Due Process Clause protects the right of LGBT people to marry? Well, we look to the marriage statutes extant at the time of the Fourteenth Amendment’s ratification in 1868. Were gay and lesbian people permitted to marry in those days? Why, no, so therefore the Constitution “says nothing about” the question and thus it is the province of state legislatures to make policy in this area. Justice Scalia would say that this theory of interpretation minimizes the level of subjectivity that is involved in constitutional jurisprudence. Nevermind that sexual orientation as a category of identity did not even really exist in 1868, and thus the absurdity of the inquiry into whether or not gay persons were given the right to marry at that time or the significance of that fact for constitutional purposes.

What is the problem? First of all, despite the growing trend of GOP senators in the confirmation hearings of federal judges to presume that this is somehow the “Correct” and only valid approach to interpretation (and any judge who thinks otherwise is “activist” or “legislates from the bench”), there is nothing inevitable about originalism. The Constitution did not, regrettably, come with a user’s guide (although the Federalist Papers give us some clue about what three of the framers had in mind, these are largely focused on the structure of the nascent federalist system and say virtually nothing about the approach judges should employ in judicial review). Originalism is one of numerous competing theories of interpretation, and the fundamental divide is, as Calder v. Bull illustrates, one that is as old as the American republic itself.

So when everybody listens to the oral arguments this coming week (or reads the transcripts before they’re available in audio, if they’re nerds like me), I hope they’ll remember that this indispensable debate remains always in the background. On one level, yes, this is about the extension of the right to marry to all people, regardless of sexual orientation. On a more basic level, though, the inquiry is really this: does the principle of equal legal treatment embodied in the Fourteenth and Fifth Amendments to the United States Constitution encompass our gay and lesbian friends, family, colleagues, brothers, and sisters?  Can it be so interpreted, despite a tradition and history of treating LGBT people differently under law and in our society? In 1973, the Court answered that question in the affirmative with respect to gender discrimination in Frontiero v. Richardson. In 1954, the Court answered that question in the affirmative with respect to race in Brown v. Board and Bolling v. Sharpe. In the 1967 case of Loving v. Virginia, the Supreme Court said of the right to marry: it is “one of the ‘basic civil rights of man.'”

Does that affirmation, that marriage is a basic civil right, foundational to an individual’s happiness and implicating the most intimate of choices and associations, resonate in the case of Edie Windsor, the named plaintiff in U.S. v. Windsor? Ms. Windsor loved her partner and wife of forty years, Dr. Thea Spyer, but Thea passed away without ever seeing marriage equality come to New York State (the pair married in Toronto in 2007). Edie was a computer programmer with IBM; Thea was a clinical psychologist.

The debate I’ve outlined above, in closing, is about two different types of people. People in the first category look at Edie and Thea’s story and see difference, they see the “other,” they don’t see anything that resembles the loving commitment that heterosexual couples exchange in vows every day. People in the second category learn of Edie and Thea’s story and see, at bottom, the love and commitment of married couples throughout our history. They are touched by the strength of these two women in their love for each other, a love so strong that no criminal law, no Proposition ratified in California, no crime of hatred, not even Thea’s own debilitating and ultimately fatal illness, could extinguish its flame.

Whether or not more flames of light will emerge from the darkness depends, in part, upon these two very important cases that the Supreme Court is about to decide. A principle no less than the nature of liberty and equality embodied in our Constitution is at stake.