SAME-SEX MARRIAGE AND THE CONSTITUTION

Vol. 13 No. 12 (December 2003)

SAME-SEX MARRIAGE AND THE CONSTITUTION, by Evan Gerstmann. New York: Cambridge University Press, 2004. Cloth, $60.00. Paper, $22.00. ISBN: 0521009529.

George Thomas, Department of Political Science, University of Oklahoma, gthomas@ou.edu

Writing in dissent in LAWRENCE v. TEXAS, where the Court overturned a statute prohibiting homosexual sodomy on due process grounds, Justice Scalia noted that the Court's "reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples" (LAWRENCE, Scalia, J., dissenting). Taking direct aim at Justice Kennedy's and Justice O'Connor's equivocations on whether the logic of the Court's ruling would have any impact on same-sex marriage, Scalia argued that "this case Ôdoes not involve' the issue of homosexual marriage only if one entertains that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so." And perhaps with Justice O'Connor controlling the center it will be. Still, LAWRENCE leaves state prohibitions on same-sex marriage, as well as Congress' Defense of Marriage Act, on tenuous ground. While it appeared that this issue would be played out over the meaning of Article IV's "full faith and credit clause" between the states, with a few vanguard states recognizing same-sex marriage and others resisting, the Court's opinion in LAWRENCE may well push this debate aside, opening the door wide to challenges of the same-sex ban on due process and equal protection grounds. The Massachusetts Supreme Judicial Court's opinion in GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH, striking down that state's prohibition on same-sex marriage under its state Constitution, even drew explicitly on the logic of LAWRENCE. Such arguments are sure to find their way to the Supreme Court. In light of this, opponents of same-sex marriage are even proposing a preemptive constitutional amendment that would limit marriage to its traditional form. Given this turn of events, the release of Evan Gerstmann's SAME-SEX MARRIAGE AND THE CONSTITUTION is serendipitous.

Gerstmann argues lucidly and cogently that prohibiting same-sex marriage violates the equal protection clause of the Fourteenth Amendment. This straightforward argument, and the seriousness with which he treats other analyses, is one of the most refreshing aspects of Gerstmann's book. SAME-SEX MARRIAGE AND THE CONSTITUTION begins by taking up the most common constitutional arguments supporting same-sex marriage, as well as the most common objections to such arguments. He finds both wanting. Gerstmann rejects the notion that discrimination against same-sex marriage is really a form of gender discrimination, as some clever law professors have argued. To wit: same-sex marriage bans prohibit a woman from marrying the woman of her dreams, while allowing a man to marry this very same woman. Because the same-sex marriage ban allows a man to do something that it prohibits a woman from doing (and vice versa), it thereby discriminates on the basis of gender (p.43). This is the sort of too-clever-by-half legalistic reasoning that gives lawyers a bad name, and yet it was, in fact, the basis of the Hawaii Supreme Court's invalidation of that state's ban on same-sex marriage (under the Hawaii Constitution) in BAEHR v. LEWIN. It even got a nod from a concurring opinion in GOODRIDGE.

Gerstmann also rejects the notion, proffered by legal scholars like William Eskridge, that same-sex prohibition is a subtly masked form of patriarchy, which, when properly unmasked, is a form of discrimination against women. Gerstmann is rightly skeptical of such abstraction and the "freewheeling sociological expedition" it would call forth from the Court in practical terms. Putting aside the facile legal reasoning of these arguments as intellectually dishonest, insofar as they willfully overlook the obvious, Gerstmann insists "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" (p.59).

From here Gerstmann considers the reasons for prohibiting same-sex marriage, insisting that "society is obligated to explain" why marriage must be limited to heterosexuals (p.23). While he finds the arguments for prohibiting same-sex marriage wanting, or in need or further elaboration, he takes them very seriously, giving them their due weight, and he does not find them irrational. In fact, Gerstmann concludes that such arguments would easily pass traditional "rational scrutiny," even if they would likely fail the Court's more exacting test of "strict scrutiny."

Yet Gerstmann rejects attempts to bring gays and lesbians under the rubric of a "suspect class," which would subject laws that discriminate against them to this heightened scrutiny, building upon his earlier book, THE CONSTITUTIONAL UNDERCLASS. Partly, he is opposed to such an approach for political reasons, persuasively noting that it "exacerbates the public perception that [gays and lesbians] are seeking special rights rather than equal rights" (p.63). But, more importantly, he views such a move as constitutionally unsound, arguing that the multi-tiered standard of equal protection-with its arbitrary and sloppy divisions easily subject to judicial manipulation-should go, because it undermines the very notion of equal protection of the law. Gerstmann's pellucid analysis of strict scrutiny and equal protection cuts to the heart of this legal subterfuge and in its place offers a straightforward plea for robust equal protection: a standard that applies to all and not particular "suspect classes." In rejecting the Court's current equal protection jurisprudence as a hopeless and rigged muddle, Gerstmann finds common cause with Justice Scalia's dissent in LAWRENCE and his call for principled legal reasoning (even drawing on Scalia to support his case for same-sex marriage). Unlike Scalia, Gerstmann wants to rethink how we identify fundamental rights, rejecting much of the post New Deal legacy as exemplified by "ordered liberty," "reasoned judgment," history and tradition, or originalism. In place of these, Gerstmann sketches a principled, if practical, understanding of fundamental rights, rooting them in Court precedent and in their connection with other rights, as well as considering whether the state has a monopoly on the right at stake (as it does in marriage) and whether such rights are best understood as political questions (as he argues welfare rights are).

Placing the burden on those who would deny same-sex couples the right to marriage, Gerstmann lays bare the most common arguments for such a move, taking particular aim at marriage as tied to procreation and the tautological notion that marriage is between a man and a woman. He confronts head-on such freighted issues as polygamy and incest laws, the bogeymen of same-sex marriage: if we cast off the prohibition of same-sex marriage, what is to prevent us from prohibiting polygamous or incestuous marriages? Gerstmann, going where angels fear to tread, is fairly persuasive in making such distinctions, particularly in suggesting that offering fresh arguments for such prohibitions, rather than the tired old shibboleths, will actually have a positive effect. If it seems, for a moment, that he is seeking a return to a pre-New-Deal constitutionalism that would place the burden on governmental justification, rather than the so-called rights bearer, he quickly closes the door on that line of thinking.

Thus Gerstmann argues that the "constitutional right to marry was present at the very birth of noneconomic substantive due process rights," while seeking to cabin this right and keep substantive due process at bay. Thus we must identify fundamental rights (or "preferred freedoms"). In doing so, he draws on cases like SKINNER v. OKLAHOMA and such pre-New-Deal favorites, uprooted from their constitutional moorings, as MEYER and PIERCE. From these cases he wrests the right to marriage as a fundamental right, yet rejects the due process arguments these latter cases were grounded in. The virtue, for Gerstmann, is that these fundamental rights are more properly situated in the equal protection clause and defended as equal rights for all, rather than as unpersuasive glosses on liberty under the due process clause. Anyone familiar with twentieth century constitutional history knows perfectly well why Gerstmann wants to root fundamental rights in equal protection rather than due process, but his attempt to distinguish equal protection from due process in the articulation and defense of unenumerated rights is no more persuasive than the Court's own post-New-Deal efforts-and in large measure because he has digested the New Deal critique of due process.

Gerstmann insists, for example, that the LOCHNER era Court was not generally inclined to draw on the equal protection clause. In support of this proposition-hold on to your hat-he dusts off Oliver Wendell Holmes' dismissive line from BUCK v. BELL that the equal protection clause is "the usual last resort of constitutional argument" (p.118). As revisionist scholarship has shown, Holmes was hardly typical of the LOCHNER COURT, rejecting both substantive due process and equal protection, which were often, in the hands of this earlier Court, the same thing. To legislate against a particular class of persons (gays and lesbians, for example) violates the due process clause because it deprives that group of equal protection of the laws without a public reason (e.g. YICK WO). Thus the LOCHNER COURT, contrary to Gerstmann, did offer a coherent theory of constitutional interpretation. But because it placed the burden on legitimate state action, it did not need to develop a coherent theory of fundamental rights; the burden was on the legitimate exercise of governmental power and not the "rights bearer." Here, Gerstmann neglects the fact that originalism-as revisionist scholarship has shown-could actually support the type of argument he is trying to make, but instead of drawing on this logic, he offers staid criticism of it. It is the abandonment of this earlier constitutional logic that has made the development a coherent theory of fundamental rights necessary (Gillman 1994). Rooting one's argument in equal protection doesn't solve this problem, as it doesn't get around the substantive component of the argument (SKINNER at 544, Stone, C.J., concurring). Nor is there reason to believe-given history, text, and logic-that the equal protection clause avoids the dilemmas of the due process clause in this endeavor.

This is vividly illustrated in Gerstmann's analysis of the Court's opinion in BOLLING v. SHARPE, where segregated schools in Washington, D.C. were deemed unconstitutional based upon the Fifth Amendment's due process clause (as the Fourteenth Amendment's equal protection clause does not apply to the national government). As Gerstmann argues, "to avoid substantive due process, [the Court] essentially grafted the equal protection clause onto the Fifth Amendment." Thus, he concludes, "the Warren Court reinvigorated the fundamental rights doctrine, and did so by relying upon the equal protection clause" (p. 119). This is a painful and dubious stretch. While the Court did indeed insist upon this logic, and for the reasons Gerstmann suggests, it simply won't wash. The Court did not avoid substantive due process here by turning to equal protection; rather, it attempted to disguise what it was doing. BOLLING is (less than fully reasoned) substantive due process and illustrates precisely how these two clauses merged in the Court's earlier logic. Consider that an honest argument along these lines-that the segregated schools violated due process because they arbitrarily treated similarly situated persons in an unequal manner-would probably have been more persuasive long term than the Court's actual opinion in BROWN and bears a striking similarity to the cast of argument Gerstmann makes in regard to homosexual marriage. So even if we root this in equal protection, it is "substantive equal protection" and it calls forth the same kind of logic as substantive due process.

There may be sound historical reasons for wanting to limit the reach of due process, yet these very reasons might lead some to reject same-sex marriage enforced by the Court even if placed within the contours of "substantive" equal protection. This, after all, is precisely what animates Scalia's cabining of substantive due process to text, history, and tradition. Gerstmann was positioned to make a far more reaching argument about fundamental rights; it is too bad he fell back, even if indirectly, on much of the conventional wisdom that, to my mind, seems more dogmatic than reasoned-much like the arguments against same-sex marriage that Gerstmann so persuasively challenges. It may be that the Court is not cut out for weighing the basis of governmental action and so must single out "preferred freedoms" for judicial protection. But, as Gerstmann notes, the Court hasn't performed particularly well here either, especially with regard to marriage: "[a]lthough the Supreme Court has repeatedly held that there is a constitutionally protected right to marry, it has been extraordinarily sloppy in explaining where this right comes from and in delineating its contours" (p.69). This does not prevent Gerstmann from singling out (some) fundamental rights for special judicial protection, which amounts, in the end, to a refinement and confirmation of post-New-Deal constitutionalism, not a rejection of it.

Thus I suspect that, while Gerstmann has written a provocative and important book on same-sex marriage, it will not do much to change the nature of the debate about fundamental rights. Oddly, perhaps, Kennedy's opinion in LAWRENCE and the Massachusetts Supreme Judicial Court's opinion in GOODRIDGE may do more along these lines. Finding prohibitions against same-sex activity so arbitrary that they fail the rationality test, these opinions may well be departures from such fundamental rights thinking, opening up new avenues of constitutional thought. Still, this shortcoming of SAME-SEX MARRIAGE AND THE CONSTITUTION should not overshadow Gerstmann's achievement. Scholars on all sides will be forced to confront his arguments on the specifics of same-sex marriage. A handful of scholars will even be eager to push Gerstmann's logic further than he is willing to. Logic, after all, as Scalia noted in his closing lines of LAWRENCE, has an inexorable force of its own.

REFERENCES:

Gerstmann, Evan. 1996. THE CONSTITUTIONAL UNDERCLASS: GAYS, LESBIANS, AND THE FAILURE OF CLASS-BASED EQUAL PROTECTION. Chicago: University of Chicago Press.

Gillman, Howard. 1994. "Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence" 47 POLITICAL RESEARCH QUARTERLY 623-653.

CASE REFERENCES:

BAEHR v. LEWIN, 74 Haw. 530 (1993).

BOLLING v. SHARPE, 347 U.S. 497 (1954).

GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH, SJC 08860 (MA, 2003).

LAWRENCE v. TEXAS, 539 U.S ____ (2003).

MEYER v. NEBRASKA, 262 U.S 390 (1923).

PIERCE v. SOCIETY OF SISTERS, 268 U.S. 510 (1925).

SKINNER v. OKLAHOMA, 316 U.S. 535 (1942).

YICK WO v. HOPKINS, 118 U.S. 356 (1886).

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