-Submitted by David Drumm (Nal), Guest Blogger
One of the arguments used by those who oppose same-sex marriage is “does the state have the right to define marriage as it sees fit?” This issue was addressed by the Court in the opinion written by C.J. Warren:
… the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment.
The Court is not “redefining” marriage, it is setting the Constitutional bounds on the State’s police power.
Another argument used by those who oppose same-sex marriage is that the Equal Protection Clause of the Fourteenth Amendment does not apply since “there is no test or law banning gays from marrying a person of the opposite sex.” This was the same argument used by Virginia in Loving: “miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race.”
The Court rejected the idea that “equal application” of Virginia’s law was enough to circumvent the proscriptions of the Fourteenth Amendment. Virginia had hoped to have its statutes considered under the rational basis test, where “any possible basis for concluding that they serve a rational purpose” would allow the statutes to be upheld.
The Loving Court also opined that marriage is one of the “basic civil rights of man,” and that the “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” This would seem to put marriage squarely in the category of fundamental rights, requiring application of strict scrutiny for purposes of equal protection analysis. In Shapiro v. Thompson (1969), the Court held that any burdening of a fundamental right must promote a “compelling governmental interest.” The denial of the fundamental right of marriage to same-sex couples doesn’t even pass the highly deferential rational basis level of scrutiny.
J. Scalia, in his dissent in Lawrence v. Texas (2003), noted that the majority ruling leaves “state laws limiting marriage to opposite-sex couples” on pretty shaky ground. However, many agree with J. Scalia when he asserted that Lawrence was not a fundamental rights case. According to J. Scalia, any state that outlaws behavior that is “immoral and unacceptable,” will satisfy the rational basis test. How does one fail this test?
In McCulloch v. Maryland (1819), C.J. John Marshall wrote that the Constitution needs to be adapted to new situations if it is “to endure for ages to come.” Those who expound the Constitution should adopt Marshall’s “Adaptive Constitution” to ensure its continued relevance.
In Loving, the Court didn’t side-step the issue, but found that the Virginia’s statutory scheme “violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.”
H/T: Sandy Levinson, Gayle Lynn Pettinga (pdf), Arthur S. Leonard, Jeffrey D. Jackson (pdf).