After the Supreme Court found a constitutional right to same-sex marriage in Obergefell v. Hodges in June 2015, county clerks and other state and local officials around the country began to issue marriage licenses to same-sex couples, but some probate judges in Alabama were uncertain of their legal obligations, given a prior state supreme court order barring the issuance of marriage licenses to same-sex couples. Into the breach strode the then-Chief Justice of the Alabama Supreme Court, Roy Moore, who issued an order barring probate judges from issuing such licenses. Although Moore cited technical procedural doctrines in his order, no one who knew the man who would someday run a scandal-filled and unsuccessful campaign for the US Senate was fooled. Moore sought to undercut the US Supreme Court and the constitutional rights of lesbian and gay Americans in Alabama.
Roy Moore has returned to private life, but the sentiment that drove his Court-defying order remains very much alive in the Heart of Dixie. As reported recently on NPR, Alabama and some other states are seriously considering proposals that would avoid the obligation to issue marriage licenses to same-sex couples by eliminating any requirement that couples obtain marriage licenses from the state. Although the Alabama bill’s sponsor characterizes his proposal as aimed at “getting Alabama out of the marriage business,” that is not quite accurate. The bill would eliminate the requirement of obtaining a marriage license, but it quite clearly would leave the state-recognized status of marriage intact. A similar bill passed one house of the Oklahoma legislature in 2015.
What purpose do such bills serve? They appear to be a means by which to excuse government officials who oppose same-sex marriage on religious or other grounds from having to issue marriage licenses to same-sex couples. In the Masterpiece Cakeshop case, the Supreme Court will soon decide whether the owner of a bakery has a First Amendment right to refuse to sell a wedding cake to a same-sex couple, but whatever result the Court reaches in that case, government officials stand on a different footing, as the saga of Rowan County, Kentucky clerk Kim Davis illustrated. Government officials may well be constitutionally obligated to issue marriage licenses where state law requires such licenses to marry.
So long as Alabama, Oklahoma, Kentucky, and other states continue to recognize marriage—and continue to recognize same-sex marriage on an equal footing with opposite-sex marriage—laws that change the mechanism by which any couple establishes their marriage will likely be upheld as constitutional. But what if a state were to go further? What if a state really were to get out of the marriage business by abolishing the legal status of marriage? Would that be unconstitutional?
A short but insightful essay by Stanford Law Professor Pamela Karlan in the California Law Review anticipated that question five years before the Supreme Court decided Obergefell. Professor Karlan identified two potential constitutional violations. First, abolishing marriage could be said to violate equal protection if it were adopted for the purpose of denying marriage to same-sex couples. And second, because marriage is a fundamental right, the state may be obligated to make it available to all competent adults. I shall consider these possibilities in turn.
Leveling Down
The equal protection argument meets with an immediate objection: If the state abolishes marriage for everyone, how does it deny equality to same-sex couples, who would be treated no differently from opposite-sex couples? As a general rule, states comply with equality when they extend a previously exclusive benefit to everyone on an equal basis or when they take it away from everyone. The latter approach—so-called “leveling down”—has repeatedly been deemed permissible by the Supreme Court, including as recently as last year, when Justice Ginsburg wrote a majority opinion in a sex equality case holding that Congress would have preferred leveling down to leveling up.
Leveling down appears to be an option even when it is undertaken for the obvious purpose of denying a right to a disfavored group. That’s what the city of Jackson, Mississippi, did in the 1960s when it was ordered to stop operating racially segregated public swimming pools; it closed all of its public swimming pools. Observing that, despite the city’s evil intentions, its actions did not result in unequal treatment, the Supreme Court rejected an equal protection challenge to the pool closings in the 1971 case of Palmer v. Thompson.
Professor Karlan writes that Palmer might not be decided the same way today, because it “rested in substantial part on the since-eroded proposition that the motive or purpose behind a law is irrelevant to its constitutionality.” That’s true, but Palmer also rested on the proposition that the African American residents of Jackson were not materially disadvantaged by the city’s closing of the pools. The post-Palmer cases that make illicit motive actionable all involve both illicit motive and some kind of disparate impact.
To be clear, Palmer was wrongly decided on its facts. As Harvard Law Professor Laurence Tribe explained in a 1993 article in the Supreme Court Review, white Jackson residents undoubtedly had greater access to private (racially segregated) pools than African American Jackson residents had, so, in addition to an illicit purpose, the pool closings did have a disparate racial impact.
Still, the general principle of Palmer may well survive: when government levels down, even with an illicit purpose, there is no equal protection violation in the absence of a disparate impact. And if that principle survives, then a state’s complete abolition of marriage would be consistent with equal protection, because it would affect all married and potentially married couples equally.
An Unusual Fundamental Right
Even assuming that Palmer remains good law, however, there is an obvious distinction between shutting down public swimming pools and shutting down state recognition of marriage. There is no constitutional right to swim in a public pool, but the Supreme Court has repeatedly said that marriage is a fundamental constitutional right. Indeed, in Obergefell itself, Justice Kennedy’s majority opinion placed chief reliance on the liberty to marry, with principles of equality entering into the analysis only secondarily.
Leveling down may be a valid response to remedy a denial of equality, but where the vice of a law is its denial of liberty, taking the liberty at issue away from a larger group exacerbates rather than remedies the violation.
And yet, a right to marry is an odd kind of fundamental right. Except in special circumstances, such as the right to free counsel for indigents in criminal cases, the US Constitution protects rights against government interference, rather than rights to government assistance or recognition. In that sense, the right to marry differs from other fundamental rights that the Court has found in the Due Process Clauses of the Fifth and Fourteenth Amendments.
A right to use contraception is a right to use it without penalty by the government. Likewise, a right to abortion is a right to an abortion without undue government interference. So too, the right of adults to consensual sexual relations regardless of the sex of their partners protects against government regulation of such relations. By contrast, the right to marry asks the government to do more than stay out of the way.
Dissenting in Obergefell, Justice Thomas made just that point. By failing to recognize marriage, he said, states were not restricting anyone’s ability “to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children.” Justice Thomas protested that “receiving governmental recognition and benefits has nothing to do with any understanding of ‘liberty’ that the Framers would have recognized.”
Justice Thomas was wrong about the bottom line in Obergefell, because he failed to take seriously the equal protection argument for same-sex marriage in states that recognize opposite-sex marriage. But he had a fair point about liberty, did he not? And if so, does that mean that a state really could abolish marriage for everyone?
The Obergefell majority did not directly address this question, because it did not need to. Neither have any of the other cases involving marriage in the Supreme Court. In those other cases—chiefly Loving v. Virginia, which involved the right to interracial marriage, and Zablocki v. Redhail, which involved the right to marry by a person under court order to pay child support—the state generally recognized marriage but limited the right to certain people under certain circumstances. Although it is clear that these cases conceptualized marriage as an exercise of liberty, the Court has never had occasion to consider whether a state could get out of the marriage business completely.
Yet that fact itself is telling. Conservatives sometimes insist that the Court should only recognize constitutional rights that are deeply rooted in our nation’s history and traditions. On that score, marriage clearly qualifies. From colonial times through the present, American jurisdictions have had laws giving recognition to marriage. Yes, a right to government recognition differs from a right to be left alone by the government. But nowhere does the Constitution expressly rule out the possibility that by denying recognition to an institution or practice, the government could be denying an aspect of liberty.
What about Justice Thomas’s complaint in his Obergefell dissent that a right to affirmative recognition of marriage would have been unrecognizable by the Framers? Perhaps the best answer appears in a majority opinion authored by Justice Kennedy in another gay rights case. In Lawrence v. Texas, he wrote: “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific.” If they had been more specific, however, constitutional law would probably be less interesting!
Postscript: I dedicate this column to the memory of my dear friend Julie Hilden. I set out a few thoughts on Julie’s life and work on my blog. Here I would just add that same-sex marriage was an issue of personal importance to Julie, who, out of solidarity, delayed marrying her longtime partner until there was marriage equality.
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