It doesn’t take a weatherman to tell which way public opinion blows. The huge uptick of support for same-sex marriage has beendescribed as swift and broad, to which we can add, in all likelihood, lasting.
In my view, every time the defenders of the traditional view of marriage speak in public on behalf of a ban, they lose the support of neutral third parties. The problem is that they are trying to tell other people how they should lead their own lives, and are using the power of the state to do it. Their justifications are far from compelling. They talk about the need for procreation in marriage, though many straight married couples use contraceptives. They talk about the risks to parenting, when there is no evidence that suggests that gay and lesbian couples are worse parents, especially when compared to dysfunctional couples in traditional marriages or single parents of limited financial means. Their arguments against same-sex marriage thus fall flat to modern ears, so that the basic support for same-sex marriage only grows.
The transformation of public opinion dovetails nicely with the recent Supreme Court decision in Obergefell v. Hodges, in which Justice Anthony Kennedy’s Olympian opinion echoed the social tidal wave in favor of same-sex marriage. Kennedy did not bother to articulate what standard of scrutiny, high or low, controls the case. In his mind, the case for an inclusive definition of marriage is so strong that the ban on same-sex marriage cannot survive under any standard of review. Analytically, however, he provided only weak answers to an even more fundamental question: What judgments should be left to democratic processes and what judgments should be insulated against majoritarian politics?
This problem has special urgency here because of the unbroken historical record that defines marriage as a union between a man and a woman. Justinian’s Institutes of the sixth century AD, for example, apply the rules of marriage only to human beings, but treat them as part of “that law which nature teaches to all animals.” That code of law states: “Marriage, or matrimony, is a binding together of a man and woman to live in an indivisible union.”
The defense of the traditional understanding of marriage that was raised forcefully by Judge Jeffrey Sutton in the Sixth Circuit(and picked up by Chief Justice John Roberts in his pointed dissent in Obergefell) raises the question of how can the Court read the Constitution to invalidate the universal definition of marriage as between a man and a woman? Tradition is a legitimate ground on which to defend social legislation elsewhere, so why not here?
The best way to go is to try to understand why the traditional definition of marriage was universal. The defenders of traditional marriage claim that the purpose of marriage is procreation, which is impossible with same-sex couples. Kennedy denies that there is any good fit between marriage and procreation: After all, many men and women wish to marry when they do not or cannot have children, so the state could never condition a marriage license on couple’s commitment to have children.
Nonetheless, this response underestimates the role of procreation in defining marriage. Historically, procreation was widely regarded as the essential purpose of marriage. Indeed, the words in Genesis 1:28, “be fruitful and multiply and fill the earth and subdue it,” read as much like a command as a blessing. Within this framework, same-sex relationships are different: They can never add offspring to society, but they can reduce them by taking both men and women out of the reproductive market, and thus undercut that social imperative. The preservation of society through reproduction is strongly tied to traditional marriage, but not to same-sex marriage. So why condemn the traditional view as arbitrary when it tends to advance a desirable societal end?
Historically, this point found a constitutional home. Even though the traditional “morals” head of the police power is nowhere mentioned, it had long been used to give the state extraordinary leeway in regulating all sorts of sexual relations, as was detailed in Justice Byron White’s now-widely-reviled 1986 opinion in Bowers v. Hardwick, whose historical accuracy remains unquestioned. As late as 1961, all 50 states outlawed all forms of sodomy, even though many bans fell into desuetude. But throughout it all, no one, anywhere, has suggested that it would fall in the power of the state to abolish the traditional institution of marriage altogether. The overall consequences for child rearing would be disastrous.
It is fair to respond, as Kennedy does, that the advocates of same-sex marriage do not wish to ban marriage but to partake in it, so that there is nothing to fear from the decision except the fuzzy sentiments of individuals opposed to the practice. That is a good reason to ask the legislature to change the definition. But it is less clear that it is a good reason to allow courts to preempt the democratic process. On this point, the Kennedy response is to say that there has already been “far more deliberation” than the Sutton opinion acknowledges in every conceivable forum. In Kennedy’s view, the endless discussion has led to an “enhanced understanding” of the issue—namely his—which displaces the vote as a way to resolve the debate. The dignitary interests of these couples is so strong that it is “demeaning to lock same-sex couples” out of marriage.
Yet at no point does he ask whether the criminalization of polygamous marriages under the Supreme Court’s 1878 decision inReynolds v. United States—an uncommonly ugly invocation of the morals head of the police power—should be overturned given how it demeans and punishes polygamous families. His blinkered view of autonomy lets him attack the restriction of marriage to persons of opposite sexes, but not its limitation to two people.
The Scalia dissent scores big points in attacking Kennedy for judicial hubris, by insisting that the whole point of democracy is not just to inform the justices but to let the people decide on the issue. So Kennedy, like everyone else, must explain why a nationally consequential decision on same-sex marriage should be taken out of the democratic process. His answer is that it involves the assertion of a “fundamental right,” a term that he nowhere defines. Thus, when the fundamental rights of persons are violated, “the Constitution,” he writes, “requires redress by the courts, notwithstanding the more general value of democratic decisionmaking.”
At this point, his analysis turns wobbly. Kennedy eagerly talks about the “dignity” of the individual in two-person marriages. And he lauds the Court’s 1967 decision in Loving v. Virginia for striking down the ban of interracial marriage between a man and a woman, on the combined strength of the Due Process and the Equal Protection Clauses of the Fourteenth Amendment. The libertarian foundations of Loving are also evident.
But why stop there when the concept of liberty goes a lot further? In particular, Kennedy never explains why his notions of dignity and autonomy do not require the Supreme Court to revisit its 1878 decision in Reynolds upholding criminal punishment for polygamy, which is still on the books. Nor does he ask whether the dignity of workers could, and should, be used as a reason to strike down the full range of labor regulations on both wages and hours that make it flatly illegal for two individuals to enter into a simple employment contract on mutually agreeable terms.
To his credit, Chief Justice Roberts—no libertarian—sees the connection, and thus uses his condemnation of the 1905 Supreme Court decision, Lochner v. New York, for striking down a maximum hours law, as a cudgel to explain why the Constitution has nothing to say about same-sex marriage. Unfortunately, Roberts lurches too far in the opposite direction. Historically, the case for economic liberties is far stronger than that for same-sex marriage because labor never got entangled with the morals head of the police power. Indeed, much recent scholarship, especially by David Bernstein, shows the dubious special interest, anticompetitive politics that Lochner helped thwart. It would be a lot easier to accept the Kennedy position if he were prepared to embrace a concept of liberty for all by overturning Reynolds and restoring Lochner. But on those areas, inexplicably he flips back to the democratic side, without ever defining the state interest in squashing the operation of competitive labor markets.
It gets worse because in the wake of Obergefell, we have to ask what the next step in the struggle over same-sex marriage will be. By insisting that same-sex marriage is a fundamental right, Kennedy has consciously introduced an equivalence between race and sexual orientation. How far is he prepared to go? In the 1983 case of Bob Jones University v. United States, the Supreme Court upheld an IRS decision to deny tax-exempt status to schools engaging in racial discrimination. The Court acknowledged that it could not outlaw the Church’s practices, which were protected as a free exercise of religion. But the differential tax treatment was fine because “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”
Can the IRS now deny tax exemption to the Roman Catholic Church on the ground that it rejects, on religious grounds, same-sex marriage? If so, that judicial notion of “fundamental interests” works effortlessly both to expand and contract state power. It can insulate the exercise of some liberties from state control, but allow other liberties to be burdened by differential treatment of other liberties, including those expressly embedded in the Constitution.
The point here is not idle speculation. Here are three data points. In Martinez v. Christian Legal Foundation (2010), a five-to-four majority with Justice Kennedy concurring, held that it was perfectly proper for Hastings Law School, a public institution, to deny the tiny Christian Legal Foundation the full benefit of school facilities largely because of its opposition to same-sex marriage. The government can offer its subsidies to some groups but not to others, and in so doing, force small isolated groups to subsidize powerful gay rights organizations. Religious intolerance best describes that outcome.
Since then, the situation has only gotten worse. Last year there was public outrage at the Supreme Court’s decision in Burwell v. Hobby Lobby, which upheld claims under the Religious Freedom Restoration Act that a closely held company did not have to supply contraceptives to its female employees in a fashion inconsistent with its owners’ religious beliefs. And more recently, claims for religious autonomy have been crushed in state court decisions that have fined individuals who have refused on religious grounds to make wedding cakes for same sex couples. No one seems to be concerned with the autonomy and dignity of those under the state’s thumb. They will have to abandon their chosen profession to honor their religious beliefs. I see no evidence that gay and lesbian rights advocates are prepared to back off of these statist claims.
The hard question is how Justice Kennedy—now the swing vote on all matters “fundamental”—thinks about this issue. Here the evidence is decidedly mixed. To be sure, his opinion in Obergefell talks about the importance of letting religions “teach” the central principles of their faith. But as Justice Thomas’s dissent points out, a religion that is allowed to teach its beliefs may be forced to give up its tax-exempt status if it puts those beliefs into practice, and its adherents can be hounded by the state if they decide to run their personal lives in accordance with their religion. We thus face a serious risk in the aftermath of Obergefell: liberty in gay rights will turn out to be a one-way street. Some liberties will be guaranteed for some people while other liberties will be squashed for others. As I write, the gay rights movement is gearing up to expand the scope of the antidiscrimination laws in housing and labor markets.
No one says that democratic theory is easy to understand. But there is nothing in the Kennedy opinion that offers any assurance that the religious beliefs and practices of the shrinking religious minority who are opposed to same-sex marriage will be respected by the Supreme Court. As a libertarian, I support same-sex marriage. As a libertarian, I fear the totalitarian overtones sounding from the next round of gay rights initiatives.
*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.