The Strange Alliances Around the Gay Marriage Cases

Richard Epstein
It is surely a sign of the difficulty of the issues surrounding gay marriage that it has generated a large number of what may be loosely termed political marriages of convenience. As I noted in my earlier column, the Libertarian’s Dilemma on Hoover’s Defining ideas, I see the case as raising, as a matter of first principle, a conflict between two ideals.

The first of these respects individual liberty and the second respects tradition. Ideally, where the two coincide, we should reserve our greatest affection for the protection of traditional liberties. That correspondence, however, is rudely shaken in the gay marriage cases, where, until the last few years, the political sentiment was resolutely against gay marriage, just as the strong libertarian case in favor of it came strongly into focus.

In and of itself, conflicts of interest of that sort often arise in intellectual discussion, where people are free to come down whatever way they see fit. But the issue becomes much more complex when the devotees on both sides try to jam their political and moral outlooks into the language of constitutional law, where the basic principles of interpretation at a minimum require that the interpreter try to decipher the message of the speaker and not impose that message to his or her liking.

That sort of writing led to a huge amount of reimagination of American constitutional history on the Commerce Clause issues raised in the Obamacare case, where a defenseless text was pummeled into submission in order to generate a vast expansion of federal power that I stoutly opposed on historical and analytical grounds. That reasoning insisted that the residual power of the states was abandoned when Congress arrogated unto itself the power to regulate agriculture, mining, manufacturing, and, yes, health care.

Today, many liberals who rejoiced in the broad reading of federal power on health care take a decidedly different view on gay marriage. It is possible to chide them for their inconsistency, but the same can't be said of libertarians who, with constitutional wheels in full gear, question whether the federal government can define marriage under section 3 of DOMA, which takes the not so audacious step of defining marriage as “a legal union between one man and one woman as husband and wife” in matters of federal law—which tracks the definition that has long held sway in ordinary discourse.

There are many foolish consequences of adopting this definition, which Alan Morrison of George Washington masterfully exposes in his amicus brief attacking DOMA for its overbreadth. But the greater irony is the recent amicus curiae brief co-written by Professor Ernest Young of Duke Law School, which, under a decidedly libertarian banner, argues that DOMA is unconstitutional on federalism grounds, given that the states, under our constitutional arrangements, long had had the exclusive power to define marriage. Fittingly enough, the signatories of this brief are fervent libertarians—Jonathan Adler, Lynn Baker, Randy Barnett, Dale Carpenter, and Ilya Somin.

I confess that I declined to sign that brief because I thought that it was wrong for the reasons that Adam Freedman wrote about in Gay Marriage and Federalism, where he makes the point that the federal government should be able to define marriage for the purposes of administering the federal law, which indeed it has done in all sorts of statutes from time immemorial.

Nothing is more common in the law that to have two stipulative sets of definitions that govern a particular area. And in this instance, even under the narrowest views of the federal power, its ability to tax allows it to define what kinds of taxes should be imposed on what portions of the population. No one would regard this as an intrusion on states rights if DOMA were amended to provide that marriage for the purposes of federal law shall be defined as a union between two adults of either sex, leaving only the polygamists hanging out to dry.

Freedman, then, is right, but it need not follow that DOMA should survive as he advocates. To be blunt about it, the issue in this case does not concern my views, but those of Justice Anthony Kennedy. I have already argued that he has unintentionally committed himself in Lawrence v. Texas to allowing same sex marriage when he placed sexual freedom at the top of the constitutional food chain. In one powerful move, he wiped out hundreds of years of tradition that treated matters of marriage and morals as within the wheelhouse of the government.

Note that Kennedy did not strike down the sodomy laws on the squishy ground that they were difficult to enforce and required too much snooping into private bedrooms. That narrower rationale could explain why gay marriage can be banned even if what was once known as "deviant sexual intercourse" could be allowed. There are no enforcement difficulties with banning gay marriage, no ill-advised police excursions into bedrooms.

In this setting, I argued that Kennedy had to switch sides. Quite simply, the monopoly position of the state meant that, with the morals issue out of the equation, the anti-discrimination norms from public utilities law carried over to marriage. And, lo and behold, I have two supporters (after a fashion) for this position. The first is Jeffrey Toobin, writing in the New Yorker under the provocative title Wedding Bells, who rightly notes that Justice Scalia’s dissent in Lawrence should be the blueprint for the new Kennedy majority opinion. Scalia thus sounded this alarm:
If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?
Toobin’s answer after gleefully quoting this passage, was “what indeed?” To which the correct answer, as he notes, is none.

So, there you have it. My trusted libertarian friends--who are right on most everything else--are wrong on this one. But it looks as though their mission may be rescued by the intrepid Mr. Toobin, whom, as most readers know, I think is wrong on just about everything else, including Citizens United. Strange alliances are indeed the order of the day.