The following contribution to our same-sex marriage symposium is by Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law. Previously, Dean Chemerinsky was a professor at Duke Law School, University of Southern California Law School, and DePaul College of Law. He is the author of seven books and over 100 law review articles. Frequently, Dean Chemerinsky argues appellate cases, including in the United States Supreme Court.
This wonderful collection of essays has seemingly presented every viewpoint on the topic of marriage equality. One thing that seems clear was pointed out in Bob Barr's essay: it is just a matter of time until marriage equality for gays and lesbians comes to the United States as it now exists in many foreign countries. As Barr noted, a Gallup poll released in May shows that a majority of Americans (fifty-three percent) believe that same-sex couples should be able to marry, including seventy percent of voters from the age of eighteen to thirty-four. Moreover, public opinion is shifting rapidly on this with support steadily increasing.
The question, then, is how the United States will get there and more specifically, what should be the role of the Supreme Court. Larry Tribe's essay, near the end of this series, powerfully explains why denial of marriage equality violates the right to marry and denies equal protection for gays and lesbians and why it is the judicial role to strike down laws which discriminate against same-sex couples.
These essays have primarily focused on three issues: does the government have a legitimate interest in denying marriage equality to gays and lesbians; what should be the role of the judiciary; and what is the Supreme Court likely to do?
As for the first question, I have read carefully the essays by those who oppose marriage equality to try and understand what the government's legitimate interest in reserving marriage to opposite-sex couples is. As Kenji Yoshino rightly pointed out, the Supreme Court has not been consistent in applying rational basis review, sometimes being more deferential and sometimes using more "bite." But still, at the very least, the government must have a legitimate purpose. Is there one for denying marriage equality?
Brian Raum argued that it is based on the benefits of children having parents of different genders. He wrote: "Not only that, but mothers and fathers bring different gifts to the parenting table, and this complementarity is not fungible. Even the plaintiffs' expert in Perry v. Brown agrees on this point. Dr. Michael Lamb, the "parenting expert' who testified in that case, readily acknowledged in his book Fathers: Forgotten Contributors to Child Development that "[b]oth mothers and fathers play crucial and qualitatively different roles in the socialization of the child.'"
But this totally misses the point, even if there were studies, and there are not, that children of heterosexual couples are somehow better off than those of same-sex couples. The issue (thankfully) is not whether to prohibit gay and lesbian couples, or even single parents, from having children. They will. The question is, once they do have children, will those children be better off with married or unmarried parents. A prohibition of same-sex marriage does absolutely nothing to increase the likelihood that children will have two parents who are of opposite sexes.
Similarly, John Eastman in his essay wrote: "By channeling the romantic passion that is a part of our human natures into a monogamous, opposite-sex relationship capable of procreation, the institution of marriage serves an unbelievably important societal function, transmitting both life and culture to the next generation." The assumption of this argument is that laws prohibiting same-sex marriage will cause gays and lesbians to enter into heterosexual marriages and thus "channel" them into "monogamous, opposite-sex relationships."
There is no evidence of that and it belies common sense at this point in history. The prohibition of marriage equality does not cause gays and lesbians to run out and enter into heterosexual marriages; it just means that gay and lesbian couples exist without all of the legal benefits bestowed on heterosexual couples, and their children lack the stability that marriage provides in a family.
The assumption that Raum and Eastman make is that there is something better about a heterosexual relationship than a same-sex relationship and that the law can make that judgment. Put that way, it is clear that the opposition to marriage equality is ultimately about disapproval of homosexuality. But as the Supreme Court held in Romer v. Evans (1996), that is not a legitimate basis to justify discrimination.
Thomas Berg makes a different argument for denying marriage equality: religious liberty. What about people or small businesses who for religious reasons don't want to rent to or serve same-sex couples? The question for society will be whether to allow religious views of this sort to justify discrimination. There are those who have religious beliefs about race and against interracial marriage. Those religious beliefs are not a valid exception to anti-discrimination laws; a landlord cannot refuse to rent to an interracial couple, even if the basis for the discrimination is the landlord's religious beliefs. More generally, the Supreme Court in Employment Division v. Smith (1990) has held that religious beliefs are not an excuse from general laws.
Berg is right that allowing marriage equality will require consideration of how to deal with those who for religious reasons do not want to serve same-sex couples. But that is not a reason to deny marriage equality; it just is an issue that will need to be faced as marriage equality becomes common across the country.
William Duncan writes of allowing marriage equality as "los[ing] . . . marriage." I remain baffled by how any heterosexual couple's marriage is in the slightest way harmed, or even affected, by permitting gays and lesbians to marry. Massachusetts has permitted gays and lesbians to marry for over seven years and there is no indication that heterosexual marriages have decreased or been affected in any way. The effort for marriage equality for gays and lesbians affirms marriage; it in no ways lessens or harms it.
The second major question that has been debated in these essays concerns the role of the judiciary. I was surprised that even William Eskridge, a supporter of marriage equality, urged the Court to observe the "passive virtues" and declared:
"[I]f the Supreme Court were to take the Perry appeal and reach the merits, the Court ought to issue a narrow opinion that would not purport to settle the constitutional issue one way or the other."
I very much disagree. It is the role of the judiciary to interpret the Constitution and especially to enforce its protections of liberty and equality. Laws that prohibit same-sex marriage deny gays and lesbians of the right to marry and discriminate against them solely based on their sexual orientation. It is the judicial role to strike such laws down, just as the Supreme Court did in Loving v. Virginia (1967), in invalidating state laws that prohibited interracial marriage. I do not see how the judicial role is any different relative to laws denying marriage equality to gays and lesbians.
Deborah Hellman writes that the Court should do so based on equal protection, but not based on the right to marry. She asks whether a court should be defining marriage. But the Supreme Court already has held that there is a fundamental right to marry. Thus courts must define who is entitled to that right. To say that marriage has always been between heterosexual couples is no more determinative of the constitutional question than it was to say that marriage in Virginia had always required a same-race couple.
Marriage is ultimately about a couple expressing love and commitment and then receiving the benefits the law bestows on those who do so. It has no more to do with the gender of the members of the couple than their race. I agree with Hellman that the Court should find laws denying marriage equality to violate equal protection, but they also deny the right to marry to same-sex couples.
Finally, there is the question of what the Court is likely to do. Perhaps it is that concern which underlies William Eskridge's plea for the passive virtues. Other supporters of marriage equality, such as David Cruz, express doubts about whether there is a majority on the Court to find a constitutional right for gays and lesbians to marry.
I continue to believe that the Court will rule, five-to-four, in an opinion authored by Justice Anthony Kennedy, that laws prohibiting marriage equality violate the United States Constitution. Kennedy wrote the Court's opinions in Romer v. Evans (1996) and Lawrence v. Texas (2003), and I think that he will see his longest-lasting legacy from over a quarter of a century on the Court being in the area of eliminating discrimination against gays and lesbians. I believe that his opinion will emphasize, as he did in Romer and Lawrence, the absence of any legitimate interest for prohibiting marriage by same-sex couples. As in Lawrence, and other opinions, he will point to the trend across the world.
Ultimately, the question for Justice Kennedy, the Court, and society is whether gays and lesbians are entitled to equal dignity and equal treatment under the law. There is only one possible answer to that question.