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.
The Supreme Court will recognize a right to marriage equality for gays and lesbians; it is just a question of when. It very likely could come this Term, as a case concerning the constitutionality of the Defense of Marriage Act makes its way to the Court. If not this year, it could happen in the next Term as the challenge to California's Proposition 8 finally gets to the high Court.
The Supreme Court long has ruled that the right to marry is a fundamental right under the United States Constitution. Laws prohibiting same-sex marriage should have to meet intermediate or strict scrutiny both for interfering with a fundamental right and for discriminating against a group that traditionally has been the victim of unjust treatment. Yet, what is striking is that there is no legitimate, let alone compelling reason, for denying same-sex couples the right to marry. The arguments for prohibiting same-sex marriage are astonishingly weak.
One contention frequently made is that marriage, by definition, is between a man and a woman. But this is not an argument, it is just a definition. Certainly marriage can be defined this way, but it also can be defined to include same-sex couples exchanging the same vows, going through the same rituals, and receiving the same benefits. Nor is the long tradition of defining marriage as requiring an opposite-sex couple a reason for refusing to recognize same-sex marriages. For the first 170 years of American history, Southern states, such as Virginia, had laws prohibiting interracial marriage. Such long-standing traditions did not prevent the Supreme Court from declaring unconstitutional anti-miscegenation laws in Loving v. Virginia.
A second argument sometimes made against same-sex marriages is that marriage is inherently about procreation. But this is wrong because heterosexual couples can marry even if one or both of the partners is physically incapable of having children or if they do not wish to do so. Moreover, same-sex couples often have children, whether by adoption, surrogacy, or artificial insemination. They need and deserve all of the protections that family law provides to opposite-sex couples who are raising children.
The argument is made that children are psychologically better off with two parents of the opposite sex than with two parents of the same sex. There is no evidence whatsoever to support this assertion, but it also completely misses the point. The debate is not over whether gay and lesbian couples should have children; they, of course, will do so for the same reasons that heterosexual couples want to reproduce. The question is once a same-sex couple has a child, is that child better or worse off if the same-sex couple is married?
The answer to this, based on common sense as well as the arguments made by opponents of marriage equality, seems obvious. Marriage is defended as a crucial social institution because it increases the likelihood of stable relationships, which are best for raising children. Children in same-sex households thus benefit from the stability marriage provides in the same way it is thought that marriage is best for raising children when there are heterosexual parents. Indeed, in this way, allowing marriage equality is very much pro-family.
A third argument against marriage equality is that allowing it will weaken the institution of marriage and thus be harmful to society. This argument is frequently made by opponents of same-sex marriages, but it never is explained why allowing others to become married will harm marriage. Quite the contrary, expanding marriage to gays and lesbians reinforces the importance of marriage as a basic social institution. Allowing interracial marriages did nothing to weaken the institution of marriage and did not lead to allowing polygamy or incestuous marriages. Nor is there any reason that permitting same-sex marriages would have this effect.
A final argument made by opponents of same-sex marriages is that it is improper for the judiciary to mandate their recognition; that this is properly a legislative function. However, it is the judicial role to interpret the Due Process and Equal Protection Clauses of the Constitution and to remedy unjust discrimination and violations of fundamental rights. Because laws that prohibit same-sex marriage discriminate in violation of the Equal Protection Clause and infringe a long-recognized fundamental right, it is the duty of the judiciary to strike down laws denying marriage equality to gays and lesbians. It was not impermissible judicial activism when the Supreme Court invalidated laws prohibiting interracial marriage and it is equally appropriate for courts to declare unconstitutional laws prohibiting same-sex marriage.
No doubt many are offended by the idea of same-sex marriage. But, of course, those who don't like the idea of same-sex marriage don't have to marry someone of the same sex.
What will the Supreme Court do on this issue? The conventional wisdom is that it will be a five-to-four decision with Justice Kennedy in the majority. I agree and believe Justice Kennedy will write the decision holding that there is a constitutional right to marriage equality for gays and lesbians. There have been two Supreme Court cases protecting gays and lesbians "“ Romer v. Evans (1996) and Lawrence v. Texas (2003) "“ and both were written by Justice Kennedy. As much as any Justice in history, Anthony Kennedy frequently has looked to trends in other nations and so many other countries now recognize a right to marriage equality. Justice Kennedy wants to be on the right side of history and it is clear that the national and international trend is recognition of marriage equality for gays and lesbians. Justice Kennedy will write an opinion as he did in Romer and Lawrence concluding that there is simply no legitimate government interest in denying marriage equality to gays and lesbians.
Laws in every state traditionally have provided enormous benefits to married couples that were unavailable to others. These statutes concern important matters such as child custody, inheritance, insurance coverage, and tax benefits. Beyond the tangible benefits, marriage is the primary way in which people express their love and desire for permanent commitment. Denying marriage equality to gays and lesbians is a powerful statement that society still believes them to be second-class (or worse) citizens.
Gays and lesbians should have the same ability to experience the joys and disappointments of marriage that heterosexuals always have enjoyed. This is what the Supreme Court should hold and, I believe, will hold when the matter gets before them.