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The constitutional inevitability of same-sex marriage

The following contribution to our same-sex marriage symposium is by Laurence H. Tribe, the Carl M. Loeb University Professor at Harvard Law School, where he has taught constitutional law since 1968. A widely admired advocate as well as a distinguished academic and the author of 115 books and articles, Tribe has prevailed in most of the many appellate cases he has argued, including 35 in the Supreme Court. His treatise, “American Constitutional Law,” is the standard work on the subject, and Chief Justice Aharon Barak of Israel called his latest book, “The Invisible Constitution,” a “masterpiece.” Recipient of ten honorary degrees, Tribe was recently elected to the American Philosophical Society and served in 2010 as the Obama administration’s first Senior Counselor for Access to Justice

The cause of same-sex rights in the United States has enjoyed wondrous progress over the past decade.  Battles in the courts and legislatures, along with cultural shifts and struggles for people’s core beliefs, have produced such triumphs as Lawrence v. Texas, a growing number of state-level laws prohibiting discrimination on the basis of sexual orientation, the impending fall of “Don’t Ask, Don’t Tell,” and full same-sex marriage rights in Massachusetts, New York, Connecticut, Iowa, New Hampshire, Vermont, and the District of Columbia. To be sure, there have been dispiriting setbacks in referendum after referendum.  Nonetheless, recent polling indicates that a majority of Americans now support same-sex marriage rights, numerous states have embraced civil unions and are moving toward marriage, and the Department of Justice has filed several remarkable briefs in federal courts championing the rights of same-sex couples in contexts like that of the so-called “Defense of Marriage Act.”  These heartening developments, born of both majoritarian politics and counter-majoritarian judicial action, point the way to a brighter future for many gay, lesbian, and bisexual individuals and couples.

It seems perverse that this progress has become for some a justification for arguing that same-sex couples should wait a bit longer for their rights – that it would be better to wait another few years or decades so that majoritarian politics rather than judicial action can bring about the recognition of dignity that these men and women are currently being denied.

Those who advance this essentially gradualist view ground it in hard-nosed realism and assure us that, even though they recognize the justice of the case for same-sex marriage, legislative change is simply preferable as a matter of democratic legitimacy or of some strategic consideration such as avoidance of socio-political backlash.

Yet for all their realism, it is somewhat unclear what consequence follows from their view.  Perhaps they would prefer that nobody bring a federal lawsuit seeking recognition of same-sex marriage rights, although that ship has already sailed and I see little point in relitigating a decision that, though understandably controversial at the time, is no longer especially salient.  Or perhaps they think the Supreme Court should aggressively exercise its famed “passive virtues” to avoid hearing any such claim, although how that might plausibly work seems difficult to comprehend.  The most obvious historical analogy — the Court’s disgraceful and widely condemned decision to duck the issue of interracial marriage when it first presented itself in Naim v. Naim (1956), an error later rectified in the famous case of Loving v. Virginia (1967) – is hardly the kind of precedent that any Justice would wish to follow.  And, to make matters worse, the Court would have to perform legal acrobatics far more painful to behold than those employed in Naim, because Lawrence laid the groundwork for striking down bans on same-sex marriage in much starker terms than did Brown for invalidation of anti-miscegenation laws – terms so stark that Justice Scalia, in his ferocious Lawrence dissent, as much as conceded that a rejection of the federal constitutional right to same-sex marriage could not be reconciled with the Lawrence holding or with its underlying rationale.

No less importantly, the cultural ground has shifted so rapidly in recent years that the Court would simply lack credibility were it to claim that the equal protection of the laws – and the Constitution’s protection of fundamental liberty interests – could be satisfied by relegating same-sex couples to either a second-class form of civilly sanctified relationship or to a social space in which their love, commitment, and dignity are denied any legal recognition at all.  Overblown fears of socio-political backlash grow harder to defend with every passing month, and calls for the Court to cut this baby in half – or to throw it out the window entirely – are both out of step with evolving social mores and deeply offensive to anyone who resents the injustice of condemning gays and lesbians to an open-ended legal limbo.  This is especially true for those of us who believe that same-sex relationships are as valuable as opposite-sex relationships wherever they happen to be found, and who see little virtue in forcing gays and lesbians from across the United States to accept only a few geographic enclaves that recognize their rights while waiting for the rest of the nation to see the light.

However that may be, even if in some meta-legal sense it might be “better” for the process of recognizing same-sex marriage rights to proceed state by state, legislature by legislature, or referendum by referendum, that road is now closed.  This question, like so many others before it, has followed the path predicted by Tocqueville and has moved from the realm of politics into the judicial domain.  Sooner or later – and probably sooner – the Court will hear a case squarely presenting the question of same-sex marriage rights.  And when it appears before them, whether it is styled Perry v. Brown or something entirely different, the Justices must do as constitutional principle requires and strike down laws that limit marriage to opposite-sex couples.

The case for same-sex marriage follows directly from Lawrence’s potent recognition of the right to dignity and equal respect for all couples involved in intimate relationships, regardless of the sex of each individual’s chosen partner.  Sounding in the constitutional registers of due process and equal protection, Lawrence sought to secure a fundamental and yet fragile dignity interest whose boundaries necessarily extend far beyond the bedroom door.  Notwithstanding a few half-hearted qualifications that Justice Scalia quite rightly dismissed as inconsistent with its underlying reasoning and as trivial barriers to same-sex marriage rights, Lawrence is thus incompatible with state and federal laws that refuse two men or two women the full tangible and symbolic benefits of civil marriage.

And these benefits are undoubtedly substantial.  As Chief Justice Margaret Marshall explained on behalf of the Supreme Judicial Court of Massachusetts in Goodridge v. Department of Public Health:

“Marriage [] bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. “It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Because it fulfills yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.”

At least on this point, both sides of the debate typically agree.  Notwithstanding occasional efforts to portray marriage as little more than a vehicle for procreation and family stability (a characterization that raises intriguing questions about why we allow prisoners, the elderly, the infertile, and those with no intention of procreation to marry), most of us recognize that marriage has assumed profound expressive, personal, and financial significance in modern society.

Laws that limit these benefits to opposite-sex couples will, I suspect, come to be viewed as an anachronism that just barely survived the twentieth century and collapsed under the weight of their striking inconsistency with evolving public consensus, advances in civil rights, and core constitutional principles.  Just as we now look back on Loving and celebrate its teaching that the fundamental right to marry transcends boundaries of race that once seemed obvious and essential, so too should the restriction of marriage to opposite-sex couples be recognized as jarringly out of sync with the respect for dignity that Lawrence articulated so memorably.  Whether conceptualized as a fundamental right to marriage steeped in traditions of liberty, or as an embrace of equality that refuses to discriminate against opposite-sex couples on grounds of sex and sexuality, same-sex marriage rights are firmly grounded in the Constitution.  The time has come for the Court to recognize this fact.

As many of the participants in this symposium have explained in great detail, arguments to the contrary are unpersuasive.  Some boil down to an implausibly narrow reading of the “right to marry” that engages with precedent at an indefensibly low level of generality and reads out of cases like Loving and Turner v. Safley their deep concern with respect for intimate relationships.  This miserly reading of the Constitution, which leaves the scope of protections against discrimination frozen in past prejudice, was decisively rejected by Justice Kennedy’s explanation in Lawrence that “[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Other arguments, shorn of their rhetorical focus on “harm” to the “institution of marriage” and their pseudo-scientific claims about the supposedly essential characteristics of each sex, consist of little more than expressions of moral disapproval of homosexuality and of same-sex couples.  In addition to the obvious barriers that such arguments face – including the Court’s rejection in Romer v. Evans of animus as the justification for discrimination on the basis of sexual orientation, and Judge Vaughn R. Walker’s devastatingly thorough rejection of the empirical evidence that purports to render these claims scientifically credible – Lawrence also stands as an imposing hurdle.  Justice Kennedy did indeed speak of demeaning those who are married, but his opinion said nothing of the supposed “harm” to marriage that would follow from its extension to same-sex couples.  Rather, he emphasized that “it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.”  By thus invoking the essential role that intimacy and love play in marriage as an institution that is simultaneously private in its personal significance and public in the face it presents to the world, Justice Kennedy pointed beyond purely sexual intimacy to the dignitary concerns that Lawrence safeguards and that are squarely implicated in the case for same-sex marriage.  Just as morally rooted hostility to homosexuals flunked constitutional scrutiny in Lawrence even when dressed up in “scientific” studies that purported to show the health risks or social harms wrought by same-sex sexual relations, so should such hostility be disapproved by the Court as a permissible basis for ongoing discrimination in the domain of marriage rights.

Occasionally, commentators try to circumvent these concerns by invoking either the Religion Clauses or the doctrine of government speech.  Neither effort is persuasive.

Claims concerning religious freedom fail as a threshold matter because the government’s decisions regarding civil marriage do not implicate religious practice or belief and impose no obligation on religious individuals or institutions to adopt for their own purposes the definition of marriage adopted for civil purposes by the state.  This fact renders the Religion Clauses irrelevant as obstacles to legal recognition of same-sex marriage.

Arguments grounded in government expression typically allege that a state’s decisions about whether to call same-sex unions “marriages” constitute a form of government speech and thus do not implicate individual rights because the government is free to “say” whatever it wishes about what the institution of “marriage” means to it.  In the alternative, but in a similar vein, one might argue that such decisions constitute a matter of purely internal government procedures – akin to the government’s decisions about how to classify persons within the census or for various bureaucratic purposes – that cannot be deemed to implicate anyone’s “rights.”  Even assuming arguendo that expression is the proper frame of reference for constitutional analysis of same-sex marriage claims, neither of these positions withstands careful scrutiny.

The first sort of argument – familiar from cases like Pleasant Grove City v. Summum, which noted that “[t]he Free Speech Clause restricts government regulation of private speech; it does not regulate government speech” – effectively treats government’s power to “speak” as unbounded by the rest of the Constitution. However, as the Court also recognized in Summum, “[t]he involvement of public officials in advocacy may be limited by law, regulation, or practice.”  Specifically, government speech can be and surely is limited by other constitutional provisions – including the Establishment and Equal Protection Clauses.  This explains why the insult to dignity and equality inherent in government expression of the message that same-sex couples are somehow undeserving of inclusion in the institution of civil marriage would trigger limits of constitutional moment.

Imagine what we would say if, after Loving v. Virginia, a state were grudgingly to permit African Americans and whites to marry – but were to stamp the marriage licenses of such couples with an insignia designating official disapproval of their unions, or were to place signs in government offices dispensing marriage licenses voicing such disapproval. Who would defend the government’s prerogative to engage in such demeaning labeling? Presumably we would condemn such instances of government “expression” through an analysis similar to that pioneered by Justice O’Connor in the context of Establishment Clause challenges to those official religious displays that a reasonable observer would construe as disparaging the equal citizenship of those outside the religion being favored or endorsed.  So too here:  Even if viewed as merely government speech, official policies excluding same-sex couples from the institution of civil marriage, like official policies excluding interracial couples or couples of mixed faith or, for that matter, non-Christian couples, from that institution would violate constitutional principles of equal dignity for all citizens regardless of race, religion, or sexual orientation. Government speech is not unbounded – and its limits render it useless as a legal shield behind which states may discriminate against same-sex couples while evading the Fourteenth Amendment’s broad compass.

A second argument borrows from cases like Bowen v. Roy to insist that the terms used by the government to describe civil relationships are a matter of purely internal governmental concern that do not implicate individual rights.  In Bowen, the government had conditioned the provision of welfare benefits to a Native American named Little Bird of the Snow on its assignment of a Social Security number to her file over her parents’ objection – an objection grounded in their religious conviction that use of this number before Little Bird of the Snow came of age would be a sacrilege.  Although a narrow majority of the Justices indicated in dictum that they would have ruled otherwise had the parents been forced to participate actively in the assignment of a number to their daughter, the Court rejected their free exercise challenge to the mere use of such a number in the Social Security Administration’s internal processes and concluded that, because the government had done nothing to inhibit the plaintiffs’ freedom to “believe, express and exercise” their religion, its use of a Social Security number for internal purposes did not violate their rights.   As Chief Justice Burger explained:

“The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens . . . Roy may no more prevail on his religious objection to the Government’s use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government’s filing cabinets.  The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures.”

The analogy to marriage, however, is barely even superficial.  For one thing, couples cannot escape participating personally and actively in the labeling process; unlike parents who are mere passive bystanders in a government agency’s decision of how to categorize their child for internal purposes, individuals seeking formal recognition as “married” are not bystanders but are obviously the key players in the unfolding drama. Moreover, the designation of marriage, unlike the numerical or other classifications used by government for its internal purposes, is a deeply public and private symbol that carries profound consequences touching on individual self-understanding and social mores.  Decisions concerning its availability necessarily implicate important and intimate concerns – matters of love, dignity, and companionship – that extend so far beyond government filing cabinets that they might as well serve as a canonical account of what does not constitute an “internal procedure” under Bowen.  Where external, expressive impacts so predominate over comparatively trivial internal considerations, any claim of bureaucratic manageability can be dismissed as so tangential to the rights at issue that it serves as little more than an analytical red herring properly accorded no weight in constitutional reasoning.

Laws that discriminate against same-sex couples by relegating them to civil unions or some other lesser status are under political and legal assault throughout the nation.  Numerous state courts, and thus far one federal court, have rightly struck them down as violations of due process and equal protection.  Legal challenges will undoubtedly proceed apace until the Supreme Court finally speaks.

When that fateful day finally arrives, adherence to constitutional principle and respect for the fundamental dignity of all persons dictate a clear result.  As Chief Justice Earl Warren wrote in Loving, “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”  Those words ring at least as true today as they rang in 1967.  If our Constitution’s promises of liberty, equality, and dignity are to be realized for the millions of Americans whose most intimate lives are degraded by laws that set their love, their enduring commitments to one another, and their very sense of personhood apart as little more than second-class, then in the end the Court must do its duty and recognize a right to same-sex marriage.  There is no other way.

Recommended Citation: Laurence H. Tribe, The constitutional inevitability of same-sex marriage, SCOTUSblog (Aug. 26, 2011, 2:41 PM),