The constitutionality of traditional marriage

The following contribution to our same-sex marriage symposium is by John Eastman, the Henry Salvatori Professor of Law & Community Service, and former Dean, at Chapman University School of Law in Orange County, California.  He is the founding Director of the Center for Constitutional Jurisprudence, on whose behalf he has participated in the Proposition 8 litigation.

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Marriage, the traditional kind consisting of “the union for life of one man and one woman,” was described by the Supreme Court more than a century ago in Murphy v. Ramsey as “the sure foundation of all that is stable and noble in our civilization.”  Justice Black characterized the institution in 1971 in his dissenting opinion in Meltzer v. C. Buck LeCraw & Co. as “one of the cornerstones of our civilized society.”  Indeed it is.  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.

That the state can lend support to such an institution, rooted in human nature and drawing its unique benefit from the biological complementarity of the sexes, without running afoul of the commands of the Equal Protection and Due Process Clauses, should be self-evident.  The Equal Protection Clause, after all, demands that government afford equal treatment to those who are similarly situated.   And the Due Process Clause recognizes fundamental rights that are deeply rooted in our history and traditions.  Neither clause is offended by a defense of traditional marriage.

California Supreme Court Justice Carol Corrigan, herself reportedly a member of the gay and lesbian community, perhaps best described the equal protection issue in her dissenting opinion in In re Marriage Cases:  “‘The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’  This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’”  It is no denigration of one class or the other to acknowledge the biological truth that same-sex and opposite-sex couples are not similarly situated with respect to at least one of the purposes of marriage, namely, procreation.  As was noted by Chief Justice Margaret Marshall, of the Supreme Judicial Court of Massachusetts and author of that Court’s 2003 decision in Goodridge v. Department of Public Health mandating same-sex marriage in Massachusetts, the capacity for unassisted procreation is “the one unbridgeable difference between same-sex and opposite-sex couples.”  Although Chief Judge Marshall, like Judge Vaughn Walker in the Proposition 8 litigation in California, Perry v. Schwarzenegger (2010), responded to this indisputable truth with the rather extraordinary claim that procreation has never really been a purpose of marriage, denying the obvious does not make the point any the less obvious.  And yet, with that “unbridgeable difference,” a classification that recognizes the biological differences and thereby treats differently situated persons differently, is no violation of equal protection, at least not under the highly deferential “rational basis” standard of review that heretofore has been applied in cases challenging classifications on sexual orientation grounds.

The due process claim is equally unavailing.  The courts have held that the Due Process Clause provides substantive protection to “fundamental rights” that are deeply rooted in our nation’s history and traditions.  Even while altering the state’s constitution to recognize same-sex marriages, the California Supreme Court itself acknowledged that “from the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.”

The institution of marriage is certainly deeply rooted in our nation’s history and traditions, but it is equally clear that the same history and traditions does not lend support for a definition so malleable as to include that which it was not.  Both Chief Justice Marshall in Goodridge and Judge Walker in Perry acknowledged that the new definition they were giving to marriage was not rooted at all in our history and traditions, much less deeply rooted.  “We are mindful that our decision marks a change in the history of our marriage law,” noted Chief Justice Marshall.  And Judge Walker, based on “[t]he evidence at trial,” found “that marriage in the United States traditionally has not been open to same-sex couples.”  Those acknowledgements alone rebut the claim that, at the relevant level of specificity, marriage is deeply rooted, and therefore a fundamental right, for any relationship beyond the biological one that has traditionally been recognized.

These arguments in defense of the constitutionality of traditional marriage are at least colorable, and they are bolstered by existing Supreme Court precedent.  In Baker v. Nelson (1972), a case pressing the identical claims that are at issue in the Proposition 8 litigation (that denial of a marriage license to a same-sex couple violated federal due process and equal protection requirements), the Supreme Court of the United States dismissed the appeal from the Minnesota Supreme Court “for want of substantial federal question.”  Because the case was before the Supreme Court on mandatory appeal rather than discretionary certiorari, the dismissal is a decision on the merits, and “lower courts are bound by [it] ‘until such time as the [Supreme] Court informs (them) that (they) are not.”

That makes the decision of the Attorney General of California not to defend the initiative adopted by a significant majority of the voters of the state particularly troubling.  And it parallels the recent decision of the Attorney General of the United States not to defend the federal Defense of Marriage Act, enacted by overwhelming majorities in Congress (85-14 in the Senate; 342-67 in the House) and signed into law by President Clinton in 1996.  More troubling still is the fact that in both cases, the Attorney General participated in the case just long enough to disavow the strongest arguments in defense of traditional marriage, even overtly colluding with the challengers in the California case.  There is a serious argument that the courts should not be deciding such a fundamental policy question as this at all, without clear constitutional text to apply.  But whatever one thinks of that question, and of the merits of the underlying claim to same-sex marriage, we should all be able to agree that a collusive suit, involving questionable conduct by the Attorney General of a state, is not the appropriate way to resolve monumentally important policy or even constitutional questions.