The March 9 Wall Street Journal carried an op-ed by Professor Lea Brilmayer of Yale Law School, titled “Full Faith and Credit,” which urged readers to pooh-pooh the necessity of a Federal Marriage Amendment to the Constitution on grounds that there is no reason to worry about courts nationalizing the establishment of gay marriage in the United States. But Professor Brilmayer’s argument was actually a clever piece of misdirection, a bit of legerdemain in which we were invited to fix our attention on the left hand while the right hand picks our pockets.
Billing herself as an expert on the “full faith and credit” clause of Article IV of the Constitution, with “dozens of technical publications on interstate jurisdiction” to her credit, Brilmayer mocked the Senate Judiciary subcommittee that had invited her to speak at a March 3 hearing on FMA. “Nobody,” she sneered, had “bothered to check whether the Full Faith and Credit Clause had actually ever been read to require one state to recognize another state’s marriages. It hasn’t.” The hearing where she appeared, therefore, “was entirely unnecessary.” There will be no “full faith and credit chain reaction,” she asserted–no sudden run of every state’s courts feeling obliged to honor the marriage licenses that might be granted to gay couples “married” in some other state. The full-faith-and-credit clause, she noted, has always been interpreted according to the “public policy doctrine,” by which state courts may hold that marriages contracted in other states will not be honored if they violate the strong statutory (or common-law) public policy of the state to which a “married” couple moves. Thus marriages contracted elsewhere that deviate from a state’s laws concerning consanguinity, for instance, or the age of consent, will not necessarily be honored by that state’s courts. At least no Article IV principle imposes such an obligation, Brilmayer argues.
In this age of the hyperpoliticized judiciary, I would not be as confident as she is that neither federal nor state judges will invent a new full-faith-and-credit doctrine to force the interstate honoring of gay marriages. But even if such fears are unfounded, the same result of nationalized gay marriage is more likely to be reached by another path entirely. For it does not follow at all from Brilmayer’s argument, as she asserted, that “the assumption that there must be a single national definition of marriage…is mistaken and pernicious.” The ticking bomb–not a “chain reaction” but a single explosion that could easily come on a single day–lies not in the recesses of Article IV but in the equal-protection and due-process clauses of the Fourteenth Amendment.
The precedent to examine is the aptly named Loving v. Virginia, the 1967 Supreme Court ruling that outlawed anti-miscegenation statutes, or laws against interracial marriage. Richard Loving, a white man, and Mildred Loving (née Jeter), a black woman, had married in the District of Columbia. Upon moving to Virginia, they were indicted on, and pleaded guilty to, a charge of violating the state’s anti-miscegenation law, which carried a criminal penalty of one to five years in prison. The state judge imposed a one-year sentence, then suspended it for 25 years on condition that the Lovings leave the state and not return during that period. Moving back to D.C., the Lovings moved that their sentence be vacated in state court, and shortly thereafter instituted a class action suit in federal court on Fourteenth Amendment grounds. The federal court stood aside to let their case proceed in the Virginia courts, and when the state’s highest court held against them, they appealed to the U.S. Supreme Court.
Chief Justice Warren, in a ruling for a unanimous Court, made short work of the state’s anti-miscegenation law–and those on the books at the time in fifteen other states besides. To the state’s argument that the law was one of “equal application” because its penalties fell equally on both races, he replied that that fact had no effect on the “very heavy burden of justification” that was required of the state when its statutes were “drawn according to race.” This much of Warren’s opinion is accepted by all of us today who admire the famous “colorblind” dissent of Justice Harlan in Plessy v. Ferguson (1896). But Warren went on in language that is ripe for the picking under more recent precedents. He noted that “the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination.” Sound familiar? Gay-marriage advocates scoff at the notion that traditional marriage laws apply equally to heterosexual and homosexual persons by forbidding anyone, regardless of “sexuality,” to marry someone of the same sex. All that need be done is to convince the Supreme Court that laws “drawn according to sexuality” are as “arbitrarily and invidiously discriminatory” as those that classify by race. That may not be hard at all, as we’ll see.
Turning to the claim by Virginia that its law was not so “irrational” in purpose as to merit no deference from the Court, Warren said that “[t]here is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.” All that the law furthered was an ideology of “White Supremacy.” And so it did. But this too should sound familiar. In Romer v. Evans (1996), the Court held that there was no rational justification for a Colorado state constitutional amendment, adopted by referendum, that barred the passage of any statutes or local ordinances recognizing discrimination against gays as any kind of offense. Justice Kennedy, for the Court in Romer, held that there was no way to view that amendment except to say that “the disadvantage imposed is born of animosity toward the class of persons affected.” No argument of “rational basis” was given any credence in Romer, any more than it had been in Loving. It’s fair to say that Justice Kennedy condemned an ideology of “Heterosexual Supremacy” in terms strikingly similar to those used by Chief Justice Warren.
For good measure, Warren threw in the due process clause as well in the Loving case. Marriage, he said, is one of the “basic civil rights of man.” (Never mind that his precedents for a due-process limitation on state regulation of marriage were of dubious application to the case at hand: One was a 1923 case involving the right of parents to contract with a private teacher to instruct their son in the German language, and the other was a 1942 case involving Oklahoma’s policy of sterilizing certain prison inmates.) Why not of man and man, and not just of man and woman?
All the ammunition the Court needs is contained in just three cases: Loving, Romer, and last year’s Lawrence v. Texas, a due process case in which Justice Kennedy wrote of the Court’s heightened solicitude for “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” The Massachusetts high court, in its recent Goodridge decision, took the Court’s hint (as Justice Scalia virtually predicted), and held that the state constitution’s equality clause condemned heterosexual-only marriage as “irrational,” and necessitated, after Lawrence, the full recognition of gay marriage.
Now do a quick head count. Surely Justices Stevens, Souter, Ginsburg, and Breyer would all see the analogy of a gay-marriage case to Loving. They cannot be trusted to notice that “sexuality” and race are hardly in comparable categories of human attributes, and that only one of them has any connection to the historic purposes of the Fourteenth Amendment. American society’s legal abandonment of marriage as we have always known it depends on the vote of Justice Kennedy and/or Justice O’Connor. I wouldn’t bet against either of them joining the four just mentioned. After all, they were in the majorities in Romer and Lawrence, and Kennedy wrote the incompetent, overreaching opinions in both cases. Don’t listen to the “expert” law professors who babble on about full faith and credit as though that were the only constitutional issue in the gay-marriage debate. Watch out for Loving II.
–Matthew J. Franck is a professor and chairman of political science at Radford University.