Bench Memos

Originalism and Marriage

In a short essay for SCOTUSblog, Yale law professor William Eskridge, an early architect of the constitutional attack on state marriage laws, presents his newfound claim that state laws that define marriage as the union of a man and a woman violate the “original meaning of the Equal Protection Clause.” I think that Eskridge’s claim is wildly implausible, indeed preposterous.

(Lest my own position be misunderstood: I do not believe that the Constitution imposes my policy views on how marriage should be defined. My modest position is that the question whether or not marriage should be redefined to include same-sex couples is a matter that the Constitution leaves to the democratic processes.)

Here are Eskridge’s high-level points:

– The original meaning of the Fourteenth Amendment, as Justice Kennedy’s opinion in Romer v. Evans recognized, “was to bar class or caste legislation, including laws that discriminate against minorities, ‘not to further a proper legislative end but to make them unequal to everyone else.’”

– “Each state involved in the pending Supreme Court cases (Michigan, Ohio, Kentucky, and Tennessee) has adopted legislative and constitutional measures specifically targeting LGBT persons for exclusion from one of the state’s central institutions, namely, civil marriage.” “Read in light of each state’s historic persecution of LGBT persons in the mid-twentieth century, these targeted exclusions seek to perpetuate exactly the kind of class or caste legislation outlawed by the Fourteenth Amendment.” 

– “What public interest justifies the exclusion of this minority group from a central state institution like civil marriage?” [Emphasis in original] Eskridge’s answer: None.

I’ll respond to each of these points, and Eskridge’s subsidiary arguments, in turn:

1. For purposes of this post, I’ll happily assume that the original meaning of the Equal Protection Clause prohibits “laws that discriminate against minorities, ‘not to further a proper legislative end but to make them unequal to everyone else.’” (I don’t think, though, that Kennedy, a non-originalist, was actually making a claim in Romer about the Fourteenth Amendment’s original meaning.)

Eskridge doesn’t note (perhaps because he takes it to be obvious) that in 1868, when the Fourteenth Amendment was ratified, marriage was uniformly understood in the laws of all states to be the union of a man and a woman. (That, of course, had also been true in every state from the time the Constitution came into effect.) Nor does he note that no one contends that the Fourteenth Amendment was directed against this understanding of marriage as a male-female union. These facts together ought to suffice to establish that the state laws in effect in 1868 that defined marriage as the union of a man and a woman did not violate the original public meaning of the Equal Protection Clause—that those laws, in other words, did not “discriminate against [LGBT persons] … [in order] to make them unequal to everyone else.” I don’t understand Eskridge to contend otherwise.

(To anticipate an objection: The situation with ugly anti-miscegenation laws was very different. As this essay discusses, those laws, which deviated from the common-law understanding of what marriage is, were never adopted by all states, and the Fourteenth Amendment was directed against the racial caste system that those laws sought to maintain.)

2. So the question becomes how current marriage laws that likewise define marriage as the union of a man and a woman violate the original public meaning of the Equal Protection Clause. Eskridge provides a two-part answer to this question. I don’t see how either part works.

(To anticipate another objection: I am not confining original meaning to original-expected applications. If I were, I wouldn’t be posing the question in this subpart and wouldn’t be addressing Eskridge’s answer.)

a. Eskridge contends that the four states involved in the pending Supreme Court case have all “adopted legislative and constitutional measures specifically targeting LGBT persons for exclusion.” As I see it, Eskridge’s contention has two possible meanings.

(1) Eskridge may be contending that state laws—or is it just recently adopted state laws?—that define marriage as the union of one man and one woman ipso facto amount to “specifically targeting LGBT persons for exclusion.” (By “LGBT persons,” he presumably means “same-sex homosexual couples.”) But the definition of marriage as the union of a man and a woman doesn’t “specifically target” anyone. The definition generally operates to exclude all others—including, for example, polygamists and polyamorists (as well as same-sex heterosexual couples)—who don’t fall within it. That’s the nature of a definition.

For Eskridge, those who are defending what marriage has always been from attack in the courts are the aggressors. Reasonable people can share Eskridge’s perspective. But I certainly don’t think that his perspective is compelled. Yet his theory that marriage laws are “specifically targeting LGBT persons for exclusion” requires reading the Constitution to incorporate his contestable view of who is the aggressor.  

Imagine for a moment that the challenges to state marriage laws had come from polygamists or polyamorists rather than from same-sex couples. Is there any reason to believe that laws re-affirming the definition of marriage would have been worded differently?

One further problem for Eskridge: If his claim operates only against recently adopted state laws, why wouldn’t the invalidation of those laws simply mean that the identical pre-existing statutory or common-law definition of marriage would spring back into existence in each state?

(2) Eskridge may be contending that, beyond their definitions of marriage as the union of a man and a woman, there are special “plus” factors present in these four states that establish that they are “specifically targeting LGBT persons for exclusion.” He complains, in particular, that each state has declared its definition of marriage to be (in his words) “a matter of strong public policy” and, further, that “two of the states have gone out of their way to exclude LGBT persons not just from civil marriage, but also from any other institution ‘similar’ to marriage.”

If Eskridge is relying on the presence of special “plus” factors, he ought to make clear what those “plus” factors are, as his argument wouldn’t apply against state marriage laws that simply define marriage as a union of a man and a woman.

It’s difficult to see, though, how the two particulars he complains about could be significant “plus” factors. If it’s permissible for a state to define marriage as the union of a man and a woman, how can it be objectionable for a state to declare that definition a matter of strong public policy so that it doesn’t have to recognize supposed marriages from other states that fail to meet that definition? And if only “two of the [four] states” have excluded same-sex couples from institutions similar to marriage, then that factor couldn’t explain Eskridge’s case against the laws of all four states. (Plus, of course, those states may have rational concerns that a quasi-marital institution would undermine the purpose of their marriage laws.)

b. Eskridge relies on “each state’s historic persecution of LGBT persons in the mid-twentieth century” as the basis for positing that the supposed “targeted exclusions” of LGBT persons from marriage amount to “exactly the kind of class or caste legislation outlawed by the Fourteenth Amendment”—i.e., a law that discriminates against minorities “not to further a proper legislative end but to make them unequal to everyone else.”

I’m confused by this argument in multiple respects:

(1) Is Eskridge arguing that marriage laws enacted before “each state’s historic persecution of LGBT persons in the mid-twentieth century” are consistent with the original meaning of the Equal Protection Clause but that identical laws enacted after the persecution aren’t? I don’t see what sense that would make. If the earlier-enacted laws “further[ed] a proper legislative end,” how can it be conclusively presumed that the later-enacted laws don’t? What’s the necessary logical connection between “each state’s historic persecution of LGBT persons” and the end that its marriage laws serve?

(2) Or, if “each state’s historic persecution of LGBT persons” is the key factor, does that mean that a state’s pre-existing definition of marriage as the union of a man and a woman became constitutionally invalid when that persecution occurred? Again, if the earlier-enacted laws “further[ed] a proper legislative end,” I don’t see how that proper end automatically gets jettisoned.

(3) Is Eskridge making an argument that he would apply to all 50 states? That is, does he regard the necessary predicate of “historic persecution of LGBT persons” to have existed in all states? (By asking, I don’t mean to imply that I would dispute such a proposition.) Or only in some states? If the latter, what indicia of persecution is he looking to?

I’ll add that, until very recently, there was an open “great divide” among gays and lesbians over whether redefining marriage to include same-sex couples was desirable, with some gay activists seeing marriage as an oppressive domesticating institution. (That divide is less open now, perhaps because those who oppose marriage have come to see, as one debating opponent of mine put it, the redefinition of marriage as a stepping stone to the de-institutionalization of marriage altogether.) That makes it all the more peculiar that the constitutional remedy for generic “persecution of  LBGT persons”—under the supposed original meaning of the Equal Protection Clause, no less—would be redefinition of marriage to include same-sex couples.

3. Eskridge argues that there is no justification for the “exclusion” of same-sex couples from the “fundamental rights- and benefits-conferring institution” of marriage.

From an originalist perspective, I don’t see the need, as a constitutional matter, to justify the definition of marriage that was universal at the time that the Fourteenth Amendment was adopted. Nor do I agree with Eskridge’s sleight-of-hand effort to relieve the challengers of their burden of showing that the definition is unconstitutional.

In any event, the justification for the definition of marriage as the union of a man and a woman is the same now as it was in 1868. Marriage developed in this country, and everywhere in human civilization, because societies recognized that opposite-sex couples generally* have the capacity to procreate. Marriage exists to increase the likelihood that children will be born and raised in stable and enduring family units by the mothers and fathers who, often unintentionally, naturally generated their very existence. As Prop 8 proponents showed in their Supreme Court brief (pp. 31-35), leading thinkers over the centuries—including many on the Left, like Bertrand Russell, anthropologist Claude Levi-Strauss and sociologist Kingsley Davis—have consistently recognized the central connection between marriage and responsible procreation and childrearing. This basic truth was commonly acknowledged until the recent movement to redefine marriage to include same-sex relationships made it fashionable to deny or obscure it.

(Just a word or two on Eskridge’s claim—which I think irrelevant to the original-meaning inquiry—that the redefinition of marriage to include same-sex couples wouldn’t harm the institution of marriage. How odd to imagine that denying the central connection between marriage and responsible procreation and childrearing, and redefining marriage to eliminate that connection, won’t have a damaging long-term effect on the strength of that connection. Further, the New York Times tells us that there is plenty of reason to think that marriages of same-sex couples are much less likely to model the marital norms of fidelity and monogamy.)

***

Eskridge’s claim reminds me of his Yale colleague Jack Balkin’s much more extended—but equally audacious—argument several years ago that laws against abortion violate the original meaning of the Equal Protection Clause. (I critiqued Balkin’s argument in a series of posts—see Parts 1, 2, and 3.) As law professors John O. McGinnis and Michael B. Rappaport nicely put it in their brief critique of Balkin’s argument, Balkin

undertakes what many previously would have thought a conjuror’s trick: he attempts to locate the constitutional right to abortion, the poster child for imposition of the judiciary’s own idiosyncratic values, in the original meaning of the Constitution.…  [His] article has great strategic value [for opponents of conservative originalists]: it attempts to appropriate for the living constitution philosophy the intellectual capital and public respectability that originalism has earned recently in the academy as well as the wider world.

Eskridge’s “conjuror’s trick” likewise fails. The original-meaning methodology is not some magic wand that, when waved while uttering some mumbo jumbo, somehow causes the sudden disappearance of whatever laws one doesn’t like.

* Yes, infertile couples exist. They also existed in 1868 and earlier. Even apart from the weakness of the infertile-couple canard, the fact that state marriage laws have never imposed an Orwellian fertility test means that the original meaning of the Equal Protection Clause allows marriage laws that define marriage as the union of a man and a woman, irrespective of fertility.

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