Constitutionalizing Same-Sex Marriage

A number of prominent Republicans have signed a new amicus brief in the Proposition 8 case, sponsored by the American Foundation for Equal Rights (AFER), a group that supports the legalization of same-sex civil marriage. Sheryl Gay Stolberg describes the brief and identifies some of the more prominent signatories. But one paragraph caught my attention:

Some high-profile Republicans who support same-sex marriage — including Laura Bush, the former first lady; Dick Cheney, the former vice president; and Colin L. Powell, a former secretary of state — were not on the list as of Monday.

One reason this might be true is that one can believe that state governments ought to the legally recognize same-sex civil marriages, and perhaps that Congress should do the same, yet not support the idea that the U.S. Constitution essentially mandates that same-sex civil marriage should be the law of the land on the grounds that to limit civil marriage to unions of one woman and one man represents a violation of due process. The following is drawn from the AFER brief:

As the Court noted in Lawrence, “[e]quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.” 539 U.S. at 575 (emphasis added). Thus, “[t]o deny [gay and lesbian Americans] th[e] fundamental freedom” to marry would not only be “directly subversive of the principle of equality at the heart of the Fourteenth Amendment,” Loving, 388 U.S. at 12, but would also deny them “their dignity as free persons.” Lawrence, 539 U.S. at 567. Because Proposition 8 prevents gay men and lesbians from expressing this most basic aspect of their autonomy and personhood, and is not “narrowly drawn” to further a “compelling state interest[ ],” Carey v. Population Servs. Int’l, 431 U.S. 678, 686 (1977), it violates due process. [Emphasis added]

My gut, informed by the old Gerald Rosenberg argument concerning courts and social change, is that same-sex marriage proponents ought to pursue a state-by-state approach to work towards a durable consensus rather than pursue the constitutional route. Overturning Proposition 8 at the ballot box was an option very much in reach. But advocates and opponents of same-sex marriage have strong convictions, and this constitutional battle reflects that fact.

On a separate note, I wonder if the clerks of the conservative members of the Court will influence the final outcome, and in which direction. These are young people at the start of their careers, and in the upper echelons of the legal profession, my impression is that support for same-sex civil marriage is pervasive. 

Reihan Salam — Reihan Salam is executive editor of National Review and a National Review Institute Policy Fellow. He is a contributing editor at The Atlantic and National Affairs, a member of the ...