I’d like to flag an interesting new manuscript by Professor Steven Calabresi, available at SSRN here. Among other things, Calabresi argues that cases regarding the definition of “marriage” do not fall within the scope of “law or equity” (which is a term in Article III of the Constitution) and therefore those cases must be decided by state courts rather than federal ones. Although I don’t know enough to say whether Calabresi is correct, his position certainly does have some disturbing implications, for example that a state court could hypothetically approve of excluding interracial couples from the word “marriage.” That’s kind of a scary prospect, even though Calabresi carefully distinguishes the case of Loving v. Virginia because it involved not just a definition but a criminal penalty regarding interracial marriage.
An important but often overlooked aspect of this same sex marriage (“SSM”) controversy is that in some states it is basically a free speech issue. For example, here’s what the Supreme Court of California said in 2009:
The Attorney General’s contention … rests inaccurately upon an overstatement of the effect of Proposition 8 on both the fundamental constitutional right of privacy guaranteed by article I, section 1, and on the due process and equal protection guarantees of article I, section 7. As explained below, Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term “marriage,” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . .”
Even if states have no free speech rights, it is still kind of disturbing that the federal judiciary would basically muzzle the states, especially without any support from Congress. And, if corporations have free speech rights, why not states? Professor David Fagundes has pointed out that states do have some free speech rights, although the Equal Protection Clause was adopted later than the First Amendment and so would apparently override the First Amendment. Banning governmental use of the innocuous term “civil union” seems like judicial overkill to me, whether or not states have First Amendment rights.
Of course, in many states, the marriage laws in question go beyond mere nomenclature. That raises another interesting question: may states adopt policies that help to ensure children will preferably have a mother and father? I am surprised that we have a U.S. Supreme Court (SCOTUS) that is on the verge of issuing a resounding “no,” in opposition to long tradition, in opposition to continued public debate, and in opposition to collection of further data and further experience. But, for me, there is a deeper question: does SCOTUS really have constitutional authority to do this even without any support from Congress?
I have a forthcoming law review article that addresses this last question in general, with only a footnote about SSM. What I have discovered is that the framers of the Equal Protection Clause definitely wanted the views of Congress to be a critical factor in the Court’s equal protection analysis. Instead, courts have completely shut out Congress, and in so doing they have effectively stricken the last three words from the Clause, like this: “No state shall deny to any person within its jurisdiction equal protection.” The missing last three word are “of the laws” and those “laws” most definitely were intended to include the laws of Congress (that’s why the clause does not say “of its laws”). Even if we pretend that current equal protection doctrine is 100% correct − with its tiers of scrutiny and independent judicial judgment − my feeling is that the courts are really jumping the gun on this one.
Posted at 9:48 AM