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Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.
States Opposition to Same-Sex Marriage May Be Unwise, But It’s Not Unconstitutional
Jonathan H. Adler
It is understandable that same-sex marriage proponents have turned to the federal courts to advance their cause. At many times in our nation’s history, the federal courts have vindicated individual liberty when legislatures and the political process would not. Yet in their zeal to advance the cause of same-sex marriage, Proposition 8 opponents are threatening the principles of federalism that are among the Constitution’s central bulwarks of liberty. A decision invalidating California’s Proposition 8, however welcome for the cause of marriage equality, would be a loss for federalism and a constitutional mistake.
The system of federalism is an essential guarantor of individual liberty and constraint on governmental power. As the Supreme Court noted in a unanimous 2011 decision, “federalism secures the freedom of the individual.” It does this by, among other things, forcing states to compete with one another for citizens by providing different mixes of policies (taxes, services, and legal guarantees) in an effort to discover the best mix. Where states get it wrong, such as by imposing excessive taxes or unjust laws, people remain free to “vote with their feet” and move to a jurisdiction with laws more in line with their beliefs.
Federalism thus advances individual liberty and fosters policy innovation. As circumstances and preferences change, states remain free to modify their policies accordingly. In a nation as large and diverse as the United States, this means different parts of the nation will pursue difference policy priorities, particularly if limits on the federal government’s power are observed.
Under the Constitution, the powers of the federal government are limited and defined. Those matters not delegated to the federal government are reserved to the states and the people. Family law, including the law of marriage, has traditionally been a matter left in state hands. In few areas is there a federal interest in how families are defined (which is one reason why Section 3 of the Defense of Marriage Act should be held unconstitutional).
The Supreme Court has customarily declined to intervene in the field of domestic relations precisely because this has traditionally been an area of exclusive state concern. Indeed the Court has long held that States have an “absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created.” On this basis states have adopted rules setting age requirements or other limitations on the both the creation and dissolution of marriages, the care and control of children, and other questions relating to family law.
Within our federalist system, state laws concerning marriage and other familial matters evolved dramatically over the 20th century, and continue to evolve today. Indeed, were it not for federalism, it is unlikely we would be having a debate about same-sex marriage at all, as it is only the system of federalism that has enabled states to experiment with different policies designed to extend the blessings and benefits of state-sanctioned marriage to same sex couples. In the process, many Americans once suspicious or uncomfortable with the prospect of homosexual unions have discovered they have little to fear, and support for same-sex marriage has spread. Thus, just last year voters in Maryland and Maine approved same-sex marriage, and it is near certain that others will follow.
Some same-sex marriage proponents object o allowing such experiments to continue on the grounds that a refusal to recognize same-sex marriage on fully equal terms to heterosexual marriage is unconstitutional. Such policies violate the Due Process and Equal Protection Clauses of the 14th Amendment, they contend. For this reason, some argue, the debate over same-sex marriage is not a question of federalism, but fundamental constitutional right.
The claim that a refusal to recognize same-sex marriage violates the original public meaning of the 14th Amendment scarcely needs a response. The Equal Protection and Due Process clauses were enacted to ensure the fundamental liberties of newly freed slaves and prevent the imposition of arbitrary and invidious classifications based upon race. The clauses were not then, and have never been, understood to invalidate any and all distinctions or restrictions imposed by state governments, including those based upon sex. Some classifications based upon sex violate the 14th Amendment, to be sure, but those classifications supported by a sufficient state interest pass constitutional muster. And, as traditionally applied, a state’s decision to only license marriages between one man and one woman easily pass that test.
The Supreme Court recognized a fundamental right to marry in Loving v. Virginia in 1967. Loving, which struck down a state law barring some forms of interracial marriage, does not require the invalidation of Proposition 8, however. Laws barring miscegenation sought to legitimize a system of racial oppression and inherently embodied invidious discrimination. The same cannot be said for laws embodying a traditional definition of marriage, however wrong-headed such laws may be. Indeed, only five year after Loving, the Supreme Court dismissed a Due Process and Equal Protection of Minnesota’s refusal to recognize same-sex marriages “for want of a federal question.”
The arguments for holding Proposition 8 unconstitutional do not seek to vindicate a “right to marry” so much as they seek to alter the definition of what constitutes a marriage in the first place. Marriage has been understood to constitute the union of one man and one woman through most of human history. Indeed, this definition long predates the Constitution. Some cultures have recognized polygamous marriage, but sexual difference has been a core component of what constitutes a marriage in nearly every case.
As a consequence, there are plenty of judicially cognizable reasons why the people of a state may prefer not to define a marriage as anything other than the union of one man and one woman. Such a union is the only one capable of naturally producing offspring within the bounds of marriage. This is why the traditional definition of marriage has persevered throughout most of human history throughout most of the world. Many of us find this to be an unpersuasive justification for denying state recognition of same-sex couples, but this is not a sufficient basis to render such policies unconstitutional. Federalism requires that state governments are allowed to adopt unsound policies. Indeed, it is only by allowing a diversity of policy choices to be made that we can discover the mix of policies that best protect individual liberty and facilitate the pursuit of happiness.
Advocates of same-sex marriage, myself included, believe it is proper to expand the traditional definition of marriage to include same-sex couples. Insofar as the state is in the business of licensing and recognizing marriages, it is prudent, wise, and just to recognize that two people of the same sex are just as capable of creating an enduring, committed relationship and providing for the care and nurturing of children as many heterosexual couples. But this does not mean a state’s refusal to take this step violates the Constitution. Not every policy that is unwise or even unjust is unconstitutional.
Jonathan H. Adler is the Johan Verheij Memorial professor of Law at the Case Western Reserve University School of Law. He participated in an amicus brief of law professors in United States v. Windsor urging the Supreme Court to invalidate Section 3 of the federal Defense of Marriage Act (DOMA) on federalism grounds.