Credit: Library of CongressCredit: Library of CongressOn Tuesday morning the U.S. Supreme Court will hear oral argument in Hollingsworth v. Perry, the case arising from the legal challenge to Proposition 8, the 2008 California initiative that amended the state constitution in order to forbid same-sex marriage. At issue is whether Prop. 8 violates the Equal Protection Clause of the 14th Amendment, which says, “No State shall...deny to any person within its jurisdiction the equal protection of the laws.” Although the case is largely focused on the proper scope of the fundamental right to marry, it also raises significant questions about federalism. Should the Supreme Court be in the business of reviewing the marriage policies set by the states? Does California have the lawful power to outlaw same-sex unions without federal interference?

To help answer these questions, Reason.com invited Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, and Jonathan H. Alder, the Johan Verheij Memorial professor of Law at the Case Western Reserve University School of Law, to debate federalism and gay marriage. In the first essay below, Shapiro argues that federalism is beside the point in the Prop. 8 case. In response, Adler argues that while state opposition to same-sex marriage may be unwise, it is not unconstitutional.

Federalism Is Beside the Point in Gay Marriage Lawsuits

Ilya Shapiro

Some libertarians are conflicted over what the U.S. Supreme Court should do when presented with challenges to state laws that don’t allow for same-sex marriage. While consenting adults should be allowed to do whatever they want if it doesn’t harm others, isn’t family law a core function of state sovereignty with which the federal government—including the judiciary—shouldn’t interfere?

That intuition isn’t surprising, because libertarians generally like federalism. Particularly in this age of an overweaning federal government and unaccountable executive branch, we pound our pocket Constitutions and demand respect for the Commerce Clause, the 10th Amendment, and other structural protections for liberty.

Indeed, federalism “is more than an exercise in setting the boundary between different institutions of government for their own integrity,” wrote Justice Anthony Kennedy for a unanimous Supreme Court in the 2011 case of United States v. Bond (which is returning to the Court this fall). “By denying any one government complete jurisdiction over all the concerns of public life,” Kennedy continued, “federalism protects the liberty of the individual from arbitrary power.” If the federal government acts outside the scope of its delegated and carefully enumerated powers, then it’s no better than an armed mob.

I’ve therefore been proud to file federalism-based briefs on the Cato Institute’s behalf on issues ranging from the civil commitment of sex offenders to Obamacare’s individual mandate to the Voting Rights Act. I yield to no one in fighting to keep the federal government within its constitutional bounds.

And yet all that federalism talk is an irrelevant red herring when it comes to gay marriage because there’s no claim here that the federal government is exceeding its lawful authority. Instead, in Hollingsworth v. Perry, the plaintiffs argue that California’s Proposition 8 improperly denies them the fundamental right to marry under the 14th Amendment.

In other words, Perry involves claims that a state government is violating individual constitutional rights, not that the federal government is exercising powers it doesn’t have. 

The lawsuit isn’t some novel invention designed to avoid implicating the Constitution’s structural provisions, but the sort of thing that libertarians get behind without controversy in areas ranging from gun rights to property rights to the right to be free from unreasonable search and seizure. And just as there wasn’t a federalism problem when the Supreme Court struck down Chicago’s gun ban in McDonald v. Chicago, there would be no federalism problem if it now struck down California’s ban on same-sex marriage.

Now, I don’t mean to suggest that Perry is a slam-dunk case that the plaintiffs will easily win. What I’m simply saying is that the case turns on whether treating couples differently on the basis of sexual orientation is constitutionally valid. Perry asks whether the Due Process or Equal Protection Clauses of the Fourteenth Amendment protect the claimed right to marry someone of the same sex. (Full disclosure: Cato filed a brief, which I signed, arguing that the Equal Protection Clause does indeed require states to allow same-sex couples to marry—though in my ideal world the government would get out of the marriage-licensing business altogether.)

Let me state the background principle: If a state law violates a constitutionally protected right, the federal judiciary has the constitutional authority to strike down that law. Indeed, if federal courts decline to do so—if they engage in judicial “abdication” or “pacifism”—they fail their constitutional duty. Of course, if the state action doesn’t rise to the level of constitutional injury, then courts should rule for the state.

And so if it’s unconstitutional for California to discriminate based on sexual orientation when doling out marriage licenses, then a ruling against Prop 8 would simply vindicate individual constitutional rights. If, however, there’s a compelling reason for making the distinction—because, say, it promotes child-rearing—then California can keep doing what it’s doing. Either way, California’s power to regulate marriage isn’t implicated—just like its power over criminal law wasn’t in doubt in 2011 when the Court found the state’s ban on violent videogames to violate the First Amendment.

In sum, those who argue that federal courts have no business policing state marriage laws are forgetting that the Civil War Amendments, particularly the 14th, fundamentally changed—perfected—our federalism. Since 1868, when states violate individual rights, they have to answer to federal courts.

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.