Gay Marriage Opponents Cite Dubious Left-Wing Legal Argument

On March 26, the Supreme Court will hear oral argument over whether California's Proposition 8, the voter initiative which banned gay marriage in that state, violates the Equal Protection Clause of the 14th Amendment.

In the brief they submitted to the Supreme Court yesterday, Prop. 8's supporters cloaked their case against gay marriage in the principles of states' rights, arguing that California should be permitted to ban same-sex unions without interference from the federal courts. "Our federal system of government is designed to permit a diversity of approaches to difficult and uncertain social issues," the brief states, "and the democratic process regarding marriage that is unfolding throughout the Nation shows the genius of that system at work."

At first glance, that argument appears tailor-made to appeal to conservative and libertarian advocates of federalism. Unfortunately, the Prop. 8 defenders also base their case on a dubious left-wing legal theory that cuts against the very idea of limited government. Immediately after the statement quoted above, the Prop. 8 supporter's brief quotes from Justice Louis Brandeis' famous dissent in New State Ice Co. v. Liebmann (1932), where Brandeis wrote, "it is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

Don't let these words fool you. Brandeis' goal was the expansion of state power at the expense of individual rights.

At issue in New State Ice Co. was a 1925 Oklahoma regulatory scheme that granted monopoly powers over the manufacture, sale, and distribution of ice to a select group of companies. The law effectively outlawed competition by requiring any would-be entrepreneur that wanted to enter the ice business to first provide "competent testimony and proof showing the necessity" of his business plan to state officials. Needless to say, there was no legitimate public health, welfare, or safety justification for this infringement on the right to earn a living. And predictably, the state regulators were working in cahoots with the state-sanctioned ice monopoly to eliminate would-be competitors.

What prompted Brandeis to spin this naked act of protectionism as a "courageous state…experiment?" Remember that Brandeis got his start in the Progressive movement of the 1890s, where he lobbied on behalf of vast regulatory powers and urged the courts to give second-class treatment to those constitutional rights he didn't believe to be worthy of respect. In fact, in a letter to Felix Frankfurter, Brandeis even privately advocated the wholesale repeal of the 14th Amendment due to the limits it placed on state power.

Supporters of limited government should be wary of any legal argument that cites Brandeis' dubious ode to untrammeled state authority.

Indeed, consider how Brandeis' words were utilized in another recent high-profile Supreme Court case. When Chicago went before the Court in 2010 to justify its handgun ban and other elements of its restrictive gun control regime in McDonald v. Chicago, city officials cited Brandeis in defense of their infringement on the right to keep and bear arms. "Firearms regulation is a quintessential issue on which state and local governments can 'serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country,'" the city argued. Chicago officials should therefore be permitted "the greatest flexibility to create and enforce firearms policy."

The Supreme Court thankfully rejected this sweeping assertion of regulatory power.

Federalism is a bedrock American principle, but that does not mean that state governments enjoy free rein to "experiment" on their citizens in violation of the Bill of Rights and the 14th Amendment. It's time to stop invoking Brandeis and instead start reviving the eloquent words of Justice George Sutherland, who penned the majority opinion striking down the Oklahoma monopoly in New State Ice Co. "In our constitutional system," Sutherland wrote, "there are certain essentials of liberty with which the state is not entitled to dispense in the interests of experiments."