DOMA Nation


I'll halfway agree with Andrew Sullivan: the decision upholding the Defense of Marriage Act, which permits states to refuse to recognize gay marriages performed in other states, is clearly a good thing politically to the extent that it kneecaps the Federal Marriage Amendment for the foreseeable future. I'm also genuinely sympathetic to the federalist argument, but it's hard for me to square this with the ruling in Loving v. Virginia.

Now, one obvious difference is that Loving concerned anti-miscegenation statutes, and while race has always been regarded as a "suspect class" under the 14th Amendment, automatically triggering strict scrutiny, sexual orientation is not, as yet, so regarded. As far as I know, it's never even been regarded at the intermediate level of gender classifications, triggering "heightened scrutiny." Still, when the judge in this case is paraphrased as saying that "the law was not discriminatory because it treats men and women equally" it's hard not to think of the parallel argument the state presented in Loving:

Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race….Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose.

As noted, though, the fact that race specifically was at issue played a key role in the rejection of that argument, so it's consistent as long as we're not considering sexual orientation a suspect class. Probably we should, but that's not the law (yet), so fine. There are, however, multiple roads to strict scrutiny. Another would be a finding that the state law burdened a "fundamental" right, but the Globe piece says that "[Judge] Moody said he could not declare marriage a 'fundamental right,' as lawyers for the women had urged him to do." I haven't read the decision itself yet, but this is a point where the language of the second component of the Loving ruling seems fairly straightforward at first blush:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.

Emphasis above mine. I assume the ruling itself finds some way around that, but if that passage isn't meant to say there's a fundamental right to marry, I can't imagine what it is supposed to be saying.

UPDATE: Here's the opinion in PDF form. Scanning it quickly, I see that the Globe piece rather badly got this one wrong. The judge does recognize that there exists a fundamental right to marry, quite explicitly. He just unhelpfully adds that "no federal court has recognized that this right includes the right to marry a person of the same sex." This seems to get things backward. The order of reasoning in Loving is from the premise that there is a fundamental right to marry as one chooses to the conclusion that restrictions on the choice must meet a high burden, which racial classifications fail to do. To observe that the contours of "as one chooses" had not previously been held to encompass persons of other races in that case would have been obtuse, undermining the usefulness of the language of "fundamental rights" when it comes time to apply those rights in novel cases.