Inverted equal protection: same-sex marriage at the Sixth Circuit (Part I, originalism)

Judge Jeffrey Sutton's opinion for the Sixth Circuit in DeBoer v. Snyder last week rejected constitutional claims for same-sex marriage on several grounds. Briefly, the Sixth Circuit concluded: (1) the original meaning of the Fourteenth Amendment doesn't encompass a constitutional claim for same-sex marriage; (2) states have a rational basis for laws recognizing opposite-sex marriages; (3) there's no unconstitutional animus in laws banning same-sex marriages; (4) there's no fundamental right to marry a person of the same sex; and (5) heightened scrutiny doesn't apply to laws banning gay couples from marriage. (Sutton also dispatches an argument based on the constitutional right to travel in a few paragraphs.)

Yesterday I responded in part to what I see as the Sixth Circuit's inadequate understanding of the animus doctrine, which springs from core equal-protection concerns. The presence of animus in restrictions on same-sex marriage takes anti-SSM constitutional amendments, mini-DOMA laws, and state statutory limitations out of ordinary rational-basis review.

But there are several other equal-protection principles at stake in DeBoer. These touch on (1) the place of original meaning in interpreting the Fourteenth Amendment's Equal Protection Clause, (2) the methodology of rational-basis review in equal-protection cases, and (3) the appropriate level of scrutiny under the Equal Protection Clause for same-sex marriage exclusions. (I don't plan to address the due process fundamental-right argument. I also don't plan to address the Sixth Circuit's failure even to mention the argument that denying a person the ability to choose the sex of his spouse is sex discrimination, an omission Ilya has criticized.)

The upshot is that, even apart from its equal-protection errors in applying animus doctrine, the Sixth Circuit failed to follow far more familiar and accepted equal-protection analysis. The DeBoer decision starts off with an unusually limited version of original-meaning methodology for an equal-protection case, then asks the opposite of the right question under rational-basis review, and finally turns the usual approach to suspect-classification analysis on its head. The result is a curiously inverted equal-protection approach to same-sex marriage.

This post responds specifically to the Sixth Circuit's use of original meaning against a claim for same-sex marriage. In separate subsequent posts, I plan to address the rational basis and suspect-classification issues.

I. Specific-intentions originalism under the Equal Protection Clause

The Sixth Circuit starts with the broadly accepted proposition that original meaning helps to guide constitutional interpretation in many cases. The opinion supports this proposition with a string citation to the following cases: Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-80 (1803) (congressional and judicial power); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401-25 (1819) (same); Legal Tender Cases, 79 U.S. 457, 536-38 (1870) (paper money); Myers v. United States, 272 U.S. 52, 110-39 (1926) (executive power); INS v. Chadha, 462 U.S. 919, 944-59 (1983) (separation of powers); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-25 (1995) (separation of powers); Washington v. Glucksburg, 521 U.S. 702, 710-19 (1997) (substantive due process); Crawford v. Washington, 541 U.S. 36, 42-50 (2004) (Confrontation Clause); Boumediene v. Bush, 553 U.S. 723, 739-46 (2008) (executive power); Giles v. California, 554 U.S. 353, 358-61 (2008) (admissibility of hearsay); District of Columbia v. Heller, 554 U.S. 570, 576-600 (2008) (Second Amendment). Elsewhere in the original-meaning discussion, the opinion cites an Establishment Clause case and the recent Recess Appointments Clause case. All of these decisions show, argues Judge Sutton, that original meaning cabins and directs the application of open-ended constitutional clauses.

Notice the absence of equal-protection cases on that list. That's not an accident or an error of omission. It's hard to find any prominent equal-protection cases in which the specific views of the Civil War-era framers and ratifiers, to the extent they could even be known, determined the outcome. In fact, the modern decisions dealing with public-school racial segregation, interracial marriage, and sex discrimination have eluded the best efforts of scholars and historians to justify them under a narrow approach to original meaning. They would probably have to come out the other way if the narrow approach prevailed. No wonder the limited version of originalist methodology played no role in the decisions.

I call this narrow method specific-intentions originalism, but it's sometimes called original-expected-application originalism. I wouldn't argue that specific-intentions originalism has never been used or that it's inappropriate in all cases to use it. Indeed, some of the cases Judge Sutton cites are exemplars of the method. But the spacious words of the Equal Protection Clause, the larger principles it enshrines, and the extensive history of its doctrinal development have ruled out specific-intentions originalism as the appropriate guide to understanding it.

So it's correct but hardly dispositive that, in the words of DeBoer, "nobody argues" that "the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage" to include same-sex couples. At one time, it was not thought to deny equal protection to make "colored persons" and whites sit in separate rail cars. It was widely thought that there was no constitutional problem with physically separating white and black schoolchildren as long as the books, desks, buildings, and teachers were the same in quality (in practice, they never were). It was the law of all but nine states long after the Civil War ended to refuse marriage licenses to interracial couples.

It was nothing to prohibit women from practicing law, tending bar, or attending military academies because their "paramount destiny" was to be good wives and raise children. In fact, it was "the law of the Creator," declared Justice Bradley. How could the Constitution possibly be understood to contradict that? Nobody seriously thinks that "the people who adopted the Fourteenth Amendment understood it to require the States" to dismantle the patriarchy. The Equal Protection Clause (like free-speech doctrine) is an embarrassment to specific-intentions originalism.

II. Principles-based originalism under the Equal Protection Clause

The text and doctrine support constitutional protection to "any person" (not any particular racial group or gender or other class). They do not support the practice of hewing closely to what the framers and ratifiers might have thought about a particular issue had they contemplated it. Like many originalists themselves, including Judge Robert Bork in The Tempting of America, the Court's equal-protection cases have adopted an approach to original meaning quite different from the Sixth Circuit's specific-intentions version of it. Call it principles-based originalism.

Principles-based originalism has been used in equal-protection doctrine to enforce the larger principles embodied in the text-like abolishing caste-creating laws and prohibiting discrimination against a group for invidious reasons unrelated to their own merits, that is, failing to treat them like "any person" who possesses equal worth and dignity. The Equal Protection Clause is a self-conscious repudiation of exclusion and hierarchy supported by nothing more than ancient practice. It demands reasons. And what counts as legitimate and sufficiently rational reasons evolves over time, as it has in every area of equal protection. How to reconcile the need to resist "anything goes" in equal-protection cases with the doctrine's undoubted reliance on a broader principles-based originalism is a genuine problem. But DeBoer does not even acknowledge, much less grapple with it.

In fact, there are originalist-oriented arguments in favor of a constitutional right to same-sex marriage, as Ilya notes, including a recent article by Federalist Society co-founder Steve Calabresi. I don't evaluate those arguments here, although suffice it to say that originalist arguments can be used plausibly and have been used in fact to reach results that would never have been anticipated by the authors of the amendment. Judge Sutton's opinion simply does not engage the issue at the level of originalist principle. His originalist analysis is incomplete and selective.

III. Originalism and homosexuality under the Equal Protection Clause

What might a principles-based originalism have to say about the law's historic discrimination against homosexuals? A principles-based originalism leaves room for the possibility that we may learn from experience and systematic study that laws once thought necessary and proper serve only to needlessly oppress. Classes of people long thought to be sick, maladjusted, predatory, disease-ridden sub-human filth (you should read some of the emails I still get) may be discovered living out their lives next to us, working beside us, raising families, and committing themselves to each other, their children, and their communities. Who knew?

It was once thought entirely rational do anything we wanted to homosexuals as a way to serve the legitimate and even compelling goal of preserving traditional morality and good social order: firing them from government jobs; denying them security clearances; discharging them from military service without regard to valor and self-sacrifice; subjecting them to chemical castration, electro-shock therapy, and psychological "cures"; prosecuting them for sexual intimacy; denying them custody and visitation with their own children; keeping them from being buried together in veterans' cemeteries; slamming the door to a loved one's hospital room; and excluding them from even attending a partner's funeral.

Indeed, Colorado never doubted that it could strip them, and them alone, of all civil-rights protections. Texas thought it could make only their "deviate sex" a crime. Congress could surely deny any recognition to their marriages alone among all the second and third and faithless and childless and prisoner and deadbeat-parent marriages it didn't hesitate to recognize. From the moment homosexuals and others around them realized who they were to the moment they died the law knew no limits in its obsessive quest to punish and harass them.

Now high-profile opponents of gay marriage at the Supreme Court can't think of a single instance in which it would even be rational for government to discriminate against them-except for denying them marriage licenses, of course. The issue is not, as DeBoer conceives it, a matter of elite courts imposing new and evanescent views on the Constitution. It is a matter of reconciling the thinly justified practice and hesitation of 31 states with a constitutional principle of equal protection that-understood in light of decades of experience, systematic study, and understanding-accommodates no legitimate anti-gay discrimination in any other area of the law. Marriage exclusions are the last legal redoubt of perceived homosexual inadequacy.

Parts of the Sixth Circuit opinion frankly acknowledge the errors of the past. Parts might just as easily fit in an opinion striking down the marriage laws of Kentucky, Tennessee, Ohio, and Michigan. This is a court admirably unburdened by anti-gay hysteria and misconceptions, self-conscious in its desire to avoid even a hint of long-discarded prejudices. Even on the touchiest of issues, marriage and children, Judge Sutton is stunningly confident (and right):

Gay couples, no less than straight couples, are capable of sharing such [committed] relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment.

That statement would have been literally incomprehensible in 1868 (when the modern concept of homosexuality did not exist and "gay" still meant cheerful), would have been shocking to most people in 1968 (when two-thirds of Americans told pollsters they viewed homosexuals with "disgust, discomfort, or fear"), and remains controversial in some gatherings even today (when some sociology professors still testify against gay parenting).

Yet Judge Sutton does not even feel the need to cite a single study to support the view that it's commitment, not sexual orientation, that matters in relationships and child-rearing. What a remarkable, rather matter-of-fact claim for a court that in the same breath treats constitutional rights as if they were set in stone by men who lived 150 years ago, never to be enforced beyond their narrow understanding by anyone but the very state legislators they distrusted.

The Sixth Circuit fully agrees that the earth has moved under our feet on the subjects of homosexuality, same-sex relationships, and gay parenting. What a shame that it does not honor the framers of the amendment by acknowledging that they might have had the insight to know that their own human understanding might be fallible. They might even have had the humility to accept that when it comes to subjects they could never have imagined, their descendants would be the ancients, not the framers themselves.

And how regrettable it is that the Sixth Circuit failed to respect the framers' fear that a state legislature might continue to "deny to any person the equal protection of the laws" even after the foundation underlying that denial was so obviously wrong that a respected conservative jurist needs no real argument or evidence to rebut it. The framers' amendment left open the possibility of securing equal protection not only in legislative processes but in courts exercising the acknowledged power of judicial review. The refusal to appreciate that now on the subject of same-sex marriage is not to honor the original design, but to abandon it.