Nothing in the text or original meaning of the Fourteenth Amendment—in Supreme Court jurisprudence on Fundamental Rights of the Due Process Clause or the Equal Protection Clause—requires the redefinition of marriage. Nor do male–female marriage laws lack a rational basis or fail to serve a compelling state interest in a narrowly tailored way.

Abstract

There is nothing in the U.S. Constitution that requires all 50 states to redefine marriage. The only way one can establish the unconstitutionality of man–woman marriage laws is to adopt a view of marriage that sees it as an essentially genderless, adult-centric institution and then declare that the Constitution requires that the states (re)define marriage in such a way. In other words, one needs to establish that the vision of marriage our law has long applied is wrong and that the Constitution requires a different vision. There is, however, no basis in the Constitution for reaching that conclusion. Marriage is based on the anthropological truth that men and women are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father, and states have constitutional authority to make marriage policy based on these truths.

Over the past year, four federal circuit courts—the Fourth, Seventh, Ninth, and Tenth Circuits—have ruled that the states and their people lack the ability under the federal Constitution to define marriage as it has always been defined: as the legal union of a man and a woman.[1] In their breathtaking sweep, those four rulings are reminiscent of the U.S. Supreme Court’s now-discredited decision in Dred Scott v. Sandford,[2] which likewise limited the people’s right to decide an issue of fundamental importance: whether their representatives in Congress had the constitutional authority to abolish slavery in the federal territories.[3]

Last fall, the Supreme Court allowed those four circuit decisions to go into effect, thereby overriding the votes of tens of millions of citizens in many parts of the nation. Fortunately, however, the Court has now agreed to revisit the issue in the context of a decision issued by the Sixth Circuit, which reaffirmed the right of a state’s people to choose the traditional man–woman definition of marriage.

The overarching question before the Supreme Court in the four cases that were consolidated before the Sixth Circuit and for purposes of review by the Supreme Court—Obergefell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder, and Bourke v. Beshear—is not whether an exclusively male–female marriage policy is the best, but only whether it is allowed by the U.S. Constitution.[4] In other words, the question is not whether government-recognized same-sex marriage is good or bad policy, but only whether it is required by the U.S. Constitution.

To resolve that overarching question, the Supreme Court has directed the parties in those cases to address two precise questions:

• Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
• Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?

Those suing to overturn the marriage laws in the four states covered by the Sixth Circuit (Ohio, Kentucky, Michigan, and Tennessee) thus have to prove that the man–woman marriage policy that has existed in the United States throughout our entire history is prohibited by the U.S. Constitution.

The only way someone could succeed in such an argument is to adopt a view of marriage that sees it as an essentially genderless institution based only on the emotional needs of adults and then declare that the U.S. Constitution requires that the states (re)define marriage in such a way. Equal protection alone is not enough. To strike down marriage laws, the Court would need to say that the vision of marriage that our law has long applied equally is just wrong: that the Constitution requires a different vision entirely.

The U.S. Constitution, however, is silent on what marriage is and what policy goals the states should design it to serve, and there are good policy arguments on both sides. Judges should not insert their own policy preferences about marriage and declare them to be required by the U.S. Constitution any more than the Justices in Dred Scott should have written into the Constitution their own policy preferences in support of slavery.

That, of course, is not to suggest that same-sex marriage is itself comparable to slavery. The point is simply that, as in Dred Scott, this is a debate about whether citizens or judges will decide an important and sensitive policy issue—in this case, the very nature of civil marriage.

The Fourteenth Amendment’s Original Meaning

A legal challenge to these state marriage laws cannot appeal successfully to the text or original meaning of the Fourteenth Amendment. The text, invoking American citizens’ “privileges or immunities,” the “equal protection of the laws,” and the “due process of law,” nowhere mentions marriage. Back in the 1860s, could anyone who drafted that amendment or any of the citizens who voted to ratify it have reasonably thought that it could be used to invalidate state marriage laws defining marriage as a man–woman union?

Imagine, for example, how President Lincoln—an accomplished lawyer and an ardent opponent of Dred Scott—would have reacted if the amendment had been introduced before his death and someone had suggested that it might one day be interpreted to require states to recognize same-sex marriages. He would have viewed that suggestion as preposterous. There has never been any general right, he would have said, to marry anyone you claim to love, so a state’s rejection of that claimed “right” could not possibly be a denial of due process.

Lincoln would also have noted the similarities between Dred Scott and a decision imposing same-sex marriage. As distinguished law professor Michael Stokes Paulsen has elegantly argued, “in the structure and logic of the legal arguments made for judicial imposition of an across-the-board national rule requiring every state to accept the institutions [of slavery and the redefinition of marriage], the two situations appear remarkably similar.”[5]

Moreover, unlike miscegenation laws, the man–woman definition of marriage does not offend the Amendment’s equal-protection guarantee because it allows any otherwise qualified man and woman to marry, regardless of their sexual orientation or other circumstances. The fact that the institution of marriage, rightly understood, may be more attractive to some of a state’s citizens than others does not mean that a state violates the Fourteenth Amendment simply by refusing to redefine the institution to make it more attractive to more romantic partnerships.

Indeed, as the Sixth Circuit pointed out, all sides agree that the original meaning of the Fourteenth Amendment does not require the redefinition of marriage: “Nobody…argues that the people who adopted the 14th Amendment understood it to require the States to change the definition of marriage.”[6] The Sixth Circuit continued: “From the founding of the republic to 2003, every state defined marriage as a relationship between a man and a woman, meaning that the 14th Amendment permits, though it does not require, states to define marriage in that way.”[7]

The opinion closes by noting that “not a single U.S. Supreme Court Justice in American history has written an opinion maintaining that the traditional definition of marriage violates the 14th Amendment.”[8]

United States v. Windsor

Nor can a challenge reasonably appeal to the Supreme Court’s Windsor decision, which was written by Justice Anthony Kennedy and applied the Fourteenth Amendment’s protections in striking down a portion of the federal Defense of Marriage Act (DOMA). Whether it was right or wrong as to DOMA, Windsor strongly supports the authority of states to define marriage: Every single time that Windsor talks about the harm of DOMA, it mentions that the state had chosen to recognize the bond that the federal government was excluding. Every single time, Justice Kennedy expressly said it was Congress’s deviation from the default of deference to state definitions that drove his opinion.

Kennedy’s opinion for the Court hinged on the reality that “[t]he significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning.”[9] “The definition of marriage,” Windsor explained, is “the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’”[10]

United States District Judge Juan Pérez-Giménez recently highlighted this feature of Windsor:

The Windsor opinion did not create a fundamental right to same gender marriage nor did it establish that state opposite-gender marriage regulations are amenable to federal constitutional challenges. If anything, Windsor stands for the opposite proposition: it reaffirms the States’ authority over marriage, buttressing Baker’s conclusion that marriage is simply not a federal question.[11]

Windsor also taught that federal power may not “put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.”[12] Yet since that time, the federal government—through federal judges—has repeatedly put its thumb on the scales to influence a state’s decision about its own marriage laws—all the while claiming that Windsor required them to do so.

Judge Pérez-Giménez bemoaned this reality, noting that “[i]t takes inexplicable contortions of the mind or perhaps even willful ignorance—this Court does not venture an answer here—to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.”[13]

Fundamental Right Under the Fourteenth Amendment’s Due Process Clause

Just as neither the actual text nor the original meaning of the Fourteenth Amendment, nor the Windsor decision, requires the redefinition of state marriage laws, nothing in the Supreme Court’s Fourteenth Amendment jurisprudence requires states to abandon the male–female definition of marriage. Consider first the Court’s “fundamental rights” doctrine under the Due Process Clause, where, if the Court finds a law infringing upon a fundamental right, the law is subject to “strict scrutiny,” meaning that the government must provide a compelling interest in having the law and the law must be narrowly designed to promote that interest. Not surprisingly, laws almost always fail strict scrutiny.

Glucksberg. As the Supreme Court held in Glucksberg in rejecting a fundamental right to assisted suicide, fundamental rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed.”[14]

Clearly, a right to marry someone of the same sex does not fit this description. As the Supreme Court explained in Windsor, including same-sex couples in marriage is “a new perspective, a new insight.”[15] Same-sex marriage is not deeply rooted in the nation’s history and tradition; thus—whatever its policy merits—it cannot be a fundamental right under the Due Process Clause. Windsor correctly observed that “until recent years…marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.”[16]

Whenever the Supreme Court has recognized marriage as a fundamental right, it has always been marriage understood as the union of a man and woman, and the rationale for the fundamental right has emphasized the procreative and social ordering aspects of male–female marriage. None of the cases that mention a fundamental right to marry deviate from this understanding, including decisions that struck down laws limiting marriage based on failure to pay child support,[17] incarceration,[18] and race.[19] Those decisions took for granted the historic, common law, and statutory understanding of marriage as a male–female union having something to do with family life. Thus, a challenge to state male–female marriage laws cannot appeal successfully to the fundamental-rights doctrine under Glucksberg.

Loving. Comparisons to interracial marriage fare no better.[20] As Fourth Circuit Judge Paul Niemeyer explained in his dissent in Bostic v. Schaefer, in Loving v. Virginia, where the Supreme Court found laws that prohibit interracial marriage to be unconstitutional, the couple was “asserting a right to enter into a traditional marriage of the type that has always been recognized since the beginning of the Nation—a union between one man and one woman.”[21] He concluded:

Loving simply held that race, which is completely unrelated to the institution of marriage, could not be the basis of marital restrictions. To stretch Loving’s holding to say that the right to marry is not limited by gender…is to ignore the inextricable, biological link between marriage and procreation that the Supreme Court has always recognized.[22]

In Loving, the Supreme Court defined marriage as one of the “‘basic civil rights of man,’ fundamental to our very existence and survival.”[23] Professor John Eastman of Chapman Law School has helpfully explained why the Supreme Court did so:

Marriage is “fundamental to our very existence” only because it is rooted in the biological complementarity of the sexes, the formal recognition of the unique union through which children are produced—a point emphasized by the fact that the Supreme Court cited a case dealing with the right to procreate for its holding that marriage was a fundamental right.[24]

Thus, a challenge to state male–female marriage laws cannot properly rely upon Loving.

[1] Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014); Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014).

[2] 60 U.S. 393 (1857).

[3] For more on the legal parallel, see Michael Stokes Paulsen, Abraham Lincoln and Same-Sex Marriage, Public Discourse (Feb. 20, 2015), http://www.thepublicdiscourse.com/2015/02/14443/.

[4] DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), cert. granted, 83 U.S.L.W. 3315 (U.S. Jan. 16, 2015) (No. 14-571); see also Obergefell v. Hodges (No. 14-556); Tanco v. Haslam (No. 14-562); Bourke v. Beshear (No. 14-574).

[5] Paulsen, supra note 3.

[6] DeBoer, 772 F.3d at 403.

[7] Id. at 404.

[8] Id. at 416.

[9] United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675, 2692 (2013).

[10] Id. at 2691 (quoting Williams v. North Carolina, 317 U.S. 287, 298 (1942)).

[11] Conde-Vidal v. Garcia-Padilla (D.P.R.) (D.P.R. Oct. 21, 2014) (No. 14-1253), 2014 WL 5361987. See also Baker v. Nelson, 409 U.S. 810 (1972) (summarily dismissing “for want of a substantial federal question” an appeal that argued that Minnesota’s man–woman only marriage laws violated the Fourteenth Amendment).

[12] Windsor, 133 S.Ct. at 2693 (citations omitted).

[13] Conde-Vidal, 2014 WL 5361987 at 8*.

[14] Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Besides the right to marry (with marriage always understood as a union of husband and wife), examples of fundamental rights the Court has found are the right to procreate, the right to have sexual autonomy, the right to buy and use birth control and abortion, the right to travel freely among the states, the right to raise one’s children as one sees fit, the right to vote, and the right to the freedoms protected by the First Amendment (speech, religion, and association).

[15] Windsor, 133 S.Ct. at 2689.

[16] Id.

[17] Zablocki v. Redhall, 434 U.S. 374, 385–87 (1987).

[18] Turner v. Safley, 482 U.S. 78, 95–98 (1987).

[19] Loving v. Virginia, 388 U.S. 1, 11 (1967).

[20] For an extended analysis, see Ryan T. Anderson, Marriage, Reason, and Religious Liberty: Much Ado About Sex, Nothing to Do with Race, Heritage Foundation Backgrounder No. 2894 (Apr. 4, 2014), available at http://www.heritage.org/research/reports/2014/04/marriage-reason-and-religious-liberty-much-ado-about-sex-nothing-to-do-with-race.

[21] Bostic, 760 F.3d at 390 (Niemeyer, J., dissenting).

[22] Id. at 392.

[23] Loving, 388 U.S. at 18.

[24] John Eastman, The Constitutionality of Traditional Marriage, Heritage Foundation Legal Memorandum No. 90 (Jan. 25, 2013), available at http://www.heritage.org/research/reports/2013/01/the-constitutionality-of-traditional-marriage.

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