When President Obama announced his support of same-sex marriage, he talked broadly about “equality” and “fairness.” He spoke of “opposing discrimination against gays and lesbians” and making sure that nobody is treated as “less than full citizens when it comes to their legal rights.” It was a powerful moment—historic and emotional. In the Aaron Sorkin version, the orchestra would have soared at this point as the supporting cast members exchanged teary-eyed yet knowing nods.
But then President Obama described how these rights should be protected and the music stopped with a squawk. Same-sex marriage, he said, is not in fact a federal issue but should be left to the states. He praised as “a healthy process and a healthy debate” the current patchwork of state referenda, amendments, laws, and judicial opinions that our marriage federalism has produced. He said he didn’t want “to nationalize this issue” and added that the states are “working through this issue … all across the country.” Adam Serwer and the New York Times editorial page were quick to point out that this doesn’t represent much equality and fairness for Americans who live in, say, North Carolina, a state that just did away with both gay marriage and civil unions by referendum. Lyle Denniston goes further, suggesting that the president opposes the Defense of Marriage Act because it’s an attempt to federalize marriage.
The “marriage is a purely state issue” rhetoric has been around for some time. It’s become a familiar default argument, maybe because it sounds fair and feels safe. But having “evolved” this far on gay marriage, the time has come to evolve our own thinking on what is really at stake when we talk about marriage equality. We must embrace that this is a constitutional and not a democratic issue. Equality is not a popularity contest. This is hardly a radical argument. It’s Supreme Court doctrine: Our rights to be treated as equal and full citizens do not evaporate when we cross state lines. Rather there are certain essential liberties, even in the realm of marriage, we all enjoy regardless of our ZIP code.
Obama wasn’t technically wrong to observe that states have broad latitude to fashion their own marriage rules and usually have to recognize marriages solemnized in other states. But that state power has important constitutional limitations. The Supreme Court recognized, in its landmark 1967 decision in Loving v. Virginia that the “right to marry is of fundamental importance for all individuals” and “one of the vital personal rights essential to the orderly pursuit of happiness.” After Loving, marriage is deemed a “fundamental freedom” protected by the Constitution, and states cannot deny an individual of this basic right without an exceedingly good reason. If it’s not a good enough reason for a state to prohibit someone from getting married because he committed a crime or failed to pay child support, then it’s clearly not enough that he happens to be gay.
We pause now for a quick constitutional law primer: The Supreme Court has decided marriage cases under both the Due Process and Equal Protection Clauses of the 14th Amendment. The Due Process Clause protects fundamental rights while the Equal Protection Clause prohibits discrimination. Seen as a denial of a fundamental right under the Due Process Clause, the case for marriage equality for same-sex couples should be obvious. Viewed as a matter of discrimination under the Equal Protection Clause it becomes slightly more complicated. The court has acknowledged that certain groups of people are more likely to face discrimination and thus it demands more of the government when it tries to treat them differently. The court has been coy, however, about telling us whether people who are denied a government benefit based on their sexual orientation receive this kind of heightened protection. But the logic for stronger constitutional protection is undeniable. Like racial minorities and women, homosexuals as a group have historically faced societal and government discrimination based on a personal characteristic they cannot control. Thus, as with race and gender, the federal courts must be the guardians of justice and ensure that they are treated equally. That is the argument Cory Booker, mayor of Newark, N.J. has been advancing most vocally.
But if we’re right that this is such a clear federal constitutional issue, then why have both liberals and conservatives continued to insist that this is a matter best left to the states? Two reasons. The first reflects our country’s unique way of dealing with social change through an initial debate at the state level. And the second acknowledges that up until now it made strategic sense.
Much as we may love the idea of our court as the fearless defender of our liberties, as a practical matter, the court has always worked in tandem with the public on matters of civil rights. From slavery to segregation to abortion, we as a nation begin our discussions at the local level. We debate, we argue, we vote, and we enact laws. In theory, the arc of justice is long but we all get there eventually. When the time is right, the court steps in to solidify the consensus, frame the constitutional role, and force acceptance by the outliers. That’s what happened in the civil rights era.
If the court, however, acts too early or misjudges trends, it risks generating a public backlash, perceptions of illegitimacy, and, once, a civil war. Thus timing is everything. When it works smoothly, it looks like Loving v. Virginia, where the court ruled that state anti-miscegenation laws were unconstitutional. At the time, there were only 16 states that still outlawed interracial marriage. Clearly the tide had turned and it was time for the court to act. Less smooth, however, was Brown v. Board of Education. When Brown was decided, the opposition to school desegregation was much stronger and there was no obvious consensus or trend. While universally revered now, it took a contentious and violent decade and every branch of the federal government to ultimately enforce that court decision.