In its decision announcing marriage equality for gay and lesbian Americans on Friday, the Supreme Court relied on the 14th Amendment’s Due Process Clause, which protects liberty, and its Equal Protection Clause, which outlaws state discrimination. Most importantly, the court pointed to a “synergy” between the two clauses. To fully understand that synergy, which lies at the core of the court’s ruling, you have to know the story of a chicken thief named Jack Skinner.
In 1935, Oklahoma passed a law allowing “habitual criminals”—defined as those who had been convicted three times of “felonies involving moral turpitude”—to be sterilized. Skinner, a one-footed drifter who had been convicted twice for armed robbery and once for poultry theft, challenged the three-strikes-and-you’re-sterile law and took his case all the way to the Supreme Court.
Skinner’s case was a long shot. As Victoria Nourse describes in her definitive book on the case, a majority of states had passed eugenic laws by 1935. And an earlier constitutional challenge to sterilization of the “feeble-minded” had been brusquely turned aside by the Supreme Court.
Skinner’s best hope was the Equal Protection Clause. The Oklahoma law, he argued, arbitrarily singled out certain crimes and punished them with sterilization while exempting other crimes. “Crimes of moral turpitude” was a notoriously vague term that encouraged racist law enforcement, although Skinner himself was white. What it included was unclear, but it clearly excluded white-collar crimes such as tax evasion and embezzlement.
To the surprise of many, the chicken thief won his case in the Supreme Court, laying the groundwork for last week’s landmark ruling. In the 1942 case of Skinner v. Oklahoma ex rel. Williamson, Justice William O. Douglas held that the Oklahoma law denied Equal Protection, not because it discriminated against certain crimes but because it deprived some citizens but not others of the fundamental right of procreation. “We are dealing here with legislation which involves one of the basic civil rights of man,” wrote Douglas. “Marriage and procreation are fundamental to the very existence and survival of the race.”
Skinner v. Oklahoma gave birth to an unconventional strand of constitutional law, often known as the doctrine of “equal protection of fundamental interests”—equal liberty, for short. Under conventional Equal Protection doctrine, judges calibrate the aggressiveness of their review depending on the identity of the group being burdened or penalized by a particular law. This approach has led to a tiered wedding cake of standards of review: Laws that disadvantage particular racial groups come in for the strictest judicial scrutiny, and laws that discriminate on the basis of sex are examined almost as skeptically, but laws that burden “non-suspect classes,” such as opticians, or methadone users, or people seeking to become New Orleans river pilots, are subject to the most lenient form of Equal Protection analysis. Such laws must be upheld so long as they have a minimal rational basis.
Skinner’s case might have expected to run aground on the last of these categories: After all, chicken thieves are hardly a suspect class under the Equal Protection Clause, and Oklahoma surely had a rational basis for treating them worse than embezzlers. But equal liberty cuts across the conventional approach, holding that the government denies Equal Protection when it deprives some people but not others of access to a fundamental human interest such as the right to have offspring. Justice Douglas therefore held that Oklahoma’s law was subject to “strict scrutiny” (indeed, he coined the term in Skinner v. Oklahoma) and had to be invalidated.
The court has used the doctrine of equal liberty to strike down poll taxes, ensure equal access to courts, and alas, hand the 2000 election to George W. Bush. Friday’s decision in Obergefell v. Hodges is now the greatest case in the equal liberty canon. But the doctrine has always posed a conundrum. If a law selectively denies anyone a fundamental human right, then why shouldn’t it simply be struck down under the 14th Amendment doctrine of substantive due process, which directly protects fundamental rights? What does the Equal Protection Clause really add?
There are two standard answers to this conundrum. The first is that equal liberty operates as a way-station doctrine, a temporary resting place for a court that isn’t quite ready to declare something a free-standing fundamental right. That was certainly true with procreation and marriage in Skinner. Douglas was profoundly allergic to substantive due process, having pledged himself to overturn the expansive ruling of Lochner v. New York, which had stymied progressive and New Deal reforms by constitutionalizing freedom of contract. Equal liberty allowed Douglas to rule for Jack Skinner without declaring any new substantive rights or exhuming the bones of Lochner. Eventually, the Court got around to safeguarding individual and marital decisions regarding procreation, beginning with Douglas’ own muddled paean to privacy in Griswold v. Connecticut (1965) and culminating in Roe v. Wade (1973).
The second standard answer is that judicial reliance on Equal Protection shows respect for the political process by giving legislatures one additional option compared with substantive due process: namely, banning the activity in question for everybody. As Justice Robert Jackson wrote in another case from the 1940s, “there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.” Could Oklahoma have ordered that all three-time criminals be sterilized, embezzlers and chicken thieves alike? Under the constitutional law of 1942, probably—but as Jackson and his brethren wisely recognized, no legislature would pass a law like that.
All of which brings us to Friday, and to Obergefell v. Hodges. The outcome of the case—5 to 4 in favor of a constitutional right to same-sex marriage—was expected, but the court’s reasoning was a bit of a surprise. Most court-watchers, myself included, expected a decision similar to (if less scabrously funny than) Judge Richard Posner’s takedown of same-sex marriage bans from last year. Yes, discrimination against gays and lesbians is formally permissible so long as it has a rational basis, but excluding homosexuals from marriage lacks even such a rudimentary raison d’être because it stems from nothing more than tradition and animus.
Instead, what we got was a soaring decision whose true heart is the concept of equal liberty. Still, Obergefell, like the major gay-rights decisions from Justice Anthony Kennedy before it, never bothers to identify the standard of review that it is applying. Even its embrace of equal liberty goes largely unexplained.
So what was the rationale for the court’s turn to equal liberty in Obergefell? Is equal liberty a way station to a freestanding declaration of a fundamental right, or an invitation to legislatures to ban marriage for everyone? My guesses are no and no. Although the court reaffirms marriage as a fundamental right, states can probably still enforce reasonable laws that regulate access to it, such as minimum age requirements. At the same time, though, I don’t see in Obergefell an invitation to states to get out of the civil marriage business altogether: The court seems to endorse some basic obligation on the part of each state to provide a form of marriage to its citizens.
Why, then, the emphasis on equal liberty? Here, Obergefell offers a third answer to our basic conundrum. “The Due Process Clause and the Equal Protection Clause,” says Kennedy, “are connected in a profound way, though they set forth independent principles.” In our culture, we often think of equality and liberty as opposing forces: The more equality the government imposes (think of a 90 percent marginal tax rate for high earners), the less liberty citizens enjoy, and vice versa. But in Obergefell, as in the landmark 2003 case of Lawrence v. Texas, Kennedy recognized that the two principles reinforce each other. Sometimes, when we widen the circle of liberty to encompass previously excluded groups, we deepen the meaning of both liberty and equality for everyone.
A Kennedy opinion is often like a Christmas pudding: You’re not exactly sure what it’s made of, but it’s perfect for special occasions. Justice Antonin Scalia predictably lambasted Friday’s decision for its “mummeries” and “showy profundities.” But the court got it right—and some small measure of credit belongs to a one-footed chicken thief from Oklahoma.
