A Fundamental Right to Same-Sex Marriage?

This past Friday, District Judge Robert J. Shelby of the U.S. District Court for the District of Utah held that Utah’s prohibition on same-sex marriage violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. While Judge Shelby’s equal protection analysis is fairly mundane at this point, his substantive due process analysis is rather remarkable. After deciding that the Supreme Court’s summary dismissal in Baker v. Nelson1 was not binding precedent, Judge Shelby went on to hold that there is a fundamental right to same-sex marriage protected by the Due Process Clause.

The Due Process Clause has both a procedural and a substantive component. The procedural aspect focuses on the fairness of the procedures used to “deprive any person of life, liberty, or property,”2 such as whether there was adequate notice and an opportunity to be heard. The substantive aspect, on the other hand, views the word “liberty” as implying certain fundamental rights above and beyond the right to be free of physical restraint. These implied fundamental rights include “the rights to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity, and to abortion.”3

The Supreme Court limits these fundamental rights to those that are (1) “deeply rooted in this Nation’s history and tradition,” and (2) “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”4 Once a right is identified as being fundamental, any governmental impingement of that right is analyzed under the rubric of strict scrutiny.

There is no doubt that the right to marry is a fundamental right, that is, a guaranteed “liberty” under the Due Process Clause. The Supreme Court has said so many times, but the context has always been that of opposite-sex marriage, not same-sex marriage.5 In order to qualify as a fundamental right, same-sex marriage would somehow have to be included in the already-existing fundamental right to marry, since only that is “deeply rooted in this Nation’s history.” And that’s exactly what Judge Shelby held in striking down Utah’s same-sex marriage prohibition:

The alleged right to same-sex marriage that the State claims the Plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond. This right is deeply rooted in the nation’s history and implicit in the concept of ordered liberty because it protects an individual’s ability to make deeply personal choices about love and family free from government interference.6

Judge Shelby analogizes to the situation in Loving v. Virginia, where the Supreme Court treated the right to marry a person of a different race as an application of the preexisting fundamental right to marry. In the same way, Judge Shelby reasons, he is extending the already-existing fundamental right to marry to same-sex couples. Under this view, it’s not a new right, but rather, it’s just the same old right, properly construed.

This same tack was taken by District Judge Vaughn R. Walker of the U.S. District Court for the Northern District of California in his opinion striking down California’s “Prop 8” in 2010:

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. . . . Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States. . . . Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy—namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.7

On appeal, the Ninth Circuit declined to address Judge Walker’s substantive due process analysis, instead striking down Prop 8 on narrower constitutional grounds.8 Other than Judge Walker’s opinion from 2010 and Judge Shelby’s opinion from this past Friday, I’m not aware of any other court recognizing a fundamental right to marry that includes the right to marry a person of the same sex. In fact, the bulk of authority cuts the other way.

For example, last year, Senior District Judge Alan C. Kay of the U.S. District Court for the District of Hawaii addressed this same issue by reasoning:

[The defendant’s] assertion that the right to marry someone of the same gender is contained in the existing “right to marry” is unsupported in case law. To credit this argument would require ignoring that the term marriage ordinarily contemplates a relationship between a man and a woman. Significantly, the Supreme Court cases involving the fundamental right to marry all involved opposite-sex couples.

Consequently, the Supreme Court, in discussing the fundamental right to marry, has had no reason to consider anything other than the traditional and ordinary understanding of marriage as a union between a man and a woman. Furthermore, in discussing the importance of marriage, the Supreme Court has often linked marriage to procreation. Thus, in recognizing a fundamental right to marry, the Supreme Court has only contemplated marriages between persons of opposite sexes-persons who had the possibility of having children with each other.

Other courts considering claims that same-sex couples have a fundamental right to marry have concluded that the right at issue is not the existing fundamental “right to marry.” The Court agrees that the right at issue here is an asserted new right to same-sex marriage. . . . It is beyond dispute that the right to same-sex marriage is not objectively, deeply rooted in this Nation’s history and tradition.9

Furthermore, Senior Judge Kay rejected the argument that Loving is analogous:

[The defendant] relies on the Supreme Court’s decision in Loving v. Virginia, in which the Supreme Court struck Virginia’s anti-miscegenation statute as violating interracial couples’ fundamental right to marry. [The defendant] asserts that there was no history and tradition of interracial marriage and yet the Supreme Court still analyzed the case as asserting a fundamental right. In Loving, however, the Supreme Court was considering the long recognized right to marry. The case did not involve expanding the traditional definition of marriage as being between a man and a woman. This case presents a different right, the right to marry someone of the same sex. The fact that this right is not objectively rooted in the Nation’s history does not prohibit statutes defining marriage as a union between a man and woman from constitutional attack. Instead, it precludes the right to marry someone of the same-sex from being a fundamental right.10

So who’s right? I think Senior Judge Kay has the better argument. While I have no problem with same-sex marriage being included in the fundamental right to marry, I think it’s truer to the Supreme Court’s substantive due process jurisprudence to say that it’s not. But in the end, I don’t think that it really matters. State laws prohibiting same-sex marriage can be struck down under the Due Process Clause even if same-sex marriage is not considered to be a fundamental right. Justice Kennedy’s majority opinion in Windsor provides a road map for grounding such a decision in the seemingly neutral ideals of personal dignity and equality.11 I say “seemingly neutral” because I believe that, at bottom, one’s views about these ideals ultimately turns on one’s normative views about the morality of the practice in question. For isn’t that what this is all really about?

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© 2013 Devlin Hartline. Licensed under the Law Theories Public License 1.0.

  1. 409 U.S. 810 (1972) (the entire opinion reads: “The appeal is dismissed for want of a substantial federal question.”). 
  2. U.S. Const. amend. XIV, § 1. 
  3. Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997) (internal citations omitted). 
  4. Id. at 720-21 (internal citations and quotations omitted). 
  5. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Skinner v. State of Okl. ex rel. Williamson, 316 U.S. 535, 541 (1942); Loving v. Virginia, 388 U.S. 1, 12 (1967). 
  6. Kitchen v. Herbert, 2013 WL 6697874 at *16 (D. Utah Dec. 20, 2013). 
  7. Perry v. Schwarzenegger, 704 F.Supp.2d 921, 993 (N.D. Cal. 2010) (internal citations omitted). 
  8. See Perry v. Brown, 671 F.3d 1052, 1076 (9th Cir. 2012), vacated and remanded sub nom. Hollingsworth v. Perry, 133 S.Ct. 2652 (2013). 
  9. Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1095-96 (D. Haw. 2012) (internal citations, quotations, footnotes, and brackets omitted). 
  10. Id. at 1097 (internal citations, quotations, and footnotes omitted). 
  11. See United States v. Windsor, 133 S.Ct. 2675 (2013).