Three words: Equal Protection Clause. Now, I can see all of my faithful readers out there screaming: "Bullshit! Scalia doesn't think the EP Clause protects gays!" Maybe true...but this diary is about why Scalia
should think state marriage amendments are unconstitutional. That "should" is a matter of theory -- if Scalia faithfully applied proper originalist premises, he'd hold the state amendments unconstitutional.
Details below the fold...
In theory, Scalia holds the EP Clause in high esteem, finding it to be the chief protector of our liberty. The most concise formulation of Scalia's view is from his
concurring opinion in
Cruzan v. Director, Missouri Dept. of Health:
What assures us that those limits will not be exceeded is the same constitutional guarantee that is the source of most of our protection -- what protects us, for example, from being assessed a tax of 100% of our income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day, none of which horribles is categorically prohibited by the Constitution. Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me. This Court need not, and has no authority to, inject itself into every field of human activity where irrationality and oppression may theoretically occur, and if it tries to do so, it will destroy itself.
Scalia's right...the Equal Protection Clause is our constitutional salvation, in many different ways. And the state marriage amendments don't meet the test.
Now, this diary isn't just supposed to snark on Scalia, it's an application of originalist constitutional interpretation to the state marriage amendments. And in the interest of full disclosure, everyone should know that, when it comes to constitutional theory, I agree with James Madison. Originalism, IMO, is the proper way to interpret the Constitution. It just has to be applied faithfully (and that's where Scalia sometimes falls short).
There's been a lot of gnashing of teeth about "activist judges" by folks on the right, and many are super-excited that Bush is going to appoint some more originalists to the bench. Well, if the new originalists are intellectually honest, they'll be striking down some state marriage amendments in short order.
By Way of Example: Ohio
Several states just passed bans on gay marriage, but to keep things simple I'm going to analyze Ohio's version. The language of each amendment is essentially the same, though, so the analysis applies equally well to any other state. Ohio's amendment says:
Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.
It's immediately apparent that this amendment doesn't satisfy Scalia's formulation of the essence of the Equal Protection Clause -- that the democratic majority accept for themselves what they impose on others.
Originalist Analysis
Scalia's formulation is, of course, shorthand for what's really going on with the EP Clause, and I won't purport to stop there. Originalist analysis focuses on the text and history of the constitutional provision at issue. The idea is to figure out the original understanding of the people who ratified the Constitution and each of its amendments. A full defense of the merits of originalism would take up too much space, so you'll have to bear with me or argue with me in the comment thread if you're of a "living Constitution" stripe.
The Equal Protection Clause, contained in the Fourteenth Amendment, states: "No state shall...deny to any person within its jurisdiction the equal protection of the laws."
Simple enough, but hard to apply to any specific situation. That's where the history part comes in. The EP Clause, of course, centered on the eradication of state-based discrimination against blacks. Southern states were forced to sign onto the Fourteenth Amendment as part of the price of rejoining the Union. Blacks, therefore, are (to borrow a phrase and mix a metaphor) the Platonic Form of the group that the EP Clause was meant to protect. The Supreme Court captured this in the famous Carolene Products case, in which it noted that the EP Clause was designed to protect "discrete and insular minorities."
The long and short of it is that the EP Clause protects minority groups who are singled out on the basis of immutable characteristics and denied certain rights or benefits that people who are not part of the disfavored group retain.
The thoroughgoing legal wingnut is probably out of his seat at this point screaming that I must be wrong. Why? Because when the Fourteenth Amendment was ratified, all sorts of sodomy laws were on the books, and those laws discriminated against gay people, so it cannot be true that the ratifiers of the Fourteenth Amendment understood the EP Clause as applicable to gays.
That sounds good, but is really so much sound and fury signifying nothing. As Foucault argued, and no one seems to have seriously challenged, the idea of a "homosexual" as a distinct type of person is only about 100 years old. In short, at the time the Fourteenth Amendment was ratified, gays were not understood as a distinct group so as to come within the ambit of EP Clause protection. So the historical "fact" of discrimanatory laws surviving the ratification of the Fourteenth Amendment is quite irrelevant. The question is whether, given what we know today, gays should be protected by the EP Clause. The answer to that question seems to be a clear yes.
Turning back to Ohio's amendment, we can see that it prohibits gays not only from marrying but also from obtaining any marriage-like arrangements with the state's blessing. One might argue that the law is "equal" in that it applies universally: both gays and straights are permitted to marry members of the opposite sex and are not permitted to marry members of the same sex. That argument is so facile that to state it is, I think, to refute it. Instead, the Ohio amendment, like all the other state hate amendments, places a particular right entirely beyond the reach of gays. At the same time, the right is kept intact for members of the straight majority.
And as Scalia knows, that formula equates to the most basic assault on our liberties: a violation of the Equal Protection Clause.