The Court has held just four
non-racial classification types require justification greater than mere
rationality: nationality, alienage (with exceptions), gender, and being born to
unmarried parents. Paralleling the conservative turn in its composition, the
Court has not identified any further "suspect" classifications since the 1970s,
rejecting heightened scrutiny for classifications based on, for instance, age,
disability, and wealth. The Court even rejected sexual orientation as a suspect
classification in 1986, upholding a conviction for homosexual sodomy in Bowers v. Hardwick, finding Georgia
rationally determined to treat same-sex sexual activity differently.
But two subsequent
decisions cast doubt on Bowers's
continuing validity. In Romer v. Evans,
the Court overturned a Colorado constitutional amendment that prevented
municipalities in the state from enacting ordinances to prohibit sexual-orientation
discrimination. And Lawrence v. Texas
struck down a homosexual sodomy law. In neither case, however, did the Court call
sexual orientation a "suspect" or "quasi-suspect" classification--one requiring some
form of heightened scrutiny. Rights advocates had argued for "intermediate
scrutiny"--a test already applied to classifications based on gender and birth
to unmarried parents--requiring government to show its actions to be
substantially related to an important government interest. Overturning both states' provisions, Justice
Kennedy instead characterized them as either (i) based on the illegitimate motivation
of animus towards gays or (ii) not rationally related to any other governmental
objective that is legitimate. But most scholars, as well as Justice Scalia in
his Lawrence dissent, recognized that
the threshold for justification Kennedy actually employed was higher than the
typical "rational basis" test, much more like intermediate scrutiny. Many
commentators characterize Romer, Lawrence, and a few similar cases as
applying a "rational basis plus" test, an unclear standard, uncertain
in application. If the Court reaches the merits of the present appeals, it could
clarify the standard for gay rights.
Bans on same-sex marriage probably
fail the most-likely clarified standard, intermediate scrutiny. Opponents have
not established any important governmental purpose gay-marriage bans directly
and substantially relate to achieving. By contrast, empirical evidence shows they
do not enhance the stability of heterosexual marriages or welfare of children.
The alternative to the
equal protection argument relies on the more-generally-framed Due Process
clauses restricting both the federal and state governments. Again, the Court
uses the prohibition against denying "life, liberty, or property without due
process of law" as the starting point for articulating unenumerated fundamental
rights, holding the states to be restricted by almost all the concepts that expressly
limit the federal government in the Bill of Rights. And both the federal and
state governments are restricted by other unenumerated rights, such as those to
contraception and abortion. The
due process analysis would consider the claimed right to marry the adult
partner of one's choosing against that backdrop of a wide range of
already-recognized, unenumerated rights, aided by general, limiting principles
that guide the determination of whether any claimed right is inalienable.
For heterosexuals,
precedent does already recognize an adult's right to marry--to enter into a
legally-significant, intimate, family-enabling, indefinitely-enduring
commitment to any adult of the sex to which they are primarily attracted--even
if genetics place them in a racial category different than their chosen partner's.
Absent some
principled reason all Americans do not share that right, then, every adult is fundamentally
entitled to enter into that legally-significant, intimate, family-enabling,
indefinitely-enduring commitment to an adult of the sex to which they are
primarily attracted--even if genetics or other formative elements have placed
them in the sexual-orientation minority. And that children raised by gay
couples are not their joint genetic issue is not a distinction that justifies denying
their rights; heterosexual couples are fundamentally entitled not to procreate
at all and can raise non-joint-genetic children. What's more, the Court has
already held that all Americans may believe anything, say almost anything,
associate with almost anyone, and worship in almost any way, even not at all. A
same-sex marital spouse also constitutes an associational choice and exercise
of fundamental personal beliefs and practices.
And
the scope of unenumerated rights cannot be limited to a narrow conception of American
"tradition." Court conservatives often argue the constitutional significance of
tradition--for instance that it justifies both limiting fundamental parental rights
to marital partners, not unwed fathers, and extending gun rights beyond what the
Second Amendment requires. Yet our tradition also includes slavery, and we inherit
the practice of opposite-sex marriage from eras when people were severely
oppressed for being gay. A more-Burkean view scrutinizes tradition for embedded
values still relevant. The contemporarily-relevant value in the "marriage
tradition" is not anti-gay prejudice but the virtue of committed adult
relationships. And embedded within tradition supporting many other recognized rights
are more-general values of freedom of thought, association, and life-style
choice, also supporting marital choice. Kennedy's
Lawrence opinion spoke of the rights
of intimate association between consenting adult partners in the privacy of the
home; the ability to legally commit to one's partner in such a relation seems
just as fundamental, just as traditional. (And fi nding a right to same-sex marriage would not also constitutionalize
polygamy. As rejecting plural marriage does not deny anyone a committed
relationship with an adult of the sex to which one is attracted, limiting one to
a single marital partner at a time does not offend the fundamental right that
supports gay marriage.)
Finally, t hose who argue the infringement on marriage rights to be
insubstantial because civil-unions suffice for gays harken to the narrow
thinking of 1896, the "separate but equal" specter of Plessy v. Ferguson. Fifty-eight years later, the Court rejected
that concept in Brown v. Board of
Education, following extensive empirical evidence not only that
purportedly-equal conditions generally prove far from equal when scrutinized,
but that other, intangible harms inevitably inhere when we separate citizens
using immutable characteristics.
Precedent
already holding that (i) marriage is a fundamental right, (ii) laws motivated
by animus towards gays are unconstitutional, and (iii) choice in certain family-related
matters and inter-personal intimacy is protected, thus combines with
more-general holdings on freedom of belief and association to provide a
substantial foundation for the Court's assessment of gay rights. The conclusion
that denial of same-sex marriage violates equal protection or a fundamental
right could thus be framed as only an incremental step.
Federal
Power, Economic Liberty, and the Individual Health-Care Mandate
Even broad precedent on congressional power carries
significant limits, contrary to an argument against the ACA. In National Federation of Independent Business
v. Sebelius decision, a 5-4 majority found Congress's "commerce power" did
not authorize the ACA's individual mandate, though another 5-4 majority (Roberts
joining the liberals) held that provision to be authorized by the taxing
power.
The commerce power ruling falls short of the
full-constitution approach, yet was embraced by many conservatives because it portends
future narrow holdings on federal power:
Conservative: Since
forcing a purchase is not regulating commerce, the Court rightly held the individual
mandate to be outside the commerce power.
Whole Constitutionalist: The Court
slighted precedent that has interpreted federal power broadly, as territorial
and population growth and revolutions in industry, transportation, and
communication increased the integration of our national economy. For 75
years, the Court has held Congress to have power even over matters
substantially affecting interstate commerce, including minor things that aggregated
have such impact. That precedent covers the health insurance market, substantially
impacted by individuals who would shirk coverage.
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