The Obergefell Dissents - C.J. Roberts Part IIA

In a recurring series of posts, I will share my thoughts about the dissenting opinions to Obergefell v. Hodges. Because of its length, I'm covering Chief Justice John Roberts' dissent in several parts. The first installment, covering the introduction, can be found here. Part I of his dissent is covered here.

Having misleadingly cast marriage as a uniform, unchanging institution free of interference or modification until the very recent past, Chief Justice Roberts turns his attention toward the Court, which he believes is overstepping its bounds.

The Court, he says, "resolves these cases for petitioners based almost entirely on the Due Process Clause." I have contested that idea to some extent in a previous post, but for the purposes of this review we'll take the Chief Justices' word for it. The Due Process Clause protects us from state interference with our "life, liberty, and property." It's not that the state can't interfere with those things, but it has to follow a uniform method and has to have a reason to do so. The quality of the reason rises from merely "rational" to "compelling" depending on the liberty at stake.

"Enumerated" rights - those specifically identified in the constitution - are the most important and therefore require the most compelling justification for interference. The right to vote is a good example. Generally, liberties that are not identified in the constitution get less protection. Your liberty to run a business, for example, can be regulated as long as the government has a rational reason to do so.

But marriage occupies a unique area of "substantive" constitutional liberty. The Supreme Court has long considered a right to marriage to be "fundamental" even though it is not named in the constitution. In 1888, the Court ruled that marriage was "the foundation of the family and society," and in 1942, it called marriage "fundamental to the very existence of the race." In Loving v. Virginia, the Court said, in no uncertain terms, that "the decision to marry is a fundamental right." As a fundamental right, the state has to have a compelling reason to interfere with it.

In Obergefell, the majority concluded that Kentucky and other states lacked a compelling reason to interfere with the marital rights of same-sex couples. But Chief Justice Roberts doesn't think that the members of same-sex couples have a right to marry. He bristles at the Court's opposite conclusion, and argues that they've gone too far:

Here Roberts invokes the sinister cloud of Lochner, a case that still divides scholars and policy wonks. We'll talk more about that as Chief Roberts does. But first, note that he casts the Obergefell decision as legislative, not judicial. This is what people usually mean when they accuse judges of being "activist."  Also note the crazy idea that a judge should decide an issue of constitutional law on the basis that people will benefit from exercising a certain right.

But I digress.

Chief Justice Roberts continues with a brief discussion of substantive due process and fundamental rights, of course being sure to dig at the majority for invoking a nonexistent "Nobility and Dignity Clause." Not very subtle. And neither is this:

This would be a fair criticism in 1888, when the Supreme Court first declared marriage and procreation to be fundamental liberty interests. Or in 1803, when Chief Justice John Marshall declared that the job of the Supreme Court is "to say what the law is." But that ship has long sailed. "Unelected federal judges" picking and choosing among rights to determine which is fundamental and which isn't is something they've been doing for a very long time. Take, for instance, a much more recent case:

In Glucksberg, the plaintiffs argued that Americans have a fundamental right to decide the terms of their own death, which means the state cannot ban assisted suicide without a compelling reason to do so. Even though the Supreme Court rejected that argument, it agreed to hear it in the first place, which means a bunch of unelected judges took it upon themselves to determine whether a right was fundamental or not. Even though the alleged right was rejected in Glucksberg, the case doesn't really support Chief Justice Roberts' apparent argument that judges shouldn't be deciding what rights are fundamental in the first place.

Then Roberts takes a personal jab at Justice Kennedy, the author of the Obergefell opinion, by citing an address Kennedy gave to Stanford University in 1986 previewing and agreeing with the rationale of Glucksberg. Of course, Kennedy in 1986 said that not all rights are fundamental, not that unelected judges had no right to decide the question. His Obergefell opinion is not inconsistent with that.

To illustrate his point that letting judges decide things like constitutional rights is dangerous, Roberts next brings out the big guns:

Dred Scott is easily the most reviled opinion in Supreme Court history. It's also regularly invoked by opponents of gay marriage, who routinely conflate an archaic and brutal right to retain human beings as property to the morally unambiguous right to consensually marry the person you love (a right which has routinely been upheld by the courts for opposite-sex couples without any reference to Dred Scott). Refutations of this comparison are many and worth reading. I won't belabor the point here. Suffice it to say that any time a court recognizes a right for others that some people find icky or disruptive to the status quo, ol' Dred Scott gets dragged out. Which is especially ironic since Dred Scott upheld the antebellum status quo of slavery rather than carve out a "new" right like same-sex marriage. Had Dred Scott declared that black people had, in 1857, a fundamental right to freedom from slavery, that would have been some serious judicial activism.

Chief Justice Roberts then shifts gears to another controversial Supreme Court relic:

If Chief Justice Roberts' upholding of the health insurance mandate in the first Affordable Care Act case cut against his conservative credentials and reputation, his invocation of Lochner as an example of judicial overreach isn't going to help. Lochner is beloved among libertarians who believe the state should need a compelling reason to regulate the affairs of labor and business, not a merely rational one. Lochner has also been favorably discussed in conservative judicial opinions, such as an entertaining concurrence in a recent professional licensing case by Twitter celebrity and Texas Supreme Court Justice Don Willett. (But don't get the wrong idea, Lochner is still disliked by most, and is still called "horrendous" by some.)

Roberts, sounding more like a New Deal Progressive than an appointee of George W. Bush, instead cites favorably to the Lochner dissenters:

That Social Darwinism Holmes rejected in Lochner he fully embraced twenty-two years later in Buck v. Bell. With Holmes writing for an 8-1 majority, the Supreme Court upheld Virginia's eugenics law, which mandated sterilization of the mentally disabled.

It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.

274 U.S. 200, 207 (1927).

Holmes was a notorious statist and authoritarian. He regularly deferred to majority sentiment, no matter how heinous or unfair to democratic minorities. And as he showed in Buck v. Bell, he was more than happy to make value statements when weighing the rights of others to decide what was "good for them and for society," as Chief Justice Roberts puts it. And Holmes was notoriously contradictory, too, writing expedient and inconsistent dissents like that of Adkins v. Children's Hospital of D.C. (to which Roberts also favorably cites), where he said "the criterion of constitutionality is not whether we believe the law to be for the public good." It is quite difficult to reconcile such a statement with his opinion in Buck just five years later. Holmes may have hated substantive due process, but he certainly wasn't above making judicial judgment calls about the public good.

But back to Lochner. Chief Justice Roberts goes on to say that it led to a parade of horribles where the Supreme Court was recognizing liberty rights all willy nilly without regard for the benevolent whims of majority rule. To some extent it is true that the Supreme Court's substantive due process legacy is scattershot and arbitrary. But the post-Lochner "striking down of nearly 200 laws" is an old myth, according to Lochner's current biggest fan, libertarian author David Bernstein. But even if it isn't a myth, it's hard to see, just based on Roberts' description alone, how the Supreme Court striking down laws as violations of individual liberty is automatically a bad thing. What if those laws really did unnecessarily interfere with individual liberty? Isn't that what we want the Court to do? To defend personal liberty against intrusion by the state?

No, says Roberts. A Court striking down a law as an infringement of personal liberty is to improperly step into the role of the legislature:

What Roberts is eluding to in this section is the rise of "rational basis scrutiny." In cases where a challenged law neither infringes a fundamental right nor discriminates based on a suspect classification (such as race), courts will generally uphold it as long as the law is rationally related to a legitimate government purpose. Economic regulations regularly receive rational basis scrutiny and are regularly upheld as constitutional. But rational basis cases like Lee Optical don't involve fundamental rights, and they don't answer the question of when and how the Court is supposed to determine when a right should be considered fundamental. Their proscription of judicial policy making applies to situations where fundamental rights aren't implicated.

Just two years after Day-Brite Lighting, the Supreme Court unanimously struck down racial segregation, finding a right to equal education in Brown v. Board of Education. Four years after Ferguson v. Skrupa, the Court unanimously struck down anti-miscegenation laws as an infringement of the fundamental right to marriage in Loving v. Virginia. Interestingly, both of these decisions rejected the then-consistent and unbroken interpretation of the Fourteenth Amendment as a mandate for legal, as opposed to social, equality of the races. If the Supreme Court has ever rejected history and tradition more thoroughly than in those two cases, I'm not aware of it. And of course both decisions were derided as judicial activism, as "substituting social and economic beliefs" of judges over legislatures.

Without mentioning Brown or Loving, but acknowledging the obvious fact that the Supreme Court has the power to recognize fundamental rights (since it has many times in the past), Roberts warns that it should do so with strict "judicial restraint." He leans on Glucksberg for the proposition that the only fundamental rights the Court should recognize are those that are "objectively, deeply rooted in the Nation's history and tradition," and "such that neither liberty nor justice would exist if they were sacrificed."

So caution is required, says Chief Justice Roberts:

The cite to Collins is bizarre. Marriage is not an "unchartered area" with "few guideposts for responsible decisionmaking." In Collins, the widow of a sanitation worker argued that her deceased husband, who died down a manhole while working on a sewer line, had a due process right "to be free from unreasonable risks of harm." Tort law recognizes claims for wrongful death, where the negligence or intentional acts of others are held liable for someone's demise. But, as the Supreme Court unanimously ruled, this is not "supplanted by the Due Process Clause." Though it could be held liable for tort damages, the city did not violate a worker's constitutional right to due process by failing to "train or warn its employees about known hazards in the workplace."

There are no past cases that identify the due process right sought in Collins. The petitioner literally sought a new right not previously recognized for anyone. But there are many cases which clearly spell out a fundamental right to marriage (which the Obergefell majority cites and references at length) long enjoyed by different-sex couples. This was the exact same right sought by same-sex couples, not something new.

But sometimes even "new" rights are recognized. Like in Griswold v. Connecticut, where the Supreme Court upheld the right of married couples to make their own reproductive choices free of government interference. It is impossible to argue that Griswold was firmly "grounded in history," since states had long prohibited contraception until then. Which makes Roberts' favorable citation to it at the end of Part II A even more confusing than his reference to Collins:

Griswold recognized a fundamental "right to privacy," which at the time existed neither in the explicit language of the Constitution nor in any sizable body of Supreme Court precedent. But Griswold is controlling precedent now, and the majority in Obergefell cited it favorably as part of the basis for its ruling in favor of same-sex marriage. Roberts' supportive citation to Justice Harlan's concurrence in that case, which pays lip service to judicial restraint but joins a decision breaking significant new ground in the realm of substantive due process, is again indicative of a strange disconnect between the reality of the Court's history and Roberts' opposition to so-called judicial activism.

In Part II B, he illustrates this disconnect more thoroughly, arguing that the well-established fundamental right the Obergefell couples sought to exercise doesn't really apply to them. I'll tackle this argument in the next installment of this series. 

Can the Government Get Out of the Marriage Business?

About a month ago, before the oral arguments in Obergefell v. Hodges, I profiled two amicus briefs that took competing views of the "original understanding" of the Fourteenth Amendment and how it applies to the question of same-sex marriage.

One of those briefs was filed by the Cato Institute and several high-profile conservative scholars who specialize in "originalist" legal theory.  When the text of a law is silent on an issue or otherwise unclear, originalism is an approach to legal interpretation that tries to discern either what the writers of a law intended the law to do at the time it was passed, or what the words they used meant at that time.

Generally speaking, originalists tend to be a conservative lot. The authors of the Cato brief are no exception. Yet despite their ideological leanings, they actually argue in favor of same-sex marriage. As they see it, the original understanding of "equal protection," represented by the words of the Fourteenth Amendment, was a broad principle opposed to separating U.S. citizens into distinct and inferior castes. In their view, same-sex marriage bans relegate same-sex couples to second-tier status and are therefore unconstitutional.

This is all well and good, and in line with the majority of amicus briefs filed in Obergefell. But the conclusion of the Cato brief is noteworthy. The primary question in the case is whether the Fourteenth Amendment requires states to issue licenses to same-sex couples who seek to marry. To that question, the brief provides this answer:

"Of course" the Fourteenth Amendment doesn't require the states to issue licenses, they say. But since states do actually issue marriage licenses, the states cannot exclude same-sex couples. That's a sound equal protection argument.

But it does raise an interesting question. Can states get out of the marriage business altogether? Or, in other words, does the Fourteenth Amendment actually require states to issue civil marriage licenses at all? Is the Cato brief correct that it doesn't?

In an earlier post, I addressed the question of whether states should abandon civil marriage. I don't think they should. But from a Constitutional standpoint, would that even be an option at all?

The Fourteenth Amendment doesn't just command equal protection. It also commands due process, which means the government can't take your life, liberty, or property without (1) a really good reason to do so, and (2) a scheme to either allow you a chance to defend yourself or receive fair compensation for your loss. So if civil marriage is considered a liberty interest, then states can't deny it to anyone without a really good reason.

Is civil marriage a liberty interest? The Supreme Court has repeatedly said that it is. In 1888, the Court declared that marriage creates "the most important relation in life," and has "more to do with the morals and civilization of a people than any other institution." Maynard v. Hill, 125 U.S. 190, 205 (1888). Later, the Court said that legislation involving marital rights "involves one of the basic civil rights of man." Skinner v. Oklahoma, 316 U.S. 535 (1942).

Most famously, the Court unanimously declared again in 1967 that marriage was a basic civil right that required due process protection. "The freedom to marry, or not marry...resides with the individual and cannot be infringed by the State." Loving v. Virginia, 388 U.S. 1, 12 (1967). Of course, Loving dealt specifically with marital restrictions based on the race of the partners, but the underlying principle was clear: civil marriage is a fundamental right that the states cannot easily trifle with.

And just in case you're not convinced, "it is clear that among the decisions that an individual may make without unjustified government interference  are personal decisions 'relating to marriage.'" Carey v. Population Servs. Int'l, 431 U.S. 678, 684-685 (1977). "The right to marry is...implicit in the Fourteenth Amendment's Due Process Clause." Zablocki v. Redhail, 434 U.S. 374, 384 (1978)

If we take the Court at its word that marriage is a fundamental right, a liberty interest protected by due process, then the answer to our question seems clear. States cannot deny that right by refusing to issue civil marriage licenses to everybody.

But what about marriages that don't involve the state? Would the government really be infringing on the right to marry if it just abandoned licensing but didn't prevent people from getting married at church or in some other private setting? My sense is that yes, that would still be an infringement because marriage without state licensing wouldn't carry any actual weight. It wouldn't mean anything within the context of civil society. I discuss that more thoroughly in my previous post so won't elaborate here.

My reading of the Supreme Court's precedent on the question of marriage suggests to me that the Fourteenth Amendment does in fact require the states to issue marriage licenses in the first place, not just issue them equally if it elects to issue them at all. Though the Amendment is silent on marriage, the Supreme Court has not been. As a fundamental right, marriage may not be denied by the state. "Getting out of the marriage business" would be the ultimate denial.

Amicus Brief Profile: a War of Original Understanding

In a short series, I will profile several individual amicus briefs filed in the same-sex marriage cases currently consolidated before the U.S. Supreme Court and slated for oral argument on April 28, 2015.

In the same-sex marriage cases currently before the Supreme Court (consolidated as Obergefell v. Hodges), over one hundred amicus (or "friend of the court") briefs have been filed. The majority are in support of the petitioners - same-sex couples from Kentucky, Michigan, Tennessee, and Ohio. Amicus briefs in favor of the respondents - the states - are less in number but no less fervent.

In previous installments, I have profiled one amicus brief at a time. But today, I will profile two. The first is Brief of Amici Curiae Cato Institute, William N. Eskridge Jr., and Steven Calabresi in Support of Petitioners. Along with Eskridge, counsel for these amici is Ilya Shapiro of Cato. The second is Brief of Amici Curiae Scholars of Originalism in Support of Respondents, William C. Duncan of the Marriage Law Foundation as counsel of record.

First, a little background. Steven Calabresi is a Yale Law School graduate who now teaches at Northwestern University. While at Yale, he co-founded the Federalist Society, then went on to clerk for Judge Robert Bork at the D.C. Circuit and Justice Antonin Scalia at the U.S. Supreme Court. Few can rival Professor Calabresi's conservative legal credentials. Ilya Shapiro, similarly, is a big name among libertarian legal scholars, and the Cato Institute has long been a major conservative policy promoter. Professor Eskridge, for his part, has spent many years arguing against anti-gay discrimination in the law.

William Duncan of the Marriage Law Foundation is a conservative activist opposed to same-sex marriage. He writes on behalf of several conservative law professors, including Lawrence Alexander of the University of San Diego, Bruce Frohnen of Ohio Northern University, and George Mason professor Nelson Lund (a frequent writer for the conservative Heritage Foundation).

From that roster of names, you might think the briefs would agree. They do not.

The brief by Eskridge, Calabresi, and Shapiro ("the Cato brief"), was filed on behalf of the Petitioners (the same-sex couples) and therefore first. The "Scholars brief" was filed second, and contrary to standard amicus brief practice (where the amici argue whether the opinion below was right or wrong) it confronts the first brief head-on. In fact, it doesn't address the Sixth Circuit opinion much at all - it restricts its focus to the wrongness of the Cato brief.

So what does the Cato brief actually argue? It approaches the question of same-sex marriage from an "originalist" perspective. Originalism is a method of legal interpretation that seeks - whenever the actual text of a law is silent on a precise issue - to discern what the drafters (or "framers") of a law or constitutional provision either intended or meant to do at the time. There is actually a dispute among originalists whether the intent or the meaning is more important, and that dispute rears its head in these two briefs.

The Cato brief begins by criticizing the Sixth Circuit's opinion, which cited the "original understanding" of the Fourteenth Amendment. That understanding, in Judge Jeffrey Sutton's view, never could have anticipated same-sex marriage and therefore the Amendment does not compel states to recognize such unions. That approach was wrong, the Cato brief argues. The correct focus should be on the "original meaning," or how the "well-established meaning of terminology added to the Constitution in 1868 applies to modern exclusions of new as well as established social groups."

So what is that "original meaning?" Cato argues that it is twofold - that the Equal Protection Clause ensures equal laws and prohibits "caste legislation." Regardless of whether the framers of the Fourteenth Amendment anticipated gay marriage per se, the meaning of the broad language they enshrined in the constitution is clear: the government could not then and cannot now deny equal protection to castes of unpopular or undesirable citizens.

This "original meaning" is illuminated by underlying principles which are fixed but must be applied to new situations as they arise:

The Cato brief then addresses several contrary assertions. First, it disputes that the Fourteenth Amendment should be viewed through a "narrow, race-based view," on two bases: that equal protection was a concept embraced broadly by Americans prior to the Civil War and drafts of the Amendment which restricted its protections to issues of race were rejected in favor of broader language.

The Sixth Circuit held that gay marriage bans were rational because they merely codified long-established views about marriage. The Cato brief argues the opposite - the bans are constitutionally suspect because they are "new expressions of anti-gay attitudes that dominated American public law in the 20th Century." And simply because gay people were not identified as a distinct category of person in 1868 does not make them any less distinct today. In fact, by the 1950s they were distinguished as a criminal class by anti-sodomy laws. Therefore, Cato argues, the Fourteenth Amendment protects them from governmental attack.


The Cato brief then concludes by attacking the various state justifications for discriminatory marriage bans in much the same way that the Petitioners themselves have done.*

The Scholars brief launches into a direct attack on the Cato brief in its very first sentence, arguing that the latter is "contrary to what nearly everyone had until recently supposed" about "the original meaning of the Fourteenth Amendment."

The Scholars criticize Cato's distinction between "original understanding" and "original meaning," calling it "untenable" and not based on either of the predominant originalist approaches toward intent or meaning. Yet, even accepting Cato's interpretation of the Fourteenth Amendment (as a general prohibition of class legislation), the state marriage bans do not run afoul of it because they are a benign adoption of "a traditional conception of marriage."

On the first subject, the Scholars write:

The Scholars brush aside the internal debate among originalists regarding intent vs. meaning. Both approaches attempt to discern the "original understanding" of a law or constitutional provision.

Of course, the Scholars admit, laws prohibiting theft enacted centuries ago aren't restricted to theft of goods that existed at the time. It is just as illegal to steal a cell phone as it is a wood-burning stove. But that's not the point. The Fourteenth Amendment, they say, could not be designed to prevent class legislation such as the states' marriage bans because nearly every law applies to classes of people in some form or another. And even though class distinctions historically considered suspect (race, religion, ancestry) are foreclosed in most cases, the Fourteenth Amendment can't possibly extend to gay marriage bans because those laws don't really single out and mistreat people based on sexual orientation:

The Scholars brief echos the Kentucky brief by arguing that "persons of any sexual orientation are wholly free to marry if they so choose." Or, conversely, both gay people and straight people are equally prohibited from marrying people of the same sex. This is an echo of the arguments made in favor of interracial marriage bans prior to Loving v. Virginia. According to the defenders of anti-miscegenation statutes, those laws were not discriminatory because both whites and blacks were prohibited from marrying people of a different race. In Loving, the Supreme Court unanimously rejected this argument.

Perhaps acknowledging the obvious historical parallel, the Scholars attempt to distinguish Loving. First, interracial marriage bans didn't define marriage, they argue. Second, bans on interracial marriages "accepted the traditional and legal conception of what marriage is" (two people of different sexes), but then wrongly imposed race-based restrictions on which different-sex couples could enter the institution. The two situations are clearly different, the Scholars say, because gay people are fully allowed to enter different-sex marriages.

It is worth noting here that, aside from the fact that this argument precludes gay people from marrying people they actually desire to marry, it conflicts with originalist interpretations of the Fourteenth Amendment prior to Loving. In 1966, the Virginia Law Review published an article by Alfred Avins titled "Anti-Miscegenation Laws and the Fourteenth Amendment: the Original Intent." "I believe that once the original understanding and intent of the framers is ascertained, the inquiry [as to the constitutionality of interracial marriage bans] should be at an end," Avins wrote.

So what was the "original understanding and intent" of the Fourteenth Amendment's framers? Avins explores debates within Congress beginning in 1864. It turns out that the framers made many references to interracial marriage in their discussions, mostly dismissive. As Avins explains:

In other words, Congressmen at the time easily dispatched slippery slope warnings from their racist colleagues because they did not intend - or mean - at all for the Fourteenth Amendment to compel an end to interracial marriage bans.

Avins provides quote after quote, mostly from the 39th Congress of 1866. Illinois Senator Lyman Trumbull, a major proponent of both the Fourteenth Amendment and the ill-fated Civil Rights Act, took great pains to distinguish the future impact of the new protections from the elimination of anti-miscegenation laws:

And on and on. Avins makes a very strong case that the original intent (or meaning) of the Fourteenth Amendment was not for the end of anti-miscegenation laws at all. Rather, it fully accepted a prohibition of interracial marriage as one that equally applied to all and was therefore constitutional.

It is hard to argue, therefore, that from an originalist perspective, Loving v. Virginia was correct. If, as the Scholars brief argues, we should not take an abstract approach to discern the underlying principles of the Fourteenth Amendment, and instead must focus on the intent and meaning of the framers from their contemporary worldview, then Loving simply cannot be correct, let alone any future ruling in favor of gay marriage.

And such is the problem with originalism. While perhaps quite useful when interpreting statutes and provisions governing the regulation of commerce, or national security, or the separation of powers, the doctrine fails miserably at illuminating the constitutional rights of individuals. The original Constitution and Bill of Rights were framed when only land-holding white men could vote or hold office. Slavery was legal. Women were the property of their fathers or husbands. In the realm of individual rights, relying on the intent or meaning of those framers necessitates a deference to a power structure we now view as abhorrent and unjust. Even the Reconstruction amendments, protecting the rights of blacks to vote and ensuring due process and equal protection under state laws, were framed by people with a profoundly different concept of civil rights and individual liberty than the one we hold today. We should rely on them to define the Constitution forever?

The Cato brief is a welcome departure from this strict view. It embraces an underlying principle of equality that, judging from the words the framers of the Fourteenth Amendment actually used, protects everyone from class-based legislation such as gay marriage bans. Whether or not this new perspective can be called "originalist," I don't know. I'm inclined to agree with the Scholars that it is not. But that's OK. If an originalist perspective cannot find in the meaning of the Fourteenth Amendment an individual right to marry the person of your choice, then what good is it? Whose interest does it serve?

*Of note is the Conclusion section of the Cato brief, which I will discuss in a subsequent post.

Amicus Brief Profile: NAACP Legal Defense & Educational Fund

In a short series, I will profile several individual amicus briefs filed in the same-sex marriage cases currently consolidated before the U.S. Supreme Court and slated for oral argument on April 28, 2015.

In the same-sex marriage cases currently before the Supreme Court (consolidated as Obergefell v. Hodges), already nearly one hundred amicus (or "friend of the court") briefs have been filed. The vast majority so far are in support of the petitioners - same-sex couples from Kentucky, Michigan, Tennessee, and Ohio. Amicus briefs in favor of the respondents - the states - are due at the end of March.

One of the amicus briefs in favor of the petitioners was filed by the NAACP and the NAACP Legal Defense & Educational Fund through counsel John Paul Schnapper-Casteras, Sherrilyn Ifill, Janai Nelson, Christina Swarns, Jin Hee Lee, Rachel M. Kleinman, Marshall W. Taylor, and Khyla D. Craine.

The brief focuses almost entirely on Loving v. Virginia, the landmark 1967 Supreme Court case that struck down state bans on interracial marriage, called "anti-miscegenation" laws. States defending their bans on gay marriage have frequently attempted to distinguish Loving on the basis that it: 1) dealt only with issues of race; 2) dealt with a criminal law, not a civil ban; 3) assumed that any "fundamental right" to marriage applies to different-sex marriage only; or 4) some combination of those three.

The NAACP brief tackles those arguments head-on, and goes further to point out that the states' arguments today against same-sex marriage are largely identical to the arguments made against interracial marriage before 1967. The states appeal to tradition. They claim the federal courts have no power to restrict state marriage laws. They argue that allowing same-sex couples to marry will endanger children. And they argue that same-sex marriage is such a radical concept that society must not be forced to accept it overnight.

First, a history lesson:

The parallels between the arguments against interracial marriage and same-sex marriage are clear, and the NAACP brief does good work making that point. Furthermore, the brief notes that, "since Loving, none of the social or genetic harms crudely predicted [before Loving] have come to pass." Public sentiment toward interracial marriage is the only thing that has changed. Only 4% supported interracial marriage in 1958, compared to 87% today.

The brief argues that the implications of Loving and the Fourteenth Amendment are not limited to issues of race alone:

The brief criticizes the reasoning of the Sixth Circuit in DeBoer v. Snyder that Loving is distinguishable because "it did not create a new definition of marriage." The NAACP argues that such a conclusion misses the point, and narrows the important affirmation of personal liberty that Loving embraces.

The brief's final section is devoted to dispatching every argument advanced by the states. First, tradition. The NAACP notes that the Supreme Court in 1967 was facing a very long tradition of anti-miscegenation laws in the United States. Many states' interracial marriage bans predated the Civil War and some predated the Revolution. Yet tradition alone cannot protect a law from constitutional scrutiny.

Next, the brief tackles the argument that state legislators or voters retain sole discretion when it comes to domestic policy:

Third, the brief attacks the idea that same-sex marriage bans are rational because the purpose of marriage is to promote responsible procreation or is otherwise linked to the ability to reproduce. "Nowhere did Loving link the right to marry to a couple's ability to procreate," and other Supreme Court decisions, "have made clear that the right to expression of emotional support and public commitment."

Finally, the NAACP confronts an argument made by Idaho governor Butch Otter in an amicus brief he filed in this case. He argued that same-sex marriage bans do not discriminate because they apply to homosexuals and heterosexuals equally. Both are prohibited from marrying someone of the same sex.

The brief concludes by noting the consistency of "protect the children" arguments made by states in defense of both anti-miscegenation laws and same-sex marriage bans. Before 1967, states like Virginia argued that they had a legitimate interest in preserving racial integrity and discouraging the creation of a "mongrel breed of citizens." The Court in Loving denounced these arguments as "obviously and endorsement of the doctrine of White Supremacy." Arguments today warning that same-sex couples are bad parents or morally incapable of raising responsible children are similarly nonsensical. Social and biological scientific consensus is clear: same-sex couples are perfectly fit to be parents and should be allowed to raise children with an underlying marital foundation.

Amicus Brief Profile: Constitutional Accountability Center

In a short series, I will profile several individual amicus briefs filed in the same-sex marriage cases currently consolidated before the U.S. Supreme Court and slated for oral argument on April 28, 2015.

In the same-sex marriage cases currently before the Supreme Court (consolidated as Obergefell v. Hodges), already nearly one hundred amicus (or "friend of the court") briefs have been filed. The vast majority so far are in support of the petitioners - same-sex couples from Kentucky, Michigan, Tennessee, and Ohio. Amicus briefs in favor of the respondents - the states - are due at the end of March.

One of the amicus briefs in favor of the petitioners was filed by the Constitutional Accountability Center through counsel Elizabeth B. Wydra, Douglas Kendall, David Gans, and Judith Schaeffer.

The brief tackles three constitutional topics: the Supremacy Clause of Article IV, the Equal Protection Clause of the Fourteenth Amendment, and the general conflict between democracy and constitutional provisions.

The second section specifically focuses on the "text and history of the Equal Protection Clause" to discern its "original meaning." Why is this significant? It is significant because discerning the "original meaning" of a law or constitutional provision is one of the chief concerns of the Originalist approach to judicial interpretation, an approach followed by Supreme Court Justices such as Antonin Scalia and Clarence Thomas.

Based on their past dissents in cases such as Lawrence v. Texas and U.S. v. Windsor, observers expect Justices Scalia and Thomas to oppose the idea that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples. So this amicus brief reads as though it is specifically appealing to their perspectives and approaches to the question.

As a quick note without going down a deep explanatory rabbit hole, be aware that there is debate whether Originalism should focus on the "original intent" of the people who wrote, passed, or ratified a law compared to the "original meaning" of the words that actually comprise the law. Justice Scalia, for example, has said that the correct approach is to discern the meaning rather than the intent.

With Justice Scalia's perspective apparently in mind, the amicus brief tackles the original meaning of the Fourteenth Amendment and cites the Congressional record from 1866 (the period of time when the Amendment was being debated and framed).

The amicus brief argues that the meaning of the words, written quite broadly, were originally meant to be interpreted broadly:

Attempting to clarify the "original meaning" of the Fourteenth Amendment is not just a ploy to sway certain Justices. It's also directly responsive to the Sixth Circuit's opinion which ruled in favor of the state marriage bans and led to the current Supreme Court case. Judge Jeffrey Sutton of the Sixth Circuit wrote in that opinion that "the people who adopted the Fourteenth Amendment [never] understood it to require the States to change the definition of marriage." DeBoer v. Snyder, 772 F.3d 388, 403 (6th Cir. 2014).

The amicus brief criticizes this as the wrong analysis. What matters is the meaning of the text, "not the subjective expectations of the lawmakers in Congress or the people in the states who ratified the document." After all, the brief argues, the wording of the Amendment is broad and contains no enumeration of the rights it protects.

Though ratified just after the Civil War, the Fourteenth Amendment's text was designed by its framers to formally codify the expansive liberty proclamation of the Declaration of Independence:

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The brief points out that the perception among framers like John Bingham was that the Fourteenth Amendment meant equal protection of "life and liberty and property" of all Americans regardless of any classification state laws may draw.

Ultimately, the brief concludes that the Sixth Circuit was wrong because the original meaning of the Fourteenth Amendment's text, rather than the original intent of its individual framers who may not have, 150 years ago, conceived of a future where same-sex couples would seek civil marriage rights, should control. The Supreme Court should read a "sweeping, universal guarantee of equality," rather than any narrower interpretation that enumerates some liberty interests but resigns the rest to state democratic control.

This focus on the history and meaning of the Fourteenth Amendment (as compared to the history of homosexual discrimination, for example) is not unique to this brief. Others address the same topic. I will profile at least one more in a future installment.