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.