Gay Marriage and the Procedural Constitution


This began as a comment on Kristina's blog and mutated into an entry unto itself. First, let me respond to something in the Economist article that Kristina linked:

Last June, in Lawrence v Texas, [the U.S. Supreme Court] ruled that state anti-sodomy laws violated the constitutional right of adults to choose how to conduct their private lives with regard to sex, saying further that "the Court's obligation is to define the liberty of all, not to mandate its own moral code". That obligation could well lead the justices to uphold the right of gays to marry.

What the Economist author and a lot of people seem to have overlooked is that Justice O'Connor, in her crucial Lawrence concurrence, specifically and explicitly identified "preserving the traditional institution of marriage" as a "legitimate state interest."* She did this to head off the inevitable whining from Justice Scalia that striking down sodomy laws would necessarily lead to striking down laws against same-sex marriage.* This means that for the current court to strike down laws against same-sex marriage, O'Connor would either have to change her mind (something not entirely outside the realm of possibility), or the Court would have to grant heightened scrutiny to laws that discriminate based on sexual orientation.** It's not inconcievable that O'Connor could be convinced to switch sides on the gay marriage issue, but the fact that she chose traditional marriage as an example is no accident, and the precedential link between Lawrence and a strike-down of anti-same-sex marriage laws is by no means a given.

That being said, let's move on to the Constitutional Amendment issue. There's a school of legal thought that views the Constitution as a mainly procedural document. Substantive Due Process aside, the only places where the Constitution really gets into substantive, individual rights are the First, Second, and Eighteenth Amendments.**** Here's a fun game to play with your reactionary friends: Of the First, Second, and Eighteenth Amendments, which one contracts, rather than expands, substantive individual rights? Okay, now keep that in mind as you think about this next question: Of the First, Second, and Eighteenth Amendments, which one was an unmitigated disaster that was subsequently repealed after ushering in the rise of organized crime in America? Got it? Okay, now just one more question. Does the denial of marriage rights expand substantive individual rights, or contract substantive individual rights? Hint: If I *deny* you a cookie, am I giving you a cookie, or am I not letting you have a cookie?

So, while a constitutional provision that denies marriage rights to a subset of the population won't necessarily lead to an underworld renaissance, it's still inconsistent with the general jive of the Constitution.***** I've seen two different versions of the proposed amendment. The more severe one looks like this:

"Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

This is an outright ban on gay marriage across the land. It's an outright denial of rights to homosexuals. This actually forbids state courts and legislatures from extending marriage benefits to same-sex couples. Significantly, it's the federal government telling the states what they can and can't do in an area that has historically been a stronghold of states' rights. Laws pertaining to marriage and family are the poster child of reserved powers. The notion of the federal government usurping even a portion of this power is a very, very big deal, and something that people who consider themselves to be small-government conservatives should weigh heavily against their any problems they have with the gays.

A less severe version of the amendment goes like this:

"Neither this Constitution or the constitution of any state shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

This, while still motivated by unabashed homophobia, at least takes on some semblance of reasonableness. State and federal courts would still be prevented from reading gay marriage rights into the federal or state constitutions. But this wording would allow state legislatures to provide for gay marriage, which should satisfy the bloodlust that Dubya and his ilk have for "activist judges." Frankly, I think this version will be easier to sell to the American people. Even people who aren't necessarily comfortable with the idea of gay marriage now most likely recognize that future generations might take a different view, and only the most drooling, knee-jerk, "mah son use-ta be a gay an' now he's married an' got three kids" homophobes would want to prevent people from revisiting this issue in the future. The second version would basically table the issue for one or two decades until society advances to the point where most people don't mind so much if two guys want to call each other "hubby."

Having said that, let me be clear. I think both amendments are vicious and absurd. Does anyone remember the 1960s? Do you think we should have left things like civil rights and women's equality up to the popular vote? Should Brown v. Board have been decided by referendum? People seem to have forgotten that these so-called "activist judges" are performing an essential function of the judiciary: protecting a marginalized group from the tyranny of the majority.

The proposed amendment is a mistake. If it passes, it will be repealed, and years from now we'll look at its proponents much in the same way that we now look at the hand-wringing, long-skirted old maids who foisted prohibition upon us. The marriage amendment maniacs will be the subject of much greater contempt, however. Prohibition may have seemed like a good idea at the time; people likely didn't foresee it as an open invitation to organized crime. But a constitutional amendment grounded in animosity toward less than 10% of the U.S. population will be completely unforgivable to future generations.

*123 S. Ct. 2472, 2488.

** "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding." Id. at 2490 (Scalia and Thomas, JJ., dissenting.)

*** I refuse to entertain the argument that laws against same-sex marriage don't discriminate based on sexual orientation. That argument goes like this: "Homosexuals have the exact same marriage rights that heterosexuals have. They, like heterosexuals, are perfectly free to marry someone of the opposite sex." Only the most simple-minded and reductionist homophobe would lend any weight whatsoever to this jungle gym nonsense.

**** The Bill of Rights obviously also deals with protection from unreasonable search and siezure, self-incrimination, and cruel and unusual punishment, but these rights only materialize in the context of police proceedings. Free speech, the right to bear arms, and prohibition are all generally applicable.

***** You might be uncomfortable with the parallel between prohibition and gay marriage. After all, people can drink with or without the government being involved, but marriage is a right that only makes sense if it's conferred through the government. Doesn't that make marriage a procedural right? Well, no, I say. I think of procedural rights as pertaining to the involvement of the individual in government affairs. So when the government is investigating a crime, the individual has certain rights that the government must respect. In the case of marriage the state government is actively conferring a right onto individuals that has nothing to do with the functioning of government. Just as the Eighteenth Amendment prohibited state governments from allowing individuals to use alcohol, a marriage amendment would prohibit state governments from extending marriage rights to individuals.


Forgetting legal arguments, I am very irritated by people who hold tightly to the stereotype of "the gays" as a clubbing, promiscuous group of 18-25 year old men, and then use that image to bolster their denial of marriage rights to perfectly boring and ordinary couples who want to make a conservative, monogamous committment to each other.

I happen to agree with the narrow conclusion reached by Matt here, the proposed amendments are ill-advised and should not be passed. Most of teh rest of his arguments seem half-baked to me. First, his argument about the procedural constitution is cribbed (poorly) from John Hart Ely's work Democracy and Distrust: A Theory of Judicial Review. Perhaps most laughable is Matt's attempt to claim that only three places in the constitution touch on personal substantive rights. A quick scan of the document reveals that this is a vast understatement. Article IV Section 2 guarantees citizens the privileges and immunitees of national citizenship. These substazntive rights were defined by Justice Bushrod Washington in Corfield v. Coryell, 6 Fed. Cas 546. This provision was extended by the 14th Amendment. The first amendment actually contains six guarantees of distinct substantive rights. The second and third amendments contain substantive individual rights. Matt is dismissive of the substantive rights contained in the 4th, 5th, 6th, and 8th amendments because they tend to involve the police, but does not explain why this cuts against their inclusion in his list. Most glaringly, Matt completely ignores the critically important LIMITATION on individual substantive rights embodied in the 13th amendment, which bans slavery. Back in the days when I studied history I heard that before 1865 people had the right to own slaves. Matt has this to say about the marriage amendment:
"Significantly, it's the federal government telling the states what they can and can't do in an area that has historically been a stronghold of states' rights. Laws pertaining to marriage and family are the poster child of reserved powers."
Well, one could make a pretty strong argument that a ban on slavery was a way of telling states (South Carolina for example) what it can and can't do in the area of regulating the definition of property. Laws pertaining to the definition and regulation of property are also the poster child of reserved powers.
So, why does Matt a) ignore this amendment, and b) oppose the marriage amendment on the grounds of federal usurpation and the notion that the constitution should remain a procedural document? Presumably he is not arguing that we should leave the slavery issue to the states. The distinction, Matt thinks gay marriage is acceptable and slavery is not. I take this last statement to be the full truth on the matter, and thus cannot understand the time and space Matt used on his procedural theory since it does not stand up to scrutiny. The moral of the story, never quote Ely, no good will come of it.
Substantive rules are perfectly appropriate for the constitution, the first and thirteenth amendments amply demonstrate this. Matt's underlying viewpoint that any and all constitutional amendments need to be suitable for all generations in the future is a huge problem. Judges strain to put new and bizarre glosses on existing amendments because lawmakers are afraid to clearly draft amendments that make clear what should and should not be allowed under it. I'll say this for the marriage amendment, its clear in its terms. If it can pass the amendment process it'll be the law, and then its up to future generations to decide whether or not its worthy of remaining in the document.

congratulations, steve! you're the 1000th comment!

thanks for thrashing me, by the way. here are a few responses:

yes, my procedural jive was based largely on ely. the reason i didn't cite him was because i was too lazy to go and find my con law book. i identified that line of reasoning as a "school of legal thought" and tried to explain the basic underpinnings (i'm sorry if that came off as poor cribbing) that the limited treatment the constitution gives individual rights is expansive rather than restrictive, as a lead-in to one possible argument against the marriage amendment.

so basically i have two earth shattering propositions, borrowed from ely: (1) the constitution isn't greatly concerned with substantive rights, and (2) when it does concern itself with substantive rights, it's expansive rather than restrictive. the 13th amendment aside (more on that below), i don't think that (2) is a very radical proposition. restriction of individual liberty seems to be the bread and butter of state police power, which perhaps is the true poster child of reserved state powers.

as for the 13th amendment, it is (ironically) a restriction of individual liberty and a usurpation of state authority to define property. but it isn't just something a bunch of congressmen pulled out of a hat one day. the country had just fought a war against its damn self and the government had to find a way to put itself, and the country, back together. the 13th amendment wasn't just a matter of the federal government stealing a slice of property pie from the states, it was part of a radical overhaul of the federal system. if you can find a clause in the constitution that restricts individual liberty that wasn't (a) drafted after a civil war or (b) later repealed after giving rise to organized crime, i'll buy you a donut. if you can find such a clause that anyone actually cares about, i'll buy you a donut and a pair of flip-down shades.

back to premise (1). anticipating a nitpicky response from the likes of you and your bizarre bushrod washington fascination, i inserted the qualifier "really" when i identified 1, 2, and 18 as the big substantive rights areas (i don't see why the first amendment's six separate guarantees make it any less of a single place). i think footnote ***** explains why 3, 4, 5 and 8 don't fit into the scheme, but if you want them to be substantive rights too, that only slightly modifies my argument.

so, importing steve's valid criticisms into my original post, let's make the following tweaks:

(1) instead of there being only three places in the constitution that bring up substantive rights (which i never said), there are at least, like, seven.

(2) instead of the constitution's treatment of substantive rights as mainly expansive rather than restrictive, it's only expansive when the clause in question (a) wasn't part of a complete retooling of american government and (b) lasted more than fourteen years.

i apologize if either of these addenda make my final conclusion any less convincing.

Thank you for commenting. I've commented on your comment by adding to my Economist posting...

there are state laws forbidding masturbation?

Bushrod Washington sagely wrote in 1823 that the Privileges and Immunities of citizenship include the right "to institute and maintain actions of any kind in the courts of the state." This substantive privilege of citizenship was partially (if not totally) abrogated by the 11th Amendment and its principle of sovereign immunity. The individual liberty was indeed restricted by the denial of remedies, and thus rights, for wrongdoing committed by a state. Thus the liberty to be free from state misconduct was severly restricted after 1798, and only partially reinvigorated by section 5 of the 14th amendment. Similarly, the right to travel interstate is another Bushrod Washington Privilege. Its enjoyment is directly curtailled by Article IV Section 2, Clause 3. The only way to counter that assertion is to rely upon the first holding of Dred Scott, which was not penned by Roger B. Taney until 1857. Since few people are willing to rest their arguments on the legitamacy of the Dred Scott decision, this clause may well present a second instance of curtailment of individual liberty. Other examples that I wont go into much detail on include Article I Section 2, Clause 2; Article I Section 3, Clause 3; Article I Section 9, Clause 8; and Article II Section 1, Clause 5. (And if you think you can invoke the "anyone cares about" proviso, I'll remind you of Victoria Woodhull in 1872 and Arnold Schwarzenegger in 2008 for that last clause). I demand my flip down shades.

the 11th amendment occurred to me as i lay down to sleep last night. that'll get you the donut but not the shades.

just so people don't have to go look up the examples steve chose not to elaborate on, they're the constitutional requirements for public office and proscription of titles of nobility. the public office requirements are about as procedural as you can get (in the sense that the "rights" they deal with only make sense in terms of individual involvement in government affairs). the nobility clause isn't exactly on the forefront of people's minds when it comes to the constitution (unlike, say, the bill of rights), though it does hold a special place in my irish, anti-royalist heart.

In a democracy, we presume that all citizens have a right to be considered for every elected office of trust under the constitution. The provision in Article II Section 1, Clause 5 that limits the office of President to natural born citizens is a fundamental and SUBSTANTIVE limitation on that right. While it may be plausable to classify age requirements as procedural (you can run for Senator, but you'll have to wait five years until you turn thirty) there is no way to describe the natural citizen requirement as merely procedure. I'll take a powdered lemon filled, and the flip downs.

i'm not sure where you're getting that presumption about democracy.

the distinction i'm trying to draw is between rights that exist in a vacuum (like the right to speak, the right to practice religion, and the right to bear arms), and those that exist ONLY in the context of the government (the right to run for president). the criminal procedure rights arguably fit into the former category.

anyway, even if there are a few substantive rights that i've missed, there are only a few, and a lot of them (certainly all the ones in articles I and II) go more toward the structure and parameters of the federal government than the daily private lives of citizens. i don't think any of this really supports the idea that substance and procedure are given equal time in the constitution. the federal government envisioned by the constitution is a limited body, leaving most substantive rights issues to state governments. so even if things like speech, guns, and who can be president were important enough to include, it's safe to say that substantive rights aren't what the constitution is, or has ever been, about.

lemon filling? who said anything about fancy donuts?

in any case, i think this argument is getting too law-geeky to hold anyone's interest. what say we continue this debate over a plate of strawberry crepes and donuts? when are you coming up here, ya hump?

It's not the law-geekiness itself that bothers me, but the distinct feeling that this is a 3L conversation that I'm just not cool enough to really participate in. Someday I will shed this lowly 1L status; I shall overcome 1L discrimination!

i don't think it's necessarily a 1L/2L/3L thing. it's more a function of steve. if you spend enough time around steve you start developing passionate yet obscure opinions about the constitution. damn you, steve!

i just had a white frosting/chocolate chip donut in honor of you (steve), by the way. it was on the way to pick up my ASUC candidacy form.

First, Matt and I are 2Ls, not that this should matter in the least. Second, I don't care about holding anyone's interest. I do want to discuss Matt's post from 11:37. My presumption can be derived either from an innate definition of democracy, or by reference to other regulations on office holding in the constitution. Both sets of congressional regulations on members contain only reference to mutable characteristics of the potential candidates. We can derive from this premise that naturalized citizens are eligible to be elected to positions of trust under the constitution of the United States. The regulations in those two provisions of Article I are limitations on the types of persons who would be otherwise eligible if the constitution were silent. However, you can say that the Article I limitations are on mutable characteristics, and thus merely procedural. The Article II limitation on the president focuses on an immutable characteristic, and thus should be deemed substantive. After all, no amount of legal process or passage of time will lead to a foreign born citizen becoming eligible for the office.
Further, it is incoherent to talk about first amendment rights existing in a vacumn, as opposed to participatory rights in elections. The first Amendment, at least from 1833 and the Barron v. Baltimore decision until 1931 and Near v. Minnesota did not define rights in a vacumn, but only in relation to an act of the Congress of the United States. The amendment begins with the words "Congress shall make no law..." That is, far from a vacumn, a specific contextualization of the rights in reference to a government body that would not exist if not created and empowered by the constitution, much like the Presidency in my example.
Further, I do not contend that the constitution is equal parts substance and procedure, as you seem to imply. Rather, I suggest that there is a long standing and valid place in the constitution for SOME substantive regulation of rights and to use Ely to suggest otherwise is a poor argument.
In response to the following post, I don't know when I'm coming up there, but I'll be sure to let you know.

you can talk with or without a government.

you can have a gun with or without a government.

you can only be president if there's a government with an office of president.

THAT's the distinction.

True, you can talk with or without a government, but that's not the right at issue in the first amendment. The first amendment does not give an unfettered right to talk whenever you want free of consequences. It only confers a right in relation to legislative bodies. The legislature will not impair your right to speak, your employer can do so. Thus, the right in the constitution is dependent on the existence of the government, because if there was no congress the first amendment speech protection would have no scope. There is no distinction.

all right, whatever. you win. you and korobkin can have a matt's dumb party.

i'll upload a strip later tonight. it will contain a joke about a tie.

I win!?! Does this mean I get the flip down shades?

Posted by: didofoot on March 1, 2004 08:11 AM
there are state laws forbidding masturbation?

Workable statewide obscenity laws exist in 40 states. Most if not all obscenity laws address exhibitions and performances, commonly including masturbation (pun intended). In some states, cities and counties enact local obscenity laws, encompassing both obscene materials and performances, again including masturbation.

Fortunately none of these laws forbid masturbation, nudity or any other offensive act, per s�.

We now return you to the music of Ram�n Raquello, playing for you in the Meridian Room of the Park Plaza Hotel, situated in downtown New York.

Kris, have you heard about the sex toy saleswoman in Texas who was arrested and charged with a Class A misdemeanor because, get this, Texas has a law forbidding the sale or use of any device designed or intended to be useful for the stimulation of human genitals?

And to think I almost moved to Houston for college. I'd have had a rap sheet a million miles long by now.

that woman works for the company that my housemate andrea does PR for -- so any news you saw about her was set up through andrea. isn't that fucking crazy?

I have a question about the eighth amendment (and I'm not a lawyer, so my language might be imprecise). If you are convicted of rape, sexual assault, child abuse, spousal abuse or neglect, can your right to marry be permanently restricted as a part of your punishment, or would that be considered cruel and unusual? I've been following the transcripts of the Prop 8 case, and I'm curious why it hasn't been brought up that individuals convicted of crimes against children and family (and even those who are proven recidivists) still enjoy those rights, while gays cannot. Comment? Thanks!

Other Blogs

Law-Type Blogs

Other Webcomics

Log Archives

eXTReMe Tracker

About this Entry

This page contains a single entry by hb published on February 29, 2004 6:55 PM.

Fake Jury Duty, Anyone? was the previous entry in this blog.

Revenge of the Worst Lawyer in the History of the Future is the next entry in this blog.

Find recent content on the main index or look in the archives to find all content.

Powered by Movable Type 5.04