How should courts think about the right to marry? This is a question of principle, but it is also a key question of litigation strategy for advocates challenging laws that prohibit gay and lesbian couples from marrying. Getting the answer right is particularly important right now. Although same-sex marriage has been the subject of a national debate for several years, most challenges so far have been brought in state court. Recently, however, David Boies and Theodore Olson, former adversaries in Bush v. Gore, teamed up to file a federal challenge to a California law that limits marriage to the union of one man and one woman. Many experts anticipate that the case will ultimately be decided by the Supreme Court of the United States. A decision from the Supreme Court invalidating the California law could require states across the country to open up marriage to gay and lesbian couples—and a decision upholding the amendment would not only hamper federal challenges for the foreseeable future, but also greatly decrease the likelihood of success for state constitutional claims.
In an article that will appear this spring in the University of Pennsylvania Law Review,1 we argue that earlier litigation and commentary have overlooked the most promising argument in support of same-sex couples’ marriage rights: an approach that we call equal access. Under this approach, once a state decides to recognize and support marriage, it presumptively must make that status available evenhandedly. Although this might sound like an obvious argument, two other legal theories have dominated litigation surrounding the right to marry for same-sex couples so far. While these other arguments have merit, they also suffer from serious limitations. Equal access is more likely to succeed. Firmly grounded in existing law, it offers a sensible, moderate way for judges to strike down laws that exclude gay and lesbian couples from civil marriage. Equally important, it opens up a more satisfying way of conceptualizing the right to civil marriage generally.
Civil Marriage and Due Process
The first argument that has dominated recent litigation is that everyone has a liberty right protected by the Due Process Clause to get married in a state-recognized ceremony. The Supreme Court has often referred to a right to marriage. For example, in 1967, in Loving v. Virginia,2 the Court ruled that state laws prohibiting interracial couples from marrying were unconstitutional, in part because they violated due process. “Marriage,” the Court explained, is “fundamental to our very existence and survival.” Similar language has appeared in other cases. Based on these precedents, gay and lesbian couples argue that they too should enjoy the freedom to marry.
But this due process theory has been largely unsuccessful in litigation. Although courts have typically agreed that the Due Process Clause protects a right to marry generally, they have held that there is no right to “same-sex marriage” in particular. Judges have observed that due process law often looks to American history and traditions in order to determine whether a right is protected, and they have concluded that marriage between people of the same sex is not deeply rooted in the nation’s customs. Thus, with very few exceptions, even state courts that have overturned different-sex marriage requirements have rested their decisions on grounds other than a fundamental right to marry under state or federal due process provisions.
We disagree with the line that courts have drawn between “marriage” and “‘same-sex’ marriage.” If there is a due process right to marriage, it should be understood as a fundamental right to choose one’s spouse—a freedom that same-sex couples share. But there is a deeper flaw in this argument: there may be no due process right to civil marriage at all, even for different-sex couples. The cases typically cited to support a due process-protected right to marry link marriage to a due process-protected interest in procreation. While this link may have made some sense in an earlier era, when many state laws made marriage a prerequisite to legal childbearing, today having children outside marriage is accepted, both socially and legally.
In fact, civil marriage—marriage that meets state law requirements and thus is recognized by the state—is different from other constitutionally-protected family-related rights, such as the right to make choices regarding child rearing, sexual intimacy, contraceptive use, or termination of a pregnancy. These other rights can be exercised without any state involvement, and due process protects against burdensome government regulations that could unduly limit individual choices. Civil marriage, by contrast, is a government program that provides certain benefits, both material and expressive, and imposes certain obligations. In this respect, civil marriage is also different from private or religious marriage. Civil marriage requires government sanction— a marriage license—while private or religious marriage does not.
To see this more clearly, imagine a state that chose to abolish civil marriage altogether, leaving marriage to religious groups or other private organizations. Such a state could decide to offer civil unions or domestic partnerships, or it could designate some other form of family relationship, such as parent-child relationships, as the basis for government benefits or recognition. While these reforms are probably not politically viable, we agree with the majority of scholars that they would not violate any constitutional rights. Yet, a state’s decision to get out of the marriage business would impose the maximum possible burden on access to civil marriage. If the Due Process Clause really did guarantee a right to civil marriage, a law ending that institution would almost certainly be unconstitutional. This suggests a weakness in the due process argument. In sum, a right to enter a private or religious marriage may indeed be protected by due process, but a right to civil marriage is likely not.