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Current Issue : Spring 2010

A Solid Constitutional Foundation: Equal Access

Equal access argues that, once conferred, the right to marry in a legally recognized ceremony is fundamental. In other words, if a government decides to recognize and support civil marriage, it cannot exclude same-sex couples without providing an adequate justification. There is a particular harm when the material and expressive benefits of a fundamentally important government institution, such as civil marriage, are not extended evenhandedly. This approach differs from both the due process theory and the classification-based equal protection theory described above. It recognizes a harm that may exist even if the relevant conduct is not protected by due process, and even if does not single out individuals on “suspect” grounds. Independent analysis is required to determine whether a different-sex marriage requirement violates equal access.

Equal access is grounded in a longstanding, if overlooked, branch of equal protection law. Under this line of cases, government cannot interfere with a fundamental interest in unequal ways unless it can show that it has a particularly good justification. In one important decision, the Supreme Court struck down an Oklahoma law that permitted sterilization of certain criminals.4 The law subjected individuals convicted of larceny to the procedure, but not individuals convicted of embezzlement, even when the amount of money stolen was the same. The Court reasoned that procreation was fundamentally important and, critically, that the law interfered with it unequally. Normally, imposing greater punishments on larcenists than embezzlers would have been permissible, but because Oklahoma made this distinction with respect to procreation, the Court held that it violated equal protection. This was true even though procreation was not protected under due process at the time.

The fundamental interest branch of equal protection law has even been applied in the specific context of the right to marry. The Court used it to strike down a state law that prohibited most fathers who owed child support from marrying.5 Although the Court referred to the full range of precedents that spoke to the fundamental importance of marriage, ultimately it grounded the decision squarely in equal protection. Strict scrutiny was applied not because singling out scofflaw fathers was particularly suspect, nor even because the law placed a particularly heavy burden on poor people, but instead because the government differentiation impacted a fundamentally important institution, civil marriage.

In much the same way, laws that deny marriage licenses to gay and lesbian couples should be struck down unless the government can show that they are justified by some exceedingly strong public interest. Courts should look carefully at such laws for two reasons. First, civil marriage is fundamentally important in American society, both socially and legally. That is true regardless of whether there is a due process right to marry in a civil ceremony. Second, states have administered that critical institution unequally. When you combine interference with a fundamental interest with inequality toward such a group, heightened scrutiny is appropriate, even if discrimination on the basis of sexual orientation alone does not always require courts to take such a hard look.

The right to civil marriage is similar to several other key guarantees, particularly the right to vote and the right to court access. It surprises many Americans to learn that there is no federal constitutional right to vote in state elections or even for President of the United States. A state could, if it wished, fill key positions by appointment rather than by elections. Yet once a state decides to hold an election, it cannot exclude a subset of citizens from the vote without raising a federal equal protection concern. Like civil marriage, voting is seldom constitutionally mandated, but once it is offered to the public it normally must be administered equally.

Something similar is true of access to courts. Although the federal Constitution does not require states to allow criminals to appeal their convictions, once states decide to do so they presumptively cannot exclude, for example, indigent defendants who cannot pay certain court costs. Neither due process nor equal protection alone can wholly explain the result in these cases—instead, the overlapping interests at play deserve special consideration. Civil marriage is similar: because of its fundamental importance, selective exclusion from legal marriage should be unconstitutional in most situations.

This legal theory captures the most important constitutional considerations surrounding same-sex marriage. It recognizes that access to civil marriage is partly about liberty—here, the ability of individuals to choose a spouse and to form a legally-recognized family—and that it is partly about a type of equality—namely, the right to be free from government discrimination. It combines considerations of liberty and equality in a way that matches the harm that many couples feel. Moreover, equal access is both backward- and forward-looking. On the one hand, it recognizes that civil marriage has played an important role in American history and traditions. On the other hand, it challenges the way that many officials have drawn lines around that institution—and in this way it looks to the future, like the best of American equal protection law.

Nelson Tebbe teaches constitutional law, religion and the law, and professional responsibility at the Law School. His scholarship focuses on the relationship between religious traditions and constitutional law, both in the United States and abroad. His articles have appeared in the Georgetown Law Journal, Journal of Religion, Michigan Law Review, and University of Pennsylvania Law Review. He is Chair Elect of the Law and Religion Section of the Association of American Law Schools.

Tebbe, who has a law degree from Yale University and a Ph.D in religion from the University of Chicago (with distinction), joined Brooklyn Law School from St. John’s University School of Law, where he received a Dean’s Teaching Award. Before teaching, he clerked for Judge John M. Walker Jr. of the U.S. Court of Appeals for the Second Circuit and practiced law at the American Civil Liberties Union and at Davis Polk & Wardwell. He was also a Fulbright Scholar at the University of Cape Town in South Africa.