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March 26, 2013

Marriage Equality

I hope we get it right this time.

History is being made right now in the highest court in the land.  Today and tomorrow, the Supreme Court of the United States (SCOTUS) hears arguments regarding same sex marriage, including California's ban on same sex marriage under Proposition 8.

In my mind, the issue has eerie similarities to landmark discrimination cases, most notably Brown vs. Board of Education, which struck down "separate but equal," and Loving v. Virginia, which struck down laws against interracial marriages.

Scott Fujita, an NFL linebacker with a hapa Japanese heritage, recently published an eloquent essay in support of same sex marriage in the New York Times about "Acceptance by Example, on the Field and at Home."  He presents the issue from a unique perspective - as a parent, as a professional athlete in an intensely physical and testosterone-dominated sport, and as a person of mixed racial heritage. I love the quiet simplicity of his explanations, and I, too, share the hope that, years from now, we will look at today's "controversy" over same sex marriage in the same way we now look back and shake our heads at the "controversy" of interracial marriages before the 1967 Loving v. Virginia decision.

The same sex marriage issue brings me back to my law school days, so bear with me as I share a few thoughts on the legal aspects involved here.  For the most part, it's a constitutional issue under the Fourteenth Amendment's Equal Protection Clause.  To me, the marriage prohibitions limit marriages based on gender, and gender is a quasi-suspect classification under the EPC.  For quasi-suspect classifications, the courts use intermediate scrutiny to determine whether a law is substantially related to an important government interest.

Further to the EPC arguments on suspect classification, I also wonder about another constitutional EPC issue - that of fundamental rights and, particularly, the right to privacy.  From my understanding, the right to privacy includes decisions about marriage, and it seems arguable that the decision to marry a certain person - namely, a person of the same sex - would be included within that category of decisions about marriage.  If the same sex marriage prohibitions are considered intrusive on that fundamental right to privacy, then the court would use strict scrutiny, under which the law needs to be narrowly tailored and necessary to a compelling government interest.

In my mind, the question then becomes how to define the government's interest. I hope that the government interest here lies with protecting marriage.  Contrary to conservative voices that equate protecting marriage to denying same sex marriages, I would suggest that protecting marriage actually means protecting the basic right to marry - or not marry - for all citizens.  As the Warren court in Loving v. Virginia held, "marriage is one of the "basic civil rights of man," fundamental to our very existence and survival....Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

So will the 2013 Roberts court apply the same reasoning to its decision on the freedom to marry a person of the same sex?

It makes sense to me, and it is my hope that the court takes such a stance.  My dream?  For the Roberts court to issue a unanimous decision in support of same sex marriage.  As background, I should note that the SCOTUS decisions are often split - and, many times, 5-4 splits - because, by the time the issues in question come to the SCOTUS, they are often borderline cases that could go either way. However, the SCOTUS can - and does - issue unanimous opinions at times in order to send a message as to the court's unity on that point.

Previous SCOTUS decisions that were unanimous include Brown v. Board of Education and Loving v. Virginia.

Equality.  It's a simple enough idea.

Waving her equal rights flag,


  1. "I, too, share the hope that, years from now, we will look at today's "controversy" over same sex marriage in the same way we now look back and shake our heads at the "controversy" of interracial marriages"

    Great, thoughtful blog Nico. As for your hope; I think this day will come. In the Netherlands, same sex marriage has been legalized for years and to me, it's simply a given that you're not to be treated less because of the person you love.

    I know I shake my head in wonder at the constant baby steps forward and back the US takes when it comes to same sex marriage.
    It's heartbreaking really, that equality in today's world, and especially in 'civilized' societies, is still something that must be fought so hard for.

    1. Thank you, Katinka. I know that other countries have made great strides in support of marriage equality, and it's surprising how long it has taken the United States. I truly hope that the court will nudge us along in the right direction when they issue their decision.

  2. This is great, NJ. I appreciated the lawyerly insights and I'm with you in hoping for 9-0 in support of equality.

    1. Thanks, Sydney Jess! Yes, that's one SCOTUS decision I anticipate reading with interest (versus the ones I read in law school without much enthusiasm). :)