Last week, the Senate passed the Respect for Marriage Act (RFMA) by a 61-36 vote which will certainly become law. The RFMA would repeal the Defense of Marriage Act (DOMA) which defined marriage as between one man and one woman at the federal level and allowed states to refuse to recognize same-sex marriage under any state law, until it was struck down by the Supreme Court. In addition, by repealing DOMA, the RFMA would make interracial and same-sex marriages federally recognized, codifying the Court’s precedent.
Gallup polls show that 71 percent of Americans think the law should recognize gay marriage and 94 percent of Americans approve of interracial marriages. Although these rights enjoy broad popular support, the new rush to codify marriage protections was generated by the Court’s landmark decision in Dobbs v Jackson Women’s Health Organization which held that the Constitution does not confer the right to an abortion. Specifically, Justice Thomas’s concurrence which argued that “[The Court] should reconsider all of this Court’s substantive due process precedents, including… Obergefell” motivated advocates to codify marriage equality which they had failed to do for abortion rights.
Traditional marriage is a losing issue for conservatives. 55 percent of Republicans now support same-sex marriage, which is hardly a significant issue in modern politics. Compare Mitt Romney in 2012 to the Pride-flag-waving Donald Trump in 2016 to highlight the tone shift before and after Obergefell.
The true issue for conservatives regarding same-sex marriage is this: How can the Court prevent Obergefell from becoming another Griswold, and restrict further broad and reckless substantive due process claims?
Under the Court’s current understanding of the substantive due process, for a right not explicitly in the Constitution to be protected, it must be deeply rooted in our nation’s history and implicit in the concept of ordered liberty. The right to marriage has been a long-recognized liberty protected by the 14th Amendment established in Court precedence.
Homosexual sexual intercourse and marriage protections have been established under the Due Process clause rather than the Equal Protection clause. However, the equal rights of same-sex couples should be protected narrowly through the Equal Protection clause rather than through baseless and abstract substantive liberty interests. For example, in Lawrence v Texas Justice O’Connor concurred in striking down a Texas law against homosexual sodomy under Equal Protection because a bare desire to harm a politically unpopular group is not a legitimate state interest and would trigger strict scrutiny.
Strict scrutiny is triggered when fundamental liberty, guaranteed under the Constitution or Due Process, is violated. When liberty is denied to an entire class, it is usually decided under Equal Protection. In addition, legislation that classifies by a suspect classification – race, national origin, alienage, and discrete and insular minorities – triggers strict scrutiny. Although the Court has not decided whether sexual orientation is a suspect classification, it likely meets the criteria.
Depriving homosexuals of the fundamental right to marriage based on a suspect classification seems most definitely an Equal Protection violation given the Court’s precedence surrounding marriage and suspect classifications. Protecting same-sex marriage under Equal Protection is our safest option. Under Due Process, same-sex marriage is protected under an umbrella of substantive liberties written into the Constitution. Courts have protected homosexual sodomy and marriage under personal decisions relating to marriage, procreation, contraception, family relationships, child-rearing, and education, “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” Casey, overturned for being the bad law that it was, opened the floodgates for judicial activists writing baseless liberties into the Constitution under their arbitrary and broad interpretations of dignity and autonomy.
Same-sex marriage is a losing issue. Returning the matter to the states, as was done with abortion in Dobbs, will lead to the same outcome. Same-sex marriage will be protected by all 50 states through state or federal legislation. Establishing marriage equality under narrow Equal Protection grounds is the best option for conservatives to prevent future efforts to legislate from the bench.
Jack Ripley
Jack is a junior at the University of Texas at Austin, pursuing a degree in government and history. His interests include international and Francophone politics, constitutional law, and he aspires to attend law school for corporate law.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.
@jack.ripley
