Perry’s Path to Equality: Rejecting “Gay Marriage” and Rethinking the “Right to Marry”


The Supreme Court granted certiorari in Hollingsworth v. Perry to hear arguments on whether “the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.” Though the Court could extend marriage rights to same-sex couples nationwide by holding that Proposition 8 unconstitutionally discriminates on the basis of sexual orientation, the possibility that such a sweeping opinion would provoke cultural backlash has prompted discussion of narrower ways to rule in favor of marriage equality. Alternatives include adopting the Ninth Circuit’s holding that California may not revoke from same-sex couples an already established right to marry, or deciding that states cannot withhold the word “marriage” while providing same-sex couples with most of the associated benefits and protections.

All three of these options, however, deny the Court a unique opportunity. Perry is more than just a vehicle for harnessing constitutional doctrine to incrementally advance marriage equality; it is a chance for the Court to correct that doctrine and clarify its marriage jurisprudence. By examining a broader alternative basis for adjudicating Perry, this comment will highlight theimportant issues that may not be addressed in a more limited ruling. The proposed alternative approach begins not with equal protection doctrine, but instead with substantive due process and the question of whether there is a fundamental right to marriage, an issue raised in the District Court opinion but absent from the Ninth Circuit affirmance. Through this analysis, the Court can begin resolving two major doctrinal problems lurking in the background in Perry–how to define marriage, and how to analyze it as a constitutional right.

In Part II, I argue that the Court should resolve the definitional problem that has plagued marriage equality litigation–the false distinction between “gay marriage” 4 and “marriage.” This requires challenging the flawed logic underlying an approach to substantive due process doctrine, championed by Justice Antonin Scalia, that defines fundamental rights at the most specific level of generality. In so doing, Justice Scalia has often framed rights not only by what they are, but also by who may exercise them, disregarding equality principles inherent in fundamental rights analysis. Thus conceptualized, Perry is not about marriage, which has historically been limited to one man and one woman, but rather “gay marriage,” a new institution unworthy of substantive dueprocess protection. The Court should instead use Perry to reject this definitional approach and reaffirm that fundamental rights are presumed fundamental for everyone and require compelling reasons to justify exceptions.

Having disposed of the improper characterization of the right to “gay marriage,” I argue in Part III that Perry provides an opportunity for the Court to correct prior attempts to frame what exactly the “right to marriage” is and how it should be analyzed. Civil marriage is not a fundamental right in the traditional substantive due process sense, but rather a fundamentally important state-created institution that, once established, must be available to all, subject to heightened equal protection scrutiny for any individuals denied access.

These two definitional problems are intertwined and require joint resolution in order for the Court to properly apply constitutional doctrine and reach a just outcome in Perry. Framing the newly formulated right as “access to marriage” and applying equal protection fundamental interest analysis requires the Court to reject the marriage versus gay marriage distinction (after all, neither same-sex nor opposite-sex couples are currently able to get “gay married” in California). Understanding the nature of marriage as an equality-based right, in turn, illustrates how the definitional problem generally plaguing substantive due process rights disregards important equality principles inherent in the doctrine. Together, these problems highlight the important interplay between substantive due process and equal protection, and neither has been fully addressed in Perry or other marriage equality cases. By resolving these substantive due process and marriage jurisprudence issues, the Supreme Court could ultimately return to the question presented in Perry and conclude that barring same-sex couples from civil marriage violates the Equal Protection Clause of the Fourteenth Amendment. The result of this alternative broad ruling would be nationwide access to marriage for same-sex couples and a reenergized substantive due process doctrine.

Suggested Reading

 State Laws Argued in Federal Court Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997):  The Plaintiff, Ms. Robin Shahar has received a job offer from the Georgia Attorney General’s office.  When the Attorney General learned of Ms. Shahar plans