Privacy, not Equal Protection

Obergefell v. Hodges: An Imagined Opinion

In Obergefell v. Hodges, the Supreme Court ruled that excluding same-sex couples from civil marriage is unconstitutional. Sometimes the appropriate response to a judicial decision is: right ruling, but wrong—or, at least, problematic—reasoning. The following is a concurring opinion by the imaginary “Justice Nemo,” who articulates a basis for the Court’s judgment that she believes to be preferable to the somewhat diffuse mix of rationales on which Justice Anthony Kennedy’s majority opinion relies. (A longer version of this article with footnotes is available here [pdf].)

JUSTICE NEMO, concurring in the judgment.

I concur in the Court’s judgment that excluding same-sex couples from civil marriage is unconstitutional, but I base that judgment on a rationale different from any of those included in the mix of rationales on which the Court’s majority opinion relies. One of the rationales on which the majority opinion relies is equal protection, but, in my view, such a rationale is problematic as a basis for the Court’s judgment.

The right to equal protection, as I emphasized in an earlier case, “is, at its core, the right not to be treated by government less well than another is treated, or otherwise disadvantaged, based on the demeaning view that one is morally inferior, in this sense: not worthy, or less worthy than some others, of being treated, in the words of the Universal Declaration of Human Rights, ‘in a spirit of brotherhood’” (Fisher v. University of Texas at Austin, Nemo, J., dissenting).

According to the Court, the policy of excluding same-sex couples from civil marriage violates the right to equal protection. But does it? It obviously disadvantages the excluded gays and lesbians, and the more extreme versions of the policy obviously disadvantage them more severely. The most extreme version: refusing to grant to same-sex couples any of the legal benefits granted to heterosexual marriages. A less extreme version: granting to same-sex couples some but not all of the legal benefits granted to heterosexual marriages. The least extreme version: granting to same-sex couples all of the legal benefits granted to heterosexual marriages but refusing to honor the same-sex relationship with the title “marriage.” But that this policy of exclusion disadvantages gays and lesbians does not entail that the policy violates the right to equal protection. The policy violates the right to equal protection if, and only if, it is based on the demeaning premise that gays and lesbians are morally inferior human beings. Is the policy based on that premise? Government action is “based on” a premise if the government would not be doing what it is doing “but for” the premise. Is the demeaning premise that gays and lesbians are morally inferior a “but for” predicate of the exclusion policy?

The premise that they are morally inferior is sadly familiar. Judge Richard Posner, writing about the “irrational fear and loathing of” gays and lesbians, has observed that they, like the Jews with whom they “were frequently bracketed in medieval persecutions[,] . . . are despised more for what they are than for what they do." The Connecticut Supreme Court has echoed that observation, noting that gays and lesbians are often “‘ridiculed, ostracized, despised, demonized and condemned’ merely for being who they are” (Kerrigan v. Commissioner of Public Health). Legal scholar Andrew Koppelman has rehearsed some grim examples: “the judge’s famous speech at Oscar Wilde’s sentencing for sodomy, one of the most prominent legal texts in the history of homosexuality, [which] ‘treats the prisoners as objects of disgust, vile contaminants who are not really people, and who therefore need not be addressed as if they were people.’”  Koppelman continues: “From this it is not very far to Heinrich Himmler’s speech to his SS generals, in which he explained that the medieval German practice of drowning gay men in bogs ‘was no punishment, merely the extermination of an abnormal life. It had to be removed just as we [now] pull up stinging nettles, toss them on a heap, and burn them.’”

So we should not discount the possibility that some laws and policies that disadvantage gays and lesbians do indeed violate the right to equal protection. An ugly example remains on the books in Florida: “No person eligible to adopt under this statute [the Florida Adoption Act] may adopt if that person is a homosexual.” Under the Florida law, which is fairly described as homophobic, ex-felons of all sorts may adopt a child; even a convicted child abuser may adopt a child. But no “homosexual” may do so. The Florida judiciary was right to rule that the statute violates the right that “under the Florida Constitution, each individual person has…to equal protection of the laws” (Florida Department of Children and Families v. In re: Matter of Adoption of X.X.G. and N.R.G.).

But that some laws and policies that disadvantage gays and lesbians violate the right to equal protection does not mean that every law and policy that disadvantages gays and lesbians violates this right. And, as it happens, it is highly questionable whether in the contemporary United States, the premise that gays and lesbians are morally inferior is a “but for” predicate of the policy that excludes them from civil marriage. For many and perhaps most who support the policy of exclusion in the United States today, this is the dominant and sufficient rationale for the policy: Admitting same-sex couples to civil marriage would tend to legitimize—“normalize”—and thereby incentivize same-sex sexual conduct. This we must not do: Same-sex sexual conduct is immoral. The claim that same-sex sexual conduct is immoral does not assert, imply, or presuppose that those who engage in this conduct are morally inferior human beings—any more than the claim that theft is immoral asserts, implies, or presupposes that those who steal are morally inferior human beings. By contrast, “the very point” of laws that criminalized interracial marriage was “to signify and maintain the false and pernicious belief that nonwhites are morally inferior to whites.”

This is not to deny that, as Koppelman puts it, some “of the antigay animus that exists in the United States is just like racism, in the virulence of the rage it bespeaks and the hatred it directs towards those who are its objects.” Again, some laws and policies that disadvantage gays and lesbians violate the right to equal protection. But as Koppelman concedes, “[n]ot all antigay views…deny the personhood and equal citizenship of gay people.” As legal scholar Robert Nagel has emphasized, “there is the obvious but important possibility that one can ‘hate’ an individual’s behavior without hating the individual.” The pope and bishops of the Catholic Church insist that same-sex sexual conduct is immoral and are prominent—indeed, leading—opponents of what the United States Conference of Catholic Bishops has described as “legislative and judicial attempts, both at state and federal levels, to grant same-sex unions the equivalent status and rights of marriage—by naming them marriage, civil unions or by other means” (“Promote, Preserve, Protect Marriage”). Nonetheless, the pope and bishops also insist that all human beings, gays and lesbians no less than others, are equally beloved children of God. As the bishops write in the same document, “Our respect for them means that we condemn all forms of unjust discrimination, harassment or abuse.”

MANY WILL BE QUICK to claim that it is not the government’s business to decide whether same-sex sexual conduct is immoral. But if that is true, it is not because doing so violates the right to equal protection. Again, claiming that same-sex sexual conduct is immoral does not imply or presuppose that those who engage in the conduct are morally inferior human beings. Therefore, if the government may not exclude same-sex couples from civil marriage on the grounds that same-sex sexual conduct is immoral, it is because the government’s doing so violates a constitutional norm other than the right to equal protection. Is there such a norm? The answer, as I shall now explain, is “Yes.”

The exclusion of same-sex couples from marriage violates what the Court has called “the right of privacy”—a right the Court has protected as a constitutional right for half a century. A 1965 ruling and a 1972 ruling, read in conjunction with one another, establish that government may ban neither the use nor the distribution of contraceptive devices or drugs. In the 1972 ruling, the Court declared: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In 1973, the Court ruled that some restrictive abortion legislation violated “the right of privacy.” In 1978, in ruling that “the decision to marry [is] among the personal decisions protected by the right of privacy,” the Court explained:

It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships…. It would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society…. When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.

Finally, in 2003, the Court ruled that government may not criminalize consensual sex between adults, and that therefore a criminal ban on same-sex sexual intimacy was unconstitutional:

Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct…. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons to make this choice.

Quoting from an earlier decision, Bowers v. Hardwick (1986), the Court explained, “That the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”

The right of privacy, then, is best understood as a right that protects moral freedom: the freedom to live one’s life in accord with one’s fundamental moral convictions and commitments. And a core part of that freedom is the freedom to live one’s life in a marriage of one’s choosing—if one chooses to marry. As the Massachusetts Supreme Court stated in 2003, “the decision whether and whom to marry is among life’s momentous acts of self-definition.” So the policy of excluding same-sex couples from marriage clearly implicates the right to moral freedom—otherwise known as “the right of privacy.” The policy interferes with same-sex couples’ freedom to live their lives in a marriage of their choosing. But that this exclusion implicates the right does not entail that it violates the right. As our cases make clear, the right of privacy is not absolute but conditional: a policy violates the right if, and only if, it fails to serve a compelling government objective. As it happens, the exclusion of same-sex couples from marriage does fail to satisfy that condition.

The government objectives that have been asserted in defense of this exclusion are of two sorts: morality-based objectives (those that presuppose the immorality of same-sex sexual conduct) and non-morality-based objectives (those that don’t).

The two principal non-morality-based government objectives that have been asserted in defense of the exclusion policy are (1) protecting the health of the institution of traditional (i.e., opposite-sex) marriage and (2) protecting the welfare of children.  Both objectives are undeniably weighty government objectives. However, no credible argument supports the proposition that the exclusion of same-sex couples serves either objective. Put another way, no credible argument supports the proposition that all the several states in the United States and all the several countries in the world that have already admitted same-sex couples to civil marriage have thereby acted to the detriment of either the institution of traditional marriage or the welfare of children. Indeed, admitting same-sex couples to civil marriage serves the welfare of the many children now being raised by same-sex couples. The argument that excluding same-sex couples from marriage serves one or both of the aforementioned non-morality-based objectives seems to me to be taken seriously mainly, if not only, by persons who already oppose same-sex civil marriage for a different reason—namely, that same-sex sexual conduct is immoral.

Again, the dominant rationale for the exclusion policy—as is well known—involves a morality-based government objective: Admitting same-sex couples to civil marriage would tend to legitimize—“normalize”—same-sex sexual conduct. This we must not do because same-sex sexual conduct is immoral. For example, in 2003, the Vatican—specifically, the Congregation for the Doctrine of the Faith, whose Prefect at the time, Joseph Cardinal Ratzinger, later became Pope Benedict XVI—argued that admitting same-sex couples to civil marriage would signal “the approval of deviant behavior, with the consequences of making it a model in present-day society.”

EXCLUDING SAME-SEX COUPLES from civil marriage obviously serves the objective of not legitimizing conduct that many believe to be immoral. The serious question is whether that objective qualifies as a legitimate government objective, much less a compelling one, under the right of privacy. The answer depends on the reasons lawmakers (and those they represent) have for believing that same-sex sexual conduct is immoral. If the only reason they have is a religious reason—for example, and in the words of one evangelical minister, “[same-sex sexual conduct] is in direct opposition to God's truth as He has revealed it in the Scriptures”—then it is clearly not the basis for a legitimate government objective. Although protecting public morals is undeniably a legitimate government objective, protecting sectarian morals is not, as our “right of privacy” cases make clear.  The right of privacy leaves no room for the political-powers-that-be to ban or otherwise impede conduct on the grounds that it violates religious—or otherwise sectarian—moral norms.

Of course, religious reasons are not the only reasons lawmakers have for believing that same-sex sexual conduct is immoral. Indeed, the path of reasoning runs in the opposite direction for many religious believers: they believe not that same-sex sexual conduct is immoral because it is contrary to the will of God, but that it is contrary to the will of God because it is immoral. For example, the Catholic bishops’ rationale for believing that same-sex sexual conduct is immoral is a nonreligious reason: it does not imply or presuppose that God—or any other transcendent reality—exists. According to the bishops, it is immoral not just for same-sex couples but for anyone to engage knowingly and freely in sexual conduct that is “inherently nonprocreative”; and same-sex sexual conduct—like contracepted male-female sexual intercourse, masturbation, and both oral and anal sex—is inherently nonprocreative. As Cardinal Joseph Ratzinger stated in 2003, speaking for the Congregation for the Doctrine of the Faith, “homosexual acts go against the natural moral law” because they “close the sexual act to the gift of life.”

While the position that all inherently nonprocreative sexual conduct is immoral may not be religious, it is nevertheless a conspicuously sectarian moral position. It bears emphasis, in this regard, that the position is extremely controversial even among Catholic moral theologians, not to mention among the larger community of religious ethicists.

In the United States today, the exclusion of same-sex couples from civil marriage is based on the affirmation by many citizens of the biblical rationale and/or the bishops’ nonreligious rationale for the belief that same-sex sexual conduct is immoral. Both of these rationales are sectarian, and, again, the right of privacy leaves no room for the political-powers-that-be to ban or otherwise impede conduct based on a sectarian moral belief. Consider, in that regard, what the celebrated American Jesuit John Courtney Murray wrote, in the mid-1960s, in his “Memo to Cardinal Cushing on Contraception Legislation”:

The practice [of contraception], undertaken in the interests of “responsible parenthood,” has received official sanction by many religious groups within the community. It is difficult to see how the state can forbid, as contrary to public morality, a practice that numerous religious leaders approve as morally right. The stand taken by these religious groups may be lamentable from the Catholic moral point of view. But it is decisive from the point of view of law and jurisprudence . . .

Father Murray did not explain in his memo what he meant by “the point of view of law and jurisprudence.” Nonetheless, what Murray described as “decisive from the point of view of law and jurisprudence” is decisive; it is decisive from the point of view of the right of privacy. And we may say about the exclusion of same-sex couples from civil marriage much the same thing that Murray said to Cardinal Cushing about anti-contraception laws: “Same-sex marriage has received official approval by various religious groups within the community. It is difficult to see how the state can refuse to countenance, as contrary to public morality, a relationship that numerous religious leaders and other morally upright people approve as morally good. The stand taken by these religious groups and others may be lamentable from the Catholic moral point of view. But it is decisive from the point of view of the right to moral freedom, articulated in the constitutional law of the United States as ‘the right of privacy.’”

IN HIS DISSENTING OPINION in United States v. Windsor (2013), Justice Scalia objected that the majority opinion implied that supporters of the Defense of Marriage Act (DOMA) were all bigots. According to the majority, Scalia wrote, “only those with hateful hearts could have voted ‘aye’ on [DOMA].” “In the majority’s telling,” lamented Scalia, “this story is all black-and-white: Hate your neighbor or come along with us.” In his dissenting opinion in Obergefell, Chief Justice Roberts writes:

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n] or stigmatiz[e]” same-sex couples…. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.

Given the foregoing passages, I want to emphasize that the argument I have made in this opinion does not involve the claim that laws excluding same-sex couples from marriage must be based on homophobic prejudice. Surely where such an argument is available—one that steers clear of what legal scholar Steven Smith has called “the jurisprudence of denigration”—it should be preferred to arguments according to which opponents of same-sex marriage are all bigots.

Michael J. Perry holds a Robert W. Woodruff University Chair at Emory University, where he teaches in the law school. 

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