Political Theory. the U.S. Constitution, and Same-Sex Marriage, 17 Rich. J.L. & Pub. Int. 847...

847 * J.D., University of Florida Levin College of Law, 2014; B.A., Brigham Young University, 2010. The

author would like to thank Stevenson C. Smith for his insightful commentary.

POLITICAL THEORY, THE UNITED STATES CONSTITUTION,

AND SAME-SEX MARRIAGE

Tyler A. Le Fevre*

848 RICHMOND JOURNAL OF LAW AND THE PUBLIC INTEREST [Vol. XVII:iv

I. INTRODUCTION

What ought to be an individual’s relationship to society? How should we

prioritize the political values of virtue, liberty, and equality? And, how do we

define virtue, liberty, and equality? These questions undergird and overarch

discrete political issues ranging from welfare to same-sex marriage. Yet, too

often, public debate gets stymied in shallow rhetoric, without ever confront-

ing the moral principles that lie at the foundations of our political differ-

ences.1 Politicians avoid piercing questions like it’s a full time job. News

commentators stir controversy with dramatic stories and gotcha-reporting.

Judges conceal the moral underpinnings of their decisions. On the streets and

in social media, citizens talk past one another about political issues and civil-

ity devolves into resentment, or, worse, apathy.

The current debate over the constitutional status of same-sex marriage is

no exception to this pattern. Even scholarly research often fails to appreciate

the deep moral differences at the foundation of the same-sex marriage debate.

Too often, the legal scholarship on same-sex marriage focuses mechanically

on doctrinal or scientific disputes without reference to the deeper moral prin-

ciples that underlie the Constitution and marriage law in the first place. One

purpose of this Article is to situate the legal debate about same-sex marriage

within the greater philosophical debate about what a person’s relationship to

society ought to be. By examining the same-sex marriage contest through the

lens of political theory, this Article makes explicit the often-unmentioned

moral foundations of the debate.

The Constitution sets the outer limits of what kinds of political theory can

have sway in our government’s policies. Where the Constitution accommo-

dates various political theories and where those theories point to different

answers on how to resolve a discrete social issue, there is a question as to

whether judges should decide the issue at all, or leave it to the majoritarian

process. We might rephrase the question, “Is gendered civil marriage consti-

tutional?” as “Is any part of the Constitution—its text and history—incon-

sistent with all political theories that would permit gendered civil marriage?”

The answer to this question is probably “no.” In this Article, I try to show

that the Constitution accommodates numerous political approaches, many of

which, when applied, permit gendered civil marriage, especially on the state

level. I further argue, that states have an important interest in deciding which

1 See RONALD DWORKIN, FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 4

(1996) (“[Some] politicians try to convince the public that the great constitutional cases turn not on deep

issues of political principle, which they do, but on the simpler question of whether judges should change

the Constitution by fiat or leave it alone.”).

2014] THEORY, CONSTITUTION, MARRIAGE 849

political theories will guide their policymaking so long as they are not incon-

sistent with the text and history of the Constitution. But, if judges do decide

to intervene in political questions, they must be prepared to engage in the

philosophic debate between the differing political theories accommodated by

the relevant portions of the Constitution. Anything less would be insufficient

to justify a ruling and would merit little precedential force. Keeping the over-

arching moral issues in mind results in a more holistic examination of the

same-sex marriage issue. It defends against losing sight of the forest for the

trees.

As an illustration, I argue that the best political regime consistent with the

American Constitution is one that views liberty as instrumental in achieving

a collectively virtuous society, rather than viewing liberty as an end-in-itself.

In this “moral liberal regime,” virtue is the ultimate political aspiration, rather

than liberty, security, welfare, or equality. Accordingly, sincere moral justi-

fications for limiting civil marriage to opposite-sex couples ought to be con-

sidered legitimate government purposes sufficient to pass constitutional re-

view. In the alternative, I argue that even in a regime that subscribes to the

absolute primacy of liberty, the evidence suggests that same-sex civil mar-

riage probably poses some risk to liberty, health, safety, and welfare. Hence,

the value of recognizing a legal right to genderless marriage must be weighed

against others’ interests that such a new right would compromise.

In Part II, I outline the history of American constitutionalism, judicial re-

view, substantive due process, equal protection, and judicial treatment of sex-

ual orientation. A significant portion of this Part critiques the recent Supreme

Court decisions in U.S. v. Windsor and Hollingsworth v. Perry. In Part III, I

review the philosophical debates about morality’s place in politics and situate

the current question about the constitutional status of same-sex marriage

within that larger philosophical debate. In Part IV and V, I then argue that

morality is superior to liberty and equality and that fostering social morality

is a legitimate—perhaps compelling—government interest. In Part VI, I cat-

alogue the best arguments that gendered civil marriage benefits social health,

safety, and welfare and conclude that the constitution should not be inter-

preted to mandate genderless civil marriage given the current factual findings

on the topic.


II. A PRIMER ON CONSTITUTIONALISM, JUDICIAL REVIEW,

EQUAL PROTECTION, DUE PROCESS, AND SEXUAL-ORIENTATION

JURISPRUDENCE

A. American Constitutionalism and Judicial Review

Constitutionalism can be analogized to Ulysses binding himself to the

mast in order to resist the fatal call of the Sirens.2 By design, the written

Constitution of the United States constrains and dictates the American system

of government to guard against the temptations of power. The Framers of the

Constitution aimed to combat two political pathologies.3 First, the Constitu-

tion seeks to prevent corrupt officials from oppressing citizens. Second, it

guards against a tyranny of powerful factions. In other words, it minimizes

the political instability that results from diversity.4 The second challenge—

that of faction—worried James Madison more than the challenge of corrupt

leadership.5 To address the problem of faction, the Constitution separates the

political powers of legislation,6 execution of the law,7 and interpretation of

the law8 among three separate branches of government.9

Early American lawyers conceptualized the human soul as having two

halves, that of will and that of judgment.10 These same faculties were not

combined in American government, but separated.11 The Constitution places

the power of political will entirely in the legislative and executive branches,

but the courts retain the power of judgment.12 The Constitution does not in-

dicate overlap between the powers of the judiciary and the powers of the other

2 Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124

HARV. L. REV. 657, 658 (2011). In many ways, the Constitution is to government what antitrust law is to

business. 3 Id. at 666. 4 Id. 5 Id. 6 U.S. CONST. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United

States, which shall consist of a Senate and House of Representatives.”). 7 U.S. CONST. art. II, § 1 (“The executive Power shall be vested in a President of the United States of

America.”). 8 U.S. CONST. art. III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court,

and in such inferior Courts as the Congress may from time to time ordain and establish.”). 9 See THE FEDERALIST NO. 47, at 244 (James Madison) (Bantam Books 1982) (“The accumulation of all

powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether

hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”). 10 Philip Hamburger, A Tale of Two Paradigms: Judicial Review and Judicial Duty, 78 GEO. WASH. L.

REV. 1162, 1170 (2010). 11 Id. 12 Id. at 1170–71.


two branches except that, implicitly, courts make interstitial law by providing

binding interpretations of otherwise ambiguous law.13

Congress’ power to make law is limited by the Constitution, which is the

supreme law of the land,14 as interpreted by the courts.15 Courts then have

the power to review legislation to ensure that it comports with the require-

ments of the Constitution. The origins of this power of judicial review can be

traced back to Marbury v. Madison, in which Chief Justice Marshall held that

“a law repugnant to the constitution is void; and that courts . . . are bound by

that instrument.”16 For decades following the Founding, a unitary “repug-

nancy to the Constitution” test, also called the rational-basis test, was the only

standard of judicial review employed by the Supreme Court.17

It was not until the 1938 case, United States v. Carolene Products Co., that

the Supreme Court suggested that a more exacting standard of review might

be appropriate under certain circumstances.18 In that case, the Supreme Court

reviewed a federal law prohibiting the mixture of skimmed milk with non-

milk fats to resemble milk or cream.19 The Court reviewed the prohibition to

determine whether it infringed upon citizens’ due process rights.20 In uphold-

ing the constitutionality of the law, Justice Stone, writing for the majority,

applied the traditional standard of review, which requires only that a law bear

some rational connection to a legitimate government interest.21 However, in

13 See United States v. Little Lake Misere Land Co., Inc., 412 U.S. 580, 593 (1973). 14 U.S. CONST. art. VI (“This Constitution, and the Laws of the United States which shall be made in

pursuance thereof; and all treaties made, or which shall be made, under the Authority of the United States,

shall be the supreme Law of the land; and the Judges in every state shall be bound thereby, any Thing in

the Constitution or Laws of any state to the Contrary notwithstanding.”). 15 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803). 16 Id. However, eighteenth century Americans likely presumed that courts would invalidate legislation that

was contrary to the Constitution. See Mary Sarah Bilder, The Corporate Origins of Judicial Review, 116

YALE L.J. 502, 504 (2006). By-laws of colonial corporations, like Massachusetts and Virginia, could be

voided if English officials determined they were repugnant to the laws of the nation. Id. at 536. Even

before the Constitution was ratified, James Madison noted that “[a] law violating a constitution established

by the people themselves, would be considered by the Judges as null & void.” RECORDS OF THE FEDERAL

CONVENTION OF 1787, at 93 (Max Farrand ed., rev. ed. 1966) (July 23), available at http://memo

ry.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=96&itemLink=r?am-

mem/hlaw:@field(DOCID+@lit(fr00227))%230020097&linkText=1. 17 See generally 116 YALE L.J. 502 (2006). 18 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). 19 Id. at 145–46. 20 Id. 21 Id. at 152; see also McCulloch v. Maryland, 17 U.S. (1 Wheat.) 316, 421 (1819) (“Let the end be

legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are

plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitu-

tion, are constitutional.”). This rational basis review had been previously contemplated by Alexander

Hamilton, who wrote:

[A] criterion of what is constitutional, and of what is not so ... is the end, to which the measure relates as

a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have

an obvious relation to that end, and is not forbidden by any particular provision of the constitution-- it


the now famous Footnote Four, Justice Stone suggested, for the first time,

that a heightened form of judicial scrutiny might be appropriate under three

conditions: (1) where legislation, on its face, is repugnant to one of the spe-

cific prohibitions of the Constitution, (2) where legislation corrupts the polit-

ical process, or (3) where legislation discriminates against discrete and insu-

lar minorities who are unable to avail themselves of the political process.22

Over time, Footnote Four of the Carolene Products case dramatically re-

duced judicial deference to legislatures under those three circumstances. The

courts have since invoked heightened scrutiny to invalidate numerous federal

and state laws.

B. Due Process and Equal Protection Scrutiny Generally

The Fourteenth Amendment prohibits all government entities from depriv-

ing any person of liberty without the due process of law and from denying

any person of equal protection of the laws.23 The Due Process Clause of the

Fifth Amendment restricts the power of the federal government,24 and its

twin Due Process Clause in the Fourteenth Amendment is applied to the

states.25 The Supreme Court has interpreted the Due Process Clauses to pro-

tect not only procedural rights, but also substantive rights that are, objec-

tively, deeply rooted in American history and tradition26 and implicit in the

concept of ordered liberty.27 Under the substantive due process doctrine, leg-

islation burdening such “fundamental rights” is subject to strict scrutiny.28

Legislation will survive strict scrutiny analysis only if it (1) advances a com-

pelling government interest, (2) is narrowly tailored for that purpose, and (3)

is the least restrictive means of accomplishing that purpose.29 If, however, no

may safely be deemed to come within the compass of the national authority. There is also this further

criterion that may materially assist the decision: Does the proposed measure abridge a pre-existing right

of any State, or of any individual? If it does not, there is a strong presumption in favour of its constitu-

tionality.

ALEXANDER HAMILTON, OPINION ON THE CONSTITUTIONALITY OF THE BANK OF THE UNITED STATES

(1791), available at http://press-pubs.uchicago.edu/founders/documents/a1_8_18s11.html. 22 304 U.S. at 152, n. 4. 23 U.S. CONST. amend. XIV, § 1. (“No State shall make or enforce any law which shall abridge the privi-

leges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any person within its jurisdiction the equal protection

of the laws.”). 24 U.S. CONST. amend. V. 25 U.S. CONST. amend. XIV, § 1. 26 Washington v. Glucksberg, 521 U.S. 702, 720–21(1997). 27 Moore v. East Cleveland, 431 U.S. 494, 503 (1977). 28 Id. at 762. 29 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 582 (2001).

http://press-pubs.uchicago.edu/founders/documents/a1_8_18s11.html


fundamental right is burdened, the legislation is presumed constitutional un-

less the challenging party can prove that it bears no rational relation to any

legitimate government interest whatsoever.30

The Equal Protection Clause of the Fourteenth Amendment prohibits gov-

ernment action targeted at certain groups of people without cause. In analyz-

ing equal protection cases, courts utilize a three-tiered framework.31 The

court applies a strict scrutiny analysis whenever a challenged law targets a

“suspect class.”32 Strict scrutiny requires that legislation advance a compel-

ling government interest and be narrowly tailored to advance that interest.33

An intermediate form of scrutiny is applied to laws that target a “quasi-sus-

pect class.”34 Intermediate scrutiny requires that legislation advance an im-

portant government interest and is tailored to accomplish that objective.35

Lastly, rational basis review is appropriate for legislation that does not target

suspect classes. 36

In determining whether a group qualifies as a suspect or quasi-suspect

class, the Supreme Court weighs the following factors: (1) historical discrim-

ination of the group based on stereotypes, (2) any immutable or highly visible

traits characteristic of the group, (3) any inability of the group to avail itself

of the political process, and (4) whether the group’s distinguishing traits bear

any relation to the ability of the group to contribute meaningfully to society.37

The Supreme Court has designated race, national origin, alienage, and reli-

gion as suspect classification while gender and legitimacy of birth have been

deemed quasi-suspect classifications.38 Courts disagree about whether sexual

orientation defines a suspect, quasi-suspect, or non-suspect class.39

Constitutional scholars and laypersons alike have criticized substantive

due process as an oxymoron and as a pretense for judicial legislating. As John

Hart Ely reminds, “there is simply no avoiding the fact that the word that

follows ‘due’ is ‘process.’”40 Supporters of substantive due process refute the

criticism by pointing to pre-constitutional sources that indicate that colonial

lawyers had understood due process as encompassing both procedural and

30 See Romer v. Evans, 517 U.S. 620, 631 (1996). 31 See ERWIN CHEMERINSKY CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 671–72 (3d. ed. 2006)

[hereinafter CHEMERINSKY]. 32 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 319 (1976) 33 CHEMERINSKY, 694–95. 34 BLACK’S LAW DICTIONARY 890 (9th ed. 2009). 35 Id. 36 Romer v. Evans, 517 U.S. 620, 631 (1996). 37 Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 (N.D. Cal. 2012). 38 BLACK’S LAW DICTIONARY 1584 (9th ed. 2009). 39 See infra Part II.C. 40 JOHN HART ELY, DEMOCRACY AND DISTRUST 18 (1980).


substantive rights.41 The Due Process Clause of the Fourteenth Amendment

is said to “incorporate” the first eight amendments of the Constitution and

make them applicable to the Federal Government as well as the states.42

However, the Supreme Court has held that substantive due process protects

more than the enumerated rights of the Constitution and Bill of Rights.43 The

Court has concluded that the explicit rights of the Constitution have “emana-

tions from penumbras” that protect unmentioned rights, which are associated

with explicitly mentioned rights.44 Current substantive due process jurispru-

dence furnishes virtually no theoretical or practical limitations on judges’

discretion to announce new fundamental rights. Arguably, modern substan-

tive due process, without principled limitations to judicial power, represents

an affront to the majoritarian government contemplated by the Constitution.

The Supreme Court’s use of a two-tiered Due Process analysis and three-

tiered Equal Protection analysis is also subject to criticism because of its ri-

gidity and inconsistent application.45 Under the Equal Protection Clause,

even if a class meets many traits of a suspect or quasi-suspect categorization,

if it does not meet enough to qualify for increased protection, it will receive

no exacting level of scrutiny.46 Similarly, under tiered Due Process review

heightened scrutiny is afforded only to burdens on fundamental rights.47 Alt-

hough the importance of different rights is not black and white in actuality,

current due process jurisprudence provides only two categories, fundamental

rights, which receive strict scrutiny protection and, non-fundamental rights,

which receive no special protection.48

Heightened scrutiny is said to be “strict in theory, fatal in fact” because

only rarely will a law survive heightened judicial review.49 Thus, the formal

threshold question of whether a challenged law burdens a suspect class will

often determine the outcome of a case. Perhaps in an attempt to ameliorate

some of the rigidity of the tiered-review, courts have inconsistently applied

41 Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 YALE L.J. 408, 412–13

(2010). 42 Ohio ex rel. Eaton v. Price, 364 U.S. 263, 274–75 (1960). 43 Ira C. Lupu, Untangling the Strands of the Fourteenth Amendment, 77 MICH. L. REV. 981, 1032 (1979)

(explaining that courts have used substantive due process to claim that a liberty interest is “of special

constitutional magnitude, despite a lack of persuasive linkage with structural or textually identified val-

ues.”). 44 Griswold v. Connecticut, 381 U.S. 479, 484 (1965). 45 Randall P. Ewing, Jr., Same-Sex Marriage: A Threat to Tiered Equal Protection Doctrine?, 82 ST.

JOHN’S L. REV. 1409, 1413 (2008). 46 Id. at 1415. 47 Id. 48 See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 321 (1976) (Marshall, J., dissenting) (“All interests not

‘fundamental’ and all classes not ‘suspect’ are not the same . . . .”). 49 Gerald Gunther, The Supreme Court, 1971 Term—Foreward: In Search of Evolving Doctrine on a

Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972).


the doctrine of tiered judicial review.50 Under the guise of rational basis re-

view, courts sometimes abandon the conventional three-tiered analysis to ap-

ply a more exacting judicial inquiry even when no fundamental value is com-

promised and no suspect class is targeted.51 This exacting (and arguably

underhanded) review is sometimes referred to as rational basis “with bite.”52

C. Sexual Orientation, Equal Protection, and Due Process

Today, commentators and courts disagree as to whether sexual orientation

constitutes a suspect classification and as to whether genderless marriage

constitutes a fundamental right of due process.53 In the 1986 case, Bowers v.

Hardwick, the Supreme Court held that a Georgia law criminalizing private

sodomy between consenting adults was constitutional under the Due Process

Clause.54 In Bowers, a gay man, Hardwick, was charged with violating Geor-

gia’s criminal sodomy statute.55 Although Hardwick was never prosecuted,

he challenged the constitutionality of the anti-sodomy statute in federal court

and sought a declaration that homosexual sodomy was a fundamental right

incorporated by the Due Process Clause of the Fourteenth Amendment.56 The

Court held that American history, Western tradition, and the text of the Con-

stitution provided no support whatsoever for the notion that either homosex-

ual conduct or sodomy constitutes a fundamental right.57 The Bowers Court

emphasized the legitimacy of morality as a government interest and ques-

tioned the Court’s previous legislative use of substantive due process to an-

nounce new fundamental rights.58 Following Bowers, a number of federal

courts held that homosexuality did not constitute a suspect class for equal

protection purposes.59

50 Kenji Yoshino, Why the Court Can Strike Down Marriage Restrictions Under Rational-Basis Review,

SCOTUS BLOG (Aug. 23, 2011, 8:38 AM), http://www.scotusblog.com/2011/08/why-the-court-can-

strike-down-marriage-restrictions-under-rational-basis-review/. 51 Id. 52 Id. 53 See Jeremy B. Smith, Note, The Flaws of Rational Basis with Bite: Why the Supreme Court Should

Acknowledge Its Application of Heightened Scrutiny to Classifications Based on Sexual Orientation, 73

FORDHAM L. REV. 2769, 2805 (2005) (“As the disparate case law demonstrates, the Supreme Court's

failure to articulate its rational basis with bite test or outline the circumstances in which it should be ap-

plied has led to . . . problems in subsequent equal protection jurisprudence as applied to sexual orientation

classifications.”). 54 Bowers v. Hardwick, 478 U.S. 186 (1986). The Equal Protection Clause was not at issue in the case.

See generally id. 55 Bowers, 478 U.S. at 187–88. 56 Id. at 188–89, 191. 57 See id. at 192–94. 58 Id. at 194–96. 59 See, e.g., Thomasson v. Perry, 80 F.3d 915, 950–51 (4th Cir. 1996) (en banc); High Tech Gays v. Def.


In 1992, Colorado voters passed Amendment 2 to the state constitution,

which prohibited any legislative, executive, or judicial action to recognize

gay, lesbian, or bisexual individuals as a protected class.60 The statewide ref-

erendum would have negated local ordinances prohibiting discrimination on

the basis of sexual orientation in housing, employment, education, public ac-

commodations, health care, and welfare services.61 Soon after the adoption

of Amendment 2, a number of gay and lesbian persons, among others, chal-

lenged the validity of the amendment on due process and equal protection

grounds in Evans v. Romer.62 On appeal, the Supreme Court of Colorado held

that Amendment 2 did not survive strict scrutiny because it denied gays and

lesbians the fundamental right to participate in the political process without

any compelling purpose.63

In a 6-3 decision authored by Justice Kennedy, the Supreme Court of the

United States upheld the Colorado Supreme Court’s ruling, but tested

Amendment 2 under the rational basis standard.64 Justice Kennedy did not

address government interests articulated in support of the Amendment, find-

ing that Amendment 2 imposed “a broad and undifferentiated disability on a

single named group”65 and “raise[d] the inevitable inference that the disad-

vantage imposed is born of animosity toward the class of persons affected.”66

In essence, the Court avoided the question of whether Amendment 2 ad-

vanced any legitimate government interests by concluding that any such in-

terests are disingenuous because the true motivating factor behind the amend-

ment was “a bare . . . desire to harm” gays and lesbians.67

Justice Scalia wrote a dissent, joined by Chief Justice Rehnquist and Jus-

tice Thomas, in which he argued that Amendment 2 did not infringe on ho-

mosexuals’ constitutional rights and attacked Justice Kennedy’s reasoning on

several fronts.68 The dissent asserts that Amendment 2 does not deny gays

and lesbians the right to participate in government, since that right is already

guaranteed them; rather it is aimed at blocking homosexuals from obtaining

preferential treatment in practice and to prevent a piecemeal deterioration of

Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454,

464–65 (7th Cir. 1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v.

Webster, 822 F.2d 97, 103 (D.C. Cir. 1987). 60 COLO. CONST., art. II, § 30b. 61 Romer v. Evans, 517 U.S. 620, 623–24 (1996). 62 Evans v. Romer, 1993 WL 518586, at *1 (D. Colo. 1993). 63 Romer, 517 U.S. at 625. 64 Id. at 631–32. 65 Id. at 632. 66 Id. at 634. 67 See id. 68 Romer v. Evans, 517 U.S. 620, 636–53 (1996) (Scalia, J., dissenting).


sexual morality.69 Justice Scalia scorned Kennedy’s opinion as “long on

emotive utterances and so short on relevant legal citation”70 and in direct op-

position to the Court’s holding in Bowers v. Hardwick.71 The dissent con-

cluded that the majority’s opinion “has no foundation in American constitu-

tional law” and that Amendment 2 satisfies the rational basis test because it

advances a legitimate state purpose.72

In Lawrence v. Texas, the United States Supreme Court explicitly over-

turned its previous ruling in Bowers.73 In 1998, Lawrence and Garner were

charged with the misdemeanor of engaging in homosexual sodomy under

Texas law.74 Two Texas courts held that the statute making sodomy a misde-

meanor were Constitutional.75 Subsequently, the Supreme Court of the

United States agreed to hear the case.76 Justice Kennedy authored the major-

ity opinion, which declared that adults have a fundamental right to privacy in

their consensual sexual conduct.77 He reasoned that there was “an emerging

awareness” of liberty among the public and in case law that justified extend-

ing the reach of the Constitution to protect conduct previously unprotected.78

Furthermore, the majority held that “the fact that the governing majority in a

State has traditionally viewed a particular practice as immoral is not a suffi-

cient reason for upholding a law prohibiting the practice.”79

Justice O’Connor agreed that the Texas statute was unconstitutional, but

disagreed with the majority’s overruling of Bowers.80 Justice O’Connor

would not have invoked the Due Process Clause, but would have held that

the law violated the Equal Protection Clause because the statute targeted one

group. 81 Although the Texas statute, on its face, targets conduct, it triggers

an equal protection analysis because “‘there can hardly be more palpable dis-

69 Id. at 638–39, 653. 70 Id. at 639. 71 Id. at 636. 72 Id. at 653. 73 Lawrence v. Texas, 539 U.S. 558 (2003). 74 Id. at 563 (citing Tex. Penal Code § 21.06(a)). 75 Lawrence v. State, 41 S.W. 3d 349 (Tex. 2001). 76 Lawrence, 539 U.S. at 564. 77 Id. at 578. 78 See id. at 559. 79 Id. at 577 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)). 80 Id. at 582–83 (O’Connor, J., concurring). 81 See Lawrence, 539 U.S. at 582.


crimination against a class than making the conduct that defines a class crim-

inal.’”82 She argued that moral disapproval is not a legitimate government

interest for equal protection purposes.83

Justice Scalia authored an aggressive dissent, joined by Chief Justice

Rehnquist and Justice Thomas. The dissent argued that the majority was hyp-

ocritical in their lack of respect for the doctrine of stare decisis.84 Justice

Scalia contended that the members of the Lawrence majority were not fol-

lowing their own stare decisis test they articulated as the majority in Planned

Parenthood v. Casey.85 The dissent noted that an “emerging awareness” is,

by definition, not ‘deeply rooted in this Nation’s history and tradition[s].’”86

Therefore, sodomy is not a fundamental right pursuant to due process juris-

prudence. The dissent found the notion that morality cannot serve as a legit-

imate government interest nonsensical as “The law . . . is constantly based on

notions of morality.”87 Justice Scalia also tackled Justice O’Connor’s equal

protection analysis. The Texas anti-sodomy statute, he asserted, is applied

evenly to everyone because everyone is prohibited from having deviate sex-

ual intercourse with someone of the same-sex, regardless of sex.88 Justice

O’Connor’s belief that legislation cannot prohibit conduct that defines a class

could invalidate any law.89 For example, Justice Scalia suggests that laws

against public nudity would, under Justice O’Connor’s test, unconstitution-

ally burden nudists as a class.90

D. Recent Supreme Court Jurisprudence on Same-Sex Marriage

On December 7, 2012, the U.S. Supreme Court agreed to hear Hol-

lingsworth v. Perry (formerly Perry v. Schwarzenegger then Perry v. Brown)

and Windsor v. United States.91 In Hollingsworth, the plaintiffs sought to in-

validate a state constitutional amendment, Proposition 8, which defines state

marriage as only between opposite-sex couples.92 The plaintiffs in Windsor

82 Id. at 582 (quoting Romer v. Evans, 517 U.S. 620, 641 (1996) (Scalia, J., dissenting) (quoting Padula v.

Webster, 822 F.2d 97, 103 (D.C.C. 1987))). 83 Lawrence, 539 U.S. at 582. 84 See id. at 587 (Scalia, J., dissenting). 85 Id. 86 Id. at 598. 87 Id. at 590. 88 Id. at 599. 89 Lawrence, 539 U.S. at 600–01. 90 Id. at 601. 91 Hollingsworth v. Perry, 133 S. Ct. 786, 786 (2012); United States v. Windsor, 133 S. Ct. 786, 786–87

(2012). 92 See Perry v. Brown, 671 F.3d 1052, 1063 (9th Cir. 2012).


sought to invalidate a portion of the federal Defense of Marriage Act

(“DOMA”), which defines marriage as between one woman and one man.93

In November 2008, California voters passed Proposition 8 entitled “Cali-

fornia Marriage Protection Act.”94 The measure was designed, in part, to re-

verse a California Supreme Court ruling95 that held that the California Con-

stitution guaranteed same-sex couples the right to marry.96 Proposition 8

amended the California Constitution by adding a provision to Section 7.7 of

the Declaration of Rights stipulating that “[O]nly marriage between a man

and a woman is valid or recognized in California.”97 Plaintiffs, Kristin Perry

and Sandra Stier, a lesbian couple, and Paul Katami and Jeffrey Zarillo, a gay

couple, filed suit in the Northern District of California after the county clerks

of their respective counties denied their applications for marriage licenses.98

The plaintiffs argued that Proposition 8 violates the Due Process Clause

and the Equal Protection Clause of the United States Constitution.99 More

specifically, the plaintiffs alleged that the Due Process and Equal Protection

Clauses guarantee individuals the right to choose a marriage partner regard-

less of gender and that Proposition 8 violates that fundamental right and dis-

advantages a suspect class: gays and lesbians.100 Proponents of Proposition

8 argue that, “while gays have the right to their private lives, they do not have

the right to redefine marriage for everyone else.”101 Advocates for Proposi-

tion 8 further assert that marriage between one man and one woman is fun-

damentally different than committed relationships between same-sex couples

and that by conflating marriage with same-sex unions, the state weakens fam-

ily stability.102

Citing to Lawrence v. Texas and Everson v. Board of Education, the trial

judge, Vaughn R. Walker, held that state governments have no interest in

93 See Windsor, 133 S. Ct. at 2682. 1 U.S.C. § 7 (2012) provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the

various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal

union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a

person of the opposite sex who is a husband or a wife. 94 California Gay Marriage Banned as Proposition 8 Passes, HUFF POST, Nov. 5, 2008, http://www.huff-

ingtonpost.com/2008/11/05/california-gay-marriage-b_n_141429.html. 95 Hollingsworth, 130 S. Ct. at 707. 96 In re Marriage Cases, 183 P.3d 384, 433–34 (Cal. 2008). 97 CAL. CONST. art. I, § 7.5. 98 Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 927 (N.D. Cal. 2010). 99 Id. at 929. 100 Id. 101 Ballot Argument for Proposition 8, CAL. GEN. ELECTION, http://voterguide.sos.ca.gov/past/2008/gen-

eral/argu-rebut/argu-rebutt8.htm. 102 Perry, 704 F. Supp. 2d at 930–31.


enforcing moral beliefs; that only secular purposes are constitutional.103

Judge Walker found that marriage in the United States has traditionally been

limited to opposite-sex couples because of traditional gender roles in society

and in marriage, and not because of ability or willingness to procreate.104 He

found that “same-sex couples are situated identically to opposite-sex couples

in terms of their ability to perform the rights and obligations of marriage un-

der California law.”105 Thus, Judge Walker concluded that the plaintiffs’ de-

sire to have the state recognize their committed same-sex relationship as mar-

riage fulfills the Due Process Clause’s demand that fundamental rights be

rooted “in our Nation’s history, legal traditions, and practices.”106 The dis-

trict court held that the state interests advanced by Proposition 8 did not meet

the requirements of strict scrutiny triggered by the plaintiffs’ fundamental

right to marry.107

The trial court also found Proposition 8 to be unconstitutional on Equal

Protection grounds because it discriminates according to sexual orientation

without providing an adequate government objective to survive even rational

basis review.108 In holding that Proposition 8 infringes on the plaintiffs’

Equal Protection rights, Judge Walker considered the following interests ad-

vanced by the defense, finding them all illegitimate: (1) preserving tradition,

(2) proceeding with caution in implementing social change, (3) promoting

opposite-sex parenting, (4) protecting the freedoms of those who oppose

same-sex marriage, and (5) that different names should be used for different

things.109

California’s government refused to appeal the decision, so private parties

intervened to defend Proposition 8 on appeal.110 The Court of Appeals for

the Ninth Circuit affirmed the holding of district court, but on narrower

grounds,111 perhaps as a tactic aimed at avoiding Supreme Court review of

their decision. The Ninth Circuit did not consider whether defining marriage

103 Id. 104 Id. at 993. 105 Id. 106 Id. at 992–93 (quoting Washington v. Glucksberg, 521 U.S. 702, 710 (1997)). 107 Perry, 704 F. Supp. 2d at 995. The Court also considered whether the availability of registered domestic

partnerships fulfills California’s due process obligation to same-sex couples. Perry, 704 F. Supp. 2d at

993-94. The Court determined that “[o]ne of the ‘core elements of th[e] fundamental right to marry is the

right of same-sex couples to have their official family relationship accorded the same dignity, respect, and

stature as that accorded to all other officially recognized family relationships.’” Perry, 704 F.Supp.2d at

994, citing In re Marriage Cases, 183 P.3d 384, 434 (Cal. 2008). According to the court, domestic part-

nerships were afforded less dignity than were marriages. See id. 108 Id. at 997–98. 109 Id. at 998–1001. 110 See Hollingsworth v. Perry, 507 U.S. 2652, 2652 (2013). 111 See generally Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012).


as between a man and a woman had rational or compelling objectives in gen-

eral, but held instead that since California law furnishes same-sex couples all

the same rights as married couples through civil unions, Proposition 8 could

advance no rational interest in California.112 The court found that Proposition

8 affected no rights or responsibilities of same-sex couples under California

law and therefore only denied such couples the right to use the designation

of “marriage” to define their relationship.113 But, the court noted, “Whether

under the Constitution same-sex couples may ever be denied the right to

marry, a right that has long been enjoyed by opposite-sex couples . . . [w]e

need not and do not answer . . .”114

The Supreme Court of the United States, through Chief Justice Roberts,

held that neither the Ninth Circuit nor the Supreme Court had power to hear

the Proposition 8 case.115 The Chief Justice wrote, “We have never before

upheld the standing of a private party to defend the constitutionality of a state

statute when state officials have chosen not to. We decline to do so for the

first time.”116 The California government officials named in Hollingsworth

refused to enforce or defend Proposition 8 in court and private parties inter-

vened.117 The majority thought that interveners hadn’t sufficient ties to the

state government to have standing.118 Justice Kennedy, joined by three other

justices, wrote a dissent.119 The dissent calls attention to the fact that the ini-

tiative process by which Proposition 8 passed oversteps state officials.120 The

people of California voted for Proposition 8.121 Thus, the dissent reasons, it

doesn’t make sense that state officials should decide the fate of a law passed

without their involvement.122

Edith Windsor, the surviving partner of a same-sex married couple, was

denied the benefit of the spousal deduction for federal estate taxes123 because

Section 3 of the Defense of Marriage Act does not recognize same-sex mar-

riage for legal purposes.124 As a result, the plaintiff had to pay $363,053 in

estate taxes, which would have been deductible for the surviving spouse of a

112 Id. at 1063. 113 Id. at 1064. 114 Id. (emphasis in original). 115 Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013). 116 Id. at 2668. 117 Id. at 2660. 118 See id. at 2667. 119 Id. at 2668. 120 Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013). 121 Id. at 2659. 122 Id. at 2671. 123 26 U.S.C. § 2056(a) (2006). 124 Windsor v. United States, 699 F.3d 169, 175 (2d Cir. 2012).


legally sanctioned opposite-sex marriage.125 Edith Windsor subsequently

filed suit in the Southern District of New York to challenge the constitution-

ality of section 3 of DOMA as denying her equal protection of the laws.126

The House Judiciary Committee’s Report on DOMA specified that defin-

ing “marriage” as between one woman and one man made “explicit what has

always been implicit.”127 The Report advanced four government interests in

support of the codified definition of marriage: “(1) defending and nurturing

the institution of traditional, heterosexual marriage; (2) defending traditional

notions of morality; (3) protecting state sovereignty and democratic self-gov-

ernance; and (4) preserving scarce government resources.”128 The Bipartisan

Legal Advisory Group (or BLAG) intervened to defend the constitutionality

of Section 3 of DOMA when President Obama and the Department of Justice

declined to defend the suit, asserted four legitimate government interests that

the statute advanced: (1) caution about redefining marriage, (2) promotion of

the ideal family structure for childrearing and procreation, (3) maintenance

of consistency and uniformity of federal benefits, and (4) conserving govern-

ment resources.129

The United States District Court for the Southern District of New York

declined to decide whether homosexuals constitute a suspect class, but held

that Section 3 of DOMA was unconstitutional under the Equal Protection

Clause of the Fourteenth Amendment.130 After finding the plaintiff did have

standing,131 the trial court rejected the legitimacy of each of the four govern-

ment objectives set forth by BLAG and found, therefore, that Section 3 of

DOMA failed rational basis scrutiny.132

The Second Circuit concluded that review of Section 3 of DOMA required

intermediate scrutiny because, in the court’s view, sexual orientation quali-

fied as a quasi-suspect class.133 The court asserted that gays and lesbians have

been historically subject to invidious discrimination, that homosexuals’ class

characteristic bears no relation to their ability to perform or contribute to so-

ciety, that homosexuality is sufficiently discernible to define a discrete mi-

nority class, and that the relatively small number of homosexuals lack enough

political power to protect themselves from the majoritarian public.134 The

125 Id. at 176. 126 Windsor v. United States, 833 F. Supp. 2d 394, 397 (S.D.N.Y. 2012). 127 Id. at 396. 128 Id. at 396–97. 129 Id. at 403–06. 130 Id. at 402. 131 Id. at 399. 132 Windsor, 833 F. Supp. 2d at 402. 133 Windsor, 699 F.3d at 176. 134 Id. at 182–85.


Second Circuit concluded that the political purposes advanced in favor of

DOMA were insufficient to survive intermediate scrutiny.135

In a 5-4 decision, the United States Supreme Court affirmed. After a tan-

gential discussion of federalism, Justice Kennedy, writing for the majority,

found that DOMA “deviat[ed] from the usual tradition of recognizing and

accepting state definitions of marriage . . . to deprive same-sex couples of the

benefits and responsibilities that come with the federal recognition of their

marriages.”136 This “unusual deviation”137 from tradition combined with

snippets of legislative history were, for the majority, evidence enough that

Congress’ intent was to invidiously “demean” same-sex spouses.138 Thus, the

majority concludes, although in a muddled sort of way, that DOMA infringes

on equal protection grounds, which are contained within the liberty protected

by the Fifth Amendment.139 Justice Kennedy’s opinion includes no explana-

tion of how same-sex marriage is deeply rooted in American history and tra-

dition140 and implicit in the concept of ordered liberty141 as normally required

by substantive due process analysis, nor does he attempt to justify his depar-

ture from that established jurisprudence and theory.

Chief Justice Roberts dissented, seeing no sinister motive in Congress’ de-

cision to define marriage as between opposite-sex couples.142 The states that

began to extend marriage to same-sex couples were the ones unusually devi-

ating from the norm at the time. The man-woman nature of traditional mar-

riage was, as the majority articulated it, “thought of by most people as essen-

tial to the very definition of [marriage] and to its role and function throughout

the history of civilization.”143 Chief Justice Roberts effectively undercuts

Justice Kennedy’s silly premise that DOMA breaks with tradition. And, he

says, even if it did, it would not adequately “support a conclusion that the

‘principle purpose’ of the 342 Representatives and 85 Senators who voted for

it, and the President who signed it, was a bare desire to harm.”144

Justice Scalia also filed a dissenting opinion, arguing that the Court’s rul-

ing unjustifiably aggrandizes the Court’s power at the expense of democ-

racy.145 Justice Scalia would have held that Edith Windsor did not have

135 Id. at 185. 136 Windsor, 133 S. Ct. at 2693. 137 Id. 138 Id. at 2695. 139 Id. at 2693. 140 Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997). 141 Moore v. East Cleveland, 431 U.S. 494, 549 (1977). 142 Windsor, 133 S. Ct. at 2696 (Roberts, C.J., dissenting). 143 Id. 144 Id. 145 See id. at 2697 (Scalia, J., dissenting).


standing before the Court.146 Still, he goes on to address the majority’s merits

holding too, calling it’s reasoning “rootless and shifting.”147 Justice Scalia is

irked that Justice Kennedy’s decision uses equal protection cases interpreting

the Fourteenth Amendment to supposedly support the notion that the Fifth

Amendment protects “moral and sexual choices” like same-sex marriage.148

Furthermore, Justice Scalia indicates that an attempt to argue that same-sex

marriage is deeply rooted in American history and tradition and necessary for

an ordered conception of liberty would be “absurd.”149 He also argues that,

if Windsor is an equal protection case, the majority failed to settle a central

question, whether DOMA is to be reviewed for more than mere rationality.150

Justice Scalia seems to think that the main gist of the majority opinion is not

to justify the holding with reason, as it ought to be, but makes a power play

to set up future power plays.151 In so doing, Justice Scalia believes that the

majority “cheat[s] both sides, robbing the winners of an honest victory, and

the losers of the peace that comes from a fair defeat.”152

Justice Alito dissented too, arguing that the majority’s opinion misses the

point by failing to recognize that the Constitution does not dictate what mar-

riage is.153 In his view, the definition of marriage is salient and emotional,

but that the Constitution leaves that decision to the majoritarian political pro-

cess.154 Justice Alito echoes Justice Scalia’s concern that same-sex marriage

is not a Constitutional right because it is not firmly rooted in the Nation’s

history; indeed, no state permitted same-sex marriage until 2003.155 The ma-

jority then seeks not to protect a right under the Constitution, but to proclaim

a new right independent of the Constitution.156 Moreover, Justice Alito says

that if experts can’t predict the ramifications of gay marriage, judges certainly

are not equipped to arbitrate the matter or to say that proponents of DOMA

had no valid reasoning.157

Justice Kennedy’s opinion suffers from incoherence and severe under-ex-

planation. The majority’s disregard for decades of established jurisprudence

146 Id. at 2705. 147 Windsor, 133 S. Ct. at 2705 (Scalia, J., dissenting). 148 See id. at 2706. 149 Id. at 2707. 150 Id. at 2706. 151 Id. at 2700. 152 See Windsor, 133 S. Ct. at 2711 (Scalia, J., dissenting). 153 Id. at 2711 (Alito, J., dissenting). 154 Id. 155 Id. at 2715. 156 Id. 157 Windsor, 133 S. Ct. at 2716 (Alito, J., dissenting).


without even a superficial explanation amounts almost to intellectual dishon-

esty. Even worse, the majority put forth no positive theory for analyzing

equal protection and due process cases (or is this a case on federalism?).158

Justice Kennedy’s opinion in Windsor suggests that there is no need to estab-

lish the appropriate level of scrutiny in substantive due process or equal pro-

tection cases. His opinion fails to justify his implicit belief that the Constitu-

tion is inconsistent with all political theories that would accommodate

gendered civil marriage or that his political theory should win the day. Ap-

parently, there is no need for courts to even consider the merits of the serious

legal, historical, philosophical, and scientific justifications put forth by the

other side.

The majority’s slapdash conclusion that DOMA was enacted simply to

harm LGBT persons left me wondering if the justices were reading off the

same record as I was. Did they simply divine the motives of the lawmakers?

Maybe the majority’s opinion suggests that justices need not include in their

written opinions their reasoning for straying from established jurisprudence

nor do they need to replace the legal theory they subtly swept aside in coming

to their decision. What then are the theoretical limits on the Court’s power to

continually add new “rights” to the Constitution without a proper amendment

to the Constitution?

III. LIBERALISM IN AMERICA

Liberalism arose as a distinct political theory with the writings of John

Locke,159 who contended that government does not acquire legitimacy from

divine will, but from the common consent of the governed.160 Locke asserted

that people are naturally free and equal, subject to the law of nature.161 For

him, government was a product of a social contract among citizens.162 As

such, the only legitimate purpose of government is to restrain transgressors

from invading citizens’ God-given rights to life, liberty, and property.163 John

Locke might be called the intellectual father of the American Constitution.164

158 Taking words from Richard Posner, I would say that Justice Kennedy’s majority opinion “fails to

measure up to professional expectations regarding judicial opinions.” RICHARD POSNER, SEX AND

REASON 431 (First Harvard University Press 1992). 159 R. KENNETH GODWIN & FRANK R. KEMERER, SCHOOL CHOICE TRADEOFFS: LIBERTY, EQUITY, AND

DIVERSITY 12 (2002). 160 See generally JOHN LOCKE, TWO TREATISES OF GOVERNMENT 48–186 (London 1821). 161 Id. at 189 (“To understand political power right . . . we must consider what state all men are naturally

in, and that is, a state of perfect freedom . . . A state also of equality . . . .”). 162 See id. at 191–92. 163 Id. 164 See DAVID W. MINAR, IDEAS AND POLITICS: THE AMERICAN EXPERIENCE 47 (1964) (footnote omitted)


Certainly, the American Revolution was influenced by other political philos-

ophers such as Blackstone, Hume, Montesquieu, Paine, Rousseau, Sidney,

and Adam Smith; but John Locke’s thought was at the very heart of the Dec-

laration of Independence and, subsequently, the Constitution.165 Locke’s the-

ory and emphasis on liberty are implicit throughout the Declaration of Inde-

pendence and the Constitution.166

American government goes beyond Locke’s theory in at least two im-

portant respects. First, the Constitution embraces a balancing of the political

branches, rather than legislative supremacy as Locke preferred.167 Second, to

ensure government’s accountability to the people, the American system of

government adds elections and judicial review to Locke’s right of revolu-

tion.168 Perhaps Thomas Jefferson did not see eye to eye with Locke on the

natural right of property, since in the Declaration of Independence replaces

Locke’s “estate” with “the pursuit of happiness.”169 Still, the United States is

very much a liberal society after the tradition of John Locke. Republicans and

Democrats are, in a historical sense, liberal because of their emphasis on po-

litical rights. As Americans, we are accustomed to talking about rights and

we hold liberty close to our hearts. Surely then, our search for what the Con-

stitution says about gendered marriage should begin and end within the realm

of liberal theory, rather than some other strain of political philosophy.

After John Locke’s classical liberalism, the next great western moral the-

ory was Utilitarianism. Utilitarians mocked Locke’s notion of natural rights,

calling it “nonsense upon stilts.”170 For Utilitarians, the highest moral objec-

tive was to maximize the overall happiness in the world by increasing pleas-

ure and decreasing pain.171 John Stuart Mill, perhaps the greatest utilitarian

thinker, argued that liberty was instrumental in obtaining the goal of maxim-

izing pleasure over pain. He wrote, “the only purpose for which power can

be rightfully exercised over any member of a civilized community, against

his will, is to prevent harm to others.”172 But, according to Mill, when liberty

(“[Locke’s] importance for American political thought can hardly be overestimated; indeed, there is prob-

ably no better short summary of the ideas of Locke than the American Declaration of Independence.”). 165 See Donald L. Doernberg, We the People: John Locke, Collective Constitutional Rights, and Standing

to Challenge Government Action, 73 CAL. L.R. 52, 58 (1985). 166 See id. at 64–66. 167 Id. at 58. 168 Id. at 67. 169 Compare THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776), with JOHN LOCKE, TWO

TREATISES OF GOVERNMENT 259 (London 1821). 170 See JEREMY BENTHAM, NONSENSE UPON STILTS AND OTHER WRITINGS ON THE FRENCH REVOLUTION,

in THE COLLECTED WORKS OF JEREMY BENTHAM: RIGHTS, REPRESENTATION, AND REFORM: NONSENSE

UPON STILTS AND OTHER WRITINGS ON THE FRENCH REVOLUTION 317–401 (Schofield et al eds. 2002). 171 MICHAEL SANDEL, JUSTICE: WHAT’S THE RIGHT THING TO DO? 34 (2009). 172 JOHN STUART MILL, ON LIBERTY 23 (American Psychological Association 2012) (1871).


conflicts with maximizing overall happiness in the long run, it may be re-

stricted.173 He thought that protection of liberty of expression,174 protection

against a tyranny of the majority,175 and protection of certain other liberty

interests were necessary to maximize social utility in the long run, although

such liberties might diminish utility in the short run. Utilitarianism resonated

with people because it emphasized the common currency of pleasure as the

legitimate basis for lawmaking. Today, this utilitarian influence is still par-

ticularly manifest in the school of Law and Economics, which resolves legal

questions through cost-benefit analyses.176

Since John Locke and John Stuart Mill, no liberal philosopher set forth a

comprehensive theory of liberalism until John Rawls published A Theory of

Justice in 1971, which attempts to discover what rights we have against one

another from first principles.177 Rawls argues that liberty is the ultimate po-

litical good, subject only to the condition that all people have the same lib-

erty.178 To determine how this “priority of liberty” pans out in government,

Rawls proposes that we engage in a thought experiment.179 He proposes that

we imagine we are gathered together to establish a new political constitution,

but—and here is the catch—we know nothing about our tastes, talents, inter-

ests, or life circumstances; we are behind a veil of ignorance.180 The social

and economic institutions we would all reasonably agree upon in this “origi-

nal position” are those that would exist in Rawls’ ideal society.

In the original position, Rawls argues, we would choose to maximize the

wellbeing of the worst-off members of society.181 Property is allocated ac-

cording to merit only to the extent that it makes the worst off person better

off.182 Otherwise, A Theory of Justice rejects desert as a legitimate method

of allocating property or liberty because people don’t deserve their talents or

their other birth circumstances.183 Regardless, the goal of maximizing liberty,

173 Id. at 25–26. Mill asserts that the rule that liberty can only be restricted to prevent harm to others does

not apply to children and “barbarians” in “backward states of society.” Id. at 23–24. 174 See id. at 31–32. 175 Id. at 13. 176 Steven G. Medema, Sidgwick’s Utilitarian Analysis of Law: A Bridge from Bentham to Becker?, 9 AM.

L. & ECON. REV. 30, 30–31 (2007). 177 See ALAN RYAN, THE MAKING OF MODERN LIBERALISM 505–06 (2012). 178 See JOHN RAWLS, A THEORY OF JUSTICE 53 (Harvard Univ. Press rev. ed. 1999) (1971). 179 Id. at 130, 142. 180 Id. at 142. 181 See id. at 86–90. 182 Cf. id. at 88–92. 183 See ALAN RYAN, THE MAKING OF MODERN LIBERALISM 513 (2012).


so long as everyone has equal liberty, takes precedence over the goal of eco-

nomic equality in Rawls’ liberal theory.184 Rawls believes that we can sacri-

fice freedom for the sake of freedom, but never for welfare—well, sort of.185

The notion that we can only restrict freedom only for more freedom hardly

survives scrutiny when we think about criminal law, for example.186 Surely,

serial burglars shouldn’t be free to burglarize or serial rapists free to rape.

Rawls admits this much, that sometimes the absolute prioritization of liberty

over welfare, virtue, and equality is untenable.187 He asserts that some people

are simply not in a position to make good use of their liberty and therefore

government is justified in limiting such persons’ liberty to make their free-

dom more meaningful for their own lives.188 With that concession though,

the simplicity of Rawls’ theory collapses. Criminals do not use their freedom

well, but the same is true for gluttons, cheaters, and addicts, all of whom are

detrimental to others, to the community. A Theory of Justice seems rather

inept to deal with the negative effects of immorality on the collective well-

being.

The so-called communitarian school of thought rejected Rawlsian modern

liberalism as too individualistic.189 Communitarians point out that making

political decisions from the original position is to base policies on an unreal-

istic notion of the self.190 A constitution that treats people as somehow sepa-

rated from morality is not a constitution for people, but for robots. They argue

against a politics of individual rights in favor of a politics of the common

good, in which “even coercive measures would be permitted if they expressed

the community’s common view of the public good.”191 Communitarians and

their allies see modern liberalism as contributing to new phenomena like un-

bridled greed, high divorce rates, and loneliness.192 Communitarians assert

that modern liberalism undermines social institutions and families by encour-

aging a “me first” attitude, by underestimating human interconnectedness,

and by failing to account for the common desire for a purpose greater than

oneself.193

184 See id. at 512–13. 185 Id. at 514–17. 186 See id. at 516–17. 187 See id. at 517. 188 Id. 189 Kraig James Powell, The Other Double Standard: Communitarianism, Federalism, and American Con-

stitutional Law, 7 SETON HALL CONST. L.J. 69, 72 (1996). 190 Id. at 72–73. 191 Id. at 72. 192Communitarianism, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (2012), available at http://plato

.stanford.edu/archives/spr2012/entries/communitarianism/. 193 See id.


In response to the communitarian challenge, liberals have advanced two

objections. First, liberals assert either that no common good exists or that the

common good is not knowable.194 Moreover, they say, even if the common

good of a community is knowable, it is difficult to define a relevant commu-

nity of shared ends.195 Second, liberals accuse communitarianism of endors-

ing excessive constraints on individual freedom.196 Liberals recognize that

individuals are not bound to any set of characteristics; rather all persons have

a capacity to revise their moral allegiances.197 Therefore, liberals conclude,

the communitarian approval of state coercion prevents individuals from real-

izing the self-definition and self-expression that are central to their identities

and wellbeing.198

Communitarians respond to the first liberal protest—that no common good

exists—by pointing out that, despite the existence of moral plurality, there is

plenty of consensus to pass laws and form a political community.199 Even

when there is no moral consensus, divergent views converge to support par-

ticular policy measures. Communitarians, however, have yet to adequately

respond to the second liberal challenge: that communitarianism condones ex-

cessive intrusion upon individual rights. Although communitarian voices

have largely faded in academia, the vague sentiment that modern liberalism

neglects community lingers on.

Rather than engage in moral debates, modern liberals tend to defer to

moral “neutrality” in policymaking. Barack Obama has commented, in a

communitarian vein, that he regrets having invoked neutrality in response to

attacks against his morality and religion.200 He said:

[S]ecularists are wrong when they ask believers to leave their religion at the door

before entering into the public square. Frederick Douglas, Abraham Lincoln,

William Jennings Bryant, Dorothy Day, Martin Luther King—indeed, the ma-

jority of great reformers in American history—were not only motivated by faith,

but repeatedly used religious language to argue for their cause. So to say that

men and women should not inject their “personal morality” into public policy

debates is a practical absurdity. Our law is by definition a codification of moral-

ity, much of it grounded in the Judeo-Christian tradition.201

194 Powell, supra note 189, at 74–75. 195 Id. at 75. 196 Id. at 78. 197 Id. 198 Id. 199 Id. at 77–78. 200 See Barack Obama, Keynote Address at the Call to Renewal’s Building a Covenant for a New America

Conference (June 28, 2006), available at http://obamaspeeches.com/081-Call-to-Renewal-Keynote-Ad-

dress-Obama-Speech.htm; see also SANDEL, supra note 171, at 245. 201 Obama, supra note 200; SANDEL, supra note 171, at 246.


He also counseled fellow progressives that, “Our fear of getting ‘preachy’

may also lead us to discount the role that values and culture play in some of

our most urgent social problems . . . [which are] rooted in . . . the imperfec-

tions of man.”202 Communitarianism recognizes that a law that corrupts mor-

als or morality fostering social institutions ultimately corrupts freedom. If

bankers are greedy, they will need financial regulation, which inhibits free-

dom and makes for greater transactional costs in finance. Populations with a

weak public conception of marriage will have fragmented families.203 The

more we are unable to voluntarily make virtuous choices, the more we need

the law to restrict us. Despite the faults of Communitarianism, it resonated

with people because it appreciated the common sentiment that the condition

of American communities had declined since the rise of modern liberalism.

Marxist and libertarian thinkers have also criticized modern liberalism.

Marxists argue that Rawls builds his theory on the false premise that people

are rational individuals who pursue their own interests.204 For socialists, peo-

ple don’t need financial incentives to develop and use their talents for the

good of society. Libertarians like Robert Nozick, believe that individuals

have an absolute right to property ownership.205 According to libertarians,

taxation is akin to forced labor.206 Pure libertarians argue that taxation is only

legitimate to the extent necessary to enable government to protect its citizens’

life, liberty, and property.207

Despite the criticisms of Rawls’ theory of justice, it remains today the

philosophical foundation of modern liberalism. Robert Nozick, Rawls’ fierc-

est competitor, wrote:

A Theory of Justice is a . . . systematic work in political and moral philosophy

which has not seen its like since the writings of John Stuart Mill . . . it is impos-

sible to finish his book without a new and inspiring vision of what a moral theory

may attempt to do and unite; of how beautiful a whole theory can be.208

Modern liberalism in the United States has departed from the classical lib-

eralism as founded by John Locke in the Seventeenth Century. Libertarian-

ism has, in many ways, taken up the flag of classical liberalism, emphasizing

a call for minimal government. Contemporary American politics largely rep-

resent an ideological battle between conservatives, who tend to favor a ver-

202 Obama, supra note 200; SANDEL, supra note 171, at 246. 203 See infra Part VI. 204 SANDEL, supra note 171, at 220. 205 Id. at 63–65. 206 Id. at 65. 207 Id. at 60. 208 ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 183 (1974).


sion of classical liberalism, and liberals, who tend to favor a version of mod-

ern liberalism.

IV. MORAL LIBERALISM

Political theory influences the way courts interpret the United States Con-

stitution in two ways.209 First, a judge’s political ideology largely determines

how the judge will interpret the Constitution. Five sources have guided

judges’ interpretation of the Constitution: (1) the text and internal structure;

(2) the intentions of those who drafted and ratified the relevant provision; (3)

prior precedent; (4) the social, political, and economic consequences of alter-

native interpretations, and (5) natural law. 210 Today, judges rarely invoke

natural law theory to support their holdings, although the Framers were heav-

ily influenced by natural law.211 There is substantial debate over the relative

weight that judges ought to afford original understanding, prior precedent,

and the social, political, and economic consequences of alternative interpre-

tations.212 The Constitution itself gives no direction as to how judges are to

interpret the supreme law. Furthermore, much of the Constitution, including

the Fifth and Fourteenth Amendments, is written in broad, moral language,

leaving ample room for differing interpretations.213 Libertarians and con-

servatives tend to understand their worldviews as coinciding with an original-

ist mode of constitutional interpretation while liberals commonly emphasize

social, political, and economic consequences of alternative interpretations.

214

209 Of the influence of political and economic theory on law, John Maynard Keynes wrote:

[T]he ideas of economists and political philosophers, both when they are right and when

they are wrong, are more powerful than is commonly understood. Indeed the world is ruled

by little else. Practical men, who believe themselves to be quite exempt from any intellec-

tual influences, are usually the slaves of some defunct economist [and, I would add, polit-

ical theorists] . . . I am sure that the power of vested interests is vastly exaggerated com-

pared with the gradual encroachment of ideas.

JOHN MAYNARD KEYNES, THE GENERAL THEORY OF EMPLOYMENT INTEREST AND MONEY 383 (1936). 210 Doug Linder, Theories of Constitutional Interpretation, EXPLORING CONSTITUTIONAL CONFLICTS

(2013) (Nov. 4, 2013, 4:00 PM), http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html. 211 Id. 212 Id. 213 RONALD DWORKIN, FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 7

(1996). 214 But see Richard A. Posner, What Am I? A Potted Plant? The Case Against Strict Constructionism, THE

NEW REPUBLIC, Sept. 28, 1987, at 23–25. Judge Posner, a proponent of limited government, does not shy

away from explicitly considering social, political, and economic consequences in coming to his judicial

decisions. He wrote:

The liberal judicial activists may be imprudent and misguided in their efforts to enact the

liberal political agenda into constitutional law, but it is no use pretending that what they

are doing is not interpretation but "deconstruction," not law but politics, because it involves

the exercise of discretion and a concern with consequences and because it reaches results


The second way in which political theory influences judicial rulings is that

a judge’s moral and political beliefs will determine whether the judge favors

or disfavors the social, political, and economic consequences of discrete laws

and government acts, including gendered marriage laws. Recall that due pro-

cess and equal protection analyses require that the court decide whether a

government objective is legitimate.215 In context of the same-sex marriage

debate, the Supreme Court will have to determine whether the moral, social,

political, and economic purposes behind gendered civil marriage are legiti-

mate. Judges who subscribe to the tenets of modern liberalism might—alt-

hough as I will argue later, they shouldn’t—consider certain moral or social

purposes of the marriage institution as illegitimate. Whereas judges who fa-

vor other strands of political thought would defer to broader moral and social

government aims.

Interpretation of the Constitution, then, depends largely on the way judges

prioritize the political values of liberty, equality, and virtue. Within liberal

theory, there are primarily three ways to think about the relative value of lib-

erty with respect to equality and virtue:

Liberty as Sovereign: Liberty is the supreme political good, an end in it-

self. A government is only justified in taking liberty to protect greater liberty.

Liberty as Constitutively Valuable: Liberty is one ingredient, among oth-

ers, of the ideal political system. A government may take liberty when it con-

flicts with other political goods that outweigh the importance of the liberty

being taken away.

Liberty as Instrumentally Valuable: Liberty is a means to achieving the

supreme political good. Liberty may be taken when it obstructs society from

obtaining the highest political ideal.

If the constitutional provisions relevant to the question of same-sex mar-

riage embody the first conception of liberty, liberty as absolutely sovereign,

then gendered marriage is constitutional only if taking the liberty to marry

whomever one wishes protects other, more important liberty interests. If the

not foreseen two hundred years ago. It may be bad law because it lacks firm moorings in

constitutional text, or structure, or history, or consensus, or other legitimate sources of con-

stitutional law, or because it is reckless of consequences, or because it oversimplifies dif-

ficult moral and political questions. But it is not bad law, or no law, just because it violates

the tenets of strict construction.

Id. at 25. Although libertarians and conservatives often object to judicial rulings on interpretivist and

originalist grounds, they could potentially object on social, political, or economic grounds as well. And,

vice-versa, liberals sometimes object to conservative arguments on interpretivist and originalist grounds. 215 See Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 172 (1972) (for a discussion of the legitimate

government objectives under the Equal Protection Clause); see also Washington v. Glucksberg, 521 U.S.

702, 728 (1997) (for a discussion of the legitimate government interest requirement under the Due Process

Clause).


Constitution conceives of liberty as constitutively valuable, laws limiting

marriage to opposite-sex couples will be overturned unless traditional mar-

riage protects some other political end—whether liberty, welfare, equality, or

virtue—that is more important. Lastly, if the Constitution permits an under-

standing of liberty as instrumental for achieving the ultimate political good,

say virtue, then gendered marriage is constitutional so long as it advances

virtue.

Modern liberalism and libertarianism account for two realities of human

nature. First, that we are all naturally free and equal, and second, that we

reasonably disagree about morality and religion. However, the theories fail

to adequately account for a third fact of human nature: that we thrive in com-

munities of common ends. This lack of attention to the social ramifications

of our conduct is evinced by the liberal push to disqualify legislation based

on morality from constitutional status. Many strains of modern liberalism and

libertarianism fail to advance an ideal society inasmuch as they fail to facili-

tate a community. To adequately account for the community and the human

need for meaning, both political theories would need to make exceptions to

their fundamental principle that individual liberty trumps virtue. Communi-

tarianism conforms to the human need for belonging and shared ends, but

fails to adequately protect individual liberty

To reconcile the demands of individual liberty and community, I propose

an alternative political theory, which I call Moral Liberalism. In Moral Lib-

eralism, the highest moral objectives are care and self-mastery or, in other

words, learning to use one’s agency to make virtuous choices, which benefit

others. We are born with both good and evil inside us, but the apex of hu-

manity is to exercise our natural liberty to choose good on our own accord to

benefit others, not simply to assert our individual liberties and refrain from

harming others. Consequently, government’s preeminent purpose is to facil-

itate the highest moral objectives of care, self-mastery, and virtue. Liberty is

thus instrumental in achieving a virtuous society. Self-mastery requires tre-

mendous liberty because learning to choose the right requires making

choices. Practice makes perfect, as they say. Virtue, if it is to be virtue at all,

must be voluntary. In Moral Liberalism, as society becomes more and more

virtuous, government is less and less justified in restricting liberty. Still, gov-

ernment is permitted to restrict a liberty when enough of the society proves

unable to use that liberty, resulting in a detriment to collective virtue. Thus,

Moral Liberalism takes individual freedoms more seriously than many forms

of communitarianism. And, unlike modern liberalism, Moral Liberalism fa-

cilitates community building, tradition, culture, and public morality through

law.


Does Moral Liberalism account for the fact that we reasonably disagree

about morality and religion? I think it can. Although we have politically im-

portant disagreements, there is substantial consensus throughout the fifty

states about what is virtuous. Practically every American believes that

knowledge is better than ignorance; courage is better than cowardice; kind-

ness is better than selfishness; integrity is better than duplicity; altruism is

better than selfishness; and prudence is better than recklessness.216 Certain

values “go to the heart of what it means to be human and always have, since

the beginning of time, and always must if we are not to lose touch with our

humanity.”217 Since Moral Liberalism seeks to maximize social virtue, arbi-

trating moral differences ought to be done in whatever manner most efficient

in identifying the virtues that go to the heart of what it means to be human.

As Justice Holmes expressed in Abrams v. United States, “the best test of

truth is the power of the thought to get itself accepted in the competition of

the market.”218 In the long run, the marketplace of ideas most efficiently al-

locates the most good for the most people. In addition, allowing the people

to referee moral disputes, rather than courts, makes the people responsible

for their own destiny. In practice, morality and ethics are somewhat the result

of time and place. There is an important distinction between a people that

corrupt the laws and, on the other hand, laws that corrupt the people. In the

former, the people, as a whole, merit the consequences of corruption. In the

latter, the people are oppressed and misled. The only method of establishing

morality for the purposes of law that is consistent with the democratic prin-

cipal of majority rule is a method in which the people, not judges, have the

final say, although it may be tempered by constitutionalism and federalism.

Unfortunately, the marketplace of ideas can be dangerously volatile. As

with the stock market, the marketplace of ideas has its ups and downs. How-

ever, unlike the stock market, crashes in the marketplace of ideas can result

in genocide, persecution, and oppression. The United States Constitution

wisely moderates the volatility of the marketplace of ideas through the con-

stitutional amendment process and federalism. The tension between moral

sameness and moral difference will always exist, but the best way to arbitrate

moral tension is not through the courts, but through the majoritarian process

moderated by constitutionalism and federalism. The Constitutional amend-

ment process ensures that ideological fads and overreactions to the events of

the day are not immediately and easily made part of the supreme law of the

216 For a treatment of universal virtues from a historical and scientific point of view, see generally

CHRISTOPHER PETERSON & MARTIN SELIGMAN, CHARACTER STRENGTHS AND VIRTUES: A HANDBOOK

AND CLASSIFICATION (2004). 217 SISSELA BOK, COMMON VALUES 11 (2002). This very brief defense of Moral Liberalism relies on

defenses of virtue ethics. See generally ROSALIND HURSTHOUSE, ON VIRTUE ETHICS (1999). 218 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).


land. Additionally, federalism and communitarianism tend to atone for one

another’s sins because in a federalist society, people can choose a moral com-

munity in which to live.219 By allowing the states greater power to facilitate

morality through law, the entire country benefits from the laboratories of the

states in finding truth, while also respecting the fact that people reasonably

disagree about moral ideas.

Moral Liberalism is also consistent with the views of the Founding Fathers

and Civil War era politicians, making it fit within the originalist mode of

constitutional interpretation. John Locke was a devout Christian who be-

lieved his political theory would bring about greater morality. Ben Franklin

said, “Only a virtuous people are capable of freedom. As nations become

corrupt and vicious, they have more need of masters.”220 John Adams said:

We have no government armed with power capable of contending with human

passions unbridled by morality and religion. Avarice, ambition, revenge, or gal-

lantry, would break the strongest cords of our Constitution as a whale goes

through a net.221

At the time of the ratification of the Constitution, it seems there was some

consensus that freedom is inextricably tied to virtue, not the other way

around.222 Although we can argue about the religiosity and moral views of

the Founding Fathers, given the morality-infused nature of early American

political discussion and views on natural law, it seems far-fetched to say that

morality was not taken for granted as a legitimate consideration for legisla-

tion.

219 See Powell, supra note 189, at 70. 220 Letter from Benjamin Franklin to Messrs. The Abbes Chalut and Arnaut, (Apr. 17, 1787), in THE

WORKS OF BENJAMIN FRANKLIN at 297–98 (Jared Sparks ed., vol. X 1844) (1840). 221 Letter from John Adams to the Officers of the First Brigade of the Third Division of the Militia of

Massachusetts (Oct. 11, 1798), in THE WORKS OF JOHN ADAMS at 228 – 229 (Charles Francis Adams ed.,

vol. IX 1854) 222 See e.g., supra note 221; THE FEDERALIST No. 55 (James Madison). James Madison closed The Fed-

eralist No. 55 with the following statement:

As there is a degree of depravity in mankind, which requires a certain degree of circum-

spection and distrust, so there are other qualities in human nature, which justify a certain

portion of esteem and confidence. Republican government presupposes the existence of

these qualities in a higher degree than any other form. Were the pictures which have been

drawn by the political jealousy of some among us faithful likenesses of the human charac-

ter, the inference would be, that there is not sufficient virtue among men for self-govern-

ment; and that nothing less than the chains of despotism can restrain them from destroying

and devouring one another.

Id.


V. MORALITY-BASED LEGISLATION

Morality ought to be a central part of our politics because morality is an

important part of community, which, in turn is an important part of our well-

being. Until the Twentieth Century, no court questioned the validity of mo-

rality-based legislation under the Constitution.223 However, since the rise of

modern liberalism and libertarianism, courts have taken inconsistent ap-

proaches to the question of whether morality constitutes a legitimate govern-

ment interest sufficient to pass rational basis review.224 In some cases, courts

ignore, doubt, or outright reject morality as a legitimate state interest.225 In

other cases, courts specifically affirm the legitimacy of morality as a state

interest.226 Still in other cases, the court merely replaces their own elite mo-

rality for the popular morality motivating the legislation in the first place.227

This shift towards delegitimizing morality as a basis for legislation neglects

the importance of moral homogeny to the collective good. The government

has an inherently legitimate interest in moral legislation because communi-

ties of common moral beliefs are happier, more civically involved, and more

economically productive than localities with substantial moral diversity.

Starting in the early Eighteenth Century, there was a large-scale influx of

people into North America from various regions of Africa and Europe.228 By

the time of the American Revolution, there were isolated pockets of Ger-

mans, Irish, Swedes, Swiss, Finns, Jews, Dutch, and French Huguenots living

in communities along the East Coast.229 Although English Protestants con-

stituted a political majority in post-colonial America, there was substantial

moral diversity from community to community.230 Beyond the fundamental

223 See Daniel F. Piar, Morality as a Legitimate Government Interest, 117 PENN ST. L. REV. 139, 139–40

(2012). 224 Id. at 144–57. 225 See e.g., Bowers v. Hardwick, 478 U.S. 186, 216 (“[T]he fact that the governing majority in a State has

traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohib-

iting the practice.”); United States v. Extreme Assoc., Inc., 352 F. Supp. 2d 578, 594 (W.D. Pa. 2005)

(holding that an obscenity statute is unconstitutional since it was “grounded in the advancement of the

public morality, which is no longer a legitimate . . . state interest.”). 226 See e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57–58 (1973); see also Gonzales v. Carhart, 550

U.S. 124, 159–60 (2007). 227 See e.g. Roe v. Wade, 410 U.S. 113, 162 (1973) (“[W]e do not agree that, by adopting one theory of

life, Texas may override the rights of the pregnant woman . . . .”); Romer v. Evans, 517 U.S. 620, 631

(1996) (holding that our “free society” requires us to include people of every sexual orientation). 228 See RUSSELL O. WRIGHT, CHRONOLOGY OF IMMIGRATION IN THE UNITED STATES 4–6 (2008); see also

IMMIGRATION IN THE UNITED STATES vii (William Dvorak ed., 2009). 229 Mildred Campbell, Social Origins of Some Early Americans, in SEVENTEENTH CENTURY AMERICA:

ESSAYS IN COLONIAL HISTORY 63 (James Morton Smith ed., 1959); Historical Census Browser, U. OF

VA. GEOSPATIAL AND STATISTICAL DATA CTR., http:// http://mapserver.lib.virginia.edu/ (last visited Feb.

15, 2014). 230 BRUCE CATTON & WILLIAM B. CATTON, THE BOLD AND MAGNIFICENT DREAM: AMERICA’S

FOUNDING YEARS, 1492-1815, at 170 (1978).


yearning for escape and hope for a better society, these diverse groups had

different values and aspired for different kinds of societies.231 Culturally and

morally speaking, the United States was a salad bowl. Each community en-

forced its own moral laws and pursued its own political objectives relatively

independent of the national government and other communities.232

As a result of population growth, advanced technology, diversified econ-

omy, and the expansion of the federal governments influence in Americans’

lives the moral makeup of the United States is transitioning from a moral

salad bowl to a moral mixing pot. Kofi Annan once said, “[A]rguing against

globalization is like arguing against the laws of gravity.”233 To a degree, the

same is true for the mixing of moral ideas in today’s ever-smaller world. And

that has advantages. But, a court prohibition of moral justifications for state

legislation will flatten the moral landscape too much, until the only shared

morality is the notion that everyone can do what they want so long as they

don’t “harm” anyone else. In a regime in which morality is an illegitimate

government interest, however, the definition of “harm” would be stretched

so thin as to exclude immeasurable forms of harm like injury to conscience,

invasion of privacy, or maybe even psychological damage. The definition of

harm is inextricably intertwined with morality. Therefore, to remove morality

as a source of meaning leaves the law inept to acknowledge many scientifi-

cally immeasurable forms of harm. A government that delegitimizes morality

as a basis for legislation buys into the schoolyard chant that sticks and stones

break bones, but words don’t hurt. To the contrary, words and ideas can in-

flict the very deepest forms of harm to individual and collective wellbeing.

Despite the fact that all law is ultimately based on moral beliefs,234 some

shortsighted courts insist on scientific proof that legislation will improve

health, security, or welfare to survive even rational basis review.235 I concede

that where the science is wholly one-sided against some stated purpose for

legislation, it is evidence that that purpose behind the legislation is insincere

and that the government’s true purpose is illegitimate. However, the effect of

legalizing same-sex marriage on marriage at large, children, communities,

231Id. at 168. 232 See id. at 160 (describing how each colony internally regulated its own disputes). 233 Barbara Crossette, Globalization Tops 3-Day U.N. Agenda for World Leaders, N.Y. TIMES (Sept. 3,

2000), http://www.nytimes.com/2000/09/03/world/globalization-tops-3-day-un-agenda-for-world-lead-

ers.html?pagewanted=all&src=pm. 234 Otherwise, “one man’s larceny is another’s just distribution of goods.” ROBERT H. BORK, THE

TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 249 (1990). 235 See e.g., Varnum v. Brien, 763 N.W.2d 862, 899 n.26 (Iowa 2009) (citing no specific scientific re-

search, the Iowa Supreme Court found that studies “support the conclusion that same-sex couples foster

the same wholesome environment as opposite-sex couples.”).


and American society is certainly not firmly established in science.236 In-

deed, in the recent Windsor decision, the Supreme Court made no finding that

the science was one sided. Judges are rarely, if ever, scientists capable of

arbitrating genuine scientific disputes.

Another reason that courts should refrain from insisting on empirical evi-

dence for legislation to survive judicial review is that science is frequently

incapable of measuring certain legally relevant aspects of humanity. Some-

times, the most reliable source of information is logic, personal experience,

and tradition. For example, it is difficult to measure the affect that law has on

public morality because of a chicken-or-the-egg problem. Does the law

change because moral views change? Or do moral views change because the

law changes? Science can only provide so much clarification. Social psy-

chologists have demonstrated that social norms do affect individuals’ beliefs

and behaviors.237 But, to what extent the law affects beliefs remains very

difficult to measure. Thus, we are left with experience and logic to guide our

policymaking on the matter. Fundamentally, science can say little about what

the law ought to be. All law is ultimately couched in the moral language of

“ought” and “should.” Morality represents generations of accumulated expe-

rience and cooperation. Science, without morality, is an insufficient basis it-

self for legislation or as a means to maximize individual and collective good.

When the Court implies that morality is a constitutionally insufficient basis

for legislation, it is really saying that the Constitution now embodies an al-

ternative moral theory—one that views individual freedom as preeminent—

and thus, the court’s interpretation is internally inconsistent. It invalidates

morality-based legislation on a moral basis.

To understand why morality ought to be a legitimate basis for legislation,

we need to understand the effect of moral diversity on individual and com-

munity wellbeing. There are probably too many definitions of “diversity” to

count. Moral diversity, as I use it, refers to differences in moral norms, val-

ues, and beliefs rather than physical or experiential differences. Moral diver-

sity is to be distinguished from other, overlapping kinds of diversity such as

demographic (e.g. race, body type, nationality), ethnic and cultural (e.g. Bre-

ton, Ashanti, Texan), and experiential diversity (e.g. education, occupation,

life history). Social scientists have recently begun to study the effects of

moral diversity on individuals and communities. Their preliminary findings,

236 See Monte Neil Stewart, Jacob D. Briggs, & Julie Slater, Marriage, Fundamental Premises, and the

California, Connecticut, and Iowa Supreme Courts, 2012 B.Y.U. L. REV. 193, 225–26 (2012). 237 See, e.g., Solomon E. Asch, Opinions and Social Pressure, 193 SCIENTIFIC AM. 2, 2, 4–5; Stanley

Milgram, Behavioral Study of Obedience, 67 J. ABNORMAL & SOC. PSYCHOLOGY 371, 376 (1963);

OFFICE OF NAVAL RESEARCH, DEP’T OF THE NAVY, A STUDY OF PRISONERS AND GUARDS IN A

SIMULATED PRISON 8, 14 (1973).


combined with a dose of logic, suggest that too much moral diversity, like

too little moral diversity, can be a bad thing.238 To maximize happiness and

freedom, people need communities within which they share traditions and

moral values.239 Safety, wealth, and small government are simply not enough

for happiness.

Although some kinds of moral diversity are obviously bad (e.g. murder

and pedophilia), a moderate amount of moral diversity has at least one im-

portant and positive effect on individuals and communities. Contact with dif-

ferent moral views forces individuals to rethink their own moral beliefs.

Truth is best achieved through “trade of ideas.”240 Even if the different moral

belief is “wrong,” conflict with untruth can make truth stronger.241 Today

engaging diverse moral views is frequently unavoidable due to advances in

information technology. Still, geographic proximity to moral diversity would

benefit society by forcing individuals to confront challenging views that they

might have otherwise avoided, thereby improving the efficiency of the mar-

ketplace of ideas.

Currently, however, moral diversity within many, if not most, American

communities is too high; the negative effects of moral diversity within those

geographic communities outweigh the benefits. For one, there is more moral

diversity in many communities than most people can process while living

their daily lives. People only have time to engage in meaningful moral ex-

change for a limited amount of time, so after a certain point, more moral di-

versity will not improve a person’s moral awareness. Second, moral diversity

inhibits social capital.242 Communities that share common beliefs are more

equipped to achieve humanitarian and social objectives. In addition, moral

exchange can either be broad and shallow or deep and narrow. In morally

diverse groups, moral discussion often gets stuck at “square one” without

ever having an opportunity to explore the deeper implications of fundamental

moral beliefs. For example, a Catholic and an atheist are unlikely to debate

the morality of pre-selecting human eggs in a laboratory to avoid conception

of a genetically abnormal child, given Catholic doctrine on birth control.

Atheists don’t share Catholics’ fundamental assumptions about contracep-

tion. Therefore, the Catholic cannot have an exchange of ideas about the im-

plications of his deeper beliefs with his neighbor. She probably could not

238 See Jonathan Haidt, Evan Rosenberg & Holly Hom, Differentiating Diversities: Moral Diversity is not

like the Other Kinds, 33 J. APPLIED SOC. PSYCHOLOGY 1, 6 (2003). 239 Id. at 28, 30. See generally, Powell, supra note 189 (discussing morality, lawmaking, and federalism). 240 Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 241 JOHN STUART MILL, ON LIBERTY 31–39 (1859). 242 See James S. Coleman, Social Capital in the Creation of Human Capital, 94 AM. J. SOCIOLOGY S95,

S104–S105 (1988); see also JOHN M. GOTTMAN, THE SCIENCE OF TRUST: EMOTIONAL ATTUNEMENT FOR

COUPLES 41–43 (2011).


even debate the Catholic position of contraception without directly or indi-

rectly challenging the atheist’s moral worldview. More often than not, a

Catholic and an atheist would probably avoid the subject of contraception

altogether because of the solemnity of their differing moral convictions. It is

good for us to have our fundamental moral beliefs challenged from time to

time in public discourse, but it is also good to flesh out our own beliefs within

our own communities. Similar to the Catholic and atheist, a libertarian and a

socialist will have different fundamental moral beliefs, but neither could

work out their political worldview with the other because the two proceed

upon conflicting fundamental premises. Shallowness of moral conversation

can result in shallowness of one’s own worldview and, by default, contributes

towards moral shallowness throughout society.

Although, in recent decades, “celebrate diversity” has been a mantra of

universities and major companies, contemporary social science and psychol-

ogy indicate that moral diversity has adverse effects on individuals and com-

munities that should be taken into account before listing moral diversity,

along with cultural and racial diversity, as an inherent public good.243 Unlike

cultural or demographic diversity, moral diversity does not add to the aes-

thetic beauty of society. Its value is strictly a function of its utility, which is

negative in many American communities today. In the last few decades,

moral diversity within many American communities has increased substan-

tially and is correlated with decreasing voter turnout, lower confidence in

local government, smaller and fewer gifts to charity, diminished quality of

friendships, declining participation in social groups, less trust of neighbors,

and lower happiness.244 Studies have shown that people, even in racially seg-

regated communities in the South, prefer to be around those with similar

moral views than those of the same race.245 Recent research demonstrates

that value congruence among workers and supervisors has a positive effect

on job satisfaction, while low value congruence is correlated with lower team

effectiveness and worker morale.246 In the affirmative action case, Grutter v.

Bollinger, Justice Thomas cites two studies that establish that black students

at Historically Black Colleges experience superior cognitive development

243 See Haidt, supra note 238, at 1–2. 244 Cf. Robert D. Putnam, E Pluribus Unum: Diversity and Community in the Twenty-First Century, 30

SCANDINAVIAN POLITICAL STUDIES 137, 149–50 (2007). This source does not measure the effects of

moral diversity independent of cultural, religious, and racial diversity. However, studies have concluded

that racial, religious and cultural diversity—independent of moral diversity—have mostly positive effects

on group efficiency. See Haidt, supra note 238, at 30 (2003). It seems reasonable then to infer that moral

diversity is at the root of many of the civic ills experienced in diverse communities. Cultural, religious,

and racial diversity are not great proxies for moral diversity. But they are indicative of moral diversity. 245 See Haidt, supra note 238, at 6. 246 See id. at 4. The values in this study were work-related, such as the overall mission of the organization.

Id. Politics and legislation aim towards a goal usually derived from moral points of view.


than black students at other, more diverse, universities.247 Aside from these

studies indicating adverse effects of moral diversity on communities, it may

be logically incoherent to desire moral diversity in one’s community. Moral-

ity, by definition and from the point of view of an individual, generally ap-

plies universally. It doesn’t make much sense to say, I am morally against X,

but I prefer to live in a place where many people are for X, do X, and advocate

in favor of X.248

The social drawbacks of moral diversity at the local level will sometimes

outweigh the benefits; but on the national level, moral diversity has important

benefits for Americans’ wellbeing. Diversity on a national level protects

against a tyranny of the majority. In Federalist #10, James Madison contem-

plates the role of “factions,” which are groups with interests contrary to the

interests of other groups or the country at large.249 Madison asserts that one

way to minimize the negative affects of factions is to have a large and diverse

republic.250 In perhaps his most influential essay, James Madison argues that

the more (moral) diversity there is in the United States, the less likely that

any one erroneous or unworkable morality might overtake the nation.251

Some have supposed that the friction of moral diversity in communities is

simply a growing pain through which the nation must pass to achieve a uni-

fied, nationwide moral system.252 The problem is that, without the laborato-

ries of the states, it seems highly unlikely that the monopolized morality

would the best one. The most efficient way to ascertain the politics of the

“good society” is for moral ideas to win in the marketplace of ideas. Not for

federal judges to impose their elite morality on the states. Moreover, the ex-

istence of moral diversity from community to community allows for citizens

to express their deeply held moral beliefs and mitigates expectations that one

view will be accepted by everyone everywhere.253 The violence before abor-

tion clinics or during the recent Occupy movement is demonstrative of the

social risks of leaving no effective vent for expression of moral convictions.

Moral diversity, on a nationwide scale, serves to stabilize the United States.

247 Grutter v. Bollinger, 593 U.S. 306, 364-65 (2003) (Thomas, J., dissenting) (citing Lamont Flowers,

Cognitive Effects of College Racial Composition on African American Students After 3 Years of College,

40 J. COLL. STUDENT DEV. 669, 674 (1999) and Walter R. Allen, The Color of Success: African-American

College Student Outcomes at Predominantly White and Historically Black Public Colleges and Universi-

ties, 62 HARV. EDUC. REV. 26, 35 (1992)). 248 See Haidt, supra note 238, at 7. 249 THE FEDERALIST NO. 10, at 161 (James Madison) (Jack N. Rakove ed., 1999). 250 Id. at 166–67. 251 Id. 252 Putnam, supra note 244, at 163–64 (supporting the view that poor performance in communities of high

moral diversity is temporary). 253 See Piar, supra note 223, at 159–60.


As we have established, the law plays an important role in shaping public

morality.254 The states have a particularly strong interest in morality-based

legislation to facilitate strong communities. Without the ability to enact mo-

rality-based legislation, states will be incapable of striking the ideal balance

between moral homogeneity and moral diversity necessary to maximize in-

dividual and collective good.

VI. GENDERED CIVIL MARRIAGE, HEALTH, SAFETY, AND WELFARE

According to liberal theory, the liberty to act is normatively basic. We lack

liberty when the only thing keeping us from obtaining our goal is another

human being.255 As such, justice requires that those who would limit the free-

dom of others bear the burden of defending their impositions. The Fourteenth

Amendment requires that the government justify its restrictions on the free-

dom of citizens to do as they wish. In Part III, I argued that liberty is instru-

mental in achieving a virtuous society. Social virtue then is the ultimate po-

litical objective. Accordingly, the success of government is measured against

its policies’ effect on social virtue. In a Moral Liberal regime, sincere gov-

ernment objectives to augment social morality are sufficient to justify re-

strictions of liberty. Thus, so long as the government has sincere moral rea-

sons for gendered civil marriage, the courts certainly ought not to second-

guess legislated definitions of civil marriage because morality is, at least, a

legitimate government interest and, especially for states, may be a compelling

government interest. However, even if maximizing freedom is taken to be the

ultimate political good, rather than virtue, it still does not follow that same-

sex marriage is a fundamental right or that gendered civil marriage is an un-

justifiable restriction of liberty. Genderless civil marriage opens up freedom

for LGBT persons, but it infringes on freedoms of other people.

Even according to a modern liberal worldview, not all government distinc-

tions are invidious discrimination. Only arbitrary or spiteful legal distinctions

are impermissible. In many situations, a freedom of one person will be mu-

tually exclusive of the freedom of another. In such cases, the law must decide

which freedom is more important. My son’s right to play with grandma’s toy

boat is mutually exclusive of my nephew’s right to play with the same boat

at the same time. When one pouts about the other one playing with the boat,

the adults have to take sides based on factors other than the freedom to play

as one desires. In the example, the liberty interests of my son and my nephew

are equal and, therefore, cancel each other out. In deciding who gets to play

254 See generally MARY DOUGLAS, HOW INSTITUTIONS THINK (1986); ROBERT P. GEORGE, MAKING MEN

MORAL: CIVIL LIBERTIES AND PUBLIC MORALITY 1 (1993). 255 ISAIAH BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 118, 122 (1969).


with the boat, we consider factors like who has played with it most, who is

behaving better, whose motivation is more sincere, etc. Similarly, if it is true

that the liberty to same-sex marriage is mutually exclusive of other liberty

interests, we have to weigh the rights of one side against the rights of the

other side and determine which right is more valuable.256

As we have seen, the United States Constitution is largely the product of

liberal theory and, as such, it protects liberty by requiring that the government

justify interferences with citizens’ liberty. Otherwise, courts will invalidate

the interfering legislation as unconstitutional. Under “morally-neutral” ra-

tional-basis review, whenever the government burdens freedom with the pur-

pose of improving the general health, safety, and welfare, courts will not

overrule the government’s course of action. However, pursuant to the Due

Process Clause and Equal Protection, government interference with “funda-

mental rights” or political equality require more important or compelling jus-

tifications to survive judicial review. With regard to the constitutionality of

same-sex marriage, there are two important questions: (1) what rights are

compromised by same-sex marriage? And, (2) are those rights more or less

important than the freedom to genderless marriage?

As to the first question, some proponents of same-sex marriage assert that

legalizing gay marriage will have no effect whatsoever on the rights of oth-

ers.257 They might say, “How will allowing Adam and Steve to marry affect

you?”258 Indeed, a number of judges reviewing gendered marriage laws have

argued that redefining marriage to include same-sex couples will have no

downside at all.259 This view underappreciates human interdependence.

Same-sex marriage does affect Americans’ rights to health, safety, and wel-

fare. Accordingly, state and federal laws defining marriage as between one

man and one woman should therefore be justified under a rational-basis re-

view. Same-sex marriage doesn’t fit the “fundamental right” paradigm well

because those seeking to overturn traditional marriage laws are not seeking

to do anything, they are seeking for the government to do something to them,

i.e. recognize same-sex unions as equivalent to traditional marriages. Regard-

256 Id. at 170. Isaiah Berlin described two concepts of liberty: positive liberty and negative liberty. Id. at

121–22. Negative liberty is the absence of obstacles, barriers, or constraints (freedom from). See Gerald

C. MacCallum, Jr., Negative and Positive Freedom, 76 PHILOSOPHICAL REV. 312, 314 (1967). Positive

liberty, on the other hand, is the possibility of acting (freedom to). Berlin, supra note 255, at 131. In this

Article, however, I assume that the two can be reconciled by the following definition of liberty: Liberty is

the state of being without direct or indirect constraints to do or become certain things. See id. at 158. 257 Stewart et al., supra note 236, at 212. 258 Id. 259 See, e.g., id.


less, the claim that equal protection rights are more important than the inter-

ests in health, safety, and security is analyzed analogously to a substantive

due process analysis.

If there are security rights compromised by genderless civil marriage, then

the question is, which rights are more valuable? Although same-sex marriage

does not directly impose upon rights of health, safety, and welfare, it does so

indirectly and importantly. First, same-sex marriage is inconsistent with the

notion of marriage as foundational for childbearing. A conception of mar-

riage without an orientation towards childrearing is more unstable than oth-

erwise. Second, same-sex marriage is inconsistent with the moral norm that

people should wait until they are married to have sex. A weakening of this

norm means that more children are born to less-committed couples. If we

agree that children have an inherent right to be reared by their biological par-

ents, exceptions to that right are only justifiable for the interests of the child,

never for the interests of adults. Third, same-sex marriage poses a threat to

religious and moral practices. And, fourth, since same-sex marriage is neither

institutionalized nor backed with sufficient research, to judicially require le-

gal sanctioning of same-sex marriage would afford insufficient deference to

tradition and experiential knowledge. Together, these justifications ought to

be prima facie justifications for gendered civil marriage sufficient to pass ju-

dicial review, even by a court that considers morality to be an illegitimate

government interest.

A. Gendered Civil Marriage Supports a More Stable Conception of

Marriage

There are two competing conceptions of marriage.260 The conjugal con-

ception of marriage holds that marriage has three essential components: (1)

a comprehensive union of body and soul between spouses, (2) an orientation

towards childbearing, and (3) marital norms of permanence, exclusivity,

love, and honor.261 The second, revisionist conception of marriage under-

stands marriage as a loving union of two people who commit to sharing the

burdens and benefits of domestic life.262 The conjugal conception is superior

to the revisionist conception for two reasons. First, the conjugal conception

is more stable, resulting in superior wellbeing and success of children and

260 Sherif Girgis et al., What is Marriage?, 34 HARV. J.L. & PUB. POL’Y 245, 246 (2011). 261 Id. at 246, 252–53, 255, 259. 262 Id. at 246.


adults.263 Second, the conjugal conception encourages responsible sexual in-

tercourse and procreation, which, in turn, protects children’s rights to bond

and be reared by their biological parents.264 This Section will demonstrate

that only gendered marriage laws facilitate the social advantages of the con-

jugal conception of marriage.

It is axiomatic that the law affects social morality. No man is an island.

We deliberate and act in the context of the legal and social forces around

us.265 What the institution of marriage is and what it entails are matters of

objective reality, determined by collective intentionality.266 In other words

and in a very real sense, marriage is whatever we think others think it is. The

shared attitudes and beliefs about marriage shape its institutional status and

function, which in turn, have an effect on social dynamics in America. Dis-

associating marriage and biology in the law will catalyze a course change in

American collective intentionality regarding the institution of marriage. It is

implausible to suggest that marriage law has no bearing on society’s concep-

tion of marriage. The law is a moral teacher and a powerful heuristic for mo-

rality. Genderless civil marriage would teach that marriage is solely about the

mutual benefit adult spouses get from their marriage. Marriage, under the

revisionist conception, is for social recognition of spousal affection and of an

arrangement between spouses to work together towards shared goals. Pursu-

ant to the revisionist conception of marriage, once the inconstant emotion of

affection changes or once the partners’ life objectives no longer align, there

is little or no reason for a couple to stay married. The revisionist conception

of marriage misconceives love as something that happens, rather than some-

thing we commit to do for itself and for a greater humanitarian purpose. It

undermines the marital duty to love one’s spouse for family and for society

rather than only seeing love as a byproduct of the benefits obtained from a

committed, romantic relationship.

The conjugal conception of marriage includes the natural possibility of

procreation, which constitutes an important and inherent commitment into

marriage that is forever shared by spouses: the wellbeing of their children or

future children. Research confirms this and shows that those who view mar-

riage as about a loving commitment are more likely to get divorced than peo-

ple who view marriage as foundational for starting a family.267 Same-sex

263 Id. at 258, 262–63. 264 Id. at 257–59. 265 SHERIF GIRGIS ET AL., WHAT IS MARRIAGE? MAN AND WOMAN: A DEFENSE 54 (2012). 266 For a treatment of how social institutions are objective features of social reality, see JOHN SEARLE,

FREEDOM & NEUROBIOLOGY: REFLECTIONS ON FREE WILL, LANGUAGE, AND POLITICAL POWER 79–109

(2007). 267 See W. Bradford Wilcox & Jeffrey Dew, Is Love a Flimsy Foundation? Soulmate Versus Institutional

Models of Marriage, 39 SOC. SCI. RES. 687, 688, 691, 696–97 (2010).


couples have no natural ability to procreate and, therefore, same-sex mar-

riages would have no inherent commitment flowing from the natural possi-

bility of pregnancy. Where civil marriage is genderless, people will begin to

define opposite-sex marriage as what it has in common with same-sex mar-

riage.268 In states that permit same-sex civil marriage, more people will see

childbearing as only a secondary or optional aspect of marriage, rather than

a primary or natural aspect of marriage.

Thus, marital law affects marital stability. In turn, marital stability affects

child and adult wellbeing. Research conclusively demonstrates that children

raised by two parents in a stable relationship outperform their peers in virtu-

ally every measure of child wellbeing.269 Children raised in single-parent

homes represent 63% of suicides, 75% of children in chemical dependency

hospitals, 75% of teenage pregnancies, and over 50% of incarcerated

youths.270 Children raised in intact married families are more likely to get

good grades, behave well in school, and go to college.271 Children raised by

two-parents are physically and emotionally healthier, are much less likely to

be physically or sexually abused, and are less likely to be raised in poverty.272

In families with married parents, only around one-third of teenagers are sex-

ually active while over half of teenagers in single-parent families or cohabi-

tating households are sexually active.273 Children of intact biological families

are most likely to get married and most likely to stay married.274

Although the definition of civil marriage is an important factor affecting

marital stability and child wellbeing, it is not the only factor. Unfortunately,

no fault divorce law and the media culture have favored adult (selfish) inter-

ests over the interests of children. Today, it is easier to divorce one’s spouse

than it is to fire a teacher who roundhouse kicks three students. Addictive

268 GIRGIS ET AL., supra note 265 at 54–56. 269 Id. at 42–43 (citing studies by Child Trends, the Brookings Institution, the Woodrow Wilson School of

Public and International Affairs at Princeton University, the Center for Law and Social Policy, and the

Institute for American Values). 270 Single Parent Statistics, SINGLE PARENT SUCCESS FOUND. (Nov. 16, 2011, 3:54 PM), available at

https://web.archive.org/web/20111116155417/ ( the original web address http://www.singlepar-

entsuccess.org/stats.html was accessed through Internet Archive because the domain name has since

lapsed). 271 See Donna K. Ginther & Robert A. Pollak, Family Structure and Children’s Educational Outcomes:

Blended Families, Stylized Facts, and Descriptive Regressions, 41 DEMOGRAPHY 671, 672, 676, 691

(2004); Wendy D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting, Married, and

Single-Parent Families, 65 J. MARRIAGE & FAM. 876, 881–82, 885, 890 (2003). 272 Why Marriage Matters, Second Edition: Twenty-Six Conclusions from the Social Sciences, INST. FOR

AM. VALUES 20, 23, 27, 31–32 (2005), http://americanvalues.org/pdfs/why_marriage_matters2.pdf [here-

inafter Conclusions]. 273 Patrick Fagan et al., The Positive Effects of Marriage: A Book of Charts, HERITAGE FOUND. 40 (Apr.

2002), http://thf_media.s3.amazonaws.com/2002/pdf/positive_effects_of_marriage.pdf?ac=1. 274 Cf. Conclusions, supra note 272, at 14.


pornography is available to people of all ages at the click of a button. Por-

trayals of sex, courtship, and marriage in the popular media set harmful rela-

tionship norms. A barrage of psychologically sophisticated advertisements

pushes America in a consumerist direction, pushes Americans to overvalue

money, things, and social status above fatherhood, motherhood, and familial

duty. Another relevant factor is that successful individuals are more likely to

get and stay married than unsuccessful individuals,275 which fact partially

contributes to the correlation between marriage and child outcomes. Still,

same-sex marriage would further exasperate the problem by stripping legal

marriage of half of its socially beneficial purpose: strengthening permanent,

biological families. Revisionist marriage maintains the loving commitment

aspect without the familial commitment aspect. We have made political and

cultural missteps in the past with regard to marriage, but that is no justifica-

tion to make future missteps, which would contribute to increased fatherless

homes, impoverished mothers, and decreased parental influence in children’s

lives.

B. Gendered Marriage Respects Child Rights and Facilitates Responsible

Sex

Marriage laws not only affect society’s conception of marriage, they also

affect moral norms about sex. In this Section, I argue (1) that the moral norm

of chastity outside of marriage improves societal wellbeing and (2) that same-

sex civil marriage is inconsistent with a child’s right to bond with and be

reared by biological parents. I have already established that the law influ-

ences society’s moral views. But, how do moral norms about sex affect social

275 See Alison Aughinbaugh, et al., Marriage and Divorce: Patterns by Gender, Race, and Educational

Attainment, U.S. Bureau of Labor Statistics, MONTHLY LAB. REV. (Oct. 2013) (“The chance of a marriage

ending in divorce was lower for people with more education, with over half of marriages of those who did

not complete high school having ended in divorce compared with approximately 30 percent of marriages

of college graduates.”), available at http://www.bls.gov/opub/mlr/2013/article/marriage-and-divorce-pat-

terns-by-gender-race-and-educational-attainment.htm


wellbeing? Those who are chaste outside of marriage have lower rates of di-

vorce once married, 276 have less sexual regret,277 and, obviously, they have

no children outside of wedlock nor do they contract any sexually transmitted

diseases. Since only opposite-sex couples procreate, same-sex marriage im-

plies that marriage is not at all about procreation. If marriage is not about

procreation, then there is no reason to wait until marriage to have sex.

Children, I think most of us agree, have a right to bond with and to be

reared by their biological parents.278 Exceptions to that rule are only justifia-

ble for the interests of the child—when parents are unavailable or unfit for

the job—but exceptions should never be made for the interests of parents.

Indeed, courts might deem children a quasi-suspect class since their age is

immutable and they are without political representation. The United Nations

Convention on the Rights of the Child states that “The child . . . shall have .

. . as far as possible, the right to know and be cared for by his or her par-

ents.”279 The United Kingdom recently prohibited anonymous gamete dona-

tion on the grounds that a child has a bonding right to his or her biological

parents.280

Children receive valuable and irreplaceable self-knowledge from their bi-

ological parents and having sex with the intention to alienate any resulting

children from their biology is harmful, selfish, and immoral.281 The heroic

lengths some adoptees go through to reconnect with their biological families

are certainly evidence of the important role biology plays in identity for-

mation. Just as we might say that people should not have more children than

they can care for, we can also say that people should not have children that

they do not intend to raise together.282

276 Research demonstrates that virgin brides and grooms have more stable first marriages. See, e.g.,

EDWARD O. LAUMANN ET AL., THE SOCIAL ORGANIZATION OF SEXUALITY: SEXUAL PRACTICES IN THE

UNITED STATES 503 (1994) (“For both genders, we find that virgins have dramatically more stable first

marriages….”); Tim B. Heaton, Factors Contributing to Increasing Marital Stability in the United States,

23 J. FAM. ISSUES 392, 401 (2002) (“Dissolution rates are substantially higher among those who initiate

sexual activity before marriage….”); Joan R. Kahn & Kathryn A. London, Premarital Sex and the Risk of

Divorce, 53 J. MARRIAGE & FAM. 845, 845, 851–52 (1991) (“[W]omen who were sexually active prior to

marriage faced a considerably higher risk of marital disruption than women were [sic] were virgin

brides.”); Anthony Paik, Adolescent Sexuality and the Risk of Marital Dissolution, 73 J. MARRIAGE &

FAM. 472, 473, 481–83 (2011) (finding that adolescents who have sex have significantly higher rates of

divorce later in life). 277 See Sara B. Oswalt, et al., Sexual Regret in College Students, 34 ARCHIVES SEXUAL BEHAV. 663, 664

(2005). 278 See DAVID BLANKENHORN, THE FUTURE OF MARRIAGE 181, 188–89 (2007). The Universal Declara-

tion of Human Rights recognizes the right to marry as being indelibly tied to having children. Id. at 181. 279 Convention on the Rights of the Child, G.A. Res. 44/25, at 168, U.N. Doc. A/RES/44/25 (Dec. 5, 1989). 280 Michelle Dennison, Revealing Your Sources: The Case for Non-Anonymous Gamete Donation, 21 J.

L. & HEALTH 1, 9–10 (2008). 281 J. David Velleman, Family History, 34 PHIL. PAPERS 357, 357, 368, 371 (2005). 282 Id. at 363–64. Saying that people should not have children unless they are ready is not to say that we


A child’s right to biological parents is only comprehensible if biological

parents have a corresponding duty to stay together and rear the child, which

duty is essential in marriage. However, same-sex marriage is inconsistent

with chastity outside of marriage because it implies that procreation and,

therefore, sex is not a necessary component of marriage. One either believes

in the right to same-sex marriage or, conversely, that children have the right

to know and be cared for their biological parents; one cannot believe both.283

Same-sex civil marriage undermines the moral norm that sex ought to be re-

served for marriage and, in so doing, subordinates the rights of voiceless chil-

dren to the adult desire for social recognition. Gendered civil marriage plays

an important role in hindering very bad things from happening—transmission

of disease, unprepared pregnancy, emotional harm, and increased divorce

rates—without sacrificing anything of equivalent social importance.

C. Tradition and the Constitution

Tradition, by itself, likely represents a government interest sufficient to

pass the most deferential standard of review.284 Opponents of Proposition 8

and DOMA point to now-repudiated traditions such as racial and gender dis-

crimination to argue that tradition is an irrelevant basis for defining civil mar-

riage as between one woman and one man.285 But, Professor Anthony Kron-

man, drawing on the work of Edmund Burke, argues that, since

multigenerational collaboration separates humankind from animals, afford-

ing tradition no deference whatsoever is to disregard what makes mankind

unique.286 Tradition is perhaps the most common argument invoked to cover

up a constitutionally impermissible animus against a group.287 However, if

preserving the mental thrift of our forefathers is the sincere purpose behind

the legislation (and not disguised hate) then it is probably sufficient to pass

rational basis review. Although tradition is no absolute guarantee of the util-

ity of legislation, more often than not, traditions arise for good purposes. Un-

til it is clearly proved that the original purposes of tradition no longer exist

or that the means no longer serve those purposes, society should be hesitant

to disregard tradition.288 Tradition should be given some deference and some

should not rejoice in the birth of any particular child. Id. That we love disadvantaged children is not in-

consistent with a belief that disadvantaged children should not be deliberately created. Id. 283 Blankenhorn, supra note 278, at 201. 284 See generally Kim Forde-Mazrui, Tradition as Justification: The Case of Opposite-Sex Marriage, 78

U. CHI. L. REV. 281 (2011) (concluding that tradition is a rational basis for state action, but that tradition

in equal protection cases ought to be viewed with skepticism). 285 Id. at 285–86. 286 Id. at 294. 287 Id. at 323. 288 Arguing that departing tradition without an adequate reason amounts to folly, G.K. Chesterton wrote:


deference is all that is theoretically required to survive rational basis re-

view.289

D. Same-Sex Marriage and Religious Liberty

Redefinition of marriage would put American religious liberties at risk.

The supposed right to genderless marriage clashes with the religious beliefs

of many or most Americans.290 Advocacy for legalizing same-sex marriage

depends upon successfully arguing (1) that men and women are interchange-

able, (2) that children do not need their mother and father, and (3) that those

who believe otherwise are motivated by bigotry.291 Proclaiming a newfound

right to genderless marriage might lead courts to disregard religious convic-

tions as no more than bigotry. There are many unanswered questions about

the potential effects of same-sex civil marriage on employment and anti-dis-

crimination laws, housing laws, public accommodation laws, and hate-

speech law, and hate-crimes.292 Will Catholic charities have to serve same-

sex couples seeking to adopt? Will Muslim photographers be forced to doc-

ument same-sex marriage ceremonies? Courts perhaps ought to value the im-

portance of these religious liberties along with the value of the liberty interest

advanced by expanding the civil marriage.

VII. CONCLUSION

The contemporary debate over the constitutional status of gendered civil

marriage is deeply rooted in political theory and morality. Whether any part

of the Constitution embodies a political theory inconsistent with gendered

marriage laws requires, as a threshold matter, a determination of whether mo-

rality still constitutes a legitimate government interest and, if not, why not.

There are reformers who get over this difficulty by assuming that all their fathers were

fools; but if that be so, we can only say that folly appears to be a hereditary disease. But

the truth is that nobody has any business to destroy a social institution until he has really

seen it as an historical institution. If he knows how it arose, and what purposes it was sup-

posed to serve, he may really be able to say that they were bad purposes, or that they have

since become bad purposes, or that they are purposes which are no longer served. But if

he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his

path, it is he and not the traditionalist who is suffering from an illusion.

G.K. Chesterton, The Drift from Domesticity: The Thing, 1929, in IN DEFENSE OF SANITY: THE BEST

ESSAYS OF G.K. CHESTERTON 173, 173–74 (Dale Ahlquist, et al. eds., 2011). 289 See Romer v. Evans, 517 U.S. 620, 631 (1996). 290 Thomas M. Messner, Same-Sex Marriage and the Threat to Religious Liberty, HERITAGE FOUND., (Oct.

30, 2008), http://www.heritage.org/research/reports/2008/10/same-sex-marriage-and-the-threat-to-religo

us-liberty. 291 Stewart, et al.,, supra note 236, at 266. 292 Id. at 273.


Unfortunately the courts ruling against gendered marriage laws have disre-

garded moral reasons without any sort of satisfactory explanation of why

those reasons are not legitimate. The recent majority opinion in Windsor, for

example, is implicitly hostile to the notion that morality is a legitimate gov-

ernment interest, yet it gives no reasons for its departure from the established

jurisprudence in favor of morality-based legislation.

In this Article, I have argued that morality is a legitimate government in-

terest, especially for state governments. A society in which morality plays no

role in politics is a hollow society. Only an interpretation of the Constitution

that allows for morality-based legislation accounts for the realities of human

interconnectedness and universal yearning for community. The same-sex

marriage debate is not fundamentally about tax benefits, visitation rights, or

other particularized grievances.293 Both sides want to harness the law pre-

cisely for its affect on public morality. Same-sex marriage advocates want

society to accept gay relationships as having co-extensive social and moral

value as opposite-sex marriages.294 Traditional marriage advocates want so-

ciety to protect the exceptional status of the biological family, to protect

against judges trampling majority rule, and to foster a community of common

moral foundations.295 The marketplace of ideas is most competent to answer

the morality-laden question of gendered marriage, not a court of law.

In the alternative, I have argued that there is sufficient evidence that gen-

dered civil marriage advances social health, safety, and welfare to dispel any

notion that traditional civil marriage is based on bald desire to harm LGBT

persons. The recent Windsor decision awkwardly concludes that DOMA is

totally motivated by hate. In supposing that gendered marriage law is based

on animus, the majority fails to even mention any of the scholarship pre-

sented to the Court in the record and in Amicus briefs, which support a find-

ing that gendered civil marriage indeed improves the health, safety, and wel-

fare of American society. Laws that recognize marriage as between one man

and one woman (1) improve marital stability, (2) honor a child’s right to bond

with and be reared by their biological parents, (3) gives proper deference to

tradition, and (4) protects religious liberty. The liberty interest of same-sex

couples to marry conflicts with the pre-existing liberty interests of children

to be reared by their parents and interests of society at large to live free of

hindrances to their health, safety, and welfare that result from a weaker public

concept of marriage. Thus, even in a society that accepts a modern liberal

293 The constitutionality of gendered marriage laws turns on the definition of marriage, not on the wisdom

of individual statutes. One can support gendered civil marriage while still advocating for additional LGBT

rights in medical care, fair housing, employment rights, probate rights, etc. 294 Harry R. Jackson Jr., Same-sex Marriage Will Hurt Families, Society, CNN OPINION (Sept. 6, 2010), h

ttp://www.cnn.com/2010/OPINION/08/07/jackson.same.sex.marriage/. 295 Id.


reading of the Constitution, it is still the duty of a court faced with a challenge

to gendered marriage laws to forthrightly weigh the competing liberty inter-

ests in their opinions rather than to ignore competent arguments that there are

competing liberty interests. Since the social benefits of man-woman civil

marriage are not identical or co-extensive to those of same-sex civil marriage,

the government is constitutionally justified in defining the two relationships

differently for purposes of the law.

Political Theory. the U.S. Constitution, and Same-Sex Marriage, 17 Rich. J.L. & Pub. Int. 847...

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