Equal access and the right to marry.

• Author: Tebbe, Nelson

How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We argue that the right to marry is best conceptualized as a matter of equal access to government support and recognition, and we contend that the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal protection law. Two other arguments have dominated litigation and adjudication so far, but both of them suffer from weaknesses. First, a liberty theory grounded in due process argues that everyone has a fundamental right to civil marriage. But civil marriage is a government program that states likely could abolish without constitutional difficulty. In that way, it differs from other family-related liberties such as the ability to procreate or engage in sexual intimacy. Second, an equality theory suggests that classifications on the basis of sexual orientation are constitutionally suspect. But that approach is unlikely to succeed in the Supreme Court or many state tribunals. Equal access, in contrast, requires states to justify laws that selectively interfere with civil marriage, regardless of any independent due process or classification-based equal protection violations. We show how this approach is grounded in precedent regarding intimate relationships, as well as in analogous law concerning voting and court access. Our proposal offers courts a workable way to evaluate the constitutionality of different-sex marriage requirements and a more satisfying conceptual basis for the right to marry generally. It also suggests a useful framework for thinking about recognition of other nontraditional family structures.

INTRODUCTION I. DUE PROCESS A. A Brief Summary of Litigation B. Confusion over the "Right to Marry". C. An Unpersuasive Critique D. Two Weaknesses 1. Marriage and Procreation 2. The Structure of the Right II. CLASSIFICATION-BASED EQUAL PROTECTION III. EQUAL ACCESS A. Marriage as a Fundamental Interest B. Liberty and Equality 1. Liberty 2. Equality 3. Synergy? C. Traditionalism and Progressivism D. Limits 1. Substantial Burden 2. Inequality 3. Interest Balancing E. Application of the Equal Access Approach 1. Complete Denial of Marriage Rights 2. Creation of a Separate Status CONCLUSION INTRODUCTION

How should courts think about the right to marry? This is a question of principle, of course, but it is also a matter of litigation strategy for advocates challenging different-sex marriage laws across the country. Now that David Boies and Theodore Olson have filed a prominent federal lawsuit, the question has taken on even greater urgency. (1) In this Article, we argue that the interest at stake is best described as a right that we call equal access: once a state decides to recognize and support marriage, it presumptively must make that status available evenhandedly. Our concept of equal access is grounded doctrinally in the fundamental interest branch of equal protection law; it is distinct from the substantive due process claims and classification-based equal protection claims that have dominated recent efforts to enforce marriage rights. We show that in earlier cases concerning civil marriage, as well as in analogous cases concerning voting and court access, the Supreme Court has invalidated selective denials of access to fundamentally important government institutions even if the interests at stake were not separately protected by the Due Process Clause and even if a particular classification was not recognized as inherently suspect. (2) Yet in the same-sex marriage context, courts and commentators have failed to appreciate the extent to which fundamental interest claims under the Equal Protection Clause require separate analysis. This is a significant oversight that forfeits the unrealized potential--both strategic and conceptual--of the equal access approach.

Our proposal is particularly important because both of the primary alternative arguments supporting marriage rights for same-sex couples have weaknesses. First, a liberty theory grounded in substantive due process argues that everyone has a fundamental right to civil marriage. (3) This claim has been largely unsuccessful in same-sex marriage litigation. State courts and lower federal courts have typically agreed (often with little analysis) that there is a fundamental right to marry for different-sex couples. However, they have held that there is no corresponding right to "same-sex marriage" because that specific interest is not deeply rooted in American history and traditions, as some due process doctrine seems to require. (4) Thus, even in states where same-sex couples have won the right to marry, courts have rested their holdings on grounds other than a fundamental right to marriage protected by federal or state due process provisions. (5) We disagree with the line these courts draw between "marriage" and "same-sex marriage," but there is a deeper difficulty with this first line of argument: there may be no due process right to civil marriage at all, even for different-sex couples.6 First of all, the precedents that courts cite when they seek to identify a due process right to marry ground that right in the separate liberty interest in procreation. That connection has been undermined by the widespread acceptance--as a matter of constitutional doctrine, statutory reform, and societal change--of sexual intimacy and childbearing outside marriage. But the more fundamental issue is that civil marriage is a government program that provides certain benefits and imposes certain obligations. In this respect, it differs from other family-related liberties, such as rights that protect decisions regarding child rearing, procreation, contraception use, or termination of a pregnancy. All of those rights exist independent of government involvement, and all of them enjoy protection against state interference under substantive due process doctrine. Civil marriage is also different from private or religious marriage, which likewise may well be protected by a basic liberty right. (7)

To see this, consider that states could almost certainly get out of the marriage business altogether, leaving marriage to religious groups or other private institutions. They could choose to offer civil unions or domestic partnerships, under which both same-sex and different-sex couples would enjoy all the material benefits that formerly flowed only from marriage. Or they could choose to make other family relationships the primary bases for government benefits or recognition, such as relationships between parents and children. (8) While these options are probably not politically viable today, they likely do not violate any federal constitutional rights. Yet abolishing civil marriage would impose the greatest possible burden on the freedom to participate in state-sponsored marriage. That result seems incompatible with a pure liberty approach that grounds the right to civil marriage in due process.

The second argument dominating litigation today is that different-sex marriage requirements discriminate on the basis of sexual orientation in violation of the Equal Protection Clause or parallel state provisions. (9) Generally, the success of this claim has turned on whether courts have been willing to hold that classifications on the basis of sexual orientation require heightened scrutiny. Plaintiffs have won the right to marry, or at least the right to a legal status equivalent to marriage, in states that have determined that sexual orientation classifications are presumptively suspect. (10) But state courts in New York, Washington, Maryland, Indiana, and Arizona have all held that classifications on the basis of sexual orientation do not pose special concerns. (11) Lower federal courts have also rejected the contention that such distinctions should be recognized as inherently suspect. (12) There is a widespread sense that the Supreme Court is unlikely to announce a new constitutional presumption against all classifications based on sexual orientation. Partly, this may be because the Court seems to be moving away from the traditional tiers-of-scrutiny framework altogether. (13) And where ordinary review has been applied, most courts have upheld marriage bans, (14) although Massachusetts found that different-sex marriage requirements failed to satisfy even rationality review. (15) Overall, the classification-based equal protection argument against same-sex marriage exclusions faces real challenges, particularly in federal court.

We argue that the right of equal access to civil marriage is best thought of neither solely as a matter of due process, nor only as a question of classification-based equal protection. Instead, our equal access approach holds that, once conferred, the right to marry in a legally recognized ceremony is fundamental: if a government decides to recognize and support civil marriage, it cannot exclude same-sex couples without providing an adequate justification. A presumption of unconstitutionality is appropriate here because of the particular harm that may arise when the material and expressive benefits of a fundamentally important government institution are extended unequally. That harm may exist even if the interest at stake is not a fundamental liberty protected by the Due Process Clause and even if a particular classification has not been recognized as inherently suspect. Independent analysis is required to determine whether a different-sex marriage requirement can stand under our equal access proposal. Pointing this out to courts is effective strategy for litigants. As important, equal access opens up a more satisfying way of conceptualizing the right to civil marriage.

We show that the right to marry is similar in structure to other guarantees...