Gay sex and marriage, the reciprocal disadvantage problem, and the crisis in liberal constitutional theory.

• Author: Seidman, Louis Michael
• Position: Symposium: Law and Morality

There is nothing unusual about constitutional controversy, but some disagreements, typified by the argument over constitutional protection for gay sex and marriage, go beyond ordinary differences of opinion. Some opponents of constitutional protection for gay rights think that their adversaries are not just wrong, but have exceeded the bounds of respectable constitutional argument. They want to turn the defense of gay constitutional rights into a position that dare not speak its name.

Consider, for example, Justice Scalia. For him, the Supreme Court's defense of gay rights "employs a constitutional theory heretofore unknown" (1) and depends on "a novel and extravagant constitutional doctrine." (2) The Court's treatment of the gay community as a politically unpopular group worthy of constitutional protection is "nothing short of preposterous" (3) and "insulting." (4) A Court opinion striking down discrimination against gay men and lesbians "has no foundation in American constitutional law, and barely pretends to." (5) Justice Scalia is not exactly known for understatement, but even for him, these are strong words. What, precisely, is he so upset about?

This brief Essay does not take a strong stand on whether the constitutional case for gay rights has been made. Instead, it attempts to explain why Justice Scalia and his allies are wrong to think that the case for gay rights is outside the range of reasonable constitutional argument, and to speculate about why they nonetheless hold this view.

I.

Justice Scalia's core objection to constitutional protection for gay rights is that providing such protection requires the Court to "tak[e] sides in the culture war, departing from its role of assuring, as a neutral observer, that the democratic rules of engagement are observed." (6) Any honest argument favoring constitutional protection for gay sex and marriage must begin with a concession: Justice Scalia is right when he insists that affording gay relationships constitutional protection takes one side on a currently contestable moral question.

This concession does not amount to much, however, because of what one might call the principle of reciprocal constitutional disadvantage. It is true, as Justice Scalia insists, that constitutional protection for gay sex and marriage implicates one set of moral views. The problem is that failing to provide constitutional protection for gay sex and marriage implicates a reciprocal set of moral views. The principle of reciprocal constitutional disadvantage means that the morality charge is a wash. The inability to separate constitutional law from nonconstitutional moral principles does indeed create a kind of crisis for standard forms of liberal constitutionalism, but it does not disadvantage proponents of constitutional protection for gay marriage. Courts are simply stuck taking a stand in the culture war whichever way they rule. Justice Scalia, therefore, will have to look beyond the supposed requirement of moral neutrality to justify his opposition.

This assertion is itself contested, but it follows more or less inevitably from the logic of the Equal Protection Clause. (7) The reasons why are familiar, (8) so I will simply sketch them here. Equal treatment is not the same as identical treatment. Equality means treating people similarly to the extent that they are the same, but differently to the extent that they are different. People, however, are similar and different across an infinite range of dimensions. Thus, making the equality norm operational requires a decision regarding which differences and similarities are relevant.

Relevance can be understood as either a moral or an instrumental virtue, although, for reasons outlined below, the instrumental version turns out to collapse into the moral version. The overtly moral version of relevance directs our attention to the attributes that matter according to a particular moral theory. For example, one might say that sex between individuals of different races cannot be outlawed because race is a morally irrelevant characteristic, at least when it comes to the flourishing derived from sexual intimacy. (9) Sex between humans and nonhumans can be outlawed, for equal protection purposes, because species lines are relevant to sexual intimacy in a way that race is not. (10) Are gender lines relevant? Perhaps there is a right answer to this question, but the answer depends upon one's conception of human flourishing--assuming that human flourishing is the appropriate moral standard for right action, which is itself contested.

It follows that if one adopts the moral version of relevance, arguments for or against a constitutional right to gay marriage suffer from reciprocal constitutional disadvantage. A ruling that gay marriage is either like or unlike interracial marriage requires a moral judgment. This result is hardly surprising, given that we have begun with a moral conception of relevance. It may come as more of a surprise that it is not possible to avoid reciprocal constitutional disadvantage by treating relevance as an instrumental virtue.

On the instrumental theory, people are treated equally when the differentiating trait is instrumentally useful in advancing an end that the government legitimately can pursue. There are two problems with this version of relevance. First, it is not clear that this version corresponds to ordinary intuitions about equality. For example, the standard of instrumental relevance might be satisfied by a government program that inflicted very large losses on a small group of people in order to achieve trivial benefits for a majority.

The second, perhaps more serious, problem is that most of the work done by the instrumental formulation is accomplished by the requirement of a legitimate governmental end. Without this qualification, no differentiation could ever be instrumentally irrelevant, because any classification advances some end. For example, discrimination against gay men and lesbians is instrumentally rational if the aim is making the lives of gay men and lesbians as unhappy as possible. (11)

How should the realm of legitimate governmental ends be limited? On one approach, the limitation is supplied by the Constitution, which provides the exclusive specification of the ends that the government may pursue. (12) The trouble with this approach is that it makes the Equal Protection Clause surplus-age. If the Clause does no more than outlaw ends that are already outlawed, then it accomplishes nothing. The only way to give the Clause content, at least in its instrumental form, is to specify ends that the rest of the constitutional text does not prohibit, but that are nonetheless illegitimate bases for government differentiation. The only way to do that is to deploy some extra-constitutional moral theory.

Liberal constitutionalists typically make use of two escape hatches to avoid these disquieting conclusions. Some people, including Justice Scalia, argue that when constitutional judgments implicate contestable moral questions, the matter should be remitted to ordinary political processes. (13) This assertion is made so frequently and with such assurance that it is often given credence that it does not deserve. A preference for the political process itself reflects a contestable moral judgment. It does not automatically follow from the fact of moral disagreement that the matter should be decided collectively and publicly. Widespread disagreement exists about the nature of God and about sensible child-rearing techniques. Few people think that these matters should therefore be settled through political processes. Instead, disagreement on the answers to these questions means that individuals should decide on appropriate answers for themselves.

Moreover, it is important to emphasize that a decision either for or against every equal protection claim rests on a moral judgment. The first escape hatch, therefore, would mean that equal protection questions should always be resolved by ordinary political processes. A strong reading of Section 5 of the Fourteenth Amendment and its drafting history might support the view that the Amendment was intended to grant power to Congress, rather than to the courts. (14) Even on this reading, however, courts would have to decide moral questions about equality in order to determine whether Congress had acted within its granted powers. Moreover, this is not the standard reading of the Amendment, and it is certainly not the reading adopted by Justice Scalia and his allies. (15) On the standard reading, the Amendment defines judicially enforceable limits on political decision making. If one adopts the standard reading, the relegation of all moral questions to political decision making effectively ignores the Fourteenth Amendment's command, a position that itself would have to rest on some extra-constitutional moral judgment.

The second escape hatch conflates the command of the Equal Protection Clause with the particular moral conceptions of equality held by the Framers of the Constitution. Justice Scalia has also identified himself with this view, (16) but the position is similarly untenable. The problems with this position are...