The constitutionality of Proposition 8.

• Author: Epstein, Richard A.
• Position: Gay marriage

Is Proposition 8 (1) unconstitutional? This straightforward question is a very difficult topic to address, particularly because the entire litigation is ill-conceived, and because I am a fairly ardent libertarian with respect to matters of personal behavior. This Essay will argue that there is a political case for gay marriage, but in the end, it concludes that the political case does not rise to the level of a constitutional case. That conclusion holds true whether this question is conceived broadly--the approach the debate between Professor William Eskridge and myself originally took (2)--or whether it is conceived more narrowly, in connection with the particular circumstances of Proposition 8 and the history that preceded it.

The single most salutary proposition that guides a libertarian thinker is this: An individual who is deeply offended by the personal conduct of other people has no warrant to alter or change their conduct unless and until the conduct involves the use of force and fraud against the individual. (3) Interference with intimate, personal behaviors requires a powerful social warrant. It is very difficult to bring these personal behaviors within the Millian principle that proscribes harm to others, (4) at least if harm is defined to exclude personal offense. So, for a libertarian, the difficulty with issues surrounding gay marriage derives not from the institution of marriage as such, but rather from the state requirement of marriage licenses.

The insistent question is this: If marriage is some kind of natural associational freedom, why may the state horn in to decide that a particular person can or cannot get a marriage license? It is possible to justify this state intervention on the grounds that some people are too young or too feeble to marry. Yet clearly these standard protective measures are not what is at stake in this debate.

As a matter of first principle, the system of state marriage licenses should be examined through the lens of the doctrine of unconstitutional conditions. (5) If the state is going to give licenses to one group of people to engage in a certain transaction, then it must have strong reasons for denying licenses to any other group of people seeking the same privilege. This approach, under straight political theory, would mean that a limited state could not pick and choose its friends. Once various activists and religious groups recognize that marriage licenses have been taken out of politics, then they have nothing to gain from agitation. Their best response, therefore, is to insist on maintaining the integrity of their own institutions, while becoming profoundly indifferent to the behaviors of other people and their choice of whom to marry.

The great virtue would be this: If by taking offense one does not get any moral claim over other people's virtues, then agitation and distress only hurts one's self, without generating any collateral political advantage. At this point society gains the ideal position as a matter of political economy--that situation, to paraphrase David Hume, where carelessness and inattention to the foibles of other people become the dominant strategy for all individuals who wish to make their way in the world. (6) People would not have to show mutual respect for the behaviors of others, but they would be required, at the very least, to tolerate those behaviors. Once toleration is the required norm, perhaps by degrees and over time, some mutual cordiality could develop as well, as different groups seek to forge some common ground on issues of mutual concern. The libertarian's hope is that people will come to see the wisdom of a legal regime that denies all interest groups the ability to control the political process based on a deep-seated conviction of the moral superiority of their own views. Notwithstanding the ups and downs on the issue of gay marriage, the level of mutual toleration seems to have increased in the United States, so that those opposed to gay marriage are now more willing to adopt a live-and-let-live approach to one of the most divisive issues of our time.

One sign of this progress is that the present debate is not about whether the legal system should afford protection to gay couples. (7) Contemporary dialogue is far removed from the debate in the 1960s about whether the state should remove gay and lesbian conduct from the list of criminal offenses recognized by various psychiatric groups. (8) Most opponents of gay marriage concede that civil unions grant gay parties all of the rights and disabilities of marriage, and the dominant issue is instead the (highly important) symbolic question of whether the state should attach the label of "marriage" to civil unions. (9) The bottom line is that we have gone very far already, but it turns out that the last five percent of this long journey is still capable of causing much grief.

How, then, should we think about the difficulties in California? The ideal approach may be to wait five years, hold another referendum, and turn the popular sentiment so that it is at least fifty-four to forty-six in the other direction, a very realistic shift in public opinion. That gradualist approach puts the constitutional debate to one side and lowers the political temperature. The supporters of gay marriage who win on this issue would then have political legitimacy squarely on their side. Although I am generally uneasy with referenda, (10) in the case of California it may be best to resolve the entire...