Brief of Amici Curiae Professors Laurence H. Tribe and Michael C. Dorf in Support of Petitioners: Obergefell v. Hodges; DeBoer v. Snyder

Abstract

Amici curiae are Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, and Michael C. Dorf, the Robert S. Stevens Professor of Law at Cornell University Law School. In addition to their numerous respective other scholarly works on same-sex marriage and constitutional law more generally, twenty-five years ago Professors Tribe and Dorf wrote an article and a book addressing an issue that is implicit in the Court’s first certiorari question but that may be given insufficient attention by the parties: At what level of generality should the fundamental right to marry be formulated? This brief considers that question in the event that this Court wishes to rest its judgment on principles of due process instead of, in addition to, or as this brief urges, as intertwined with, principles of equal protection.

This brief addresses whether state bans on same-sex marriage violate the Due Process Clause of the Fourteenth Amendment. It concludes that such bans are unconstitutional because they violate the fundamental right to marriage recognized in Loving v. Virginia, 388 U.S. 1 (1967), and other cases. In Loving, this Court invalidated Virginia’s ban on interracial marriage on the ground that the challenged law discriminated on the basis of race in violation of equal protection and on the alternative ground that its denial of the “fundamental freedom” to marry was “unsupportable.” 388 U.S. at 12. This Court’s subsequent decisions in Zablocki v. Redhail 434 U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78 (1987), confirmed that marriage is a fundamental right. The Court’s opinions carefully scrutinized the justifications for the marriage restrictions at issue in those cases and held that neither failure to make child support payments nor imprisonment provided sufficient grounds to infringe that fundamental right. State bans on same-sex marriage are likewise unconstitutional infringements on the fundamental right to marry recognized in those three cases. Under Lawrence v. Texas, 539 U.S. 558 (2003), and United States v. Windsor, 133 S. Ct. 2675 (2013), it is clear that demeaning views of same-sex relationships cannot provide a valid basis for restricting the fundamental right to marry.

Some defenders of state same-sex marriage bans contend that this Court changed its analysis of fundamental rights in Washington v. Glucksberg, 521 U.S. 702 (1997), and mandated a very narrow delineation of the fundamental right claimed to be at issue in any given case. But in Glucksberg, which declined to categorically invalidate state laws prohibiting assisted suicide, the Court found no fundamental right to commit suicide comparable to the right to marry, and then went on to find no reason to permit persons to assist others in committing suicide. There is simply no merit to the claim that Glucksberg profoundly altered this Court’s approach to identifying fundamental rights, and the argument advanced by Judge Niemeyer in dissent in Bostic v. Schaefer, 760 F.3d 352, 386 (4th Cir. 2014), is therefore wrong.

Judge Niemeyer’s argument that fundamental rights must be defined very narrowly may be understood as an attempt to revive an approach suggested by Justice Scalia in footnote 6 in Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989). That footnote was joined by only one other Justice and the rejected by the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847-48 (1992). And rightly so. Footnote 6 in Michael H argued that any other approach to analyzing historical traditions was arbitrary. 491 U.S. at 127 n.6. But the narrowest-level approach is no more principled, and thus it makes a false claim to value-neutrality.

Although no method of constitutional construction is purely value-neutral, Justice Harlan’s pathbreaking dissent in Poe v. Ullman, 367 U.S. 497, 539-55 (1961), points the way to a moderately constrained methodology which looks, inter alia, to other parts of the Constitution itself — especially the Bill of Rights — for guideposts.

This Court’s precedents have identified another textual source to guide fundamental rights analysis: the Equal Protection Clause. In Lawrence, the Court built on Justice Harlan’s approach in holding that adults “engaged in sexual practices common to the homosexual lifestyle … are entitled to respect for their private lives” and that state sodomy laws therefore violated the liberty protected by the Due Process Clause. 539 U.S. at 578.4 And in Windsor the Court struck down Section 2 of the Defense of Marriage Act because its purpose and effect were “to demean those persons who are in a lawful same-sex marriage.” 133 S. Ct. at 2695. Those holdings together make clear the linkage between constitutional equality and constitutional liberty. Applied in the current setting, they show why the challenged laws violate both the Equal Protection and Due Process Clauses.

This Court need not fear that failure to restrict the previously recognized right to marry would entail a right to incestuous, polygamous, or child marriage. Laws forbidding or denying recognition to these practices can be defended based on their protection of the rights and interests of persons other than fully consenting adults.