Making the Case in Virginia

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Bart Hinkle takes note that the libertarian Cato Institute “has done a great service by filing a brief in Virginia’s gay marriage case that makes a conservative argument for the liberal position” favoring marriage equality. He writes:

But what of tradition? Traditionally, marriage has meant the union of one man and one woman. Well, Cato retorts, “no tradition can supersede the Constitution.” That is a direct quote from Justice Antonin Scalia in a 1990 case. A nice touch. Cato goes on to cite several other cases, all making the same point as Scalia did. “If a so-called tradition or history of discrimination were sufficient to justify perpetuating the discriminatory practice,” writes [Cato’s Ilya Shapiro], “our public schools, drinking fountains, and swimming pools would still be segregated by race. . . . Carving out of the text of the 14th Amendment an exception for traditional forms of discrimination would have strangled the Equal Protection Clause in its crib.”

Virginia enacted its marriage amendment specifically to prevent gays and lesbians from exercising a liberty exercised by straights. As Cato’s brief makes abundantly clear, it is precisely the sort of state-imposed discrimination against a caste of people the 14th Amendment was written to prevent.

The brief, filed jointly by Cato and the Constitutional Accountability Center, can be read here. An overview by Cato’s Ilya Sharpiro’s can be read here.

18 Comments for “Making the Case in Virginia”

  1. posted by Tom Scharbach on

    Conservatives should joining the fight for marriage equality, and I’m glad to see that Cato, at least, is doing so. More power to them!

    Cato, by the way, also filed a brief in Kitchen v. Herbert (the Utah case). I hope to see them file in as many of the 60-odd cases now pending.

    • posted by JohnInCA on

      Cato is more consistently defined as “libertarian”, not “conservative.”

      In most cases the practical distinction is moot, but this is one where it actually matters.

      • posted by Tom Scharbach on

        I think you are right — in the case of marriage equality, the distinction matters.

        The reasoning of the Cato brief is grounded in the analogy between ban on interracial marriage declared unconstitutional in Loving and the ban on same-sex marriage in the case at hand. Indeed, the Cato brief ties Loving to the suffering of African-Americans denied the right to marry under slavery:

        The framers of the Fourteenth Amendment recognized the right to marry as a basic civil right of all persons, “one of the vital personal rights essential to the orderly pursuit of happiness . . . .” Loving, 388 U.S. at 12. …

        The Reconstruction framers further recognized the right to marry the person of one’s choosing as a crucial component of freedom and liberty — a right that had long been denied under the institution of slavery. Slaves did not have the right to marry, and slaves in loving relationships outside the protection of the law were time and again separated when one slave was sold to a distant part of the South. … As Sen. Jacob Howard explained, a slave “had not the right to become a husband or father in the eye of the law, he had no child, he was not at liberty to indulge the natural affections of the human heart for children, for wife, or even for friend.” Cong. Globe, 39th Cong., 1st Sess. 504 (1866).

        In the Fourteenth Amendment, the framers thus sought to guarantee to the newly freed slaves the right to marry that they had long been denied. “The attributes of a freeman according to the universal understanding of the American people,” Sen. Jacob Howard observed, included “the right of having a family, a wife, children, home.” Id. … Even opponents of the Fourteenth Amendment recognized that “marriage according to one’s choice is a civil right.” Id. at 318. …

        Indeed, few rights were more precious to the newly freed slaves than the right to marry. With the abolition of slavery, “ex-slaves themselves pressed for ceremonies and legal registrations that at once celebrated the new security of black family life and brought their most intimate ties into conformity with the standards of freedom.” II FREEDOM: A DOCUMENTARY HISTORY OF EMANCIPATION, 1861-1867, at 660 (I. Berlin et al. eds. 1982). “[M]ass wedding ceremonies involving as many as seventy couples at a time became a common sight in the postwar South.” LEON F. LITWACK, BEEN IN THE STORM SO LONG: THE AFTERMATH OF SLAVERY 240 (1979).

        The newly freed slaves rejoiced to finally, at long last, have the right to marry the person of their choice protected and secured by law. As one African American soldier put it, “I praise God for this day! I have long been praying for it. The Marriage Covenant is at the foundation of all our rights. In slavery we could not have legalised marriage: now we have it.” II FREEDOM: A DOCUMENTARY HISTORY at 672 (emphasis omitted). On January 1, 1866, African Americans called the first anniversary of the Emancipation Proclamation “a day of gratitude for the freedom of matrimony. Formerly, there was no security for our domestic happiness. . . . But now we can marry and live together till we die . . . .” Hasday, 45 U.C.L.A. L. REV. at 1338 n.146. In short, the right to marry “by the authority and protection of Law,” confirmed that the newly freed slaves, finally, were “beginning to be regarded and treated as human beings.” JAMES MCPHERSON, THE NEGROES’ CIVIL WAR 604 (1991).

        In writing into the Fourteenth Amendment a requirement of equality under the law and equality of basic rights for all persons—which included the right to marry—the Amendment’s framers ensured that discriminatory state laws would not stand in the way of Americans exercising their right to marry the person of their own choosing. Laws that discriminate and deny to members of certain groups the right to marry the person of their choice thus contravene the original meaning of the Fourteenth Amendment.

        The Supreme Court has many times vindicated this principle. Most famously, in Loving v. Virginia, the Court invalidated the laws of Virginia and fifteen other states that outlawed interracial marriage. Observing that marriage is “one of the ‘basic civil rights of man,’” Loving, 388 U.S. at 12 (quoting Skinner, 316 U.S. at 541), the Court held the denial of the “fundamental freedom” to marry “solely because of racial classifications violates the central meaning of the Equal Protection Clause.” Id.5 “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual . . . .” Id.

        While I have no doubt that the analogy drawn will enrage social conservatives and discomfit those (like Rauch) who are working so hard to decouple our struggle for marriage equality from the struggle of African-Americans, I think that the argument is legally correct, and extremely persuasive.

      • posted by Lori Heine on

        Actually, the distinction is present in quite a few areas.

        Getting us out of ruinous, meddling foreign wars and ending fat-cat favoritism to big corporations is not generally beloved by conservatives. Neither is legalizing weed.

        I hear the whoppers told daily about libertarians on MSBNC. Because I am an actual libertarian, I know better than to believe them.

        • posted by Lori Heine on

          I absolutely hate the way this site separates comments meant to reply to others from the comments we’re trying to reply to. My previous remarks concerned John in CA’s comment about libertarians, not Tom’s last comment.

        • posted by Tom Jefferson III on

          –Actually, the distinction is present in quite a few areas.

          Theoretically I would agree with you (mostly). However, in practical, real world political terms conservatives and the libertarian right, don’t find it too hard to share a bed, especially with regards to economic policy.

          Again, theoretically their are indeed important differences between the libertarian right view of economic policy/theory and a conservative theory.

          However, what more practical result is that the libertarian right agrees to sleep with conservatives, because they both like to make statements about limited government, lower taxes, less regulation and the like.

      • posted by Tom Jefferson III on

        Cato is probably more libertarian then conservative, although that rarely highlights too many differences — in terms of legal briefs — outside of the area of equal protection/due process under the law.

        I think the first time that Cato filed a brief in favor of gay rights was back in 2003 (sodomy laws). The libertarian Institute for Justice also similar a similar brief in that Lawrence case.

  2. posted by Jorge on

    That the argument exists and that people exist to make the argument is worth noting as a political matter. That doesn’t make either of them right.

    “No tradition can supercede the Constitution.” Now it is time to take our seats before the argument for the Constitution.

    Virginia enacted its marriage amendment specifically to prevent gays and lesbians from exercising a liberty exercised by straights. As Cato’s brief makes abundantly clear, it is precisely the sort of state-imposed discrimination against a caste of people the 14th Amendment was written to prevent.

    And yet it was no protection against a law in New York written without any idea that there could be such a thing as gay marriage, yet leading to the same result.

    It’s a result that’s deserved. I doubt gay marriage could be held back without recourse to unethical arguments. In the past, yes. But not today. Too much is known now. It will not be the courts that will enact a radical redefinition of marriage.

    • posted by Jorge on

      It’s a result that’s deserved.

      I mean to refer to the fact that most state bans have failed.

  3. posted by Tom Scharbach on

    I notice, by the way (relevant to the previous post (“Opposing Gay Marriage vs. Opposing Inter-racial Marriage”), that the Cato brief cites Loving and reasons from that case to support its own reasoning in supporting marriage equality.

  4. posted by Houndentenor on

    Depending on how far we want to go back into our history, the “tradition” of marriage also includes polygamy, women being bought and sold, wives not being able to have credit in their own names (and losing any credit rating upon the death of their husbands or in a divorce), arranged marriages, and many other practices that we would no long find acceptable, and which in many cases are now illegal. Marriage in 2014 is not what it was in 1914 or 1814 or 1714 and on and on. Our idea of what marriage is or at least what it should be has evolved and mostly for the better.

    I am happy to see conservatives and libertarians join us on this issue. Actually a lot of libertarians have been in favor of gay rights for decades. It’s the social conservatives that are the problem on the right and they will continue to be the problem until more conservative leaders and active politicians are willing to stand up to them.

  5. posted by Houndentenor on

    At some point in the future, (maybe as soon as 2020), a winning GOP presidential candidate will have a “Sister Souljah” moment. He (or she) will risk a nomination by taking on the religious right on gay rights or some other issue and it will be the deciding factor in being electable in the general. It’s going to stun the party establishment and the religious right talking heads, but the party as a whole will have already been there for several years. I wish I could say that was going to happen in 2016 but I think such a tactic would torpedo the primary possibilities for any Republican that soon. (I could be wrong.)

    • posted by Tom Scharbach on

      I wish I could say that was going to happen in 2016 but I think such a tactic would torpedo the primary possibilities for any Republican that soon. (I could be wrong.)

      You could be wrong, but I doubt it. Stephen has frequently pointed out that we are several election cycles away from that day, and I agree with him. Given the speed with which things have been moving lately, though, it might well happen in 2020.

      A lot depends on what the 2016 nominee does if a SCOTUS decision comes down in June 2016.

      If the nominee issues a call for acceptance (“The Supreme Court has spoken; marriage equality is the law of the land …“) then the party will move relatively quick to acceptance. If the nominee issues a call for resistance (“The definition of marriage belongs to the states and the people, not the federal government. It is illegitimate for the Supreme Court to intrude on states’ rights.“) then change will be delayed.

      We will just have to see what happens in 2016.

      • posted by Houndentenor on

        I think that more than anything else the timing will be determined by the generational shift in the party. No one can predict such a thing 6 much less 10 or more years out, but at some point the next generation will assume that leadership role in the GOP and they are far less concerned about the gay issue (and according to polling even more likely to be for gay rights). Actually even among Evangelicals the younger generation is very much more pro-gay. That shift is coming, and I’ll be as pleased as anyone when that day comes. It’s the one benefit to being cynical. Almost any good news comes as a pleasant surprise.

        • posted by Tom Scharbach on

          I think that we’ll see the party move in two phases.

          The first phase will be acceptance that marriage equality is a fact on the ground, and a ceasefire on the issue. I think that we could see that as early as 2020, depending on how the 2016 nominee handles a Supreme Court decision.

          The second phase will be moving from acceptance that marriage equality is a fact on the ground to support for marriage equality. I think that will come with the generational shift, but not before.

          Like you, I’ll be pleased to see any positive movement in the Republican Party. Obviously, I’d rather have Republicans support marriage equality than not, but grudging acceptance will suffice. The sooner Republicans get out of the way of equality, the better.

    • posted by Jorge on

      Seems to me that Ron Paul already tried that, and George W. Bush already differed from the religious right in an understated way. As you say, the party will have already been there for several years, but you can’t predict individual behavior or how it plays out in elections.

      • posted by Tom Scharbach on

        Seems to me that Ron Paul already tried that …

        If by “that” you mean signalling resistance to a Supreme Court ruling, you are dead on target.

        My example of resistance is a paraphrase of Rand Paul’s recent statement about the Kentucky federal court ruling. Here’s Paul’s exact quote:

        I believe in the historic and religious definition of marriage. I also believe this power belongs to the states and the people, not the federal government. It is illegitimate for the federal courts to intrude here.

        Believe me, if Republicans follow Paul down the road of defiance of the Supreme Court’s ruling, change in the Republican Party will be a long time coming.

  6. posted by JohnInCA on

    The Cato Institute has been “on our side”, at least so far as willing to fire briefs in our defense, at least as far back in Lawrence v. Texas. This is no surprise. It also shouldn’t be taken as any indication of movement on the right when the long-standing outlier continues to be an outlier.

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