Constitutional Law Class Notes 4/13/04


More on Lawrence


So does the Federal Constitution require a state to extend the right to marry to homosexual couples on the same terms that it grants such rights to heterosexual couples?  The majority isn’t explicitly ready to take such a step.  The opinion suggests sort of the reverse of Grutter’s sunset provision.  Maybe in 25 years, gay marriage will be allowed.  How can this be justified as a legal judgment?  The individuals who are on the Court now would vote to say that the Constitution doesn’t require equality of marriage as a matter of Con Law.


Will the justices not enforce the Constitution because they’re not ready to?  The Court doesn’t claim that the Constitution has evolved between Bowers and this case.  They say that they misunderstood the Constitution back then but they understand it correctly now.  What about the equal protection argument?  Would a law against polygamy create a suspect classification on the basis of “plural marriage”?


This opinion is not understood to grant a right to gay sex inside of marriage.  That’s the correct analysis of Lawrence today.  Is that the correct application of constitutional reasoning?  Is this really constitutional interpretation, or is this just judicial fiat?  Every opinion except for Thomas’s addresses gay marriage.  Are these judges 17 years more “advanced” than the Bowers Court?


This is a criminal law with criminal consequences attached.  Liberty is really at stake.  People could go to jail.  People could be labeled sex offenders.  With respect to the Lawrence majority, if a law is only motivated by a moral purpose with no constitutional standing, it flunks.  As far as O’Connor goes, equal protection applies to civil law.  O’Connor says that it’s a violation of the Equal Protection Clause to deny gay citizens of Texas of intimate relations.  Wouldn’t it be the exact same denial of equality to say that gays can’t marry?  Is the Supreme Court really doing its job of interpreting and enforcing the Constitution?  Did the justices willfully subvert the Constitution?  That seems quite unlikely.  But we seem to like Lawrence.  There hasn’t been an argument that what the Court has done is appropriate.  Some people shed tears of joy when this case came down.  Some people really believed that this was a vindication of how great the Constitution is.


Foley says that the majority is saying that this case is about love and intimacy and people being able to find themselves.  Why not marriage?  The reason of why not is not a reason of Constitutional Law, but rather a pragmatic reason.  What should the justices have said in Lawrence?  Shouldn’t constitutional questions have answers, at least in principle?  When we argue about the Constitution, we act like the Constitution has the right answers, even if we disagree on them.


What do we get out of Griswold?  Here’s one way to understand Griswold and the concept of “unenumerated rights”.  James Madison, when he wrote the list of rights in the Bill of Rights and submitted it to the states, did not include a right of marriage because he thought it was so obvious.  The idea that Congress could take that right away was so far fetched that there was no reason to say anything.  He talked about the things that people were afraid that the American government would do because tyrannical governments like the British government did them.  He also said: “This isn’t a complete list of all the things that tyrannical governments do.  The Ninth Amendment says that there are other rights that should be protected but aren’t listed.”  If you asked James Madison whether the right to marry was fundamental, he would say: “Absolutely.”  Once the right to marry is worthy of constitutional status, then a new aspect (contraception) comes along and you can argue that it must be protected as part of that essential right.  That would be a way to understand Griswold, at least narrowly.  That’s a way to add a constitutional right even thought it’s not mentioned.


It’s harder to make that kind of James Madison argument with respect to homosexuality.  Madison would have said: “Of course we’re not protecting gay marriage.  The right of heterosexual marriage is protected.”  But what about Loving v. Virginia?  Madison would have said that miscegenation laws are okay.  But we could argue that the Equal Protection Clause of the Fourteenth Amendment came along later.  But then Bowers makes sense on its own terms when it refers to American history and tradition.  The kind of move that you can make with respect to race discrimination in Loving is hard to make in terms of gay marriage.  What reasons justify the Court for the two things it does in Lawrence?  It makes a substantive ruling and it overrules precedent.


Equal protection would have been a narrower ground for decision here.  Foley predicted that the majority would go with O’Connor.  The majority went out of their way to embrace the substantive due process issue.  They wanted to go out of their way to show that laws like the Georgia law (against sodomy regardless of sexual orientation) were unconstitutional in addition to laws like the Texas law (only against homosexuals).


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