In the wake of a remarkable string of lower court decisions holding that the Constitution requires marriage equality, states still defending discriminatory marriage laws, and their allies, have radically changed their strategy, de-emphasizing the “responsible procreation” arguments that have fallen flat.   In the cases now awaiting Supreme Court review, the leading argument being pressed by opponents of marriage equality is that the people of the states – either through an act of the voters or the state legislature – must be free to choose to define marriage how they see fit, free from constitutional constraints.  In other words, equal rights for same-sex couples should be up to a vote of the people, and courts have no business interfering with the result.   Some of the petitions seeking Supreme Court review go even further.  Utah’s petition for a writ of certiorari in Kitchen v. Herbert and Oklahoma’s petition in Smith v. Bishop argue that the Tenth Circuit’s rulings striking down those states’ same-sex marriage bans as a violation of the Fourteenth Amendment are tantamount to voter suppression, disenfranchising the people of the states.   

However, as we explain in this issue brief, these arguments not only misread the substance of the Fourteenth Amendment, which establishes universal guarantees of liberty and equality that protect all persons, but also contravene first principles of constitutional supremacy, federalism, and the role of the courts in our constitutional system going all the way back to the Constitution’s Founding.   

From the very beginning of our Constitution’s history, courts were designed to be the frontline defense against constitutional violations committed by state governments.   When the Framers wrote our Constitution more than two centuries ago, they were particularly concerned about violations of rights committed by state governments, which had gone unchecked under the dysfunctional government created by the Articles of Confederation.   Without a supreme federal power overseeing the states, James Madison argued, our system of government would be a “monster, in which the head was under the direction of its members.”  To check abuses by state governments, the Framers made the Constitution “the supreme law of the land,” rendering “any Thing in the Constitution or Laws of any State to the contrary” null and void.  Simply put, the people of a state could not choose to adopt a state Constitution, or state laws, that transgressed the federal Constitution.  States would, of course, have substantial latitude to formulate their own policies, but they could not put constitutional protections up to a vote.    

To ensure the Constitution’s supremacy not merely on paper but in fact, the Constitution gave courts the power of judicial review.  As Alexander Hamilton argued, [C]ourts of justice” would function as “bulwarks of a limited Constitution,” who would “guard the Constitution and the rights of individuals” from “designing men” who have a “tendency . . . to occasion dangerous innovations in the government, and serious oppression of the minor party in the community.”  Since the Founding, it’s been the job of the courts to prevent majorities in the states from violating constitutional guarantees designed to protect the rights of all.  As Seventh Circuit Judge Richard Posner aptly observed in that court’s unanimous opinion striking down the Indiana and Wisconsin same-sex marriage bans, “[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.” 

It’s not an act of voter suppression when courts strike down state constitutional amendments or other ballot measures approved by the voters that violate the Fourteenth Amendment.  On the contrary, it’s the courts doing the job the Constitution gives them.  Courts follow their essential and intended role when they ensure that states respect constitutional rights and prevent the people of a state from harming minorities.

These latest arguments in defense of discriminatory marriage laws fare no better when judged against the substance of the Fourteenth Amendment.  Opponents of marriage equality claim that there is nothing wrong with putting the question of equal rights for same-sex couples up to a vote.  The Fourteenth Amendment, however, does not permit the people of a state to place a badge of inferiority on same-sex couples’ relationships, family life, and children.  Under the Fourteenth Amendment, the majority cannot treat gay men and lesbians as second class persons, unworthy of having their loving relationships recognized.  The Fourteenth Amendment guarantees to all persons – regardless of race, sexual orientation, or other group characteristics – equality of rights, including the fundamental right to marry, a right recognized by the Framers of the Fourteenth Amendment as a core aspect of liberty.  These protections – just as much as any other part of the Constitution — are the “supreme Law of the Land,” overriding laws enacted by state legislatures as well as constitutional provisions adopted by the voters.  For that reason, it is irrelevant that voters of a state may wish to consign same-sex couples to a second class status.  Under our system of government, our basic freedoms and the guarantee of equality under the law for all are not subject to a vote.

With “responsible procreation” arguments failing badly, states defending discriminatory marriage laws have changed their strategy, pressing a different set of arguments in their efforts to continue to deny same-sex couples the right to marry.  But this latest tactic is just as meritless as the previous one.  It ignores the Constitution’s supremacy over state law, disrespects the role of courts in enforcing the Constitution, and would allow the people of a state to vote to demean and degrade minorities.  It’s not every day you see an argument that gets so many aspects of our Constitution dead wrong.