Many of the Supreme Court’s more recent decisions suggest
that the Court has adopted Justice Scalia’s ideas about how it should decide if
the due process clause gives special protection to an aspect of freedom not
explicitly mentioned in the Constitution. That idea is that the Court should: 1)
describe the potentially protected liberty in as fact-specifically narrow way
as is possible; and 2) then decide if the liberty is one that history shows has
been traditionally protected by American society. See Michael
H. at 122-124 for a good example of Justice Scalia’s idea. See, Glucksberg
and McDonald v The City of Chicago at
for examples of plurality opinions invoking it.
It is a bit odd that much of the Court relies for its
substantive due process analysis on the ideas of one who thinks the entire
enterprise is illegitimate “judicial usurpation.” See Justice Scalia’s
dissenting opinion in City of Chicago v.
Morales, at 85. Putting that aside, while Justice Scalia’s approach got six
votes in Glucksberg¸ Chief Justice
Rehnquist’s formulation of it there wasn’t as tightly restricted as Justice
Scalia probably would have liked. The Glucksberg majority called for a
“careful” description of the claimed right (at 721), not a narrow one (Justice
Scalia’s dissent in Morales at
85). And it described history and a
careful description as “primary features” of due process analysis. It did not quite say that either was
essential although it goes on to rule as if “being deeply rooted” in American
“history and tradition” is essential (Glucksberg
at 720-721 and 723-25).
However, when push has come to constitutional shove, at
least two of the Justices who joined the Glucksberg
majority made it clear that they don’t think history is everything, or
necessarily essential. Just eleven
months after signing on to Glucksberg,
Justice Kennedy, joined by Justice O’Connor (who was the sixth vote in Glucksberg) wrote that “…history and
tradition are the starting point, but not in all cases the ending point of the
substantive due process inquiry.” County of Sacramento v. Lewis at
857-858. Justice Kennedy seemed to take
this farther, though in a pretty unclear doctrinal context, in Lawrence at 571-2 (“In all events, we
think that our laws and traditions of the past half century are of most
relevance here.”).
But Justices who champion less restrictive ideas of how to
identify an inexplicit liberty that is nonetheless specially protected by due
process are often not entirely convincing.
Despite Justice Stevens’ arguments about the indeterminacy of history (McDonald v. City of Chicago), a search
for traditions about what Americans long thought beyond the reach of government
feels more manageable and less subjective than an inquiry into what is
“implicit in the concept of ordered liberty.”
More significantly, the champions of a more expansive view of implicit
rights typically don’t give very satisfactory explanations of why the sources
they suggest we look to ought to be
part of a method for identifying implicit rights. See Justice Stevens dissent in McDonald at 3096 S.Ct (“…historical and
empirical data of various kinds…” including other parts of the constitutional
text, “judicial precedents, English common law, legislative and social facts,
scientific and professional developments, practices of other civilized
societies and above all else, ‘the traditions and conscience of our people’
(quoting Palko quoting Snyder); see also Justice Souter’s
concurrence in Glucksberg.
Part of the problem lies in the murky justifications for the
entire enterprise. History does make
sense as a central inquiry if you are trying to identify ideas—like the
paramount right of a parent to raise a child without state interference except
in dire situations--so basic they hardly needed to be mentioned in either the
federal bill of rights or state constitutions (a quick
aside: even if a right were thought to be so securely protected by the lack of
federal power as to not need mentioning, that wouldn’t explain leaving it out
of a state charter; obviousness might).
You might ask that sort of question if you were trying to untangle the
meaning of “privileges or immunities” or if you were exploring how that central
aspect of due process, the rule of law, applies to legislative proceedings (fun
questions for another time). But how
does a search for something so basic it did need mentioning lead you to
“legislative facts” or “scientific developments”? If “implicit in ordered liberty” means
something other than “understood to be off the table,” what does it mean and
how does that lead to “legislative facts” and so on?
I’m not saying that there aren’t satisfactory answers to
those two questions. I’m just saying
that the Justices who support expansive implicit rights haven’t really given
them yet.
Nevertheless, there is at least one way in which
developments in the law may make sense as part of an attempt to use history and
tradition to identify inexplicit liberties protected by the due process clause,
suggested by Judge Vaughn Walker’s District Court opinion in Perry v. Schwarzenegger. Walker’s idea appears as he tries to
unsnarl the central dispute over the established constitutional “right to
marry,” one of the implicit rights specially protected by due process. The plaintiffs said they were same-sex
couples seeking to exercise the existing fundamental right to marry; the
defenders of California’s Prop. 8 said marriage had always been reserved for a
man and a woman, and the plaintiffs wanted to create a new institution of
“same-sex marriage.” Or as the Judge put it,
“The question presented here is whether plaintiffs seek to
exercise the fundamental right to marry; or because they are couples of the
same-sex, whether they seek recognition of a new right.”
The judge recognized that if what plaintiffs sought was
recognition of a “new” specially protected due process right, they were likely
cooked by history under Glucksberg. So
he turned to the question of whether the fact that only men and women had
traditionally married was part of the right itself, or a reflection of how it
was exercised. History alone was not
much help here, since while it is true that marriage for same-sex couples was
unknown until recently, it is also true that it wasn’t denied until recently
either. Prior to around the 1970s, no
state law defined marriage as between a man and a woman. As state laws about marriage showed, the laws
assumed those marrying would be “bride and groom” “husband and wife.” But assuming it and defining it aren’t the
same thing. The idea of same-gender
marriage had not occurred.
As Judge Walker explains, until quite recently, marriage was
a deeply gendered institution, with specific, distinct legal roles for men and
women. But in the second half of the 20th Century, gender slowly but
surely disappeared from the legal institution, which became a relationship of
legal equals. But, says the Judge, the
right did not become different simply because marriage “became compatible with
gender equality.” Therefore, he wrote,
the insistence that the parties to a marriage be opposite sex was an “artifact
of a time when the genders were seen as having distinct roles in marriage.”
Or, to put it in constitutional context, the gender requirement
is not a part of the right protected by the due process clause. That’s right, it seems to me, if we can all
agree that the degendered marriages the states afford people today are the
marriages to which they have a protected constitutional right; if in
degendering the marriage, the states did not violate the due process
clause. Had Justice Scalia commanded a
majority in Michael H., the
proponents of Prop. 8 might have been tempted to attack laws permitting
same-sex couples to marry as a violation of due process (the standing questions
would have been fun, especially if the defense fell to Charles Cooper, who
famously could not say how the marriages of same-sex couples hurt the marriages
of opposite sex couples). But even those
who attacked the Massachusetts Supreme Court’s Goodridge decision ordering that same-sex couples be allowed to
marry didn’t try to go that far. The
degendering of marriage has not been attacked as a violation of the United
States constitution because we understand that the marriages the states
sanction today are marriage and give
what is required by the Constitution (whatever that is, about which the courts
have not said much). So Judge Walker is
right; gender is not part of the fundamental right to marry, and the plaintiffs
in Perry sought to exercise the
existing implicit right, not a new one.
Judge Walker’s opinion suggests that contemporary
understanding of the rights we have can help us understand the essential
contours of a protected implicit right.
Perhaps more precisely, the law about a protected right today can help
us discern what we understand a venerable idea to mean today. If we don’t think stripping gender out of
marriage violated the right to marry established in history, we don’t
understand gender to be an essential part of the right. At least not today we don’t.
I suggested elsewhere an entirely different way to get to
much the same result. “Lawrence v. Texas and the Refinement of
Substantive Due Process,” Stanford Law and Policy Review, vol. 16, p.49. That
idea was that an equality principle inherent in the rule of law, and thus the
due process clause, allowed history to be used to discover the contours of a
protected liberty, but not who got to exercise it. I think Judge Walker’s idea, while it won’t introduce
contemporary law into every due process analysis, may give a more satisfactory
explanation of, for example, the Court’s cases recognizing the right to marry
as fundamental for those who have been divorced, and for the relationship of
children to fathers who were not married to their mothers.
In any case, his instinct that we all think the legally
degendered marriage we have is the
marriage protected by the due process clause makes a compelling case that what
same-sex couples seek is access to an established right, not a new one.