Modern right-libertarians sometimes contend that contemporary courts place undue emphasis on trying to explicate the requirements of constitutional equality and, in so doing, undercut securing the proper scope of the liberty rights secured by the Constitution. What they miss is that the fundamental rights long since recognized as part of the constitutional order become vastly less meaningful if they are not accompanied by an equal commitment to fulfilling the Declaration of Independence’s promise “that all men are created equal.” This has been a problem from the beginning. From the days of the early American republic, all the states and the nation managed to adopt bills of rights, and we have always been enamored of the concept of “inalienable” rights; but, despite the Declaration’s lip service to human equality, the nation began by the Constitution’s embracing the “slavery compromise” to ensure the creation of the federal union, even as we abandoned our natural law ideals...
The main project of the Reconstruction following the Civil War was to act to ensure that the “freedmen”—the newly “emancipated” former slaves—would be treated as equal citizens, enjoying equally under law. The Fourteenth Amendment thus guaranteed that states would not “deny to any person within its jurisdiction the equal protection of the laws.” Sometimes identifying a litigant’s claim as one legitimately concerning one of the Constitution’s fundamental rights is so straightforward as to be virtually incontestable. In many such cases, the central issue becomes whether by its nature the asserted right extends to the lawsuit’s claimant—and, then, whether the state’s legal system fails to extend the right equally to deserving American citizens. The question concerns “equality” as well as liberty.
In March of 2013, three gay couples filed suit in Utah’s federal district court, challenging Amendment 3 of Utah’s constitution and laws that forbad giving any recognition or protection to gay marriage. Plaintiffs alleged that Utah state laws deprived them of the “liberty” guaranteed them by the Due Process Clause, which included a fundamental right to marry. The district court ruled that there was a fundamental right to marry and that this right applied to every citizen “regardless of their sexual identity.” Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1204 (D. Utah 2013). Plaintiffs also alleged that Utah law denied them equal protection of the law. The same court ruled that Utah law denied equal protection because it irrationally classified based on sexual orientation and thus denied a fundamental right to gay individuals. On June 25, 2014, the Tenth Circuit Court of Appeals upheld this decision invalidating Utah’s marriage laws. Kitchen v. Herbert, No. 13-4178 (June 25, 2014).
The Tenth Circuit turned its attention almost immediately, even in the course of deciding on the scope of the right, to the issue of equal treatment of citizens under the law. Sometimes in explicating the scope of liberty interests, courts have emphasized the idea that the right received strong support in history and tradition. But in Kitchen, the Tenth Circuit noted pointedly that the Supreme Court in Loving v. Virginia, 388 U.S. 1 (1967), underscored how fundamental the right to marry was without even acknowledging that bans on interracial marriage were also well-established parts of the American tradition. Instead, the Court underscored that the premise underlying anti-miscegenation laws was clearly an assumption of white supremacy, and that laws that treated citizens quite differently depending on their race were presumptively unconstitutional. In fact, rather than focusing at all on whether there was a “right to interracial marriage,” the Court simply read American history as establishing a right to “the freedom of choice to marry.” Loving, 388 U.S. at 12.
Americans now recognize fully that bans on interracial marriage were designed to undercut black opportunities and social standing. Even lawyers and judges had sought to justify such laws by speaking of avoiding “corruption of blood” or the creation of “a mongrel breed of citizens.” Hence the Supreme Court viewed such laws as presenting “invidious racial discrimination” that ran afoul of the Equal Protection Clause. See Martha C. Nussbaum, From Disgust to Humanity: Sexual Orientation and Constitutional Law (2010). So did Loving simply hold that anti-miscegenation laws involved racial discrimination and were designed to harm the interests of blacks? Or did it emphasize equal treatment as part of explicating the nature and scope of the fundamental right to marry? The appropriate answer is: both!
The Tenth Circuit in Kitchen went on to explicate the various goals and values implemented by marriage, making inquiry as to the degree to which such purposes would equally be of help to citizens who are gay. The court relied significantly on the Supreme Court’s decision invalidating the Defense of Marriage Act (DOMA). United States v. Windsor, 133 S. Ct. 2675 (2013). The court reasoned:
As the Court in Windsor held, restrictions on same-sex marriage “humiliate tens of thousands of children now being raised by same-sex couples” and “make it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” 133 S. Ct. at 2694. Such statutes “bring financial harm to children of same-sex couples . . . raise the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses” and “den[y] or reduce benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.” Id. at 2695. These laws deny to the children of same-sex couples the recognition essential to stability, predictability, and dignity. Read literally, they prohibit the grant or recognition of any rights to such a family and discourage those children from being recognized as members of a family by their peers.
In short, everything the Court had said about DOMA applied equally to Utah’s total ban on gay marriage. This is why the attempt to create a dichotomy between “equality” and “rights” is not a plausible way to explicate the Constitution. When the Supreme Court confronted the issue as to whether there was a “liberty” right to engage in sodomy, the Attorney General of Georgia argued to the Court the “homosexual sodomy leads to other deviate practices such as sadomasochism, group orgies, and transvestism, to name only a few” Nussbaum, Sexual Orientation and Constitutional Law, supra, at 79. None of these assertions, of course, are supportable—but they did reflect the prejudice prompting the attempt to subordinate those with the “wrong” sexual orientation. So it was ostensibly addressing the scope of constitutional rights, but it was even more clearly an attempt to subordinate one class of citizens. Professor Nussbaum also observed that the Court literally placed all of its emphasis on the actions of gay individuals, even though “careful students said that such acts were as frequent among heterosexuals, including eighty percent of married couples.” Id. The Tenth Circuit appropriately ruled that the equal rights of gays to choose to marry cannot be denied by the State of Utah.