Legal Commentary

My colleague Nelson Tebbe and my erstwhile colleague (as a Brooklyn VAP, now at Indiana) Deborah Widiss, have written an article that has an interesting take on the debate about same-sex marriage.  Their basic thesis is that claims to marriage rights should be evaluated against a rule of "equal access," which derives from the fundamental interests strand of equal protection.  According to Tebbe and Widiss, due process claims for marriage rights are unsatisfying because marriage, as a civil institution, is not easy to analogize to other due process fundamental rights, which involve activities that can be performed without state assistance.  Nor is the job done by standard, classification-based, equal protection-based heightened scrutiny for sexual orientation, although they seem to reach this conclusion more as a matter of what courts are likely to do than any intrinsic problem with using that doctrine.

Tebbe and Widiss argue that the fundamental interests strand of equal protection is a better fit for marriage claims.  The suggest -- rightly, I think -- that as a doctrinal tool this theory has often been used to evaluate restrictions on activities that, like civil marriage, government has no affirmative obligation to make possible, in particular voting.  Thus, unlike the essentially negative liberty protected by due process, the fundamental rights strand of equal protection protects activities that government itself provides but has no inherent obligation to make available.  However, those activities are sufficiently important that if government does undertake to provide them, it has to justify a decision to provide them unequally (or, in the authors' terms, a decision to provide "unequal access").

This is a smart, interesting article.  I can't say I buy into it 100%, largely because I still have a hard time finding a principled difference between due process fundamental interests and equal protection fundamental interests.  I get the negative liberty/government provision distinction, but I'm not totally on board with that distinction marking the line between due process and equal protection fundamental interests (though I can see the logic).  Nor do I really see what makes marriage qualify as an equal protection fundamental interest: if determining due process fundamental rights is a subjective enterprise, my sense is that determining equal protection fundamental interests is even more so, since protection of fundamental interests is at least arguably a secondary derivation from equal protection's central command.  Certainly courts have not been clear about why they've done what they've done in this area.  Similarly, it's not clear to me that simply calling marriage "really important" (my caricature of the authors' argument) does the trick, at least in a principled way.

None of this is a dig on Tebbe's and Widiss's piece; they've identified an interesting and potentially workable approach for addressing the marriage rights issue.  It's a rare example of analysis that is both politically plausible and intellectually rich.  It should be required reading for anyone who's seriously interested in the topic.