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The Importance of Written Constitutions

Updated on November 12, 2009
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The Importance of Written Constitutions to Gay People


One of the greatest strengths of the American system of government lies in its reliance on a written Constitution, the provisions of which describe the structure, function, and operation of the three branches of government. Dating from the 1787 Philadelphia Convention, many of the Founding Fathers argued that the proposed US Constitution, without the Bill of Rights, was substantively inadequate because it failed to protect basic human liberties. The Bill of Rights is the collective name given to the first 10 Amendments to the document now known as the US Constitution. James Madison proposed the inclusion of a Bill of Rights in his efforts to bridge the ideological divide that existed between the Federalists and the Anti-Federalists; this divide threatened the ratification of the national Constitution, and posed a serious dilemma to those who wished to establish the US system of government along lines entirely different from those that dominated the British system of government, with its heavy reliance and emphasis on precedent and “common law”. Madison was not the only founding father to propose the inclusion of a Bill of Rights in the US Constitution; Thomas Jefferson was also an ardent proponent of inclusion of a Bill of Rights in the US Constitution. Madison’s insistence on inclusion of a Bill of Rights in the US Constitution was in large part a reflection of his overriding desire to assuage the concerns of those who argued that the Constitution, without a Bill of Rights, failed to protect fundamental human liberties. Madison was influenced, in crafting the Bill of Rights, by the 1776 Virginia Declaration of Rights, the 1689 English Bill of Rights, writings from the so-called “Age of Enlightenment” pertaining to “natural rights”, and that ancient and venerated English document named the Magna Carta (“Great Charter”).

Natural rights, referred to in the Declaration of Independence as “unalienable” rights, are rights considered to be universal in nature; they are not contingent on the crafting of statutes, ordinances, executive policies, or legal enactments; natural rights are not rooted in any cultural or temporal context, but instead are considered to be universal in that they transcend both times and cultures. Such rights stand in sharp contrast to statutory rights, which are entirely the creatures of legislative bodies and which are rooted firmly in those customs and beliefs that obtain in a given culture at a given time in the history of that culture. Madison did not believe that all rights fell neatly into this simple dichotomy; he proposed that some crucial rights arose neither from natural rights nor from statutory authority, but instead derived their existence and essence from the “social contract” whereby the people of a law-abiding nation maintain their embodiment of social order and social welfare.

The term “Declarationism” describes the legal philosophy that focuses on natural rights; such rights are emphasized and recognized in documents such as the US Declaration of Independence and the Universal Declaration of Human Rights (UDHR). The UDHR was adopted by the United Nations General Assembly on 10 December 1948, and represented the first systematic attempt to catalog those rights to which all human beings are entitled, regardless of their nationality, social standing, ethnicity, racial heritage, etc. The original 30 articles comprising the UDHR have been expanded in subsequent international treaties, and the provisions of the UDHR have been subsumed under the provisions of a broader document known as the International Bill of Human Rights.

The first 10 Amendments to the US Constitution are familiar to most Americans, who may not necessarily be able to reference these Amendments by their numbers, but who understand the gravamen of the rights guaranteed by these Amendments as these rights apply to their everyday lives. For example, almost every American citizen knows his or her rights under the First Amendment, which guarantees freedom of speech, of a free press, and other rights which exist either in the text of this Amendment or which have been "read into" this Amendment through judicial interpretation (examples of the latter include the right to freedom of expressive association and the right to freedom of intimate association). Similarly, very few Americans have no understanding of their rights under the Self Incrimination Clause of the Fifth Amendment, which is referenced in American popular culture in books, in entertainment, and in everyday discourse (the meaning of the statement “I take the Fifth” is understood to almost anybody who has ever watched movies or television in the US).

The US Supreme Court articulated its role as the ultimate arbiter of federal law and US Constitutional interpretation in the American political system in the landmark case of Marbury v. Madison, 5 U.S. [1 Cranch] 137 (1803). In this case, the Court explained the reasoning underlying the ratification of a national constitution, and explained the Court’s role within the framework of the government described in that constitution by noting that “[t]he powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act… Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it… If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable… Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void… This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society.” [emphasis added]

Noting the fact that the US Constitution was written for the purposes of establishing and describing a national government and limiting the powers of that government, the Court held that “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.” [emphasis added]

Extreme social and cultural conservatives have described the Court’s actions in Marbury as a naked power grab by an out-of-control Court, notwithstanding the fact that this system of government has operated in the US, essentially unchanged, for well over 200 years. The Bush Administration made extensive usage of so-called “signing statements” to ignore or to water down laws passed by Congress, often construing such laws in utterly implausible manners, and at times construing those laws to mean the reverse of what Congress actually intended. The Bush Administration grossly expanded the power of the Executive branch of the US government by embracing the concept of the “unitary executive” – a concept advanced by the extremely conservative Federalist Society, and expounded by now-sitting US Supreme Court Associate Justice Samuel Alito (who served on the US Court of Appeals for the Third Circuit before being elevated to the US Supreme Court by George W. Bush himself). This concept was conceived by John Yoo, a highly influential mid-level Justice Department attorney who served between 2001 and 2003, who adopted the view that the President had virtually unlimited powers, and who authored the infamous memorandum defending what the rest of us refer to as torture. In response to Congressional passage of the McCain amendment (a federal measure banning “cruel, inhuman or degraded treatment” of prisoners of war), Bush issued a signing statement declaring that “[t]he executive branch shall construe [the torture provision] in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judiciary....”

In ex parte Milligan, 71 U.S. 2 (1866), handed down immediately after the Civil War came to an end, the Court rearticulated the role of the US Constitution as the highest law of the land, and reaffirmed the principle that its provisions may never, under any circumstances whatsoever, be suspended. Commenting on the contention that the specific guarantees enunciated in the Bill of Rights may be suspended, even in times of rebellion, insurrection, or invasion, the Milligan Court observed: “Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government…. This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew -- the history of the world told them -- the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued human foresight could not tell, and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus.” [emphasis added] (Article I, Section 9 of the US Constitution guarantees that Congress may not suspend the writ of habeas corpus (otherwise known as the “Great Writ”) unless “…when in cases of rebellion or invasion the public safety may require it.”)

(Some readers may reflect on the Court’s observation that “wicked men, ambitious of power, with hatred of liberty and contempt of law” may one day occupy the highest offices of the land, as they contemplate and reflect on the political developments that occurred in the immediate aftermath of the disasters of September 11, 2001…)

When details pertaining to the abuse and sadistic torture of terrorism suspects at the military holding camp at Guantanamo Bay, Cuba were leaked to the media in the aftermath of the disasters of 11 September 2001, the result was widespread national and international condemnation of the US government for what many commentators believed to have been the Administration’s explicit abandonment of a core principle upon which that government had originally been founded. The US Justice Department actually warned prominent figures in the Bush Administration that, under then-current constructions of federal law, they faced possible criminal prosecution by subsequent Administrations for war crimes, human rights violations, and crimes against humanity. It is noteworthy that the Administration developed several euphemisms to describe provisions that were later widely condemned, both by government attorneys and by the American people. The practice of kidnapping terrorism suspects using force, flying them to jurisdictions in which torture was not prohibited, and then permitting the torture of such suspects by the authorities in those jurisdictions became known as “extraordinary rendition”. The practice of “waterboarding” became known as “simulated asphyxiation”. The usage of torture techniques intended to induce psychological regression, including subjecting suspects to extremes of heat and cold, stress positions, loud recordings of babies shrieking, etc. became known as “enhanced interrogation”.

The prestige and independence of the US Supreme Court had suffered a major setback following this Court’s intervention in the case of Bush v. Gore, 531 U.S. 98 (2000) (in which case the Court effectively decided the outcome of the Presidential elections of November 2000 in favour of George W. Bush). However, respect for the federal judiciary was renewed in the eyes of many Americans by two subsequent decisions handed down by the high court. In Hamdan v. Rumsfeld, 548 U.S. 557 (2006) and Boumediene v. Bush, 553 U.S. ___, 476 F.3d 981 (2008), the majority of the Court struck down the Bush Administration’s assault on one of the most basic liberties recognized in the history of the nation – specifically, the Bush Administration’s wholesale attempts to suspend the ability of prisoners at Guantanamo Bay to petition the federal courts for writs of habeas corpus. The Suspension Clause of Article I, Section 9 of the US Constitution guarantees that “[t]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” The placement of this Clause in Article I, Section 9 has further led many constitutional scholars to opine that only Congress may suspend the writ, under these very limited and unusual circumstances.

In Hamdan, the Court struck down as unconstitutional the Detainee Treatment Act of 2005, in which the Bush Administration established military commissions to try detainees at Guantanamo Bay, and denied such detainees the right to have their cases heard before the federal courts; this Act sought to strip the US Supreme Court and the lower federal courts of jurisdiction to entertain habeas petitions filed by such prisoners. By a five to three vote, the Court held that the Bush Administration’s actions violated both the Uniform Code of Military Justice (UCMJ) and Common Article Three of the Geneva Convention (the Court held that the Geneva Convention was incorporated into the UCMJ).

In Boumediene, the Court again held that detainees have the right to petition the federal courts for writs of habeas corpus, notwithstanding the fact that the holding camp established at Guantanamo Bay was technically under the sovereign power of Cuba and not that of the US; the Court held that “A brief account of the writ’s history and origins shows that protection for the habeas privilege was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights; in the system the Framers conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause. That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution’s essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance”… The Suspension Clause has full effect at Guantanamo. The Government’s argument that the Clause affords petitioners no rights because the United States does not claim sovereignty over the naval station is rejected…” [emphasis added]

What many Americans fail to appreciate is the fact that the US Constitution (and particularly the Bill of Rights) includes provisions that are intended to thwart, or impede, the will of the majority under a wide range of circumstances. For example, some forms of expressive conduct have drawn widespread and ongoing criticism from the vast majority of American citizens; the US Supreme Court held, in Texas v. Johnson, 491 U.S. 397 (1989), that a Texas statute that criminalized the act of intentionally burning the US flag as a gesture of political protest or defiance violated the First Amendment, thereby striking down this state statute (and, by extension, the statutes of many other states that criminalized this form of expressive conduct). The Texas statute forbad desecration of the flag if "the actor knows it will seriously offend one or more persons", which the Court held was a deliberate attempt at suppressing free speech and was therefore unconstitutional. In holding that Johnson was entitled to burn the flag as a gesture of political protest, the Court noted that “[e]xpression may not be prohibited on the basis that an audience that takes serious offense to the expression may disturb the peace, since the Government cannot assume that every expression of a provocative idea will incite a riot, but must look to the actual circumstances surrounding the expression. Johnson's expression of dissatisfaction with the Federal Government's policies also does not fall within the class of "fighting words" likely to be seen as a direct personal insult or an invitation to exchange fisticuffs.” [emphasis added]

In response to this ruling, Congress passed a new federal statute that differed from the Texas state statute in that it rendered all instances of flag burning (other than destroying old, or soiled, flags) illegal, without making any reference to the political or emotional context of the protestor, and without making any reference to the potential reaction of angry observers. Ironically, passage of this statute (known as the “Federal Flag Desecration Law”) led to the burning of literally thousands of US flags across the nation in protest. Two individuals, Shawn Eichman and Mark Haggerty, were arrested and charged with violating this federal statute. Their case reached the US Supreme Court, which again ruled (in United States v. Eichman, 496 U.S. 310 (1990)) that the statute in question was unconstitutional; the Court saw through Congress’ ostensible “content neutrality” with the following observations:

“It is true that this Act, unlike the Texas law, contains no explicit content-based limitation on the scope of prohibited conduct. Nevertheless, it is clear that the Government's asserted interest in protecting the "physical integrity" of a privately owned flag in order to preserve the flag's status as a symbol of the Nation and certain national ideals is related to the suppression, and concerned with the content, of free expression. The mere destruction or disfigurement of a symbol's physical manifestation does not diminish or otherwise affect the symbol itself. The Government's interest is implicated only when a person's treatment of the flag communicates a message to others that is inconsistent with the identified ideals. The precise language of the Act's prohibitions confirms Congress' interest in the communicative impact of flag destruction, since each of the specified terms -- with the possible exception of "burns" -- unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to damage the flag's symbolic value, and since the explicit exemption for disposal of "worn or soiled" flags protects certain acts traditionally associated with patriotic respect for the flag. Thus, the Act suffers from the same fundamental flaw as the Texas law, and its restriction on expression cannot "`be justified without reference to the content of the regulated speech,'" Destroying a symbol sends a message about a person's attitudes towards, interpretation of, or beliefs about that symbol and what it represents…” [emphasis added]

Ever since these two rulings were handed down, Congress has made repeated attempts (at least seven) to amend the US Constitution so as to make an exception to the First Amendment; although these attempts have cleared the US House of Representatives on several occasions, the bills have repeatedly failed in the US Senate.

When President Ronald Reagan was shot and nearly killed in 1981, a non-tenured deputy constable named Ardith McPherson, who was employed by the Constable of Precinct One of Harris County in Houston, Texas, was overheard saying to her boyfriend “I hope if they go for him again, they get him". This remark was made at the height of then-President Reagan’s popularity, and resulted in McPherson being fired immediately by Harris County Precinct One Constable Walter Rankin. McPherson filed suit against Rankin under 42 U.S.C. section 1983, alleging intentional violation of her First Amendment rights (made binding on the states through incorporation by the Due Process Clause of the Fourteenth Amendment). McPherson lost in Federal District Court, which issued summary judgment in favour of defendant Rankin; however, the US Court of Appeals for the Fifth Circuit (an extremely conservative appellate court) vacated the judgment in favour of defendant Rankin and remanded the case to the District Court for further proceedings (McPherson v. Rankin, 736 F.2d. 175 (1984)). Again, the District Court handed down a judgment in favour of defendant Rankin; and again, McPherson appealed to the US Court of Appeals for the Fifth Circuit, which reversed the District Court for the second time (McPherson v. Rankin, 786 F.2d. 1233 (1986)). Ultimately, this case reached the US Supreme Court (Rankin v. McPherson, 483 U.S. 378 (1987)), which handed down a decision in favour of McPherson, noting that: “Petitioners have not met their burden of demonstrating a state interest justifying respondent's discharge that outweighs her First Amendment rights, given the functions of the Constable's office, respondent's position therein, and the nature of her statement. Although that statement was made at the workplace, there is no evidence that it interfered with the efficient functioning of the office. Nor was there any danger that respondent had discredited the office by making the statement in public. Her discharge was not based on any assessment that her remark demonstrated a character trait that made her unfit to perform her work, which involved no confidential or policymaking role. Furthermore, there was no danger that the statement would have a detrimental impact on her working relationship with the Constable, since their employment-related interaction was apparently negligible.”

(Had McPherson worked for a private sector employer, no constitutional issues would have been implicated by her termination, and her employer concerned could almost certainly have fired McPherson without any concerns regarding the legality of such a termination; however, McPherson worked for Harris County, which is a political subdivision of the State of Texas; her expressive conduct was therefore protected by the provisions of the First and Fourteenth Amendments.)

When John DeLorean was arrested and charged in 1982 with drug trafficking, there was no doubt whatsoever of his guilt relative to the charges specified in the indictment; the FBI videotaped a "sting" operation in which DeLorean stared gleefully and greedily at a 55 pound cache of cocaine and bragged that the cocaine was “better than gold”. An FBI agent was overheard, on the videotape, asking DeLorean whether he would prefer to defend himself, or instead have “his daughter’s head smashed in”. DeLorean, acting pro se, argued entrapment by the federal agents and took his case to trial; he was acquitted after a six-week jury trial followed by several days of deliberation.

The US Supreme Court has handed down several opinions in which the Justices have argued that entrapment violates the supervisory power of the courts and the authority of the courts to deal with abuses of their processes. Examples of such opinions include Jacobson v. United States, 503 U.S. 540 (1992), in which the petitioner, Keith Jacobson, was originally convicted of ordering and receiving pornographic materials depicting nude preteen and teenage boys (Jacobson had a history of ordering such depictions of underage boys before the possession and distribution of such material was criminalized by federal statute); Jacobson appealed his conviction to the US Court of Appeals for the Eighth Circuit, which affirmed. The US Supreme Court reversed Jacobson's conviction, holding that “In their zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. Sorrells, 287 U.S. at 442; Sherman, 356 U.S. at 372. Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents. United States v. Whoie, 288 U.S. App.D.C. 261, 263-264, 925 F.2d 1481, 1483-1484 (1991)… By the time petitioner finally placed his order, he had already been the target of 26 months of repeated mailings and communications from Government agents and fictitious organizations. Therefore, although he had become predisposed to break the law by May, 1987, it is our view that the Government did not prove that this predisposition was independent, and not the product of the attention that the Government had directed at petitioner since January, 1985. Sorrells, 287 U.S. at 442; Sherman, 356 U.S. at 372.” [internal citations omitted].

In National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977), the US Supreme Court stayed an injunction handed down by the Circuit Court of Cook County forbidding a group of swastika-waving and swastika-wearing Neo-Nazis from marching through the primarily Jewish neighbourhood of Skokie, Illinois (this case was litigated extensively before both state and federal judges; proceedings took place before the Cook County Circuit Court, the Illinois Supreme Court, the US Court of Appeals for the Seventh Circuit, and eventually before the US Supreme Court). The Seventh Circuit US Court of Appeals ultimately struck down three ordinances passed by the Skokie Village Board aimed at preventing the Neo-Nazi group from marching through Skokie as violative of the First Amendment’s Assembly Clause.

The above examples make clear the fact that our federal Constitution protects behaviours that many people find abhorrent, if not downright disgusting. This is because our Constitution (and most particularly the Bill of Rights) contains numerous provisions sharply limiting the police power of the states, and limiting the powers of the US government with respect to a wide array of law enforcement tactics. For example, the Fourth Amendment requires that any search be conducted only after a judge issues a warrant specifying both the location to be searched and the material to be searched for (an exception for “exigent circumstances” is made, but evidentiary challenges based on this exception and its interpretations are still used in criminal defense cases to invalidate many searches that would, in other nations and jurisdictions, be regarded as entirely legal). The Bill of Rights was not written to protect the majority of citizens; many of its provisions were written to protect minorities, and to ensure that, regardless of the strength of majoritarian sentiment and the number of people in favour of abrogating the rights of minorities, those rights would remain intact.

(The phrase "tyranny of the majority" originated with Alexis du Tocqueville in his seminal treatise "Democracy in America" (1835, 1840), and was further popularized by John Stuart Mill, who cited du Tocqueville in "On Liberty" (1859). The Federalist Papers frequently refer to the concept, though usually under the name of "the violence of majority faction", particularly in Federalist 10.)

Section 1 of the Fourteenth Amendment (which was ratified in 1868) contains three major Clauses, two of which will be discussed here and which are of central importance to our current understanding of the manner in which the courts protect the rights of both minorities and the majority. The first of these Clauses is the Due Process Clause ("No State... shall... deprive any person of life, liberty, or property, without due process of law"). The Due Process Clause of the Fourteenth Amendment makes binding on the states almost all of the guarantees subsumed under the Bill of Rights, through a process known as “incorporation”. For example, the text of the First Amendment refers specifically to prohibitions applicable to Congress (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”) [emphasis added]; however, the provisions of the First Amendment apply with equal force to attempts by state and local governments to abrogate the rights enumerated by this Amendment. The provisions of the Fourteenth Amendment apply to the behaviour of the states, and not to the behaviour of the US government. The wording of the Fifth Amendment, however, parallels much of the language and intent of the Fourteenth Amendment, and it is the provisions of the Fifth Amendment that apply to the behaviour of the US government. Most Americans think about the Self Incrimination Clause whenever the Fifth Amendment is mentioned; however, the Self Incrimination Clause is merely one relatively minor Clause located in the text of this Amendment; the Fifth Amendment contains a Due Process Clause ("No person shall... be deprived of life, liberty, or property, without due process of law") that is the wellspring of a large body of case law dealing with the substantive reach of federal law and executive action, and constraining the legislative powers of Congress and the executive powers of the US government.

The Due Process Clauses of the Fifth and Fourteenth Amendments have been interpreted as limiting not just the manner in which the federal and state governments, respectively, may apply and enforce federal and state statutes and executive policies; but also as limiting the substance of such statutes and executive policies. In short, the Due Process Clauses have been interpreted as prohibiting government regulation of some spheres of conduct entirely, as though these Amendments also include “due substance” clauses. The federal courts have recognized some rights as being “fundamental” in nature; through interpretation of the word “liberty” as this word appears in the Due Process Clauses, the federal courts have held that fundamental rights may not be infringed at all, absent the most compelling of circumstances. This form of due process is known as “substantive due process”, as distinct from “procedural due process”.

Procedural due process regulates the fairness of governmental proceedings, but not the ability of the government to regulate spheres of behaviour and personal conduct. Substantive due process, on the other hand, regulates the reach of legislative and executive power itself, and renders it unconstitutional for the government to interfere with certain protected liberty interests at all, regardless of the fairness of the procedures involved.

The substantive components of the Due Process Clauses provide heightened protection against government interference with certain fundamental rights and liberty interests. This doctrine has been used to protect the rights of citizens in a large variety of contexts under which the plain language of these Amendments would appear to impose no limitations on the substantive reach of legislative and executive bodies whatsoever.

For example, the US Supreme Court has recognized the existence of a right to privacy, notwithstanding the fact that the word “privacy” cannot be found anywhere in the text of the US Constitution. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Court struck down a Connecticut state statute (and, by extension, similar statutes in other states) prohibiting the sale to, and usage of, contraceptives by married couples. In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court extended the reach of this holding to strike down state statutes prohibiting the sale to, and usage of, contraceptives by unmarried couples too. The Griswold Court expressly referred to the existence of a zone of privacy that it derived from the simultaneous operation of several constitutional provisions located in the text of the Bill of Rights, made binding on the states through incorporation by the Due Process Clause of the Fourteenth Amendment. In Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), the Court held that the decision whether or not to have children also implicated a fundamental right, striking down an Oklahoma state statute that provided for the mandatory sterilization of “habitual criminals”. In Meyer v. Nebraska, 262 U.S. 390 (1923), the Court struck down, on due process grounds, a state statute that forbad the teaching, in both public and private schools, of any language other than English to children who had not already passed the eighth grade. In Roe v. Wade, 410 U.S. 113 (1973) and its companion case, Doe v. Bolton, 410 U.S. 179 (1973), the Court further expanded the contours of this zone of privacy to encompass the right of women to choose abortions (a holding which the Court later reaffirmed in Planned Parenthood v. Casey, 505 U.S. 833 (1992)). The US Supreme Court has long considered the right to marry to be a fundamental right (Zablocki v. Redhail, 434 U.S. 374 (1978)); the Court has also invalidated state statutes prohibiting “miscegenation” (Loving v. Virginia, 388 U.S. 1 (1967)) on both due process and equal protection grounds, maintaining that “[m]arriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.” (The significance of both Zablocki and Loving will be discussed later in this essay in the context of gay marriage.)

In 1986, at the height of the AIDS crisis and at a time when the nation was in a state of hysteria pertaining to the mechanisms whereby HIV could be transmitted, the US Supreme Court backtracked on the recognition of the above-mentioned right to privacy, handing down a decision that was roundly condemned by constitutional scholars from different ideological perspectives; this decision was widely criticized as being one of the crudest and most insulting attacks on the rights of any minority ever handed down by any court of equity in Western society. Michael Hardwick – a gay bartender who worked in Atlanta, Georgia, and who had been the target of police harassment because of his sexual orientation – was arrested in 1982 after a police officer, who had been admitted to Hardwick’s home in error by a houseguest at 03:00 AM in order to serve an (invalid) arrest warrant to Hardwick for drinking in public, entered Hardwick’s bedroom and found Hardwick engaging in consensual oral sex with another man. At that time, the State of Georgia had on its books a sodomy statute that prohibited (as a felony) both heterosexual and gay persons from having oral or anal intercourse, even when such activity took place between consenting adults in entirely private settings. The provisions of this statute were exceptionally harsh, providing for the mandatory incarceration of any person convicted of violating this statute for a minimum of one year in prison, and a maximum of 20 years in prison. This statute was codified at Georgia Code Ann. § 16-6-2 (1984), which provided, in pertinent part, as follows:

(a) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. . . .

(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. . .

Hardwick was arrested and charged with violating the Georgia sodomy statute. Although Georgia District Attorney Michael Bowers declined to present the charge to the grand jury, Hardwick filed suit against the State of Georgia in the US District Court for the Northern District of Georgia, asserting that this statute violated his right to privacy, as an openly gay man, under the Due Process Clause of the Fourteenth Amendment. The District Court dismissed Hardwick’s suit under Rule 12 (b) (6) of the Federal Rules of Civil Procedure (failure to state a claim upon which relief can be granted). Hardwick appealed to the US Court of Appeals for the Eleventh Circuit, a divided panel of which handed down an opinion reversing the District Court, finding that the Georgia sodomy statute did indeed infringe upon Hardwick's Due Process right to privacy. State Attorney General Bowers petitioned the US Supreme Court for certiorari; the high court agreed to hear the case, and handed down its decision (Bowers v. Hardwick, 478 U.S. 186 (1986)) on June 30, 1986.

The US Supreme Court reversed the decision handed down by the US Court of Appeals for the Eleventh Circuit, crudely framing the issue as being about “…whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.” This coarse and reductionist characterization of Hardwick’s claim was echoed over and over again, as the Court majority repeatedly invoked the phrase “homosexual sodomy” in its analysis. The Court declined to follow its own precedent with respect to the right to privacy previously identified and referenced in the above decisions pertaining to contraception, the right to bear or beget a child, the right to teach children languages other than English, and the right to abortion, writing that “…we think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.” The Court dismissed Hardwick’s claim of a right to sexual privacy predicated on a due process analysis as “at best, facetious”.

This decision became the target of both immediate and sustained criticism. In Casey, supra, (which was handed down after Bowers) the lead opinion made reference to the right to privacy in the context of a woman’s right to choose abortion, asserting that “[t]hese matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” [505 U.S. 852] It is clear to the most casual reader that a profound inconsistency existed with respect to the Court’s reasoning in Bowers and the Court’s reasoning in Casey; sexual orientation is certainly an aspect of personhood, yet Bowers sought to rob gay Americans of the right to express a core component of their identities.

In the wake of Bowers, several state supreme courts, interpreting state constitutions, struck down their state sodomy statutes on state constitutional grounds, also invoking principles of due process and equal protection. It is a core precept of our system of judicial federalism that a state supreme court opinion resting entirely on state constitutional analysis may not be reviewed or reversed by the US Supreme Court. When a state supreme court decision rests on both state and federal constitutional analysis, it may only be reviewed by the US Supreme Court to the extent that it places reliance on federal constitutional analysis; if the result would still be sustained under independent state constitutional grounds, the US Supreme Court may not reverse that result (although it may repudiate the federal constitutional analysis). State high courts in Kentucky, Montana, Georgia, Arkansas, Maryland, Tennessee, and elsewhere struck down their respective state sodomy statutes over the course of the next 17 years, employing independent state constitutional grounds, until another vehicle testing the constitutionality of such state statutes arrived before the US Supreme Court in the form of a case from Texas that bore startling factual similarities to Bowers.

Officers of the Harris County Police Department in Houston, Texas, entered the home of John Geddes Lawrence in response to a false report of a weapons disturbance that had been filed by a neighbor. The officers observed Lawrence and another man, Tyron Garner, having sex in the privacy of Lawrence’s bedroom; the officers arrested both men for violating the Texas “Homosexual Conduct” statute (codified at 21.06 of the Texas Code), and they were both convicted the next day before a Justice of the Peace. Both men invoked their right to a trial de novo in the Harris County Criminal Court system, where they were again convicted and each fined $200.00 and assessed court costs of $141.25. The men appealed their convictions to the Texas Court of Appeals for the Fourteenth District, which upheld their convictions in a divided opinion after hearing the case en banc. Both men petitioned the US Supreme Court for certiorari after the Texas Court of Criminal Appeals (the highest state court dealing with criminal matters in the State of Texas) refused to hear their appeal.

The US Supreme Court took the unusual step of demanding to be briefed as to whether or not Bowers had continuing validity or should be overruled; whether or not the Texas statute violated the liberty interests protected by the Due Process Clause of the Fourteenth Amendment; and whether or not the Texas statute violated the Equal Protection Clause of the Fourteenth Amendment. On June 26, 2003, the Court handed down its opinion in Lawrence v. Texas, 539 U.S. 558 (No. 02-102) (2003). This opinion took legal scholars by surprise; the Court bluntly and expressly overruled Bowers, stating that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

When the US Supreme Court wishes to repudiate an earlier decision, it usually does so by ignoring that decision in subsequent cases in which reference(s) to that decision would otherwise be both expected and appropriate; the Court sometimes opens up entirely new lines of constitutional analysis that are fundamentally inconsistent with, or incompatible with, the analysis adopted in the earlier decision. For example, an earlier result arrived at by analyzing the relevant issues under a due process analysis may be undermined by analyzing those same issues under an equal protection analysis. It is unusual for the Court to overrule an earlier decision directly; under the doctrine of stare decisis, the Court is generally reluctant to disturb earlier decisions, particularly when those decisions have influenced a subsequent body of case law upon which the lower federal and state courts have placed precedential reliance (even if in leaving these decisions undisturbed the Court sometimes permits errors of constitutional dimensions to remain undisturbed). This doctrine is essentially prudential, and is aimed at preserving the stability and integrity of the Court’s decision-making authority (“The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U.S. 808, 828 (1991) ("Stare decisis is not an inexorable command; rather, it 'is a principle of policy and not a mechanical formula of adherence to the latest decision'") (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940))).

In Lawrence, however, the Court employed sweeping language to affirm the dignity of gay persons, and implicitly apologized to the gay community for the injustice perpetrated against members of that community by its holding in Bowers. The Court acknowledged that it had framed the asserted liberty interest (crudely described in Bowers as being about “…whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy”) far too narrowly, observing that “That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” The Court noted that “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

In his conclusion, Justice Kennedy (who authored the majority opinion) observed that “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” [emphasis added]

In handing down Lawrence, the US Supreme Court struck down all remaining state statutes that criminalized gay sex between consenting adults; the number of such state statutes had dropped from about 25 at the time that Bowers was handed down to about 14 at the time that Lawrence was handed down. The Lawrence Court expressly invoked the Due Process Clause of the Fourteenth Amendment as the constitutional basis for the invalidation of the remaining state statutes. Associate Justice Sandra Day O’Connor wrote a concurrence in which she argued that the statute should have been invalidated on equal protection grounds; although the majority acknowledged that her argument (that the statute could have been invalidated under the Equal Protection Clause) was certainly a “tenable” argument, the majority insisted on striking the statute under the Due Process Clause. The Lawrence Court also made a point about the relationship that exists between due process and equal protection (which are often viewed as doctrines that are sometimes in tension with each other) by noting that “[e]quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.” By striking the Texas statute on due process grounds whilst simultaneously acknowledging the tenable doctrinal basis for striking this statute on equal protection grounds, the Court bolstered the doctrinal and intellectual authority with which it overruled Bowers.

Although the US Supreme Court adopted much of the language associated with traditional rational basis review in Lawrence, several observers have pointed out that the Court appears to have employed a more searching standard of review than traditional rational basis review in striking the Texas statute (and other state statutes of a similar nature).

Two of the US Courts of Appeals – the US Court of Appeals for the First Circuit and the US Court of Appeals for the Ninth Circuit – have conducted searching and careful analyses of what the US Supreme Court actually did in Lawrence, as opposed to what the US Supreme Court said it did in Lawrence; both of these appellate courts concluded that the Court actually applied a form of heightened scrutiny in striking the Texas statute. In Witt v. Department of the Air Force, F.3d 806 (9th Cir. 2008), a three-judge panel of the US Court of Appeals for the Ninth Circuit handed down an opinion in which it held that the Lawrence Court had actually subjected the Texas statute to “quasi-strict scrutiny”, or “intermediate-level review”; the dissenting Judge, Senior Judge William Canby, went even further, opining that the US Supreme Court had actually applied “strict scrutiny” (these concepts are discussed below). In Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), a three-judge panel of the US Court of Appeals for the First Circuit held (unanimously) that the US Supreme Court had “applied a balancing of constitutional interests that defies either the strict scrutiny or rational basis label”. The controversy relative to the standard of review actually employed by the US Supreme Court in Lawrence remains ongoing and (as yet) unresolved, with several commentators opining that the Court applied traditional rational basis review, with other commentators opining that the Court applied strict scrutiny, with other commentators opining that the Court applied “rational basis with teeth”, and with other commentators opining that the Court applied a balancing test of state and individual interests that defy any of these labels.

Of considerable practical significance is the fact that the Ninth Circuit case survived an en banc call (an insufficient number of active, non-senior judges voted to rehear the case en banc, leading three Circuit Judges to issue strong dissenting opinions); it is therefore the official position of the Ninth Circuit that each and every military discharge within its jurisdiction under the so-called “Don’t Ask, Don’t Tell” (DADT) military policy (which provides for the mandatory “separation” of any member of the armed forces who is revealed to be gay) must now be justified in Federal District Court, which must determine whether the government’s decision to discharge that member “furthers the government’s interest and whether less intrusive means would achieve substantially the government’s interest.” No en banc call was issued in the First Circuit case, in which the three-judge panel upheld the DADT policy, notwithstanding the heightened level of review that it applied to this policy.

Both the First and Ninth Circuit panel decisions are noteworthy for the degree of scholarship and the meticulous attention to detail embraced by the Circuit Judges in their analyses of the US Supreme Court’s actual behaviour in Lawrence. Both of these decisions carefully analyzed the language and the behaviour of the Lawrence Court; the First Circuit decision, in particular, pointed out that the Lawrence Court majority stated, expressly, that the analysis adopted by the dissent authored by Justice Stevens in Bowers should have controlled the outcome of that case. The dissent in Bowers written by Justice Stevens emphasized the fact that prior case law in the form of decisions such as Griswold, supra, Eisenstadt, supra, Roe, supra, Doe, supra, and Casey, supra should have compelled the Court to hold the Georgia statute unconstitutional on due process grounds; all of the cases cited by Justice Stevens enunciated rights considered by the Court to be fundamental in nature. The Ninth Circuit further observed the ongoing dispute relative to the standard of review actually employed by the US Supreme Court in Lawrence, noting that only the US Court of Appeals for the Eleventh Circuit has held, definitively, that the Lawrence Court actually applied traditional rational basis review (citing Lofton v. Secretary of the Department of Children and Family Services, 358 F.3d 804, 817 (11 Cir. 2004)).

The second Clause of Section 1 of the Fourteenth Amendment which is of relevance to our understanding of the manner in which the federal and state courts protect the rights of minorities is the Equal Protection Clause. This Clause states that “No State shall…deny to any person within its jurisdiction the equal protection of the laws.” The gravamen of any equal protection challenge to a statute or executive policy usually lies in the assertion that two groups of people who are similarly situated in relation to the legitimate purposes of the challenged statute or executive policy are treated differently by the government, with resultant adverse impact to members of one of the groups in question. Although the Fifth Amendment does not include textual language paralleling the Equal Protection Clause of the Fourteenth Amendment, the US Supreme Court has “read into” the Fifth Amendment’s Due Process Clause an equal protection “component” (Bolling v. Sharpe, 347 U.S. 497 (1954)), holding it to be inconceivable that the federal government should be held to a lesser standard of equality of treatment of its citizens as that imposed on the states by the Equal Protection Clause of the Fourteenth Amendment (this has been described by some constitutional scholars as “reverse incorporation”). For the purposes of analysis, claims of equal protection violations committed by the states are treated almost identically to claims of equal protection violations committed by the US government.

The Equal Protection Clause has been used to strike down discriminatory legislation in a wide variety of contexts. Most notably, the US Supreme Court employed the Equal Protection Clause to strike down the pernicious “separate but equal” doctrine that prohibited the integration of public schools in the Deep South (Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)). The historical context in which this Clause was ratified must be taken into consideration when commenting on the applicability of this Clause to other identifiable groups. The Thirteenth, Fourteenth, and Fifteenth Amendments (known collectively as the Civil War and Reconstruction Amendments) were ratified in the immediate aftermath of the Civil War, and the primary impetus for the drafting and ratification of the Equal Protection Clause by Representative Bingham and Senator Howard was to stamp out state-sponsored racial segregation following the abolition of slavery. However, the Equal Protection Clause has not been limited in its application only to racial minorities; the plain language of this Clause makes it readily apparent that it is applicable to all Americans who can make a prima facie showing of an equal protection violation. In adjudicating a claim of an equal protection violation, the reviewing court examines both the nature of the right infringed by the challenged legislation or executive policy, and the status of the group that suffers the discriminatory effects of this measure.

The US Supreme Court has recognized the existence of classes of citizens referred to as “suspect classes”. A suspect class comprises a group of people, the members of which can demonstrate a history of purposeful and invidious discrimination, where such discrimination is triggered by the expression of a characteristic that bears no relation to the ability of the members of the group in question to contribute to society; also, the characteristic in question is either “immutable” or otherwise changeable only at unacceptable personal cost to members of the group concerned; finally, the courts look to the relative political powerlessness of the group concerned, taking this into consideration as another factor common to members of a suspect class (the last two factors generally carry less weight than the first two factors). The US Supreme Court has recognized only three suspect classifications – race, religion, and national origin. Many state supreme courts, on the other hand, recognize other classes of persons as suspect. For example, the California Supreme Court recognizes classifications on the basis of sexual orientation as suspect for the purposes of state equal protection analysis (in re Marriage Cases, 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384] (2008)), notwithstanding the fact that the US Supreme Court has not issued a definitive ruling relative to this issue. The state supreme courts of Iowa and Connecticut applied “quasi-strict” scrutiny in their respective gay marriage decisions (Varnum v. Brien, 763 N.W.2d 862, (Iowa 2009) and Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A.2d 407 (2008)), rendering it unnecessary for these courts to determine whether or not gay Americans comprise a suspect class for the purposes of state equal protection considerations; both of these state high courts held that gay persons were deserving of at least the same standard of protection as that applied to women (that is to say, gay persons comprise at least a “quasi-suspect” class under the analyses adopted by these two state high courts) (see Frontiero v. Richardson, 411 U.S. 677 (1973) for an exposition of this standard of review as applied to gender-based classifications in the context of US constitutional equal protection considerations).

In an otherwise unremarkable case that would probably have faded into judicial obscurity, the US Supreme Court wrote a footnote that has become one of the most oft-cited footnotes in American constitutional jurisprudence, and which suggests a theory of heightened judicial scrutiny relevant to those cases in which the rights of “discrete and insular minorities” are at stake (United States v. Carolene Products Co., 304 U.S. 144 (1938)). In Footnote Four of the lead decision handed down by Justice Stone, the Court noted (albeit in dicta) that “[i]t is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation… Nor need we enquire whether similar considerations enter into the review of statutes [in those cases in which] prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U.S. 177, 184, n 2, and cases cited.” (internal citations omitted)

Noted constitutional scholar John Hart Ely authored a seminal book (“Democracy and Distrust: A Theory of Judicial Review”) in which he discusses the status of the Court as the arbiter of the laws and as a bulwark affording protection to discrete and insular minorities; Ely proposes in this work that a democracy is capable of “malfunctioning” under certain circumstances. Ely defines a democratic “malfunction” as occurring when a democracy restructures itself so as to ensure that those who are currently in power will always remain in power, and so as to ensure that those who are currently not in power will never attain power. It is precisely under these circumstances that Ely believes it essential for the federal judiciary to be able to operate independently and with the necessary constitutional authority to strike down “…legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.”

It would appear that the contemporary Court has in fact adopted the philosophy expressed in this footnote, applying a more demanding level of judicial review to legislation that infringes the rights of “discrete and insular minorities”, or to measures that interfere with the political processes whereby undesirable legislation may be repealed. This will be discussed below in examining the standard of review actually applied by the US Supreme Court in Romer v. Evans, 517 U.S. 620 (1996) – a case dealing with the right of gay persons to petition their state legislatures and executive bodies for protection from discrimination in both the public and the private sectors.

When the challenged measure adversely impacts members of a suspect class, or when the challenged measure infringes a right identified by the reviewing court as “fundamental”, the court applies the most searching form of judicial review to the challenged measure. All rights enumerated in the US Constitution are fundamental rights; in addition, other rights which are peripheral to enumerated rights have also been identified as fundamental. For example, the First Amendment rights of freedom of expressive association and freedom of intimate association (which derive from the Petition and Assembly Clauses) are considered by the federal courts to be fundamental rights. In determining whether or not a right is to be considered fundamental, the reviewing court examines a number of factors. Those rights which are such that “neither liberty nor justice would exist if they were sacrificed” are considered to be fundamental, as are those rights that are “'implicit in the concept of ordered liberty” (Palko v. Connecticut, 302 U.S. 319 (1937)). Another formulation used to characterize fundamental rights places reliance on whether or not those rights are “deeply rooted in this Nation's history and tradition” (Moore v. City of East Cleveland, 431 U.S. 494 (1977)). However, it should be noted that the contemporary Court is moving away from rigid adherence to this criterion, noting that “[H]istory 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, 523 U.S. 833, 857 (1998)) (Kennedy, J., concurring) (cited from Lawrence, supra)). In overturning Bowers v. Hardwick, 478 U.S. 186 (1986), the Lawrence Court further noted that a number of scholarly texts refuted the notion that societal disapproval of gay sex has “ancient roots”, noting that “[t]hese references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” [emphasis added]. Clearly, the identification of fundamental rights is a context-sensitive undertaking that cannot be pigeonholed into a precise or mechanistic formula.

(In her brilliant dissent from the majority in the New York gay marriage case, Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) (in which case the majority held that the recognition of gay marriages was not compelled by the provisions of the New York State constitution), Chief Judge Judith Kaye of the New York Court of Appeals (the highest state appellate court in the State of New York) captured the essence of fundamental rights by noting that “Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.”)

Once the reviewing court has determined that the legislation in question adversely impacts members of a suspect class, or infringes on a fundamental right, the court applies the most searching standard of judicial review, referred to as “strict scrutiny”. Under this standard of review, the burden falls squarely on the state to prove that the measure in question promotes a “compelling” state interest, and that the measure in question is “narrowly tailored” so as to promote that interest in the “least restrictive” manner possible relative to the right in question (the measure must sweep no more broadly than is absolutely necessary in order to promote the compelling state interest). This standard of review is very difficult for the state to meet, for which reason it has been described as “strict in theory, fatal in fact”.

An intermediate level of review is applied in those cases in which the federal courts adjudicate claims of equal protection violations where the classification is based on sex, or gender. Under this standard of review, known as “quasi-strict scrutiny” or “intermediate level” review, the burden again falls squarely on the state to demonstrate that the measure in question promotes an “important” state interest and is “substantially related” to the promotion of that interest (a slightly more deferential standard of review than strict scrutiny) (Frontiero v. Richardson, 411 U.S. 677 (1973)); this standard has been reformulated so as to require that the state demonstrate the existence of an “exceedingly persuasive justification” for the challenged measure (United States v. Virginia, 518 U.S. 515 (1996)).

All other claims of equal protection violations are adjudicated using the standard of review known as “rational basis” review; in other words, if the challenged measure neither impacts members of a suspect class nor infringes on a fundamental right, the reviewing court will adopt rational basis review. Here, the state merely has to make a showing that the measure in question is rationally related to the promotion of a legitimate state interest; the reviewing court may reach out, post hoc, and adduce its own rational basis (or bases) in the event that the state fails to satisfy this requirement. This is a highly deferential standard of review, under which the burden falls squarely on the plaintiff to show that there is no rational basis for the state’s actions, or that the state interest is not legitimate (Heller v. Doe, 509 U.S. 312 (1993)).

A handful of cases exist, however, in which the US Supreme Court has used the language of traditional rational basis review, but has actually employed a heightened standard of scrutiny described by some constitutional scholars as “rational basis with bite”, or “rational basis with teeth”. In Romer v. Evans, supra, the Court employed much of the language associated with traditional rational basis review, but in fact appeared to have applied a more searching form of review than mere rational basis review. Under the rational basis standard, even post hoc justifications will suffice to sustain the challenged measure in the face of constitutional attack. In Romer, the Court struck down an amendment to the constitution of the State of Colorado; this Amendment, known as “Amendment 2”, had the “immediate effect” of repealing all statutes, ordinances, executive policies, and other legislative and executive enactments insofar as these measures protected gay persons from discrimination at the hands of heterosexual persons, in both the public and the private sectors (whilst leaving intact the operation of these measures insofar as they protected heterosexual persons from discrimination at the hands of gay persons); this Amendment had the “ultimate effect” of restructuring the political process in the State of Colorado so as to forbid any branch of the state government, at all levels, from ever again enacting any statutory or executive measure or policy intended to protect gay persons from discrimination at the hands of heterosexuals (whilst leaving intact the ability of the state government, at all levels, to enact statutory and executive measures and policies intended to protect heterosexual persons from discrimination at the hands of gay persons). In other words, one class of Coloradans, and only one class of Coloradans (gay persons) was identified by Amendment 2, and was “fenced out” of the ordinary political processes of the state by this Amendment, so as to prohibit the state from ever again even considering the passage of any statute, municipal ordinance, executive order, or other policy intended to protect members of this class of persons from discrimination at the hands of heterosexual Coloradans, regardless of how severe such discrimination may have become and regardless of how widespread such discrimination may have become. The Court struck down Amendment 2 using unusually forceful and strong language, noting that “…the amendment imposes a special disability upon [gay] persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.”

The Court struck down Amendment 2, appearing to agree with the analysis contained in an amicus brief filed by law professor Laurence Tribe, who argued that Amendment 2 constituted a per se violation of the Equal Protection Clause. In its peroration, the majority concluded that “[i]t is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”

Other cases in which the US Supreme Court appears to have applied a more searching standard of judicial review under the Equal Protection Clause than mere rational basis review, in contexts where the challenged measures neither deprive members of a suspect class of any right nor infringe the exercise of a fundamental right, include City of Cleburne, Texas v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) and United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973). In both of these cases, the Court held that a bare desire to harm members of a politically unpopular group can never constitute a legitimate state interest for the purposes of equal protection analysis. In her concurrence in Lawrence, supra, Justice O’Connor noted that “We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships.”

In Palmore v. Sidoti, 466 U.S. 429 (1984), the Court enunciated a principle that has endured and that has been applied in other contexts: specifically, the principle that “The Constitution cannot control…prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” (Although the facts pertaining to this case involved a racial classification, the general principle that the law cannot be used as a tool to further the prejudices of the citizenry has been applied in various other contexts.)

All of the above analysis is contingent on the existence of written constitutions (state and federal), the provisions of which must be adhered to if challenged legislation or executive policy is to withstand judicial scrutiny. In the absence of a written constitution, a government may behave more or less as it pleases, imposing laws and executive policies on the citizenry without the safeguards of judicial review. When a policy-making body has to formulate policy that comports with the requirements of a written constitution, it is possible for aggrieved citizens – particularly members of minorities – to challenge government actions on constitutional grounds that are not available in a democracy that is not predicated on the requirements of a written constitution. Nowhere is this more visible than with respect to issues involving the rights of Americans to form intimate emotional and sexual relationships, whether with members of the same or opposite sexes. Currently, America is debating the issue of gay marriage – although the gay community suffered heartbreaking defeats in California and Vermont in November 2008 and November 2009 respectively (the citizens of California narrowly amended the state constitution to prohibit the recognition of gay marriages in that state, whereas the citizens of Maine narrowly rejected the gay marriage statute enacted by the state legislature just weeks previously), gay Americans have won the right to marry by appealing to state supreme courts in three states (Massachusetts, Connecticut, and Vermont), and have also won the substantive rights of marriage (without usage of the name “marriage”) by appealing to the state supreme court of New Jersey. Additionally, the state legislatures of Vermont and New Hampshire enacted gay marriage statutes in late 2009.

As of the time of writing, legal challenges to the federal “Defense of Marriage Act” (DOMA) are currently winding their way through the federal court system; these challenges place reliance on several provisions of the US Constitution (the Equal Protection Clause, the Due Process Clause, and the Full Faith and Credit Clause), and it is the hope of activists for marriage equality that a case will eventually arrive before a more sympathetic US Supreme Court, in which the issue of gay marriage will be squarely addressed at the federal level. As mentioned earlier, the US Supreme Court has repeatedly upheld the status of marriage as a fundamental right (Zablocki, supra; Loving, supra), and has also declared unconstitutional legislation intended to “give effect” to bigotry and personal biases (Palmore, supra). American history has shown that the road to social and legal equality has never been easy to traverse; there have always been, and will always be, bitter and demoralizing setbacks and defeats. Cruelty and bigotry all too frequently masquerade as righteousness and religiosity. However, as times change and as a society becomes more enlightened, so do its attitudes towards concepts as basic and as fundamental as fairness and equality. Constitutional scholars have pointed out that (with the short-lived exception of the 18th Amendment, which ushered in the disastrous era known as “Prohibition” and which was repealed by passage of the 21st Amendment less than 14 years later), the US Constitution has never before been amended so as to deprive any group of persons of a right that they already enjoy (whether nationally or only regionally); this is one of the arguments that have been made against proposals to amend the US Constitution to prohibit the recognition of gay marriages in America. Although social and religious conservatives have made such efforts every year since 2006, these efforts have failed consistently, never even garnering sufficient support in the US Senate to end debate (to invoke cloture).

Within the US, gay marriage is now recognized in five states (at the state level) (Massachusetts, Connecticut, Iowa, New Hampshire, and Vermont); in addition, the states of New York and California and the District of Columbia recognize gay marriages solemnized in other jurisdictions where such marriages are legal. Another five states grant to gay couples all of the rights, benefits, and privileges of marriage (at the state level) without using the name (California, Washington, Oregon, Nevada, and New Jersey). Another four states grant to gay couples a limited subset of the rights, benefits, and privileges of marriage (at the state level) (Hawaii, Colorado, Wisconsin, and Maryland). New York and New Jersey may well become the next two states to recognize gay marriage; activists are pressuring the respective state legislatures to pass gay marriage bills in these two states in the days and weeks ahead.

Other nations in which gay marriage has been legalized in both name and substance include Belgium, The Netherlands, Spain, South Africa, Norway, Canada, and Sweden. Gay couples in numerous other jurisdictions worldwide have won all, or almost all, of the substantive rights, benefits, and privileges of marriage, but without the name; these jurisdictions include Finland, Denmark, Iceland, Greenland, Germany, Portugal, Hungary, Slovenia, the Czech Republic, Uruguay, New Zealand, Australia, France, and the United Kingdom. Within Brazil, Argentina, Italy, Mexico, and Switzerland, city and regional authorities have voted to extend some of the economic and legal rights of marriage to gay couples.

We will discover, with the passage of time, the speed with which the US joins these nations in extending its promises of fairness and equality to its gay and lesbian citizens.


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      4 years ago

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      4 years ago

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