Perry v. Schwarzenegger and the Slippery Slope

As just about everyone knows, yesterday a Northern District of California judge struck down California’s Proposition 8 as unconstitutional. There has been a tremendous amount of blog commentary on this already, much of it worth reading. (See Orin Kerr (here and here), Dave Hoffman, Eugene Volokh, Dale Carpenter, Howard Wasserman, Rick Hasen.) The one issue I want to comment on is what Perry means for the future of the constitutional treatment of same-sex marriages.

Many advocates for legal recognition of same-sex marriage are deeply worried by Perry. Dale Carpenter, for example, is concerned that the breadth of the arguments considered in Perry could lead to a sharply negative precedent if the case is reversed on appeal. Those fears are legitimate. An Equal Protection or Due Process argument mandating equal treatment for low-status individuals is what might be called “a nuclear bomb of a legal theory” — it applies everywhere, all at once, and obliterates legal distinctions meant to enforce low social status. The same applies, to a lesser extent, to arguments that the Full Faith and Credit Clause mandates recognition of valid same-sex marriages by every other state in the union. Courts might be hesitant to, so to speak, stop worrying and learn to love the bomb. Marched to the precipice too quickly, they might find some way to pull back from the brink.

If that happens, and if American society continues to develop tolerance for same-sex couples, will we be locked into sub-optimal constitutional doctrine? Not entirely. As I argue in my forthcoming article on this subject (in the Alabama Law Review), there is an escape valve.

In the scenario I’m envisioning, a large number of states have opted to recognize same-sex marriage, a nearly equal number forbid it, and no federal rule (equal protection, due process, congressional statute) resolves the issue. That scenario raises the possibility of intractable and irresolvable legal and social conflict between states. Valid same-sex marriages would evaporate and re-appear as couples travel across the country, with attendant disruption for state citizens and interstate travel. It was exactly that sort of conflict, I argue, that the Privileges or Immunities Clause of the Fourteenth Amendment was in part intended to address. The Privileges or Immunities Clause was envisioned as a response to antebellum restrictions on the travel of free black citizens from northern states. Northerners argued that states such as Missouri or Oregon that banned free blacks entirely, or states such as South Carolina or Louisiana that imprisoned and even enslaved free black sailors, violated the Article IV Privileges and Immunities Clause: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The southern and western response to this argument, ultimately embraced by the Supreme Court in Dred Scott, was that northern states could not grant blacks full citizenship status for purposes of Article IV; that is, the Privileges and Immunities Clause required only that states grant black visitors with the same (lack of) privileges they gave their own black inhabitants, not their citizens per se.

The Privileges or Immunities Clause was intended, at least in part, as the decisive northern rebuttal to this argument. It was intended to encode the northern understanding of the Privileges and Immunities Clause, under which states could not refuse to grant the citizens of another state all the privileges and immunities of their own citizens, without distinctions originating from a contested status regime not recognized by the citizen’s home state. The trick is in determining what that might apply to other than racial distinctions. In the aftermath of the Slaughterhouse Cases, which effectively gutted the Privileges or Immunities Clause, the Equal Protection Clause has done most of the work as the Reconstruction Amendment’s weapon against racial discrimination. State citizenship is irrelevant for Equal Protection Clause purposes; the clause applies to home state citizens and visitors (even non-citizens) alike.

I argue in my paper that the Privileges or Immunities Clause should only be invoked in this fashion in situations that somewhat mirror the antebellum situation: with states more or less evenly divided between sharply contested status regimes that are comprised of social status structures backed by state law. Formal recognition and formal non-recognition of same-sex marriage by state law would count as “sharply contested,” but with only six jurisdictions currently granting such marriages (and another three recognizing them), the states are not yet anywhere close to “evenly divided.” Thus the escape clause offered by the Privileges or Immunities Clause might never be needed; even if there is a negative equal protection or due process holding in a Perry appeal, courts down the line could reverse course in the wake of societal change. But if a federalist deadlock occurs, the reconstructed Constitution does not leave courts powerless to deal with it.

This Post Has 5 Comments

  1. Sean Samis


    I enjoyed your comments on Perry v. Schwarzenegger; and I’ve seen similar concerns expressed on other sites. The interesting commonality in these concerns is that if the courts do indeed “pull back from the brink,” their pulling back will not be based on legal principles, but a holding intended to further a social agenda: marginalization of gays and lesbians, preservation of traditional social norms. This pulling back would be an example of judicial activism because the legal arguments against same-sex marriage have all been essentially discredited. The irony of this is, of course, that the proponents of these discredited legal arguments are often also quite outspoken about the vices of judicial activism.

    The escape valve you offer has several strikes against it: as you noticed, courts would have to deal with the Slaughterhouse Cases and their gutting of Privileges and Immunities. Another is that it is unlikely that half the states will recognize same-sex marriage in less than a decade; in all likelihood, Perry will come before the Supreme Court before that. Another is that this escape valve appears to be a kind of compromise, and in our current political landscape compromises are considered by many (not I) a sign of weakness or a general lack of character.

    I look forward to your paper.

  2. Susan Barranco

    I look forward to your paper as well, and enjoy your comments.

    The California voters will moot Perry–allowing civil marriage for all by popular vote before SCOTUS gets a chance to weigh in.

  3. Lawrence Jay Kramer

    At one time, defenders of a Prop 8 might be able to claim that marriage supported the decision of parents to rear their children to be ready for gender-based specialization as adults. A special legal relationship that protects those raised under that particular social mos, especially women not trained for competitive enterprise, seems to me an appropriate governmental accommodation, one that, by its nature, would be relevant only to, and, therefore, available only to, opposite-sex couples.

    But, arguably, the state of California has no such relationship. Rather, the state has both neutered its marriage laws AND adopted civil union laws that give the couples very similar rights. At that point, there seems to me no distinction left for the state to defend. The label on the relationship is not what supports gender-specialization in childhood. The legal relationship created by the status is what would do that, and it no longer does do that. Once civil unions and marriages have virtually the same effects within the state, it seems difficult to defend what is, in legal terms, a matter of nomenclature the predominant effect of which is to pass judgment on the participants without helping those reared to gender-based roles in any material way.

    What I suspect bothers traditionalists about Perry v. Schwarzenegger is that it puts a fork in marriage as a legally special relationship. This is not to say that marriage is not a wonderful thing for its participants, just that, as a strictly legal matter, there’s no longer any there there, which makes it all too clear to traditionalists that gender-based specialization, on which many have based their identities, was “wrong,” as the state no longer recognizes it as the basis for anything special.

    I don’t know how this will play out in the long run. I’m pretty sure that Judge Walker cannot possibly have found any useful facts, as the test of an institutional change of this magnitude is how it plays out over way more than the short period it has been available to study, and the performance of the children, as children, rather than as parents, is hardly an indicator of anything worth knowing about the consequences of this social change.

    But the fact remains that gender-based specialization is out of favor, perhaps never to return, and so marriage as we have known it must suffer the same fate.

  4. Sean Samis


    I find your comment fascinating, and I admit I’m not sure I understand it; especially what a “social mos” means.

    But if I understand correctly, you are saying that at one time, banning same-sex marriage could have been defended because marriage was an institution which supported a parental choice to raise one’s children to become adults whose career choices would be gender-based: little girls and boys raised to live according to their parents’ gender stereotypes.

    Without addressing the rest of your comments, do I understand your point correctly?

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