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.