Cross-posted from Dorf on Law

In my latest Verdict column, I discuss bills in Alabama and other states that would eliminate the obligation of couples seeking to marry to obtain a marriage license from a state or local official. Although these proposals have been touted as a means by which states can evade the obligation to permit same-sex marriage, I note that they don't go nearly that far. They would abolish marriage licenses; they would not abolish marriage itself.

But what if a state were to abolish marriage as a legal status for everyone? Would that be unconstitutional? I first consider the equal protection objection. To evaluate that requires grappling with the extent to which Palmer v. Thompson remains good law. Palmer upheld Jackson, Mississippi's closing of all public swimming pools in response to the obligation to desegregate its public swimming pools. Although I think Palmer was wrongly decided on its facts, I argue that the general principle it articulated--that a facially neutral law adopted for a discriminatory purpose only violates equal protection if it also has a disparate impact--remains good law, at least for now.

My column next turns to the liberty claim. Obergefell v. Hodges rooted the right to same-sex marriage chiefly in the fundamental right to marry under the doctrine of substantive due process. Assuming that's correct, then denying the right to marry to everyone in a state would obviously be unconstitutional. But is it right? Justice Thomas argued in dissent in Obergefell that marriage is not an exercise of "liberty" in the same way that other fundamental rights are. Those other rights protect against government interference. The marriage right protects a right to state recognition. Given that we have a mostly classical liberal Constitution that protects negative rights, a fundamental right to marriage looks like an anomaly.

In the column, I suggest that an affirmative right to marry is not necessarily ruled out by the Constitution's text and that it would hardly be disruptive. States and their predecessors have recognized marriage for some people since colonial times. But my column concedes that it is technically an open question whether the fundamental right to marry would be violated by a law denying marriage to everyone.

Here I want to explore another possibility: What if marriage is a fundamental right "in equal protection?" To do so requires that we first examine that oxymoronic-sounding category of constitutional rights.

Under Supreme Court doctrine that is not always followed exactly but remains the basic framework, courts generally defer to legislative judgment. However, where a law employs a suspect classification (like race) or burdens a fundamental right (like the right to bear or beget a child) then heightened judicial scrutiny applies. Those two methods of triggering heightened scrutiny correspond to substantive due process and equal protection claims, respectively. There is, in addition, a third way to obtain heightened scrutiny that bridges liberty and equality, although it is technically speaking within the equal protection branch: Where a law discriminates (even on a non-suspect basis) in the burdens it imposes on fundamental rights, heightened scrutiny applies.

One account of the doctrine of fundamental rights in equal protection views it as a transitional doctrine that arose relatively early in the post-1937 era at a time when the justices were still traumatized by the Lochner-New Deal rulings, and so sought to deny that it was back in the business of substantive due process. In this view, there's no justification for an intermediate category of fundamental rights in equal protection: If a right is fundamental for substantive due process purposes, then all burdens on it--whether discriminatory or not--trigger heightened scrutiny; while conversely, if a law does not discriminate on the basis of a suspect (or semi-suspect) classification, then only rational basis (i.e., toothless) judicial scrutiny applies.

There is some historical accuracy to that critique. Skinner v. Oklahoma is a prime example. There the Court invalidated a law that required the sterilization of "habitual criminals." The Court first declared that the law infringed "one of the basic civil rights of man," noting that "[m]arriage and procreation are fundamental to the very existence and survival of the race." But rather than invalidate sterilization per se, Justice Douglas's majority opinion invalidated the penalty on the ground that it applied to blue-collar but not white-collar crime, an equal protection violation. Skinner has subsequently been cited as precedent in substantive due process cases, based on the quite logical assumption that the problem with sterilizing people as punishment for crime is an infringement on liberty, regardless of any distributional issues.

Yet even if some cases in which the Court has found a fundamental right in equal protection are better  understood as recognizing substantive due process rights, there is a narrow category of rights that are sensibly understood as fundamental only for equal protection purposes. The three that one finds in the Court's doctrine are voting, travel, and court access. Here's how my casebook co-editors and I explain a fundamental right in equal protection with respect to voting: "A city may not need to allow anyone to vote for candidates for mayor. If the mayor were chosen by an elected city council, no constitutional issue would arise. But if a city has mayoral elections at all, the rules allowing some residents to vote, while denying the vote to others, would trigger strict judicial scrutiny."

To be clear, when Justice Kennedy describes marriage as a fundamental right in Obergefell, he uses the language of substantive due process. But as I note in the column, neither Obergefell nor the prior marriage cases actually involved a blanket denial of the right to marry; they were all cases in which the marriage right was distributed unequally. And it is notable that even if the Court was wrong to treat the right against forced sterilization as fundamental for equal protection purposes only in Skinner, the Court did identify marriage specifically in that case. So there is at least precedent for calling marriage (at least) a fundamental right in equal protection.

Finally, reconceptualizing marriage as a fundamental right in equal protection would make more sense of Justice Kennedy's discussion of the "synergy" between liberty and equality in Obergefell.  Chief Justice Roberts in dissent in Obergefell complained that the synergy idea was "difficult to follow." I disagreed with that point, but I also think that the majority opinion in Obergefell would have been stronger still if it had said that regardless of whether there is a freestanding substantive due process right to marry, marriage is at least a fundamental right in equal protection.

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