The “Gay” Marriage Misdirection: Justice Alito Gets It Wrong in Windsor

By BRIAN CHELCUN and ARI EZRA WALDMAN

I am pleased to welcome guest columnist, Brian Chelcun, a graduate of N.Y.U. Law School and a friend, who both conceived of and principally drafted today's installment of "What's Next." Towleroad is honored to have the benefit of his keen insight. The "What's Next" series takes an in depth look at marriage and gay rights, in general, after the Supreme Court's momentous rulings striking down the Defense of Marriage Act and Prop 8. Today's column looks at Justice Alito's dissenting opinion in Windsor.

1299099052136Back in March, when the Supreme Court heard oral argument Windsor v. United States, the media -- Towleroad included -- quickly jumped on a provocative question posed by Justice Samuel Alito:  

"Traditional marriage has been around for thousands of years. Same-sex marriage is very new… [You] want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?"

Last week we discussed Justice Scalia’s dissent, a sloppy, berating conceit lambasting what he perceived as judicial activism and warning (again) about the impending extension of marriage equality across the country. Justice Alito’s dissent is a little different: it's a little less bombastic and focuses mainly on the "newness" of the institution of same-sex marriage. But, like Justice Scalia's, Justice Alito's dissent doesn't stand up to scrutiny.

He repeatedly invokes the phrase "same-sex marriage," a term that is often used as shorthand for marriage equality. It seems innocuous enough, and many advocates have probably used it in conversation to avoid more tongue-twisting phrases such as "marriage for same-sex couples." So why is Alito wrong to use it (over, and over, in his dissent), and why should we avoid it as well?

Continue reading AFTER THE JUMP to see how Justice Alito’s assessment of "same-sex marriage" is flawed, and doesn't appreciate what Windsor v. United States and the marriage equality battle are really about. His dissent serves as a timely reminder to those of us who are continuing the fight to expand marriage equality about how important the phrasing of a few words like "same-sex marriage" can be.

110427_judge_vaughn_walker_605In
Judge Vaughn Walker's opinion in the first round of the Perry litigation, the case that overturned Proposition 8 in
California, he described what the two same-sex couples in that case were seeking as
something that was not new or different, but rather what opposite-sex couples
already have –- recognition of their relationships "for what they are: marriages."

By contrast, Justice Alito sees "traditional" marriage, which is "intrinsically opposite-sex," as a
fundamentally different institution from "consent-based" marriage, which
includes "same-sex marriage." The right
to marriage, he suggests, may be worthy of constitutional protection, or in
Supreme Court jargon, a "fundamental right … deeply rooted in this Nation's
history and traditions." But, he ultimately concludes, "it
is beyond dispute that the right to same-sex marriage is not deeply rooted in
this Nation's history and tradition." Therefore, he argues, Edie Windsor was seeking a "very new
right" that unelected judges should resist recognizing in deference to the
legislative will of the people.

This
distinction between opposite-sex and same-sex marriage is artificial and wrong,
and harmful to the marriage equality movement. It matters not just in public opinion, where opponents use "gay
marriage" instead of "same-sex marriage" as a derogatory expression of
inequality, an implication that same-sex couples' marriages are different from those of opposite-sex couples.  It also matters
in the legal world, as Justice Alito's passage demonstrates.

A
brief Supreme Court primer: when the Court views a right as fundamental to our
individual liberties, it will closely scrutinize any law that interferes with
that right. Recall our earlier discussions of levels of scrutiny as akin to hurdles on a racetrack: the higher the hurdle, the harder to jump over; the higher the level of scrutiny, the harder it will be for a law to pass constitutional muster. So, the Court is far more
likely to strike down a law interfering with a fundamental right, for example
the right to use contraception, than if a law interferes with a non-fundamental
right, for example a right to smoke marijuana.

When (not if) a marriage equality case returns to the Court to decide if
states like Texas or Alabama are constitutionally required to allow same-sex couples to marry, it may turn on
whether those states can come up with compelling reasons for their laws; if
marriage equality is considered a fundamental right, the states' reasons will
have to be far more compelling, and they will be unlikely to succeed.

The
Supreme Court decides whether or not there is a "fundamental right" protected by the constitution by looking to "history
and tradition," as Justice Alito referenced in his dissent, to see if society
has generally protected that right. And
here is where the distinction between "marriage" and "same-sex marriage" becomes crucial.  

Under
this framework, Justice Alito looked specifically at a right to "same-sex
marriage" as the appropriate analysis in Windsor,
rather than a general right to "marriage." Of course the problem is that Alito is correct when he frames the case in this narrow way — there is in fact a long history of protecting marriage (including several
prior Supreme Court cases), but only a modest and recent tradition of "same-sex
marriage." Indeed, newer than cell
phones or the internet! Thus, there could be no fundamental right for same-sex couples to
same-sex marry under Justice Alito’s approach. 

That’s
the doctrine in legalese, but we don’t think it takes a lawyer to see, or at
least feel, that there's something deeply wrong with this approach. By examining the right to marry as "same-sex
marriage," Justice Alito looked to our history and traditions not only to
determine what right Edie Windsor was
asserting (the right to marriage) but also who
gets to exercise it (only opposite-sex couples). Simply
put, that's not how fundamental rights should work. If there is a history and tradition of
discrimination against someone, denying a group their ability to exercise a
fundamental right, the Court is supposed to rectify that, not ratify it; but by
considering both what and who, Justice Alito would say that
decades of discrimination against same-sex couples are part of our history and
tradition, and should thus continue.

This is precisely what the majority did in Bowers v. Hardwick, the infamous case allowed states to criminalize same-sex sodomy: instead of recognizing that what was at issue in the case was the liberty of gay persons to express themselves intimately, a right shared by heterosexuals and gays alike, the majority framed the debate as one of whether the Constitution protected a fundamental right to "same-sex sodomy." Did the Constitution give us a right to gay sex? Of course not, when framed in those terms. The Bowers Court defined fundamental rights based on what right was being asserted and who was asserting it, thus perpetuating the discrimination embodied in anti-sodomy laws.

Our-marriage2Justice Alito is, quite simply, wrong. Once a right is fundamental, it is presumed fundamental for everyone. It didn’t matter that there was no
deep-rooted history of "interracial marriage" in 1967; the Supreme Court held
in Loving v. Virginia that Virginia's
antimiscegenation law violated a right to "marriage." And it's irrelevant now that there's no
tradition of "same-sex marriage" in 2013 because, as Judge Walker noted, this
isn't about the who but about the what
What's at stake is marriage. Historically, same-sex couples have been discriminated against and not
allowed to marry.  The Court cannot invoke
that history of discrimination to say that there is no history of a right to
same-sex marriage!

All of this hinges on a few
key words, and whether the subject of the marriage equality battle is phrased
in a way that makes our rights different — "same-sex marriage" — or equal — "marriage." Justice Alito should have
been more careful in his analysis, and his dissent serves a reminder to us all
that words matter in public debate and in legal analysis. So the next time you catch yourself saying "same-sex marriage," try to use something like "marriage equality" or "marriage
for same-sex couples" or simply "marriage" instead. Because while same-sex couples' ability to
marry is indeed a more recent development than cell phones or the iInternet,
our right to marry is just as
deeply rooted in the constitutional principles of equality as everyone else's.

***

Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

Brian Chelcun is a 2013 graduate of New York University Law School. This column comes largely from a symposium piece he published in the N.Y.U. Review of Law and Social Change.