Equal protection and due process are often intertwined. They work in tandem to illuminate aspects of constitutional questions that can be seen less clearly through the lens of a single clause. Nowhere is this more true than in the context of same-sex marriage, which by its nature implicates both equality and liberty values. This Article examines how courts’ interwoven Fourteenth Amendment analysis affects the meaning of the recent marriage cases and shapes the emerging constitutional jurisprudence of gay rights.
By choosing to focus on the equality component, courts have emphasized the continuity between laws excluding same-sex couples from marriage and other forms of anti-gay regulation. They have analyzed marriage laws not as sui generis, but rather, as part of an increasingly discredited legal regime that accords gays and lesbians secondary status. This regime was founded on a set of descriptive and prescriptive stereotypes: Homosexuals were viewed as enemies of the family, sexually predatory, and dangerous to children, and anti-gay regulations sought to channel men and women into traditional sexual and gender roles. Courts in recent marriage cases have held that laws that reflect and reinforce such stereotypes are no longer consistent with equal protection. But this anti-stereotyping approach also has implications for how courts understand the liberty component of the marriage question. Historically, anti-gay regulations sought to dissuade people from engaging in homosexual behavior and to steer them into heterosexual relationships and conventionally gendered family structures. Part of what courts are protecting when they protect the right to marry a partner of the same sex is the right to be free from such regulation.
Now that same-sex marriage is inevitable, some former opponents have begun to argue that the marriage cases are all about marriage—that these decisions affirm “traditional family values” and validate efforts by the state to steer all Americans into marriage and punish those who remain outside it. This interpretive frame overlooks the intertwined nature of liberty and equality in the recent marriage cases and obscures the implications of these cases for the rights of gays and lesbians more generally—whether or not they’re the marrying kind.