A Constitutional Right to Marry?
Well, at some great risk, I'm going to try my hand at constitutional law for a few minutes. Those of you who read The Corner and Andrew Sullivan's blog may have seen today's discussion of the constitutional status of the right to marry (Andrew affirming it as a constitutional right and the Cornerites being significantly more skeptical). The issue here boils down to whether or not all constitutional rights are actually in the Constitution. The conservatives are, of course, insisting that if it's not in the text, then it's not a right (the ghost of Roe hovers in the air). Not surprisingly, I am not convinced.
I've emailed the participants with an argument something like the following: both conservatives and libertarians presumably agree that parents have constitutional rights with respect to their ability to raise their children as they see fit. Both groups (and many liberals as well) would want to see those rights protected against state intervention on some number of issues. (It's worth noting that liberals and conservatives will defend those rights for some things and not others, while libertarians are generally more willing to defend them across the board.) But the question is: where do those rights come from? Like marriage, parenting is not mentioned in the document itself. Nonetheless, there is a history of Supreme Court decisions defending those parental rights. A useful list can be found here. I call your attention specifically to the 1922 case Pierce v. Society of Sisters where Justice McReynolds wrote:
Under the doctrine of Meyer v. Nebraska, 262 U.S. 390 , 43 S. Ct. 625, 29 A. L. R. 1146, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children [268 U.S. 510, 535] under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
Subsequent case law has upheld this formulation, althoughPrince v. Massachusetts in 1944 attenuated it with a recognition of what today we'd call a "best interest of the child" exception.
The Lawrence case from last year cited these parental rights cases as examples of "broad statements of the substantive reach of liberty under the Due Process Clause," and then suggested that the most pertinent recent case was Griswold v. Connecticut. So there is a clear line in Kennedy's mind from parental rights through contraceptive rights and perhaps to the right to abortion in Roe that recognizes that there are some fundamental liberties that are constitutionally protect that are not explicitly described in the document itself. As I understand it, this is more or less Randy Barnett's approach to constitutional interpretation and the "presumption of liberty." It also seems consistent with the sort of Lochner revisionism that David Bernstein has engaged in. (And the arguments in Pierce would make a great starting point for the constitutionality of school vouchers and other choice programs.)
So, coming back to my original point, if one believes there is a constitutionally protected set of parental rights, which includes the right to raise one's children as one sees fit, then the same logic should lead one to believe there is, or at least could be, a constitutionally protected right to marry the person of one's choice. If you don't believe me, read Scalia's dissent in Lawrence, as he saw the line from the court's logic there to the legalization of same-sex marriage. Scalia finds that a bad outcome of course, and I don't, but he understood the line of thought.
The question for conservatives is how they can rescue any notion of a constitutionally protected set of parental rights yet deny a completely analogous constitutionally protected right of marriage. Whether the latter right extends to person's of the same gender is another question, but establishing the right to marry at the constitutional level (which I believe one can under the line from Meyer to Pierce to Lawrence) should be the starting point.
May libertarian law professors everywhere have mercy on my soul if this makes no sense whatsoever.
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Dennis Schenkel - 10/4/2007
Thanks for this discussion. I know it's 3 years old, but I just ran across it (thanks, Google).
As for whether the constitutionally recognized rights of parents suggests that there is also a constitutional right to marry whomever you like, I think you come close to the answer when you ask where such a parental right comes from, since parental rights are not mentioned in the Constitution.
I would say that parental rights actually flow not from the Constitution but from the obligations of parenthood, which is prior (both chronologically and in order of importance) to the Constitution. The rights of parents flow from the nature of what it means to be a parent and what it means to be a child.
Likewise, the right to marry also flows from the meaning of marriage, the meaning of family, and the obligations of family.
If you haven't guessed yet, I'm appealing to Natural Law. No, I'm not pointing to the Bible. I'm saying that there are some things that are true about the nature of what a human person is that requires governments to respect and recognize various rights and responsibilities, and even to privilege them for the common good of all society.
I don't know where you are in your thinking on this topic 3 years later, but I hope I've helped.