When the Supreme Court heard oral argument on marriage equality, there were Federalist Society members among the lawyers on both sides of the question. This split in the ranks reflects a disagreement about the source of constitutional protection for the right to marry. Ironically, conservatives themselves predicted the split nearly 30 years ago.
The question is whether the Fourteenth Amendment's protection of the liberty to choose your marital partner is rooted in "traditional family values," such as family integrity, opposite-sex marriage, and procreation; or whether it protects the autonomy of the individual to make important choices for one's own life. Members of the then-fledgling Federalist Society articulated the distinction in "Report to the Attorney General; the Constitution in the Year 2000," published by the Department of Justice (DOJ) in 1988. They predicted that if courts began to subject government restrictions based on homosexuality to greater scrutiny, we would see homosexuals in the armed forces, and courts would invalidate laws discriminating against gay men and lesbians with respect to child custody and adoption. They said it was not "far-fetched" to imagine that recognition of homosexual marriages would follow.
By now a majority of the court has determined that privacy and liberty in intimate relationships is rooted in individual autonomy. Justices O'Connor, Souter and Kennedy, upholding a woman's right to choose an abortion in Planned Parenthood v. Casey, wrote that liberty protects the right to make choices "central to personal dignity and autonomy," and "to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Striking down a law against homosexual sodomy in Lawrence v. Texas, Justice Kennedy wrote, "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."
Some conservatives accept this definition of liberty. Federalist Society lawyer Ted Olson, George W. Bush's solicitor general and perhaps corporate America's greatest champion in the Supreme Court, argued that Proposition 8, eliminating marriage equality in California, is unconstitutional. Olson said that marriage is a fundamental, personal right, and that the decision of whom to marry is at the core of individual autonomy and personal liberty. Similarly, the libertarian Cato Institute filed an amicus brief supporting the challenge to Proposition 8, arguing that the text and the history of the Fourteenth Amendment establish that it was intended to protect the right to marry (in part because slaves were prohibited from marrying and their families were cruelly separated). Cato eloquently rejected the notion that only traditional opposite-sex marriage is protected by the Constitution: "Carving out of the text of the Fourteenth Amendment an exception for traditional forms of discrimination would have strangled the Equal Protection Clause in its crib."
On the other hand, conservative lawyers opposing marriage equality are fighting a rear guard battle to return to the traditional family values definition of liberty. Charles J. Cooper, a longtime member of the Federalist Society and, like Olson, a veteran of Ronald Reagan's Justice Department, defended Proposition 8. Cooper's brief claimed that limiting marriage to opposite-sex couples is merely intended to sustain a unique institution that will motivate heterosexuals to "channel potentially procreative conduct into stable, enduring relationships ... to further ... responsible procreation and childrearing." Cooper finds no reason to make this institution available to homosexuals, because same-sex couples "don't present a threat of irresponsible procreation." Federalist Society lawyer Paul Clement, who followed Olson as solicitor general under President Bush, made the same argument in support of the Defense of Marriage Act (DOMA), which denies the federal benefits of marriage to same-sex partners. Cooper and Clement would have us believe that Proposition 8 and DOMA are not about discriminating against homosexuals; their purpose is to protect society from irresponsible, randy heterosexuals who would have children out of wedlock or abandon them if the bonds of opposite-sex marriage were diluted by making the institution available to everyone.
Cooper and Clement's rationale for restricting marriage to opposite-sex couples is contrived. The real driving force of the restriction is traditional family values, and an overly narrow definition of them at that. Robert George, a senior adviser to the Religious Liberties Practice Group of the Federalist Society and an influential conservative Christian thinker, argued in his amicus brief that marriage needs to be restricted to "conjugal unions." In his view, marriage is for "coitus ... that has generative significance." All the other reasons that people might marry, or all the other ways they might enjoy sex, lead in his view to the "revisionist" view that marriage is essentially an "emotional union." He perceives a danger that revisionism will dominate the culture and society will suffer from the deterioration of the marital norms of permanence, exclusivity and monogamy.
If the court holds fast to the view that the right to marry is secured by the liberty of the individual, as it should, then like all other fundamental constitutional rights, that liberty cannot be violated by statutes or referenda, even those supported by a majority of voters. In a constitutional democracy, the court must protect the fundamental rights of all, particularly those of a minority subjected to discrimination.