Last Tuesday the U.S. Supreme Court heard oral arguments on the constitutionality of states’ same-sex marriage bans. The framing of the central question in these cases adheres to the established approach of basing LGBT equality on the Fourteenth Amendment, despite the general reluctance to fully extend its equal protection and substantive due process guarantees to this minority. Depending on what happens at the Supreme Court this session, it might be time for LGBT advocates to consider other options. The First Amendment represents a promising alternative.
Coming out of the closet is free speech
The expression of sexual orientation and gender identity, “coming out,” is a critical aspect of being LGBT. Taking this into account shifts the focus of the debate from the Fourteenth Amendment’s protection of equality and liberty to the First Amendment’s protection of free speech.
Coming out is not a one-time occurrence. LGBT people come out every time they enter a new environment. For instance, in a situation where a gay couple orders a wedding cake, they come out to the proprietor of the bakery, who likely expects an engaged couple to be heterosexual. In this way, coming out may be seen as a perpetual form of speech.
Aside from announcing an important feature of one’s identity, coming out also conveys a political message — especially in the context of the national debate of same-sex marriage, state RFRAs, and laws banning teachers from discussing LGBT matters in the classroom. When an individual comes out, he or she implicitly enters the political debate between conflicting cultural values by conveying the idea that being LGBT is okay. Consequently, coming out parallels other protected political expression, such as objection to war, student prayer in public schools, and being openly gay in the military, as well as symbolic speech, such as wearing signs or emblems in support of a specific cause.
To be clear, this interpretation is more than hypothetical. In fact, it finds conclusive support from prior case law. Recall, for instance, that in 2010 a U.S. District Court overturned the military’s “Don’t ask, don’t tell” policy, reasoning that the regulation restricted gay and lesbian service members’ expression of their sexual orientation in violation of the First Amendment. Taking all of this into account, it seems evident that coming out may be seen as free speech warranting constitutional protection.
Vulnerabilities of the Fourteenth Amendment framework
Citing Loving v. Virginia, which invalidated laws banning interracial marriage, advocates have long argued that state marriage bans violate the Fourteenth Amendment. They assert that these enactments unconstitutionally discriminate against LGBT people by denying them equal protection and by depriving them of the fundamental right to marry, and that, consequently, these laws are unconstitutional and should be overturned.
However, until recently, courts have been hesitant to view the issue in this way. Instead, they posit that this is a states’ rights concern, rather than a constitutional question for courts to decide. In particular, they have reasoned that states traditionally have defined marriage, and that voters should decide, not the courts.
The Sixth Circuit referenced this reasoning when it upheld several state marriage bans and created a split among federal courts, which fast-tracked the marriage cases to the Supreme Court. As the Sixth Circuit noted, Supreme Court precedent supports the states’ right to define marriage. It further elaborated that U.S. v. Windsor, which overturned the federal Defense of Marriage Act in 2013, did not change this paradigm, but rather affirmed it by invalidating federal restrictions of a state prerogative.
Notwithstanding states’ rights arguments, when courts have applied equal protection to LGBT people, as the Sixth Circuit ultimately did, they have shown deference to the states by applying the lowest level of constitutional scrutiny. This is because LGBT individuals, unlike racial and ethnic minorities, are not considered to be a suspect class requiring a higher standard of protection from laws that classify specific groups.
As a result, it is assumed that state marriage bans are a carefully considered means of achieving a legitimate government goal. This obviously has placed LGBT individuals at a significant disadvantage, because they have been required to prove either that the government’s goal is arbitrary, irrational or unreasonable, or that the law is an ineffective way of achieving the alleged interest. Though equality advocates recently have met with some success in state and federal courts, a favorable outcome in future cases, including the pending marriage cases at the Supreme Court, is far from certain.
The same may be true when considering the matter from the perspective of the Fourteenth Amendment’s prohibition against deprivation of life, liberty and property. Only practices deemed fundamental to these entitlements receive a higher standard of protection, meaning that the government must demonstrate a critical interest in limiting the practice through a means narrowly tailored to achieve the interest. The government must show that the law does not encompass activity beyond the stated interest (overbroad) or fail to proscribe activity at odds with the advancement of this interest (under-inclusive).
Though marriage is not specifically listed in the Constitution, courts have determined that the right to marry turns on “bedrock assumptions about liberty,” and is therefore fundamental. In the past, however, many courts have embraced the conventional distinction between same-sex marriage and “traditional marriage,” thereby differentiating the issue of the right to marry from the right to marry someone of the same gender. As the Sixth Circuit asserted, courts have not uniformly sanctioned same-sex marriage as a distinct constitutional privilege necessitating heightened protection; therefore, “[t]hat route for recognizing a fundamental right to same-sex marriage does not exist.”
Free speech is a stronger argument
Reframing the issue as a First Amendment matter would not only revitalize the debate, but also may prove more successful for LGBT advocates. To begin with, free speech is a constitutional matter over which the courts mainly preside. Accordingly, states’ rights arguments regarding marriage do not have as much significance with this approach.
Along the same lines, if accepted, a First Amendment claim would neutralize distinctions between suspect and non-suspect classes and between same-sex marriage and traditional marriage. That is to say that if coming out is viewed as free speech, then these divisions would be inconsequential, because the central question would concern whether the law suppresses expression. Given that the marriage bans single out LGBT people, reinforcing negative views that fuel stigma and make it more difficult (and dangerous) for them to come out, equality advocates would have a strong argument for the case that these laws impermissibly infringe upon free speech.
Presenting the dispute in this way would also mandate the highest level of constitutional scrutiny of the same-sex marriage bans and other anti-LGBT enactments, because free speech claims automatically trigger this increased level of review. This would make it more difficult for proponents of these laws because they would need to prove that such statutes advance a critical government interest and that they are not overly broad or under-inclusive. It is unlikely that equality adversaries would be able to accomplish this given the incoherence of the rationales they have advanced thus far.
For example, proponents of the marriage bans repeatedly have argued that the state has an interest in promoting responsible procreation. However, the marriage bans fail to advance this interest, because they do not prohibit opposite-gender couples from getting married, even if they cannot or choose not to procreate. Moreover, same-sex couples do have children, so this logic does not make sense, particularly when considering the extensive measures they must take to become parents — adopting a child, undergoing fertility treatments, or finding a surrogate certainly requires significant forethought, time and expense. In light of this weakness, responsible procreation arguments would inevitably fall flat.
Free speech and human dignity
As Supreme Court Justice Thurgood Marshall articulated, “To suppress expression is to reject the basic human desire for recognition and affront the individual’s worth and dignity […] Such restraint may be ‘the greatest displeasure and indignity to a free and knowing spirit that can be put upon him.'”
The state marriage bans and other anti-LGBT enactments unquestionably affront the worth and dignity of LGBT individuals. In effect, they enforce the notion that LGBT individuals are inferior to other groups by treating them as second-class citizens. This result suppresses expression and compels many LGBT people to remain imprisoned by silence and shame. The Constitution cannot and must not tolerate this oppression.
Though the Fourteenth Amendment theoretically offers the promise of emancipation from this tyranny, it ultimately may prove inadequate. However, the First Amendment has the potential to overcome the Fourteenth Amendment’s vulnerabilities. Consequently, LGBT equality advocates should seriously consider it as a viable alternative to overturn these prejudicial laws.
Andrea C. Anastasi is graduate of the University of Pennsylvania and Temple University Beasley School of Law. She currently works as an attorney, writer, and advocate in the Greater Philadelphia Area.