If you need proof that defenders of marriage discrimination may be running out of legal arguments to offer in support of denying marriage benefits to same-sex couples, read the brief Utah filed on Friday in a federal appeals court. The 120 page brief makes it as far as the second page of its introduction before comparing pro-equality court decisions to one of the most widely reviled Supreme Court decisions in American history. And then it gets even weirder. One of the major arguments animating the state of Utah’s brief is that affording equal dignity to gay and straight couples is even more objectionable than giving employers a constitutional right to exploit their workers.
Several court decisions have drawn a fairly obvious comparison between the current court battles over marriage equality for same-sex couples and the Supreme Court’s original marriage equality decision — the 1967 decision in Loving v. Virginia banning marriage discrimination on the basis of race. Utah’s brief confronts this comparison with a rhetorical flourish. A court of appeals decision in favor of marriage equality, the state claims, “would not be the Loving of our age.” Instead, “it would be more like the Lochner of our age.”
For those who are unfamiliar with early Twentieth Century constitutional law, Lochner v. New York is one of a handful of cases that is part of what is often referred to as the constitutional “anti-canon.” That is, Lochner is typically taught in law schools — along with decisions upholding segregation and permitting Japanese detention camps — as examples of how judges should not decide cases. As one of my own law professors cautioned me when I was a law student, the only reason an attorney should ever cite a case like Lochner in their brief is to derisively compare their opponent’s argument to that decision.
So Utah’s attorneys are using Lochner properly, in the sense that they recognize that it is an anti-precedent that, in the words of the late conservative Judge Robert Bork, “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.” But the comparison they draw in their brief is deeply offensive. Lochner belongs in the constitutional anti-canon because it is not only rooted in an absurd interpretation of the Constitution, but also because it led to tragic consequences for millions of American workers.
The Fourteenth Amendment provides that no state may “deprive any person of life, liberty, or property, without due process of law.” The Lochner decision took this exceedingly vague language and read into it a “right to contract” that invalidated numerous laws intended to protect workers from rapacious employers. In essence, Lochner and similar cases were rooted in the idea that if a worker signs a contract with an employer — even if they are forced into a one-sided contract by their own desperate circumstances — then the courts should be exceedingly hostile to laws that try to alter the terms of that contract. Based on this logic, the Supreme Court struck down laws preventing employers from overworking their employees, laws guaranteeing a minimum wage, and laws protecting workers’ right to join unions.
Significantly, Lochner and the cases that relied upon it were also fundamentally hostile to bans on discrimination. The so-called right to contract that animated Lochner, according to the Supreme Court’s subsequent decision in Adair v. United States, forbids laws that compel “any person in the course of his business and against his will to accept or retain the personal services of another.” But, of course, that is exactly what anti-discrimination laws do — they compel business who don’t want to hire black people or women or LGBT workers to do so anyway. If Lochner had still been good law when President Lyndon Johnson signed the federal ban on racial employment discrimination, that ban would have been struck down. If it were good law today, laws banning anti-gay discrimination by private employers would also be unsustainable.
And, yet, the state of Utah does not simply compare marriage equality to this relic of a more barbaric constitutional era, its brief actually claims that a decision abolishing marriage discrimination would be “[w]orse than Lochner.”
The crux of Utah’s argument on this point is that, if courts recognize the equal dignity of gay couples, that would mean that they would also “effectively federalize domestic relations law — just as Lochner, for a time, federalized regulation of intrastate commerce.” Such a decision, Utah claims, would be worse than Lochner because it would “effectively impose a system of unequal sovereignty”:
Under the new federal system embraced by the district court’s decision, States could retain their traditional authority over domestic relations — a matter even more important to many States than intrastate commerce — only so long as they hew to the evolving views of national opinion leaders. But if a State chooses — even when supported by sound logic, experience and social science — to reject those views, it would effectively lose its sovereignty over marriage and other sensitive domestic relations matters.
This argument is wrong not just because it misunderstands the Constitution, but because it misunderstands the reason why Lochner was wrongly decided. The problem with Lochner was not just that it was one of several examples of the Supreme Court seizing control over the nation’s economic policy; the biggest problem with Lochner was that it had virtually no basis whatsoever in the text of the Constitution. It requires, to say the least, a fair amount of linguistic gymnastics to read the Constitution’s command that no state may “deprive any person of life, liberty, or property, without due process of law” and conclude that these words give employers a constitutional right to exploit workers.
The argument for marriage equality is quite different. The Constitution provides that states also may not “deny to any person within its jurisdiction the equal protection of the laws.” There is some nuance concerning which groups are entitled to heightened protection under this clause — though there should be little doubt that LGBT Americans qualify for such heightened protection — but that nuance does not overcome a fundamental problem facing the state of Utah. In Lochner the Supreme Court crammed a non-existent right into constitutional text that provided little support for it. In the marriage equality cases, by contrast, states like Utah are fighting against the plain language of the Constitution. The Constitution does not allow Utah to deny “any person” equal protection of the law — and the last time we checked, a gay person is still a person.
Utah’s argument, in essence, boils down to a complaint that the Constitution treats states that engage in unconstitutional discrimination differently than it treats states that comply with our founding document. It is certainly true that states that obey the Constitution receive more favorable treatment than states that violate it. But that’s pretty much the entire point of having a Constitution in the first place.