A MODEST PROPOSAL: SAME-SEX MARRIAGE AND JUDICIAL REVIEW

By Alan E. Johnson

Copyright © 2014 by Alan E. Johnson. All rights reserved.

At the time of this writing, many same-sex marriage cases are wending their ways

through the federal trial and appellate court systems. A typical claim of such cases is that state

constitutional or statutory definitions of marriage that exclude same-sex couples violate the

Fourteenth Amendment Equal Protection and/or Due Process Clauses of the U.S. Constitution.

Some of these cases also involve state constitutional or statutory provisions whereby same-sex

couples do not have the same legal rights as heterosexual couples in state-sanctioned marriages.

Sooner or later, the U.S. Supreme Court will decide these constitutional issues.

I express no opinion on the current substantive constitutional issues in these cases. My

approach is somewhat different. I think we would do well to consult the seventeenth-century

Puritan notion that marriage is a purely civil institution in which religion and churches should

play no legal role.1 "Marriage" has become such a religiously loaded word that I think it would

be more consistent with our historical principle of separation of church and state2 if state

governments simply created legal frameworks of "civil unions for all" without using the word

"marriage." Churches could perform "marriage" ceremonies to bless unions from a religious

perspective, if the couple so desired; churches opposing same-sex marriage could refuse to

perform such "marriages" without constitutional consequence (the Constitution applies only to

1 "The Puritans of New England . . . believed that marriage was not a religious ceremony but a

civil contract. They required that this covenant must be 'agreed' or 'executed' (not 'performed' or 'solemnized') before a magistrate, and not a minister." David Hackett Fischer, Albion's Seed: Four British Folkways in America (New York: Oxford University Press, 1989), 77-78.

2 See my forthcoming book The First American Founder: Roger Williams and Freedom of Conscience.

governmental action). Nonbelieving as well as believing couples would be free to call

themselves "married"—and, additionally, to enjoy the legal benefits of government-approved

legal unions if they so registered. The Fourteenth Amendment Equal Protection Clause and

perhaps the substantive component of the Fourteenth Amendment Due Process Clause would

apply to the legal requirements for civil unions, but the word "marriage"—with all of its

contemporary religious connotations—would be eliminated from the constitutional discussion.

Of course, the chances of my view being adopted are, for the foreseeable future, nil.

Because I would still hold that "civil unions for all" should be subject to the Fourteenth

Amendment requirement that no state shall "deny to any person within its jurisdiction the equal

protection of the laws," the question arises whether courts have the power to declare a state law

unconstitutional for violation of the Equal Protection Clause. The Supremacy Clause of the

United States Constitution states: "This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding."3 Constitutional lawyers and scholars use the term "judicial review"

to refer, among other things, to the power of courts (either federal or state) to declare federal or

state legislation or provisions of state constitutions void under the U.S. Constitution.4 This

doctrine received its classic American formulation in Chief Justice John Marshall's Opinion of

the Court in the U.S. Supreme Court case of Marbury v. Madison (1803). In concluding that "the

particular phraseology of the constitution of the United States confirms and strengthens the

principle, supposed to be essential to all written constitutions, that a law repugnant to the

3 U.S. Constitution, art. 6, cl. 2. 4 For a general discussion of judicial review, see Richard L. Wilson, "Judicial review," in

Encyclopedia of the U.S. Supreme Court, ed. Thomas T. Lewis and Richard L. Wilson, (Pasadena, CA: Salem Press, 2001), 2:521-26.

constitution is void,"5 Chief Justice Marshall echoed and developed the logic of Alexander

Hamilton in The Federalist No. 78 (June 14, 1788) and of James Madison (often called the

"Father of the Constitution") in The Federalist No. 39 (January 16, 1788). On July 23, 1787, in

the federal Constitutional Convention, James Madison stated: "A law violating a constitution

established by the people themselves, would be considered by the Judges as null & void."6

Madison continued to support judicial review throughout his life.7

Notwithstanding this unimpeachable pedigree, judicial review has been very

controversial throughout American history. Madison's best friend, Thomas Jefferson, opposed it

during an extended period in which his political enemies controlled the federal courts. Liberals

opposed it when the U.S. Supreme Court struck down significant parts of the early New Deal

legislation. Conservatives have generally opposed it during the last few decades. Nevertheless,

many conservatives have recently supported litigation attacking such federal legislation as the

Affordable Care Act ("Obamacare") and campaign finance reform as unconstitutional.

The alternatives to judicial review favored by the antebellum South were state

nullification of federal laws (per the political theory of John C. Calhoun) and secession, even

though Southern judicial activism achieved an astonishing Supreme Court victory with the Dred

Scott decision.8 Nullification and secession doctrines have been revived in the early twenty-first

century by certain elements of the far right in the American political spectrum. However, as an

eminent constitutional law scholar wrote about eighty years ago, "[t]he most significant and

5 Marbury v. Madison, 5 U.S. 137, 180 (1803). 6 The Records of the Federal Convention of 1787, ed. Max Farrand (New Haven: Yale

University Press, 1966), 2:93. 7 Letter of James Madison to Thomas Jefferson, June 27, 1823, in The Republic of Letters:

The Correspondence between Thomas Jefferson and James Madison 1776-1826, ed. James Morton Smith (New York: W. W. Norton, 1995), 3:1869-70.

8 Dred Scott v. Sandford, 60 U.S. 393 (1857).

conclusive constitutional decision was not rendered by a court of law but delivered at the famous

meeting of General Grant and General Lee at Appomattox."9 The outcome of the Civil War and

the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments ended, from a

constitutional perspective, any theoretical resistance to the Supremacy Clause of the U.S.

Constitution. It did not, of course, end the type of inflammatory political rhetoric that

characterized the Southern position before the Civil War and that became especially pronounced

in the years and decades after the Supreme Court's 1954 desegregation decision.10

Historically, then, one's position on judicial review has often depended on perceived

tactical advantage in immediate ideological or partisan political disputes. But what is often

forgotten is that we fought a War of Independence against the British notion of parliamentary

sovereignty. For most of its modern history, Great Britain held that Parliament is supreme and

that no constitution, written or otherwise, can limit Parliament's power.11 Although the doctrine

of parliamentary supremacy became established in Great Britain, Sir Edward Coke's earlier

concept of what we now call judicial review "survived . . . across the ocean, one day to emerge in

an American revolution directed against both Parliament and Crown."12 We should accordingly

consider carefully the implications for limited government of jettisoning the long-established

9 Andrew C. McLaughlin, A Constitutional History of the United States (1935; repr., Safety

Harbor, FL: Simon Publications, 2001), 1:vii. 10 Brown v. Bd. of Educ., 347 U.S. 483 (1954). 11 Robert Stevens, "Government and the Judiciary," in The British Constitution in the

Twentieth Century, ed. Vernon Bogdanor (Oxford: Oxford University Press, 2003), chap. 9. 12 Winston S. Churchill, A History of the English-Speaking Peoples, vol. 2, The New World

(New York: Dodd, Mead, 1956), 329-30; see also Theodore F. T. Plucknett, "Bonham's Case and Judicial Review," in Law Liberty, and Parliament: Selected Essays on the Writings of Sir Edward Coke, ed. Allen D. Boyer (New York: Liberty Fund, 2004), 169-85. For the evolution of Coke's ideas in America to the concept of judicial review under written constitutions, see Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1998), 262-68, 453-63, 533.

American principle of judicial review and substituting a new rule of unfettered (and sometimes

gerrymandered) legislative supremacy.

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Alan E. Johnson is an independent scholar in the fields of history, constitutional law, political science, and philosophy. In 2012, he retired from the practice of law after a long career as an attorney in which he focused mostly on constitutional and public law litigation. For additional biographical information and a selected list of his publications, see his web bio at http://www.philosophiapublications.com/About%20Alan%20E.%20Johnson.htm.