Gay Sex and Marriage, the Reciprocal Disadvantage Problem, and the Crisis in Liberal Constitutional Theory

There is nothing unusual about constitutional controversy, but some disagreements, typified by the argument over constitutional protection for gay sex and marriage, go beyond ordinary differences of opinion. Some opponents of constitutional protection for gay rights think that their adversaries are not just wrong, but have exceeded the bounds of respectable constitutional argument. They want to turn the defense of gay constitutional rights into a position that dare not speak its name. Consider, for example, Justice Scalia. For him, the Supreme Court's defense of gay rights "employs a constitutional theory heretofore unknown" (1) and depends on "a novel and extravagant constitutional doctrine." (2) The Court's treatment of the gay community as a politically unpopular group worthy of constitutional protection is "nothing short of preposterous" (3) and "insulting." (4) A Court opinion striking down discrimination against gay men and lesbians "has no foundation in American constitutional law, and barely pretends to." (5) Justice Scalia is not exactly known for understatement, but even for him, these are strong words. What, precisely, is he so upset about? This brief Essay does not take a strong stand on whether the constitutional case for gay rights has been made. Instead, it attempts to explain why Justice Scalia and his allies are wrong to think that the case for gay rights is outside the range of reasonable constitutional argument, and to speculate about why they nonetheless hold this view. I. Justice Scalia's core objection to constitutional protection for gay rights is that providing such protection requires the Court to "tak[e] sides in the culture war, departing from its role of assuring, as a neutral observer, that the democratic rules of engagement are observed." (6) Any honest argument favoring constitutional protection for gay sex and marriage must begin with a concession: Justice Scalia is right when he insists that affording gay relationships constitutional protection takes one side on a currently contestable moral question. This concession does not amount to much, however, because of what one might call the principle of reciprocal constitutional disadvantage. It is true, as Justice Scalia insists, that constitutional protection for gay sex and marriage implicates one set of moral views. The problem is that failing to provide constitutional protection for gay sex and marriage implicates a reciprocal set of moral views. The principle of reciprocal constitutional disadvantage means that the morality charge is a wash. The inability to separate constitutional law from nonconstitutional moral principles does indeed create a kind of crisis for standard forms of liberal constitutionalism, but it does not disadvantage proponents of constitutional protection for gay marriage. Courts are simply stuck taking a stand in the culture war whichever way they rule. Justice Scalia, therefore, will have to look beyond the supposed requirement of moral neutrality to justify his opposition. This assertion is itself contested, but it follows more or less inevitably from the logic of the Equal Protection Clause. (7) The reasons why are familiar, (8) so I will simply sketch them here. Equal treatment is not the same as identical treatment. Equality means treating people similarly to the extent that they are the same, but differently to the extent that they are different. People, however, are similar and different across an infinite range of dimensions. Thus, making the equality norm operational requires a decision regarding which differences and similarities are relevant. Relevance can be understood as either a moral or an instrumental virtue, although, for reasons outlined below, the instrumental version turns out to collapse into the moral version. The overtly moral version of relevance directs our attention to the attributes that matter according to a particular moral theory. …