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The latter approach—so-called “leveling down”—has repeatedly been deemed permissible by the Supreme Court, including as recently as last year, when Justice Ginsburg wrote a majority opinion in a sex equality case holding that Congress would have preferred leveling down to leveling up.
Leveling down appears to be an option even when it is undertaken for the obvious purpose of denying a right to a disfavored group.
Although Moore cited technical procedural doctrines in his order, no one who knew the man who would someday run a scandal-filled and unsuccessful campaign for the US Senate was fooled.
Moore sought to undercut the US Supreme Court and the constitutional rights of lesbian and gay Americans in Alabama.
By failing to recognize marriage, he said, states were not restricting anyone’s ability “to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children.” Justice Thomas protested that “receiving governmental recognition and benefits has nothing to do with any understanding of ‘liberty’ that the Framers would have recognized.” Justice Thomas was wrong about the bottom line in , because he failed to take seriously the equal protection argument for same-sex marriage in states that recognize opposite-sex marriage. And if so, does that mean that a state really could abolish marriage for everyone?
As reported recently on NPR, Alabama and some other states are seriously considering proposals that would avoid the obligation to issue marriage licenses to same-sex couples by eliminating any requirement that couples obtain marriage licenses from the state.And yet, a right to marry is an odd kind of fundamental right.Except in special circumstances, such as the right to free counsel for indigents in criminal cases, the US Constitution protects rights government assistance or recognition.That’s what the city of Jackson, Mississippi, did in the 1960s when it was ordered to stop operating racially segregated public swimming pools; it closed all of its public swimming pools.Observing that, despite the city’s evil intentions, its actions did not result in unequal treatment, the Supreme Court rejected an equal protection challenge to the pool closings in the 1971 case of might not be decided the same way today, because it “rested in substantial part on the since-eroded proposition that the motive or purpose behind a law is irrelevant to its constitutionality.” That’s true, but , white Jackson residents undoubtedly had greater access to private (racially segregated) pools than African American Jackson residents had, so, in addition to an illicit purpose, the pool closings did have a disparate racial impact.Although it is clear that these cases conceptualized marriage as an exercise of liberty, the Court has never had occasion to consider whether a state could get out of the marriage business completely. Conservatives sometimes insist that the Court should only recognize constitutional rights that are deeply rooted in our nation’s history and traditions. From colonial times through the present, American jurisdictions have had laws giving recognition to marriage.Yes, a right to government recognition differs from a right to be left alone by the government.Professor Karlan identified two potential constitutional violations.First, abolishing marriage could be said to violate equal protection if it were adopted for the purpose of denying marriage to same-sex couples.Government officials may well be constitutionally obligated to issue marriage licenses where state law requires such licenses to marry.So long as Alabama, Oklahoma, Kentucky, and other states continue to recognize marriage—and continue to recognize same-sex marriage on an equal footing with opposite-sex marriage—laws that change the mechanism by which any couple establishes their marriage will likely be upheld as constitutional. What if a state really were to get out of the marriage business by abolishing the legal status of marriage? A short but insightful essay by Stanford Law Professor Pamela Karlan in the .