Right to ‘vote with their feet’ odious

On Nov. 26, a federal district court ruled against a legal challenge brought on behalf of eight same-sex couples seeking the freedom to marry in Nevada. In the case, the plaintiffs argue that Nevada’s current law, which excludes same-sex couples from marriage, while relegating them to the second-class status of domestic partnership, violates their right to equal treatment under the U.S. Constitution.

In a Dec. 4 editorial, the Review-Journal defended the decision of Judge Robert Jones rejecting this challenge, adopting his assertion that the question “is not the wisdom of providing for or recognize same-sex marriage as a matter of policy.” And assuming that the challenge itself was based on a policy disagreement, the editorial underscores that the federal Constitution provides that “the several states must retain authority to establish different sets of laws best suited to their residents.” Moreover, the editorial reasons, state citizens who object to the ban “may ‘vote with their feet’ by relocating” In other words, if you want to get married, you can go to another state.

But the editorial sets up a straw man argument that is easily rejected. The Review-Journal objected to the claim that Judge Jones was “wrong on the law,” by pointing out his decision upheld “not merely ‘the law,’ but the Nevada Constitution as recently amended by Nevada voters,” cautioning that the “planks of a constitution enacted by votes” should not be “tossed out willy-nilly.” However, given that only 16 years ago the Supreme Court struck down a provision of the Colorado constitution that violated the federal Constitution, because it unfairly discriminated based on sexual orientation, the content of the Nevada constitution is practically irrelevant. And while the federal Constitution was indeed established to grant to the states the ability to “establish different sets of laws,” since the Civil War the Fourteenth Amendment has been held to invalidate any state law that treats one group of citizens as second-class citizens. Most of the citizens of Virginia, among a number of states, supported the anti-miscegenation laws that forbid interracial marriage; but in Loving v. Virginia, decided in 1967, the Supreme Court ruled the law unconstitutional both because it was based on racial discrimination and because marriage is such a fundamental right.

However one assesses the merits of the claim that a state ban on same-sex marriage denies a group of citizens access to a fundamental freedom for basically unpersuasive reasons, there is no room for doubt that this is the issue and that it has little to do with the public policy advantages and disadvantages of marriage equality. The editorial notes that plaintiffs claim same-sex couples are already discriminated against by hospital officials and police officers. The pervasive history of disadvantaging gays and lesbians, as reflected in the now-repealed Don’t Ask, Don’t Tell military policy, explains how a basically conservative judge, Justice Sandra Day O’Connor, concurred in Texas v. Lawrence’s ruling that overturned an anti-sodomy law that banned only same-sex conduct on the ground that the law discriminated against citizens based on their sexual orientation. Justice O’Connor’s decision was not rooted in a presumption that judges should assert their own views of public policy, and she simply rejected that the remedy to the unfairness of the law of Texas was for Texans to “vote with their feet.”

It is the role of our courts to enforce the Constitution. The courts have preserved the rights of all citizens and the guarantee of equal protection of the laws. Cases like Brown v. Board of Education, which set the precedent for abolishing the legal framework of racial segregation that characterized the era of Jim Crow, led to the holding in Loving v. Virginia. In each of the cases referred to – Brown, Loving and Lawrence – the Court struck down laws across the nation that infringed on constitutional protections. These decisions illustrate the legacy of judicial intervention when governing majorities ran roughshod over the rights of vulnerable minorities.

We should never forget that the founders of the Constitution did not allow constitutional amendment by referendum for a good reason. The Constitution was written to include an anti-majoritarian dimension. We should never assume that laws supported by a majority of citizens are therefore consistent with the duties imposed by the Constitution.

Thomas B. McAffee is the William S. Boyd Professor, Boyd School of Law, University of Nevada, Las Vegas.

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