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Heller v. Doe in Obergefell
Chris Green

One thing that strikes me about the briefs filed Friday in the same-sex marriage cases, which the Supreme Court has put on its web site here (amici will be here), is how little attention they give to (what seems to me) the respondents' strongest argument: the deference due to traditionally-drawn distinctions under Heller v. Doe.  In Heller, Justice Kennedy said for the Court, considering the distinction between mental retardation and mental illness,

Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis. That the law has long treated the classes as distinct, however, suggests that there is a commonsense distinction between the mentally retarded and the mentally ill.

Respect for the rationality of longstanding traditions--a much, much stronger tradition in the case of the distinction between same-sex and opposite-sex relationships than ever existed in favor of the distinction between inter-racial and intra-racial ones--is, I think, the strongest argument for the constitutionality of traditional limits on marriage.  It suggests that the commonsense distinction identified in Hernandez v. Robles ("Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.") is not unconstitutionally arbitrary. 

The key precedents on which the Obergefell petitioners depend--Romer, Lawrence, and Windsor--involved unique, unusual, or rarely-enforced laws.  Colorado's Amendment 2 was one-of-a-kind, Texas's sodomy prosecution had become quite unusual, and DOMA's failure to defer to states ran counter to history. The Obergefell cases, however, consider whether to nationalize an innovation only 15 years old in any country--same-sex marriage was first adopted by the Netherlands in 2000--and adopted in the U.S. by only 17 states (legislatures or popular votes in California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington, and state courts in Iowa, Massachusetts, New Jersey, and New Mexico) and the District of Columbia. The leap from Romer, Lawrence, and Windsor to Obergefell is not quite so stark as was the leap from Griswold to Roe, but the large difference in the laws' outlier status is plain. 

The petitioners' briefs by Obergefell, Tanco, DeBoer, and Bourke do not confront the key language in Heller. Three of the four quote the ancient-lineage non-immunity sentence (here at 54, here at 51, and here at 42) but none mention the commonsense-distinction sentence that follows. It is possible that petitioner-side amicus briefs, due this Friday, will do more to help the Court clarify the precise nature of tradition in equal-protection analysis, but the petitioners' briefs don't take on the task.