Another fascinating aspect of Justice Kennedy’s ruling in the DOMA case is its dependence on the “equal liberty” guaranteed by the 5th Amendment. Not the 14th Amendment’s equal protection clause? Well, kind of. The 14th Amendment’s equal protection clause, Kennedy says, helps us understand the 5th Amendment guarantee of liberty better:
DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment…
The power the Constitution grants it also restrains.And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause ofthe Fifth Amendment.
What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those personswho are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.
The liberty protected by the Fifth Amendment’s DueProcess Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.
So what does the 5th Amendment say? Little that would seem relevant here:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
This deals mostly with criminal court procedure, doesn’t it? Yes. But the precedent here goes back to a 1952 case called Bolling v Sharpe, an anti-segregation ruling that was a 9-0 decision. In that case, Chief Justice Earl Warren relied heavily on the 5th Amendment guarantees of liberty and due process. That ruling says:
We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,” and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.
This is an important ruling in the history of what is referred to as “substantive due process,” the idea that the constitutional guarantee of due process is not merely a requirement that proper procedures be followed but is a substantive restriction on the government’s ability to impose on the rights of individuals.
This is not unusual language for Kennedy and it traces back to his ruling in Lawrence v Texas, which overturned state sodomy laws. Rather than basing that opinion on a narrow right to privacy, he argued for a much broader right to liberty, invoking the “substantive reach of liberty under the Due Process Clause” and noting that “the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.”
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions…
Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.
I strongly favor this kind of language. It gets us closer to what Randy Barnett calls the “presumption of liberty” that he, and I, believe should be one of the keys to constitutional interpretation in nearly all respects. Kennedy has been using this broad language for at least a decade now and his invocation of the principle of “equal liberty” is at the very core of the idea of a liberal democracy.