Marriage litigation: Prop 8 and DOMA
Bob Zadek framed the marriage cases before the Supreme Court as a question of access to legal benefits rather than of whether same-sex people should live together, share property or raise children. He described California Prop 8 as a proposition passed by a majority of California citizens providing that under the California Constitution marriage can only be between people of different sexes, and said it was being challenged on constitutional grounds as violating the equal protection clause of the 14th Amendment, with the Supreme Court to hear argument Where is Everyone Going? (2013).
The second case Zadek described was the Defense of Marriage Act, which he called a federal statute from the Clinton era that Clinton signed, providing that for purposes of federal law marriage can only be between a man and a woman. He noted that there are a thousand federal statutes bestowing benefits on married couples, and that until DOMA the federal government had left the question of who is married to the states. He characterized DOMA as mean-spirited legislation against homosexuals and said it was before the Supreme Court testing whether a federal statute can say it will not respect the state decision on who can be married Where is Everyone Going? (2013).
Zadek stated the libertarian view as his own: states should not be in the marriage business, should get rid of marriage licenses and the whole legal concept of marriage, and no federal statute should bestow different rights on people who are married than on people who are not. He added that getting rid of marriage would also get rid of divorce as a legal proceeding, and that the healthiest arrangement would be for society to have no legal status whatever, with no box to check for marital status. He said he hoped the Supreme Court would find DOMA unconstitutional under the equal protection clause of the 14th Amendment and strike down Prop 8, and that treating gays as second-class because they do not get to check the marriage box is wholly offensive to him Where is Everyone Going? (2013).
A caller named Terence argued that marriage functions as a procreation deduction and that people who cannot have kids should not get the deduction, saying it is all about the money. Zadek agreed that the benefits are economic, and asked whether Terence would support a federal statute providing that henceforth there is no legal distinction between married and not married and that no federal statute could draw any distinction between the two. Terence said no, that people with kids should get the deduction, and that abolishing the distinction would be too left-leaning. Zadek also asked Terence how he would feel if there were no distinction on earth between people who are married or not, and Terence said society could not run like that Where is Everyone Going? (2013).
Fetal personhood after Dobbs
In a later episode, Zadek asked Evan Bernick whether the rights of the unborn fit into the constitutional analysis of abortion, posing the question whether a law permitting abortion is itself unconstitutional because it allows a person to kill another person, albeit the unborn. Bernick answered that it would be a mistake to assume the question has been taken off the table by the decision returning the question of abortion to the states. He said the Court refers throughout to states’ valid interest in fetal life, draws a distinction between abortion rights and other rights on the basis of its perception that only abortion arguably involves the rights of another being, and favorably cites scholars who have publicly argued on originalist grounds for fetal personhood as a constitutional matter Evan Bernick on the Dobbs Draft (2022).
Bernick said that because of the moral urgency of the issue and because many pro-life advocates take the view that abortion, like slavery, is not something one should be content to allow to be voted up or down, one can expect them to argue on the basis of the original meaning of the Due Process Clause and the Equal Protection Clause not only that there is no right to an abortion but that states are obliged to penalize and criminalize abortion. He concluded that even if the Court wants to get out of the abortion business, it will not be entirely able to, and the arguments discussed will come up again Evan Bernick on the Dobbs Draft (2022).
Economic regulation and tiered scrutiny
Richard Epstein gave the excerpts’ only extended account of equal protection doctrine, in the context of California legislation that he said was designed to attack big franchisors, people with a hundred units or more of franchisees. He described the oddity that a franchisor with a hundred units outside California and one unit inside California would have the California unit subject to the statute because the law counts things out of state, producing a pattern of advantages and disadvantages to be sorted out. He said the Equal Protection Clause argument is that these are arbitrary distinctions between different kinds of franchisees Which Side Are You On? (2022).
Epstein then set out the framework: under the American constitutional framework on the Equal Protection Clause, race draws very strict scrutiny; sex raises more than one eyebrow, with at least intermediate scrutiny; and for economic affairs the level of scrutiny is so low that in many cases it is just a joke to say one could ever find a violation of the Equal Protection Clause as it relates to differences between different kinds of economic organization Which Side Are You On? (2022).
He raised a second element whose outcome he said was unclear: the Dormant Commerce Clause. He said the constitutional organization reflected a strong set of beliefs that the United States, even with strong states, would have an open national economy for the movement of goods and services across state boundary lines, and that the doctrine was basically dormant until 1824, when a case called Gibbons v. Ogden was proposed. Under the doctrine, if Congress does not legislate but a state statute imposes an impediment to the free movement of goods and services across state lines, the fact that the Commerce Clause takes over the area means those statutes can be struck down. Epstein said the question is whether the crazy-quilt situation would so disorganize cross-state relationships that the doctrine deals with it, that it is not a clean fit, that the doctrine is in some disarray, and that many conservative judges think it is not really textual in the strong sense Which Side Are You On? (2022).
In a separate episode on the same California legislation, Zadek said the legislation defines the types of establishments both by size and number of units, and that there is speculation, maybe more than speculation, that treating different restaurants differently may trigger a constitutional issue about equal protection. Epstein’s answer in that episode repeats his account of the National Labor Relations Act’s origins, the Wagner Act of 1935, the 1946 political transformation, and the Taft-Hartley Act’s creation of a parallel set of unfair labor practices applicable to unions, including the right not to organize. He again described the statute as attacking big franchisors with a hundred units or more, the counting of out-of-state units, and the same tiered-scrutiny framework, saying the level of scrutiny for economic affairs is so low that finding a violation is in many cases just a joke California Passes the Worst Piece of Legislation Since AB 5 (2023).
Across episodes
The topic recurs in three settings. In the 2013 episode, Zadek argued that Prop 8 and DOMA should fall under the equal protection clause of the 14th Amendment and that marriage should have no legal status at all. In the 2022 Dobbs episode, Bernick described advocates who would use the original meaning of the Due Process Clause and the Equal Protection Clause to argue that states are obliged to criminalize abortion. In the two episodes on California legislation, Epstein treated equal protection as a weak vehicle for economic-distinction claims and pointed to the Dormant Commerce Clause instead. The excerpts show no development of a single doctrine across these treatments; each speaker invokes the clause for a different purpose.
What the sources do not cover
The excerpts do not state how the Supreme Court resolved the Prop 8 or DOMA cases, nor what any cited case held or which amendment any holding turned on. They do not give the name of the California legislation discussed in the 2022 and 2023 episodes, the city or state of any speaker, or the titles and fields of the guests beyond what the labels show. Epstein’s references to Gibbons v. Ogden and to 1824 are left as he stated them, with no further detail on the case.