Dean and Distinguished Professor of Law, University of California, Irvine, School of Law
Why does this matter? Most studies estimate that about one tenth of the population is gay. Laws in every state traditionally have provided enormous benefits to married couples that were unavailable to others. These statutes concern important matters such as child custody, inheritance, insurance coverage, and tax benefits. When I got married, my wife could immediately get coverage under my insurance and could inherit from me if I died. But gays and lesbians are usually permanently denied these benefits that married couples receive automatically.
Beyond the tangible benefits, marriage is the primary way in which people express their love and desire for permanent commitment. Denying marriage equality to gays and lesbians is a powerful statement that society still believes them to be second-class (or worse) citizens.
In 2003, the Supreme Court ruled that such laws are unconstitutional. It held that the right to privacy protected under the Constitution includes a right of consenting adults to engage in private homosexual activity. No longer can any state punish such behavior.
Not surprisingly, then, some state supreme courts have begun to recognize a state constitutional right for gays and lesbians to marry. Interestingly, all of the litigation so far has occurred in state courts and has been under state constitutions. Litigating in state courts under state constitutions
has been a deliberate choice by advocates of marriage equality to keep the matter out of the hands of the United States Supreme Court because of the sense that there are not five Justices there who would vote in favor of marriage equality. So long as the advocates of marriage equality do not present any claims under the United States Constitution or under federal law, the United States Supreme Court cannot hear the matter.
State constitutions always can provide more rights than the United States Constitution. Advocates of marriage equality have taken advantage of this by filing suits in a number of states seeking state supreme court recognition of the right to same sex marriage. The Massachusetts Supreme Judicial Court in 2003 was the first in the United States to hold that the denial of same sex marriage violated the state constitution.
The Massachusetts court, and later the California and Connecticut high courts, relied on long established constitutional principles to find a right for gays and lesbians to marry. For decades courts have recognized that there is a fundamental right to marry. Many courts, including California’s Supreme Court, did this in striking down laws that prohibited interracial marriages. Additionally, many courts now recognize that discrimination against gays and lesbians violates principles of equal protection.
Courts have held that the government lacks any persuasive reasons for outlawing same sex marriage. Opponents of marriage equality argue that marriage, by definition, is between a man and a woman. But that is a definition, not an argument. For much of American history, in many states, marriage was defined as having to be between people of the same race.
Opponents of marriage equality, including President George W. Bush, have argued that it is better for children to be raised by a man and a woman. No study, however, ever has indicated that opposite sex parents are better for children than same sex parents. Rather, every study shows that what matters is loving and attentive parents, whatever their gender.
Also, it must be remembered that gays and lesbians will have children whether or not they can marry. Gay men will have children through surrogacy and adoption; lesbians will have children through artificial insemination and adoption. Thus, the issue is not whether gays and lesbians should have children, but whether their children should have the benefits of married parents. If one believes that marriage promotes family stability, then allowing marriage equality benefits children of gays and lesbians.
Supporters of marriage equality suffered an important setback in November when voters in California adopted an initiative to amend the state’s constitution to overturn the California Supreme Court decision recognizing a right to same sex marriage. The initiative Proposition 8 is now being challenged in the California Supreme Court.
The challengers, who support same sex marriage, argue that the initiative did not follow proper procedures under the California constitution. That document draws a distinction between two kinds of changes: amendments and revisions. An amendment is valid if the majority of voters approve it.
A revision, by contrast, requires approval of two-thirds of each house of the California legislature and then approval by the voters. If Proposition 8 is an amendment, it is valid and same sex marriage will no longer be allowed in California. But if Proposition 8 is a revision, then it is invalid and a ban on same sex marriage would need to be approved by the legislature and then the voters.
There is almost no law on the distinction between an amendment and a revision. The California Supreme Court will decide the question in 2009. Since it is purely a question about California law, the California Supreme Court will get the last word; there will not be review of its decision in the United States Supreme Court. If the California Supreme Court upholds Proposition 8 and the ban on same sex marriage, it still must decide whether the marriages, which occurred between June and November are valid.
Even if same sex marriage is not allowed in California, state law provides for civil unions between gays and lesbians. A number of other states provide for this. Depending on the state, civil union provides most or sometimes almost all of the tangible benefits of marriage to gay and lesbian couples.
Another legal issue which courts will need to resolve is whether states must recognize same sex marriages from other states. Traditionally, marriage in one state is recognized in others. My wife and I were married in California, but when we moved to North Carolina our marriage was recognized. Must other states recognize same sex marriages from Massachusetts?
There is no clear answer to this question. About a decade ago, Congress passed the Defense of Marriage Act, which provides that a state does not need to recognize same sex marriages from other states. But the constitutionality of this law is questionable and has not yet been ruled on by the courts.
Every opinion poll shows that views on marriage equality are often a function of age. Whereas voters over 60 tend to oppose same sex marriage, voters under 25 strongly favor allowing it. This dramatic difference in views means that it is only a matter of time before same sex marriage is allowed in most of the United States. Gays and lesbians will be accorded the same ability to experience the joys of marriage — and the same opportunity to experience its frustrations and disappointments — as heterosexuals always have had.
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Then we can be three really happy people.
Gordon
Two attorneys, who would not be more ideologically opposed, have filed suit in federal district court in California, seeking to have Proposition 8 overturned on US Constitutional grounds (the effort to overturn Proposition 8 in state court failed, with the California Supreme Court upholding Proposition 8 in Strauss v. Horton (2009)). These attorneys are Ted Olsen and David Boies, who argued on opposite sides before the US Supreme Court in the case of Bush v. Gore, 531 U.S. 98 (2000) (the outcome of which decided the fate of the Presidential elections of 2000). These attorneys have teamed up to attack the California ban on gay marriage, writing a very strong brief in the case of Perry v. Schwarzenegger (which is ironic, given that Governor Schwarzenegger is actually bitterly opposed to Proposition 8 and has made no effort to defend this state constitutional amendment, forcing those who believe in this amendment to argue the merits in favour thereof). In very strong language, these two highly skilled trial attorneys explained, in an article published in the Wall Street Journal, just why they considered this issue to be so important, noting that “The argument in favor of Proposition 8 ultimately comes down to no more than the tautological assertion that a marriage is between a man and a woman. But a slogan is not a substitute for constitutional analysis. Law is about justice, not bumper stickers.”
Opponents of same-sex marriage filed a motion before the federal district judge, Chief Judge Vaughn Walker of the US District Court for the Northern District of California, seeking to dismiss the complaint, predicating their request on a refusal by the US Supreme Court to entertain a gay marriage suit handed down in the 1970s (Baker v. Nelson (1972)). In Baker, the US Supreme Court dismissed a gay marriage case which it heard pursuant to a process of mandatory appellate review after the Wisconsin Supreme Court rejected (solely on the grounds of statutory construction and on the grounds of legal definition) the gay marriage lawsuit filed by the gay plaintiffs. Usually, lower federal courts are bound by dismissals such as this one, particularly in subsequent cases where exactly the same fact pattern is presented to a lower court. However, Chief Judge Walker found that there have been many changes to the state of the law pertaining to the rights of gay persons since the US Supreme Court handed down its one-line decision in Baker, dismissing the lawsuit “for want of a substantial federal question”, and he ordered that a full trial be scheduled, to hear and decide this issue on the merits.
More specifically, the US Supreme Court has since handed down two critical decisions expanding the rights of gay persons under federal law. The first decision was that of Romer v. Evans, 517 U.S. 620 (1996), in which the Court struck down an amendment to the Colorado state constitution (“Amendment 2”) which had the “immediate effect” of nullifying all antidiscrimination statutes, ordinances, and executive policies at all levels of state government prohibiting sexual orientation discrimination insofar as these measures protected gay persons from discrimination at the hands of straight persons (whilst upholding these measures insofar as they protected straight persons from discrimination at the hands of gay persons), and which had the “ultimate effect” of forever amending the state constitution so as to prohibit the enactment of any measures protecting gay persons from discrimination at the hands of straight persons at any point in the future, regardless of the extent of anti-gay discrimination and regardless of how severe such discrimination may become (whilst still permitting the passage of measures protecting straight persons from discrimination at the hands of gay persons). The Court held that Amendment 2 constituted a blatant violation of the Equal Protection Clause of the Fourteenth Amendment, striking down this measure in strong and ringing language. Although the Court employed much of the language associated with traditional rational basis review, numerous constitutional scholars have pointed out that the Court actually appeared to have adopted a much more stringent standard of review than mere rational basis review (described by some scholars as rational basis “with teeth”, and described by other scholars as a form of heightened scrutiny).
The second decision was Lawrence v. Texas, 539 U.S. 558 (2003), in which the Court struck down all state “sodomy” statutes that still existed, nationwide, following a challenge to such a statute mounted by two gay men who had been prosecuted and fined for having consensual gay sex in the private bedroom of one of the men, in Houston, Texas. In handing down Lawrence, the Court struck down the sodomy statutes of the 14 remaining states in which such statutes still existed. What was noteworthy about Lawrence was the fact that the Court took the highly unusual step of directly overturning an earlier decision (Bowers v. Hardwick, 478 U.S. 186 (1986)) in which it had upheld all such statutes, just 17 years previously (when about 26 states still had such statutes on their books). The Lawrence Court acknowledged that it had construed the issue framed by the plaintiffs far too narrowly in Bowers, and had demeaned and insulted the gay plaintiff in that case (Michael Hardwick, who had been arrested (but ultimately not prosecuted) by police in Georgia, after they entered his home and found him engaging in consensual oral sex with another man). The Lawrence Court apologized to the gay community for its insulting and crude analysis in Bowers, bluntly admitting that “The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons… Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”
Whereas the Court decided Romer on equal protection grounds, the Court declined to decide Lawrence on equal protection grounds (although the majority acknowledged that such an analysis was “tenable”). Instead, the Lawrence Court held that the state sodomy statute violated the Due Process Clause of the Fourteenth Amendment – more specifically that it violated the substantive component of the Due Process Clause. The Court had long recognized a zone of personal privacy pertaining to decisions so fundamental as whether or not to beget a child (Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942)), whether or not to teach a child a foreign language (Meyer v. Nebraska, 262 U.S. 390 (1923)), whether or not to educate a child in a parochial school (Pierce v. Society of Sisters, 268 U.S. 510 (1925)), whether or not a married couple could purchase and use contraceptives (Griswold v. Connecticut, 381 U.S. 479 (1965)), whether or not an unmarried couple could purchase and use contraceptives (Eisenstadt v. Baird, 405 U.S. 438 (1972)), and whether or not a woman could choose abortion (Doe v. Bolton, 410 U.S. 179 (1973) and Roe v. Wade, 410 U.S. 113 (1973)). In Lawrence, the Court extended the reach of this zone of privacy to entitle gay men and lesbians to engage in consensual sex in private settings, overturning Bowers.
Again, although the Lawrence Court employed much of the language of traditional rational basis review in striking down these statutes, commentators have pointed out that the Court actually may have applied a much more searching standard of review. Two three-judge panels of two different US Circuit Courts of Appeals have concluded that the Lawrence Court actually applied “intermediate” scrutiny – a three-judge panel of the Ninth Circuit recently held that the Lawrence Court applied “quasi-strict” scrutiny in striking down such statutes, whereas a three-judge panel of the First Circuit concluded that the Lawrence Court applied an intermediate standard of review that involved a balancing of constitutional interests that defies either the rational basis or strict scrutiny labels. Both of these decisions survived en banc calls – this means that it is now the official position of two of the US Courts of Appeals that the Lawrence Court applied an intermediate level of scrutiny in its analysis.
The legal landscape has therefore changed dramatically since Baker v. Nelson was handed down in 1972. The two attorneys who filed the Perry complaint have done so in the full knowledge that a defeat at the federal level could have dire consequences, depending on the breadth and analysis of any decision upholding the ban of gay marriages. Nevertheless, both attorneys believe that they will secure five votes should the issue reach the US Supreme Court.
When the US District Court hands down its decision, the losing side will have the right to appeal the outcome to the US Court of Appeals for the Ninth Circuit. This Circuit is deeply divided, and has some of the most conservative and some of the most liberal appellate judges in the country on its bench. It will probably take two to three years before the Ninth Circuit hands down a decision relative to this issue. The losing side will then have the option of petitioning the US Supreme Court for discretionary review (for certiorari). Whether or not this is granted, as well as the result arrived at by the Ninth Circuit, will most dramatically impact the struggle for gay marriage at the federal level, possibly for many years to come.
This is a high-risk strategy, and many activists for gay equality are deeply concerned that Olsen and Boies have chosen to “go federal” at this point in time. These appellate attorneys are hopeful that they will manage to secure the votes of Justices Stevens, Breyer, Sotomayor, Ginsburg, and Kennedy.
May they well succeed – the stakes are higher than they have ever been before.
PHILIP CHANDLER
A quick clarification on the short paragraph on civil unions: while the paragraph is technically correct, it bears emphasizing that the rights that civil unions provide are only state rights. In the question of marriage, there are around 1,500 or so rights granted. 1,100 are FEDERAL rights and the other 300 - 400 are STATE rights and vary state to state.
Otherwise this is a very well-written article.