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Gay Marriage (Same Sex Marriage) Gains Ground in America

Updated on November 1, 2014

June 2014

Taken by my laptop camera in June 2014
Taken by my laptop camera in June 2014 | Source

Gay Marriage (Same Sex Marriage)

Within the past few weeks, same sex marriage has gained more ground in America than even the most optimistic gay rights activists had anticipated. For the purposes of this article, the writer uses the term "gay marriage" as opposed to "same sex marriage," because the vast majority of marriages between persons of the same sex are marriages between gay men or marriages between lesbians. The focus of this article is on the advances which the gay and lesbian community has seen relative to the issue of gay marriage.

Within weeks or days of each other, four of the US Courts of Appeals ruled in favor of gay marriage (the US Courts of Appeals for the Fourth, Seventh, Ninth, and Tenth Circuits). In so doing, they have enriched the texture of this nation's diversity, and have granted gay couples who wish to marry the same rights as straight couples who wish to marry (within the geographical regions over which these intermediate appellate courts have jurisdiction). It should be noted that married gay couples now enjoy all of the federal (as well as state) benefits of marriage, as the direct result of Justice Anthony Kennedy's ruling for the majority in the landmark US Supreme Court case of United States v. Windsor, 133 S. Ct. 2675, 570 U.S. ___ (2013). In Windsor, the majority held that Section 3 of the misnamed "Defense of Marriage Act" (DOMA) violated principles of equal protection required of the federal government by the equal protection component of the Fifth Amendment's Due Process Clause (see Bolling v. Sharpe, 347 U.S. 497 (1954)).

Section 3 of DOMA was arguably the cruelest provision of this federal statute, in that it denied to legally married gay couples more than 1,130 federal rights, privileges, and protections granted to heterosexual married couples (examples include Social Security Survivors' benefits, veterans' benefits, the right to file joint federal income tax returns, freedom from estate transfer taxes upon the death of a spouse, the right to be buried together in veterans' cemeteries, etc.). Thus, the legalization of gay marriages now constitutes the legalization of full marriages, as opposed to "skim milk" marriages (to borrow a phrase used by Justice Ruth Bader Ginsburg during oral arguments pertaining to the constitutionality of Section 3 of DOMA).

The Windsor Court also held that the enactment of DOMA was at least in part the result of "animus," or a bare dislike of gay men and lesbians. This animus was on public display when televised hearings pertaining to the language and enactment of DOMA were broadcast to the nation on C-SPAN. It is a well-settled principle of constitutional law that a "bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest" (United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973) (emphasis in original)).

By not accepting a gay marriage case at the beginning of its term in October, the Supreme Court of the United States (SCOTUS) has tacitly endorsed gay marriage, because the mandates of all of the above appellate courts have issued, and gay couples are now marrying in states which had previously vigorously opposed gay marriage in their appellate briefs. SCOTUS dissolved the temporary stay which Justice Kennedy had placed on the Ninth Circuit's judgment pertaining to gay marriages in Idaho, with the result that gay couples are now marrying in that state -- perhaps the most conservative state in the nation. The hard right faces a real quandary -- it cannot accuse SCOTUS of "judicial activism" given the fact that SCOTUS declined to hear a single appeal from a gay marriage case, and is now forced to argue that SCOTUS was duty-bound to hear such an appeal.

What many people do not understand is that the state constitutions may grant their respective citizens rights over and above those guaranteed them by the US Constitution, either by their express terms or as construed by the respective state high courts, but may not deprive their citizens of any of the rights guaranteed them by the US Constitution. The US Constitution thus sets a floor, but not a ceiling, to the rights which state constitutions may grant their citizens. This is a basic principle of federalism and constitutional law. All four of the federal appeals courts which have ruled to date on the issue of gay marriage have held that state gay marriage bans (both statutory and constitutional) are violative of the Equal Protection Clause of the Fourteenth Amendment; two of these Courts of Appeals have also held that such bans violate the Due Process Clause of the Fourteenth Amendment.

Prior to all four of the US Courts of Appeals handing down their decisions in favor of gay marriage, a torrent of roughly 30 US District Court decisions had poured through the federal judiciary, all but one of which had held that state gay marriage bans were unconstitutional under the Equal Protection Clause and / or the Due Process Clause of the Fourteenth Amendment. Only one US District Court in Louisiana had held that the state's gay marriage ban was not unconstitutional, and that case has since been appealed to the US Court of Appeals for the Fifth Circuit, sitting in New Orleans. Since all four of the US Courts of Appeals handed down their pro-gay marriage decisions, only one additional US District Court in Puerto Rico has held that the territory's gay marriage ban is not unconstitutional. Both of these US District Courts reached this conclusion by holding -- in the face of seismic doctrinal developments to the contrary -- that Baker v. Nelson, 409 U.S. 810 (1972) remains good law.

Baker was a 1972 case decided on direct and (at that time) mandatory appeal from the Minnesota Supreme Court, which had heard and dismissed both the equal protection and due process challenges to Minnesota's heterosexual-only marriage statute submitted by two gay men who wished to marry. SCOTUS affirmed the Minnesota Supreme Court's ruling with a one-line order -- "The appeal is dismissed for want of a substantial federal question." Summary dispositions of this nature carry precedential value, and are intended to prevent lower courts from reaching opposite or differing conclusions based upon identical, or substantially similar, fact patterns as those considered by SCOTUS. However, SCOTUS has carved out an exception to this rule -- in Hicks v. Miranda, 422 U.S. 332 (1975), the Court held that such summary dispositions may lose their precedential value if "doctrinal developments indicate otherwise."

When Baker was handed down, the legal concept of "intermediate-tier scrutiny" (or "quasi-strict" scrutiny) had not yet been developed; this is the standard of review currently applied to gender-based discriminatory governmental action under the Equal Protection Clause. Three gay rights cases have been decided since Baker was handed down, the combination of which has radically transformed the landscape with respect to the manner in which the federal courts treat gay men and lesbians. Romer v. Evans, 517 U.S. 620 (1996) held that gay men and lesbians may seek protection from discrimination in employment, housing, and access to places of public accommodation (in both the public and the private sectors) through the operation of anti-discrimination measures; no state constitutional amendment (or other measure) may preemptively withdraw from gay men and lesbians the right to seek protection from such discrimination. Lawrence v. Texas, 539 U.S. 558 (2003) overturned all state "sodomy" statutes which criminalized gay sex, even in private settings between consenting adults for non-commercial purposes (such statutes had, at one time, existed in every state in the nation). United States v. Windsor, 570 U.S. ___ (2013) overturned Section 3 of DOMA, as described above. To argue that Baker is still apposite is to ignore the reality that the legal landscape has changed radically as pertains to the rights of homosexuals since 1972. This point was made most forcefully by all four of the US Courts of Appeals which have weighed in with respect to the issue of gay marriage to date. During oral argument in Hollingsworth v. Perry, 570 U.S. ___ (2013) (the California gay marriage case, in which the Court held that the proponents of Proposition 8 lacked standing at the appellate level), Justice Ruth Bader Ginsburg admonished the attorney representing the state of California that "...Baker v. Nelson was 1971. The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny… And the same-sex intimate conduct was considered criminal in many States in 1971, so I don't think we can extract much in Baker v. Nelson."

The two rogue US District Courts which have upheld local gay marriage bans have therefore engaged in acts of willful defiance relative to the merits of Baker.

SCOTUS has declared marriage to be a fundamental right in at least 12 cases, deriving this conclusion from interpretation of the substantive component of the Fourteenth Amendment's Due Process Clause. The Court has repeatedly framed the right to marry very broadly. Several cases which illustrate this approach include Zablocki v. Redhail, 434 U.S. 374 (1978) (striking a state statute which prohibited fathers who owed back child support payments from marrying or remarrying); Turner v. Safley, 482 U.S. 78 (1987) (striking prison regulations which prohibited prisoners from marrying); and Loving v. Virginia, 388 U.S. 1 (1967) (striking Virginia's "miscegenation" statute, thus permitting interracial marriage nationwide, by extension).

In handing down the above opinions, the Court did not create new "fundamental" rights to "deadbeat dad marriage," to "prison inmate marriage," or to "interracial marriage" -- it merely expanded the pool of individuals who were eligible to marry under state laws. Fundamental rights are usually rights which are “objectively, deeply rooted in this Nation’s history and tradition” (Washington v. Glucksberg, 521 U.S. 702 (1997)), or which are "implicit in the concept of ordered liberty" (Palko v. Connecticut, 302 U.S. 319 (1937)). However, when the Court handed down Loving, interracial marriage was by no means "deeply rooted in this Nation's history and tradition" -- to the contrary, it had been banned since colonial times, and a substantial number of states still criminalized interracial marriage when Loving was handed down. Thus, history and tradition may be a starting point in terms of the genesis of fundamental rights, but they are by no means the ending points.

To quote from Chief Judge Judith Kaye's brilliant dissent in Hernandez v. Robles, 855 NE 2d 1 (2006) (the New York gay marriage case heard by the Court of Appeals, which is the highest state appellate court in the state of New York), "Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them."

This is not merely playing with words. The Court has always framed the right to marry very broadly (as per the examples above). Furthermore, when Loving was handed down, a large majority of the nation's citizens vehemently opposed interracial marriage. On the other hand, a sizeable majority of Americans are now in favor of gay marriage (a recent Washington Post / ABC News poll placed the percentage of Americans who approved of gay marriage at a record high of 59%; subsequent polls have place this majority at roughly 56%).

The US Courts of Appeals for the Seventh and Ninth Circuits held that state bans against gay marriage (both statutory and constitutional) violated the Equal Protection Clause of the Fourteenth Amendment. Judge Richard Posner -- a Reagan appointee known for his brilliant, incisive decisions and for his conservativism -- wrote for a unanimous panel of the Seventh Circuit, holding that statutes and other measures which are drawn along the lines of sexual orientation are inherently constitutionally suspect, thus rendering gay persons a "suspect class" for the purposes of equal protection analysis. Measures which adversely impact members of a suspect class are subject to "strict scrutiny," which is the most demanding level of review in which the burden falls on the government (state or federal) to prove that the measure in question promotes a "compelling" state interest, and is "narrowly tailored" so as to infringe the rights of members of the suspect class to the least degree possible. The state almost always loses when the strict scrutiny standard is applied -- and both Wisconsin's and Indiana's gay marriage bans were held to be violative of the Equal Protection Clause of the Fourteenth Amendment under this standard of review.

The Seventh Circuit is considered by most court watchers to be a scholarly and conservative court, the opinions of which carry considerable weight with SCOTUS. It should nevertheless be noted that SCOTUS has shown itself to be extremely reluctant to expand the number of classifications which it considers to be suspect. Should SCOTUS take up a gay marriage case later in its current (or subsequent) term and should the Court wish to affirm or otherwise adduce the Seventh Circuit's decision, the Court is likely to adopt a balancing test in which it will balance the harm done to members of the class adversely impacted by the gay marriage bans (i.e., gay men and lesbians who wish to marry) against the putative benefits to society worked by these bans (all of which benefits were eviscerated by the Seventh Circuit). This is in keeping with the manner in which Justice Anthony Kennedy wrote for the majority in Lawrence v. Texas, 539 U.S. 558 (2003) (striking state sodomy laws which were most frequently invoked to punish acts of sexual intimacy between members of the same sex, even when such acts occurred in private settings between consenting adults).

The US Court of Appeals for the First Circuit, in Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), held that the Lawrence Court had "applied a balancing of constitutional interests that defied either the rational basis or strict scrutiny label." The US Court of Appeals for the Ninth Circuit, in Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) held that the Lawrence Court had actually applied "heightened scrutiny" (with the dissenting judge in the three-judge panel arguing that the Lawrence Court had actually applied the even more demanding "strict scrutiny" test). Additionally, the Windsor Court took an appeal from the US Court of Appeals for the Second Circuit, based in New York City; the Second Circuit, in Windsor v. United States, 699 F.3d. 169 (2012) held that statutes and other measures which classify along the lines of sexual orientation should be subject to "quasi-strict scrutiny." SCOTUS declined to address this holding, thus rendering it binding precedent in the Second Circuit.

Ninth Circuit case law compelled the unanimous panel of this circuit to hold that the bans against gay marriage in the states of Nevada and Idaho violated the Equal Protection Clause. Like the Seventh Circuit, the Ninth Circuit holds that discriminatory laws which adversely impact members of the gay community must be subjected to heightened scrutiny. The Ninth Circuit pulled no punches -- writing for the panel, Judge Stephen Reinhardt condemned the governor of Idaho's conclusory contention that "allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies." Judge Reinhardt responded by opining that "[w]e seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll."

In addition to authoring the majority opinion, Judge Reinhardt also wrote a separate, concurring opinion in which he argued that the prohibition of same-sex marriages violated the Due Process Clause; he argued that gay marriage was protected by this Clause in the same manner that "deadbeat dad" marriage, "prison inmate" marriage, and "interracial" marriage were protected; Reinhardt argued that the right to marry had always been parsed by SCOTUS in very broad terms, without reference to the individual characteristics of those persons who wished to marry.

Judge Berzon also wrote a concurring opinion; he argued that the prohibition of gay marriage facially classified on the basis of gender. His argument was simple; person A (a man) may marry person B (a woman), but he may not marry person C (a man), simply because person A is a man and not a woman. Were person A a woman, she would be able to marry person C (a man). Thus, person A's choice of marriage partner is dependent on his or her gender, not just on his or her sexual orientation. Classifications on the basis of gender are subjected to "quasi-strict scrutiny," or "intermediate-level scrutiny," in which the state must demonstrate that the challenged measure promotes a "sufficiently important" state interest, and is "substantially related" to the promotion of that interest; this standard of review has also been reformulated so as to require that the government must demonstrate an "exceedingly persuasive justification" for the challenged measure (United States v. Virginia, 518 U.S. 515 (1996)). Judge Berzon would therefore have struck the gay marriage bans of Idaho and Nevada on the grounds that they impermissibly classified on the basis of both sexual orientation and gender.

The mandates of all four Courts of Appeals have issued, and approximately 35 states will soon permit gay marriage; all that remains are mopping up operations as state attorneys general mount gangplank appeals. Legal scholars are unanimous in their opinion that gay marriage is here to stay in those states under the geographical jurisdiction of the four US Courts of Appeals which have held in favor of gay marriage.

It is the writer's hope that this illuminates a very complex issue.


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