Vol. 40 No. 9
By Janan Hanna
Janan Hanna is a Chicago freelance writer and an adjunct instructor at Northwestern University’s Medill School of Journalism. A former staff writer for the Chicago Tribune, she has also written for numerous other news organizations, including Reuters, the Chicago News Cooperative, the Huffington Post and the Chicago Daily Law Bulletin.
Hardly a day goes by without the subject of gay marriage hitting the news for one reason or another, reflecting a flurry of activity in state legislatures, the courts, and among activist organizations. In recent weeks alone, state legislatures have passed gay marriage laws, opponents have called for referenda, courts have issued rulings, and opinion polls have been released seeming to show increased support for gays and lesbians who want the legal definition of marriage to apply to their committed relationships.
Marriage is a fundamental right, gay marriage supporters argue. Depriving everyone access to it is bald-faced discrimination—a violation of equal protection. But to opponents, the purpose of marriage is procreation and the responsible rearing of children by a woman and a man. Extending to gays and lesbians the right to marry would undermine traditional marriage, and therefore, governments have a valid reason to maintain the traditional definition of it.
Everyone seems to agree on one point: The marriage debate will likely reach the US Supreme Court sooner rather than later. That’s because of two recent (February 2012) rulings—both from federal courts in California—that essentially held that depriving gays and lesbians the right to marry is unconstitutional. One ruling, by a federal district court, held that a key provision of a 1996 federal law passed by Congress defining marriage as between a man and a woman only was unconstitutional. The other, a ruling by a three-judge panel of the Ninth Circuit Court of Appeals, held that California’s Proposition 8—a voter initiative in 2008 that amended the state constitution to allow only for opposite-sex marriage—could not stand.
Both cases have had long and notable histories, which will be discussed below. Defenders of both the federal Defense of Marriage Act (DOMA) and Proposition 8 have vowed to challenge both rulings all the way to the US Supreme Court; this, despite decisions by the California governor and attorney general not to defend Proposition 8, and the Obama administration’s decision not to defend DOMA.
“Under an equal protection argument, traditional marriage laws reasonably promote responsible procreation and the raising of children by both the mothers and fathers that brought them into the world,” says Andrew Pugno, general counsel of the California Ballot Measure Committee, a group that is defending Proposition 8 in the Perry case. He also said the question is not really one for courts but for legislatures and citizens as a whole. The Committee asked the Ninth Circuit for a rehearing en banc on February 21. If that request is denied or the whole court upholds the previous ruling, Pugno says, the Committee will appeal to the US Supreme Court.
Matthew McGill, one of the attorneys challenging Proposition 8 in the Perry case, countered Pugno’s argument. “The 9th circuit actually held that this argument, the responsible pro-creation argument, is not even rationally related to the objective of promoting responsible pro-creation. It’s not rationally related to that objective because stripping gays and lesbians of their right to marry does not change in any way the likelihood that a straight couple will get married. The only way it could plausibly advance the objective is if it were true that because gays and lesbians are prohibited from marrying, then maybe they’ll just decide to marry people of the opposite sex instead.” And no one is making that argument, he adds.
On Valentine’s Day, Washington became the seventh state to pass a gay marriage law, joining Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and New York. (The District of Columbia also allows for gay marriage.) Several days after the Washington law was passed, the Maryland state legislature passed a law allowing gays to marry. In the case of Washington and Maryland, however, the laws do not take effect until long after the November election, giving opponents a chance to put the issue to voters in a referendum. In a few other states, opponents are also considering putting the question to voters in a referendum.
“We filed our lawsuit in May of 2009 and it is remarkable to me that in the nearly three years that has elapsed how far we have come as a nation,” McGill says. “Polls are now showing majority support for marriage equality.” The “Don’t Ask Don’t Tell” law has been repudiated, and Obama abandoned DOMA, acknowledging that “there’s no reason to treat the discrimination of gays and lesbians differently than [discrimination] based on race or sex,” McGill adds.
Delaware, Hawaii, Illinois, New Jersey, and Rhode Island have civil union laws, which give same-sex couples rights similar to those of marriage. But 30 states have passed laws or enacted constitutional provisions defining marriage as only between a man and a woman.
Even in those states that have enacted marriage equality laws, same-sex couples are denied certain federal rights that are afforded to heterosexual couples, which is what makes DOMA so important for same-sex marriage supporters.
DOMA was enacted in 1996 partly in response to a Hawaii state law that recognized same-sex marriage. The Act defines marriage as between one man and one woman. It denies to same-sex couples all federal benefits that heterosexual couples are afforded, including Social Security benefits, joint tax filing, housing, and social welfare. (The General Accounting Office issued a report in 2004 identifying 1,138 federal rights that are contingent on marriage.) And the law says that states are not required to recognize same-sex marriages that occurred in a different state.
The most recent ruling in a case challenging the constitutionality of a main provision of DOMA involves a California plaintiff who works for the federal government and was denied health benefits for her same-sex spouse (Golinski v. Office of Personnel Management). Judge Jeffrey White of the US District Court for the Northern District of California, ruled for Golinski, holding that Section 3 of DOMA violates the equal protection clause because it “treats gay men and lesbians differently on the basis of their sexual orientation.” White held that the DOMA provision bears no rational relationship to a governmental interest, rejecting defense arguments that marriage is for the purpose of responsible procreation.
White did not subject DOMA to a higher level of scrutiny—intermediate or strict scrutiny, which are two of three levels of legal analyses that courts use in equal protection cases. White held that the DOMA provision did not bear any rational relationship to a governmental interest, although lawyers for Golinski argue that the provision also does not advance an important governmental interest or a compelling one, under the two higher scrutiny tests.
“DOMA is an anomaly. It is motivated by animus. It was the result of a congressional debate that involved no testimony or fact seeking on any of the concerns that were cited by members of Congress at the time, and, it concerns a law that is breathtaking in its scope and unprecedented,” says attorney Camilla Taylor, a senior staff attorney and marriage project director at Lambda Legal, the organization that represented Golinski. Domestic relations laws have always been up to individual states.
“For the first time, DOMA targeted a class of people for exclusion from federal protections and responsibilities and benefits of marriage and it targeted this group of people in the face of state determinations that it is discriminatory to exclude gays and lesbians for marriage,” says Taylor. At the time of DOMA’s enactment, the Hawaii Supreme Court had held that gays and lesbians might be entitled to marry under the state’s constitution.
Taylor says she believes the Ninth Circuit Court of Appeals, which has been asked by the defendants to hear the case, will uphold Judge White’s ruling, and that should the case end up before the US Supreme Court, even the most conservative justices on the court would have difficulty crafting a legal argument in defense of DOMA.
In an unusual twist, the defendant in the Golinski case is a committee of the US House of Representatives, which was brought together by Speaker John Boehner after President Obama and Attorney General Eric Holder announced that they would not defend the law. The group, know as the Bipartisan Legal Advisory Group, or “BLAG,” hired former US Solicitor General Paul Clement to be its lead attorney. The group was granted standing to intervene.
Neither Clement nor other members of the BLAG legal team would agree to an interview. But in court filings, they argued: The DOMA is not unconstitutional because it merely codifies a historic tradition; that the state under a rational basis analysis has an interest in maintaining that tradition; that gays are not a protected class like women or racial and ethnic minorities because homosexuality is essentially a choice, and, because homosexuals have not been subjected to a history of political persecution, and, finally, that the issue should be decided not by the courts but in the political arena.
“Their arguments are extremely weak and times have passed them by,” says Taylor of Lambda Legal.
BLAG filed its notice of appeal in Golinski on February 24.
The Perry Case
Like the DOMA case, the Perry case is being defended by a political organization composed of individuals that supported Proposition 8. Known as the California Ballot Measure Committee or “Protect Marriage.com Yes on 8,” the group was spearheaded by former California legislator Dennis Hollingsworth. Their lead attorney, Charles Cooper of the D.C. law firm, Cooper & Clark, has a wide range of experience in government and private practice. He worked in the Civil Rights Division of the US Department of Justice beginning in 1981 and was appointed by President Reagan in 1985 as Assistant Attorney General for the Office of Legal Counsel.
On the opposite side are the two attorneys who made competing arguments before the US Supreme Court in the Bush v. Gore election contest case of 2000. Theodore Olson of Gibson, Dunn & Crutcher LLP, represented George Bush in the case, successfully ending the Florida ballot recount. David Boies represented Al Gore in the case. Both are representing the American Foundation for Equal Rights (AFER) in the challenge against Proposition 8.
In addition, a number of high-profile Hollywood celebrities have leant their support to AFER in its efforts to overturn the initiative.
Approximately 18,000 couples were married under California’s gay marriage law, which was upheld by the California Supreme Court. But in November 2008, California voters passed a referendum that amended the California Constitution with these words: “Only Marriage between a man and a woman is valid or recognized in California.” Although the initiative did not invalidate existing marriages, two couples that wanted to marry after its passage challenged Proposition 8 in a lawsuit filed in 2009.
Judge Stephen Reinhardt, writing for the majority opinion in the 2-1 decision of the Ninth Circuit Court of Appeals, held that Proposition 8 was unconstitutional.
“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort,” Reinhardt says. He flatly rejected the “responsible procreation” argument advanced by supporters of Proposition 8.
McGill, a partner at Gibson, Dunn, who is a member of the legal team with Olson, says the Ninth Circuit ruling was consistent with US Supreme Court precedent, specifically with the high court’s ruling inRomer v. Evans in 1996. In that case, the high court held that there was no rational basis behind a Colorado voter initiative that amended the state Constitution to bar any government entity from making a determination that gays and lesbians were a protected class.
Even if strict scrutiny were applied, Proposition 8 would be unconstitutional, McGill says. “Even if you could identify some compelling state interest stripping their rights to marry the next question is: Is the law narrowly tailored to advancing this particular state interest? It seems to me the only objective is discrimination against gays and lesbians. There is no interest it serves,” he says.
McGill rebutted the argument that marriage has a historic tradition of being between a man and a woman, noting that there is no constitutional underpinning to support that theory. The US Supreme Court has recognized this in school segregation cases, rejecting arguments that doing things the way we used to is somehow a defense of discrimination.
“The justification offered by states that did not want to integrate their schools was ‘this is always the way we’ve done it.’ That is just not a compelling interest. It’s not even a legitimate governmental interest. Under that view, inequality is self-justifying. Discrimination can be continued because that’s what we’ve done in the past.”
“The question that proponents of Proposition 8 cannot answer is how does prohibiting gays and lesbians from marrying make it more likely that heterosexual people will get married and have children.”
Pugno says that supporters of Proposition 8 do not need to show they’ve suffered or will suffer harm. “We don’t believe it’s our burden to demonstrate harm in order to justify the continued definition of marriage. We believe that all the law requires is that the special treatment of traditional marriage is at least reasonably related to the goal of steering responsible procreation between the opposite sexes.”
As the marriage debate makes its way to the US Supreme Court, it will continue to pit defenders of “traditional marriage” against well-organized gay rights groups, each with now familiar talking points.