In a move largely expected, the Supreme Court will finally take on the issue of gay marriage yet again. Since its rulings in the Windsor DOMA case and the Proposition 8 Hollingsworth case out California, there has been numerous litigation in federal courts over this topic. To date, 36 states now have gay marriage either through state constitutional recognition, legislative action, or (mostly) judicial fiat. That is the crux of the matter as this case (actually a consolidation of four cases) out of the Sixth Circuit indicates- the first federal court of appeals to uphold a state ban on gay marriage.
Already, the Supreme Court pundits are aglow about the prospects of a de facto acceptance of gay marriage. It is true that popular opinion is moving in that direction if we are to believe the many polls conducted on the subject. What this writer finds most egregious about the Court’s ambiguity in the past is that it left many couples in legal limbo. The litigation is ridiculous in its sheer numbers. All three federal district courts in Alabama are currently litigating the subject. The ambiguity created by Windsor and Hollingsworth has created this litigation.
The reasons for striking down same sex marriage bans are varied across the different circuit court of appeals which further muddles the constitutional picture. The Ninth Circuit strikes down bans arguing that gays occupy a “suspect class” and therefore the bans are subject to strict scrutiny. Meanwhile, the Fourth Circuit comes to the conclusion that gays are not a suspect class, but that marriage is a fundamental right and any restriction on that right must withstand strict scrutiny. The lower district courts strike down bans on the grounds that the bans serve no legitimate state interest, avoid strict scrutiny altogether and rely only on rational basis. Hence, it is only right that the Supreme Court should inject themselves into the argument to clear up the ambiguity they themselves created.
Many will be looking at Justice Kennedy since he was the author of the Windsor decision, the one most relied upon to strike down Section 3 of DOMA. In effect, one can look at state bans on gay marriage as mini-DOMAs and as such, proponents of gay marriage should be hopeful. After all, if it was unconstitutional for the federal government to do so, it should also be unconstitutional for state governments to do so, right? Not so fast… This case may come down to the proper level of judicial review, so let’s start there.
The lowest level of judicial review is the rational basis test: the law must further a legitimate state interest, OR there must be a rational link between the interest and the law in question. As long as the state can advance a rational reason for the law, it will withstand scrutiny. The lower courts in these cases have usually determined that state bans on gay marriage serve no legitimate state interest and therefore must fall. But, that is like saying that centuries of human history and American history have been a ruse- that traditional marriages did not advance mankind and provide for stable families. However, gay marriage bans do not deny gays the right to adopt children and provide a stable family environment.
Furthermore, a state ban on same sex marriage (SSM) is hardly breaking new legal ground. Prior to these bans, that was the accepted definition of marriage. By placing the definition in a state constitution through the democratic process, the state is merely codifying this definition and placing it beyond the reach of the judiciary.
The problem with deciding these cases based on a rational review basis is obvious. As previously noted, it would deny centuries of belief regarding the role of traditional marriage in providing a stable family structure for procreation and child rearing (key word: procreation). That is clearly a legitimate state interest. Beyond that, voters and legislatures often make wrongheaded decisions that may appear irrational. Rational basis is the lowest level of review and the onus of responsibility is on the plaintiff, not the state. In fact, the state usually does not have to advance their interest. By deciding these cases on this level of review, rational basis would basically become a quaint thing of the past. Third, as a result any law anyone considered “irrational” would be litigated outside the subject of marriage. The rationality is established in the democratic debate.
Conversely, deciding these cases based on strict scrutiny is also rife with pitfalls. The burden of proof is clearly on the government that the law must serve a legitimate state interest and that it is narrowly tailored to meet the goals of that interest. Again, the stated rationale- the interest in fostering stable families- is not really an issue. The problem is whether this is the least restrictive means towards those ends.
However, to get there one has to make one of two conclusions, or both. The first is that a suspect class of people are the targets of these laws. The Supreme Court has never included homosexuals as a suspect class although we can debate this point. To be included as a suspect class, they (1) must have been historically discriminated against or stigmatized, (2) they must possess an immutable trait, (3) they are powerless to protect themselves through the political process and (4) their defining characteristic does not prevent them from being meaningful members of society. What keeps them out of this definition of suspect class is point #3 above. Clearly, homosexuals are not powerless in the political process as their legislative gains have demonstrated. Virtually every state has a statute against discrimination based on sexual orientation. Some, like California, have taken it to absurd extremes with gender-neutral bathrooms (fine by me; just don’t complain about pee on the seats). And virtually every group can claim some discrimination against them in the past. Were the Irish in the 1800s any less the victims of discrimination than gays are today? Yet, the Irish are not a “suspect” class. Women are not even a suspect class.
The second way to invoke strict scrutiny is for the legislation to affect a fundamental right and here, we must delve into whether marriage by itself is a fundamental right. Proponents of gay marriage like to note that there have been 14 Supreme Court cases since 1888 stating such. They fail to note that in all 14 cases they were addressing heterosexual marriages or the possibility of procreation as a result of those marriages. Even in Lawrence vs. Texas, an oft-cited decision, they ignore the words of Justice Kennedy who said the decision does not infer any special rights on homosexuals. That ruling involved consensual, private conduct between adults. It is why laws against rape, public lewdness and pedophilia withstand judicial scrutiny.
I am not a great advocate of the slippery slope arguments on either side, but deeming marriage a fundamental right has its pitfalls since then any state regulation on marriage is subject to strict scrutiny. What is to then stop someone from fighting for incestuous marriages, or sibling marriages? Polygamous marriages, or bigamy? The purpose of marriage laws is to promote procreation and foster stable families. The fact that it often does not achieve these goals does not negate the legitimacy of the goals. While homosexual couples can certainly provide a stable family structure for adopted children, they cannot procreate unless I missed the news somewhere.
What the Sixth Circuit decided was that the issue is best left to the democratic process. Thus, the ruling may come down not to the “whats,” but the “hows” and “whys.” Here, Kennedy’s words in the Schuette affirmative action decision are informative. That case involved a state referendum that banned affirmative action; in essence, it left a question of race relations up to the voters of Michigan. One can argue that race relations is a more sensitive matter than same sex marriage. Yet this Court determined that the voters are more than capable of resolving these public policy questions after reasoned (and sometimes, unreasoned) debate. If they can come to a resolution regarding the contentious issue of race relations and it can be constitutional even in the case of a suspect class, then why would it not also be constitutional in a less contentious issue not involving a suspect class?
That is the rational gist of the Sixth Circuit’s decision. Inevitably, the issue of animus towards homosexuality enters the discussion. Surely there were those who had an animus towards homosexuals just as there were voters who likely voted for the affirmative action ban having an animus towards minorities. But to assume that every voter is guilty of some animus is insulting. As the Sixth Circuit stated, to paraphrase, that is like saying in every state where there is gay marriage, the voters have an animus towards the traditional marriage and in Michigan, Ohio and Kentucky all the voters are hate-mongers against homosexuals. The voters in states that enacted gay marriage bans are no more bigoted rubes than the voters in states with same sex marriage are all determined to undermine traditional values. You cannot malign the majority of voters in any state as being irrationally prejudiced against homosexuals unless you somehow polled every voter as to the reason why they voted as they did.
If views regarding gay marriage are truly changing, then those views will be reflected in the laws. What may be a ban today may be an endorsement two years from now. One need only look at Maine where that exact scenario occurred. This is exactly what Justice Ginsburg has discussed in other areas, namely abortion. At the time, abortion laws were falling by the wayside naturally through the democratic process. Assume Texas’ law at the time was wrongheaded just as Michigan’s ban on gay marriage is perhaps wrongheaded. If there is truly this dramatic change in voter attitudes, then the wrongheaded laws will be corrected. That is what Judge Sutton of the Sixth Circuit was arguing as the best means to address the issue and may ultimately be what the Court has to decide.
A wrongheaded law that does not affect a fundamental right (and we are not clear if marriage is a fundamental right) or a suspect class (homosexuals are not) has no right being litigated in the courts, but in the court of public opinion. This has been the basis of my argument all along in this area. If the traditional definition of marriage is to die, wouldn’t it be better to let it die a natural death through the democratic process rather than be bludgeoned to death by the courts?