United States Senate Republican Policy Committee Jon Kyl, Chairman Massachusetts Court Expected to Legalize Same-Sex Marriage July 29, 2003 The Threat to Marriage from the Courts Commentators from across the political spectrum agree that the Massachusetts Supreme Judicial Court is likely to rule very soon that same-sex couples have a constitutional right to marry in Massachusetts. Gay marriage activists have filed lawsuits in other States demanding courtimposition of same-sex marriage and have pledged to challenge the federal Defense of Marriage Act and similar laws enacted by 37 States. This paper discusses the background of the issue and the public policy options available to respond to court rulings that advance same-sex marriage. Introduction and Executive Summary Activist lawyers and their allies in the legal academy have devised a strategy to override public opinion and force same-sex marriage on society through pliant, activist courts. Those activists would score their biggest victory to date if the Massachusetts court decides in Goodridge v. Massachusetts Dep't of Public Health that persons of the same sex can marry each other as a matter of state constitutional law. That decision is expected to be released any day. A pro-same-sex marriage ruling surely will spur more lawsuits to force that result on unwilling States—like those cases already pending in New Jersey, Indiana, and Arizona. The U.S. Supreme Court gave aid and comfort to the activists' court strategy in its recent homosexual sodomy decision, Lawrence v. Texas. Although the majority justices claimed that the decision did not formally affect marriage,2 that decision could provide support for future court rulings changing the marriage institution. First, the Court held that homosexuals, like heterosexuals, have the right to “seek autonomy" in their relationships and cited "personal decisions relating to marriage" as an important area of personal autonomy. Second, the Court held that whether a majority of the public opposes "a particular practice as immoral is not a sufficient reason for upholding a law prohibiting that practice." These statements do not mandate the recognition of same-sex marriage as a constitutional right, but they could serve as valuable tools for gay marriage activists as they push their cases nationwide. 4 3 1 539 U.S., 123 S.Ct. 2472 (2003). All citations are to slip opinion available at http://www.supremecourtus.gov/opinions/02pdf/02-102.pdf. Slip Op. at 18. 3 Slip Op. at 13. 4 Slip Op. at 17. This campaign through the courts runs directly counter to public opinion. A majority of Americans -- between 53 percent and 62 percent, depending on the poll favor preserving marriage as it has been practiced throughout history: the union of a man and a woman." (The public is evenly divided on the question of whether lesser legal recognitions of same-sex relationships are appropriate.") If marriage is redefined in the foreseeable future, it will not be because of democratic decisions, but because of a few judges who, in response to a carefully crafted activist agenda, take upon themselves the power to do so. 8 Recognizing an even stronger societal consensus at the time (68 percent opposition to samesex marriage'), Congress overwhelmingly passed the Defense of Marriage Act (“DOMA”) in 1996. The bill passed the Senate 85-14, including the "yes" votes of 62 current Senators. DOMA did two things. First, it recognized the traditional definition of marriage as between one man and one woman for all aspects of federal law. Second, it ensured that no State is obligated to accept another State's non-traditional marriages (or civil unions) by operation of the Constitution's Full Faith and Credit Clause (art. IV, sec. 1). Thirty-seven States have passed constitutional amendments or statutes commonly known as “state DOMAS" that further protect traditional, heterosexual marriage." Since federal DOMA was passed, academics and activists alike have crafted a plethora of legal arguments claiming that the federal and state DOMAS are unconstitutional. Insofar as the Lawrence decision and the anticipated Goodridge result broaden general constitutional principles of substantive due process and equal protection, the possibility of a court declaring federal DOMA unconstitutional and mandating same-sex marriage is more likely today than ever before. Gay marriage activists can be expected to pursue several court strategies: • Full Faith & Credit Challenges. Same-sex couples will “marry” in Massachusetts and then file lawsuits in other States to force those States to recognize the Massachusetts marriage. They likely will argue that federal DOMA is unconstitutional as an overly broad interpretation of the Full Faith and Credit clause and as inconsistent with principles of equal protection and substantive due process. Goodridge Copycat Cases. Activists will file new cases similar to Goodridge in other States and demand recognition of same-sex marriage as a constitutional right under state law. The Massachusetts decision will serve as persuasive precedent for other courts interpreting parallel provisions in their state constitutions. ་ See Pew Center poll, July 2003 (53% oppose "allowing gays and lesbians to marry legally"); Andres McKenna poll, July 2003 (53% oppose "idea of marriages between homosexuals"): Gallup poll, June 2003 (55% believe "marriages between homosexuals" should not be "recognized by law as valid, with the same rights as traditional marriage"); Time/CNN poll, July 2003 (60% believe “marriages between homosexual men or between homosexual women" should not "be recognized as legal by the law"); WirthlinWorldwide poll, February 2003 (62% agree that "only marriage between a man and a woman should be legally valid and recognized in our country"). All polls on file with RPC, see also AEI Studies in Public Opinion: Attitudes About Homosexuality (updated July 11, 2003), available at http://www.aei.org/publications/pubID 14882/pub_detail.asp (hereinafter "AEI Studies”). 6 A June 2003 Gallup poll showed 49 percent support for "civil unions" for same-sex couples. See AEI Studies, supra note 5. 7 See Gallup poll, March 1996 (68% oppose "marriages between homosexuals"), available at AEI Studies. 8 Only seven sitting Senators voted against that law: Senators Akaka, Feingold, Feinstein, Inouye, Kennedy, Kerry, and Wyden. Senate Vote #280, 104th Cong., 2nd Sess. (Sept. 10, 1996). Senators Durbin and Schumer voted for DOMA while they were House members. House Vote #316, 104th Cong., 2nd Sess. (July 12, 1996). 9 Only Connecticut, Massachusetts, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Vermont, Wisconsin, and Wyoming have failed to enact state DOMAS. The Supreme Court Strategy. Same-sex couples who have "married” in Massachusetts (or who have civil unions, as some do in Vermont) will apply for federal benefits such as federal employee health insurance, and under federal DOMA those requests will be denied. They may then sue in federal court and argue that the definition of marriage in DOMA (for federal purposes) is unconstitutional as a matter of federal equal protection and substantive due process. Such a case could end up in the Supreme Court. This proliferation of lawsuits could well produce additional victories for gay marriage advocates. Additional legislation is unlikely to be effective in stopping attempts to remake marriage through the courts. Some have suggested that Congress should attempt to strip the courts of jurisdiction to review DOMA or that Congress refuse to give welfare monies to States that refuse to protect traditional marriage. These approaches are incomplete solutions to the threat to marriage from the courts, and present their own set of legal and political difficulties. Most importantly, a court that is willing to strike down DOMA may be at least as willing to entertain challenges to other federal legislation aimed at preventing the spread of same-sex marriage. These lawsuits will continue until Congress and the States adopt a constitutional amendment to protect traditional marriage. Such a constitutional amendment would have to validate DOMA and provide that the Constitution cannot be construed to change the traditional definition of marriage. It could, but need not, deal with the related issues of legal benefits that should be available to same-sex couples. One proposal with significant and growing support is the Federal Marriage Amendment ("FMA”). Introduced in the House by a bipartisan coalition of Representatives," the FMA reads: "Marriage in the United States shall consist only of the union of a This proposed amendment would provide a single definition of marriage in the United States and prevent any federal or state court from imposing any other definition of marriage. At the same time, the FMA would protect the ability of state legislatures to create "civil unions" or otherwise grant legal benefits to same-sex couples, while preventing courts from forcing a State to recognize the benefits granted in another State. The Recent Activity in the Courts The need to consider a constitutional amendment relating to marriage is driven by the threat that state or federal courts will change the traditional definition of marriage on their own. Congress enacted the Defense of Marriage Act in 1996 after a Hawaii state court mandated recognition of same-sex marriage in that State. This issue has reemerged because of the U.S. Supreme Court's 11 10 The original co-sponsors of H.J. Res. 56 include Collin Peterson (D-MN), Mike McIntyre (D-NC), Ralph Hall (D-TX), Marilyn Musgrave (R-CO), Jo Ann Davis (R-VA), and David Vitter (R-LA). As of July 29, 2003, a total of 75 Representatives were cosponsoring the FMA. 11 See Baehr v. Miike, No. 91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996). Hawaii amended the state constitution to reverse the appellate court's decision in 1998. decision in Lawrence and the anticipated Massachusetts decision in Goodridge. At the same time, Canada already has begun to legalize same-sex marriage, prompting many American homosexual couples to travel there to be "married" and then return to the United States. 12 The Goodridge Case: the Massachusetts Court's Looming Decision Due any day is a decision from the Massachusetts Supreme Judicial Court in the case of Goodridge v. Massachusetts Dep't of Public Health. In that case, seven same-sex couples sued Massachusetts and argued that they have a constitutional right to receive marriage certificates under the state constitution's Declaration of Rights, akin to the federal constitution's Bill of Rights. The trial court ruled that Massachusetts had the right to regulate marriage and that the legislature had a rational basis for restricting the institution to opposite-sex couples, i.e., the encouragement of orderly and healthy procreation." The trial court further urged the plaintiffs to pursue through the legislature, not the court system, their desire to be married. The plaintiffs quickly appealed this decision to the Massachusetts Supreme Judicial Court. Most observers expect the Massachusetts high court to reverse the lower court and rule that the Massachusetts constitution mandates recognition of same-sex marriage. The plaintiffs have argued that civil marriage is a fundamental right under the state constitution; that denying civil marriage to same-sex couples violates their right to equal treatment based on sex and sexual orientation; and that the state can offer no justification for excluding these couples from the institution of marriage. Any or all of these arguments could form the basis for the court's decision. 15 The arguments put forth in the Massachusetts case rely on state constitutional provisions that, in substance, appear in other state constitutions and in the U.S. Constitution. As such, the gay marriage advocates who created the Massachusetts lawsuit - the plaintiffs' attorneys are from the nationally-active group known as Gay and Lesbian Advocates & Defenders - will be able to export many of the same arguments to other States. Moreover, under traditional rules of construction, every other court considering like challenges (such as those pending so far in Arizona, New Jersey, and Indiana) likely will look to the Massachusetts court's reasoning and analysis when interpreting their own States' constitutions. In other words, the Massachusetts decision will create a persuasive precedent that other courts may well choose to follow. Lawrence: the U.S. Supreme Court Opens the Door to Same-Sex Marriage The Supreme Court in Lawrence held that persons have a fundamental constitutional right to engage in sodomy. On its face, Lawrence does not directly address whether persons of the same sex have a constitutional right to marry. However, those pushing same-sex marriage in the courts gained valuable support for their legal arguments through this decision. 12 See, e.g., S.J. Komarnitsky, Canadian Vows: Two Couples Are Among The First to Take Advantage of SameSex Marriage Law, Anchorage Daily News, July 27, 2003; Sheri Venema, New Borders for Marriage, The Oregonian, July 7, 2003. 13 Goodridge v. Massachusetts Dep't of Public Health, No. 2001-1647-A (Suffolk Cnty. Super. Ct. May 7, 2002), slip op. at 24-25, available at http://www.marriagewatch.org/cases/ma/goodridge/trial/trialop.pdf. Id. at 25-26. 15 See Brief of Plaintiff/Appellants available at http://www.glad.org/GLAD_Cases/Appellants_Brief.pdf. |