“Cause a double-rainbow is hard to find”
On two consecutive days, federal trial courts held unconstitutional state laws that excluded same-sex couples from marriage and refused to recognize lawful marriages of such couples from other jurisdictions. On Monday, May 19, in Geiger v. Kitzhaber (opinion here), U.S. District Judge Michael J. McShane held that Oregon’s statutory and state constitutional marriage exclusions violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Judge McShane’s order in the case permanently enjoined the state and county defendants from enforcing the laws, effective immediately. (He declined to “stay” his judgment to put it on hold and keep same-sex couples from marrying, though the U.S. Court of Appeals for the Ninth Circuit could impose a stay, as could the U.S. Supreme Court.) On Tuesday, May 20, in Whitewood v. Wolf (opinion here), U.S. District Judge John E. Jones III held that Pennsylvania’s statutes denying marriage to same-sex couples and denying recognition of same-sex couples’ valid marriages from other jurisdictions violated same-sex couples’ equal protection rights and their fundamental right to marry under the Fourteenth Amendment’s Due Process Clause. Judge Jones likewise permanently enjoined the state and county defendants from enforcing those laws. Following last week’s decision holding Idaho’s marriage exclusion unconstitutional, and the prior week’s ruling against Arkansas’s marriage ban, these Oregon and Pennsylvania rulings heighten the momentum of the national campaign for marriage equality and underscore the vacuity of the arguments for the continued denial of civil marriage to same-sex couples.
Some Geiger plaintiffs, from left, Lisa Chickadonz, Christine Tanner, Ben West and Paul Rummell. Photo: Don Ryan/AP
In Geiger, the Oregon case, the state had refused to defend the state’s discriminatory marriage laws, concluding they were unconstitutional and joining the plaintiffs in asking the court to hold them unconstitutional. The arguments against it were presented by amici curiae (“friends of the courts,” or interested persons or groups who are formally plaintiffs or defendants in the case) and were the same sorts of claims that are by now well familiar. Like many other judges since the Supreme Court’s decision holding part of the Defense of Marriage Act unconstitutional law summer in U.S. v. Windsor, the Geiger judge concluded that the potential justifications did not even satisfy “rational basis review,” the most deferential form of scrutiny. (The judge in dicta rejected the plaintiffs’ argument that the marriage laws classified on the basis of sex, which would subject them to a less forgiving “intermediate” or “heightened” form of scrutiny. But his reasoning on this point, illogically trying to distinguish Loving v. Virginia, was neither persuasive nor necessary to his ruling, since he held that the laws fail even rational basis review. Thus, this opinion should not even be persuasive precedent for the counter-intuitive proposition that laws that keep same-sex couples from marrying do not classify on the basis of sex.)
Applying rational basis review, the judge ruled, as have many others, that tradition arguments and moral disapproval were legally insufficient to uphold laws challenged as denying people equal protection on the basis of sexual orientation. He also concluded that “[t]here is simply no rational argument connecting” a potential state interest in “natural” procreation or other child-welfare-focused interests to the state’s marriage bans, which undermine rather than advance the state’s interests in the wellbeing of all its children. “The marriage laws place the plaintiffs and other gay and lesbian couples seeking to marry in Oregon at a disadvantage, and the laws do so without any rationally related government purpose.” Thus, they violate the Constitution’s guarantee of equal protection, were unconstitutional, and were enjoined.
Two of the Whitewood plaintiffs, Angela Gillem and Gail Lloyd Photo: ACLU
In the Whitewood case, Judge Jones applied “intermediate scrutiny” to the plaintiffs’ equal protection claim, a form of judicial review less deferential to the government; instead of asking whether the plaintiff had proven that the statute was not rationally related to a legitimate state purpose, intermediate scrutiny places the burden on the government to prove that a discriminatory law furthers not merely a legitimate purpose but one that counts as “important,” and that the law is not merely rationally but substantially related to such important purposes. Because the proper level of scrutiny in the Third Circuit was not settled, the judge examined the various factors the Supreme Court had deemed relevant, such as a history of discrimination, the irrelevance of sexual orientation to people’s ability to contribute to society, and a relative lack of political power. Interpreting the plaintiffs’ arguments not to be pressing for full “strict scrutiny” (as would be applied to racial discrimination), the court concluded that intermediate scrutiny was appropriate. Applying that scrutiny, Judge Jones held that the state’s asserted interests in “the promotion of procreation, child-rearing and the well-being of children, tradition, and economic protection of Pennsylvania businesses” may or may not satisfy rational basis review but were not sufficient to provide the “exceedingly persuasive justification” needed to uphold discriminatory laws reviewed under equal protection. Thus the marriage laws were unconstitutional.
In his fundamental right analysis, Judge Jones first concluded, like most other courts since the Windsor decision, that the Supreme Court’s 1972 ruling in Baker v. Nelson rejecting a challenge to Minnesota’s mixed-sex requirement for civil marriage was dispositive; the Court’s case law had evolved too much since then for that decision to answer the constitutional issues. He rejected the claim that the constitutional right to marry (protected by the Due Process Clause of the Fourteenth Amendment) was only a right to marry a person of a different sex, but rather followed Loving v. Virginia and joined the many courts concluding that it was improper to build in the identities of the plaintiffs into the description of the right, which should be seen instead as the right to marry the person of one’s choice. Pennsylvania’s law excluding same-sex couples from marriage infringed that rights and thus was unconstitutional for this reason as well, as was the state’s refusal to recognize marriages of same-sex couples validly entered in other jurisdictions. And, like Judge McShane in the Geiger case, Judge Jones let his ruling go into effect already, so same-sex couples in Pennsylvania will be able to marry, as Oregon couples already are, as soon as a three-day waiting period between receiving a marriage license and being able to “solemnize” and thus legally enter a marriage.
With this pair of rulings, we have now seen nineteen court rulings in a row since the Supreme Court’s decision in U.S. v. Windsor last June holding in favor of marriage equality, and eight states have had their exclusionary marriage laws held unconstitutional in that time. This unanimity of judicial opinion that the constitutional logic of equal protection, including in decisions like Windsor, establishes the unconstitutionality of bans on same-sex couples marrying bodes well for the chances of equality ultimately prevailing when the Supreme Court next revisits the issue.