“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.
