The Baker v. Nelson Argument Against Marriage Equality Litigation

“It’s such a shame

It’s such a crime

To be so close

And yet so far

So overdue

Yet underpar

So out of time

It’s too sublime”

I've posted a draft of my article “Baker v. Nelson: Flotsam on the Tidal Wave of Windsor’s Wake” on the Social Science Research Network (linked here).  The article is forthcoming in the Indiana Journal of Law and Social Equality.  The federal courts that have considered whether the Supreme Court’s summary rejection (without opinion) of a same-sex couple’s constitutional challenges to Minnesota's exclusionary marriage laws in Baker v. Nelson in 1972 has been superseded by subsequent developments in constitutional doctrine have agreed that Baker is no longer dispositive.  Yet defenders of mixed-sex marriage laws continue to invoke Baker in desperate bids to keep lower courts from addressing same-sex couples’ constitutional justice claims.   These marriage exclusionists are wrong to rely on Baker, and the courts that have seen Baker swept to the side in the wake of the Supreme Court’s historic decision in United States v. Windsor in 2013 have done so properly.  Or so I argue in “Windsor’s Wake.”

Federal Courts Hold Oregon & Pennsylvania Marriage Exclusions Unconstitutional

 “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.

Federal Court Holds Texas Marriage Exclusion Unconstitutional

“Reminds me of the one that I love”

On February 26, 2014, federal district judge Orlando Garcia held that Texas’s state constitutional and statutory provisions excluding same-sex couples from marriage and refusing to recognize such couples validly married in other jurisdictions likely violate the U.S. Constitution.   The ruling in de Leon v. Perry granted the plaintiff couples’ motion for a preliminary injunction barring enforcement of the marriage exclusion and nonrecognition laws.  Same-sex couples are not marrying yet in the Lone Star State because the judge cautiously and expressly followed the U.S. Supreme Court’s lead by staying his order, putting the ruling on hold until after expected proceedings in the U.S. Court of Appeals for the Fifth Circuit are complete.  Judge Garcia’s order joins previous preliminary or final court rulings in favor of marriage equality by federal judges in Ohio, Utah, Oklahoma, Kentucky, Virginia, and Illinois, as well as state court rulings under the constitutions of New Jersey and New Mexico, all decided since the Supreme Court’s striking down a key part of the “Defense of Marriage Act” (DOMA) last June in United States v. Windsor.  Collectively, they are creating a well-trod path the U.S. Supreme Court could follow when it takes up the issue, sooner rather than later thanks to the welter of court decisions striking down state marriage bans and cases seeking to do likewise.

Plaintiffs Cleopatra de Leon and Nicole Dimetman, a couple since 2001, married in Massachusetts in 2009 because their home state Texas would not let them; it now refuses to recognize their marriage.  Plaintiffs Victor Holmes and Mark Phariss, who started dating in 1997, were denied a marriage license when they applied in Texas in 2013.  They sued in November 2013, and three months later they have now won an important victory.  The federal district court ruled on their motion for a preliminary injunction so that the state would not be able enforce its discriminatory marriage laws even before the court reaches a final judgment and may enter a permanent injunction.  (Since it stayed its decision, neither the plaintiffs nor any other same-sex couples will be getting married in Texas until after the appeals process is completed.)  Thus, rather than rule that in fact the state’s marriage laws are unconstitutional, the court had only to conclude that the plaintiffs had shown it likely that the laws are unconstitutional.  But the court’s reasoning in granting the motion makes it extremely unlikely that any further proceedings would make it change its mind about the laws’ permissibility.

After a quick tour of the “politically charged and controversial debate regarding the right to marry, and particularly, the right of same-sex couples to marry in the United States,” including the development of legal marriage for same-sex couples in numerous states and the Supreme Court’s invalidation of part of DOMA, the court turned to its analysis.  On the merits, Judge Garcia first concluded (as have a number of other courts recently) that the Supreme Court’s 1972 summary dismissal without opinion of a gay couple’s marriage lawsuit from Minnesota in Baker v. Nelson was no longer binding precedent.  He then turned to whether the plaintiffs had shown a likelihood that they would prevail on their equal protection claim, their fundamental right to marry claim, or both.

Under equal protection, the court followed several others that have decided recently challenges to marriage exclusions in not definitively resolving the doctrinal test to apply.  It considered the factors commonly taken as bearing on how suspicious courts should be of sexual orientation discrimination, that is, what level of scrutiny it should apply (“rational basis review,” a “heightened” or “intermediate scrutiny” less deferential to the government, or a very skeptical “strict scrutiny”).  It found, and this was hardly disputable, that  gay and lesbian people “have been subjected to a long history of discrimination.”  The court doesn’t definitively make a factual finding, but merely notes, that “Plaintiffs argue that, like other suspect classifications, sexual orientation has no ‘relation to [the] ability’ of a person ‘to perform or contribute to society.’”  Citing previous equal protection litigation, the court concluded that “Furthermore, the scientific consensus is that sexual orientation is an immutable characteristic.”  And fourth, the court reasoned that “the history of same-sex marriage bans across the nation illustrates the historical lack of political power possessed by gays and lesbians.”  Although these factors all pointed toward one of the less deferential forms of review and the court adjudged the plaintiff’s arguments “compelling,” Judge Garcia concluded that “it is not necessary to apply heightened scrutiny to Plaintiffs’ equal protection claim since Texas' ban on same-sex marriage fails even under the most deferential rational basis level of review.”

The court rejected the state’s claim that excluding same-sex couples from marriage was rationally related to ensuring that children would be raised by a father and mother or encouraging “stable family environments for responsible procreation.”  Besides pointing out the illogic and utter lack of evidence for such contentions, the court quoted and followed other recent courts on these point, such as those holding Utah’s and Oklahoma’s discriminatory marriage laws unconstitutional.  (Like many other marriage cases, it also quoted one of Justice Scalia’s dissents, the one from Lawrence v. Texas where he had reasonably suggested that “the encouragement of procreation” could not justify denying marriage to same-sex couples “since the sterile and elderly are allowed to marry.”)  Indeed, the court noted that excluding same-sex couples from marriage affirmatively harms the children they are raising or may have.  And, again like other courts, Judge Garcia rejected appeals to tradition.  For these reasons, the court concluded that Texas’s marriage exclusion was “unconstitutional because without a rational relationship to a legitimate governmental purpose, it denies same-sex couples the benefits, dignity and value of celebrating marriage and having their out-of-state marriage recognized.”  So, although the court technically only had to rule that the plaintiffs were likely to win on their constitutional claim, its actual reasoning appears to be that plaintiffs have established their claim, which leaves little or nothing for it to do next to render a final judgment in their favor.

Curiously, the court said that because plaintiffs showed they were likely to win on their equal protection claims it need not address their other constitutional claim, but then proceeded to address it anyway.  On the plaintiffs due process claim, the court reasoned that marriage is a fundamental right, that it is “the right to marry the partner of one’s choosing,” and thus that same-sex couples were not seeking a new putative “right to same-sex marriage” just as the Supreme Court did not frame the right at issue in Loving v. Virginia as a “right to interracial marriage.”  Because the state was completely denying this fundamental right to same-sex couples, it had to survive strict scrutiny.  But because its marriage exclusion was not even rationally related to a legitimate governmental interest, it necessarily was not narrowly tailored to a compelling governmental interest, the test of strict scrutiny.

Turning to Texas’s refusal to recognize marriages of same-sex couples from other jurisdictions, the court treated this as implicating a right to marriage recognition separate from the right to marry.  Finding Windsor to give inadequate guidance as to the proper level of scrutiny, the court found it sufficient to apply rational basis review because the state’s law could not survive even that deferential review.  It did not matter that Section 2 of DOMA, not ruled on in Windsor, purports to give states permission to refuse recognition of the marriages of same-sex couples, for “’Congress does not have the power to authorize the individual States to violate the Equal Protection Clause,’” the court concluded, quoting the Supreme Court’s 1971 decision in Graham v. Richardson.

Following the foregoing analyses on the merits, it took the court only a few pages to establish that the plaintiffs were entitled to a preliminary injunction.  They had established a likelihood of prevailing on the merits of their constitutional claims.  They were being irreparably injured by being denied the right to marry or recognition of their marriage, resulting in the denial of countless rights and obligations.  The balance of equities favored the plaintiffs over the state, and it would be in the public interest to issue the injunction, since the laws were unconstitutional (or at least likely unconstitutional) and since the court was not yet changing the status quo, instead staying its own injunction until after appeals are finished.

There was little new in this next step on the path to marriage equality across the nation.  And the court’s opinion did not contain the rhetorical flourishes seen in some other recent marriage decisions.  That in itself may be an encouraging sign, for it may reflect a shift from viewing the establishment of same-sex couples’ marriage rights as historically momentous to viewing it as a matter of course, merely the clear requirement of our nation’s constitutional commitment to equality.  In all likelihood, it is both.