Are Bans on Same-Sex Marriage Constitutional?
New Jersey Says Yes, But Massachusetts, In a Landmark Decision, Says No

This month, courts in both Massachusetts and New Jersey rendered the first-ever decisions in those states on whether such marriage can constitutionally be banned.

On November 5, in Lewis v. Harris, a superior court in New Jersey declined to strike down that state's ban on same-sex marriage. But on November 18, the Massachusetts Supreme Court in Goodridge v. Department of Public Health reached the opposite conclusion -- and held that state's same-sex marriage ban unconstitutional.

The two opinions are remarkable. Their content is almost indistinguishable. Yet they reach diametrically opposed results. And they are particularly significant, for this is a momentous time for same-sex marriage.

Recently, in Lawrence v. Texas, the Supreme Court struck down a statute criminalizing same-sex sodomy. In so doing, it employed logic that strongly suggests that statutes banning same-sex marriage are similarly unconstitutional. (In a prior column, I discussed why, exactly, the Lawrence opinion leads to this conclusion.)

At the same time, other countries -- including two Canadian provinces -- are giving increasing recognition to same-sex relationships.

However, there has been a perceptible backlash sparked by these developments. The Bush Administration, after the Lawrence decision, promised to restore the vision of marriage as a union between one man and one woman. As the President stated in a July press conference, "we ought to codify that one way or the other. And we've got lawyers looking at the best way to do that."

And already yesterday, the current Governor of Massachusetts stated his support for an amendment to the state Constitution to ban same-sex marriages (and thus moot the Goodridge decision).

Meanwhile, at least one poll suggests a public opinion backlash, too. According to the poll, after Lawrence, the percentage of Americans supporting gay marriage dropping from sixty percent to forty-eight percent. Two states recently amended their constitutions to ban same-sex marriage -- and no state before yesterday had either explicitly allowed same-sex marriage, or followed Vermont's lead in creating a marriage-like status for same-sex couples.

Some states and several municipalities do recognize same-sex relationships for limited purposes -- such as insurance benefits or inheritance rights, either through a "domestic partnership" or "reciprocal beneficiary" framework.

Some states also protect gays and lesbians as parents and partners in other ways. For instance, as the court in the New Jersey case pointed out, gays and lesbians in New Jersey have constitutionally protected parental rights; the right to adopt their partner's biological children; the right to be recognized as a "psychological parent" for purposes of being awarded visitation with a partner's child; the right to adopt a child to whom neither party is biologically related; the right to adopt a partner's surname; the right to be protected from domestic violence; the right to give medical decision-making power to a same-sex partner; and, possibly, the right to sign an enforceable pre-cohabitation agreement.

That brings us to the latest developments on same-sex marriage itself -- the New Jersey and Massachusetts cases, which symbolize the national rift over this issue.

In the New Jersey case, seven same-sex couples applied for marriage licenses but were denied. Four of the couples have children; all seven have been together for more than ten years. The couples sued the responsible officials, claiming the license denials violated the New Jersey Constitution. (The plaintiffs asserted no federal constitutional claim.)

On its face, New Jersey's marriage law does not expressly say that only opposite-sex couples can marry. Rather, it only contains the usual bans on bigamous or incestuous marriage. However, the judge in Lewis found ample evidence in the legislative history suggesting that the legislature intended that only opposite-sex couples would receive marriage licenses.

In general, the court pointed out, it's hard to believe a legislature that intended to legalize same-sex marriage would not do so explicitly, given the "gendered definition" of marriage throughout history. Moreover, the New Jersey code refers, several times, to a "married woman and a married man" or to "husband and wife," apparently assuming all marriages are opposite-sex. Similarly, the ban on incest prohibits a man from marrying his sister, but not his brother -- apparently assuming that such a marriage would otherwise be prohibited.

Having held that the legislature intended to prohibit same sex couples from marrying, the judge went on to consider whether such a ban violates the New Jersey constitution. In light of a dearth of relevant New Jersey precedent, the judge looked primarily to federal precedents, by way of comparison.

The court concluded that the right to marry is fundamental, but the right to marry someone of the same sex is not. It emphasized the importance of tradition to substantive due process analysis--and held that, according to tradition, the right to marry a same-sex partner is not "deeply rooted in our nation's history."

Surprisingly, the judge cited the Supreme Court's decision in Lawrence v. Texas only once, late in the opinion, and briefly. In fact, however, Lawrence was profoundly relevant, for Lawrence de-emphasized the very principle on which the judge relied: That before a fundamental right can be recognized, a "deeply rooted tradition" must be found.

Because the New Jersey court ignored Lawrence, its decision is ill-reasoned. Moreover, the court failed to pay sufficient heed to all the provisions of New Jersey law -- listed above -- that support same-sex couples as partners and parents.

Like the New Jersey case, the Massachusetts case began with seven couples in committed relationships, four of whom have children, trying to enter into a civil marriage in their home state.

The trial court ruled against the couples, claiming that the primary purpose of marriage, under Massachusetts' marriage laws, is procreation. The court concluded that the state thus could rationally distinguish between couples that are "theoretically . . . capable" of procreation and less likely to rely on "inherently more cumbersome" non-coital reproductive methods and other ones.

The problems with this ruling, of course, are legion: What about opposite-sex couples in which the woman is over childbearing age, or that are infertile? Could the state also "rationally" tell them they cannot marry? Certainly, it cannot. Indeed, as the Massachusetts Supreme Court later noted in its opinion: under state law, even those "who cannot stir from their deathbed may marry," and infertility is not a ground for divorce.

Why should the state care if a couple relies on easy or cumbersome reproductive methods? And why should reproduction for, say, a lesbian couple, be less likely at all? A couple made up of two women, both of whom might be fertile, has double the chances of procreating.

Fortunately, the Massachusetts' Supreme Court was wiser. It interpreted the state's marriage law to mean the "voluntary union of two persons as spouses, to the exclusion of all others"--invoking the interpretive principle that a statute of dubious constitutionality should be construed in such a way that it is constitutional.

The Massachusetts Supreme Court thus preserved the marriage law, but simply made it applicable to same-sex couples (subject to a stay of judgment for 180 days, to give the legislature an opportunity to "take such action as it may deem appropriate").

Unlike the New Jersey court, the Massachusetts court paid proper attention to Lawrence -- citing it for the proposition that the court's obligation is to "define the liberty of all, not to mandate our own moral code."

Moreover, unlike the New Jersey court, the Massachusetts court saw the relevance of how Massachusetts treated same-sex couples elsewhere under its law, especially when it came to parental rights. It saw how odd it would be for a state to promote (or at least enable) gay parenting, and at the same time, to deny those children the benefits, in terms of "family stability and economic security," of growing up in a marital home.

Like the New Jersey court, the Massachusetts court held that the Massachusetts legislature clearly did not intend for same-sex couples to be able to marry. But unlike the New Jersey court, the Massachusetts court held that this intention, as embodied by law, violated the state constitution's guarantees of equality and due process. Indeed, it found that the ban "works a deep and scarring hardship on a very real segment of the community for no rational reason."

Under these circumstances, equal protection analysis and due process analysis, under the Massachusetts Constitution, are similar.

Under both types of analysis, laws infringing a fundamental right will be given heightened scrutiny. (The approach taken under the Federal Constitution is similar. However, the court noted that the Massachusetts Constitution protects personal liberty even more zealously.) And, under both types of analysis, every law must pass the laxer standard of rational basis review.

The Massachusetts court held that the same-sex marriage ban failed even this laxer standard. To survive rational basis review, a statute must rationally relate to a legitimate state interest. The state offered three asserted reasons for denying same-sex couples the right to marry, but the court found none of them to be rational.

First, the state said it wanted to provide a "favorable setting for procreation," but the court rightly dismissed this reason, based on the arguments stated above with respect to infertile couples, who still can marry.

Second, the state said it wanted to ensure the optimal setting for child-rearing, defined by the Department of Public Health as a "two-parent family with one parents of each sex." But the court pointed out that there's no reason to think such a setting would indeed be optimal. After all, terrible, selfish opposite-sex couples are not precluded from getting married and having children. And good childrearing comes in many varieties.

Moreover, the court pointed out, preventing same-sex couples from marrying does not make it more likely that children will be raised by two parents of the opposite sex -- especially given Massachusetts' adoption laws.

Third, and finally, the state said it wanted to preserve scarce public and private resources. But the court rejected this reason, too. It held that the state could not rationally assume that same-sex couples were more financially independent (and thus less in need of public and private subsidies). Nor could it rationally exclude non-needy couples who happen to be of the same sex, while including non-needy couples of the opposite sex.

Allowing same-sex couples to marry, the Massachusetts court reasoned, need not have any deleterious effect on the institution of marriage. To the contrary, "That same-sex couples are willing to embrace marriage's solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit."

The Massachusetts court should be applauded for its humane, common sense opinion -- which rejected the makeweight reasons the state put forth to justify what is plainly discrimination. New Jersey's highest court may even reach the same result on appeal.