The State of the Nation on Same-Sex Marriage: Key Court Losses Mean It May Be Restricted to Massachusetts For Now

This July, the highest courts in New York and in Washington State each ruled that it was constitutional to ban same-sex marriage. In each case, a lower court had ruled that the State's existing ban on same-sex marriage violated the state's constitution. And in each case, the state's highest court closed the door on judicially-ordered same-sex marriage, but left open the possibility for legislative authorization of the practice. And in Georgia, the state's highest court reinstated a constitutional amendment banning both same-sex marriage and civil unions.

What about possible challenges based, instead, on the U.S. Constitution's due process and equal protection guarantees? It turns out that, also in July, a federal appellate court rejected just such a challenge in Citizens for Equal Protection v. Bruning. The now-reinstated provision is an amendment to the Nebraska constitution, adopted by voters in 2000, that bans not only same-sex marriage, but also any form of legal recognition for same-sex couples.

These rulings are ominous for supporters of same-sex marriage, since virtually every other state has already foreclosed the possibility of same-sex marriage. The bottom line: Massachusetts is the sole state in the union that permits it, and may remain so for a long while.

In this column, I'll discuss the national legal landscape regarding same-sex marriage, then focus in on the two recent decisions in New York and Washington State.

The National Landscape: Why These New Rulings Matter

A decade ago, there were virtually no laws about same-sex marriage in the United States - none authorizing it, and none prohibiting it. But then Hawaii's highest court issued a ruling suggesting it might strike down a same-sex marriage ban as in conflict with the State's Constitution. An amendment to Hawaii's constitution prevented the legalization of same-sex marriage. But other states became nervous about legalization nonetheless - and acted on their fears by enacting so-called "mini-DOMAs," statutes modeled after the federal Defense of Marriage Act, which define marriage to include only heterosexual unions. (To date, more than forty states have adopted such laws.)

In 2003, the Massachusetts Supreme Judicial Court issued its 2003 decision, Goodridge v. Department of Public Health, authorizing same-sex marriage (I have written at length about the case in a previous column.)

In response to Hawaii - and, even more so, to Goodridge -- states started amending their own state constitutions - as Hawaii had, and Massachusetts had not - in order to prohibit their courts from declaring same-sex marriage bans unconstitutional, and to prohibit their legislatures from voluntarily authorizing gays and lesbians to marry.

Currently, roughly twenty states have adopted such amendments and eight or nine more will put such measures on the ballot this November. Indeed, even in Massachusetts, where thousands of same-sex couples have already married, the legislature will vote soon on whether to put a constitutional amendment to prohibit same-sex marriage before the voters.

Some states have both a mini-DOMA and a constitutional amendment. Only five states (other than Massachusetts) have neither: New Jersey, New Mexico, New York, Rhode Island, and Wisconsin. But the Wisconsin Supreme Court has hinted that the state's laws do not permit same-sex marriage, and a constitutional amendment to ban such marriages is pending there this fall. And as noted above, New York's highest court made it clear that it does not read the state constitution to require same-sex marriage - but left the way open for a state statute to do so.

That leaves New Jersey, New Mexico, and Rhode Island. The New Jersey Supreme Court will soon decide a case about whether the state constitution requires that same-sex couples be permitted to marry - as I discussed in an earlier column with Linda McClain. New Mexico's Senate recently rejected an anti-same-sex-marriage constitutional amendment, and Rhode Island has no immediate activity on the issue. These two states are the only ones likely to survive 2006 without a definitive ruling on the validity of same-sex marriage.

Hernandez v. Robles: The New York Case

With the state of same-sex marriage precarious at best, it's worth taking a close look at the two recent decisions rejecting state-constitutional challenges to laws forbidding same-sex marriage.

In Hernandez v. Robles, New York's highest court, the Court of Appeals, ruled, 4-2, against the challengers -- same-sex couples who had tried unsuccessfully to obtain marriages licenses. Faced with century-old marriage laws, which use sex-specific terminology such as husband/wife and bride/groom, the challengers' best argument was the constitutional claim: The denial of marriage to one class of citizens violated the guarantee of due process and equal protection of law for all. But even on this claim, they lost.

First, the New York Court of Appeals ruled that the lowest standard of judicial scrutiny applied in the case. Under the U.S. Constitution and most state constitutions, heightened scrutiny applies when a fundamental right or a "suspect" class - defined by factors such as race or gender - is at issue. But the Court of Appeals held that there is no fundamental right to marry a person of the same-sex, and that sexual orientation is not a "suspect" class. Therefore, the lowest level of scrutiny applied: The law was valid as long as it had some "rational basis."

Under "rational basis" review, a court must only find that legislature had a legitimate purpose and could rationally have believed that the law in question would further it. (A stricter version of this test asks about a legislature's real reasons for adopting a particular law, but the New York court, applying the more lenient version, asked only for conceivable reasons.)

The New York Court of Appeals found a rational basis insofar as it thought that the legislature could believe that it is "more important to promote stability, and avoid instability, in opposite-sex than in same-sex relationships" Since same-sex couples who become parents never do so "as a result of accident or impulse," the Court reasoned, they are more likely to be stable without the benefit of a government-sponsored status.

Curiously, this point reverses the usual stereotype of same-sex relationships as fleeting and merely sexual. It ignores some conservatives' call for same-sex marriage precisely as a way to stabilize gay relationships. And it also ignores the point that same-sex couples' children, even if not impulsively or accidentally brought into the family, still would benefit greatly from the stability marriage allows. (Significantly, gay people can legally adopt children in New York.)

Even less convincing was the court's claim that there was another "rational basis" here, in that the legislature could conceivably have decided that it is better for children to grow up with a mother and a father, all other things being equal, for it is a "common-sense premise that children will do best with a mother and father in the home."

Here, the court failed to consult statistics for what is plainly an empirical question. And in any case, the relevance of its claim isn't clear. If the point is simply that common sense suggests that two parents are better than one, then why not stabilize gay relationships, too, so that they too can be two-parent households?

Or if the point is that common sense suggests that heterosexual parents are better than gay parents, so what? Putting aside the fact that this is a vicious and false stereotype, as long as gay adoption is legal, then the question isn't which set of parents is better, but which existing sets of parents should have the right to marry.

Thus, the Court held that the New York Constitution's equal protection clause does not invalidate a same-sex marriage ban. It also expressed its "hope that the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result - as many undoubtedly will be - will respect it as people in a democratic state should respect choices democratically made."

Chief Judge Judith Kaye, in dissent, made a strong case for heightened scrutiny, arguing that the right to marry, which is fundamental, encompasses the right to marry a person of one's own sex, and contending that gay people - long the subject of unfair prejudice - should be deemed a "suspect class."

And even under a lower standard of review, Judge Kaye saw no "rational basis" for the ban on same-sex marriage. She asked: How does a ban on same-sex marriage promote stability in heterosexual households? And isn't a preference for mother/father households illegitimate under federal Supreme Court precedent? After all, the Court's decisions in Romer v. Evans and Lawrence v. Texas, which struck down statutes disadvantaging gays under the lowest standard of review, make clear that a governmental entity may not act out of animus or moral disapproval toward a particular group - and isn't privileging opposite-sex couples downgrading same-sex ones?

Future generations, Judge Kaye wisely cautioned, will look back on the New York Court of Appeals' "decision as an unfortunate misstep."

Andersen v. Kings County: The Washington Case

Two weeks after the New York Court of Appeals issued its ruling, the Washington Supreme Court ruled similarly in Andersen v. Kings County. In a 5-4 ruling, which garnered six different opinions, the Court - despite its left-leaning reputation -- upheld the state's law prohibiting same-sex marriage as consistent with Washington State's Constitution.

The New York and Washington State cases differed on two technical issues. First, in New York, the ban on same-sex marriage came from an interpretation of an apparently neutral marriage law, whereas in Washington, the ban on same-sex marriage was expressly adopted by the legislature. Second, in New York, the state constitution's due process and equal protection clauses were invoked; in Washington, the state constitution's privileges and immunities and due process clauses were invoked.

Still, the core question in both cases was the same: Does the state constitution permit marriage to be restricted to opposite-sex couples?

The Washington State court, like the New York Court, applied the "highly deferential" rational basis test, holding that there was neither a fundamental right nor a suspect classification involved. And the Washington State majority, like New York's, hung its hat on the purported welfare of children -- claiming that "limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children's biological parents."

As in New York, there were dissenters. And the dissenters, like Justice Kaye, questioned the logic of the majority's reasoning - asking how "giving same-sex couples the same right that opposite-sex couples enjoy injures the state's interest in procreation and healthy child rearing?"

Finally, as in the New York case, the Washington State majority's ruling explicitly noted that it did nothing to foreclose a voluntary change in the law by the legislature or by a voter referendum.

Should Same-Sex Marriage Supporters Switch Strategies?

What does this mean for same-sex marriage supporters?

First, it means that Massachusetts is even more important. With that state now likely to remain, for some time, the only one where same-sex marriage is legal, federal and state rulings relating to other states' recognition of Massachusetts marriages now become even more crucial. (I've discussed issues of interstate recognition in an earlier column.)

Second, it means that, for the time being, it may be more pragmatic and effective to litigate for secure, discrete protections for gay and lesbian couples nationwide - such as parenting and adoption rights, inheritance rights, and health care decisionmaking rights, to name just a few - than to litigate for the right to marry.

Third, and finally, it means that lobbying and speaking out may come to the fore now, and litigation may fade into the background - especially if the New York and Washington State legislatures take their respective highest courts up on the invitation to debate this issue.