Latimer on Law

Gay Marriage Redux: A Hard Case And Bad Law

                                                     Gay Marriage Redux:  A Hard Case And Bad Law

                                                            "A hard case. But hard cases make bad law." 
                                     1854 G. Hayes in W. S. Holdsworth Hist. English Law (1926) IX. 423

             Gay marriage is back in the headlines with Mass. A.G. Coakley's filing suit against the United States to challenge the federal Defense of Marriage Act (DOMA).  It's just what we need when President Obama is trying to create unity on the difficult economic and political issues surrounding our economic recovery and disengagement from Iraq to be bringing such a highly inflammatory and divisive cultural "values" issue back onto the national stage.  This is going to be, as Arte Johnson's German soldier would say -"very interesting."

            My prior posts on this topic were critical of the Massachusetts Supreme Judicial Court's 2003 Goodridge decision, holding that same-sex marriage was required under the Massachusetts Declaration of Rights.  I stated that Goodridge was poorly reasoned under the principles of equal protection and due process, where all economic rights enjoyed by heterosexual married couples, in taxation, inheritance, property ownership, insurance coverage et cetera could be required for same sex couples under a civil union or domestic partnership statute as the Commonwealth had argued.

            The SJC's extreme holding in Goodridge, that only a fundamental redefinition of a basic social and cultural institution like marriage would suffice under our state Constitution, was both unnecessary and inflammatory.  It was just pouring  gasoline on the fire of an already divisive politics created by the GOP on so-called "values" issues, a politics that had proven very successful for them over the prior two decades and would prove successful once more, disastrously for us liberals,  in 2004.

           I stated that by such a drastic and needless redefinition of marriage, the SJC had gone way beyond the requirements of equal protection and due process, and had instead engaged in rank judicial activism in service of social engineering.  This is clearly so, where the Court's basic rebuttal to the Commonwealth's argument that a civil union law would suffice to create economic equality was that only same-sex marriage could remove the "stigma" of homosexuality from gay households.

           That reasoning was absurd on its face, as if anything four out of seven state appellate judges ruled, over three strong dissents, could just, presto, reverse  the deeply ingrained and often religiously based antipathy many Americans have for homosexual sex -an antipathy that is taught by many conservative churches and was reflected in a plethora of state laws which condemned homosexual "sodomy" as a crime.  I don't defend such laws or theology, or the moralistic animus behind them, much to the contrary, but I do defend the right of anyone, as a free citizen,  to harbor such antipathy toward homosexual practices under our determinedly secular Bill of Rights which prohibits the establishment of religion while guaranteeing the  free exercise of religion to everyone -even religious bigots.

           Further, it is none of the Court's business to set about trying to change cultural attitudes through its constitutional jurisprudence.  In Goodridge, that has proven to be  not only offensive to  the religious beliefs of many law abiding citizens but is foolishly divisive and ineffectual as well.  We need only look at the 2004 national election where Bush and Cheney got a free pass on the war, on the economy and on all the other really important national issues because Ms. Goodridge and her friends made damned sure that gay marriage would be on the ballot in almost half the states. That only served to get the religious right out in droves, in church on Sunday and at the polling place on Tuesday, to re-elect Bush over that "liberal" Democrat from "ultra-liberal" Massachusetts, John Kerry.

           Because Goodridge was decided solely under the Massachusetts Declaration of Rights, and not the federal Bill of Rights, it was not subject to any review in the federal courts.  Nor is any state statute enacted to recognize same-sex marriage or civil unions subject to federal court review.   Now however, six years after Goodridge, Attorney General Coakley has filed suit in the U. S. District Court in Boston challenging DOMA's provisions that  the federal government does not have to recognize same-sex marriages and that other states do not have to recognize same-sex marriage under the Full Faith and Credit Clause of the United States Consitution.

            One huge problem for Ms. Coakley, and other proponents of both gay marriage and gay rights in general, is that Kerry lost to George Bush in 2004, giving Bush two culturally conservative appointments to the Supreme Court, Chief Justice John Roberts and Justice Samuel Alito and they, along with Justice Thomas and Justice Scalia, are not about to find that same-sex marriage is required under the Constitution of the United States.  Nor is Justice Anthony Kennedy, the Court's moderate conservative "swing vote," likely to side with the Commonwealth on this issue.

           Justice Kennedy wrote the majority opinion in Lawrence v. Texas, which overturned a state statute that criminalized homosexual conduct by consenting adults in private.  That was based on the principle of substantive due process, where the Court found that the Texas statute unreasonably interfered with our Constitutional rights to liberty and privacy. 

          Justice Kennedy essentially reasoned that what consenting adults do in the privacy of their bedroom is none of the states' dirty business.  That, however,  is a far cry from saying that the United States Constitution requires the states to recognize such relationships as being equal to heterosexual marriage, and Kennedy so indicated in Lawrence, stating  that the Texas statute sought "to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being puniched as criminals."  539 U.S. 558, 567 (2003), emphasis added.   And he made this point more explicit, saying:  "The present case. . . does not involve whether the government must give formal recognition to any relationships that homosexual persons seek to enter."  Id. at 578.

              It is very significant that Justice Kennedy, writing for himself and the four liberals on the Court, declined to advance any equal protection analysis in Lawrence, as between gays and heterosexuals, holding only that under the principle of substantive due process:  "The liberty protected by the Constitution allows homosexual persons the right to make that choice," i.e. to practice homosexuality in private.  Id. at 575.  He did express some concern for "stigma" but, appropriately, that was the stigma that attaches to a criminal conviction for conduct that is not and should not be in itself criminal, and not for any social, cultural or religious stigma that may attach to homosexual conduct itself.    

             Justice Kennedy's majority ruling expressly declined to adopt an equal protection argument advanced by Justice Sandra Day O'Connor in a concurring opinion, but thanks  in large measure to the Massachusetts Goodridge ruling, O'Connor was replaced on the Court by the culturally conservative  Chief Justice John Roberts, later joined by the equally conservative  Justice Alito.  Yes, "liberal" Justice David Souter will be replaced by another liberal, most likely Judge Sotomayor, but the basic balance on the Court remains the same, four activist "conservative" justices, four moderate liberals and one moderate conservative, Justice Kennedy who will be at least the swing vote on the issue of gay marriage. 

           Also, given the fact that three of the liberals still on the Court joined Kennedy's opinion declining to base the ruling on Justice O'Connor's equal protection argument, it isn't a lock that they will find same-sex marriage to be required under the Fourteenth Amendment either.  That majority opinion, after all, expressly differentiated between the government's criminalization of private sexual activity and the question of "whether the government must give formal recognition to any relationships that homosexual persons seek to enter."

             Attorney General Coakley is therefore very unlikely to get a majority on the Supreme Court to rule that the U.S. Constitution requires recognition of same-sex marriage under the principle of equal protection.  That's at least a  5-4 slam dunk for DOMA thanks in part to Ms. Goodridge and the Massachusetts SJC.

            But wait!  Ms. Coakley's challenge to DOMA is also based  on the principle of "states rights," and she is correct here in saying that the definition of marriage has traditionally been wholly within the purview of the states and not a matter of federal law.  But that's a two edged sword at best.

            It is, on its face, very risky business for anyone seeking to advance the cause of civil rights in any context to do so based on the principle of "states rights."  That is the principle that supported almost 100 years of Jim Crow in the South until Brown v. Board of Education was decided in 1954, and since the "Reagan Revolution" in 1980 it has been advanced as a rationale for upholding state laws based on moralistic principles that impinge on private sexual conduct.   Sarah Palin's inept criticism of Roe v. Wade in her interview with Katy Couric, for example, was based primarily on the states rights argument.  It is also the principle on which the religious right bases its arguments for school prayer and teaching creationism where education, like marriage, is a matter that has been traditionally reserved to the states.

          Moreover, if defining marriage is a matter of states rights for purposes of binding the federal government, then the question whether federal law must recognize same-sex marriage for taxation purposes, or survivor benefits, will result in unequal treatment among same-sex couples depending solely on what state they live in.  If Massachusetts and a few other states have the final word to define marriage as including same-sex couples, whether by legislation or under state constitutional law, other states have the equal right to define marriage as being between a man and a woman only.  

           The SJC in Goodridge played an activist role in determining for the Commonwealth the underlying policy that informs the marriage laws.  But the Kansas courts or legislature, say, can do the same thing to define marriage as between a man and a woman only, based on very different public policy concerns, and it is public policy that determines what benefits, if any, should be provided by law to married couples.  It is also the nature of the public policy advanced by any state law that ultimately determines its constitutionality under the principle of substantive due process as, for example, in Lawrence v. Texas where the majority held that Texas had no valid policy interest in preventing consensual homosexual conduct in private. 

           If Kansas law provides certain benefits to married heterosexuals based on it policy-driven definition of marriage, it will not be difficult for the Supreme Court to rule that it should not have to provide the same benefits to a same-sex couple who are "married" under Massachusetts law in furtherance of different public policy concerns, which is what DOMA in fact provides.  After all, Kansas has the sole right to determine what constitutes a marriage, as Atty. General Coakley contends on behalf of Massachusetts, and therefore it should not be compelled to recognize a "marriage" which does not conform to its definition of marriage and which is contrary to its own public policy for purposes of providing economic or legal benefits not available to single persons.

            The conservative majority on the Supreme Court might also find that under DOMA the federal government is not interfering with any state's right to define what constitutes a marriage under its own laws as Ms. Coakley contends.  It is, instead, only deciding what it will recognize as a marriage for purposes of its own public policy assumptions when it provides economic and legal benefits to married couples that are not available to singles. 

             Thus, ultimately, the question will have to return to  equal protection, but under the Fourteenth Amendment and not just the Massachusetts Declaration of Rights as in Goodridge.  Therefore, Atty. General Coakley will have to argue that same-sex marriage must be recognized as a fundamental right under the United States Constitution because gay marriage is not materially different from heterosexual marriage for purposes of state recognition, and that is an argument she is not very likely to win before the present Court.  As Barney Frank recently observed, now is not a good time to bring such issues before the federal courts with a homophobe  like Justice Antonin Scalia sitting as part of a conservative majority on the Supreme Court.

             As I said at the outset, it is going to be "very interesting" to see these issues played out in the federal courts over the next year or two, as in the purported "Chinese curse" that says "may you live in intereresting times."  This will be a hard case with difficult issues  for everyone on either side of the ideological divide to get around, and it will therefore inevitably result in bad law, at least for one side or the other if not both sides.

            The optimal result for everyone would be a ruling like the one suggested by the Commonwealth in Goodridge, holding that same-sex couples in civil uinions are entitled to equal benefits as married heterosexuals. That would be a sensible ruling that does not require any wholesale redefinition of a basic social institution like marriage or a direct affront to the sincere religious beliefs of many Americans as did the Goodridge ruling.

             It's just too damned bad for those of us who really care about civil rights across the board, involving real political and economic issues as opposed to addressing cultural "values" and social "stigmas," that the final word is going to be given by the 5-4 conservative block on the Supreme Court, thanks largely to Goodridge and the backlash it created in 2004, instead of the 7-3 liberal majority a President Kerry could have established.  Elections do make a difference, and this is a clear example of a major difference between the Democratic Party and the Republicans.