April 21, 2015

LGBT Legal Cases Marriage equality Marriage Equality Trials

The Supreme Court is set to hear oral arguments next week in four cases from the Sixth Circuit Court of Appeals challenging state same-sex marriage bans. The Court will confront cases from Ohio, Michigan, Kentucky, and Tennessee.

First, the Court has divided the argument time into two distinct questions: the first is whether states must license marriages between same-sex couples, and the second is whether states must recognize legally-performed out-of-state same-sex marriages. The Court has allowed 90 minutes for the first question and 60 minutes for the second question. As we’ve reported, the Court has allowed two advocates to argue for each side, and the Solicitor General will also argue in favor of same-sex couples on the first question.

Mary Bonauto, one of the key architects and legal thinkers of the same-sex marriage movement, will argue for the same-sex couples on the first question. Bonauto works for Gay and Lesbian Advocates and Defenders (GLAD), a LGBT legal organization that has won important state marriage cases, and who won a challenge to the federal Defense of Marriage Act (DOMA) in the First Circuit Court of Appeals.

Also for the plaintiffs, Douglas Hallward-Driemeier of Ropes & Gray will argue the second question. He is a long-time advocate before the Supreme Court, with a great deal of experience.

For the states, John Bursch, Michigan’s former solicitor general, will argue the first question. Joseph Whalen, an assistant solicitor general for Tennessee, will argue the second question.

You can read all the briefs here, thanks to Equality Case Files.

Equal Protection

The one area where all the briefs filed by the challengers, the same-sex couples and the Solicitor General who sides with them on the first question, agree is on the question of equal protection.

As the United States’ amicus brief argues, “The marriage bans challenged in these cases impermissibly exclude lesbian and gay couples from the rights, responsibilities, and status of civil marriage. These facially discriminatory laws impose concrete harms on same-sex couples and send the inescapable message that same-sex couples and their children are second-class families, unworthy of the recognition and benefits that opposite-sex couples take for granted. The bans cannot be reconciled with the fundamental constitutional guarantee of “equal protection of the laws,” U.S. Const. Amend. XIV.”

The same-sex couples agree. As the Michigan couple’s brief states, “The marriage bans violate the Equal Protection Clause under any standard of scrutiny, as they are not rationally related to the achievement of any legitimate governmental purpose.”

The couples and the United States also argue that laws discriminating on the basis of sexual orientation warrant a heightened level of judicial scrutiny. The Court looks at certain laws closer if they have a negative effect on a minority group. Although the Court hasn’t added any new classes of people to the list since the 1970s, a key argument for LGBT rights advocates is that the Court should include gays and lesbians because they’re a distinct minority with an immutable characteristic and they’ve faced a long history of discrimination. Changing the standard of review for laws affecting gays and lesbians would mean that instead of a presumption of constitutionality, those laws would be presumed to be unconstitutional unless the state has a substantial justification for the laws.

The couples go further though, arguing that the bans violate equal protection on the basis of sex, because a man can only marry a woman and a woman can only marry a man. They point out that the same-sex marriage bans explicitly reference gender in the actual text of the laws.

But none of the couples say explicitly that the laws would pass under a lower level of scrutiny. Instead, they urge the Court to strike the bans even if the Justices determine that the laws only require a rational basis.

This is where the couples make similar arguments. Each brief takes on the standard arguments in favor of the bans: procreation, caution, federalism.

The same-sex couples argue that the social science points to the fact that same-sex couples make good parents, and further, the idea of marriage as simply about procreation is irrational. Elderly people can marry, as well as infertile people or even couples who plan to never have children though they could. The couples seek to distinguish their vision of marriage from the states’ purported vision. While the states argued in the lower courts that marriage is a government program created to deter people from abandoning their children, the couples describe marriage this way: “Marriage is a commitment like no other in society. It announces to the world a union that society understands. It grounds couples. It is a vow, recognized by the State, to stay together when times are hard. It provides a social safety net of reciprocal responsibility for the less affluent of two spouses – security for homemakers and stay-at-home parents – in the event of death or divorce.

Marriage brings stability to families. It tells children that they have, and will always have, two parents. For children of same-sex parents, allowing their parents to marry dispels the notion that their families are inferior, “second tier.” Marriage brings dignity to adults and children alike.”

Because marriage is good for children whether it’s an opposite-sex or same-sex marriage, the couples argue, procreation is not a valid reason to discriminate against same-sex couples.

One last argument is made on the question of equal protection. The Court has a line of cases going back to at least the 1970s that suggest, to quote from one of the early cases, “[I]f the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare… desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

This line of cases refers to the so-called “animus” argument: that, once it’s decided that a law targeting an unpopular minority lacks any relation to a legitimate government interest, the law is considered to be based on “impermissible animus” – hostility to the minority group. The 1996 Supreme Court case Romer v. Evans used this line of cases to strike down an amendment to Colorado’s constitution that would have barred cities and localities from adopting anti-discrimination measures for gay and bisexual people. The Court in that case held that the amendment was “too narrow and too broad” because it targeted a single, specific group for treatment that wiped out all protections for them on any level.

The couples argue that the lack of a true rational basis for the marriage bans here allows the Court to infer that the bans were enacted based only on impermissible animus. The history of the bans also point in that direction: before the late 1990s there were no same-sex marriage bans clearly embedded in state laws or constitutions. Many of the state constitutional amendments were only enacted in 2004 and 2006. And aside from that, the couples argue, the contradictions in each state make it clear that the bans weren’t passed for a valid reason. Some of the states facing challenges before the Court allow same-sex couples to adopt, some provide other benefits to the children of same-sex as well as opposite-sex couples. So the bans effectively hurt those children by barring their parents from marrying under the rationale that marriage is for the protection of biological children, while states at the same time are protecting adopted children.

The states take issue with all of these arguments. They suggest the social science isn’t specific on the question of raising children, and that same-sex marriage is so “new” that there’s no way to judge the effects of it yet. Kentucky argues that its rational basis for the ban is “procreation and promotion of a stable birth rate.” The state also argues that homosexuality is not an “immutable” characteristic (in other words, that it can change), that while gays and lesbians have faced discrimination, the marriage bans are separate from that history, and that the bans don’t discriminate on the basis of sexual orientation in the first place. They argue that the bans don’t discriminate on the basis of gender because they don’t cause harm to a specific gender: neither men nor women can marry someone of the same sex.

While the other states’ arguments are less harsh, they’re still the standard ones we’ve seen in every marriage case so far. The other states mainly focus on federalism and the “democratic process” arguments that the Sixth Circuit decision relied on. Essentially, the same argument that Virginia made in Loving v. Virginia: that states should have the right to decide who may or may not marry and which marriages a state should recognize. They argue states are sovereign and marriage is one of the decisions that shouldn’t be interfered with by the federal government. They partially rely on United States v. Windsor, which struck down Section 3 of the federal Defense of Marriage Act (DOMA), for their argument. They suggest that Windsor allows states to make their own decisions on marriage, and that the only issue in that case was the federal government’s unusual intrusion into the states’ prerogatives on marriage.

The couples, arguing on the Windsor point, note that the Court repeatedly refers to marriage laws respecting constitutional rights and citing Loving v. Virginia.

Due Process

The briefs also argue over the concept of due process. Under that clause, when a right is considered “fundamental”, it’s shielded from government intrusion and disrespect.

The Court itself has held that the right to marry is “fundamental” and that it’s one of the most basic civil rights.

The dispute is over which right is being discussed. The couples point to the language in Loving v. Virginia as well as Zablocki v. Redhail to argue that marriage is fundamental. One of the characteristics of a fundamental right is that it’s “deeply rooted” in the country’s history and traditions, and the couples suggest that surely marriage fits that description. And the couples point out that the Court hasn’t simply let marriage bans stand based on tradition or federalism: the Court has struck down bans on interracial marriage, on marriages involving someone who hasn’t paid child support from a previous marriage, along with other cases. Why then wouldn’t the Court want to strike down the bans against same-sex marriage?

The states for their part argue that the “fundamental” aspect of marriage relates solely to procreation: marriage is fundamental to survival of the human race. Without procreation, marriage isn’t fundamental. And further, the states argue that the “right to marry” isn’t a specific enough description of the right at issue. They suggest the proper way to view the dispute is whether there’s a fundamental right to “same-sex marriage” itself, and they point out that it has only existed in the United States since 2004. Without getting too deep into the weeds, this dispute touches on a longstanding argument between Justice Scalia and a majority of the Justices. Justice Scalia believes that a right is fundamental only at its most specific level while a majority of the Court has said fundamental rights are a bit more broad than that.

The Court seems most likely to address the equal protection argument, and avoid the question of whether marriage between couples of the same sex is fundamental. That is, at least based on the Court’s gay rights jurisprudence so far. The Justices have relied on the “animus” argument in many of their cases, and they’ve relied on the dignity and worth of individuals, whether gay or straight. That said, the Court could decide in the end that the due process argument should be addressed.

The Kentucky couples do provide one alternative. As SCOTUSBlog pointed out: “Even if the Court were now to switch and treat access to marriage as something less than a “fundamental right,” the Kentucky brief argued that the institution holds such a “crucial place in American society” that it “would still require courts to closely examine laws categorically excluding same-sex couples from that institution.”

That brief went on to assert: “Marriage is a foundational means in our society of seeking personal fulfillment and acquiring community esteem. Excluding a class of people from that institution, therefore, can hardly be considered rational unless it furthers some substantial goal of the state.”

That line of argument could make it possible for the Court to rule in favor of same-sex marriage without having to spell out — for the first time — a constitutional test for judging anti-gay laws or other government action. Indeed, the Court has made a series of gay rights decisions in recent years without settling on a specific test. It did not do so, for example, in its most recent ruling in a major gay rights case — the 2013 decision in United States v. Windsor, striking down a key part of a federal law that denied federal marital benefits to same-sex couples who already were married under state laws allowing such unions.”

This idea, that restricting only same-sex couples from such an important right, might seem more acceptable to Justice Kennedy, who tends to blur the lines between equal protection and due process in his decisions.

We’ll know more after the arguments next Tuesday, April 28.

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