Marriage battle lines more clearly drawn

The U.S. Supreme Court's stay of the 4th U.S. Circuit Court of Appeals' recent 2-1 decision holding that Virginia's limiting marriage to opposite-sex couples violates the 14th Amendment to the U.S. Constitution (McQuigg v. Bostic, 14A196) follows on the heels of a similar U.S. Supreme Court stay in the Utah case, when the district court refused to stay its ruling overturning Utah's opposite-sex only marriage law (Kitchen v. Herbert, 13A687). Such stays are issued to preserve the status quo while the merits of the dispute are appealed, and in this case, if the court ultimately decides that states may constitutionally limit marriage to opposite sex couples, will prevent it from voiding same-sex marriages entered into while the case is on appeal.

The danger in precipitously issuing marriage licenses to same-sex couples was manifest in the 4,000 same-sex marriages that were voided by the California Supreme Court, after former San Francisco Mayor (now Lieutenant Gov.) Gavin Newsom illegally ordered San Francisco's Clerk to issue marriage licenses to same-sex couples. Lockyer v. City and County of San Francisco, 33 Cal. 4th 1005 (2004). And although Gov. Jerry Brown has now ordered all of California's county clerks to issue marriage licenses to same-sex couples - the result of his and California Attorney General Kamala Harris' preventing the U.S. Supreme Court from addressing same-sex marriage on the merits by not defending Proposition 8 (Hollingsworth v. Perry,133 S.Ct. 2652 (2013)) - if the U.S. Supreme Court eventually rules that state laws limiting marriage to opposite-sex couples do not violate the U.S. Constitution, those California same-sex marriages, based in federal law only on a trial court's default judgment which has no binding effect in any other court, may not be free from legal challenge.

In the 4th Circuit's decision (Bostic v. Schaefer, 14-1167, 14-1169 and 14-1173), the battle lines are more clearly drawn, as the constitutional question heads toward the U.S. Supreme Court. The majority believes that same-sex marriage has always been included in the definition of "marriage," as that term has been used by the Supreme Court in its prior decisions establishing that the right to "marriage" is a "fundamental right." The dissent believes that those prior Supreme Court decisions do not contemplate same-sex marriage as a "marriage." Thus, if there is a "fundamental right" to a same-sex marriage, the state's law is subjected to "strict scrutiny" and the state loses; if it is not, the state's law is tested under the "rational basis test," and it passes.

Although it recognizes that the concept of a same-sex marriage is relatively new, and that in Washington v. Glucksberg, 521 U.S. 702 (1997), the Supreme Court required that for a right to be "fundamental," it must be "deeply rooted in this Nation's history and tradition," the 4th Circuit majority concluded that "Glucksberg's analysis is inapplicable here," because "[o]ver the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing social norms." The majority then cites Loving v. Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78 - cases finding that mixed-race couples, people who owe child support, and prisoners had a "fundamental right" to marry persons of the opposite sex. The majority believes that those cases "speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right," and finds that the "[t]he Supreme Court's unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of 'freedom of choice' [citing Zablocki], that 'resides with the individual' [citing Loving]." The majority then concludes that Lawrence v. Texas, 539 U.S. 558 (2003), which held that private homosexual conduct between consenting adults could not be criminalized, and United States v. Windsor, 133 S. Ct. 2675 (2013), which held Section 3 of the federal Defense of Marriage Act unconstitutional, "indicate that the choices that individuals make in the context of same-sex relationships enjoy the same constitutional protection as choices accompanying opposite-sex relationships."

The majority did not address the fact that Lawrence expressly states that "[this case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter," or that the Windsor court's reference to "marriage" was to a same-sex marriage legally recognized under state law, as opposed to a same-sex relationship that wanted to be recognized as a marriage under state law. Thus, the finding in Windsor that the lawfully married same-sex couple was entitled to the full benefits of their marriage under federal law does not necessarily require that same-sex couples who are not lawfully married under state law are entitled to compel their states to recognize their same-sex relationship as a marriage.

The dissent calls the majority's reasoning "linguistic manipulation" and "dictionary jurisprudence, which defines terms as convenient to attain an end," noting that each of the cases relied on involved "a couple asserting the right to enter into a traditional marriage of the type that has always been recognized since the beginning of the Nation - a union between one man and one woman." For example, in Loving, the court was not required to "examine whether interracial marriage was, objectively, deeply rooted in our Nation's history and tradition" and "nowhere in Loving did the Court suggest that the fundamental right to marry includes the unrestricted right to marry whomever one chooses, as plaintiffs claim." Thus, "[w]hile the context for asserting the right varied in each of [the cases relied on by the majority], it varied only in ways irrelevant to the concept of marriage," and "none of the cases cited by the plaintiffs and relied on by the majority involved the assertion of a brand new liberty interest. To the contrary, they involved the assertion of one of the oldest and most fundamental liberty interests in our society."

The dissent also notes that, "when the Supreme Court has recognized, through the years, that the right to marry is a fundamental right, it has emphasized the procreative and social ordering aspects of traditional marriage," citing Maynard v. Hill, 125 U.S. 190, 211 (1888), Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942), and Zablocki, 434 U.S. at 386. Thus, "to obtain constitutional protection, [plaintiffs] would have to show that the right to same-sex marriage is deeply rooted in our Nation's history. They have not attempted to do so and could not succeed if they were so to attempt."

Noting the plaintiffs' heavy reliance on Loving, the dissent also cites Baker v. Nelson, 291 Minn. 310, appeal dismissed, 490 U.S. 810 (1972), where the Minnesota Supreme Court ruled that its state laws which defined "marriage" as not including a same-sex couple did not violate the 14th Amendment's Due Process or Equal Protection Clauses. The U.S. Supreme Court summarily dismissed the appeal of that ruling "for want of a substantial federal question," and the dissent points out that Baker came five years after Loving was decided, so the Supreme Court did not "view Loving or the cases that preceded it as providing a fundamental right to an unrestricted choice of marriage partner. Otherwise the state court's decision in Baker would indeed have presented a substantial federal question."

The analysis used by the 4th Circuit closely tracks that used by the 10th Circuit in its recent decision in Kitchen v. Herbert, 13-4178 (10th Cir. June 25, 2014), and as the decisions due in the next months from the 5th, 6th, 7th and 9th Circuits are issued, if they decide to void state laws that limit marriage to opposite-sex couples, and they refuse to stay their mandate, it appears likely that the U.S. Supreme Court will do so.