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Same-Sex Marriage
The state of the law
by Patricia Novotny & Gwynne L. Skinner
© 1998, Patricia Novotny & Gwynne L. Skinner
[1999 update from Partners Task Force
on the Vermont, Hawaii and Alaska cases]


The issue of whether same-sex couples have the right to marry legally is currently being litigated in three states: Hawaii, Alaska and Vermont. A decision is expected any day by the Supreme Court of Hawaii on whether Hawaii’s denial of legal marriage to a same-sex couple violates Hawaii’s constitution, thereby opening the door for same-sex couples to marry legally in Hawaii. The same issue is also now before a Vermont Supreme Court, where lawyers representing three same-sex couples seeking the right to marry filed legal briefs in early March. In Alaska, a superior-court judge ruled in February that marriage is a fundamental right, and that under the privacy clause of the Alaska constitution, the state must therefore demonstrate a compelling interest to support its decision to refuse to recognize marriages of same-sex couples.


Courts Have Historically Rejected Same-Sex Marriage

In scattered litigation over the past several decades, courts have rejected same-sex couples’ petitioning for the right to marry. These courts, while recognizing a constitutionally protected fundamental right to marry, have reasoned that, by definition, marriage can only be the union of a man and a woman.

More than two decades ago, a Kentucky court in Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973), summarily rejected constitutional challenges based on the right to marry, the right of association, and the right to the free exercise of religion.

For authority on the question, the court relied on the Webster’s and Black’s Law dictionaries. Within those volumes, marriage was defined as the union between a man and a woman. The Jones court reasoned that two women, or two men, therefore cannot, by definition, marry one another. Thus, it was not the laws of the state of Kentucky that prevented the two women from marrying. Rather, the union was prevented “by their own incapability of entering in a marriage as that term is defined.” The court thus handily avoided the constitutional issues altogether.

A year later, the Washington Court of Appeals reached a similar result (although it engaged in a more lengthy analysis) in Singer v. Hara, 11 Wn. App. 247, 522 P.2d 1187, review denied, 84 Wn.2d 1008 (1974). In particular, Division One rejected equal protection, due process, and equal rights amendment challenges to the denial of a marriage license to the two male applicants. Again, the denial was mandated by “the recognized definition of [the marital] relationship as one which may be entered into only by two persons who are members of the opposite sex.” 11 Wn.App. at 255. The Singer court held that public policy favored that definition, as “society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children.” 11 Wn. App. at 259.

At present, no state in the Union permits same-sex couples to marry. Several states, however, stand on the threshold of such recognition. In all likelihood, many if not all of the other states will be confronted with this issue through the remaining years of this decade.


Pending Litigation In Hawaii

In 1993, the Hawaii Supreme Court ruled in favor of same-sex couples challenging Hawaii’s denial of marriage licenses to them, finding that the denial may violate the Hawaii constitution’s guarantee of equal protection. Baehr v. Lewin, 852 P.2d 44 (Hawaii 1993) (which became Baehr v. Miike and is now called Baehr v. Anderson). The court held that because Hawaii’s constitution includes an explicit guarantee of sex equality, classifications based on sex survive the court’s scrutiny only if they serve a compelling state interest. As no record was made on that question, the Hawaii Supreme Court remanded to the trial court. In December 1996, after presentation of evidence, the trial court found the state failed to meet this burden, but the court stayed its decision pending review by the state’s high court, from which a decision is anticipated at any time.

In reaching its decision, the Hawaii court relied on the United States Supreme Court case of Loving v. Virginia, 388 U.S. 1 (1967). In Loving, the court struck down as violative of equal protection a Virginia statute that declared interracial marriages illegal and null. The Lovings, legally married in the District of Columbia, returned to their home in Virginia and were indicted for violating the miscegenation law.

The Supreme Court declared the Virginia law unconstitutional, reasoning that restricting the right to marry on the basis of race was nothing less than racial discrimination. The statute, in the Court’s view, proscribed conduct otherwise generally acceptable when members of different races engaged in it. Of such a distinction, the court declared that “[t]here could be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” 388 U.S. 10-12. The majority rejected the dissent’s argument that miscegenation statutes do not discriminate on the basis of race, since they treat the races equally, prohibiting both whites and blacks from intermarrying.

Nearly 30 years later, the Hawaii court found the same argument to be specious when applied to sex in the context of same-sex marriages. Hawaii’s marriage law, “on its face and as applied, regulates access to the marital status and its concomitant rights and benefits on the basis of the applicants’ sex.” (852 P.2d at 64.) Plaintiff Nina Baehr, in this court’s view, was prevented from marrying the person of her choice because that person is a woman. Consequently, the court undertook a constitutional analysis of this sex-based classification.

Meanwhile, various legislative actions in Hawaii cast doubt on the future of legal same-sex marriage in that state even if the state’s highest court affirms the trial court and strikes down as sex discrimination the current marriage ban. In particular, the Hawaii electorate has been asked to ratify a constitutional amendment that would permit the legislature to define marriage to mean only unions between men and women.

[note: The Hawaii State Supreme Court made a final ruling in December 9, 1999 which denied legal marriage to same-sex couples. For a review of the pursuit of marital legal status in the U.S., please see Legal Marriage Court Cases — A Timeline.]


Recent and Pending Litigation In Alaska

In late February of this year, a trial court in Anchorage, Alaska, ruled in a declaratory judgment action that marriage, and more specifically, the recognition of one’s choice of a life partner, is a fundamental right, and that Alaska’s ban on marriage between persons of the same sex may violate Alaska’s constitutional guarantee of privacy. Brause, et al. v. Bureau of Vital Statistics, et al., Case No. 3AN-95-6562 Cl. As did the court in Hawaii, the judge ruled that to continue the ban on same-sex marriage, the state would need to show a “compelling interest” justifying the infringement on a gay couple’s constitutional rights. Further, the court opined that if it had been necessary to reach the equal protection claim, the court would also have found the ban an unconstitutional form of sex discrimination, citing Loving and Baehr.

In the Alaska case, unlike Hawaii, the court had to deal with a statute (A.S. 25.05.011(a)) that explicitly defines marriage “as a civil contract entered into by one man and one woman.” In the trial court’s view, however, it was “not enough to say that marriage is marriage and accept without any scrutiny the law before the court.” The court observed that “in some parts of our nation mere acceptance of the familiar would have left [racial] segregation in place.”

In particular, the court took up the question of whether the marriage restriction violated Article 1, Section 22 of the Alaska Constitution, the privacy protection added in 1972. That section provides in part that “[t]he right of the people to privacy is recognized and shall not be infringed.” The court examined the nature of the interest in marriage and Alaska precedent. Relying on a case from several decades ago involving a successful challenge to a public school restriction on student hairstyles, the court concluded that “the right to choose one’s life partner is quintessentially the kind of decision which our culture recognizes as personal and important.” The Supreme Court has been asked to review this decision as an interlocutory matter (the parties had not proceeded to trial).

The trial court’s decision set some Alaskan legislators in motion and talk abounds of constitutional amendments aimed at undoing the decision. In addition, a measure is being proposed that would require legislative confirmation for appointees to the Alaska Supreme Court, Court of Appeals and the Judicial Council, the panel that selects candidates for Alaska courts. The lower court judge who made the ruling has come under attack and is being accused of pursuing his own personal agenda. He is, however, a lifelong Republican and, in the words of the presiding judge of the courts in south-central Alaska, “his personal credentials are conservative.”

[note: This case was dropped by the litigants in 1999, after an Alaskan ballot measure declared legal marriage for opposite-sex couples only. For a review of the pursuit of marital legal status in the U.S., please see Legal Marriage Court Cases — A Timeline.]


Recent Vermont Litigation

On July 22, 1997, three same-sex couples in Vermont filed a suit against the state for denying them marriage rights after clerks in three Vermont towns refused to issue them marriage licenses. (Vermont does not have a statute which specifically states that marriage can take place only between a man and a woman.) In December 1997, the trial judge dismissed the plaintiffs’ case, finding that links between marriage, procreation and child-rearing justified the State’s denial of marriage licenses to same-sex couples. The plaintiffs filed a Notice of Appeal on January 15, 1998, and filed their briefs in March.

The plaintiffs in Baker v. State argued that the State’s refusal to issue marriage licenses to same-sex couples violates the right to equal protection and the Common Benefit Clause of the Vermont Constitution, which provides in part that “government is, or ought to be, instituted for the common benefit, protection and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part of that community…” Vt. Const. Ch. I. Art. 7. When examining this clause, Vermont courts have relied on federal equal protection law for an analytic framework.

In dismissing the case, the judge rejected the plaintiffs’ arguments that a heightened level of scrutiny should be used in reviewing the State’s denial of marriage licenses to same-sex couples. The judge found that a fundamental right did not exist and sexual orientation was not a suspect class. With regard to whether marriage is a fundamental right, the judge acknowledged that mixed-gender marriages do receive constitutional protection, but held that the protections did not apply to same-gender marriages because they derive from the connections between marriage, sexual intercourse and procreation. Additionally, although noting a clear history of discrimination against gays, the judge found that sexual orientation was not a suspect class because sexual orientation is not a characteristic that is readily determinable by third parties, and because gays and lesbians cannot be seen as politically powerless. Finding that no heightened scrutiny was warranted, the judge employed the rational basis test and found that the State had a compelling interest in furthering the link between procreation and child-rearing. The plaintiffs are expected to attack Vermont’s stated reason by arguing that gay and lesbian couples can and do have children, and by arguing that the State’s concern for stable homes for children is best accomplished by allowing same-sex couples to marry, not disallowing the marriages.

The judge did give some reason for the plaintiffs to be optimistic, however. The judge rejected six of the State’s seven arguments under the rational basis test. In addition, she rejected the State’s contention that the question of same-gender civil marriage should be reserved for the legislature, stating that it is the judiciary’s job to review the constitutionality of all statutes. Despite this early defeat, many gay and lesbian activist groups feel that Vermont (considered one of the most gay-friendly states in the country) may be the likeliest place to legalize same-sex marriages. Legislative reaction in Vermont has not mirrored reaction in other states. Although a bill has been introduced to ban same-sex marriages, it has languished.

[note: The Vermont State Supreme Court made a final ruling in December 20, 1999 which ruled that same-sex couples must be afforded the same rights and benefits as opposite-sex couples, but required the Vermont Legislature to provide legal marriage or a “domestic partnership” law, rather than immediately require marriage licenses for same-sex couples. For a review of the pursuit of marital legal status in the U.S., please see Legal Marriage Court Cases — A Timeline. For a review of enequal treatment by domestic partnership status, Marrying Apartheid.]


States Have Reacted by Statutorily Defining Marriage

The felt need for statutes in defense of marriage arose after the Baehr decision. Washington and several other states have in the past few years followed the lead of the United States Congress by statutorily codifying a definition of marriage that excludes same-sex couples. The federal legislation, known as the Defense of Marriage Act, which passed in 1996, seeks to limit the effect of legal same-sex marriage by defining, for all federal purposes, terms relating to marriage as contemplating only the union between a man and a woman. Thus, when the word “spouse” appears in federal law or regulation, according to DoMA, it means only a member of an opposite-sex marriage. 28 U.S.C. 1738C(a).

Similarly, in Washington state, legislation passed this most recent session amended RCW 26.04.010 to read: “It is a compelling interest of the state of Washington to reaffirm its historical commitment to the institution of marriage as a union between a man and a woman as husband and wife and to protect that institution.”


Full Faith and Credit Issues

The outcome of litigation in Hawaii and other states is far from certain. Still, the litigation itself raises questions about the probable impact outside the affected state. What happens if same-sex couples can legally marry in one or more of the 50 states? It seems likely that couples from other states will travel to states in which they can legally marry, providing they can meet whatever other statutory conditions pertain. What might be a travel agent’s dream-come-true is a nightmare to others, including the federal and state legislators who have sought to nullify the effects of such marriage in advance of their occurring.

The question on everyone’s mind, of course, is the effect of such provisions in the face of the federal Constitution’s Full Faith and Credit Clause. As one means of ensuring that the states be united in more than name only (that the United States be a federalism, not a loose consortium), Article IV, Section 1 requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

Does this clause require Washington, for example, to extend recognition to a same-sex marriage legal in another state? The debate that rages around this question focuses on the second sentence of Article IV, Section 1: “And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” The federal DoMA represents the congressional effort to do just that.

In DoMA, Congress urges the states to take advantage of what is referred to as a public policy exception to the Full Faith and Credit Clause. But the contours of that exception are far from clear. Whether state DoMAs will succeed in restricting the legal effect of marriages recognized in other states remains the subject of much debate.


The United States Supreme Court

The question of whether a state is compelled by the Full Faith and Credit Clause to recognize a same-sex marriage valid in another state will undoubtedly make its way to the United States Supreme Court. In predicting what analysis the Court is likely to employ, at least with regard to the underlying privacy and equality issues concerning gays and lesbians, two cases in particular will guide the Court: Bowers v. Hardwick and Romer v. Evans.

In 1986, the United States Supreme Court rejected a challenge by Michael Hardwick to Georgia’s anti-sodomy law. Interestingly, that law did not criminalize conduct on the basis of the sexual identities of the partners, but, rather, on the nature of the acts themselves. A heterosexual couple sought to join Hardwick’s suit, but was dismissed for lack of standing (since the couple, unlike Hardwick, had not been arrested for violating the law). Bowers v. Hardwick, 478 U.S. 186 (1986).

The majority in a divided court framed the issue before it as whether there exists a constitutionally protected fundamental right for citizens to engage in sexual conduct with members of the same sex. The Court answered “no” to this question. The Court also rejected the claim that homosexuals represent a suspect class. Consequently, the Court reviewed Hardwick’s challenge under the most lenient standard of review: rational basis. The Georgia statute passed that test. The Court upheld as a legitimate exercise of governmental authority the expression of the Georgia citizenry’s morality in the form of the statute. Dissenters took issue with the way the Court framed the question, preferring instead to view the issue as one of privacy, or the right to be let alone. Many commentators question whether the current Court would have ruled the way the Bowers Court did, and many believe the Court, if faced with a similar issue again, will find a way to distinguish Bowers.

Ten years after Bowers v. Hardwick, the high Court again considered the question of legitimate state purpose. In Romer v. Evans, 116 S.Ct. 1620 (1996), the Court reviewed, under the rational basis test, Colorado’s constitutional amendment that prohibited governmental entities statewide from extending to homosexuals anti-discrimination protections. Proponents of the amendment characterized protection against discrimination as a special right. In defending the amendment, the state of Colorado offered that its purpose was to conserve state resources to fight other forms of discrimination and to protect its citizens’ freedom to associate (or not to associate). This statement of purpose left the high Court exceedingly skeptical. In the Court’s view, the amendment’s actual motivation lay in animus, or hostility, toward the homosexual minority. Animus, pronounced the Court, is not a legitimate purpose for legislative action.


What Motivates Marriage Laws?

When states forbid couples of the same sex from marrying, are they motivated by animus, morality, or some other concern? It seems likely the courts will wrestle with some version of this question for the foreseeable future. In the past, courts were satisfied that same-sex unions fell outside the definition of marriage. But as can be seen recently, state courts, at least, find this tautology less persuasive.

Certainly, however attractive the simplicity and clarity of the “marriage = man + woman” equation, it fails to answer certain questions that might interest the high court. Among them: What purpose does marriage serve and what interest does the state have in regulating it? Congress gave its answer to that question directly when it passed DoMA: “Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship.” Report for P.L. 104-199, 110 Stat. 2918 (House Report No. 104-644). Of course, courts will struggle with the fact that marriage is not now limited to couples intending or able to bear children; nor are all parents necessarily married.

Courts will undoubtedly continue to grapple with same-sex marriage and the legal issues which surround its recognition. Even if several states recognize same-sex marriage, the battle over whether other states must recognize such marriages will be a bigger battle, and undoubtedly, a bitter and divisive one. No matter what the eventual outcome, however, it will be one of the monumental decisions of our time.


Patricia Novotny practices civil and criminal appeal law in Seattle and lectures
at the U. of Wash. School of Law and Women Studies Department.

Gwynne L. Skinner is Of Counsel with the Seattle firm of Stephson Askov,
practicing employment and labor, discrimination and civil rights law.

This article first appeared in the Washington State Bar News Magazine
and is reprinted with permission.


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