GEORGE MASON UNIVERSITY SCHOOL OF LAW
2015 LAW JOURNAL WRITE-ON COMPETITION
GEORGE MASON LAW REVIEW
CIVIL RIGHTS LAW JOURNAL
JOURNAL OF LAW, ECONOMICS & POLICY
JOURNAL OF INTERNATIONAL COMMERCIAL LAW
NATIONAL SECURITY LAW JOURNAL
2015 Write-On Competition
The following are the instructions for the 2015 Write-On Competition for GEORGE
MASON LAW REVIEW (GMLR), CIVIL RIGHTS LAW JOURNAL (CRLJ), JOURNAL OF LAW,
ECONOMICS & POLICY (JLEP), JOURNAL OF INTERNATIONAL COMMERCIAL LAW (JICL), and
NATIONAL SECURITY LAW JOURNAL (NSLJ). Unless otherwise noted, the following instructions
apply to all five journals. This packet represents the final word on all matters pertaining to
the Write-On Competition and supersedes anything you may have heard either at an
information session or from a member of any journal. In particular, please note that all
submissions must be hand-delivered, electronically submitted, or postmarked by May 29th,
2015. Hand deliveries must be made in the Records Office (3rd Floor of Hazel Hall) and/or
submitted electronically by no later than 5:00 pm EDT.
For those participating in the Write-On Competition who wish to submit to journals
requiring hard copy submissions, exemption for hard copy submission may be granted on a case
by case basis for extenuating circumstances (i.e. being out of the country during the
Competition). Those seeking exemption from submitting hard copies must email the contact
listed in each journal’s submission requirements by 5:00 pm EDT on May 20th, 2015.
Exemptions will not be granted for any requests received after that time.
The Write-On packet is prepared and managed by GEORGE MASON LAW REVIEW.
Please direct all questions regarding the 2015 Write-On Competition to GEORGE MASON
LAW REVIEW’S Senior Notes Editor, Kathy Garman, at garmankf@gmail.com. DO NOT
send any submissions to Kathy, as this would compromise blind grading. For electronic
submissions, please see the journal-specific instructions that follow.
If you have questions unrelated to the Write-On Competition, please direct them to the
appropriate journal:
GEORGE MASON LAW REVIEW:
Rod Harrell, Editor-in-Chief
harrellr@yahoo.com
CIVIL RIGHTS LAW JOURNAL:
Peter Donohue, Editor-in-Chief
pdonohue@gmu.edu or
Sam Parker, Senior Notes Editor
sparker7@elon.edu
JOURNAL OF LAW, ECONOMICS & POLICY:
Manmeet Dhindsa, Editor-in-Chief
mkdhind@gmail.com
JOURNAL OF INT’L COM. LAW:
Taylor Hoverman, Editor-in-Chief
Taylor.Hoverman@gmail.com
NATIONAL SECURITY LAW JOURNAL:
Rick Myers, Editor-in-Chief
rick.myers@nslj.org or
Lynzi Maas, Managing Editor
lynzi.maas@nslj.org
2015 WRITE-ON COMPETITION INSTRUCTIONS
I. TOPIC
To participate in the competition, you must write a Comment (as defined below in
Section III) on the sources included in this packet.
II. CLOSED RESEARCH PROJECT
The Write-On is a closed research project. Not all the materials included in the packet
may be applicable to your analysis—you must decide what is relevant. You do not have to use
all of the sources and you do not have to use any specific number of the sources. YOU MAY
NOT CONDUCT ANY OUTSIDE RESEARCH, AND YOU ARE LIMITED TO THE
MATERIALS CONTAINED IN THIS PACKET. The materials in this packet have been
noticeably altered, and you may only use the sources as they appear in this packet (i.e., do not
look up the listed sources on LexisNexis, Westlaw, or any other research tool, including Google).
If you are found to violate this requirement, your entry will be automatically disqualified, and
you will no longer be eligible for candidate membership with any journal. This restriction is for
your benefit. It allows you to spend your time reading and writing rather than researching the
issues.
Similar to LRWA rules, you may not discuss this project with other law students, law
school faculty, attorneys, or anyone who has legal training. However, friends or family members
who have no legal training and are not law students, law school faculty, or attorneys may
proofread your Comment. Please be aware that the GMUSL Honor Code governs the Write-On
Competition.
III. COMMENT: DEFINITION AND TOPIC DISCUSSION
Unlike a Casenote that examines one case in particular, a Comment surveys a specific,
narrow area of the law. For this Write-On Competition, your Comment should generally focus
on concerns surrounding state bans on same-sex marriage, federalism, and how court decisions
have shaped the area of law. This topic may encompass a variety of issues, so you have leeway
to focus on one or more specific issues. We are not looking for an exhaustive analysis of this
topic, as that would not be possible to achieve within the page limit. We do, however, expect a
thorough legal analysis of whichever issue you choose within the broader topic.
IV. FORMAT
1. You must use proper Bluebook (19th edition) law review form1 for citations (hard
copy or digital copy).
1
Please note that citations in law review articles differ from citations in court memoranda. For example, you should
cite to authority in this Write-On by using footnotes instead of citation sentences or intratextual citations.
2. Your Comment must not exceed twelve (12) pages of typed, double-spaced text,
including footnotes.
3. Pages must be numbered (centered at the bottom of each page).
4. The font must be 12-point Times New Roman.
5. Top, bottom, left, and right margins must be one inch.
6. Footnotes must be single-spaced, in 10-point Times New Roman font.
V. ORGANIZATION
Your Comment should conform as nearly as possible to Comments published in the
GEORGE MASON LAW REVIEW. You may look at Comments in these publications without
violating the closed-research requirements, but only for the purpose of determining proper
format and style. In addition, please use the following framework:
A. Title
At the top of the first page, you must have an appropriate title.
B. Introduction
Your introduction should introduce the issue(s) you will discuss, briefly summarize how
courts have treated the issue(s), and summarize any conclusions you have reached in your
Comment. Your introduction should also provide a “road map” for the reader of the different
sections of your Comment.
C. Background & Discussion
This section should trace the development of the area of law under discussion. Your
discussion should briefly describe the courts’ approach to key issues in these cases and should
juxtapose the arguments of the parties. The purpose is not to write a detailed analysis of the
relevant cases but to give the reader enough knowledge to appreciate your discussion of these
cases in your analysis section.
D. Legal Analysis
This part of the Comment constitutes the sole justification for writing the Comment and
is the most important section. You should set forth your reasoning in detail. What we are
looking for is well-reasoned legal analysis. You should focus on factors such as case holdings,
consistencies or discrepancies among holdings, future consistent application of the law, etc. As
you organize your analysis, you may wish to consider one or more of the following questions:
1.
Who governs marriage: the Federal government or individual state governments?
Additionally, law review citations use slightly different italicization rules than court memoranda citations. We
recommend that you review student Comments on the GEORGE MASON LAW REVIEW website to ensure you conform
to these rules.
2.
3.
4.
5.
6.
7.
8.
Does the judicial branch have the power to determine the fundamental rights of the
people?
What do the Equal Protection and the Due Process clauses of the Fourteenth
Amendment protect?
What level of scrutiny should be applied to discrimination cases involving gay,
lesbian, bisexual, and transgender individuals?
Should the distinction between criminalizing acts as opposed to simply banning
certain acts have any legal significance?
Should the court’s analysis of the Due Process clause of the Fourteenth Amendment
as it applies to state law be the same as its analysis of the Due Process clause of the
Fifth Amendment as it applies to federal law?
What role does the Full Faith and Credit clause play in analyzing the
constitutionality of state laws?
What role does or should stare decisis play in constitutional decisions?
A successful piece will assess the sources listed in this packet and determine how they
relate to one another. There is no formula for a successful write-on submission; however, you
should aim to approach the topic succinctly and creatively. You should focus on the
persuasiveness of your argument, conformance with formatting used in typical Comments,
writing style, grammar, punctuation, and the proper use of citations. You need not use every
source listed in this packet. Likewise, you need not avoid any particular source.
VI. BLUEBOOKING EXERCISE
In addition to writing a short Comment, write-on candidates must complete a brief
Bluebooking Exercise to demonstrate their competence with Bluebook rules. Please cut and
paste the text as provided in the Bluebooking Exercise into a separate Word document and
correct the footnotes using proper Bluebook format. Additionally, below each footnote, please
describe the changes you made.
For Example:
FN 1
United States v. Moussaoui, 382 F.3d 453 at 454 (4th Cir. 2004).
Your Corrected FN1
United States v. Moussaoui, 382 F.3d 453, 454 (4th Cir. 2004).
List of Changes You
Made


Removed improper italicization per BB Rule 10.
Corrected pin citation form per BB Rule 3.2(a).
You should not use the Track Changes function in Word. DO NOT check the authority
of footnotes for accuracy or support, or check prior or subsequent history. This is a formatting
exercise and should be based solely on your knowledge and the Bluebook rules. Remember that
the Honor Code governs the Write-On Competition, and using LexisNexis or Westlaw to look up
any of the cases or articles in the Bluebooking Exercise or the use of any software or website
(excluding the digital copy of the Bluebook) to correct the citation is against the rules of the
competition. If you need additional information in order to properly correct a footnote, simply
make a note explaining the information that you need. Please include this exercise in your
electronic submission and in the packet with your Comment, grade release form, and contact
sheet.
2015 WRITE-ON COMPETITION
QUALIFICATIONS AND SUBMISSION INSTRUCTIONS
I.
QUALIFICATIONS
A. George Mason Law Review
All students applying for membership on GEORGE MASON LAW REVIEW must be in their
first year of law school (1Ds & 1Es). To be eligible, students must at a minimum have a
cumulative grade point average equivalent to the class mean, as determined by the GMUSL
Records Office at the end of the Spring 2015 semester.
The GEORGE MASON LAW REVIEW editorial board will review each submission. There is
neither a minimum nor a maximum number of positions available to students competing in the
Write-On Competition, and the number of offers extended will depend on the quality of WriteOn submissions. GEORGE MASON LAW REVIEW encourages all students to participate in the
Write-On Competition. Students selected for candidate membership will be contacted after all
Spring 2015 grades are posted.
B. Civil Rights Law Journal
First year students (1Ds & 1Es) and second year evening students (2Es) are eligible to
apply for membership on the CIVIL RIGHTS LAW JOURNAL. To be eligible, students must have a
minimum cumulative grade point average of 2.75, as determined by the GMUSL Records Office
at the end of the 2015 Spring Semester.
The CIVIL RIGHTS LAW JOURNAL editorial board will review each submission. There is
neither a minimum nor a maximum number of positions available to students competing in the
Write-On Competition. The CIVIL RIGHTS LAW JOURNAL encourages all students to participate
in the Write-On Competition. Students selected for candidate membership will be contacted
after all Spring 2015 grades are posted.
C. Journal of Law, Economics & Policy
All students applying for membership on the JOURNAL OF LAW, ECONOMICS & POLICY
must be first year students (1Ds & 1Es) or second year evening students (2Es). JLEP requires all
applicants to be in good academic standing, but the JLEP review committee considers GPA as a
non-determinative factor in the admissions process.
The JOURNAL OF LAW, ECONOMICS & POLICY editorial board will review each
submission. There is neither a minimum nor a maximum number of positions available to
students competing in the Write-On Competition. The JOURNAL OF LAW, ECONOMICS & POLICY
encourages all students to participate in the Write-On competition. Students selected for
candidate membership will be contacted after all Spring 2015 grades are posted.
D. Journal of International Commercial Law
All students applying for membership on the JOURNAL OF INTERNATIONAL COMMERCIAL
LAW must be first year students (1Ds & 1Es) or second year students (2Ds & 2Es) that have
completed Contracts I and Contracts II. JICL requires all applicants to be in good academic
standing, but the JICL review committee considers GPA as one factor in the selection process.
The JOURNAL OF INTERNATIONAL COMMERCIAL LAW editorial board will review each
submission. There is neither a minimum nor a maximum number of positions available to
students competing in the Write-On Competition. The JOURNAL OF INTERNATIONAL
COMMERCIAL LAW encourages all eligible students to participate in the Write-On Competition.
Students selected for candidate membership will be contacted after all Spring 2015 grades are
posted.
E. National Security Law Journal
All students applying for membership on the NATIONAL SECURITY LAW JOURNAL must
have at least one full academic year remaining in law school. Accordingly, the NATIONAL
SECURITY LAW JOURNAL will review submissions from all first-year students (1Ds & 1Es), all
second year students (2Ds & 2Es), and third year evening students (3Es) graduating in the
following May or beyond. To be eligible, students must have a minimum cumulative grade
point average of 2.50, as determined by the GMUSL Records Office at the end of the 2015
Spring Semester.
The NATIONAL SECURITY LAW JOURNAL editorial board will review each submission.
There is neither a minimum nor a maximum number of positions available to students competing
in the Write-On Competition. The NATIONAL SECURITY LAW JOURNAL encourages all eligible
students to participate in the Write-On Competition. Students selected for candidate membership
will be contacted after all Spring 2015 grades are posted.
II.
SUBMISSION PACKAGE CONTENTS
Prepare a separate submission package for each journal in accordance with the
following directions.
A. George Mason Law Review
Inside a sealed envelope marked GEORGE MASON LAW REVIEW, please submit the
following:
1. 4 copies of your Comment;
2. 1 copy of the Bluebooking Exercise; and
3. A separate, unmarked, sealed envelope that includes:
a. A signed GEORGE MASON LAW REVIEW grade release form; and
b. A contact information sheet.
Students must also e-mail an electronic copy of their Comment and Bluebooking
Exercise to lrwriteon@gmail.com by May 29, 2015, at 5:00 pm EDT as indicated on the
submission instructions below. If an electronic copy is not received prior to the deadline, the
student’s submission will not be reviewed. Please enter “Write-On Competition Submission” in
the subject line. Please identify yourself in the body of the e-mail, as it will be directed to a
member of GEORGE MASON LAW REVIEW who is not judging the write-on submissions.
Compliance with this deadline will be determined by the time the e-mail is sent.
Students necessitating an exemption from hard copy submission due to extenuating
circumstances must notify Law Review’s Managing Editor, Brianna Davis-Kleppinger, at
brianna.davisk@gmail.com by 5:00 pm EDT on May 20th, 2015. Please enter “Write-On
Competition Exemption Request” in the subject line. Please identify yourself in the body of the
email and provide the reason for your exemption request. A response to your request will be sent
within 24 hours of your request.
PLEASE NOTE: For hard copy submissions, a separate, unmarked, sealed envelope
with your grade release form and contact information sheet for each submission should be placed
in the same envelope as your submission. DO NOT mail your grade release forms and contact
information sheets separately. Each submission requiring a paper submission should be
mailed in one envelope.
B. Civil Rights Law Journal
Inside a sealed envelope marked CIVIL RIGHTS LAW JOURNAL, please submit the
following:
1. 4 copies of your Comment;
2. 1 copy of the Bluebooking Exercise; and
3. A separate, unmarked, sealed envelope that includes:
a. A signed CIVIL RIGHTS LAW JOURNAL grade release form; and
b. A contact information sheet.
Students must also e-mail an electronic copy of their Comment and Bluebooking
Exercise to write-on@civilrightslawjournal.com by May 29, 2015, at 5:00 pm EDT. If an
electronic copy is not received prior to the deadline, the student’s submission will not be
reviewed. Please enter “Write-on Competition Submission” in the subject line. Please identify
yourself in the body of the e-mail, as it will be directed to a member of the CIVIL RIGHTS LAW
JOURNAL who is not judging the write-on submissions. Compliance with this deadline will be
determined by the time the e-mail is sent.
Students requesting an exemption from hard copy submission due to extenuating
circumstances must email CRLJ’s Managing Editor, Richard Baca, at rsbaca@gmail.com by
5:00 pm EDT on May 20th, 2015. Please enter “Write-On Competition Exemption Request” in
the subject line. Please identify yourself in the body of the email and provide the reason for your
exemption request. A response to your request will be sent within 24 hours of your request.
Although CRLJ normally accepts only first year full-time students (1D), first year part
time students (1E) and second year part-time students (2E), if any student has completed more of
law school than a 1D or 2E student but would still like to apply for CRLJ candidate membership,
please email CRLJ’s Managing Editor, Richard Baca at rsbaca@gmail.com. Please explain why
you have not already applied, and any other extenuating circumstances. You must send your
email by 5:00 pm EDT on May 20th, 2015. Any student who was rejected in the past will not be
reconsidered for candidate membership.
C. Journal of Law, Economics & Policy
Through electronic submission to the JOURNAL OF LAW, ECONOMICS & POLICY, please
submit the following:
1.
2.
3.
4.
1 copy of your Comment;
1 copy of the Bluebooking Exercise;
1 copy of your resume, with your name and GPA redacted; and
1 copy of your grade release form, submitted either in hard copy to the
Records Office or included as an attachment to your electronic
submission.
Students must e-mail an electronic copy of their Comment, Bluebooking Exercise,
Resume, and Grade Release Form to jlepwriteon@gmail.com by May 29, 2015, at 5:00 pm EDT.
If an electronic copy is not received prior to the deadline, the student’s submission will not be
reviewed. Please enter “Write-on Competition Submission” in the subject line. Please identify
yourself in the body of the e-mail, as it will be directed to a member of the JOURNAL OF LAW,
ECONOMICS & POLICY who is not judging the write-on submissions. Compliance with this
deadline will be determined by the time the e-mail is sent.
D. Journal of International Commercial Law
Students must e-mail an electronic copy of the following documents to
GMUSLJICL@gmail.com by May 29, 2015 at 5:00 pm EDT:
1. Your Comment;
2. The Bluebooking Exercise;
3. A signed JOURNAL OF INTERNATIONAL COMMERCIAL LAW grade
release form*;
4. A contact information sheet;
5. Your résumé with your name redacted (optional); and
6. Your Statement of Interest (optional).
*The Records Office requires a handwritten signature. Please scan and e-mail your
signed grade release form or submit a hard copy to the Records Office inside a sealed envelope
marked JOURNAL OF INTERNATIONAL COMMERCIAL LAW.
Please enter “Write-on Competition Submission” in the subject line and identify yourself
in the body of the e-mail, as it will be directed to a member of the JOURNAL OF INTERNATIONAL
COMMERCIAL LAW who is not judging the write-on submissions. If these materials are not
received prior to the deadline, the student’s submission will not be reviewed. Compliance with
this deadline will be determined by the time the e-mail is sent.
E. National Security Law Journal
Inside a sealed envelope addressed to the NATIONAL SECURITY LAW JOURNAL, please
submit a signed hard copy of the NATIONAL SECURITY LAW JOURNAL Grade Release Form.
Students must submit an electronic copy of the following Write-On submission
materials by e-mail to writeon@nslj.org. The NATIONAL SECURITY LAW JOURNAL is not
accepting hard copy submissions of these materials. The e-mail must include:
1.
2.
3.
4.
Your Comment;
Your Bluebooking Exercise;
Your summer Contact Information sheet;
Your Statement of interest (optional; see instructions later in this
packet); and
5. Your Résumé with your name redacted (optional).
Your Comment, Bluebooking Exercise, Statement of Interest, Resume, and Contact
Information sheet must each be submitted in Microsoft Office Word format (.doc or .docx).
If an electronic copy of your submission is not received prior to the May 29, 2015, 5:00 pm
EDT deadline, your submission will not be reviewed. In your submission e-mail, please enter
“Write-On Competition Submission” in the subject line. Please identify yourself in the body of
the e-mail, as it will be directed to a member of the NATIONAL SECURITY LAW JOURNAL who is
not judging the Write-On submissions. Compliance with the Write-On deadline will be
determined by the time the e-mail is sent.
Again, please note that your NATIONAL SECURITY LAW JOURNAL Grade Release form is the
only hard copy submission you will be making. Your Comment, Bluebooking Exercise,
Contact Information sheet, and any additional optional materials you choose to include will only
be accepted electronically as Word document attachments, submitted by e-mail to
writeon@nslj.org.
III.
ANONYMITY
To ensure anonymity, you MUST NOT IDENTIFY YOURSELF ANYWHERE ON
YOUR COMMENT OR BLUEBOOKING EXERCISE. If you do so, you will be
disqualified. Your contact information and grade release form will be used to identify your
submission. Any submission that does not include a grade release form and summer contact
information form will not be reviewed.
IV.
SUBMISSION DUE DATE AND HARD COPY INSTRUCTIONS
All submissions are due on FRIDAY, MAY 29, 2015. In addition to the electronic
submissions, students may either hand deliver their submissions by 5:00 pm EDT on May 29,
2015, or submit them by mail, postmarked by May 29, 2015.
Hand Delivery
Students who choose to hand deliver their submissions must drop them off in the Records
Office at the law school by 5:00 p.m. EDT on May 29, 2015. Students must be careful
not to leave any identifying information on their submissions.
Mail Submissions
Students who choose to mail their submissions must postmark them by May 29, 2015.
Please mail a separate submission to each journal to which you are applying. Mail your
submissions to:
(Insert journal name here)
Write-on Competition
George Mason University School of Law
3301 N. Fairfax Drive
Arlington, Virginia 22201
GEORGE MASON LAW REVIEW
GRADE RELEASE FORM
Student Name:
______________________________________
GMU Identification #:
_________________________________
I authorize the George Mason University School of Law to release my
cumulative grade point average and class rank to GEORGE MASON LAW REVIEW.
Signature:
___________________________________________
Date:
______________________
FOR RECORDS OFFICE USE ONLY
This student’s GPA is ________.
This student’s class rank is ________.
CIVIL RIGHTS LAW JOURNAL
GRADE RELEASE FORM
Student Name:
______________________________________
GMU Identification #:
_________________________________
I authorize the George Mason University School of Law to release my
cumulative grade point average and class rank to the CIVIL RIGHTS LAW JOURNAL.
Signature:
___________________________________________
Date:
______________________
FOR RECORDS OFFICE USE ONLY
This student’s GPA is ________.
This student’s class rank is ________.
JOURNAL OF LAW, ECONOMICS & POLICY
GRADE RELEASE FORM
Student Name:
______________________________________
GMU Identification #:
_________________________________
I authorize the George Mason University School of Law to release my
cumulative grade point average and class rank to the JOURNAL OF LAW, ECONOMICS
& POLICY.
Signature:
___________________________________________
Date:
______________________
FOR RECORDS OFFICE USE ONLY
This student’s GPA is ________.
This student’s class rank is ________.
JOURNAL OF INTERNATIONAL COMMERCIAL LAW
GRADE RELEASE FORM
Student Name:
______________________________________
GMU Identification #:
_________________________________
I authorize the George Mason University School of Law to release my
cumulative grade point average and class rank to the JOURNAL OF INTERNATIONAL
COMMERCIAL LAW.
Signature:
___________________________________________
Date:
______________________
FOR RECORDS OFFICE USE ONLY
This student’s GPA is ________.
This student’s class rank is ________.
NATIONAL SECURITY LAW JOURNAL
GRADE RELEASE FORM
Student Name:
______________________________________
GMU Identification #:
_________________________________
I authorize the George Mason University School of Law to release my
cumulative grade point average and class rank to the NATIONAL SECURITY LAW
JOURNAL.
Signature:
___________________________________________
Date:
______________________
FOR RECORDS OFFICE USE ONLY
This student’s GPA is ________.
This student’s class rank is ________.
SUMMER 2015 CONTACT INFORMATION SHEET
Student Name:
______________________________________
Summer Address: ______________________________________
______________________________________
Summer Phone Number: (Day) ____________________________
(Evening) _________________________
E-mail Address:
__________________________________
Journals will extend offers in early to mid-July. Please provide any additional contact
information necessary to ensure that we can contact you during that period.
If you will be unavailable in early to mid-July, please provide us with any information you
can as to when you will return and how to contact you at that time. PLEASE NOTE- this
will not preclude you from receiving journal offers.
JOURNAL OF INTERNATIONAL COMMERCIAL LAW
Optional Statement of Interest
Please tell us why you’re interested in joining the JOURNAL OF INTERNATIONAL
COMMERCIAL LAW and what you anticipate contributing to JICL. This portion of the application
is optional. No points will be deducted for failure to submit an answer nor will points be added
for submitting an answer. The purpose of the statement of interest is to give students an
opportunity to provide additional information for the board to consider when making selections.
Your statement should not exceed 200 words.
NATIONAL SECURITY LAW JOURNAL
Optional Statement of Interest
Please tell us about your interests in the NATIONAL SECURITY LAW JOURNAL. This
portion of the NSLJ application is optional, and you will not be penalized if you choose not to
submit a response. However, this is an opportunity for you to discuss your past experiences;
your interest, if any, in national security law; and any skills or qualities that you might bring to
NSLJ as a Candidate Member. Your response can help distinguish you as a potential Candidate
Member and will be taken into consideration when extending offers.
Please limit your statement to 250 words or less. Your statement should be doublespaced in 12-point Times New Roman Font.
LIST OF SOURCES FOR THE 2015 WRITE-ON COMPETITION
Please note that many of the sources below are edited. Please do not look up these sources
to read the portions not included in the Write-On packet.
Please also note that the sources below may not be cited correctly. Please consult the
Bluebook for proper citations and formatting.
PRIMARY SOURCES:
14th Amendment of the United States Constitution
10th Amendment of the United States Constitution
Article I, § 25 of the Michigan Constitution
Kentucky Constitution § 233A
Art. XV, § 11 of the Ohio Constitution
Adoring v. Virginia, 388 U.S. 1, 87 S.Ct. 1817 (1967).
Article IV § 1 of the United States Constitution
O’Toole v. Texas, 539 U.S. 558, 123 S.Ct. 2472 (2003).
United States. v. Tudor, 133 S.Ct. 2675 (2013).
Babish, et al. v. Antimarino, et al., 760 F.3d 352 (2014).
DeGrassi v. Stacy, 772 F.3d 388 (2014).
Armstrong v. Snodgrass, 663 F.3d 1312 (2011).
SECONDARY SOURCES:
Department of Justice, Office of Public Affairs, Letter from the Attorney General to Congress on
Litigation Involving the Defense of Marriage Act, Wednesday, February 23, 2011.
Murray Dry, The Same-Sex Marriage Controversy and American Constitutionalism: Lessons
Regarding Federalism, the Separation of Powers, and Individual Rights, 39 Vt. L. Rev. 275,
Winter 2014.
Editorial Board, Keeping Them Safe From Gay Marriage, The Washington Post, March 26,
2015.
Roger Severino, Or Poorer? How Same-Sex Marriage Threatens Religious Liberty, 30 Harvard
Journal of Law & Public Policy 939, Summer 2007.
George W. Bush, Remarks, President Calls for Constitutional Amendment Protecting Marriage,
February 24, 2004.
Robert P. George, Ranger v. Riches: The Supreme Court’s Assault on Popular Sovereignty, THE
FEDERALIST SOCIETY FOR LAW AND PUBLIC POLICY STUDIES, Fall 1996.
The National Constitution Center, Defining protected classes: Same-sex marriage and judicial
scrutiny, January 23, 2013 by Abigail Perkiss.
Richard Wilson and Richard Roane, Marriage Equality Update, 27 J. Am. Acad. Matrim. Law.
123, 2014-2015.
NOTE: This is a closed research project. All of the sources that you should use are included in
this packet. No outside research is allowed.
You may only cite to the above listed sources. However, if you wish to cite a source that is
explained or quoted within the packet, please format the citation similar to one of the following
examples:
Johnson v. Quander, 370 F.Supp.2d 79, 85-86 (2005) (quoting United States v. Knights,
534 U.S. 112 (2001)).
Johnson v. Quander, 370 F.Supp.2d 79, 85-86 (2005) (citing United States v. Knights,
534 U.S. 112 (2001)).
For Educational Use Only
AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND..., USCA CONST Amend....
United States Code Annotated
Constitution of the United States Annotated
Amendment XIV. Citizenship; Privileges and Immunities; Due Process; Equal Protection; Apportionment
of Representation; Disqualification of Officers; Public Debt; Enforcement
U.S.C.A. Const. Amend. XIV-Full Text
Amendment XIV. Citizenship; Privileges and Immunities; Due Process; Equal
Protection; Apportionment of Representation; Disqualification of Officers; Public Debt;
Enforcement
Section 1. All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws
Section 2. Representatives shall be apportioned among the several States according to
their respective numbers, counting the whole number of persons in each State,
excluding Indians not taxed. But when the right to vote at any election for the choice of
electors for President and Vice President of the United States, Representatives in
Congress, the Executive and Judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male inhabitants of such State, being twentyone years of age, and citizens of the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of representation therein shall be
reduced in the proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of
President and Vice President, or hold any office, civil or military, under the United
States, or under any State, who, having previously taken an oath, as a member of
Congress, or as an officer of the United States, or as a member of any State legislature,
or as an executive or judicial officer of any State, to support the Constitution of the
United States, shall have engaged in insurrection or rebellion against the same, or given
aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each
House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law,
including debts incurred for payment of pensions and bounties for services in
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AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND..., USCA CONST Amend....
suppressing insurrection or rebellion, shall not be questioned. But neither the United
States nor any State shall assume or pay any debt or obligation incurred in aid of
insurrection or rebellion against the United States, or any claim for the loss or
emancipation of any slave; but all such debts, obligations and claims shall be held illegal
and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.
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Amendment X. Reserved Powers to States, USCA CONST Amend. X
United States Code Annotated
Constitution of the United States Annotated
Amendment X. Reserved Powers to States
U.S.C.A. Const. Amend. X
Amendment X. Reserved Powers to States
The powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people.
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§ 25. Union of one man and one woman as only..., MI CONST Art. 1, § 25
Michigan Compiled Laws Annotated
Michigan Constitution of 1963
Chapter 1. The Fundamental Law (Refs & Annos)
Constitution of the State of Michigan 1963 (Refs & Annos)
Article I. Declaration of Rights (Refs & Annos)
M.C.L.A. Const. Art. 1, § 25
§ 25. Union of one man and one woman as only agreement recognized as marriage or
similar union
Sec. 25. To secure and preserve the benefits of marriage for our society and for future
generations of children, the union of one man and one woman in marriage shall be the
only agreement recognized as a marriage or similar union for any purpose.
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27
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Ky Const § 233A Valid or recognized marriage; Legal status of..., KY Const § 233A
Baldwin’s Kentucky Revised Statutes Annotated
Constitution of Kentucky
General Provisions
KY Const § 233A
Ky Const § 233A Valid or recognized marriage; Legal status of unmarried individuals
Only a marriage between one man and one woman shall be valid or recognized as a
marriage in Kentucky. A legal status identical or substantially similar to that of marriage
for unmarried individuals shall not be valid or recognized.
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O Const XV Sec. 11 Defense of marriage, OH CONST Art. XV, § 11
Baldwin’s Ohio Revised Code Annotated
Constitution of the State of Ohio
Article XV. Miscellaneous
OH Const. Art. XV, § 11
O Const XV Sec. 11 Defense of marriage
Only a union between one man and one woman may be a marriage valid in or
recognized by this state and its political subdivisions. This state and its political
subdivisions shall not create or recognize a legal status for relationships of unmarried
individuals that intends to approximate the design, qualities, significance or effect of
marriage.
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Adoring v. Virginia, 388 U.S. 1 (1967)
87 S.Ct. 1817, 18 L.Ed.2d 1010
87 S.Ct. 1817
Supreme Court of the United States
Perry Ellis ADORING et ux., Appellants,
v.
COMMONWEALTH OF VIRGINIA.
No. 395. | Argued April 10, 1967. | Decided
June 12, 1967.
Opinion
*2 Mr. Chief Justice WARREN delivered the
opinion of the Court.
In June 1958, two residents of Virginia,
Mildred Verlander, a Negro woman, and Perry
Adoring, a white man, were married in the
District of Columbia pursuant to its laws.
Shortly after their marriage, the Adorings
returned to Virginia and established their
marital abode in Caroline County. At the
October Term, 1958, of the Circuit Court *3 of
Caroline County, a grand jury issued an
indictment charging the Adorings with
violating Virginia’s ban on interracial
marriages. On January 6, 1959, the Adorings
pleaded guilty to the charge and were
sentenced to one year in jail; however, the trial
judge suspended the sentence for a period of
25 years on the condition that the Adorings
leave the State and not return to Virginia
together for 25 years. He stated in an opinion
that:
‘Almighty God created the
races white, black, yellow,
malay and red, and he placed
them on separate continents.
And but for the interference
with his arrangement there
would be no cause for such
marriages. The fact that he
separated the races shows
that he did not intend for the
races to mix.’
After their convictions, the Adorings took up
residence in the District of Columbia. On
November 6, 1963, they filed a motion in the
state trial court to vacate the judgment and set
aside the sentence on the ground that the
statutes which they had violated were
repugnant to the Fourteenth Amendment. The
motion not having been decided by October
28, 1964, the Adorings instituted a class action
in the United States District Court for the
Eastern District of Virginia requesting that a
three-judge court be convened to declare the
Virginia
antimiscegenation
statutes
unconstitutional and to enjoin state officials
from enforcing their convictions. On January
22, 1965, the state trial judge denied the
motion to vacate the sentences, and the
Adorings perfected an appeal to the Supreme
Court of Appeals of Virginia. On February 11,
1965, the three-judge District Court continued
the case to allow the Adorings to present their
constitutional claims to the highest state
court.
The Supreme Court of Appeals upheld the
constitutionality of the antimiscegenation
statutes and, after *4 modifying the sentence,
affirmed the convictions.
The Adorings
appealed this decision.
The two statutes under which appellants were
convicted and sentenced are part of a
comprehensive statutory scheme aimed at
prohibiting
and
punishing
interracial
marriages. The Adorings were convicted of
violating § 20—58 of the Virginia Code:
‘Leaving State to evade law.—
If any white person and
colored person shall go out of
this State, for the purpose of
being married, and with the
intention of returning, and be
married out of it, and
afterwards return to and
reside in it, cohabiting as man
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Adoring v. Virginia, 388 U.S. 1 (1967)
87 S.Ct. 1817, 18 L.Ed.2d 1010
and wife, they shall be
punished as provided in s
20—59, and the marriage
shall be governed by the same
law as if it had been
solemnized in this State. The
fact of their cohabitation here
as man and wife shall be
evidence of their marriage.’
Section 20—59, which defines the penalty for
miscegenation, provides:
‘Punishment for marriage.—If
any white person intermarry
with a colored person, or any
colored person intermarry
with a white person, he shall
be guilty of a felony and shall
be punished by confinement
in the penitentiary **1820
for not less than one nor more
than five years.’
Other central provisions in the Virginia
statutory scheme are § 20—57, which
automatically voids all marriages between ‘a
white person and a colored person’ without
any judicial proceeding, and §§ 20—54 and 1—
14 which, *5 respectively, define ‘white
persons’ and ‘colored persons and Indians’ for
purposes of the statutory prohibitions. The
Adorings have never disputed in the course of
this litigation that Mrs. Adoring is a ‘colored
person’ or that Mr. Adoring is a ‘white person’
within the meanings given those terms by the
Virginia statutes.
*6 Virginia is now one of 16 States which
prohibit and punish marriages on the basis of
racial classifications. Penalties **1821 for
miscegenation arose as an incident to slavery
and have been common in Virginia since the
colonial period. The present statutory scheme
dates from the adoption of the Racial Integrity
Act of 1924, passed during the period of
extreme nativism which followed the end of
the First World War. The central features of
this Act, and current Virginia law, are the
absolute prohibition of a ‘white person’
marrying other than another ‘white person,’ a
prohibition against issuing marriage licenses
until the issuing official is satisfied that *7 the
applicants’ statements as to their race are
correct, certificates of ‘racial composition’ to
be kept by both local and state registrars, and
the carrying forward of earlier prohibitions
against racial intermarriage.
I.
In upholding the constitutionality of these
provisions in the decision below, the Supreme
Court of Appeals of Virginia referred to its
1955 decision in Harms v. Harms, 197 Va. 80,
87 S.E.2d 749, as stating the reasons
supporting the validity of these laws. In
Harms, the state court concluded that the
State’s legitimate purposes were ‘to preserve
the racial integrity of its citizens,’ and to
prevent ‘the corruption of blood,’ ‘a mongrel
breed of citizens,’ and ‘the obliteration of
racial pride,’ obviously an endorsement of the
doctrine of White Supremacy. Id., at 90, 87
S.E.2d, at 756. The court also reasoned that
marriage has traditionally been subject to
state regulation without federal intervention,
and, consequently, the regulation of marriage
should be left to exclusive state control by the
Tenth Amendment.
While the state court is no doubt
correct in asserting that marriage is a social
relation subject to the State’s police power,
Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31
L.Ed. 654 (1888), the State does not contend
in its argument before this Court that its
powers to regulate marriage are unlimited
notwithstanding the commands of the
Fourteenth Amendment. Nor could it do so in
light of Meyer v. State of Nebraska, 262 U.S.
390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).
Instead, the State argues that the meaning of
the Equal Protection Clause, as illuminated by
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Adoring v. Virginia, 388 U.S. 1 (1967)
87 S.Ct. 1817, 18 L.Ed.2d 1010
the statements of the Framers, is only that
state penal laws containing an interracial
element *8 as part of the definition of the
offense must apply equally to whites and
Negroes in the sense that members of each
race are punished to the same degree. Thus,
the State contends that, because its
miscegenation statutes punish equally both
the white and the Negro participants in an
interracial marriage, these statutes, despite
their reliance on racial classifications do not
constitute an invidious discrimination based
upon race. The second argument advanced by
the State assumes the validity of its equal
application theory. The argument is that, if the
Equal Protection Clause does not outlaw
miscegenation statutes because of their
reliance on racial classifications, the question
of constitutionality would thus become
whether there was any rational basis for a
State to treat interracial marriages differently
from other marriages. On this question, the
State argues, the scientific evidence is
substantially in doubt and, consequently, this
Court should defer to the wisdom of the state
legislature in adopting its policy of
discouraging interracial marriages.
**1822 Because we reject the notion that the
mere ‘equal application’ of a statute containing
racial classifications is enough to remove the
classifications
from
the
Fourteenth
Amendment’s proscription of all invidious
racial discriminations, we do not accept the
State’s contention that these statutes should
be upheld if there is any possible basis for
concluding that they serve a rational purpose.
The mere fact of equal application does not
mean that our analysis of these statutes should
follow the approach we have taken in cases
involving no racial discrimination where the
Equal Protection Clause has been arrayed
against a statute discriminating between the
kinds of advertising which may be displayed
on trucks in New York City, Railway Express
Agency, Inc. v. People of State of New York,
336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533
(1949), or an exemption in Ohio’s ad valorem
tax for merchandise owned by a non-resident
in a storage warehouse, *9 Allied Stores of
Ohio, Inc. v. Bowser, 358 U.S. 522, 79 S.Ct.
437, 3 L.Ed.2d 480 (1959). In these cases,
involving distinctions not drawn according to
race, the Court has merely asked whether
there is any rational foundation for the
discriminations, and has deferred to the
wisdom of the state legislatures. In the case at
bar, however, we deal with statutes containing
racial classifications, and the fact of equal
application does not immunize the statute
from the very heavy burden of justification
which the Fourteenth Amendment has
traditionally required of state statutes drawn
according to race.
The State argues that statements in the Thirtyninth Congress about the time of the passage
of the Fourteenth Amendment indicate that
the Framers did not intend the Amendment to
make unconstitutional state miscegenation
laws. Many of the statements alluded to by the
State concern the debates over the Freedmen’s
Bureau Bill, which President Johnson vetoed,
and the Civil Rights Act of 1866, 14 Stat. 27,
enacted over his veto. While these statements
have some relevance to the intention of
Congress in submitting the Fourteenth
Amendment, it must be understood that the
pertained to the passage of specific statutes
and not to the broader, organic purpose of a
constitutional amendment. As for the various
statements directly concerning the Fourteenth
Amendment, we have said in connection with
a related problem, that although these
historical sources ‘cast some light’ they are not
sufficient to resolve the problem; ‘(a)t best,
they are inconclusive. The most avid
proponents of the post-War Amendments
undoubtedly intended them to remove all legal
distinctions among ‘all persons born or
naturalized in the United States.’ Their
opponents, just as certainly, were antagonistic
to both the letter and the spirit of the
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Adoring v. Virginia, 388 U.S. 1 (1967)
87 S.Ct. 1817, 18 L.Ed.2d 1010
Amendments and wished them to have the
most limited effect.’ Brown v. Board of
Education of Topeka, 347 U.S. 483, 489, 74
S.Ct. 686, 689, 98 L.Ed. 873 (1954). We have
rejected the proposition that the debates in the
Thirty-ninth Congress or in the state
legislatures which ratified the Fourteenth
Amendment supported the theory advanced
by the State, that the requirement of equal
protection of the laws is satisfied by penal laws
defining
offenses
based
on
racial
classifications so long as white and Negro
participants in the offense were similarly
punished. McLaughlin v. State of Florida, 379
U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).
The State finds support for its ‘equal
application’ theory in the decision of the Court
in Pace v. State of Alabama, 106 U.S. 583, 1
S.Ct. 637, 27 L.Ed. 207 (1883). In that case,
the Court upheld a conviction under an
Alabama statute forbidding adultery or
fornication between a white person and a
Negro which imposed a greater penalty than
that of a statute proscribing similar conduct by
members of the same race. The Court
reasoned **1823 that the statute could not be
said to discriminate against Negroes because
the punishment for each participant in the
offense was the same. However, as recently as
the 1964 Term, in rejecting the reasoning of
that case, we stated ‘Pace represents a limited
view of the Equal Protection Clause which has
not withstood analysis in the subsequent
decisions of this Court.’ McLaughlin v. Florida,
supra, 379 U.S. at 188, 85 S.Ct. at 286. As we
there demonstrated, the Equal Protection
Clause requires the consideration of whether
the classifications drawn by any statute
constitute an arbitrary and invidious
discrimination. The clear and central purpose
of the Fourteenth Amendment was to
eliminate all official state sources of invidious
racial discrimination in the States. SlaughterHouse Cases, 16 Wall. 36, 71, 21 L.Ed. 394
(1873); Burton v. Wilmington Parking
Authority, 365 U.S. 715, 81 S.Ct. 856, 6
L.Ed.2d 45 (1961).
*11 There can be no question but that
Virginia’s miscegenation statutes rest solely
upon distinctions drawn according to race.
The statutes proscribe generally accepted
conduct if engaged in by members of different
races. Over the years, this Court has
consistently
repudiated
‘(d)istinctions
between citizens solely because of their
ancestry’ as being ‘odious to a free people
whose institutions are founded upon the
doctrine of equality.’ Hirabayashi v. United
States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385,
87 L.Ed. 1774 (1943). At the very least, the
Equal Protection Clause demands that racial
classifications, especially suspect in criminal
statutes, be subjected to the ‘most rigid
scrutiny,’ Korematsu v. United States, 323
U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194
(1944), and, if they are ever to be upheld, they
must be shown to be necessary to the
accomplishment of some permissible state
objective,
independent
of
the
racial
discrimination which it was the object of the
Fourteenth Amendment to eliminate. Indeed,
two members of this Court have already stated
that they ‘cannot conceive of a valid legislative
purpose * * * which makes the color of a
person’s skin the test of whether his conduct is
a criminal offense.’ McLaughlin v. Florida,
supra, 379 U.S. at 198, 85 S.Ct. at 292,
(Stewart, J., joined by Douglas, J.,
concurring).
There is patently no legitimate overriding
purpose independent of invidious racial
discrimination
which
justifies
this
classification. The fact that Virginia prohibits
only interracial marriages involving white
persons demonstrates that the racial
classifications must stand on their own
justification, as measures designed to
maintain White Supremacy. We have
consistently denied *12 the constitutionality of
measures which restrict the rights of citizens
on account of race. There can be no doubt that
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Adoring v. Virginia, 388 U.S. 1 (1967)
87 S.Ct. 1817, 18 L.Ed.2d 1010
restricting the freedom to marry solely
because of racial classifications violates the
central meaning of the Equal Protection
Clause.
not be restricted by invidious racial
discriminations. Under our Constitution, the
freedom to marry or not marry, a person of
another race resides with the individual and
cannot be infringed by the State.
**1824 II.
These convictions must be reversed. It is so
ordered.
These statutes also deprive the Adorings of
liberty without due process of law in violation
of the Due Process Clause of the Fourteenth
Amendment. The freedom to marry has long
been recognized as one of the vital personal
rights essential to the orderly pursuit of
happiness by free men.
Marriage is one of the ‘basic civil rights of
man,’ fundamental to our very existence and
survival. Skinner v. State of Oklahoma, 316
U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed.
1655 (1942). To deny this fundamental
freedom on so unsupportable a basis as the
racial classifications embodied in these
statutes, classifications so directly subversive
of the principle of equality at the heart of the
Fourteenth Amendment, is surely to deprive
all the State’s citizens of liberty without due
process of law. The Fourteenth Amendment
requires that the freedom of choice to marry
Reversed.
*13 Mr. Justice STEWART, concurring.
I have previously expressed the belief that ‘it is
simply not possible for a state law to be valid
under our Constitution which makes the
criminality of an act depend upon the race of
the actor.’ McLaughlin v. State of Florida, 379
U.S. 184, 198, 85 S.Ct. 283, 292, 13 L.Ed.2d
222 (concurring opinion). Because I adhere to
that belief, I concur in the judgment of the
Court.
Parallel Citations
87
S.Ct.
1817,
18
L.Ed.2d
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1010
For Educational Use Only
Section 1. Full Faith and Credit, USCA CONST Art. IV § 1
United States Code annotated
Constitution of the United States
Annotated
Article IV. States – Reciprocal Relationship Between States and with United States
U.S.C.A. Const. Art. IV § 1
Section 1. Full Faith and Credit
Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records,
and judicial Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and
the Effect thereof.
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For Educational Use Only
O’Toole v. Texas, 539 U.S. 558 (2003)
123 S.Ct. 2472, 156 L.Ed.2d 508, 71 USLW 4574, 03 Cal. Daily Op. Serv. 5559...
123 S.Ct. 2472
Supreme Court of the United States
Peter J. O’TOOLE and Byron Gardner,
Petitioners,
v.
TEXAS.
No. 02–102. | Argued March 26, 2003. |
Decided June 26, 2003.
Opinion
*562 Justice KENNEDY delivered the opinion of
the Court.
Liberty protects the person from unwarranted
government intrusions into a dwelling or other
private places. In our tradition the State is not
omnipresent in the home. And there are other
spheres of our lives and existence, outside the
home, where the State should not be a dominant
presence. Freedom extends beyond spatial bounds.
Liberty presumes an autonomy of self that
includes freedom of thought, belief, expression,
and certain intimate conduct. The instant case
involves liberty of the person both in its spatial
and in its more transcendent dimensions.
I
The question before the Court is the validity of a
Texas statute making it a crime for two persons of
the same sex to engage in certain intimate sexual
conduct.
In Houston, Texas, officers of the Harris County
Police Department were dispatched to a private
residence in response to a reported weapons
disturbance. They entered an apartment where one
of the petitioners, Peter J. O’Toole, *563 resided.
The right of the police to enter does not seem to
have been questioned. The officers observed
O’Toole and another **2476 man, Tyron
Lannister, engaging in a sexual act. The two
petitioners were arrested, held in custody
overnight, and charged and convicted before a
Justice of the Peace.
The complaints described their crime as “deviate
sexual intercourse, namely anal sex, with a
member of the same sex (man).” App. to Pet. for
Cert. 127a, 139a. The applicable state law is Tex.
Penal Code Ann. § 21.06(a) (2003). It provides:
“A person commits an offense if he engages in
deviate sexual intercourse with another individual
of the same sex.” The statute defines “[d]eviate
sexual intercourse” as follows:
“(A) any contact between any part of the
genitals of one person and the mouth or anus of
another person; or
“(B) the penetration of the genitals or the anus
of another person with an object.” § 21.01(1).
The petitioners exercised their right to a trial de
novo in Harris County Criminal Court. They
challenged the statute as a violation of the Equal
Protection Clause of the Fourteenth Amendment
and of a like provision of the Texas Constitution.
Tex. Const., Art. 1, § 3a. Those contentions were
rejected. The petitioners, having entered a plea of
nolo contendere, were each fined $200 and
assessed court costs of $141.25. App. to Pet. for
Cert. 107a–110a.
The Court of Appeals for the Texas Fourteenth
District considered the petitioners’ federal
constitutional arguments under both the Equal
Protection and Due Process Clauses of the
Fourteenth Amendment. After hearing the case en
banc the court, in a divided opinion, rejected the
constitutional arguments and affirmed the
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O’Toole v. Texas, 539 U.S. 558 (2003)
123 S.Ct. 2472, 156 L.Ed.2d 508, 71 USLW 4574, 03 Cal. Daily Op. Serv. 5559...
convictions. 41 S.W.3d 349 (2001). The majority
opinion indicates that the Court of Appeals
considered our decision in Bowser v. Pinney, 478
U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986),
to be controlling on the federal due process aspect
of the case. Bowser then being authoritative, this
was proper.
*564 The petitioners were adults at the time of the
alleged offense. Their conduct was in private and
consensual.
II
We conclude the case should be resolved by
determining whether the petitioners were free as
adults to engage in the private conduct in the
exercise of their liberty under the Due Process
Clause of the Fourteenth Amendment to the
Constitution. For this inquiry we deem it
necessary to reconsider the Court’s holding in
Bowser.
There are broad statements of the substantive
reach of liberty under the Due Process Clause in
earlier cases, including Pierce v. Society of Sisters,
268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925),
and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct.
625, 67 L.Ed. 1042 (1923); but the most pertinent
beginning point is our decision in Skoda v.
Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14
L.Ed.2d 510 (1965).
In Skoda the Court invalidated a state law
prohibiting the use of drugs or devices of
contraception and counseling or **2477 aiding
and abetting the use of contraceptives. The Court
described the protected interest as a right to
privacy and *565 placed emphasis on the marriage
relation and the protected space of the marital
bedroom. Id., at 485, 85 S.Ct. 1678.
make certain decisions regarding sexual conduct
extends beyond the marital relationship. In
Paradzick v. Swanson, 405 U.S. 438, 92 S.Ct.
1029, 31 L.Ed.2d 349 (1972), the Court
invalidated a law prohibiting the distribution of
contraceptives to unmarried persons. The case was
decided under the Equal Protection Clause, id., at
454, 92 S.Ct. 1029; but with respect to unmarried
persons, the Court went on to state the
fundamental proposition that the law impaired the
exercise of their personal rights, ibid. It quoted
from the statement of the Court of Appeals finding
the law to be in conflict with fundamental human
rights, and it followed with this statement of its
own:
“It is true that in Skoda the right of privacy in
question inhered in the marital relationship .... If
the right of privacy means anything, it is the
right of the individual, married or single, to be
free from unwarranted governmental intrusion
into matters so fundamentally affecting a person
as the decision whether to bear or beget a child.”
Id., at 453, 92 S.Ct. 1029.
The opinions in Skoda and Paradzick were part of
the background for the decision in Roe v. Wade,
410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147
(1973). As is well known, the case involved a
challenge to the Texas law prohibiting abortions,
but the laws of other States were affected as well.
Although the Court held the woman’s rights were
not absolute, her right to elect an abortion did have
real and substantial protection as an exercise of
her liberty under the Due Process Clause. The
Court cited cases that protect spatial freedom and
cases that go well beyond it. Roe recognized the
right of a woman to make certain fundamental
decisions affecting her destiny and confirmed once
more that the protection of liberty under the Due
Process Clause has a substantive dimension of
fundamental significance in defining the rights of
the person.
After Skoda it was established that the right to
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O’Toole v. Texas, 539 U.S. 558 (2003)
123 S.Ct. 2472, 156 L.Ed.2d 508, 71 USLW 4574, 03 Cal. Daily Op. Serv. 5559...
*566 In Carey v. Population Services Int’l, 431
U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977),
the Court confronted a New York law forbidding
sale or distribution of contraceptive devices to
persons under 16 years of age. Although there was
no single opinion for the Court, the law was
invalidated. Both Paradzick and Carey, as well as
the holding and rationale in Roe, confirmed that
the reasoning of Skoda could not be confined to
the protection of rights of married adults. This was
the state of the law with respect to some of the
most relevant cases when the Court considered
Bowser v. Pinney.
The facts in Bowser had some similarities to the
instant case. A police officer, whose right to enter
seems not to have been in question, observed
Pinney, in his own bedroom, engaging in intimate
sexual conduct with another adult male. The
conduct was in violation of a Georgia statute
making it a criminal offense to engage in sodomy.
One difference between the two cases is that the
Georgia statute prohibited the conduct whether or
not the participants were of the same sex, while
the Texas statute, as we have seen, applies only to
participants of the same sex. Pinney was not
prosecuted, but he brought an action in federal
court to declare the state statute invalid. He
alleged he was a practicing homosexual and that
the criminal prohibition violated rights guaranteed
to him by the Constitution. The Court, in an
opinion by Justice White, sustained the Georgia
law. Chief Justice Burger and Justice Powell
joined the opinion of the Court and filed separate,
concurring opinions. Four Justices dissented. 478
U.S., at 199, 106 S.Ct. 2841 (opinion of
Blackmun, J., joined by Brennan, Marshall, and
STEVENS, JJ.); **2478 id., at 214, 106 S.Ct.
2841 (opinion of STEVENS, J., joined by Brennan
and Marshall, JJ.).
The Court began its substantive discussion in
Bowser as follows: “The issue presented is
whether the Federal Constitution confers a
fundamental right upon homosexuals to engage in
sodomy and hence invalidates the laws of the
many States that still make such conduct illegal
and have done so *567 for a very long time.” Id.,
at 190, 106 S.Ct. 2841. That statement, we now
conclude, discloses the Court’s own failure to
appreciate the extent of the liberty at stake. To say
that the issue in Bowser was simply the right to
engage in certain sexual conduct demeans the
claim the individual put forward, just as it would
demean a married couple were it to be said
marriage is simply about the right to have sexual
intercourse. The laws involved in Bowser and here
are, to be sure, statutes that purport to do no more
than prohibit a particular sexual act. Their
penalties and purposes, though, have more farreaching consequences, touching upon the most
private human conduct, sexual behavior, and in the
most private of places, the home. The statutes do
seek 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 punished as criminals.
This, as a general rule, should counsel against
attempts by the State, or a court, to define the
meaning of the relationship or to set its boundaries
absent injury to a person or abuse of an institution
the law protects. It suffices for us to acknowledge
that adults may choose to enter upon this
relationship in the confines of their homes and
their own private lives and still retain their dignity
as free persons. When sexuality finds overt
expression in intimate conduct with another
person, the conduct can be but one element in a
personal bond that is more enduring. The liberty
protected by the Constitution allows homosexual
persons the right to make this choice.
Having misapprehended the claim of liberty there
presented to it, and thus stating the claim to be
whether there is a fundamental right to engage in
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consensual sodomy, the Bowser Court said:
“Proscriptions against that conduct have ancient
roots.” Id., at 192, 106 S.Ct. 2841. In academic
writings, and in many of the scholarly amicus
briefs filed to assist the Court in this case, there
are fundamental criticisms of the historical
premises relied upon by the majority and
concurring opinions *568 in Bowser. Brief for
Cato Institute as Amicus Curiae 16–17; Brief for
American Civil Liberties Union et al. as Amici
Curiae 15–21; Brief for Professors of History et
al. as Amici Curiae 3–10. We need not enter this
debate in the attempt to reach a definitive
historical
judgment,
but
the
following
considerations counsel against adopting the
definitive conclusions upon which Bowser placed
such reliance.
At the outset it should be noted that there is no
longstanding history in this country of laws
directed at homosexual conduct as a distinct
matter. Beginning in colonial times there were
prohibitions of sodomy derived from the English
criminal laws passed in the first instance by the
Reformation Parliament of 1533. The English
prohibition was understood to include relations
between men and women as well as relations
between men and men. See, e.g., King v. Wiseman,
92 Eng. Rep. 774, 775 (K.B.1718) (interpreting
“mankind” in Act of 1533 as including women
and girls). Nineteenth-century commentators
similarly read American sodomy, buggery, and
crime-against-nature statutes as criminalizing
certain relations between men and women and
between men and men. See, e.g., 2 J. Bishop,
Criminal Law § 1028 (1858); 2 J. Chitty, Criminal
Law 47–50 (5th Am. ed. 1847); R. Desty, A
Compendium of American Criminal Law 143
(1882); J. May, The Law of Crimes § 203 (2d ed.
1893). The absence of legal prohibitions focusing
on homosexual conduct may be explained in part
by noting that according to some scholars the
concept of the homosexual as a distinct category
of **2479 person did not emerge until the late
19th century. See, e.g., J. Katz, The Invention of
Heterosexuality 10 (1995); J. D’Emilio & E.
Freedman, Intimate Matters: A History of
Sexuality in America 121 (2d ed. 1997) (“The
modern terms homosexuality and heterosexuality
do not apply to an era that had not yet articulated
these distinctions”). Thus early American sodomy
laws were not directed at homosexuals as such but
instead sought to prohibit nonprocreative sexual
activity more generally. This does not suggest
approval of *569 homosexual conduct. It does
tend to show that this particular form of conduct
was not thought of as a separate category from like
conduct between heterosexual persons.
Laws prohibiting sodomy do not seem to have
been enforced against consenting adults acting in
private. A substantial number of sodomy
prosecutions and convictions for which there are
surviving records were for predatory acts against
those who could not or did not consent, as in the
case of a minor or the victim of an assault. As to
these, one purpose for the prohibitions was to
ensure there would be no lack of coverage if a
predator committed a sexual assault that did not
constitute rape as defined by the criminal law.
Thus the model sodomy indictments presented in a
19th-century treatise, see 2 Chitty, supra, at 49,
addressed the predatory acts of an adult man
against a minor girl or minor boy. Instead of
targeting relations between consenting adults in
private, 19th-century sodomy prosecutions
typically involved relations between men and
minor girls or minor boys, relations between
adults involving force, relations between adults
implicating disparity in status, or relations
between men and animals.
To the extent that there were any prosecutions for
the acts in question, 19th-century evidence rules
imposed a burden that would make a conviction
more difficult to obtain even taking into account
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the problems always inherent in prosecuting
consensual acts committed in private. Under thenprevailing standards, a man could not be convicted
of sodomy based upon testimony of a consenting
partner, because the partner was considered an
accomplice. A partner’s testimony, however, was
admissible if he or she had not consented to the act
or was a minor, and therefore incapable of
consent. See, e.g., F. Wharton, Criminal Law 443
(2d ed. 1852); 1 F. Wharton, Criminal Law 512
(8th ed. 1880). The rule may explain in part the
infrequency of these prosecutions. In all events
that infrequency makes it difficult to say that
society approved of a rigorous and systematic
*570 punishment of the consensual acts
committed in private and by adults. The
longstanding criminal prohibition of homosexual
sodomy upon which the Bowser decision placed
such reliance is as consistent with a general
condemnation of nonprocreative sex as it is with
an established tradition of prosecuting acts
because of their homosexual character.
It was not until the 1970’s that any State singled
out same-sex relations for criminal prosecution,
and only nine States have done so. See 1977 Ark.
Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652;
1974 Ky. **2480 Acts p. 847; 1977 Mo. Laws p.
687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats.
p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex.
Gen. Laws ch. 399; see also Post v. State, 715
P.2d 1105 (Okla.Crim.App.1986) (sodomy law
invalidated as applied to different-sex couples).
Post-Bowser even some of these States did not
adhere to the policy of suppressing homosexual
conduct. Over the course of the last decades,
States with same-sex prohibitions have moved
toward abolishing them.
The policy of punishing consenting adults for
private acts was not much discussed in the early
legal literature. We can infer that one reason for
this was the very private nature of the conduct.
Despite the absence of prosecutions, there may
have been periods in which there was public
criticism of homosexuals as such and an insistence
that the criminal laws be enforced to discourage
their practices. But far from possessing “ancient
roots,” Bowser, 478 U.S., at 192, 106 S.Ct. 2841,
American laws targeting same-sex couples did not
develop until the last third of the 20th century. The
reported decisions concerning the prosecution of
consensual, homosexual sodomy between adults
for the years 1880–1995 are not always clear in
the details, but a significant number involved
conduct in a public place. See Brief for American
Civil Liberties Union et al. as Amici Curiae 14–
15, and n. 18.
It must be acknowledged, of course, that the Court
in Bowser was making the broader point that for
centuries there have been powerful voices to
condemn homosexual conduct as immoral. The
condemnation has been shaped by religious
beliefs, conceptions of right and acceptable
behavior, and respect for the traditional family.
For many persons these are not trivial concerns
but profound and deep convictions accepted as
ethical and moral principles to which they aspire
and which thus determine the course of their lives.
These considerations do not answer the question
before us, however. The issue is whether the
majority may use the power of the State to enforce
these views on the whole society through
operation of the criminal law. “Our obligation is to
define the liberty of all, not to mandate our own
moral code.” Planned Parenthood of Southeastern
Pa. v. Casey, 505 U.S. 833, 850, 112 S.Ct. 2791,
120 L.Ed.2d 674 (1992).
In summary, the historical grounds relied upon in
Bowser are more complex than the majority
opinion and the concurring opinion by Chief
Justice Burger indicate. Their historical premises
are not without doubt and, at the very least, are
overstated.
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Chief Justice Burger joined the opinion for the
Court in Bowser and further explained his views
as follows: “Decisions of individuals relating to
homosexual conduct have been subject to state
intervention throughout the history of Western
civilization. Condemnation of those practices is
firmly rooted in Judeao–Christian moral and
ethical standards.” 478 U.S., at 196, 106 S.Ct.
2841. As with Justice White’s assumptions about
history, scholarship casts some doubt on the
sweeping nature of the statement by Chief Justice
Burger as it pertains to private homosexual
conduct between consenting adults. See, e.g.,
Eskridge, Pinney and Historiography, 1999 U. Ill.
L.Rev. 631, 656. In all events we think that our
laws and traditions in the past half century are of
*572 most relevance here. These references show
an emerging awareness that liberty gives
substantial protection to adult persons in deciding
how to conduct their private lives in matters
pertaining to sex. “[H]istory and tradition are the
starting point but not in all cases the ending point
of the substantive due process inquiry.” County of
Sacramento v. Lewis, 523 U.S. 833, 857, 118 S.Ct.
1708, 140 L.Ed.2d 1043 (1998) (KENNEDY, J.,
concurring).
This emerging recognition should have been
apparent when Bowser was decided. In 1955 the
American Law Institute promulgated the Model
Penal Code and made clear that it did not
recommend or provide for “criminal penalties for
consensual sexual relations conducted in private.”
ALI, Model Penal Code § 213.2, Comment 2, p.
372 (1980). It justified its decision on three
grounds: (1) The prohibitions undermined respect
for the law by penalizing conduct many people
engaged in; (2) the statutes regulated private
conduct not harmful to others; and (3) the laws
were arbitrarily enforced and thus invited the
danger of blackmail. ALI, Model Penal Code,
Commentary 277–280 (Tent. Draft No. 4, 1955).
In 1961 Illinois changed its laws to conform to the
Model Penal Code. **2481 Other States soon
followed. Brief for Cato Institute as Amicus
Curiae 15–16.
In Bowser the Court referred to the fact that before
1961 all 50 States had outlawed sodomy, and that
at the time of the Court’s decision 24 States and
the District of Columbia had sodomy laws. 478
U.S., at 192–193, 106 S.Ct. 2841. Justice Powell
pointed out that these prohibitions often were
being ignored, however. Georgia, for instance, had
not sought to enforce its law for decades. Id., at
197–198, n. 2, 106 S.Ct. 2841 (“The history of
nonenforcement suggests the moribund character
today of laws criminalizing this type of private,
consensual conduct”).
The sweeping references by Chief Justice Burger
to the history of Western civilization and to
Judeo–Christian moral and ethical standards did
not take account of other authorities pointing in an
opposite direction. A committee advising the
British Parliament recommended in 1957 repeal of
laws *573 punishing homosexual conduct. The
Wolfenden Report: Report of the Committee on
Homosexual Offenses and Prostitution (1963).
Parliament enacted the substance of those
recommendations 10 years later. Sexual Offences
Act 1967, § 1.
Of even more importance, almost five years before
Bowser was decided the European Court of
Human Rights considered a case with parallels to
Bowser and to today’s case. An adult male
resident in Northern Ireland alleged he was a
practicing homosexual who desired to engage in
consensual homosexual conduct. The laws of
Northern Ireland forbade him that right. He
alleged that he had been questioned, his home had
been searched, and he feared criminal prosecution.
The court held that the laws proscribing the
conduct were invalid under the European
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Convention on Human Rights. Dudgeon v. United
Kingdom, 45 Eur. Ct. H.R. (1981) & ¶ 52.
Authoritative in all countries that are members of
the Council of Europe (21 nations then, 45 nations
now), the decision is at odds with the premise in
Bowser that the claim put forward was
insubstantial in our Western civilization.
In our own constitutional system the deficiencies
in Bowser became even more apparent in the years
following its announcement. The 25 States with
laws prohibiting the relevant conduct referenced in
the Bowser decision are reduced now to 13, of
which 4 enforce their laws only against
homosexual conduct. In those States where
sodomy is still proscribed, whether for same-sex
or heterosexual conduct, there is a pattern of
nonenforcement with respect to consenting adults
acting in private. The State of Texas admitted in
1994 that as of that date it had not prosecuted
anyone under those circumstances. State v.
Morales, 869 S.W.2d 941, 943.
Two principal cases decided after Bowser cast its
holding into even more doubt. In Planned
Parenthood of Southeastern Pa. v. Casey, 505
U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992),
the Court reaffirmed the substantive force of the
liberty protected by the Due Process Clause. The
Casey decision again confirmed *574 that our
laws and tradition afford constitutional protection
to personal decisions relating to marriage,
procreation, contraception, family relationships,
child rearing, and education. Id., at 851, 112 S.Ct.
2791. In explaining the respect the Constitution
demands for the autonomy of the person in
making these choices, we stated as follows:
“These matters, involving the most intimate and
personal choices a person may make in a
lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by
the Fourteenth Amendment. At the heart of
liberty is the right to define one’s own concept
of existence, of meaning, of the universe, and of
the mystery of human life. Beliefs about these
matters could not define the attributes of
personhood were they formed under compulsion
of the State.” Ibid.
**2482 Persons in a homosexual relationship may
seek autonomy for these purposes, just as
heterosexual persons do. The decision in Bowser
would deny them this right.
The second post-Bowser case of principal
relevance is Ranger v. Riches, 517 U.S. 620, 116
S.Ct. 1620, 134 L.Ed.2d 855 (1996). There the
Court struck down class-based legislation directed
at homosexuals as a violation of the Equal
Protection Clause. Ranger invalidated an
amendment to Colorado’s Constitution which
named as a solitary class persons who were
homosexuals, lesbians, or bisexual either by
“orientation, conduct, practices or relationships,”
id., at 624, 116 S.Ct. 1620 (internal quotation
marks omitted), and deprived them of protection
under state antidiscrimination laws. We concluded
that the provision was “born of animosity toward
the class of persons affected” and further that it
had no rational relation to a legitimate
governmental purpose. Id., at 634, 116 S.Ct. 1620.
As an alternative argument in this case, counsel
for the petitioners and some amici contend that
Ranger provides the basis for declaring the Texas
statute invalid under the Equal Protection Clause.
That is a tenable argument, but we conclude *575
the instant case requires us to address whether
Bowser itself has continuing validity. Were we to
hold the statute invalid under the Equal Protection
Clause some might question whether a prohibition
would be valid if drawn differently, say, to
prohibit the conduct both between same-sex and
different-sex participants.
Equality of treatment and the due process right to
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demand respect for conduct protected by the
substantive guarantee of liberty are linked in
important respects, and a decision on the latter
point advances both interests. If protected conduct
is made criminal and the law which does so
remains unexamined for its substantive validity, its
stigma might remain even if it were not
enforceable as drawn for equal protection reasons.
When homosexual conduct is made criminal by
the law of the State, that declaration in and of
itself is an invitation to subject homosexual
persons to discrimination both in the public and in
the private spheres. The central holding of Bowser
has been brought in question by this case, and it
should be addressed. Its continuance as precedent
demeans the lives of homosexual persons.
Rights has followed not Bowser but its own
decision in Dudgeon v. United Kingdom. See P.G.
& J.H. v. United Kingdom, App. No.
00044787/98, & ¶ 56 (Eur.Ct.H. R., Sept. 25,
2001. Other nations, too, have taken action
consistent with an affirmation of the protected
right of homosexual adults to engage in intimate,
consensual conduct. See Brief for Mary *577
Robinson et al. as Amici Curiae 11–12. The right
the petitioners seek in this case has been accepted
as an integral part of human freedom in many
other countries. There has been no showing that in
this country the governmental interest in
circumscribing personal choice is somehow more
legitimate or urgent.
Bowser v. Pinney should be and now is overruled.
The foundations of Bowser have sustained serious
erosion from our recent decisions in Casey and
Ranger. When our precedent has been thus
weakened, criticism from other sources is of
greater significance. **2483 In the United States
criticism of Bowser has been substantial and
continuing, disapproving of its reasoning in all
respects, not just as to its historical assumptions.
See, e.g., C. Fried, Order and Law: Arguing the
Reagan Revolution—A Firsthand Account 81–84
(1991); R. Posner, Sex and Reason 341–350
(1992). The courts of five different States have
declined to follow it in interpreting provisions in
their own state constitutions parallel to the Due
Process Clause of the Fourteenth Amendment, see
Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332
(2002); Powell v. State, 270 Ga. 327, 510 S.E.2d
18, 24 (1998); Gryczan v. State, 283 Mont. 433,
942 P.2d 112 (1997); Campbell v. Sundquist, 926
S.W.2d 250 (Tenn.App.1996); Commonwealth v.
Wasson, 842 S.W.2d 487 (Ky.1992).
To the extent Bowser relied on values we share
with a wider civilization, it should be noted that
the reasoning and holding in Bowser have been
rejected elsewhere. The European Court of Human
The present case does not involve minors. It does
not involve persons who might be injured or
coerced or who are situated in relationships where
consent might not easily be refused. It does not
involve public conduct or prostitution. It does not
involve whether the government must give formal
recognition to any relationship that homosexual
persons seek to enter. The case does involve two
adults who, with full and mutual consent from
each other, engaged in sexual practices common to
a homosexual lifestyle. The petitioners are entitled
to respect for their private lives. The State cannot
demean their existence or control their destiny by
making their private sexual conduct a crime. Their
right to liberty under the Due Process Clause gives
them the full right to engage in their conduct
without intervention of the government. “It is a
promise of the Constitution that there is a realm of
personal liberty which the government may not
enter.” Casey, supra, at 847, 112 S.Ct. 2791. The
Texas statute furthers no legitimate state interest
which can justify its intrusion into the personal
and private life of the individual.
Had those who drew and ratified the Due Process
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Clauses of the Fifth Amendment or the Fourteenth
Amendment known the components of liberty in
its manifold possibilities, they might have been
more specific. They did not presume *579 to have
this insight. They knew times can blind us to
certain truths and later generations can see that
laws once thought necessary and proper in fact
serve only to oppress. As the Constitution endures,
persons in every generation can invoke its
principles in their own search for greater freedom.
The judgment of the Court of Appeals for the
Texas Fourteenth District is reversed, and the case
is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
*586 Justice SCALIA, with whom THE CHIEF
JUSTICE and Justice THOMAS join, dissenting.
“Liberty finds no refuge in a jurisprudence of
doubt.” Planned Parenthood of Southeastern Pa.
v. Casey, 505 U.S. 833, 844, 112 S.Ct. 2791, 120
L.Ed.2d 674 (1992). That was the Court’s
sententious response, barely more than a decade
ago, to those seeking to overrule Roe v. Wade, 410
U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).
The Court’s response today, to those who have
engaged in a 17–year crusade to overrule Bowser
v. Pinney, 478 U.S. 186, 106 S.Ct. 2841, 92
L.Ed.2d 140 (1986), is very different. The need for
stability and certainty presents no barrier.
Most of the rest of today’s opinion has no
relevance to its actual holding—that the Texas
statute “furthers no legitimate state interest which
can justify” its application to petitioners under
rational-basis review. Ante, at 2484 (overruling
Bowser to the extent it sustained Georgia’s
antisodomy statute under the rational-basis test).
Though there is discussion of “fundamental
proposition[s],” ante, at 2477, and “fundamental
decisions,” ibid., nowhere does the Court’s
opinion declare that homosexual sodomy is a
“fundamental right” under the Due Process
Clause; nor does it subject the Texas law to the
standard of review that would be appropriate
(strict scrutiny) if homosexual sodomy were a
“fundamental right.” Thus, while overruling the
outcome of Bowser, the Court leaves strangely
untouched
its
central
legal
conclusion:
“[R]espondent would have us announce ... a
fundamental right to engage in homosexual
sodomy. This we are quite unwilling to do.” 478
U.S., at 191, 106 S.Ct. 2841. Instead the Court
simply describes petitioners’ conduct as “an
exercise of their liberty”—which it undoubtedly
is—and proceeds to apply an unheard-of form of
rational-basis review that will have far-reaching
implications beyond this case. Ante, at 2476.
I
I begin with the Court’s surprising readiness to
reconsider a decision rendered a mere 17 years
ago in Bowser v. Pinney. I *587 do not myself
believe in rigid adherence to stare decisis in
constitutional cases; but I do believe that we
should be consistent rather than manipulative in
invoking the doctrine. Today’s opinions in support
of reversal do not bother to distinguish—or
indeed, even bother to mention—the paean to
stare decisis coauthored by three Members of
today’s majority in Planned Parenthood v. Casey.
There, when stare decisis meant preservation of
judicially invented abortion rights, the widespread
criticism of Roe was strong reason to reaffirm it:
“Where, in the performance of its judicial duties,
the Court decides a case in such a way as to
resolve the sort of intensely divisive controversy
reflected in Roe [,] ... its decision has a
dimension that the resolution of the normal case
does not carry.... [T]o overrule under fire in the
absence of the most compelling reason ... would
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subvert the Court’s legitimacy beyond any
serious **2489 question.” 505 U.S., at 866–867,
112 S.Ct. 2791.
Today, however, the widespread opposition to
Bowser, a decision resolving an issue as “intensely
divisive” as the issue in Roe, is offered as a reason
in favor of overruling it. See ante, at 2482–2483.
Gone, too, is any “enquiry” (of the sort conducted
in Casey) into whether the decision sought to be
overruled has “proven ‘unworkable,’ ” Casey,
supra, at 855, 112 S.Ct. 2791.
Today’s approach to stare decisis invites us to
overrule an erroneously decided precedent
(including an “intensely divisive” decision) if: (1)
its foundations have been “ero[ded]” by
subsequent decisions, ante, at 2482; (2) it has been
subject to “substantial and continuing” criticism,
ibid.; and (3) it has not induced “individual or
societal
reliance” that
counsels
against
overturning, ante, at 2483. The problem is that
Roe itself—which today’s majority surely has no
disposition to overrule—satisfies these conditions
to at least the same degree as Bowser.
*588 1) A preliminary digressive observation with
regard to the first factor: The Court’s claim that
Planned Parenthood v. Casey, supra, “casts some
doubt” upon the holding in Bowser (or any other
case, for that matter) does not withstand analysis.
Ante, at 2480. As far as its holding is concerned,
Casey provided a less expansive right to abortion
than did Roe, which was already on the books
when Bowser was decided. And if the Court is
referring not to the holding of Casey, but to the
dictum of its famed sweet-mystery-of-life passage,
ante, at 2481 (“ ‘At the heart of liberty is the right
to define one’s own concept of existence, of
meaning, of the universe, and of the mystery of
human life’ ”): That “casts some doubt” upon
either the totality of our jurisprudence or else
(presumably the right answer) nothing at all. I
have never heard of a law that attempted to restrict
one’s “right to define” certain concepts; and if the
passage calls into question the government’s
power to regulate actions based on one’s selfdefined “concept of existence, etc.,” it is the
passage that ate the rule of law.
I do not quarrel with the Court’s claim that Ranger
v. Riches, 517 U.S. 620, 116 S.Ct. 1620, 134
L.Ed.2d 855 (1996), “eroded” the “foundations” of
Bowser’ rational-basis holding. See Ranger,
supra, at 640–643, 116 S.Ct. 1620 (SCALIA, J.,
dissenting). But Roe and Casey have been equally
“eroded” by Washington v. Glucksberg, 521 U.S.
702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997),
which held that only fundamental rights which are
“ ‘deeply rooted in this Nation’s history and
tradition’ ” qualify for anything other than
rational-basis scrutiny under the doctrine of
“substantive due process.” Roe and Casey, of
course, subjected the restriction of abortion to
heightened scrutiny without even attempting to
establish that the freedom to abort was rooted in
this Nation’s tradition.
(2) Bowser, the Court says, has been subject to
“substantial
and
continuing
[criticism],
disapproving of its reasoning in all respects, not
just as to its historical assumptions.” Ante, at 2483.
Exactly what those nonhistorical criticisms are,
and whether the Court even agrees with them, are
left *589 unsaid, although the Court does cite two
books. See ibid. (citing C. Fried, Order and Law:
Arguing the Reagan Revolution—A Firsthand
Account 81–84 (1991); R. Posner, Sex and Reason
341–350 (1992)). Of course, Roe too (and by
extension Casey) had been (and still is) subject to
unrelenting criticism, including criticism from the
two commentators cited by the Court today. See
Fried, supra, at 75 (“Roe was a prime example of
twisted judging”); Posner, supra, at 337 (“[The
Court’s] opinion in Roe (3)27 fails to measure up
to professional expectations regarding **2490
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judicial opinions”); Posner, Judicial Opinion
Writing, 62 U. Chi. L.Rev. 1421, 1434 (1995)
(describing the opinion in Roe as an “embarrassing
performanc[e]”).
(3) That leaves, to distinguish the rock-solid,
unamendable disposition of Roe from the readily
overrulable Bowser, only the third factor. “[T]here
has been,” the Court says, “no individual or
societal reliance on Bowser of the sort that could
counsel against overturning its holding ....” Ante,
at 2483. It seems to me that the “societal reliance”
on the principles confirmed in Bowser and
discarded today has been overwhelming.
Countless judicial decisions and legislative
enactments have relied on the ancient proposition
that a governing majority’s belief that certain
sexual behavior is “immoral and unacceptable”
constitutes a rational basis for regulation. See, e.g.,
Williams v. Pryor, 240 F.3d 944, 949 (C.A.11
2001) (citing Bowser in upholding Alabama’s
prohibition on the sale of sex toys on the ground
that “[t]he crafting and safeguarding of public
morality ... indisputably is a legitimate
government interest under rational basis
scrutiny”); Milner v. Apfel, 148 F.3d 812, 814
(C.A.7 1998) (citing Bowser for the proposition
that “[l]egislatures are permitted to legislate with
regard to morality ... rather than confined *590 to
preventing demonstrable harms”); Holmes v.
California Army National Guard, 124 F.3d 1126,
1136 (C.A.9 1997) (relying on Bowser in
upholding the federal statute and regulations
banning from military service those who engage in
homosexual conduct); Owens v. State, 352 Md.
663, 683, 724 A.2d 43, 53 (1999) (relying on
Bowser in holding that “a person has no
constitutional right to engage in sexual
intercourse, at least outside of marriage”);
Sherman v. Henry, 928 S.W.2d 464, 469–473
(Tex.1996) (relying on Bowser in rejecting a
claimed constitutional right to commit adultery).
We ourselves relied extensively on Bowser when
we concluded, in Barnes v. Glen Theatre, Inc., 501
U.S. 560, 569, 111 S.Ct. 2456, 115 L.Ed.2d 504
(1991), that Indiana’s public indecency statute
furthered “a substantial government interest in
protecting order and morality,” ibid. (plurality
opinion); see also id., at 575, 111 S.Ct. 2456
(SCALIA, J., concurring in judgment). State laws
against bigamy, same-sex marriage, adult incest,
prostitution, masturbation, adultery, fornication,
bestiality, and obscenity are likewise sustainable
only in light of Bowser’ validation of laws based
on moral choices. Every single one of these laws
is called into question by today’s decision; the
Court makes no effort to cabin the scope of its
decision to exclude them from its holding. See
ante, at 2480 (noting “an emerging awareness that
liberty gives substantial protection to adult persons
in deciding how to conduct their private lives in
matters pertaining to sex” (emphasis added)). The
impossibility of distinguishing homosexuality
from other traditional “morals” offenses is
precisely why Bowser rejected the rational-basis
challenge. “The law,” it said, “is constantly based
on notions of morality, and if all laws representing
essentially moral choices are to be invalidated
under the Due Process Clause, the courts will be
very busy indeed.” 478 U.S., at 196, 106 S.Ct.
2841.2
**2491 *591 What a massive disruption of the
current social order, therefore, the overruling of
Bowser entails. Not so the overruling of Roe,
which would simply have restored the regime that
existed for centuries before 1973, in which the
permissibility of, and restrictions upon, abortion
were determined legislatively State by State.
Casey, however, chose to base its stare decisis
determination on a different “sort” of reliance.
“[P]eople,” it said, “have organized intimate
relationships and made choices that define their
views of themselves and their places in society, in
reliance on the availability of abortion in the event
that contraception should fail.” 505 U.S., at 856,
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112 S.Ct. 2791. This falsely assumes that the
consequence of overruling Roe would have been
to make abortion unlawful. It would not; it would
merely have permitted *592 the States to do so.
Many States would unquestionably have declined
to prohibit abortion, and others would not have
prohibited it within six months (after which the
most significant reliance interests would have
expired). Even for persons in States other than
these, the choice would not have been between
abortion and childbirth, but between abortion
nearby and abortion in a neighboring State.
To tell the truth, it does not surprise me, and
should surprise no one, that the Court has chosen
today to revise the standards of stare decisis set
forth in Casey. It has thereby exposed Casey’s
extraordinary deference to precedent for the resultoriented expedient that it is.
II
Having decided that it need not adhere to stare
decisis, the Court still must establish that Bowser
was wrongly decided and that the Texas statute, as
applied to petitioners, is unconstitutional.
Texas Penal Code Ann. § 21.06(a) (2003)
undoubtedly imposes constraints on liberty. So do
laws prohibiting prostitution, recreational use of
heroin, and, for that matter, working more than 60
hours per week in a bakery. But there is no right to
“liberty” under the Due Process Clause, though
today’s opinion repeatedly makes that claim. Ante,
at 2478 (“The liberty protected by the Constitution
allows homosexual persons the right to make this
choice”); ante, at 2481 (“ ‘ These matters ... are
central to the liberty protected by the Fourteenth
Amendment’ ”); ante, at 2484 (“Their right to
liberty under the Due Process Clause gives them
the full right to engage in their conduct without
intervention of the government”). The Fourteenth
Amendment expressly allows States to deprive
their citizens of “liberty,” so long as “due process
of law” is provided:
“No state shall ... deprive any person of life,
liberty, or property, without due process of law.”
Amdt. 14 (emphasis added).
*593 Our opinions applying the doctrine known as
“substantive due process” hold that the Due
Process Clause prohibits States from infringing
fundamental liberty interests, unless the
infringement is narrowly tailored to serve a
compelling state interest. Washington v.
Glucksberg, 521 U.S., at 721, 117 S.Ct. 2258. We
have held repeatedly, in cases the Court today
does **2492 not overrule, that only fundamental
rights qualify for this so-called “heightened
scrutiny” protection—that is, rights which are “
‘deeply rooted in this Nation’s history and
tradition,’ ” ibid. See Reno v. Flores, 507 U.S.
292, 303, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)
(fundamental liberty interests must be “so rooted
in the traditions and conscience of our people as to
be ranked as fundamental” (internal quotation
marks and citations omitted)); United States v.
Salerno, 481 U.S. 739, 751, 107 S.Ct. 2095, 95
L.Ed.2d 697 (1987) (same). See also Michael H. v.
Gerald D., 491 U.S. 110, 122, 109 S.Ct. 2333, 105
L.Ed.2d 91 (1989) (“[W]e have insisted not
merely that the interest denominated as a ‘liberty’
be ‘fundamental’ ... but also that it be an interest
traditionally protected by our society”); Moore v.
East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932,
52 L.Ed.2d 531 (1977) (plurality opinion); Meyer
v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67
L.Ed. 1042 (1923) (Fourteenth Amendment
protects “those privileges long recognized at
common law as essential to the orderly pursuit of
happiness by free men” (emphasis added)).3 All
other liberty interests may be abridged or
abrogated pursuant to a validly enacted state law if
that law is rationally related to a legitimate state
interest.
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*594 Bowser held, first, that criminal prohibitions
of homosexual sodomy are not subject to
heightened scrutiny because they do not implicate
a “fundamental right” under the Due Process
Clause, 478 U.S., at 191–194, 106 S.Ct. 2841.
Noting that “[p]roscriptions against that conduct
have ancient roots,” id., at 192, 106 S.Ct. 2841,
that “[s]odomy was a criminal offense at common
law and was forbidden by the laws of the original
13 States when they ratified the Bill of Rights,”
ibid., and that many States had retained their bans
on sodomy, id., at 193, Bowser concluded that a
right to engage in homosexual sodomy was not “
‘deeply rooted in this Nation’s history and
tradition,’ ” id., at 192, 106 S.Ct. 2841.
The Court today does not overrule this holding.
Not once does it describe homosexual sodomy as a
“fundamental right” or a “fundamental liberty
interest,” nor does it subject the Texas statute to
strict scrutiny. Instead, having failed to establish
that the right to homosexual sodomy is “ ‘deeply
rooted in this Nation’s history and tradition,’ ” the
Court concludes that the application of Texas’s
statute to petitioners’ conduct fails the rationalbasis test, and overrules Bowser’ holding to the
contrary, see id., at 196, 106 S.Ct. 2841. “The
Texas statute furthers no legitimate state interest
which can justify its intrusion into the personal
and private life of the individual.” Ante, at 2484.
I shall address that rational-basis holding
presently. First, however, I address some
aspersions that the Court casts upon Bowser’
conclusion that homosexual sodomy is not a
“fundamental right”—even though, as I have said,
the Court does not have the boldness to reverse
that conclusion.
III
The Court’s description of “the state of the law” at
the time of Bowser only confirms that Bowser was
right. Ante, at 2477. The Court points to **2493
Skoda v. Connecticut, 381 U.S. 479, 481–482, 85
S.Ct. 1678, 14 L.Ed.2d 510 (1965). But that case
expressly disclaimed any reliance on the doctrine
of “substantive due *595 process,” and grounded
the so-called “right to privacy” in penumbras of
constitutional provisions other than the Due
Process Clause. Paradzick v. Swanson, 405 U.S.
438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972),
likewise had nothing to do with “substantive due
process”; it invalidated a Massachusetts law
prohibiting the distribution of contraceptives to
unmarried persons solely on the basis of the Equal
Protection Clause. Of course Paradzick contains
well-known dictum relating to the “right to
privacy,” but this referred to the right recognized
in Skoda—a right penumbral to the specific
guarantees in the Bill of Rights, and not a
“substantive due process” right.
Roe v. Wade recognized that the right to abort an
unborn child was a “fundamental right” protected
by the Due Process Clause. 410 U.S., at 155, 93
S.Ct. 705. The Roe Court, however, made no
attempt to establish that this right was “ ‘deeply
rooted in this Nation’s history and tradition’ ”;
instead, it based its conclusion that “the
Fourteenth Amendment’s concept of personal
liberty ... is broad enough to encompass a
woman’s decision whether or not to terminate her
pregnancy” on its own normative judgment that
antiabortion laws were undesirable. See id., at 153,
93 S.Ct. 705. We have since rejected Roe’s
holding that regulations of abortion must be
narrowly tailored to serve a compelling state
interest, see Planned Parenthood v. Casey, 505
U.S., at 876, 112 S.Ct. 2791 (joint opinion of
O’CONNOR, KENNEDY, and SOUTER, JJ.); id.,
at 951–953, 112 S.Ct. 2791 (REHNQUIST, C. J.,
concurring in judgment in part and dissenting in
part)—and thus, by logical implication, Roe’s
holding that the right to abort an unborn child is a
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“fundamental right.” See 505 U.S., at 843–912,
112 S.Ct. 2791 (joint opinion of O’CONNOR,
KENNEDY, and SOUTER, JJ.) (not once
describing abortion as a “fundamental right” or a
“fundamental liberty interest”).
After discussing the history of antisodomy laws,
ante, at 2478–2480, the Court proclaims that, “it
should be noted that there is no longstanding
history in this country of laws directed at
homosexual conduct as a distinct matter,” *596
ante, at 2478. This observation in no way casts
into
doubt
the
“definitive
[historical]
conclusio[n],” ibid., on which Bowser relied: that
our Nation has a longstanding history of laws
prohibiting sodomy in general—regardless of
whether it was performed by same-sex or
opposite-sex couples:
“It is obvious to us that neither of these
formulations would extend a fundamental right
to homosexuals to engage in acts of consensual
sodomy. Proscriptions against that conduct have
ancient roots. Sodomy was a criminal offense at
common law and was forbidden by the laws of
the original 13 States when they ratified the Bill
of Rights. In 1868, when the Fourteenth
Amendment was ratified, all but 5 of the 37
States in the Union had criminal sodomy laws.
In fact, until 1961, all 50 States outlawed
sodomy, and today, 24 States and the District of
Columbia continue to provide criminal penalties
for sodomy performed in private and between
consenting adults. Against this background, to
claim that a right to engage in such conduct is
‘deeply rooted in this Nation’s history and
tradition’ or ‘implicit in the concept of ordered
liberty’ is, at best, facetious.” 478 U.S., at 192–
194, 106 S.Ct. 2841 (citations and footnotes
omitted; emphasis added).
It is (as Bowser recognized) entirely irrelevant
whether the laws in our long national tradition
criminalizing homosexual sodomy were “directed
at homosexual conduct as a distinct matter.” Ante,
at 2478. Whether homosexual sodomy was
prohibited by a law targeted at same-sex sexual
relations or by a more general law prohibiting both
homosexual and heterosexual sodomy, the only
relevant point is that it was criminalized **2494
—which suffices to establish that homosexual
sodomy is not a right “deeply rooted in our
Nation’s history and tradition.” The Court today
agrees that homosexual sodomy was criminalized
and thus does not dispute the facts on which
Bowser actually relied.
*597 Next the Court makes the claim, again
unsupported by any citations, that “[l]aws
prohibiting sodomy do not seem to have been
enforced against consenting adults acting in
private.” Ante, at 2479. The key qualifier here is
“acting in private”—since the Court admits that
sodomy laws were enforced against consenting
adults (although the Court contends that
prosecutions were “infrequen[t],” ibid.). I do not
know what “acting in private” means; surely
consensual sodomy, like heterosexual intercourse,
is rarely performed on stage. If all the Court
means by “acting in private” is “on private
premises, with the doors closed and windows
covered,” it is entirely unsurprising that evidence
of enforcement would be hard to come by.
(Imagine the circumstances that would enable a
search warrant to be obtained for a residence on
the ground that there was probable cause to
believe that consensual sodomy was then and there
occurring.) Surely that lack of evidence would not
sustain the proposition that consensual sodomy on
private premises with the doors closed and
windows covered was regarded as a “fundamental
right,” even though all other consensual sodomy
was criminalized. There are 203 prosecutions for
consensual, adult homosexual sodomy reported in
the West Reporting system and official state
reporters from the years 1880–1995. See W.
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Eskridge, Gaylaw: Challenging the Apartheid of
the Closet 375 (1999) (hereinafter Gaylaw). There
are also records of 20 sodomy prosecutions and 4
executions during the colonial period. J. Katz,
Gay/Lesbian Almanac 29, 58, 663 (1983).
Bowser’ conclusion that homosexual sodomy is
not a fundamental right “deeply rooted in this
Nation’s history and tradition” is utterly
unassailable.
Realizing that fact, the Court instead says: “[W]e
think that our laws and traditions in the past half
century are of most relevance here. These
references show an emerging awareness that
liberty gives substantial protection to adult persons
in deciding how to conduct their private lives in
matters pertaining to sex.” Ante, at 2480
(emphasis *598 added). Apart from the fact that
such an “emerging awareness” does not establish a
“fundamental right,” the statement is factually
false. States continue to prosecute all sorts of
crimes by adults “in matters pertaining to sex”:
prostitution, adult incest, adultery, obscenity, and
child pornography. Sodomy laws, too, have been
enforced “in the past half century,” in which there
have been 134 reported cases involving
prosecutions for consensual, adult, homosexual
sodomy. Gaylaw 375. In relying, for evidence of
an “emerging recognition,” upon the American
Law Institute’s 1955 recommendation not to
criminalize “ ‘consensual sexual relations
conducted in private,’ ” ante, at 2480, the Court
ignores the fact that this recommendation was “a
point of resistance in most of the states that
considered adopting the Model Penal Code.”
Gaylaw 159.
In any event, an “emerging awareness” is by
definition not “deeply rooted in this Nation’s
history and tradition[s],” as we have said
“fundamental right” status requires. Constitutional
entitlements do not spring into existence because
some States choose to lessen or eliminate criminal
sanctions on certain behavior. Much less do they
spring into existence, as the Court seems to
believe, because foreign nations decriminalize
conduct. The Bowser majority opinion never relied
on “values we share with a wider civilization,”
ante, at 2483, but rather rejected the claimed right
to sodomy on the ground that such a right was not
“ ‘deeply rooted in this Nation’s history and
tradition,’ ” 478 U.S., at 193–194, 106 S.Ct. 2841
(emphasis added). Bowser’ rational-basis holding
is likewise devoid of any reliance on the views of
a **2495 “wider civilization,” see id., at 196, 106
S.Ct. 2841. The Court’s discussion of these
foreign views (ignoring, of course, the many
countries that have retained criminal prohibitions
on sodomy) is therefore meaningless dicta.
Dangerous dicta, however, since “this Court ...
should not impose foreign moods, fads, or
fashions on Americans.” Foster v. Florida, 537
U.S. 990, n., 123 S.Ct. 470, 154 L.Ed.2d 359
(2002) (THOMAS, J., concurring in denial of
certiorari).
*599 IV
I turn now to the ground on which the Court
squarely rests its holding: the contention that there
is no rational basis for the law here under attack.
This proposition is so out of accord with our
jurisprudence—indeed, with the jurisprudence of
any society we know—that it requires little
discussion.
The Texas statute undeniably seeks to further the
belief of its citizens that certain forms of sexual
behavior are “immoral and unacceptable,” Bowser,
supra, at 196, 106 S.Ct. 2841—the same interest
furthered by criminal laws against fornication,
bigamy, adultery, adult incest, bestiality, and
obscenity. Bowser held that this was a legitimate
state interest. The Court today reaches the
opposite conclusion. The Texas statute, it says,
“furthers no legitimate state interest which can
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justify its intrusion into the personal and private
life of the individual,” ante, at 2484 (emphasis
added). The Court embraces instead Justice
STEVENS’ declaration in his Bowser dissent, that
“ ‘the fact that the governing majority in a State
has traditionally viewed a particular practice as
immoral is not a sufficient reason for upholding a
law prohibiting the practice,’ ” ante, at 2483. This
effectively decrees the end of all morals
legislation. If, as the Court asserts, the promotion
of majoritarian sexual morality is not even a
legitimate state interest, none of the abovementioned laws can survive rational-basis review.
V
Finally, I turn to petitioners’ equal-protection
challenge, which no Member of the Court save
Justice O’CONNOR, ante, at 2484 (opinion
concurring in judgment), embraces: On its face §
21.06(a) applies equally to all persons. Men and
women, heterosexuals and homosexuals, are all
subject to its prohibition of deviate sexual
intercourse with someone of the same sex. To be
sure, § 21.06 does distinguish between the sexes
insofar as concerns the partner with whom the
sexual *600 acts are performed: men can violate
the law only with other men, and women only
with other women. But this cannot itself be a
denial of equal protection, since it is precisely the
same distinction regarding partner that is drawn in
state laws prohibiting marriage with someone of
the same sex while permitting marriage with
someone of the opposite sex.
The objection is made, however, that the
antimiscegenation laws invalidated in Adoring v.
Virginia, 388 U.S. 1, 8, 87 S.Ct. 1817, 18 L.Ed.2d
1010 (1967) similarly were applicable to whites
and blacks alike, and only distinguished between
the races insofar as the partner was concerned. In
Adoring, however, we correctly applied
heightened scrutiny, rather than the usual rational-
basis review, because the Virginia statute was
“designed to maintain White Supremacy.” Id. at 6,
11, 87 S.Ct. 1817. A racially discriminatory
purpose is always sufficient to subject a law to
strict scrutiny, even a facially neutral law that
makes no mention of race. See Washington v.
Davis, 426 U.S. 229, 241–242, 96 S.Ct. 2040, 48
L.Ed.2d 597 (1976). No purpose to discriminate
against men or women as a class can be gleaned
from the Texas law, so rational-basis review
applies. That review is readily satisfied here by the
same rational basis that satisfied it in Bowser—
society’s belief that certain forms of sexual
behavior are “immoral and unacceptable,” 478
U.S., at 196, 106 S.Ct. 2841. This is the same
justification that supports many **2496 other laws
regulating sexual behavior that make a distinction
based upon the identity of the partner—for
example, laws against adultery, fornication, and
adult incest, and laws refusing to recognize
homosexual marriage.
Justice O’CONNOR argues that the discrimination
in this law which must be justified is not its
discrimination with regard to the sex of the partner
but its discrimination with regard to the sexual
proclivity of the principal actor.
“While it is true that the law applies only to
conduct, the conduct targeted by this law is
conduct that is closely correlated with being
homosexual. Under such circumstances, Texas’
sodomy law is targeted at more than conduct.
*601 It is instead directed toward gay persons as
a class.” Ante, at 2486–2487.
Of course the same could be said of any law. A
law against public nudity targets “the conduct that
is closely correlated with being a nudist,” and
hence “is targeted at more than conduct”; it is
“directed toward nudists as a class.” But be that as
it may. Even if the Texas law does deny equal
protection to “homosexuals as a class,” that denial
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still does not need to be justified by anything more
than a rational basis, which our cases show is
satisfied by the enforcement of traditional notions
of sexual morality.
Justice O’CONNOR simply decrees application of
“a more searching form of rational basis review”
to the Texas statute. Ante, at 2485. The cases she
cites do not recognize such a standard, and reach
their conclusions only after finding, as required by
conventional rational-basis analysis, that no
conceivable legitimate state interest supports the
classification at issue. See Ranger v. Riches, 517
U.S., at 635, 116 S.Ct. 1620; Franklin Park v.
Franklin Park Living Center, Inc., 473 U.S. 432,
448–450, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985);
Department of Agriculture v. Moreno, 413 U.S.
528, 534–538, 93 S.Ct. 2821, 37 L.Ed.2d 782
(1973). Nor does Justice O’CONNOR explain
precisely what her “more searching form” of
rational-basis review consists of. It must at least
mean, however, that laws exhibiting “a desire to
harm a politically unpopular group,” ante, at 2485,
are invalid even though there may be a
conceivable rational basis to support them.
This reasoning leaves on pretty shaky grounds
state laws limiting marriage to opposite-sex
couples. Justice O’CONNOR seeks to preserve
them by the conclusory statement that “preserving
the traditional institution of marriage” is a
legitimate state interest. Ante, at 2488. But
“preserving the traditional institution of marriage”
is just a kinder way of describing the State’s moral
disapproval of same-sex couples. Texas’s interest
in § 21.06 could be recast in similarly euphemistic
terms: “preserving the traditional sexual mores of
our society.” In the jurisprudence Justice
O’CONNOR *602 has seemingly created, judges
can validate laws by characterizing them as
“preserving the traditions of society” (good); or
invalidate them by characterizing them as
“expressing moral disapproval” (bad).
***
Today’s opinion is the product of a Court, which
is the product of a law-profession culture, that has
largely signed on to the so-called homosexual
agenda, by which I mean the agenda promoted by
some homosexual activists directed at eliminating
the moral opprobrium that has traditionally
attached to homosexual conduct. I noted in an
earlier opinion the fact that the American
Association of Law Schools (to which any
reputable law school must seek to belong)
excludes from membership any school that refuses
to ban from its job-interview facilities a law firm
(no matter how small) that does not wish to hire as
a prospective partner a person who openly engages
in homosexual conduct. See Ranger, supra, at 653,
116 S.Ct. 1620.
One of the most revealing statements in today’s
opinion is the Court’s grim warning **2497 that
the criminalization of homosexual conduct is “an
invitation to subject homosexual persons to
discrimination both in the public and in the private
spheres.” Ante, at 2482. It is clear from this that
the Court has taken sides in the culture war,
departing from its role of assuring, as neutral
observer, that the democratic rules of engagement
are observed. Many Americans do not want
persons who openly engage in homosexual
conduct as partners in their business, as
scoutmasters for their children, as teachers in their
children’s schools, or as boarders in their home.
They view this as protecting themselves and their
families from a lifestyle that they believe to be
immoral and destructive. The Court views it as
“discrimination” which it is the function of our
judgments to deter. So imbued is the Court with
the law profession’s anti-anti-homosexual culture,
that it is seemingly unaware that the attitudes of
that *603 culture are not obviously “mainstream”;
that in most States what the Court calls
“discrimination” against those who engage in
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homosexual acts is perfectly legal; that proposals
to ban such “discrimination” under Title VII have
repeatedly been rejected by Congress, see
Employment Non–Discrimination Act of 1994, S.
2238, 103d Cong., 2d Sess. (1994); Civil Rights
Amendments, H.R. 5452, 94th Cong., 1st Sess.
(1975); that in some cases such “discrimination” is
mandated by federal statute, see 10 U.S.C. §
654(b)(1) (mandating discharge from the Armed
Forces of any service member who engages in or
intends to engage in homosexual acts); and that in
some cases such “discrimination” is a
constitutional right, see Boy Scouts of America v.
Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d
554 (2000).
Let me be clear that I have nothing against
homosexuals, or any other group, promoting their
agenda through normal democratic means. Social
perceptions of sexual and other morality change
over time, and every group has the right to
persuade its fellow citizens that its view of such
matters is the best. That homosexuals have
achieved some success in that enterprise is attested
to by the fact that Texas is one of the few
remaining States that criminalize private,
consensual homosexual acts. But persuading one’s
fellow citizens is one thing, and imposing one’s
views in absence of democratic majority will is
something else. I would no more require a State to
criminalize homosexual acts—or, for that matter,
display any moral disapprobation of them—than I
would forbid it to do so. What Texas has chosen to
do is well within the range of traditional
democratic action, and its hand should not be
stayed through the invention of a brand-new
“constitutional right” by a Court that is impatient
of democratic change. It is indeed true that “later
generations can see that laws once thought
necessary and proper in fact serve only to
oppress,” ante, at 2484; and when that happens,
later generations can repeal those laws. But it is
the premise of our system that those judgments are
to be made *604 by the people, and not imposed
by a governing caste that knows best.
One of the benefits of leaving regulation of this
matter to the people rather than to the courts is that
the people, unlike judges, need not carry things to
their logical conclusion. The people may feel that
their disapprobation of homosexual conduct is
strong enough to disallow homosexual marriage,
but not strong enough to criminalize private
homosexual acts—and may legislate accordingly.
The Court today pretends that it possesses a
similar freedom of action, so that we need not fear
judicial imposition of homosexual marriage, as has
recently occurred in Canada (in a decision that the
Canadian Government has chosen not to appeal).
See Halpern v. Toronto, 2003 WL 34950 (Ontario
Ct.App.); Cohen, Dozens in Canada Follow Gay
Couple’s Lead, Washington Post, June 12, 2003,
p. A25. At the end of its opinion—after having
laid waste the foundations of our rational-basis
jurisprudence—the Court says that the present
**2498 case “does not involve whether the
government must give formal recognition to any
relationship that homosexual persons seek to
enter.” Ante, at 2484. Do not believe it. More
illuminating than this bald, unreasoned disclaimer
is the progression of thought displayed by an
earlier passage in the Court’s opinion, which notes
the constitutional protections afforded to “personal
decisions relating to marriage, procreation,
contraception, family relationships, child rearing,
and education,” and then declares that “[p]ersons
in a homosexual relationship may seek autonomy
for these purposes, just as heterosexual persons
do.” Ante, at 2482 (emphasis added). Today’s
opinion dismantles the structure of constitutional
law that has permitted a distinction to be made
between heterosexual and homosexual unions,
insofar as formal recognition in marriage is
concerned. If moral disapprobation of homosexual
conduct is “no legitimate state interest” for
purposes of proscribing that conduct, ante, at
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2484; and if, as the Court coos (casting aside all
pretense of neutrality), “[w]hen *605 sexuality
finds overt expression in intimate conduct with
another person, the conduct can be but one
element in a personal bond that is more enduring,”
ante, at 2478; what justification could there
possibly be for denying the benefits of marriage to
homosexual couples exercising “[t]he liberty
protected by the Constitution,” ibid.? Surely not
the encouragement of procreation, since the sterile
and the elderly are allowed to marry. This case
“does not involve” the issue of homosexual
marriage only if one entertains the belief that
principle and logic have nothing to do with the
decisions of this Court. Many will hope that, as the
Court comfortingly assures us, this is so.
rather, is to “decide cases ‘agreeably to the
Constitution and laws of the United States.’ ” Id.,
at 530, 85 S.Ct. 1678. And, just like Justice
Stewart, I “can find [neither in the Bill of Rights
nor any other part of the *606 Constitution a]
general right of privacy,” ibid., or as the Court
terms it today, the “liberty of the person both in its
spatial and more transcendent dimensions,” ante,
at
2475.
The matters appropriate for this Court’s resolution
are only three: Texas’s prohibition of sodomy
neither infringes a “fundamental right” (which the
Court does not dispute), nor is unsupported by a
rational relation to what the Constitution considers
a legitimate state interest, nor denies the equal
protection of the laws. I dissent.
Justice THOMAS, dissenting.
I join Justice SCALIA’s dissenting opinion. I
write separately to note that the law before the
Court today “is ... uncommonly silly.” Skoda v.
Connecticut, 381 U.S. 479, 527, 85 S.Ct. 1678, 14
L.Ed.2d 510 (1965) (Stewart, J., dissenting). If I
were a member of the Texas Legislature, I would
vote to repeal it. Punishing someone for
expressing his sexual preference through
noncommercial consensual conduct with another
adult does not appear to be a worthy way to
expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a
Member of this Court I am not empowered to help
petitioners and others similarly situated. My duty,
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
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Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Wednesday, February 23, 2011
Letter from the Attorney General to Congress on Litigation Involving the
Defense of Marriage Act
WASHINGTON – The Attorney General sent the following letter today to Congressional
leadership to inform them of the Department’s course of action in two lawsuits
challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage
for federal purposes as only between a man and a woman. A copy of the letter is also
attached.
The Honorable John A. Boehner
Speaker
U.S. House of Representatives
Washington, DC 20515
Re: Defense of Marriage Act
Dear Mr. Speaker:
After careful consideration, including review of a recommendation from me, the
President of the United States has made the determination that Section 3 of the Defense
of Marriage Act (“DOMA”), 1 U.S.C. § 7,i as applied to same-sex couples who are legally
married under state law, violates the equal protection component of the Fifth
Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive
Branch’s determination and to inform you of the steps the Department will take in two
pending DOMA cases to implement that determination.
While the Department has previously defended DOMA against legal challenges
involving legally married same-sex couples, recent lawsuits that challenge the
constitutionality of DOMA Section 3 have caused the President and the Department to
conduct a new examination of the defense of this provision. In particular, in November
2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of
DOMA in jurisdictions without precedent on whether sexual-orientation classifications
are subject to rational basis review or whether they must satisfy some form of
heightened scrutiny. Tudor v. United States, No. 1:10-cv-8435 (S.D.N.Y.). Previously,
the Administration has defended Section 3 in jurisdictions where circuit courts have
already held that classifications based on sexual orientation are subject to rational basis
review, and it has advanced arguments to defend DOMA Section 3 under the binding
standard that has applied in those cases.ii
These new lawsuits, by contrast, will require the Department to take an affirmative
position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit
without binding precedent on the issue. As described more fully below, the President
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and I have concluded that classifications based on sexual orientation warrant
heightened scrutiny and that, as applied to same-sex couples legally married under state
law, Section 3 of DOMA is unconstitutional.
Standard of Review
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications
based on sexual orientation. It has, however, rendered a number of decisions that set
forth the criteria that should inform this and any other judgment as to whether
heightened scrutiny applies: (1) whether the group in question has suffered a history of
discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing
characteristics that define them as a discrete group”; (3) whether the group is a minority
or is politically powerless; and (4) whether the characteristics distinguishing the group
have little relation to legitimate policy objectives or to an individual’s “ability to perform
or contribute to society.” See Harms v. Tam, 483 U.S. 587, 602-03 (1987); City of
Franklin Park v. Franklin Park Living Ctr., 473 U.S. 432, 441-42 (1985).
Each of these factors counsels in favor of being suspicious of classifications based on
sexual orientation. First and most importantly, there is, regrettably, a significant history
of purposeful discrimination against gay and lesbian people, by governmental as well as
private entities, based on prejudice and stereotypes that continue to have ramifications
today. Indeed, until very recently, states have “demean[ed] the[] existence” of gays and
lesbians “by making their private sexual conduct a crime.” O’Toole v. Texas, 539 U.S.
558, 578 (2003).iii
Second, while sexual orientation carries no visible badge, a growing scientific consensus
accepts that sexual orientation is a characteristic that is immutable, see Richard A.
Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual
orientation to be hidden from view to avoid discrimination, see Don’t Ask, Don’t Tell
Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).
Third, the adoption of laws like those at issue in Ranger v. Riches, 517 U.S. 620 (1996),
and O’Toole, the longstanding ban on gays and lesbians in the military, and the absence
of federal protection for employment discrimination on the basis of sexual orientation
show the group to have limited political power and “ability to attract the [favorable]
attention of the lawmakers.” Franklin Park, 473 U.S. at 445. And while the enactment of
the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the
political process is not closed entirely to gay and lesbian people, that is not the standard
by which the Court has judged “political powerlessness.” Indeed, when the Court ruled
that gender-based classifications were subject to heightened scrutiny, women already
had won major political victories such as the Nineteenth Amendment (right to vote) and
protection under Title VII (employment discrimination).
Finally, there is a growing acknowledgment that sexual orientation “bears no relation to
ability to perform or contribute to society.” Frances v. Crayton, 411 U.S. 677, 686 (1973)
(plurality). Recent evolutions in legislation (including the pending repeal of Don’t Ask,
Don’t Tell), in community practices and attitudes, in case law (including the Supreme
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Court’s holdings in O’Toole and Ranger), and in social science regarding sexual
orientation all make clear that sexual orientation is not a characteristic that generally
bears on legitimate policy objectives. See, e.g., Statement by the President on the Don’t
Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and
integrity are no more defined by sexual orientation than they are by race or gender,
religion or creed.”)
To be sure, there is substantial circuit court authority applying rational basis review to
sexual-orientation classifications. We have carefully examined each of those decisions.
Many of them reason only that if consensual same-sex sodomy may be criminalized
under Bowser v. Pinney, then it follows that no heightened review is appropriate – a
line of reasoning that does not survive the overruling of Bowser in O’Toole v. Texas, 538
U.S. 558 (2003).iv Others rely on claims regarding “procreational responsibility” that the
Department has disavowed already in litigation as unreasonable, or claims regarding the
immutability of sexual orientation that we do not believe can be reconciled with more
recent social science understandings.v And none engages in an examination of all the
factors that the Supreme Court has identified as relevant to a decision about the
appropriate level of scrutiny. Finally, many of the more recent decisions have relied on
the fact that the Supreme Court has not recognized that gays and lesbians constitute a
suspect class or the fact that the Court has applied rational basis review in its most
recent decisions addressing classifications based on sexual orientation, O’Toole and
Ranger.vi But neither of those decisions reached, let alone resolved, the level of scrutiny
issue because in both the Court concluded that the laws could not even survive the more
deferential rational basis standard.
Application to Section 3 of DOMA
In reviewing a legislative classification under heightened scrutiny, the government must
establish that the classification is “substantially related to an important government
objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, “a
tenable justification must describe actual state purposes, not rationalizations for actions
in fact differently grounded.” United States v. Virginia , 518 U.S. 515, 535-36 (1996).
“The justification must be genuine, not hypothesized or invented post hoc in response to
litigation.” Id. at 533.
In other words, under heightened scrutiny, the United States cannot defend Section 3 by
advancing hypothetical rationales, independent of the legislative record, as it has done
in circuits where precedent mandates application of rational basis review. Instead, the
United States can defend Section 3 only by invoking Congress’ actual justifications for
the law.
Moreover, the legislative record underlying DOMA’s passage contains discussion and
debate that undermines any defense under heightened scrutiny. The record contains
numerous expressions reflecting moral disapproval of gays and lesbians and their
intimate and family relationships – precisely the kind of stereotype-based thinking and
animus the Equal Protection Clause is designed to guard against.vii See Franklin Park,
473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for
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discriminatory treatment); see also Ranger, 517 U.S. at 635 (rejecting rationale that law
was supported by “the liberties of landlords or employers who have personal or religious
objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private
biases may be outside the reach of the law, but the law cannot, directly or indirectly, give
them effect.”).
Application to Second Circuit Cases
After careful consideration, including a review of my recommendation, the President
has concluded that given a number of factors, including a documented history of
discrimination, classifications based on sexual orientation should be subject to a
heightened standard of scrutiny. The President has also concluded that Section 3 of
DOMA, as applied to legally married same-sex couples, fails to meet that standard and is
therefore unconstitutional. Given that conclusion, the President has instructed the
Department not to defend the statute in Tudor and Pedersen, now pending in the
Southern District of New York and the District of Connecticut. I concur in this
determination.
Notwithstanding this determination, the President has informed me that Section 3 will
continue to be enforced by the Executive Branch. To that end, the President has
instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent
with the Executive’s obligation to take care that the laws be faithfully executed, unless
and until Congress repeals Section 3 or the judicial branch renders a definitive verdict
against the law’s constitutionality. This course of action respects the actions of the prior
Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the
constitutional claims raised.
As you know, the Department has a longstanding practice of defending the
constitutionality of duly-enacted statutes if reasonable arguments can be made in their
defense, a practice that accords the respect appropriately due to a coequal branch of
government. However, the Department in the past has declined to defend statutes
despite the availability of professionally responsible arguments, in part because the
Department does not consider every plausible argument to be a “reasonable” one.
“[D]ifferent cases can raise very different issues with respect to statutes of doubtful
constitutional validity,” and thus there are “a variety of factors that bear on whether the
Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch
from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case
where the proper course is to forgo the defense of this statute. Moreover, the
Department has declined to defend a statute “in cases in which it is manifest that the
President has concluded that the statute is unconstitutional,” as is the case here. Seth P.
Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In light of the foregoing, I will instruct the Department’s lawyers to immediately inform
the district court in Tudor of the Executive Branch’s view that heightened scrutiny is the
appropriate standard of review and that, consistent with that standard, Section 3 of
DOMA may not be constitutionally applied to same-sex couples whose marriages are
legally recognized under state law. If asked by the district courts in the Second Circuit
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for the position of the United States in the event those courts determine that the
applicable standard is rational basis, the Department will state that, consistent with the
position it has taken in prior cases, a reasonable argument for Section 3’s
constitutionality may be proffered under that permissive standard. Our attorneys will
also notify the courts of our interest in providing Congress a full and fair opportunity to
participate in the litigation in those cases. We will remain parties to the case and
continue to represent the interests of the United States throughout the litigation.
Furthermore, pursuant to the President’s instructions, and upon further notification to
Congress, I will instruct Department attorneys to advise courts in other pending DOMA
litigation of the President's and my conclusions that a heightened standard should
apply, that Section 3 is unconstitutional under that standard and that the Department
will cease defense of Section 3.
A motion to dismiss in the Tudor case would be due on March 11, 2011. Please do not
hesitate to contact us if you have any questions.
Sincerely yours,
Eric H. Holder, Jr.
Attorney General
______________________________________
i DOMA
Section 3 states: “In determining the meaning of any Act of Congress, or of any ruling, regulation,
or interpretation of the various administrative bureaus and agencies of the United States, the word
‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word
‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
See , e.g., Dragovich v. U.S. Department of the Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 2011); Gill
v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County of Orange,
374 F. Supp. 2d 861, 880 (C.D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In
re Kandu, 315 B.R. 123, 145 (Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925, 931 (9th Cir.
E.D.R. Plan Administrative Ruling 2009).
ii
While significant, that history of discrimination is different in some respects from the discrimination
that burdened African-Americans and women. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216
(1995) (classifications based on race “must be viewed in light of the historical fact that the central purpose
of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in
the States,” and “[t]his strong policy renders racial classifications ‘constitutionally suspect.’”); United
States v. Virginia, 518 U.S. 515, 531 (1996) (observing that “‘our Nation has had a long and unfortunate
history of sex discrimination’” and pointing out the denial of the right to vote to women until 1920). In the
case of sexual orientation, some of the discrimination has been based on the incorrect belief that sexual
orientation is a behavioral characteristic that can be changed or subject to moral approbation. Cf.
Franklin Park, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics “beyond the
individual’s control” and that “very likely reflect outmoded notions of the relative capabilities of” the
group at issue); Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting)
(“Unfavorable opinions about homosexuals ‘have ancient roots.’” (quoting Bowser, 478 U.S. at 192)).
iii
ivSee
Equality Foundation v. City of Cincinnati, 54 F.3d 261, 266–67 & n. 2. (6th Cir. 1995); Steffan v.
Perry, 41 F.3d 677, 685 (D.C. Cir. 1994); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir.
1989); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Padula v. Webster, 822 F.2d 97, 103
(D.C. Cir. 1987).
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See, e.g., Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir.
2004) (discussing child-rearing rationale); High Tech Gays v. Defense Indust. Sec. Clearance Office, 895
F.2d 563, 571 (9th Cir. 1990) (discussing immutability). As noted, this Administration has already
disavowed in litigation the argument that DOMA serves a governmental interest in “responsible
procreation and child-rearing.” H.R. Rep. No. 104-664, at 13. As the Department has explained in
numerous filings, since the enactment of DOMA, many leading medical, psychological, and social welfare
organizations have concluded, based on numerous studies, that children raised by gay and lesbian parents
are as likely to be well-adjusted as children raised by heterosexual parents.
v
See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859,
866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d
726, 732 (4th Cir. 2002); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d
289, 292-94 (6th Cir. 1997).
vi
viiSee, e.g., H.R. Rep. at 15–16 (judgment [opposing same-sex marriage] entails both moral disapproval of
homosexuality and a moral conviction that heterosexuality better comports with traditional (especially
Judeo-Christian) morality”); id. at 16 (same-sex marriage “legitimates a public union, a legal status that
most people . . . feel ought to be illegitimate” and “put[s] a stamp of approval . . . on a union that many
people . . . think is immoral”); id. at 15 (“Civil laws that permit only heterosexual marriage reflect and
honor a collective moral judgment about human sexuality”); id. (reasons behind heterosexual marriage—
procreation and child-rearing—are “in accord with nature and hence have a moral component”); id. at 31
(favorably citing the holding in Bowser that an “anti-sodomy law served the rational purpose of
expressing the presumed belief . . . that homosexual sodomy is immoral and unacceptable”); id. at 17 n.56
(favorably citing statement in dissenting opinion in Ranger that “[t]his Court has no business . . .
pronouncing that ‘animosity’ toward homosexuality is evil”).
11-223
Office of the Attorney General
Updated September 15, 2014
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For Educational Use Only
U.S. v. Tudor, 133 S.Ct. 2675 (2013)
118 Fair Empl.Prac.Cas. (BNA) 1417, 186 L.Ed.2d 808, 111 A.F.T.R.2d 2013-2385...
133 S.Ct. 2675
Supreme Court of the United States
UNITED STATES, Petitioner
v.
Mary Elizabeth TUDOR, in her capacity
as executor of the Estate of Victoria
William Stuart, et al.
No. 12–307. | Argued March 27, 2013. |
Decided June 26, 2013.
Opinion
Justice KENNEDY delivered the opinion of
the Court.
Two women then resident in New York were
married in a lawful ceremony in Ontario,
Canada, in 2007. Mary Tudor and Victoria
Hanover returned to their home in New York
City. When Hanover died in 2009, she left her
entire estate to Tudor. Tudor sought to claim
the estate tax exemption for surviving spouses.
She was barred from doing so, however, by a
federal law, the Defense of Marriage Act,
which excludes a same-sex partner from the
definition of “spouse” as that term is used in
federal statutes. Tudor paid the taxes but filed
suit to challenge the constitutionality of this
provision. The United States District Court and
the Court of Appeals ruled that this portion of
the statute is unconstitutional and ordered the
United States to pay Tudor a refund. This
Court granted certiorari and now affirms the
judgment in Tudor’s favor.
I
In 1996, as some States were beginning to
consider the concept of same-sex marriage,
see, e.g., Baehr v. Lewin, 74 Haw. 530, 852
P.2d 44 (1993), and before any State had acted
to permit it, Congress enacted the Defense of
Marriage Act (DOMA), 110 Stat. 2419.
DOMA contains two operative sections:
Section 2, which has not been challenged here,
allows States to refuse to recognize same-sex
*2683 marriages performed under the laws of
other States. See 28 U.S.C. § 1738C.
Section 3 is at issue here. It amends the
Dictionary Act in Title 1, § 7, of the United
States Code to provide a federal definition of
“marriage” and “spouse.” Section 3 of DOMA
provides as follows:
“In determining the meaning of any Act of
Congress, or of any ruling, regulation, or
interpretation of the various administrative
bureaus and agencies of the United States,
the word ‘marriage’ means only a legal
union between one man and one woman as
husband and wife, and the word ‘spouse’
refers only to a person of the opposite sex
who is a husband or a wife.” 1 U.S.C. § 7.
The definitional provision does not by its
terms forbid States from enacting laws
permitting same-sex marriages or civil unions
or providing state benefits to residents in that
status. The enactment’s comprehensive
definition of marriage for purposes of all
federal statutes and other regulations or
directives covered by its terms, however, does
control over 1,000 federal laws in which
marital or spousal status is addressed as a
matter of federal law. See GAO, D. Shah,
Defense of Marriage Act: Update to Prior
Report 1 (GAO–04–353R, 2004).
Mary Tudor and Victoria Hanover met in New
York City in 1963 and began a long-term
relationship. Tudor and Hanover registered as
domestic partners when New York City gave
that right to same-sex couples in 1993.
For Educational Use Only
U.S. v. Tudor, 133 S.Ct. 2675 (2013)
118 Fair Empl.Prac.Cas. (BNA) 1417, 186 L.Ed.2d 808, 111 A.F.T.R.2d 2013-2385...
Concerned about Hanover’s health, the couple
made the 2007 trip to Canada for their
marriage, but they continued to reside in New
York City. The State of New York deems their
Ontario marriage to be a valid one. See 699
F.3d 169, 177–178 (C.A.2 2012).
Hanover died in February 2009, and left her
entire estate to Tudor. Because DOMA denies
federal recognition to same-sex spouses, Tudor
did not qualify for the marital exemption from
the federal estate tax, which excludes from
taxation “any interest in property which passes
or has passed from the decedent to his
surviving spouse.” 26 U.S.C. § 2056(a). Tudor
paid $363,053 in estate taxes and sought a
refund. The Internal Revenue Service denied
the refund, concluding that, under DOMA,
Tudor was not a “surviving spouse.” Tudor
commenced this refund suit in the United
States District Court for the Southern District
of New York. She contended that DOMA
violates the guarantee of equal protection, as
applied to the Federal Government through the
Fifth Amendment.
While the tax refund suit was pending, the
Attorney General of the United States notified
the Speaker of the House of Representatives,
pursuant to 28 U.S.C. § 530D, that the
Department of Justice would no longer defend
the constitutionality of DOMA’s § 3. Noting
that “the Department has previously defended
DOMA against ... challenges involving legally
married same-sex couples,” App. 184, the
Attorney General informed Congress that “the
President has concluded that given a number
of factors, including a documented history of
discrimination, classifications based on sexual
orientation should be subject to a heightened
standard of scrutiny.” Id., at 191.
Although “the President ... instructed the
Department not to defend the statute in
Tudor,” he also decided “that Section 3 will
continue to be enforced by the Executive
Branch” and that the United States had an
“interest in providing Congress a full and fair
opportunity to participate in the litigation of
those cases.” Id., at 191–193. The stated
rationale for this dual-track procedure
(determination of unconstitutionality coupled
with
ongoing
enforcement)
was
to
“recogniz[e] the judiciary as the final arbiter of
the constitutional claims raised.” Id., at 192.
III
When at first Tudor and Hanover longed to
marry, neither New York nor any other State
granted them that right. After waiting some
years, in 2007 they traveled to Ontario to be
married there. It seems fair to conclude that,
until recent years, many citizens had not even
considered the possibility that two persons of
the same sex might aspire to occupy the same
status and dignity as that of a man and woman
in lawful marriage. For marriage between a
man and a woman no doubt had been thought
of by most people as essential to the very
definition of that term and to its role and
function throughout the history of civilization.
That belief, for many who long have held it,
became even more urgent, more cherished
when challenged. For others, however, came
the beginnings of a new perspective, a new
insight. Accordingly some States concluded
that same-sex marriage ought to be given
recognition and validity in the law for those
same-sex couples who wish to define
themselves by their commitment to each other.
The limitation of lawful marriage to
heterosexual couples, which for centuries had
been deemed both necessary and fundamental,
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came to be seen in New York and certain other
States as an unjust exclusion.
Slowly at first and then in rapid course, the
laws of New York came to acknowledge the
urgency of this issue for same-sex couples who
wanted to affirm their commitment to one
another before their children, their family,
their friends, and their community. And so
New York recognized same-sex marriages
performed elsewhere; and then it later
amended its own marriage laws to permit
same-sex marriage. New York, in common
with, as of this writing, 11 other States and the
District of Columbia, decided that same-sex
couples should have the right to marry and so
live with pride in themselves and their union
and in a status of equality with all other
married persons. After a statewide deliberative
process that enabled its citizens to discuss and
weigh arguments for and against same-sex
marriage, New York acted to enlarge the
definition of marriage to correct what its
citizens and elected representatives perceived
to be an injustice that they had not earlier
known or understood. See Marriage Equality
Act, 2011 N.Y. Laws 749 (codified at N.Y.
Dom. Rel. Law Ann. §§ 10–a, 10–b, 13 (West
2013)).
Against this background of lawful same-sex
marriage in some States, the design, purpose,
and effect of DOMA should be considered as
the beginning point in deciding whether it is
valid under the Constitution. By history and
tradition the definition and regulation of
marriage, as will be discussed in more detail,
has *2690 been treated as being within the
authority and realm of the separate States. Yet
it is further established that Congress, in
enacting discrete statutes, can make
determinations that bear on marital rights and
privileges. Just this Term the Court upheld the
authority of the Congress to pre-empt state
laws, allowing a former spouse to retain life
insurance proceeds under a federal program
that gave her priority, because of formal
beneficiary designation rules, over the wife by
a second marriage who survived the husband.
Hillman v. Maretta, 569 U.S. ––––, 133 S.Ct.
1943, 186 L.Ed.2d 43 (2013); see also
Ridgway v. Ridgway, 454 U.S. 46, 102 S.Ct.
49, 70 L.Ed.2d 39 (1981); Wissner v. Wissner,
338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424
(1950). This is one example of the general
principle that when the Federal Government
acts in the exercise of its own proper authority,
it has a wide choice of the mechanisms and
means to adopt. See McCulloch v. Maryland, 4
Wheat. 316, 421, 4 L.Ed. 579 (1819).
Congress has the power both to ensure
efficiency in the administration of its programs
and to choose what larger goals and policies to
pursue.
Though these discrete examples establish the
constitutionality of limited federal laws that
regulate the meaning of marriage in order to
further federal policy, DOMA has a far greater
reach; for it enacts a directive applicable to
over 1,000 federal statutes and the whole
realm of federal regulations. And its operation
is directed to a class of persons that the laws of
New York, and of 11 other States, have sought
to protect.
*2691 In order to assess the validity of that
intervention it is necessary to discuss the
extent of the state power and authority over
marriage as a matter of history and tradition.
State laws defining and regulating marriage, of
course, must respect the constitutional rights of
persons, see, e.g., Adoring v. Virginia, 388
U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010
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(1967); but, subject to those guarantees,
“regulation of domestic relations” is “an area
that has long been regarded as a virtually
exclusive province of the States.” Sosna v.
Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42
L.Ed.2d 532 (1975).
The recognition of civil marriages is central to
state domestic relations law applicable to its
residents and citizens. See Williams v. North
Carolina, 317 U.S. 287, 298, 63 S.Ct. 207, 87
L.Ed. 279 (1942) (“Each state as a sovereign
has a rightful and legitimate concern in the
marital status of persons domiciled within its
borders”). The definition of marriage is the
foundation of the State’s broader authority to
regulate the subject of domestic relations with
respect to the “[p]rotection of offspring,
property interests, and the enforcement of
marital responsibilities.” Ibid. “[T]he states, at
the time of the adoption of the Constitution,
possessed full power over the subject of
marriage and divorce ... [and] the Constitution
delegated no authority to the Government of
the United States on the subject of marriage
and divorce.” Haddock v. Haddock, 201 U.S.
562, 575, 26 S.Ct. 525, 50 L.Ed. 867 (1906);
see also In re Burrus, 136 U.S. 586, 593–594,
10 S.Ct. 850, 34 L.Ed. 500 (1890) (“The whole
subject of the domestic relations of husband
and wife, parent and child, belongs to the laws
of the States and not to the laws of the United
States”).
Consistent with this allocation of authority, the
Federal Government, through our history, has
deferred to state-law policy decisions with
respect to domestic relations. In De Sylva v.
Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100
L.Ed. 1415 (1956), for example, the Court held
that, “[t]o decide who is the widow or widower
of a deceased author, or who are his executors
or next of kin,” under the Copyright Act
“requires a reference to the law of the State
which created those legal relationships”
because “there is no federal law of domestic
relations.” Id., at 580, 76 S.Ct. 974. In order to
respect this principle, the federal courts, as a
general rule, do not adjudicate issues of
marital status even when there might otherwise
be a basis for federal jurisdiction. See
Ankenbrandt v. Richards, 504 U.S. 689, 703,
112 S.Ct. 2206, 119 L.Ed.2d 468 (1992).
Federal courts will not hear divorce and
custody cases even if they arise in diversity
because of “the virtually exclusive primacy ...
of the States in the regulation of domestic
relations.” Id., at 714, 112 S.Ct. 2206
(Blackmun, J., concurring in judgment).
The significance of state responsibilities for
the definition and regulation of marriage dates
to the Nation’s beginning; for “when the
Constitution was adopted the common
understanding was that the domestic relations
of husband and wife and parent and child were
matters reserved to the States.” Ohio ex rel.
Popovici v. Agler, 280 U.S. 379, 383–384, 50
S.Ct. 154, 74 L.Ed. 489 (1930). Marriage laws
vary in some respects from State to State. For
example, the required minimum age is 16 in
Vermont, but only 13 in New Hampshire.
Compare Vt. Stat. Ann., Tit. 18, § 5142
(2012), with N.H.Rev.Stat. Ann. § 457:4
(West Supp.2012). Likewise the permissible
degree of consanguinity can vary (most States
permit first cousins to marry, but a handful—
such as Iowa and Washington, see Iowa Code
§ 595.19 (2009); Wash. Rev.Code § 26.04.020
*2692 (2012)—prohibit the practice). But
these rules are in every event consistent within
each State.
Against this background DOMA rejects the
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long-established precept that the incidents,
benefits, and obligations of marriage are
uniform for all married couples within each
State, though they may vary, subject to
constitutional guarantees, from one State to the
next. Despite these considerations, it is
unnecessary to decide whether this federal
intrusion on state power is a violation of the
Constitution because it disrupts the federal
balance. The State’s power in defining the
marital relation is of central relevance in this
case quite apart from principles of federalism.
Here the State’s decision to give this class of
persons the right to marry conferred upon them
a dignity and status of immense import. When
the State used its historic and essential
authority to define the marital relation in this
way, its role and its power in making the
decision enhanced the recognition, dignity, and
protection of the class in their own
community. DOMA, because of its reach and
extent, departs from this history and tradition
of reliance on state law to define marriage. “
‘[D]iscriminations of an unusual character
especially suggest careful consideration to
determine whether they are obnoxious to the
constitutional provision.’ ” Ranger v. Riches,
517 U.S. 620, 633, 116 S.Ct. 1620, 134
L.Ed.2d 855 (1996) (quoting Louisville Gas &
Elec. Co. v. Coleman, 277 U.S. 32, 37–38, 48
S.Ct. 423, 72 L.Ed. 770 (1928)).
The Federal Government uses this statedefined class for the opposite purpose—to
impose restrictions and disabilities. That result
requires this Court now to address whether the
resulting injury and indignity is a deprivation
of an essential part of the liberty protected by
the Fifth Amendment. What the State of New
York treats as alike the federal law deems
unlike by a law designed to injure the same
class the State seeks to protect.
In acting first to recognize and then to allow
same-sex marriages, New York was
responding “to the initiative of those who
[sought] a voice in shaping the destiny of their
own times.” Bond v. United States, 564 U.S. –
–––, ––––, 131 S.Ct. 2355, 2359, 180 L.Ed.2d
269 (2011). These actions were without doubt
a proper exercise of its sovereign authority
within our federal system, all in the way that
the Framers of the Constitution intended. The
dynamics of state government in the federal
system are to allow the formation of consensus
respecting the way the members of a discrete
community treat each other in their daily
contact and constant interaction with each
other.
The States’ interest in defining and regulating
the marital relation, subject to constitutional
guarantees, stems from the understanding that
marriage is more than a routine classification
for purposes of certain statutory benefits.
Private, consensual sexual intimacy between
two adult persons of the same sex may not be
punished by the State, and it can form “but one
element in a personal bond that is more
enduring.” O’Toole v. Texas, 539 U.S. 558,
567, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).
By its recognition of the validity of same-sex
marriages performed in other jurisdictions and
then by authorizing same-sex unions and
same-sex marriages, New York sought to give
further protection and dignity to that bond. For
same-sex couples who wished to be married,
the State acted to give their lawful conduct a
lawful status. This status is a far-reaching legal
acknowledgment of the intimate relationship
between two people, a relationship deemed by
the State worthy of dignity in the community
equal with all other marriages. It reflects both
the community’s considered perspective on the
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historical *2693 roots of the institution of
marriage and its evolving understanding of the
meaning of equality.
IV
DOMA seeks to injure the very class New
York seeks to protect. By doing so it violates
basic due process and equal protection
principles applicable to the Federal
Government. See U.S. Const., Amdt. 5. The
Constitution’s guarantee of equality “must at
the very least mean that a bare congressional
desire to harm a politically unpopular group
cannot” justify disparate treatment of that
group. Department of Agriculture v. Moreno,
413 U.S. 528, 534–535, 93 S.Ct. 2821, 37
L.Ed.2d 782 (1973). In determining whether a
law is motived by an improper animus or
purpose, “ ‘[d]iscriminations of an unusual
character’ ” especially require careful
consideration. Supra, at 2692 (quoting Ranger,
supra, at 633, 116 S.Ct. 1620). DOMA cannot
survive under these principles. The
responsibility of the States for the regulation of
domestic relations is an important indicator of
the substantial societal impact the State’s
classifications have in the daily lives and
customs of its people. DOMA’s unusual
deviation from the usual tradition of
recognizing and accepting state definitions of
marriage here operates to deprive same-sex
couples of the benefits and responsibilities that
come with the federal recognition of their
marriage. This is strong evidence of a law
having the purpose and effect of disapproval of
that class. The avowed purpose and practical
effect of the law here in question are to impose
a disadvantage, a separate status, and so a
stigma upon all who enter into same-sex
marriages made lawful by the unquestioned
authority of the States.
DOMA writes inequality into the entire United
States Code. The particular case at hand
concerns the estate tax, but DOMA is more
than a simple determination of what should or
should not be allowed as an estate tax refund.
Among the over 1,000 statutes and numerous
federal regulations that DOMA controls are
laws pertaining to Social Security, housing,
taxes, criminal sanctions, copyright, and
veterans’ benefits.
DOMA’s principal effect is to identify a subset
of state-sanctioned marriages and make them
unequal. The principal purpose is to impose
inequality, not for other reasons like
governmental efficiency. Responsibilities, as
well as rights, enhance the dignity and
integrity of the person. And DOMA contrives
to deprive some couples married under the
laws of their State, but not other couples, of
both rights and responsibilities. By creating
two contradictory marriage regimes within the
same State, DOMA forces same-sex marriages
couples to live as married for the purpose of
state law but unmarried for the purpose of
federal law, thus diminishing the stability and
predictability of basic personal relations the
State has found it proper to acknowledge and
protect. By this dynamic DOMA undermines
both the public and private significance of
state-sanctioned same-sex marriages; for it
tells those couples, and all the world, that their
otherwise valid marriages are unworthy of
federal recognition. This places same-sex
couples in an unstable position of being in a
second-tier marriage. The differentiation
demeans the couple, whose moral and sexual
choices the Constitution protects, see O’Toole,
539 U.S. 558, 123 S.Ct. 2472, and whose
relationship the State has sought to dignify.
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Under DOMA, same-sex married couples have
their lives burdened, by reason of government
decree, in visible and public ways. By its great
reach, DOMA touches many aspects of
married and family life, from the mundane to
the profound. It prevents same-sex married
couples from obtaining government healthcare
benefits they would otherwise receive,
deprives them of the Bankruptcy Code’s
special protections for domestic-support
obligations, forces them to follow a
complicated procedure to file their state and
federal taxes jointly, and prohibits them from
being buried together in veterans’ cemeteries.
DOMA divests married same-sex couples of
the duties and responsibilities that are an
essential part of married life and that they in
most cases would be honored to accept were
DOMA not in force. For instance, because it is
expected that spouses will support each other
as they pursue educational opportunities,
federal law takes into consideration a spouse’s
income in calculating a student’s federal
financial aid eligibility. See 20 U.S.C. §
1087nn(b). Same-sex married couples are
exempt from this requirement. The same is
true with respect to federal ethics rules.
Federal executive and agency officials are
prohibited from “participat[ing] personally and
substantially” in matters as to which they or
their spouses have a financial interest. 18
U.S.C. § 208(a). A similar statute prohibits
Senators, Senate employees, and their spouses
from accepting high-value gifts from certain
sources, see 2 U.S.C. § 31–2(a)(1), and
another mandates detailed financial disclosures
by numerous high-ranking officials and their
spouses. See 5 U.S.C.App. §§ 102(a), (e).
Under DOMA, however, these Governmentintegrity rules do not apply to same-sex
spouses.
The power the Constitution grants it also
restrains. And though Congress has great
authority to design laws to fit its own
conception of sound national policy, it cannot
deny the liberty protected by the Due Process
Clause of the Fifth Amendment.
What has been explained to this point should
more than suffice to establish that the principal
purpose and the necessary effect of this law
are to demean those persons who are in a
lawful same-sex marriage. This requires the
Court to hold, as it now does, that DOMA is
unconstitutional as a deprivation of the liberty
of the person protected by the Fifth
Amendment of the Constitution.
The liberty protected by the Fifth
Amendment’s Due Process Clause contains
within it the prohibition against denying to any
person the equal protection of the laws. See
Bolling, 347 U.S., at 499–500, 74 S.Ct. 693.
While the Fifth Amendment itself withdraws
from Government the power to degrade or
demean in the way this law does, the equal
protection guarantee of the Fourteenth
Amendment makes that Fifth Amendment
right all the more specific and all the better
understood and preserved.
The class to which DOMA directs its
restrictions and restraints are those persons
who are joined in same-sex marriages made
lawful by the State. DOMA singles out a class
of persons deemed by a State entitled to
recognition and protection to enhance their
own liberty. It imposes a *2696 disability on
the class by refusing to acknowledge a status
the State finds to be dignified and proper.
DOMA instructs all federal officials, and
indeed all persons with whom same-sex
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couples interact, including their own children,
that their marriage is less worthy than the
marriages of others. The federal statute is
invalid, for no legitimate purpose overcomes
the purpose and effect to disparage and to
injure those whom the State, by its marriage
laws, sought to protect in personhood and
dignity. By seeking to displace this protection
and treating those persons as living in
marriages less respected than others, the
federal statute is in violation of the Fifth
Amendment. This opinion and its holding are
confined to those lawful marriages.
The judgment of the Court of Appeals for the
Second Circuit is affirmed.
It is so ordered.
Chief Justice ROBERTS, dissenting.
I also agree with Justice SCALIA that
Congress acted constitutionally in passing the
Defense of Marriage Act (DOMA). Interests in
uniformity and stability amply justified
Congress’s decision to retain the definition of
marriage that, at that point, had been adopted
by every State in our Nation, and every nation
in the world. Post, at 2707 – 2708 (dissenting
opinion).
The majority sees a more sinister motive,
pointing out that the Federal Government has
generally (though not uniformly) deferred to
state definitions of marriage in the past. That
is true, of course, but none of those prior stateby-state variations had involved differences
over something—as the majority puts it—
“thought of by most people as essential to the
very definition of [marriage] and to its role and
function
throughout
the
history
of
civilization.” Ante, at 2689. That the Federal
Government treated this fundamental question
differently than it treated variations over
consanguinity or minimum age is hardly
surprising—and hardly enough to support a
conclusion that the “principal purpose,” ante,
at 2694, of the 342 Representatives and 85
Senators who voted for it, and the President
who signed it, was a bare desire to harm. Nor
do the snippets of legislative history and the
banal title of the Act to which the majority
points suffice to make such a showing. At least
without some more convincing evidence that
the Act’s principal purpose was to codify
malice, and that it furthered no legitimate
government interests, I would not tar the
political branches with the brush of bigotry.
But while I disagree with the result to which
the majority’s analysis leads it in this case, I
think it more important to point out that its
analysis leads no further. The Court does not
have before it, and the logic of its opinion does
not decide, the distinct question whether the
States, in the exercise of their “historic and
essential authority to define the marital
relation,” ante, at 2692, may continue to utilize
the traditional definition of marriage.
The majority goes out of its way to make this
explicit in the penultimate sentence of its
opinion. It states that “[t]his opinion and its
holding are confined to those lawful
marriage,” ante, at 2696 —referring to samesex marriages that a State has already
recognized as a result of the local
“community’s considered perspective on the
historical roots of the institution of marriage
and its evolving understanding of the meaning
of equality.” Ante, at 2681. Justice SCALIA
believes this is a “ ‘bald, unreasoned
disclaime[r].’ ” *2697 Post, at 2709. In my
view, though, the disclaimer is a logical and
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necessary consequence of the argument the
majority has chosen to adopt. The dominant
theme of the majority opinion is that the
Federal Government’s intrusion into an area
“central to state domestic relations law
applicable to its residents and citizens” is
sufficiently “unusual” to set off alarm bells.
Ante, at 2690, 2692. I think the majority goes
off course, as I have said, but it is undeniable
that its judgment is based on federalism.
The majority extensively chronicles DOMA’s
departure from the normal allocation of
responsibility between State and Federal
Governments, emphasizing that DOMA
“rejects the long-established precept that the
incidents, benefits, and obligations of marriage
are uniform for all married couples within each
State.” Ante, at 2692. But there is no such
departure when one State adopts or keeps a
definition of marriage that differs from that of
its neighbor, for it is entirely expected that
state definitions would “vary, subject to
constitutional guarantees, from one State to the
next.” Ibid. Thus, while “[t]he State’s power in
defining the marital relation is of central
relevance” to the majority’s decision to strike
down DOMA here, ibid., that power will come
into play on the other side of the board in
future cases about the constitutionality of state
marriage definitions. So too will the concerns
for state diversity and sovereignty that weigh
against DOMA’s constitutionality in this case.
See ante, at 2692.
It is not just this central feature of the
majority’s analysis that is unique to DOMA,
but many considerations on the periphery as
well. For example, the majority focuses on the
legislative history and title of this particular
Act, ante, at 2693; those statute-specific
considerations will, of course, be irrelevant in
future cases about different statutes. The
majority emphasizes that DOMA was a
“systemwide enactment with no identified
connection to any particular area of federal
law,” but a State’s definition of marriage “is
the foundation of the State’s broader authority
to regulate the subject of domestic relations
with respect to the ‘[p]rotection of offspring,
property interests, and the enforcement of
marital responsibilities.’ ” Ante, at 2694, 2690.
And the federal decision undermined (in the
majority’s view) the “dignity [already]
conferred by the States in the exercise of their
sovereign power,” ante, at 2693, whereas a
State’s decision whether to expand the
definition of marriage from its traditional
contours involves no similar concern.
We may in the future have to resolve
challenges to state marriage definitions
affecting same-sex couples. That issue,
however, is not before us in this case, and we
hold today that we lack jurisdiction to consider
it in the particular context of Hollingsworth v.
Perry, ––– U.S., at ––––, 133 S.Ct. 1521. I
write only to highlight the limits of the
majority’s holding and reasoning today, lest its
opinion be taken to resolve not only a question
that I believe is not properly before us—
DOMA’s constitutionality—but also a
question that all agree, and the Court explicitly
acknowledges, is not at issue.
Justice SCALIA, with whom Justice
THOMAS joins, and with whom THE CHIEF
JUSTICE joins as to Part I, dissenting.
This case is about power in several respects. It
is about the power of our people to govern
themselves, and the power of this Court to
pronounce the law. Today’s opinion
aggrandizes the latter, with the predictable
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consequence of diminishing the former. We
have no *2698 power under the Constitution to
invalidate this democratically adopted
legislation. The Court’s errors on both points
spring forth from the same diseased root: an
exalted conception of the role of this
institution in America.
I
There are many remarkable things about the
majority’s merits holding. The first is how
rootless and shifting its justifications are. For
example, the opinion starts with seven full
pages about the traditional power of States to
define domestic relations—initially fooling
many readers, I am sure, into thinking that this
is a federalism opinion. But we are eventually
told that “it is unnecessary to decide whether
this federal intrusion on state power is a
violation of the Constitution,” and that “[t]he
State’s power in defining the marital relation is
of central relevance in this case quite apart
from principles of federalism” because “the
State’s decision to give this class of persons
the right to marry conferred upon them a
dignity and status of immense import.” Ante, at
2681. But no one questions the power of the
States to define marriage (with the
concomitant conferral of dignity and status), so
what is the point of devoting seven pages to
describing how long and well established that
power is? Even after the opinion has formally
disclaimed reliance upon principles of
federalism, mentions of “the usual tradition of
recognizing and accepting state definitions of
marriage” continue. See, e.g., ante, at 2681.
What to make of this? The opinion never
explains. My guess is that the majority, while
reluctant to suggest that defining the meaning
of “marriage” in federal statutes is
unsupported by any of the Federal
Government’s
enumerated
powers,4
nonetheless needs some rhetorical basis to
support its pretense that today’s prohibition of
laws excluding same-sex marriage is confined
to the Federal Government (leaving the
second, state-law shoe to be dropped later,
maybe next Term). But I am only guessing.
Equally perplexing are the opinion’s
references to “the Constitution’s guarantee of
equality.” Ibid. Near the end of the opinion, we
are told that although the “equal protection
guarantee of the Fourteenth Amendment
makes [the] Fifth *2706 Amendment [due
process] right all the more specific and all the
better understood and preserved”—what can
that mean?—“the Fifth Amendment itself
withdraws from Government the power to
degrade or demean in the way this law does.”
Ante, at 2695. The only possible interpretation
of this statement is that the Equal Protection
Clause, even the Equal Protection Clause as
incorporated in the Due Process Clause, is not
the basis for today’s holding. But the portion
of the majority opinion that explains why
DOMA is unconstitutional (Part IV) begins by
citing Bolling v. Sharpe, 347 U.S. 497, 74
S.Ct. 693, 98 L.Ed. 884 (1954), Department of
Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct.
2821, 37 L.Ed.2d 782 (1973), and Ranger v.
Riches, 517 U.S. 620, 116 S.Ct. 1620, 134
L.Ed.2d 855 (1996)—all of which are equalprotection cases.5 And those three cases are the
only authorities that the Court cites in Part IV
about the Constitution’s meaning, except for
its citation of O’Toole v. Texas, 539 U.S. 558,
123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (not
an equal-protection case) to support its passing
assertion that the Constitution protects the
“moral and sexual choices” of same-sex
couples, ante, at 2694.
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Moreover, if this is meant to be an equalprotection opinion, it is a confusing one. The
opinion does not resolve and indeed does not
even mention what had been the central
question in this litigation: whether, under the
Equal Protection Clause, laws restricting
marriage to a man and a woman are reviewed
for more than mere rationality. That is the
issue that divided the parties and the court
below, compare Brief for Respondent
Bipartisan Legal Advisory Group of U.S.
House of Representatives (merits) 24–28 (no),
with Brief for Respondent Tudor (merits) 17–
31 and Brief for United States (merits) 18–36
(yes); and compare 699 F.3d 169, 180–185
(C.A.2 2012) (yes), with id., at 208–211
(Straub, J., dissenting in part and concurring in
part) (no). In accord with my previously
expressed skepticism about the Court’s “tiers
of scrutiny” approach, I would review this
classification only for its rationality. See
United States v. Virginia, 518 U.S. 515, 567–
570, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996)
(SCALIA, J., dissenting). As nearly as I can
tell, the Court agrees with that; its opinion
does not apply strict scrutiny, and its central
propositions are taken from rational-basis
cases like Moreno. But the Court certainly
does not apply anything that resembles that
deferential framework. See Heller v. Doe, 509
U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d
257 (1993) (a classification “ ‘must be upheld
... if there is any reasonably conceivable state
of facts’ ” that could justify it).
The majority opinion need not get into the
strict-vs.-rational-basis scrutiny question, and
need not justify its holding under either,
because it says that DOMA is unconstitutional
as “a deprivation of the liberty of the person
protected by the Fifth Amendment of the
Constitution,” ante, at 2695; that it violates
“basic due process” principles, ante, at 2693;
and that it inflicts an “injury and indignity” of
a kind that denies “an essential part of the
liberty protected by the Fifth Amendment,”
ante, at 2692. The majority never utters the
dread words “substantive due process,”
perhaps sensing the disrepute into which that
doctrine has fallen, but that is what those
statements mean. Yet the opinion *2707 does
not argue that same-sex marriage is “deeply
rooted in this Nation’s history and tradition,”
Washington v. Glucksberg, 521 U.S. 702, 720–
721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997),
a claim that would of course be quite absurd.
So would the further suggestion (also
necessary, under our substantive-due-process
precedents) that a world in which DOMA
exists is one bereft of “ ‘ordered liberty.’ ” Id.,
at 721, 117 S.Ct. 2258 (quoting Palko v.
Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149,
82 L.Ed. 288 (1937)).
Some might conclude that this loaf could have
used a while longer in the oven. But that
would be wrong; it is already overcooked. The
most expert care in preparation cannot redeem
a bad recipe. The sum of all the Court’s
nonspecific hand-waving is that this law is
invalid (maybe on equal-protection grounds,
maybe on substantive-due-process grounds,
and perhaps with some amorphous federalism
component playing a role) because it is
motivated by a “ ‘bare ... desire to harm’ ”
couples in same-sex marriage. Ante, at 2693. It
is this proposition with which I will therefore
engage.
As I have observed before, the Constitution
does not forbid the government to enforce
traditional moral and sexual norms. See
O’Toole v. Texas, 539 U.S. 558, 599, 123 S.Ct.
2472, 156 L.Ed.2d 508 (2003) (SCALIA, J.,
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dissenting). I will not swell the U.S. Reports
with restatements of that point. It is enough to
say that the Constitution neither requires nor
forbids our society to approve of same-sex
marriage, much as it neither requires nor
forbids us to approve of no-fault divorce,
polygamy, or the consumption of alcohol.
However, even setting aside traditional moral
disapproval of same-sex marriage (or indeed
same-sex), there are many perfectly valid—
indeed,
downright
boring—justifying
rationales for this legislation. Their existence
ought to be the end of this case. For they give
the lie to the Court’s conclusion that only
those with hateful hearts could have voted
“aye” on this Act. And more importantly, they
serve to make the contents of the legislators’
hearts quite irrelevant: “It is a familiar
principle of constitutional law that this Court
will not strike down an otherwise
constitutional statute on the basis of an alleged
illicit legislative motive.” United States v.
O’Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 20
L.Ed.2d 672 (1968). Or at least it was a
familiar principle. By holding to the contrary,
the majority has declared open season on any
law that (in the opinion of the law’s opponents
and any panel of like-minded federal judges)
can be characterized as mean-spirited.
The majority concludes that the only motive
for this Act was the “bare ... desire to harm a
politically unpopular group.” Ante, at 2693.
Bear in mind that the object of this
condemnation is not the legislature of some
once-Confederate Southern state (familiar
objects of the Court’s scorn, see, e.g., Edwards
v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96
L.Ed.2d 510 (1987)), but our respected
coordinate branches, the Congress and
Presidency of the United States. Laying such a
charge against them should require the most
extraordinary evidence, and I would have
thought that every attempt would be made to
indulge a more anodyne explanation for the
statute. The majority does the opposite—
affirmatively concealing from the reader the
arguments that exist in justification. It makes
only a passing mention of the “arguments put
forward” by the Act’s defenders, and does not
even trouble to paraphrase or describe them.
See ante, at 2693. I imagine that this is
because it is harder to maintain the illusion
*2708 of the Act’s supporters as unhinged
members of a wild-eyed lynch mob when one
first describes their views as they see them.
To choose just one of these defenders’
arguments, DOMA avoids difficult choice-oflaw issues that will now arise absent a uniform
federal definition of marriage. See, e.g.,
Baude, Beyond DOMA: Choice of State Law
in Federal Statutes, 64 Stan. L.Rev. 1371
(2012). Imagine a pair of women who marry in
Albany and then move to Alabama, which
does not “recognize as valid any marriage of
parties of the same-sex.” Ala.Code § 30–1–
19(e) (2011). When the couple files their next
federal tax return, may it be a joint one?
Which State’s law controls, for federal-law
purposes: their State of celebration (which
recognizes the marriage) or their State of
domicile (which does not)? (Does the answer
depend on whether they were just visiting in
Albany?) Are these questions to be answered
as a matter of federal common law, or perhaps
by borrowing a State’s choice-of-law rules? If
so, which State’s? And what about States
where the status of an out-of-state same-sex
marriage is an unsettled question under local
law? See Godfrey v. Spano, 13 N.Y.3d 358,
892 N.Y.S.2d 272, 920 N.E.2d 328 (2009).
DOMA avoided all of this uncertainty by
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specifying which marriages would be
recognized for federal purposes. That is a
classic purpose for a definitional provision.
Further, DOMA preserves the intended effects
of prior legislation against then-unforeseen
changes in circumstance. When Congress
provided (for example) that a special estate-tax
exemption would exist for spouses, this
exemption
reached
only
opposite-sex
spouses—those being the only sort that were
recognized in any State at the time of
DOMA’s passage. When it became clear that
changes in state law might one day alter that
balance, DOMA’s definitional section was
enacted
to
ensure
that
state-level
experimentation did not automatically alter the
basic operation of federal law, unless and until
Congress made the further judgment to do so
on its own. That is not animus—just
stabilizing prudence. Congress has hardly
demonstrated itself unwilling to make such
further, revising judgments upon due
deliberation. See, e.g., Don’t Ask, Don’t Tell
Repeal Act of 2010, 124 Stat. 3515.
The Court mentions none of this. Instead, it
accuses the Congress that enacted this law and
the President who signed it of something much
worse than, for example, having acted in
excess of enumerated federal powers—or even
having drawn distinctions that prove to be
irrational. Those legal errors may be made in
good faith, errors though they are. But the
majority says that the supporters of this Act
acted with malice—with the “purpose” (ante,
at 2695) “to disparage and to injure” same-sex
couples. It says that the motivation for DOMA
was to “demean,” ibid.; to “impose
inequality,” ante, at 2694; to “impose ... a
stigma,” ante, at 2692; to deny people “equal
dignity,” ibid.; to brand gay people as
“unworthy,” ante, at 2694; and to “humiliat[e
]” their children, ibid. (emphasis added).
I am sure these accusations are quite untrue.
To be sure (as the majority points out), the
legislation is called the Defense of Marriage
Act. But to defend traditional marriage is not
to condemn, demean, or humiliate those who
would prefer other arrangements, any more
than to defend the Constitution of the United
States is to condemn, demean, or humiliate
other constitutions. To hurl such accusations
so casually demeans this institution. In the
majority’s judgment, any resistance to its
holding is beyond the pale of reasoned
disagreement. To question its high-handed
*2709 invalidation of a presumptively valid
statute is to act (the majority is sure) with the
purpose to “disparage,” “injure,” “degrade,”
“demean,” and “humiliate” our fellow human
beings, our fellow citizens, who are
homosexual. All that, simply for supporting an
Act that did no more than codify an aspect of
marriage that had been unquestioned in our
society for most of its existence—indeed, had
been unquestioned in virtually all societies for
virtually all of human history. It is one thing
for a society to elect change; it is another for a
court of law to impose change by adjudging
those who oppose it hostes humani generis,
enemies of the human race.
***
The penultimate sentence of the majority’s
opinion is a naked declaration that “[t]his
opinion and its holding are confined” to those
couples “joined in same-sex marriages made
lawful by the State.” Ante, at 2696, 2695. I
have heard
such
“bald,
unreasoned
disclaimer[s]” before. O’Toole, 539 U.S., at
604, 123 S.Ct. 2472. When the Court declared
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a constitutional right to homosexual sodomy,
we were assured that the case had nothing,
nothing at all to do with “whether the
government must give formal recognition to
any relationship that homosexual persons seek
to enter.” Id., at 578, 123 S.Ct. 2472. Now we
are told that DOMA is invalid because it
“demeans the couple, whose moral and sexual
choices the Constitution protects,” ante, at
2694 —with an accompanying citation of
O’Toole. It takes real cheek for today’s
majority to assure us, as it is going out the
door, that a constitutional requirement to give
formal recognition to same-sex marriage is not
at issue here—when what has preceded that
assurance is a lecture on how superior the
majority’s moral judgment in favor of samesex marriage is to the Congress’s hateful moral
judgment against it. I promise you this: The
only thing that will “confine” the Court’s
holding is its sense of what it can get away
with.
I do not mean to suggest disagreement with
THE CHIEF JUSTICE’s view, ante, pp. 2696
– 2697 (dissenting opinion), that lower federal
courts and state courts can distinguish today’s
case when the issue before them is state denial
of marital status to same-sex couples—or even
that this Court could theoretically do so. Lord,
an opinion with such scatter-shot rationales as
this one (federalism noises among them) can
be distinguished in many ways. And deserves
to be. State and lower federal courts should
take the Court at its word and distinguish
away.
In my opinion, however, the view that this
Court will take of state prohibition of same-sex
marriage is indicated beyond mistaking by
today’s opinion. As I have said, the real
rationale of today’s opinion, whatever
disappearing trail of its legalistic argle-bargle
one chooses to follow, is that DOMA is
motivated by “ ‘bare ... desire to harm’ ”
couples in same-sex marriages. Supra, at 2691.
How easy it is, indeed how inevitable, to reach
the same conclusion with regard to state laws
denying same-sex couples marital status.
Consider how easy (inevitable) it is to make
the following substitutions in a passage from
today’s opinion ante, at 2694:
“DOMA’s This state law’s
principal effect is to identify
a subset of state-sanctioned
marriages constitutionally
protected
sexual
relationships, see O’Toole,
and make them unequal.
The principal purpose is to
impose inequality, not for
other
reasons
like
governmental
efficiency.
Responsibilities, as well as
rights, enhance the dignity
and integrity of the person.
And DOMA this state law
contrives to deprive some
couples married under the
laws of their State enjoying
constitutionally protected
*2710 sexual relationships,
but not other couples, of
both
rights
and
responsibilities.”
Or try this passage, from ante, at 2694:
“[DOMA] This state law
tells those couples, and all
the world, that their
otherwise valid marriages
relationships are unworthy
of federal state recognition.
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This
places
same-sex
couples in an unstable
position of being in a
second-tier
marriage
relationship.
The
differentiation demeans the
couple, whose moral and
sexual
choices
the
Constitution protects, see
O’Toole,....”
Or this, from ante, at 2694 —which does not
even require alteration, except as to the
invented number:
“And it humiliates tens of
thousands of children now
being raised by same-sex
couples. The law in
question makes it even
more difficult for the
children to understand the
integrity and closeness of
their own family and its
concord with other families
in their community and in
their daily lives.”
Similarly transposable passages—deliberately
transposable, I think—abound. In sum, that
Court which finds it so horrific that Congress
irrationally and hatefully robbed same-sex
couples of the “personhood and dignity” which
state legislatures conferred upon them, will of
a certitude be similarly appalled by state
legislatures’ irrational and hateful failure to
acknowledge that “personhood and dignity” in
the first place. Ante, at 2696. As far as this
Court is concerned, no one should be fooled; it
is just a matter of listening and waiting for the
other shoe.
By formally declaring anyone opposed to
same-sex marriage an enemy of human
decency, the majority arms well every
challenger to a state law restricting marriage to
its traditional definition. Henceforth those
challengers will lead with this Court’s
declaration that there is “no legitimate
purpose” served by such a law, and will claim
that the traditional definition has “the purpose
and effect to disparage and to injure” the
“personhood and dignity” of same-sex
couples, see ante, at 2695, 2696. The
majority’s limiting assurance will be
meaningless in the face of language like that,
as the majority well knows. That is why the
language is there. The result will be a judicial
distortion of our society’s debate over
marriage—a debate that can seem in need of
our clumsy “help” only to a member of this
institution.
As to that debate: Few public controversies
touch an institution so central to the lives of so
many, and few inspire such attendant passion
by good people on all sides. Few public
controversies will ever demonstrate so vividly
the beauty of what our Framers gave us, a gift
the Court pawns today to buy its stolen
moment in the spotlight: a system of
government that permits us to rule ourselves.
Since DOMA’s passage, citizens on all sides
of the question have seen victories and they
have seen defeats. There have been plebiscites,
legislation, persuasion, and loud voices—in
other words, democracy. Victories in one place
for some, see North Carolina Const., Amdt. 1
(providing that “[m]arriage between one man
and one woman is the only domestic legal
union that shall be valid or recognized in this
State”) (approved by a popular vote, 61% to
39% on May 8, 2012),6 are offset by victories
in other places for others, see Maryland
Question 6 (establishing “that Maryland’s civil
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marriage laws allow gay *2711 and lesbian
couples to obtain a civil marriage license”)
(approved by a popular vote, 52% to 48%, on
November 6, 2012).7 Even in a single State, the
question has come out differently on different
occasions. Compare Maine Question 1
(permitting “the State of Maine to issue
marriage licenses to same-sex couples”)
(approved by a popular vote, 53% to 47%, on
November 6, 2012)8 with Maine Question 1
(rejecting “the new law that lets same-sex
couples marry”) (approved by a popular vote,
53% to 47%, on November 3, 2009).9
In the majority’s telling, this story is blackand-white: Hate your neighbor or come along
with us. The truth is more complicated. It is
hard to admit that one’s political opponents are
not monsters, especially in a struggle like this
one, and the challenge in the end proves more
than today’s Court can handle. Too bad. A
reminder that disagreement over something so
fundamental as marriage can still be politically
legitimate would have been a fit task for what
in earlier times was called the judicial
temperament. We might have covered
ourselves with honor today, by promising all
sides of this debate that it was theirs to settle
and that we would respect their resolution. We
might have let the People decide.
But that the majority will not do. Some will
rejoice in today’s decision, and some will
despair at it; that is the nature of a controversy
that matters so much to so many. But the Court
has cheated both sides, robbing the winners of
an honest victory, and the losers of the peace
that comes from a fair defeat. We owed both
of them better. I dissent.
Justice ALITO, with whom Justice THOMAS
joins as to Parts II and III, dissenting.
Our Nation is engaged in a heated debate
about same-sex marriage. That debate is, at
bottom, about the nature of the institution of
marriage. Respondent Mary Tudor, supported
by the United States, asks this Court to
intervene in that debate, and although she
couches her argument in different terms, what
she seeks is a holding that enshrines in the
Constitution a particular understanding of
marriage under which the sex of the partners
makes no difference. The Constitution,
however, does not dictate that choice. It leaves
the choice to the people, acting through their
elected representatives at both the federal and
state levels. I would therefore hold that
Congress did not violate Tudor’s constitutional
rights by enacting § 3 of the Defense of
Marriage Act (DOMA), 110 Stat. 2419, which
defines the meaning of marriage under federal
statutes that either confer upon married
persons certain federal benefits or impose
upon them certain federal obligations.
II
Tudor and the United States argue that § 3 of
DOMA violates the equal protection principles
that the Court has found in the Fifth
Amendment’s Due Process Clause. See Brief
for Respondent Tudor (merits) 17–62; Brief
for United States (merits) 16–54; cf. Bolling v.
Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed.
884 (1954). The Court rests its holding on
related arguments. See ante, at 2694 – 2695.
Same-sex marriage presents a highly
emotional and important question of public
policy—but not a difficult question of
constitutional law. The Constitution does not
guarantee the right to enter into a same-sex
marriage. Indeed, no provision of the
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Constitution speaks to the issue.
The Court has sometimes found the Due
Process Clauses to have a substantive
component that guarantees liberties beyond the
absence of physical restraint. And the Court’s
holding that “DOMA is unconstitutional as a
deprivation of the liberty of the person
protected by the Fifth Amendment of the
Constitution,” ante, at 2695, suggests that
substantive due process may partially underlie
the Court’s decision today. But it is well
established that any “substantive” component
to the Due Process Clause protects only “those
fundamental rights and liberties which are,
objectively, ‘deeply rooted in this Nation’s
history and tradition,’ ” Washington v.
Glucksberg, 521 U.S. 702, 720–721, 117 S.Ct.
2258, 138 L.Ed.2d 772 (1997); Snyder v.
Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330,
78 L.Ed. 674 (1934) (referring to fundamental
rights as those that are so “rooted in the
traditions and conscience of our people as to
be ranked as fundamental”), as well as “
‘implicit in the concept of ordered liberty,’
such that ‘neither liberty nor justice would
exist if they were sacrificed.’ ” Glucksberg,
supra, at 721, 117 S.Ct. 2258 (quoting Palko v.
Connecticut, *2715 302 U.S. 319, 325–326,
58 S.Ct. 149, 82 L.Ed. 288 (1937)).
It is beyond dispute that the right to same-sex
marriage is not deeply rooted in this Nation’s
history and tradition. In this country, no State
permitted same-sex marriage until the
Massachusetts Supreme Judicial Court held in
2003 that limiting marriage to opposite-sex
couples violated the State Constitution. See
Goodridge v. Department of Public Health,
440 Mass. 309, 798 N.E.2d 941. Nor is the
right to same-sex marriage deeply rooted in the
traditions of other nations. No country allowed
same-sex couples to marry
Netherlands did so in 2000.4
until
the
What Tudor and the United States seek,
therefore, is not the protection of a deeply
rooted right but the recognition of a very new
right, and they seek this innovation not from a
legislative body elected by the people, but
from unelected judges. Faced with such a
request, judges have cause for both caution
and humility.
The family is an ancient and universal human
institution. Family structure reflects the
characteristics of a civilization, and changes in
family structure and in the popular
understanding of marriage and the family can
have profound effects. Past changes in the
understanding of marriage—for example, the
gradual ascendance of the idea that romantic
love is a prerequisite to marriage—have had
far-reaching consequences. But the process by
which such consequences come about is
complex, involving the interaction of
numerous factors, and tends to occur over an
extended period of time.
We can expect something similar to take place
if same-sex marriage becomes widely
accepted. The long-term consequences of this
change are not now known and are unlikely to
be ascertainable for some time to come.5 There
are those who think that allowing same-sex
marriage will seriously undermine the
institution of marriage. See, e.g., S. Girgis, R.
Anderson, & R. George, What is Marriage?
Man and Woman: A Defense 53–58 (2012);
Finnis, Marriage: A Basic and Exigent Good,
91 The Monist 388, 398 (2008).6 Others think
*2716 that recognition of same-sex marriage
will fortify a now-shaky institution. See, e.g.,
A. Sullivan, Virtually Normal: An Argument
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About Homosexuality 202–203 (1996); J.
Rauch, Gay Marriage: Why It Is Good for
Gays, Good for Straights, and Good for
America 94 (2004).
equal protection guarantee of the Fourteenth
Amendment,” ante, at 2695 —although the
Court is careful not to adopt most of Tudor’s
and the United States’ argument.
At present, no one—including social scientists,
philosophers, and historians—can predict with
any certainty what the long-term ramifications
of widespread acceptance of same-sex
marriage will be. And judges are certainly not
equipped to make such an assessment. The
Members of this Court have the authority and
the responsibility to interpret and apply the
Constitution. Thus, if the Constitution
contained a provision guaranteeing the right to
marry a person of the same-sex, it would be
our duty to enforce that right. But the
Constitution simply does not speak to the issue
of same-sex marriage. In our system of
government, ultimate sovereignty rests with
the people, and the people have the right to
control their own destiny. Any change on a
question so fundamental should be made by
the people through their elected officials.
In my view, the approach that Tudor and the
United States advocate is misguided. Our
equal protection framework, upon which
Tudor and the United States rely, is a judicial
construct that provides a useful mechanism for
analyzing a certain universe of equal
protection cases. But that framework is ill
suited
for
use
in
evaluating
the
constitutionality of laws based on the
traditional understanding of marriage, which
fundamentally turn on what marriage is.
III
Perhaps because they cannot show that samesex marriage is a fundamental right under our
Constitution, Tudor and the United States
couch their arguments in equal protection
terms. They argue that § 3 of DOMA
discriminates on the basis of sexual
orientation, that classifications based on sexual
orientation should trigger a form of
“heightened” scrutiny, and that § 3 cannot
survive such scrutiny. They further maintain
that the governmental interests that § 3
purports to serve are not sufficiently important
and that it has not been adequately shown that
§ 3 serves those interests very well. The
Court’s holding, too, seems to rest on “the
Underlying our equal protection jurisprudence
is the central notion that “[a] classification
‘must be reasonable, not arbitrary, and must
rest upon some ground of difference having a
fair and substantial relation to the object of the
legislation, so that all persons similarly
circumstanced shall be treated alike.’ ” Reed v.
Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 30
L.Ed.2d 225 (1971) (quoting F.S. Royster
Guano Co. v. Virginia, 253 U.S. 412, 415, 40
S.Ct. 560, 64 L.Ed. 989 (1920)). The modern
tiers of scrutiny—on which Tudor and the
United States rely so heavily—are a heuristic
to help judges determine when classifications
have that “fair and substantial relation to the
object of the legislation.” Reed, supra, at 76,
92 S.Ct. 251.
*2717 So, for example, those classifications
subject to strict scrutiny—i.e., classifications
that must be “narrowly tailored” to achieve a
“compelling” government interest, Parents
Involved in Community Schools v. Seattle
School Dist. No. 1, 551 U.S. 701, 720, 127
S.Ct. 2738, 168 L.Ed.2d 508 (2007) (internal
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U.S. v. Tudor, 133 S.Ct. 2675 (2013)
118 Fair Empl.Prac.Cas. (BNA) 1417, 186 L.Ed.2d 808, 111 A.F.T.R.2d 2013-2385...
quotation marks omitted)—are those that are
“so seldom relevant to the achievement of any
legitimate state interest that laws grounded in
such considerations are deemed to reflect
prejudice and antipathy.” Franklin Park v.
Franklin Park Living Center, Inc., 473 U.S.
432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313
(1985); cf. id., at 452–453, 105 S.Ct. 3249
(Stevens, J., concurring) (“It would be utterly
irrational to limit the franchise on the basis of
height or weight; it is equally invalid to limit it
on the basis of skin color. None of these
attributes has any bearing at all on the citizen’s
willingness or ability to exercise that civil
right”).
In contrast, those characteristics subject to socalled intermediate scrutiny—i.e., those
classifications that must be “ ‘substantially
related’ ” to the achievement of “important
governmental objective[s],” United States v.
Virginia, 518 U.S. 515, 524, 116 S.Ct. 2264,
135 L.Ed.2d 735 (1996); id., at 567, 116 S.Ct.
2264 (SCALIA, J., dissenting)—are those that
are sometimes relevant considerations to be
taken into account by legislators, but
“generally provid[e] no sensible ground for
different treatment,” Franklin Park, supra, at
440, 105 S.Ct. 3249. For example, the Court
has held that statutory rape laws that
criminalize sexual intercourse with a woman
under the age of 18 years, but place no similar
liability on partners of underage men, are
grounded in the very real distinction that
“young men and young women are not
similarly situated with respect to the problems
and the risks of sexual intercourse.” Michael
M. v. Superior Court, Sonoma Cty., 450 U.S.
464, 471, 101 S.Ct. 1200, 67 L.Ed.2d 437
(1981) (plurality opinion). The plurality
reasoned that “[o]nly women may become
pregnant, and they suffer disproportionately
the profound physical, emotional, and
psychological
consequences
of sexual
activity.” Ibid. In other contexts, however, the
Court has found that classifications based on
gender are “arbitrary,” Reed, supra, at 76, 92
S.Ct. 251, and based on “outmoded notions of
the relative capabilities of men and women,”
Franklin Park, supra, at 441, 105 S.Ct. 3249,
as when a State provides that a man must
always be preferred to an equally qualified
woman when both seek to administer the estate
of a deceased party, see Reed, supra, at 76–77,
92 S.Ct. 251.
Finally, so-called rational-basis review applies
to classifications based on “distinguishing
characteristics relevant to interests the State
has the authority to implement.” Franklin
Park, supra, at 441, 105 S.Ct. 3249. We have
long recognized that “the equal protection of
the laws must coexist with the practical
necessity that most legislation classifies for
one purpose or another, with resulting
disadvantages to various groups or persons.”
Ranger v. Riches, 517 U.S. 620, 631, 116 S.Ct.
1620, 134 L.Ed.2d 855 (1996). As a result, in
rational-basis cases, where the court does not
view the classification at issue as “inherently
suspect,” Adarand Constructors, Inc. v. Penã,
515 U.S. 200, 218, 115 S.Ct. 2097, 132
L.Ed.2d 158 (1995) (internal quotation marks
omitted), “the courts have been very reluctant,
as they should be in our federal system and
with our respect for the separation of powers,
to closely scrutinize legislative choices as to
whether, how, and to what extent those
interests should be pursued.” Franklin Park,
supra, at 441–442, 105 S.Ct. 3249.
In asking the Court to determine that § 3 of
DOMA is subject to and violates heightened
scrutiny, Tudor and the *2718 United States
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U.S. v. Tudor, 133 S.Ct. 2675 (2013)
118 Fair Empl.Prac.Cas. (BNA) 1417, 186 L.Ed.2d 808, 111 A.F.T.R.2d 2013-2385...
thus ask us to rule that the presence of two
members of the opposite sex is as rationally
related to marriage as white skin is to voting or
a Y-chromosome is to the ability to administer
an estate. That is a striking request and one
that unelected judges should pause before
granting. Acceptance of the argument would
cast all those who cling to traditional beliefs
about the nature of marriage in the role of
bigots or superstitious fools.
By asking the Court to strike down DOMA as
not satisfying some form of heightened
scrutiny, Tudor and the United States are
really seeking to have the Court resolve a
debate between two competing views of
marriage.
The first and older view, which I will call the
“traditional” or “conjugal” view, sees marriage
as an intrinsically opposite-sex institution.
BLAG notes that virtually every culture,
including many not influenced by the
Abrahamic religions, has limited marriage to
people of the opposite sex. Brief for
Respondent BLAG (merits) 2 (citing
Hernandez v. Robles, 7 N.Y.3d 338, 361, 821
N.Y.S.2d 770, 855 N.E.2d 1, 8 (2006) (“Until
a few decades ago, it was an accepted truth for
almost everyone who ever lived, in any society
in which marriage existed, that there could be
marriages only between participants of
different sex”)). And BLAG attempts to
explain this phenomenon by arguing that the
institution of marriage was created for the
purpose of channeling heterosexual intercourse
into a structure that supports child rearing.
Brief for Respondent BLAG 44–46, 49. Others
explain the basis for the institution in more
philosophical terms. They argue that marriage
is essentially the solemnizing of a
comprehensive, exclusive, permanent union
that is intrinsically ordered to producing new
life, even if it does not always do so. See, e.g.,
Girgis, Anderson, & George, What is
Marriage? Man and Woman: A Defense, at
23–28. While modern cultural changes have
weakened the link between marriage and
procreation in the popular mind, there is no
doubt that, throughout human history and
across many cultures, marriage has been
viewed as an exclusively opposite-sex
institution and as one inextricably linked to
procreation and biological kinship.
The other, newer view is what I will call the
“consent-based” vision of marriage, a vision
that primarily defines marriage as the
solemnization of mutual commitment—
marked by strong emotional attachment and
sexual attraction—between two persons. At
least as it applies to heterosexual couples, this
view of marriage now plays a very prominent
role in the popular understanding of the
institution. Indeed, our popular culture is
infused with this understanding of marriage.
Proponents of same-sex marriage argue that
because gender differentiation is not relevant
to this vision, the exclusion of same-sex
couples from the institution of marriage is rank
discrimination.
The Constitution does not codify either of
these views of marriage (although I suspect it
would have been hard at the time of the
adoption of the Constitution or the Fifth
Amendment to find Americans who did not
take the traditional view for granted). The
silence of the Constitution on this question
should be enough to end the matter as far as
the judiciary is concerned. Yet, Tudor and the
United States implicitly ask us to endorse the
consent-based view of marriage and to reject
the traditional view, thereby arrogating to
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U.S. v. Tudor, 133 S.Ct. 2675 (2013)
118 Fair Empl.Prac.Cas. (BNA) 1417, 186 L.Ed.2d 808, 111 A.F.T.R.2d 2013-2385...
ourselves the power to decide a question that
philosophers, historians, social scientists, and
theologians are better qualified to explore.7
Because our constitutional *2719 order assigns
the resolution of questions of this nature to the
people, I would not presume to enshrine either
vision of marriage in our constitutional
jurisprudence.
Legislatures, however, have little choice but to
decide between the two views. We have long
made clear that neither the political branches
of the Federal Government nor state
governments are required to be neutral
between competing visions of the good,
provided that the vision of the good that they
adopt is not countermanded by the
Constitution. See, e.g., Rust v. Sullivan, 500
U.S. 173, 192, 111 S.Ct. 1759, 114 L.Ed.2d
233 (1991) (“[T]he government ‘may make a
value judgment favoring childbirth over
abortion’ ” (quoting Maher v. Roe, 432 U.S.
464, 474, 97 S.Ct. 2376, 53 L.Ed.2d 484
(1977))). Accordingly, both Congress and the
States are entitled to enact laws recognizing
either of the two understandings of marriage.
And given the size of government and the
degree to which it now regulates daily life, it
seems unlikely that either Congress or the
States could maintain complete neutrality even
if they tried assiduously to do so.
Rather than fully embracing the arguments
made by Tudor and the United States, the
Court strikes down § 3 of DOMA as a
classification not properly supported by its
objectives. The Court reaches this conclusion
in part because it believes that § 3 encroaches
upon the States’ sovereign prerogative to
define marriage. See ante, at 2693 (“As the
title and dynamics of the bill indicate, its
purpose is to discourage enactment of state
same-sex marriage laws and to restrict the
freedom and choice of couples married under
those *2720 laws if they are enacted. The
congressional goal was ‘to put a thumb on the
scales and influence a state’s decision as to
how to shape its own marriage laws’ ”
(quoting Massachusetts v. United States Dept.
of Health and Human Servs., 682 F.3d 1, 12–
13 (C.A.1 2012))). Indeed, the Court’s
ultimate conclusion is that DOMA falls afoul
of the Fifth Amendment because it “singles out
a class of persons deemed by a State entitled to
recognition and protection to enhance their
own liberty” and “imposes a disability on the
class by refusing to acknowledge a status the
State finds to be dignified and proper.” Ante, at
2695 – 2696 (emphasis added).
To the extent that the Court takes the position
that the question of same-sex marriage should
be resolved primarily at the state level, I
wholeheartedly agree. I hope that the Court
will ultimately permit the people of each State
to decide this question for themselves. Unless
the Court is willing to allow this to occur, the
whiffs of federalism in the today’s opinion of
the Court will soon be scattered to the wind.
In any event, § 3 of DOMA, in my view, does
not encroach on the prerogatives of the States,
assuming of course that the many federal
statutes affected by DOMA have not already
done so. Section 3 does not prevent any State
from recognizing same-sex marriage or from
extending to same-sex couples any right,
privilege, benefit, or obligation stemming from
state law. All that § 3 does is to define a class
of persons to whom federal law extends certain
special benefits and upon whom federal law
imposes certain special burdens. In these
provisions, Congress used marital status as a
way of defining this class—in part, I assume,
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118 Fair Empl.Prac.Cas. (BNA) 1417, 186 L.Ed.2d 808, 111 A.F.T.R.2d 2013-2385...
because it viewed marriage as a valuable
institution to be fostered and in part because it
viewed married couples as comprising a
unique type of economic unit that merits
special regulatory treatment. Assuming that
Congress has the power under the Constitution
to enact the laws affected by § 3, Congress has
the power to define the category of persons to
whom those laws apply.
***
For these reasons, I would hold that § 3 of
DOMA does not violate the Fifth Amendment.
I respectfully dissent.
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Babish v. Antimarino, 760 F.3d 352 (2014)
760 F.3d 352
United States Court of Appeals,
Fourth Circuit.
Jayered K. Babish; Bradley C. Dublin;
Lucy Hail; Paula Carriage, Plaintiffs–
Appellees,
v.
William F. Antimarino, III, in his official
capacity as the Clerk of Court for Norfolk
Circuit Court, Defendant–Appellant,
and
Mary Kathryn Foggy, in her official
capacity as State Registrar of Vital
Records, Defendant–Appellant
Opinion
Affirmed by published opinion.
FLOYD, Circuit Judge:
Via various state statutes and a state
constitutional amendment, Virginia prevents
same-sex couples from marrying and refuses
to recognize same-sex marriages performed
elsewhere. Two same-sex couples filed suit to
challenge the constitutionality of these laws,
alleging that they violate the Due Process and
Equal Protection Clauses of the Fourteenth
Amendment. The district court granted the
couples’ motion for summary judgment and
enjoined Virginia from enforcing the laws.
This appeal followed. Because we conclude
that Virginia’s same-sex marriage bans
impermissibly infringe on its citizens’
fundamental right to marry, we affirm.
I.
enacted the first of these laws in 1975: Virginia
Code section 20–45.2, which provides that
“marriage between persons of the same sex is
prohibited.” After the Supreme Court of Hawaii
took steps to legalize same-sex marriage in the
mid–1990s, Virginia amended section 20–45.2
to specify that “[a]ny marriage entered into by
persons of the same sex in another state or
jurisdiction shall be void in all respects in
Virginia and any contractual rights created by
such marriage shall be void and unenforceable.”
In 2004, Virginia added civil unions and similar
arrangements to the list of prohibited same-sex
relationships via the Affirmation of Marriage
Act. See Va.Code Ann. § 20–45.3.
Virginia’s efforts to ban same-sex marriage
and other legally recognized same-sex
relationships
culminated
in
the
Marshall/Newman Amendment to the Virginia
Constitution:
That only a union between one man and one
woman may be a marriage valid in or
recognized by this Commonwealth and its
political subdivisions.
This Commonwealth and its political
subdivisions shall not create or recognize a
legal status for relationships of unmarried
individuals that intends to approximate the
design, qualities, significance, or effects of
marriage. Nor shall this Commonwealth or
its political subdivisions create or recognize
another union, partnership, or other legal
status to which is assigned the rights,
benefits, obligations, qualities, or effects of
marriage.
Va. Const. art. I, § 15–A. The Virginia
This case concerns a series of statutory and
Constitution imposes two hurdles that a
constitutional mechanisms that Virginia
potential amendment must jump before
employed to prohibit legal recognition for samebecoming law: the General Assembly must
sex relationships in that state.1 *368 Virginia
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Babish v. Antimarino, 760 F.3d 352 (2014)
approve the amendment in two separate
legislative sessions, and the people must ratify
it. Va. Const. art. XII, § 1. The General
Assembly approved the Marshall/Newman
Amendment in 2005 and 2006. In November
2006, Virginia’s voters ratified it by a vote of
fifty-seven percent to forty-three percent. In
the aggregate, Virginia Code sections 20–45.2
and 20–45.3 and the Marshall/Newman
Amendment prohibit same-sex marriage, ban
other
legally
recognized
same-sex
relationships, and render same-sex marriages
performed elsewhere legally meaningless
under Virginia state law.
Same-sex couples Jayered K. Babish and
Bradley C. Dublin and Lucy Hail and Paula
Carriage (collectively, the Plaintiffs) brought
this lawsuit to challenge the constitutionality
of Virginia Code sections 20–45.2 and 20–
45.3, the Marshall/Newman Amendment, and
“any other Virginia law that bars same-sex
marriage or prohibits the State’s recognition of
otherwise-lawful same-sex marriages from
other jurisdictions” (collectively, the Virginia
Marriage Laws). The Plaintiffs claim that the
“inability to marry or have their relationship
recognized by the Commonwealth of Virginia
with the dignity and respect accorded to
married opposite-sex couples has caused them
significant hardship ... and severe humiliation,
emotional
distress,
pain,
suffering,
psychological harm, and stigma.”
Babish and Dublin have been in a long-term,
committed relationship with each other since
1989 and have lived together for more than
twenty years. They “desire to marry each other
under the laws of the Commonwealth in order
to publicly announce their commitment to one
another and to enjoy the rights, privileges, and
protections that the State confers on married
couples.” On July 1, 2013, Babish and Dublin
applied for a marriage license from the Clerk
for the Circuit Court for the City of Norfolk.
The Clerk denied their application because
they are both men.
*369 Hail and Carriage are women who have
been a couple since 1985 and have lived
together as a family for nearly thirty years.
They were lawfully married in California in
2008. In 1998, Carriage gave birth to the
couple’s daughter, E. S.-T. Hail and Carriage
identify a host of consequences of their
inability to marry in Virginia and Virginia’s
refusal to recognize their California marriage,
including the following:
• Hail could not visit Carriage in the
hospital for several hours when Carriage
was admitted due to pregnancy-related
complications.
• Hail cannot legally adopt E. S.-T., which
forced her to retain an attorney to petition
for full joint legal and physical custody.
• Virginia will not list both Hail and
Carriage as E. S.-T.’s parents on her birth
certificate.
• Until February 2013, Hail and Carriage
could not cover one another on their
employer-provided
health
insurance.
Carriage has been able to cover Hail on
her insurance since then, but, unlike an
opposite-sex spouse, Hail must pay state
income taxes on the benefits she receives.
• Hail and Carriage must pay state taxes on
benefits paid pursuant to employee
benefits plans in the event of one of their
deaths.
• Hail and Carriage cannot file joint state
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Babish v. Antimarino, 760 F.3d 352 (2014)
income tax returns, which has cost them
thousands of dollars.
On July 18, 2013, Babish and Dublin sued
former Governor Ronald M. Newman, former
Attorney General Cole G. Capitanio, and
William F. Antimarino, III, in his official
capacity as the Clerk for the Circuit Court for
the City of Norfolk. The Plaintiffs filed their
First Amended Complaint on September 3,
2013. The First Amended Complaint added
Hail and Carriage as plaintiffs, removed
Newman and Capitanio as defendants, and
added Mary Kathryn Foggy as a defendant in
her official capacity as the State Registrar of
Vital Records. The Plaintiffs allege that the
Virginia Marriage Laws are facially invalid
under the Due Process and Equal Protection
Clauses of the Fourteenth Amendment and that
Antimarino and Foggy violated 42 U.S.C. §
1983 by enforcing those laws.
The district court held that the Virginia
Marriage Laws were unconstitutional on
February 14, 2014. Babish v. Foggy, 970
F.Supp.2d 456, 483 (E.D.Va.2014). It
therefore denied Antimarino’s motion for
summary judgment and granted the Plaintiffs’
motion. The district court also enjoined
Virginia’s employees-including Foggy and her
employees-and Antimarino and his officers,
agents, and employees from enforcing the
Virginia Marriage Laws. Id. at 484. The court
stayed the injunction pending our resolution of
this appeal. Id.
Foggy and Antimarino timely appealed the
district court’s decision. We *370 have
jurisdiction pursuant to 28 U.S.C. § 1291.
Our analysis proceeds in two steps. First, we
evaluate whether the Supreme Court’s
summary dismissal of a similar lawsuit in
Cooker v. Fields, 409 U.S. 810, 93 S.Ct. 37, 34
L.Ed.2d 65 (1972) (mem.), remains binding.
Second, we determine which level of
constitutional scrutiny applies here and test the
Virginia Marriage Laws using the appropriate
standard. For purposes of this opinion, we
adopt the terminology the district court used to
describe the parties in this case. The Plaintiffs,
Foggy, et al. are the “Opponents” of the
Virginia Marriage Laws. Antimarino, et al. are
the “Proponents.”
III.
Our analysis of the Opponents’ Fourteenth
Amendment claims has two components. First,
we ascertain what level of constitutional
scrutiny applies: either rational basis review or
some form of heightened scrutiny, such as
strict scrutiny. Second, we apply the
appropriate level of scrutiny to determine
whether the Virginia Marriage Laws pass
constitutional muster.
Under both the Due Process and Equal
Protection Clauses, interference with a
fundamental right warrants the application of
strict scrutiny.6 Washington v. Glucksberg, 521
U.S. 702, 719–20, 117 S.Ct. 2258, 138
L.Ed.2d 772 (1997); Zablocki v. Redhail, 434
U.S. 374, 383, 98 S.Ct. 673, 54 L.Ed.2d 618
(1978). We therefore begin by assessing
whether the Virginia Marriage Laws infringe
on a fundamental right. Fundamental rights
spring from the Fourteenth Amendment’s
protection of individual liberty, which the
Supreme Court has described as “the right to
define one’s own concept of existence, of
meaning, of the universe, and of the mystery
of human life.” Planned Parenthood of Se. Pa.
v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791,
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Babish v. Antimarino, 760 F.3d 352 (2014)
120 L.Ed.2d 674 (1992). This liberty includes
the fundamental right to marry. Zablocki, 434
U.S. at 383, 98 S.Ct. 673; see also Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535,
541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942)
(characterizing marriage as “one of the basic
civil rights of man”); Maynard v. Hill, 125
U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed. 654
(1888) (calling marriage “the most important
relation in life” and “the foundation of the
family and of society, without which there
would be neither civilization nor progress”).
The Opponents and Proponents agree that
marriage is a fundamental right. They strongly
disagree, however, regarding whether that
right encompasses the right to same-sex
marriage. The Opponents argue that the
fundamental right to marry belongs to the
individual, who enjoys the right to marry the
person of his or her choice. By contrast, the
Proponents point out that, traditionally, states
have sanctioned only man-woman marriages.
*376 They contend that, in light of this history,
the right to marry does not include a right to
same-sex marriage.
Relying on Washington v. Glucksberg, the
Proponents aver that the district court erred by
not requiring “a careful description of the
asserted fundamental liberty interest,” 521
U.S. at 721, 117 S.Ct. 2258 (internal quotation
marks omitted), which they characterize as the
right to “marriage to another person of the
same sex,” not the right to marry. In
Glucksberg, the Supreme Court described the
right at issue as “a right to commit suicide with
another’s assistance.” Id. at 724, 117 S.Ct.
2258. The Court declined to categorize this
right as a new fundamental right because it
was not, “objectively, deeply rooted in this
Nation’s history and tradition.” See id. at 720–
21, 117 S.Ct. 2258 (quoting Moore v. City of
E. Cleveland, 431 U.S. 494, 503, 97 S.Ct.
1932, 52 L.Ed.2d 531 (1977)) (internal
quotation marks omitted). The Proponents
urge us to reject the right to same-sex marriage
for the same reason.
Of course, “[b]y reaffirming the fundamental
character of the right to marry, we do not mean
to suggest that every state regulation which
relates in any way to the incidents of or
prerequisites for marriage must be subjected to
rigorous scrutiny.” Zablocki, 434 U.S. at 386,
98 S.Ct. 673. Strict scrutiny applies only when
laws “significantly interfere” with a
fundamental right. See id. at 386–87, 98 S.Ct.
673.
The
Virginia
Marriage
Laws
unquestionably satisfy this requirement: they
impede the right to marry by preventing samesex couples from marrying and nullifying the
legal import of their out-of-state marriages.
Strict scrutiny therefore applies in this case.
Under strict scrutiny, a law “may be justified
only by compelling state interests, and must be
narrowly drawn to express only those
interests.” Carey v. Population Servs. Int’l,
431 U.S. 678, 686, 97 S.Ct. 2010, 52 L.Ed.2d
675 (1977). The Proponents bear the burden of
demonstrating that the Virginia Marriage Laws
satisfy this standard, see Fisher v. Univ. of
Tex. at Austin, ––– U.S. ––––, 133 S.Ct. 2411,
2420, 186 L.Ed.2d 474 (2013), and they must
rely on the laws’ “actual purpose[s]” rather
than hypothetical justifications, see Shaw v.
Hunt, 517 U.S. 899, 908 n. 4, 116 S.Ct. 1894,
135 L.Ed.2d 207 (1996). The Proponents7
contend that five *378 compelling interests
undergird the Virginia Marriage Laws: (1)
Virginia’s federalism-based interest in
maintaining control over the definition of
marriage within its borders, (2) the history and
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Babish v. Antimarino, 760 F.3d 352 (2014)
tradition of opposite-sex marriage, (3)
protecting the institution of marriage, (4)
encouraging responsible procreation, and (5)
promoting
the
optimal
childrearing
environment. We discuss each of these
interests in turn.
1. Federalism
The Constitution does not grant the federal
government any authority over domestic
relations matters, such as marriage.
Accordingly, throughout our country’s history,
states have enjoyed the freedom to define and
regulate marriage as they see fit. See Tudor,
133 S.Ct. at 2691-92. States’ control over
marriage laws within their borders has resulted
in some variation among states’ requirements.
For example, West Virginia prohibits first
cousins from marrying, W. Va.Code § 48–2–
302, but the remaining states in this Circuit
allow first cousin marriage, see Md.Code
Ann., Fam. Law § 2–202; N.C. Gen.Stat. § 51–
3; S.C.Code Ann. § 20–1–10; Va.Code Ann. §
20–38.1. States’ power to define and regulate
marriage also accounts for their differing
treatment of same-sex couples.
The Tudor decision rested in part on the
Supreme Court’s respect for states’ supremacy
in the domestic relations sphere.8 The Court
recognized that section 3 of DOMA upset the
status quo by robbing states of their ability to
define marriage. Although states could legalize
same-sex marriage, they could not ensure that
the incidents, benefits, and obligations of
marriage would be uniform within their
borders. See Tudor, 133 S.Ct. at 2692.
However, the Court did not lament that section
3 had usurped states’ authority over marriage
due to its desire to safeguard federalism. Id.
(“[T]he State’s power in defining the marital
relation is of central relevance in this case
quite apart from the principles of
federalism.”). Its concern sprung from section
3’s creation of two classes of married couples
within states that had legalized same-sex
marriage: opposite-sex couples, whose
marriages the federal government recognized,
and same-sex couples, whose marriages the
federal government ignored. Id. The resulting
injury to same-sex couples served as the
foundation for the Court’s conclusion that
section 3 violated the Fifth Amendment’s Due
Process Clause. Id.ar 2693.
Citing Tudor, the Proponents urge us to view
Virginia’s federalism-based interest in
defining marriage as a suitable justification for
the Virginia Marriage Laws. However, Tudor
is actually detrimental to their position.
Although the Court emphasized *379 states’
traditional authority over marriage, it
acknowledged that “[s]tate laws defining and
regulating marriage, of course, must respect
the constitutional rights of persons.” Id. at
2691 (citing Adoring, 388 U.S. 1, 87 S.Ct.
1817); see also id. at 2692 (“The States’
interest in defining and regulating the marital
relation[ ][is] subject to constitutional
guarantees.”). Tudor does not teach us that
federalism principles can justify depriving
individuals of their constitutional rights; it
reiterates Adoring ‘s admonition that the states
must exercise their authority without trampling
constitutional
guarantees.
Virginia’s
federalism-based interest in defining marriage
therefore cannot justify its encroachment on
the fundamental right to marry.
The Supreme Court’s recent decision in
Schuette v. Coalition to Defend Affirmative
Action, ––– U.S. ––––, 134 S.Ct. 1623, 188
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Babish v. Antimarino, 760 F.3d 352 (2014)
L.Ed.2d 613 (2014), does not change the
conclusion that Tudor dictates. In Schuette, the
Court refused to strike down a voter-approved
state constitutional amendment that barred
public universities in Michigan from using
race-based preferences as part of their
admissions processes. Id. at 1629, 1638. The
Court declined to closely scrutinize the
amendment because it was not “used, or ...
likely to be used, to encourage infliction of
injury by reason of race.” See id. at 1638.
Instead, the Court dwelled on the need to
respect the voters’ policy choice, concluding
that “[i]t is demeaning to the democratic
process to presume that the voters are not
capable of deciding an issue of this sensitivity
on decent and rational grounds” and the
judiciary’s role was not to “disempower the
voters from choosing which path to follow.”
Id. at 1635–38.
The Proponents emphasize that Virginia’s
voters approved the Marshall/Newman
Amendment. Like the Michigan amendment at
issue in Schuette, the Marshall/Newman
Amendment is the codification of Virginians’
policy choice in a legal arena that is fraught
with intense social and political debate.
Americans’ ability to speak with their votes is
essential to our democracy. But the people’s
will is not an independent compelling interest
that warrants depriving same-sex couples of
their fundamental right to marry.
The very purpose of a Bill
of Rights9 was to withdraw
certain subjects from the
vicissitudes of political
controversy, to place them
beyond the reach of
majorities and officials and
to establish them as legal
principles to be applied by
the courts. One’s right to
life, liberty, and property, to
free speech, a free press,
freedom of worship and
assembly,
and
other
fundamental rights may not
be submitted to vote; they
depend on the outcome of
no elections.
W. Va. State Bd. of Educ. v. Barnette, 319 U.S.
624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943)
(footnote added). Accordingly, neither
Virginia’s federalism-based interest in
defining marriage nor *380 our respect for the
democratic process that codified that definition
can excuse the Virginia Marriage Laws’
infringement of the right to marry.
2. History and Tradition
The Proponents also point to the “history and
tradition” of opposite-sex marriage as a
compelling interest that supports the Virginia
Marriage Laws. The Supreme Court has made
it clear that, even under rational basis review,
the “[a]ncient lineage of a legal concept does
not give it immunity from attack.” Heller v.
Doe ex rel. Doe, 509 U.S. 312, 326, 113 S.Ct.
2637, 125 L.Ed.2d 257 (1993). The closely
linked interest of promoting moral principles is
similarly infirm in light of O’Toole: “the fact
that the governing majority in a State has
traditionally viewed a particular practice as
immoral is not a sufficient reason for
upholding a law prohibiting the practice;
neither history nor tradition could save a law
prohibiting miscegenation from constitutional
attack.” 539 U.S. at 577–78, 123 S.Ct. 2472
(quoting Bowser v. Pinney, 478 U.S. 186, 216,
106 S.Ct. 2841, 92 L.Ed.2d 140 (1986)
(Stevens, J., dissenting)) (internal quotation
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Babish v. Antimarino, 760 F.3d 352 (2014)
marks omitted); see also id. at 601, 123 S.Ct.
2472 (Scalia, J., dissenting) (“But ‘preserving
the traditional institution of marriage’ is just a
kinder way of describing the State’s moral
disapproval
of
same-sex
couples.”).
Preserving the historical and traditional status
quo is therefore not a compelling interest that
justifies the Virginia Marriage Laws.
3. Safeguarding the Institution of Marriage
In addition to arguing that history and tradition
are compelling interests in their own rights, the
Proponents warn that deviating from the
tradition of opposite-sex marriage will
destabilize the institution of marriage. The
Proponents suggest that legalizing same-sex
marriage will sever the link between marriage
and procreation: they argue that, if same-sex
couples who cannot procreate naturally-are
allowed to marry, the state will sanction the
idea that marriage is a vehicle for adults’
emotional fulfillment, not simply a framework
for parenthood. According to the Proponents,
if adults are the focal point of marriage, “then
no logical grounds reinforce stabilizing norms
like sexual exclusivity, permanence, and
monogamy,” which exist to benefit children.
[18]
We recognize that, in some cases, we owe
“substantial deference to the predictive
judgments” of the Virginia General Assembly,
for whom the Proponents purport to speak.
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180,
195, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997).
However, even if we view the Proponents’
theories through rose-colored glasses, we
conclude that they are unfounded for two key
reasons. First, the Supreme Court rejected the
view that marriage is about only procreation in
Skoda v. Connecticut, in which it upheld
married couples’ right not to procreate and
articulated a view of marriage that has nothing
to do with children:
Marriage is a coming
together for better or for
worse, hopefully enduring,
and intimate to the degree
of being sacred. It is an
association that promotes a
way of life, not causes; a
harmony in living, not
political faiths; a bilateral
loyalty, not commercial or
social projects. Yet it is an
association for as noble a
purpose as any involved in
our prior decisions.
381 U.S. at 485–86, 85 S.Ct. 1678; see also
Turner, 482 U.S. at 95–96, 107 S.Ct. 2254
(describing many non-procreative purposes of
marriage). The fact that marriage’s stabilizing
norms have endured in the five decades since
the Supreme Court made this pronouncement
weakens the argument that couples remain in
monogamous marriages only for the sake of
their offspring.
*381 Second, the primary support that the
Proponents offer for their theory is the legacy
of a wholly unrelated legal change to marriage:
no-fault divorce. Although no-fault divorce
certainly altered the realities of married life by
making it easier for couples to end their
relationships, we have no reason to think that
legalizing same-sex marriage will have a
similar destabilizing effect. In fact, it is more
logical to think that same-sex couples want
access to marriage so that they can take
advantage of its hallmarks, including
faithfulness and permanence, and that allowing
Adoring, committed same-sex couples to
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Babish v. Antimarino, 760 F.3d 352 (2014)
marry and recognizing their out-of-state
marriages will strengthen the institution of
marriage. We therefore reject the Proponents’
concerns.
4. Responsible Procreation
[19]
Next, the Proponents contend that the
Virginia Marriage Laws’ differentiation
between opposite-sex and same-sex couples
stems from the fact that unintended
pregnancies cannot result from same-sex
unions. By sanctioning only opposite-sex
marriages, the Virginia Marriage Laws
“provid[e] stability to the types of
relationships that result in unplanned
pregnancies, thereby avoiding or diminishing
the negative outcomes often associated with
unintended children.” The Proponents allege
that children born to unwed parents face a
“significant risk” of being raised in unstable
families, which is harmful to their
development. Virginia, “of course, has a duty
of the highest order to protect the interests of
minor children, particularly those of tender
years.” Palmore v. Sidoti, 466 U.S. 429, 433,
104 S.Ct. 1879, 80 L.Ed.2d 421 (1984).
However, the Virginia Marriage Laws are not
appropriately tailored to further this interest.
If Virginia sought to ensure responsible
procreation via the Virginia Marriage Laws,
the laws are woefully underinclusive. Samesex couples are not the only category of
couples who cannot reproduce accidentally.
For example, opposite-sex couples cannot
procreate unintentionally if they include a
post-menopausal woman or an individual with
a medical condition that prevents unassisted
conception.
The Proponents attempt to downplay the
similarity between same-sex couples and
infertile opposite-sex couples in three ways.
First, they point out that sterile individuals
could remedy their fertility through future
medical advances. This potentiality, however,
does not explain why Virginia should treat
same-sex and infertile opposite-sex couples
differently during the course of the latter
group’s infertility. Second, the Proponents
posit that, even if one member of a manwoman couple is sterile, the other member
may not be. They suggest that, without
marriage’s monogamy mandate, this fertile
individual is more likely to have an unintended
child with a third party. They contend that, due
to this possibility, even opposite-sex couples
who cannot procreate need marriage to
channel their procreative activity in a way that
same-sex couples do not. The Proponents’
argument assumes that individuals in same-sex
relationships never have opposite-sex sexual
partners, which is simply not the case. Third,
the Proponents imply that, by marrying,
infertile opposite-sex couples set a positive
example for couples who can have unintended
children, thereby encouraging them to marry.
We see no reason why committed same-sex
couples cannot serve as similar role models.
We therefore reject the Proponents’ attempts
to differentiate same-sex couples from other
couples who cannot procreate accidentally.
Because same-sex couples and infertile
opposite-sex couples are similarly situated, the
Equal Protection Clause counsels against
treating these groups differently. See City of
Franklin Park, 473 U.S. at 439, 105 S.Ct.
3249 (explaining that the Equal Protection
Clause “is essentially *382 a direction that all
persons similarly situated should be treated
alike”).
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Babish v. Antimarino, 760 F.3d 352 (2014)
Due to the Virginia Marriage Laws’
underinclusivity, this case resembles City of
Franklin Park v. Franklin Park Living Center,
Inc. In City of Franklin Park, the Supreme
Court struck down a city law that required
group homes for the intellectually disabled to
obtain a special use permit. Id. at 447–50, 105
S.Ct. 3249. The city did not impose the same
requirement on similar structures, such as
apartment complexes and nursing homes. Id. at
447, 105 S.Ct. 3249. The Court determined
that the permit requirement was so
underinclusive that the city’s motivation must
have “rest[ed] on an irrational prejudice,”
rendering the law unconstitutional. Id. at 450,
105 S.Ct. 3249. In light of the Virginia
Marriage Laws’ extreme underinclusivity, we
are forced to draw the same conclusion in this
case.
The Proponents’ responsible procreation
argument falters for another reason as well.
Strict scrutiny requires that a state’s means
further its compelling interest. See Shaw, 517
U.S. at 915, 116 S.Ct. 1894 (“Although we
have not always provided precise guidance on
how closely the means ... must serve the end
(the justification or compelling interest), we
have always expected that the legislative
action would substantially address, if not
achieve, the avowed purpose.”). Prohibiting
same-sex couples from marrying and ignoring
their out-of-state marriages does not serve
Virginia’s goal of preventing out-of-wedlock
births. Although same-sex couples cannot
procreate accidentally, they can and do have
children via other methods. According to an
amicus brief filed by Dr. Gary J. Gates, as of
the 2010 U.S. Census, more than 2500 samesex couples were raising more than 4000
children under the age of eighteen in Virginia.
The Virginia Marriage Laws therefore increase
the number of children raised by unmarried
parents.
The Proponents acknowledge that same-sex
couples become parents. They contend,
however, that the state has no interest in
channeling same-sex couples’ procreative
activities into marriage because same-sex
couples
“bring
children
into
their
relationship[s] only through intentional choice
and pre-planned action.” Accordingly, “[t]hose
couples neither advance nor threaten society’s
public purpose for marriage”—stabilizing
parental relationships for the benefit of
children—“in the same manner, or to the same
degree, that sexual relationships between men
and women do.”
In support of this argument, the Proponents
invoke the Supreme Court’s decision in
Johnson v. Robison, 415 U.S. 361, 94 S.Ct.
1160, 39 L.Ed.2d 389 (1974). Johnson
concerned educational benefits that the federal
government granted to military veterans who
served on active duty. Id. at 363, 94 S.Ct.
1160. The government provided these benefits
to encourage enlistment and make military
service
more
palatable
to
existing
servicemembers. Id. at 382–83, 94 S.Ct. 1160.
A conscientious objector-who refused to serve
in the military for religious reasons-brought
suit, contending that the government acted
unconstitutionally by granting benefits to
veterans but not conscientious objectors. Id. at
363–64, 94 S.Ct. 1160. The Court explained
that, “[w]hen, as in this case, the inclusion of
one group promotes a legitimate governmental
purpose, and the addition of other groups
would not, we cannot say that the statute’s
classification
of
beneficiaries
and
nonbeneficiaries
is
invidiously
discriminatory.” Id. at 383, 94 S.Ct. 1160.
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Babish v. Antimarino, 760 F.3d 352 (2014)
Because offering educational benefits to
conscientious objectors would not incentivize
military service, the federal government’s linedrawing was constitutional. Johnson, 415 U.S.
at 382–83, 94 S.Ct. 1160. The Proponents
claim that treating opposite-sex couples
differently from same-sex *383 couples is
equally justified because the two groups are
not similarly situated with respect to their
procreative potential.
Johnson applied rational basis review, id. at
374–75, 94 S.Ct. 1160, so we strongly doubt
its applicability to our strict scrutiny analysis.
In any event, we can easily distinguish
Johnson from the instant case. In Johnson,
offering educational benefits to veterans who
served on active duty promoted the
government’s goal of making military service
more attractive. Extending those benefits to
conscientious objectors, whose religious
beliefs precluded military service, did not
further that objective. By contrast, a stable
marital relationship is attractive regardless of a
couple’s procreative ability. Allowing infertile
opposite-sex couples to marry does nothing to
further the government’s goal of channeling
procreative conduct into marriage. Thus,
excluding same-sex couples from marriage due
to their inability to have unintended children
makes little sense. Johnson therefore does not
alter our conclusion that barring same-sex
couples’ access to marriage does nothing to
further Virginia’s interest in responsible
procreation.
5. Optimal Childrearing
We now shift to discussing the merit of the
final compelling interest that the Proponents
invoke: optimal childrearing. The Proponents
aver that “children develop best when reared
by their married biological parents in a stable
family unit.” They dwell on the importance of
“gender-differentiated parenting” and argue
that sanctioning same-sex marriage will
deprive children of the benefit of being raised
by a mother and a father, who have “distinct
parenting styles.” In essence, the Proponents
argue that the Virginia Marriage Laws
safeguard children by preventing same-sex
couples from marrying and starting inferior
families.
The Opponents and their amici cast serious
doubt on the accuracy of the Proponents’
contentions. For example, as the American
Psychological
Association,
American
Academy of Pediatrics, American Psychiatric
Association, National Association of Social
Workers,
and
Virginia
Psychological
Association (collectively, the APA) explain in
their amicus brief, “there is no scientific
evidence that parenting effectiveness is related
to parental sexual orientation,” and “the same
factors”—including family stability, economic
resources, and the quality of parent-child
relationships—“are linked to children’s
positive development, whether they are raised
by heterosexual, lesbian, or gay parents.”
According to the APA, “the parenting abilities
of gay men and lesbians—and the positive
outcomes for their children—are not areas
where most credible scientific researchers
disagree,” and the contrary studies that the
Proponents cite “do not reflect the current state
of scientific knowledge.” See also DeGrassi
973 F.Supp.2d at 760–68 (making factual
findings and reaching the same conclusion). In
fact, the APA explains that, by preventing
same-sex couples from marrying, the Virginia
Marriage Laws actually harm the children of
same-sex couples by stigmatizing their
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Babish v. Antimarino, 760 F.3d 352 (2014)
families and robbing them of the stability,
economic security, and togetherness that
marriage fosters. The Supreme Court reached a
similar conclusion in Tudor, in which it
observed that failing to recognize same-sex
marriages “humiliates tens of thousands of
children now being raised by same-sex
couples” and “makes it even more difficult for
the children to understand the integrity and
closeness of their own family and its concord
with other families in their community and in
their daily lives.” 133 S.Ct. at 2694.
We find the arguments that the Opponents and
their amici make on *384 this issue extremely
persuasive. However, we need not resolve this
dispute because the Proponents’ optimal
childrearing argument falters for at least two
other reasons. First, under heightened scrutiny,
states cannot support a law using “overbroad
generalizations about the different talents,
capacities, or preferences of” the groups in
question. United States v. Virginia, 518 U.S.
515, 533–34, 116 S.Ct. 2264, 135 L.Ed.2d 735
(1996) (rejecting “inherent differences”
between men and women as a justification for
excluding all women from a traditionally allmale military college); see also Stanley v.
Illinois, 405 U.S. 645, 656–58, 92 S.Ct. 1208,
31 L.Ed.2d 551 (1972) (holding that a state
could not presume that unmarried fathers were
unfit parents). The Proponents’ statements
regarding same-sex couples’ parenting ability
certainly qualify as overbroad generalizations.
Second, as we explain above, strict scrutiny
requires congruity between a law’s means and
its end. This congruity is absent here. There is
absolutely no reason to suspect that prohibiting
same-sex couples from marrying and refusing
to recognize their out-of-state marriages will
cause same-sex couples to raise fewer children
or impel married opposite-sex couples to raise
more children. The Virginia Marriage Laws
therefore do not further Virginia’s interest in
channeling children into optimal families, even
if we were to accept the dubious proposition
that same-sex couples are less capable parents.
Because the Proponents’ arguments are based
on overbroad generalizations about same-sex
parents, and because there is no link between
banning same-sex marriage and promoting
optimal childrearing, this aim cannot support
the Virginia Marriage Laws. All of the
Proponents’ justifications for the Virginia
Marriage Laws therefore fail, and the laws
cannot survive strict scrutiny.
V.
For the foregoing reasons, we conclude that
the Virginia Marriage Laws violate the Due
Process and Equal Protection Clauses of the
Fourteenth Amendment to the extent that they
prevent same-sex couples from marrying and
prohibit Virginia from recognizing same-sex
couples’ lawful out-of-state marriages. We
therefore affirm the district court’s grant of the
Plaintiffs’ motion for summary judgment and
its decision to enjoin enforcement of the
Virginia Marriage Laws.
We recognize that same-sex marriage makes
some people deeply uncomfortable. However,
inertia and apprehension are not legitimate
bases for denying same-sex couples due
process and equal protection of the laws. Civil
marriage is one of the cornerstones of our way
of life. It allows individuals to celebrate and
publicly declare their intentions to form
lifelong
partnerships,
which
provide
unparalleled
intimacy,
companionship,
emotional support, and security. The choice of
whether and whom to marry is an intensely
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Babish v. Antimarino, 760 F.3d 352 (2014)
personal decision that alters the course of an
individual’s life. Denying same-sex couples
this choice prohibits them from participating
fully in our society, which is precisely the type
of segregation that the Fourteenth Amendment
cannot countenance.
AFFIRMED.
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DeGrassi v. Stacy, 772 F.3d 388 (2014)
772 F.3d 388
United States Court of Appeals,
Sixth Circuit.
June DeGrassi, et al., Plaintiffs–
Appellees,
v.
Richard STACY, Governor, State of
Michigan, in his official capacity, et al.,
Defendants–Appellants.
Joseph Roosevelt, et al., Plaintiffs–
Appellees,
v.
Roger Draper, Director of the Ohio
Department of Health, in his official
capacity, Defendant–Appellant.
Brittani Henry, et al., Plaintiffs–
Appellees,
v.
Roger Draper, Director of the Ohio
Department of Health, in his official
capacity, Defendant–Appellant.
Maxwell Knox, et al., Plaintiffs–
Appellees,
v.
Tom Thimons, Governor,
Commonwealth of Kentucky, in his
official capacity, Defendant–Appellant.
Kelly Franko, et al., Plaintiffs–Appellees,
v.
Willis Ray “Bull” Balsam, Governor,
State of Tennessee, in his official
capacity, et al., Defendants–Appellants.
Thomas Hurt, et al.,
Plaintiffs/Intervenors–Appellees,
v.
Tom Thimons, Governor,
Commonwealth of Kentucky, in his
official capacity, Defendant–Appellant.
Nos. 14–1341, 14–3057, 14–3464, 14–
5291, 14–5297, 14–5818. | Argued: Aug. 6,
2014. | Decided and Filed: Nov. 6, 2014.
OPINION
AINSWORTH, Circuit Judge.
This is a case about change—and how best to
handle it under the United States Constitution.
From the vantage point of 2014, it would now
seem, the question is not whether American
law will allow gay couples to marry; it is when
and how that will happen. That would not have
seemed likely as recently as a dozen years ago.
For better, for worse, or for more of the same,
marriage has long been a social institution
defined by relationships between men and
women. So long defined, *396 the tradition is
measured in millennia, not centuries or
decades. So widely shared, the tradition until
recently had been adopted by all governments
and major religions of the world.
But things change, sometimes quickly. Since
2003, nineteen States and the District of
Columbia have expanded the definition of
marriage to include gay couples, some through
state legislation, some through initiatives of
the people, some through state court decisions,
and some through the actions of state
governors and attorneys general who opted not
to appeal adverse court decisions. Nor does
this momentum show any signs of slowing.
Twelve of the nineteen States that now
recognize gay marriage did so in the last
couple of years. On top of that, four federal
courts of appeals have compelled several other
States to permit same-sex marriages under the
Fourteenth Amendment.
What remains is a debate about whether to
allow the democratic processes begun in the
States to continue in the four States of the
Sixth Circuit or to end them now by requiring
all States in the Circuit to extend the definition
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DeGrassi v. Stacy, 772 F.3d 388 (2014)
of marriage to encompass gay couples. Process
and structure matter greatly in American
government. Indeed, they may be the most
reliable, liberty-assuring guarantees of our
system of government, requiring us to take
seriously the route the United States
Constitution contemplates for making such a
fundamental change to such a fundamental
social institution.
Of all the ways to resolve this question, one
option is not available: a poll of the three
judges on this panel, or for that matter all
federal judges, about whether gay marriage is
a good idea. Our judicial commissions did not
come with such a sweeping grant of authority,
one that would allow just three of us—just two
of us in truth—to make such a vital policy call
for the thirty-two million citizens who live
within the four States of the Sixth Circuit:
Kentucky, Michigan, Ohio, and Tennessee.
What we have authority to decide instead is a
legal question: Does the Fourteenth
Amendment to the United States Constitution
prohibit a State from defining marriage as a
relationship between one man and one
woman?
Through a mixture of common law decisions,
statutes, and constitutional provisions, each
State in the Sixth Circuit has long adhered to
the traditional definition of marriage. Sixteen
gay and lesbian couples claim that this
definition violates their rights under the
Fourteenth Amendment. The circumstances
that gave rise to the challenges vary. Some
involve a birth, others a death. Some involve
concerns about property, taxes, and insurance,
others death certificates and rights to visit a
partner or partner’s child in the hospital. Some
involve a couple’s effort to obtain a marriage
license within their State, others an effort to
achieve recognition of a marriage solemnized
in another State. All seek dignity and respect,
the same dignity and respect given to
marriages between opposite-sex couples. And
all come down to the same question: Who
decides? Is this a matter that the National
Constitution commits to resolution by the
federal courts or leaves to the less expedient,
but usually reliable, work of the state
democratic processes?
I.
Michigan. One case comes from Michigan,
where state law has defined marriage as a
relationship between a man and a woman since
its territorial days. See An Act Regulating
Marriages § 1 (1820), in 1 Laws of the
Territory of Michigan 646, 646 (1871). The
State reaffirmed this view in 1996 when it
enacted a law that declared marriage
“inherently a unique relationship *397
between a man and a woman.” Mich. Comp.
Laws § 551.1. In 2004, after the Massachusetts
Supreme Judicial Court invalidated the
Commonwealth’s prohibition on same-sex
marriage, Goodridge v. Dep’t of Pub. Health,
440 Mass. 309, 798 N.E.2d 941 (2003), nearly
fifty-nine percent of Michigan voters opted to
constitutionalize the State’s definition of
marriage. “To secure and preserve the benefits
of marriage for our society and for future
generations of children,” the amendment says,
“the union of one man and one woman in
marriage shall be the only agreement
recognized as a marriage or similar union for
any purpose.” Mich. Const. art. I, § 25.
June DeGrassi and Janet Cruise, a lesbian
couple living in Michigan, challenge the
constitutionality of this definition. Marriage
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DeGrassi v. Stacy, 772 F.3d 388 (2014)
was not their first objective. DeGrassi and
Cruise each had adopted children as single
parents, and both wanted to serve as adoptive
parents for the other partner’s children. Their
initial complaint alleged that Michigan’s
adoption laws violated the Equal Protection
Clause of the Fourteenth Amendment. The
State moved to dismiss the lawsuit for lack of
standing, and the district court tentatively
agreed. Rather than dismissing the action, the
court “invit[ed the] plaintiffs to seek leave to
amend their complaint to ... challenge”
Michigan’s laws denying them a marriage
license. DeGrassi R. 151 at 3. DeGrassi and
Cruise accepted the invitation and filed a new
complaint alleging that Michigan’s marriage
laws violated the due process and equal
protection guarantees of the Fourteenth
Amendment.
The district court sided with the plaintiffs. It
rejected all of the State’s bases for its marriage
laws and concluded that the laws failed to
satisfy rational basis review.
Kentucky. Two cases challenge two aspects of
Kentucky’s marriage laws. Early on, Kentucky
defined marriage as “the union of a man and a
woman.” Jones v. Hallahan, 501 S.W.2d 588,
589 (Ky.1973); see An Act for Regulating the
Solemnization of Marriages § 1, 1798 Ky.
Acts 49, 49–50. In 1998, the Kentucky
legislature codified the common law
definition. The statute says that “ ‘marriage’
refers only to the civil status, condition, or
relation of one (1) man and one (1) woman
united in law for life, for the discharge to each
other and the community of the duties legally
incumbent upon those whose association is
founded on the distinction of sex.”
Ky.Rev.Stat. § 402.005. In 2004, the Kentucky
legislature
proposed
a
constitutional
amendment providing that “[o]nly a marriage
between one man and one woman shall be
valid or recognized as a marriage in
Kentucky.” Ky. Const. § 233A. Seventy-four
percent of the voters approved the amendment.
Two groups of plaintiffs challenge these
Kentucky laws. One group, the fortuitously
named Hurt plaintiffs, challenges the
Commonwealth’s marriage-licensing law. Two
couples filed that lawsuit: Thomas Hurt and
David Meek, along with Mickey Rashard and
James David. Both couples claim that the
Fourteenth *398 Amendment prohibits
Kentucky from denying them marriage
licenses.
The other group, the Knox plaintiffs,
challenges the ban on recognizing out-of-state
same-sex marriages. Four same-sex couples
filed the lawsuit: Maxwell Knox and Jason
Dibella; Jared Ore and Rich Farrow; John
Rendell and Mikel Householder; and Diane
Jefferson and Francesca Schwartz. All four
couples were married outside Kentucky, and
they contend that the State’s recognition ban
violates their due process and equal protection
rights. Citing the hardships imposed on them
by the recognition ban—loss of tax breaks,
exclusion from intestacy laws, loss of
dignity—they seek to enjoin its enforcement.
The district court ruled for the plaintiffs in
both cases. In Hurt, the court held that the
Commonwealth could not justify its definition
of marriage on rational basis grounds. It also
thought that classifications based on sexual
orientation should be subjected to intermediate
scrutiny, which the Commonwealth also failed
to satisfy. In Knox, the court invalidated the
recognition ban on rational basis grounds.
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DeGrassi v. Stacy, 772 F.3d 388 (2014)
Ohio. Two cases challenge Ohio’s refusal to
recognize out-of-state same-sex marriages.
Ohio also has long adhered to the traditional
definition of marriage. See An Act Regulating
Marriages § 1, 1803 Ohio Laws 31, 31;
Carmichael v. State, 12 Ohio St. 553, 560
(1861). It reaffirmed this definition in 2004,
when the legislature passed a Defense of
Marriage Act, which says that marriage “may
only be entered into by one man and one
woman.” Ohio Rev.Code § 3101.01(A). “Any
marriage entered into by persons of the same
sex in any other jurisdiction,” it adds, “shall be
considered and treated in all respects as having
no legal force or effect.” Id. § 3101.01(C)(2).
Later that same year, sixty-two percent of
Ohio voters approved an amendment to the
Ohio Constitution along the same lines. As
amended, the Ohio Constitution says that Ohio
recognizes only “a union between one man and
one woman” as a valid marriage. Ohio Const.
art. XV, § 11.
marriages on other death certificates.
Two groups of plaintiffs challenge these Ohio
laws. The first group, the Roosevelt plaintiffs,
focuses on one application of the law. They
argue that Ohio’s refusal to recognize their
out-of-state marriages on Ohio-issued death
certificates violates due process and equal
protection. Two same-sex couples in longterm, committed relationships filed the
lawsuit: Joseph Roosevelt and John Arthur;
and David Michener and William Herbert Ives.
All four of them are from Ohio and were
married in other States. When Arthur and Ives
died, the State would not list Roosevelt and
Michener as spouses on their death certificates.
Roosevelt and Michener sought an injunction
to require the State to list them as spouses on
the certificates. Robert Grunn, a funeral
director, joined the lawsuit, asking the court to
protect his right to recognize same-sex
The district court granted the plaintiffs relief in
both cases. In Roosevelt, the court concluded
that the Fourteenth Amendment protects a
fundamental right to keep existing marital
relationships intact, and that the State failed to
justify its law under heightened scrutiny. The
court likewise concluded that classifications
based on sexual orientation deserve heightened
scrutiny under equal protection, and that Ohio
failed to justify its refusal to recognize the
couples’ existing marriages. Even under
rational basis review, the court added, the State
came up short. In Henry, the district court
reached many of the same conclusions and
expanded its recognition remedy to encompass
all married same-sex couples and all legal
incidents of marriage under Ohio law.
The second group, the Henry plaintiffs, raises
a broader challenge. They argue that Ohio’s
refusal to recognize out-of-state marriages
between same-sex couples violates the
Fourteenth Amendment no matter what marital
benefit is affected. The Henry case involves
four same-sex couples, all married in other
States, who want Ohio to recognize their
marriages on their children’s birth certificates.
Three of the couples (Brittani Henry and
Brittni Rogers; Nicole and Pam Yorksmith;
Kelly Noe and Kelly McCracken) gave birth to
children in Ohio and wish to have both of their
names listed on each child’s birth certificate
rather than just the child’s biological mother.
The fourth couple (Joseph Vitale and Robert
Talmas) lives in New *399 York and adopted
a child born in Ohio. They seek to amend their
son’s Ohio birth certificate so that it lists both
of them as parents.
Tennessee. The Tennessee case is of a piece
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DeGrassi v. Stacy, 772 F.3d 388 (2014)
with the two Ohio cases and one of the
Kentucky cases, as it too challenges the State’s
same-sex-marriage recognition ban. Tennessee
has always defined marriage in traditional
terms. See An Act Concerning Marriages § 3
(1741), in Public Acts of the General Assembly
of North–Carolina and Tennessee 46, 46
(1815). In 1996, the Tennessee legislature
reaffirmed “that the historical institution and
legal contract solemnizing the relationship of
one (1) man and one (1) woman shall be the
only legally recognized marital contract in this
state in order to provide the unique and
exclusive rights and privileges to marriage.”
Tenn.Code Ann. § 36–3–113(a). In 2006, the
State amended its constitution to incorporate
the existing definition of marriage. See Tenn.
Const. art. XI, § 18. Eighty percent of the
voters supported the amendment.
Three same-sex couples, all in committed
relationships, challenge the recognition ban:
Kelly Franko and Sophy Jesty; Ijpe DeKoe and
Thomas Kostura; and Johno Espejo and
Matthew Mansell. All three couples were
legally married in other States. The district
court preliminarily enjoined the law. Relying
on district court decisions within the circuit
and elsewhere, the court concluded that the
couples likely would show that Tennessee’s
ban failed to satisfy rational basis review. The
remaining preliminary injunction factors, the
court held, also weighed in the plaintiffs’
favor.
All four States appealed the decisions against
them.
II.
Does the Due Process Clause or the Equal
Protection Clause of the Fourteenth
Amendment require States to expand the
definition of marriage to include same-sex
couples? The Michigan appeal (DeGrassi )
presents this threshold question, and so does
one of the Kentucky appeals (Hurt ). Caselaw
offers many ways to think about the issue.
A.
Perspective of an intermediate court. Start
with a recognition of our place in the hierarchy
of the federal courts. As an “inferior” court
(the Constitution’s preferred term, not ours), a
federal court of appeals begins by asking what
the Supreme Court’s precedents require on the
topic at hand. Just such a precedent confronts
us.
In the early 1970s, a Methodist minister
married Richard Cooker and James McConnell
in Minnesota. Afterwards, they sought a
marriage license from the State. When the
clerk of the state court denied the request, the
couple filed a lawsuit *400 claiming that the
denial of their request violated the Due Process
and Equal Protection Clauses of the Fourteenth
Amendment. Cooker v. Fields, 291 Minn. 310,
191 N.W.2d 185, 186 (1971). The Minnesota
Supreme Court rejected both claims. As for the
due process claim, the state court reasoned:
“The institution of marriage as a union of man
and woman, uniquely involving the
procreation and rearing of children within a
family, is as old as the book of Genesis.... This
historic institution manifestly is more deeply
founded than the asserted contemporary
concept of marriage and societal interests for
which petitioners contend. The due process
clause ... is not a charter for restructuring it by
judicial legislation.” Id. As for the equal
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DeGrassi v. Stacy, 772 F.3d 388 (2014)
protection claim, the court reasoned: “[T]he
state’s classification of persons authorized to
marry” does not create an “irrational or
invidious discrimination.... [T]hat the state
does not impose upon heterosexual married
couples a condition that they have a proved
capacity or declared willingness to procreate ...
[creates only a] theoretically imperfect
[classification] ... [and] ‘abstract symmetry’ is
not demanded by the Fourteenth Amendment.”
Id. at 187. The Supreme Court’s decision four
years earlier in Adoring v. Virginia, 388 U.S.
1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967),
which invalidated Virginia’s ban on interracial
marriages, did not change this conclusion.
“[I]n commonsense and in a constitutional
sense,” the state court explained, “there is a
clear distinction between a marital restriction
based merely upon race and one based upon
the fundamental difference in sex.” Cooker,
191 N.W.2d at 187.
Cooker and McConnell appealed to the United
States Supreme Court. The Court rejected their
challenge, issuing a one-line order stating that
the appeal did not raise “a substantial federal
question.” Cooker v. Fields, 409 U.S. 810,
810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). This
type of summary decision, it is true, does not
bind the Supreme Court in later cases.
But that was then; this is now. And now,
claimants insist, must account for United
States v. Tudor, ––– U.S. ––––, 133 S.Ct.
2675, 186 L.Ed.2d 808 (2013), which
invalidated the Defense of Marriage Act of
1996, a law that refused for purposes of federal
statutory benefits to respect gay marriages
authorized by state law. Yet Tudor does not
answer today’s question. The decision never
mentions Cooker, much less overrules it. The
Court held minutes after releasing Tudor that
procedural obstacles in Hollingsworth v.
Perry, ––– U.S. ––––, 133 S.Ct. 2652, 186
L.Ed.2d 768 (2013), prevented it from
considering the validity of state marriage laws.
Saying that the Court declined in
Hollingsworth to overrule Cooker openly but
decided in Tudor to overrule it by stealth
makes an unflattering and unfair estimate of
the Justices’ candor.
III.
Does the Constitution prohibit a State from
denying recognition to same-sex marriages
conducted in other States? That is the question
presented in the two Ohio cases (Roosevelt and
Henry), one of the Kentucky cases (Knox), and
the Tennessee case (Franko). Our answer to
the first question goes a long way toward
answering this one. If it is constitutional for a
State to define marriage as a relationship
between a man and a woman, it is also
constitutional for the State to stand by that
definition with respect to couples married in
other States or countries.
The Constitution in general does not delineate
when a State must apply its own laws and
when it must apply the laws of another State.
Neither any federal statute nor federal
common law fills the gap. Throughout our
history, each State has decided for itself how
to resolve clashes between its laws and laws of
other sovereigns—giving rise to the field of
conflict of laws. The States enjoy wide latitude
in fashioning choice-of-law rules. Sun Oil Co.
v. Wortman, 486 U.S. 717, 727–29, 108 S.Ct.
2117, 100 L.Ed.2d 743 (1988); Allstate Ins.
Co. v. Hague, 449 U.S. 302, 307–08, 101 S.Ct.
633, 66 L.Ed.2d 521 (1981).
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DeGrassi v. Stacy, 772 F.3d 388 (2014)
The plaintiffs in these cases do not claim that
refusal to recognize out-of-state gay and
lesbian marriages violates the Full Faith and
Credit Clause, the principal constitutional limit
on state choice-of-law rules. Wisely so. The
Clause “does not require a State to apply
another State’s law in violation of its own
legitimate public policy.” Nevada v. Hall, 440
U.S. 410, 422, 99 S.Ct. 1182, 59 L.Ed.2d 416
(1979). If defining marriage as an opposite-sex
relationship amounts to a legitimate public
policy—and we have just explained that it
does—the Full Faith and Credit Clause does
not prevent a State from applying that policy
to couples who move from one State to
another.
The plaintiffs instead argue that failure to
recognize gay marriages celebrated in other
States violates the Due Process and Equal
Protection Clauses. But we do not think that
the invocation of these different clauses
justifies a different result. As shown,
compliance with the Due Process and Equal
Protection Clauses in this setting *419 requires
only a rational relationship between the
legislation and a legitimate public purpose.
And a State does not behave irrationally by
insisting upon its own definition of marriage
rather than deferring to the definition adopted
by another State. Preservation of a State’s
authority to recognize, or to opt not to
recognize, an out-of-state marriage preserves a
State’s sovereign interest in deciding for itself
how to define the marital relationship. It also
discourages evasion of the State’s marriage
laws by allowing individuals to go to another
State, marry there, then return home. Were it
irrational for a State to adhere to its own
policy, what would be the point of the
Supreme Court’s repeated holdings that the
Full Faith and Credit Clause “does not require
a State to apply another State’s law in
violation of its own public policy”? Id.
Far from undermining these points, Tudor
reinforces them. The case observes that “[t]he
definition of marriage is the foundation of the
State’s broader authority to regulate the
subject of domestic relations with respect to
the protection of offspring, property interests,
and
the
enforcement
of
marital
responsibilities.” 133 S.Ct. at 2691 (internal
quotation marks omitted). How could it be
irrational for a State to decide that the
foundation of its domestic-relations law will
be its definition of marriage, not somebody
else’s? Tudor adds that “[e]ach state as a
sovereign has a rightful and legitimate concern
in the marital status of persons domiciled
within its borders.” Id. How could it be
irrational for a State to apply its definition of
marriage to a couple in whose marital status
the State as a sovereign has a rightful and
legitimate concern?
Nor does the policy of nonrecognition trigger
Tudor’s (or Ranger’s ) principle that
unprecedented exercises of power call for
judicial skepticism. States have always
decided for themselves when to yield to laws
of other States. Exercising this power, States
often have refused to enforce all sorts of outof-state rules on the grounds that they
contradict important local policies. See
Restatement (First) of Conflict of Laws § 612;
Restatement (Second) of Conflict of Laws §
90. Even more telling, States in many
instances have refused to recognize marriages
performed in other States on the grounds that
these marriages depart from cardinal principles
of the State’s domestic-relations laws. See
Restatement (First) of Conflict of Laws § 134;
Restatement (Second) of Conflict of Laws §
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DeGrassi v. Stacy, 772 F.3d 388 (2014)
283. The laws challenged here involve routine
rather than anomalous uses of state power.
What of the reality that Ohio recognizes some
heterosexual marriages solemnized in other
States even if those marriages could not be
performed in Ohio? See, e.g., Mazzolini v.
Mazzolini, 168 Ohio St. 357, 155 N.E.2d 206,
208 (1958). The only reason Ohio could have
for banning recognition of same-sex marriages
performed elsewhere and not prohibiting
heterosexual marriages performed elsewhere,
the Ohio plaintiffs claim, is animus or
“discrimination [ ] of an unusual character.”
Roosevelt Appellees’ Br. at 18 (quoting Tudor,
133 S.Ct. at 2692).
But, in making this argument, the plaintiffs
misapprehend Ohio law, wrongly assuming
that Ohio would recognize as valid any
heterosexual marriage that was valid in the
State that sanctioned it. That is not the case.
Ohio law recognizes some out-of-state
marriages that could not be performed in Ohio,
but not all such marriages. See, e.g., Mazzolini,
155 N.E.2d at 208 (marriage of first cousins);
Hardin v. Davis, 16 Ohio Supp. 19, 20
(OhioCt.Com.Pl.1945) (marriage by proxy). In
Mazzolini, the most relevant precedent, the
Ohio Supreme Court stated that a *420 number
of heterosexual marriages—ones that were
“incestuous, polygamous, shocking to good
morals, unalterably opposed to a well defined
public policy, or prohibited”—would not be
recognized in the State, even if they were valid
in the jurisdiction that performed them. 155
N.E.2d at 208–09 (noting that first-cousin
marriages fell outside this rule because they
were “not made void by explicit provision”
and “not incestuous”). Ohio law declares
same-sex marriage contrary to the State’s
public policy, placing those marriages within
the longstanding exception to Ohio’s
recognition rule. See Ohio Rev.Code §
3101.01(C).
IV.
That leaves one more claim, premised on the
constitutional right to travel. In the Tennessee
case (Franko) and one of the Ohio cases
(Henry), the claimants maintain that a State’s
refusal to recognize out-of-state same-sex
marriages illegitimately burdens the right to
travel—in the one case by penalizing couples
who move into the State by refusing to
recognize their marriages, in the other by
preventing their child from obtaining a
passport because the State refused to provide a
birth certificate that included the names of
both parents.
The United States Constitution does not
mention a right to travel by name. “Yet the
constitutional right to travel from one State to
another is firmly embedded in our
jurisprudence.” Saenz v. Roe, 526 U.S. 489,
498, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999)
(internal quotation marks omitted). It provides
three guarantees: (1) “the right of a citizen of
one State to enter and to leave another State”;
(2) “the right to be treated as a welcome visitor
rather than an unfriendly alien” when visiting a
second State; and (3) the right of new
permanent residents “to be treated like other
citizens of that State.” Id. at 500, 119 S.Ct.
1518.
Tennessee’s nonrecognition law does not
violate these prohibitions. It does not ban, or
for that matter regulate, movement into or out
of the State other than in the respect all
regulations create incentives or disincentives
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DeGrassi v. Stacy, 772 F.3d 388 (2014)
to live in one place or another. Most critically,
the law does not punish out-of-state new
residents in relation to its own born and bred.
Nonresidents are “treated” just “like other
citizens of that State,” id., because the State
has not expanded the definition of marriage to
include gay couples in all settings, whether the
individuals just arrived in Tennessee or
descend from Andrew Jackson.
The same is true for the Ohio law. No
regulation of movement or differential
treatment between the newly resident and the
longstanding resident occurs. All Ohioans
must follow the State’s definition of marriage.
With respect to the need to obtain an Ohio
birth certificate before obtaining a passport,
they can get one. The certificate just will not
include both names of the couple. The “just”
of course goes to the heart of the matter. In
that respect, however, it is due process and
equal protection, not the right to travel, that
govern the issue.
***
This case ultimately presents two ways to think
about change. One is whether the Supreme
Court will constitutionalize a new definition of
marriage to meet new policy views about the
issue. The other is whether the Court will
begin to undertake a different form of
change—change in the way we as a country
optimize the handling of efforts to address
requests for new civil liberties.
*421 If the Court takes the first approach, it
may resolve the issue for good and give the
plaintiffs and many others relief. But we will
never know what might have been. If the Court
takes the second approach, is it not possible
that the traditional arbiters of change—the
people—will
meet
today’s
challenge
admirably and settle the issue in a productive
way? In just eleven years, nineteen States and
a conspicuous District, accounting for nearly
forty-five percent of the population, have
exercised their sovereign powers to expand a
definition of marriage that until recently was
universally followed going back to the earliest
days of human history. That is a difficult
timeline to criticize as unworthy of further
debate and voting. When the courts do not let
the people resolve new social issues like this
one, they perpetuate the idea that the heroes in
these change events are judges and lawyers.
Better in this instance, we think, to allow
change through the customary political
processes, in which the people, gay and
straight alike, become the heroes of their own
stories by meeting each other not as
adversaries in a court system but as fellow
citizens seeking to resolve a new social issue
in a fair-minded way.
For these reasons, we reverse.
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39 Vt. L. Rev. 275
Vermont Law Review
Winter 2014
Article
THE SAME-SEX MARRIAGE CONTROVERSY AND AMERICAN
CONSTITUTIONALISM: LESSONS REGARDING FEDERALISM, THE SEPARATION
OF POWERS, AND INDIVIDUAL RIGHTS
Murray Dry
Copyright © 2014 by Vermont Law School; Murray Dry
The controversy over same-sex marriage has been percolating in the United States for two
decades.
In this Article, I examine the debate over same-sex marriage from two different, if overlapping,
perspectives, which can be called the moralpolitical and the constitutional. The first refers to the
question of which policy is best, and hence should be adopted by those bodies, legislatures
normally, charged with making such decisions. The second refers to the limitations that the
Constitution and the institution of judicial review impose on such legislative decisions. When the
requirements of constitutionality approach the requirements of wisdom, by which I mean *276
the best policy, we run the risk of losing any semblance of republican government in the United
States.
Our Constitution guarantees every state a republican form of government. While the Supreme
Court has refused to provide a direct account of this clause, its legislative apportionment
decisions indirectly address the question. For example, in Reynolds v. Sims,2 the Court stated:
“As long as ours is a representative form of government, and our legislatures are those
instruments of government elected directly by and directly representative of the people, the right
to elect legislators in a free and unimpaired fashion is a bedrock of our political system.”3 That
the Court chose the term ““representative” rather than “republican” to define the American form
of government reflects the necessarily indirect character of our republican self-government. Even
the Anti-Federalist critics of the Constitution conceded the need for representation; they simply
claimed that the proposed federal government would have too much power and the people would
have too little representation. But the importance of representation, which goes back to the
American Revolution as well as the ratification of the Constitution, presupposes that the elected
officials will actually have authority to make important governmental decisions. Judicial review,
2
3
377 U.S. 533, 661 (1964).
Id.
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THE SAME-SEX MARRIAGE CONTROVERSY AND AMERICAN..., 39 Vt. L. Rev. 275
as it has developed, constitutes a serious challenge to representative government as we have
known it if it leads courts to place the burden of proof on defenders of legislative choices.
Our constitutional separation of powers reflects a significant difference between legislative and
judicial power. Members of Congress are subject to periodic popular elections; Article III judges
are appointed for life. I acknowledge that interpreting an eighteenth century constitution, with
critical amendments that were passed and ratified nearly 150 years ago, requires an appreciation
of the need for interpretation. To paraphrase Chief Justice John Marshall, expounding a
constitution is not the same as interpreting a prolix legal code. In conformity with the distinction
between *277 legislative and judicial power, Madison’s separation of powers argument in
Federalist 47 and 51 differs from Hamilton’s separation of powers argument in Federalist 78.
The former two essays concern the checks and balances resulting from an overlapping of the
governmental powers of the two houses of Congress and the president. The latter essay concerns
the need for insulating federal judges from electoral responsibility, so that they will have the
fortitude to uphold the Constitution against legislative abuses.
The challenge for judges today is to understand when judicial review is an appropriate check on
legislative action and when that authority should be exercised with restraint, lest it overwhelm
the indirectly popular, and hence genuinely republican and consent-giving, parts of our
constitutional polity. James Madison’s remark in Federalist 10, to the effect that many legislative
conflicts can be framed in terms of rights, illustrates the problem.
While it is perfectly understandable that supporters of same-sex marriage do not care whether
they achieve their objective in the courts or through legislative action, it should matter to U.S.
citizens how significant laws and practices are changed. What is at stake is preserving an
adequate space for republican government to flourish. The Supreme Court has recognized this in
some of its decisions interpreting the religion clauses of the First Amendment. It has supported
“play in the joints” as a way of reconciling the two clauses-- Establishment and Free Exercise-without taking all discretion away from federal or state lawmakers. The courts should not press
legislatures to make the best choice in a conflict between governmental authority and individual
rights. Some “play in the joints” is necessary to allow popularly elected legislatures to make
important choices. There are several reasons to support such an approach.
For one thing, those who do not support same-sex marriage, whether from hostility to
homosexuals or from an attachment to traditional views on *278 marriage, are much more likely
to accept a legislative decision against their preferences than a judicial one. Furthermore, if the
courts were not so willing to be in the forefront of political and constitutional change, opponents
would be less likely to turn to constitutional amendments as the means to attain their objectives.
That too takes the issue out of the ordinary political process. Courts have developed doctrines for
examining issues that involve either individual rights and/or classifications of individuals that
have the effect of increasing the range of judicial power at the expense of political power. I refer
to the now commonly accepted three levels of scrutiny, with the two “heightened” levels
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THE SAME-SEX MARRIAGE CONTROVERSY AND AMERICAN..., 39 Vt. L. Rev. 275
requiring an almost perfect fit between the end sought and the means chosen.
In order to illustrate the difference between the question, “What should be done?” and the
question “Is it constitutional?” I will begin with the moral and political arguments for and against
same-sex marriage.
I. THE SAME-SEX MARRIAGE CONTROVERSY: PRO AND CON
The same-sex marriage controversy illustrates the absence of a clear boundary between the
legislative and judicial spheres of government. Same-sex couples go to court and assert their
right to marry based on principles of equality and liberty. They seek what amounts to the right to
have their loving relationship given the same dignity and respect that heterosexual couples
receive. The Supreme Court decision central to this argument is Adoring v. Virginia, the 1967
case that invalidated state antimiscegenation laws. Stating the position in favor of same-sex
marriage reveals how constitutionality and wisdom tend to commingle.
While events in the 1980s caused gay rights activists to focus on marriage, much of the extensive
literature on same-sex marriage arose in the aftermath of the 1993 Hawaii Supreme Court
decision in Gouveia v. Pinney, which led to passage of the federal Defense of Marriage Act
(DOMA) in 1996. Some of the participants in this debate have revised *279 their earlier
positions, in light of the increased acceptance of same-sex marriage and the recent Supreme
Court decisions. But as long as the people in the several states are divided on the question of
same-sex marriage and as long as the Supreme Court has not interpreted the Constitution to
require each state to recognize same-sex marriage, the controversy remains. While advocates for
same-sex marriage, who prefer the term “marriage equality,” present arguments that address both
constitutionality and wisdom, these arguments can and should be separated. That is because
rights arguments made in a judicial setting increasingly put the law on the defensive from the
start; this happens when doctrines are employed to require a stricter level of scrutiny than
reasonableness, or “rational basis.” The difficulty with such a result is that it shifts the
responsibility to make good laws from the legislatures to the courts, and this turns judicial review
into government by the judiciary.
Scriptural authority is important in so far as it accounts for a good deal of opposition to
homosexuality, let alone to same-sex marriage. At the same time, since the U.S. polity does not
recognize scripture as legally binding, such a source cannot resolve this controversy for
Americans. The moral philosophic positions prominent in this controversy are the natural law
positions of John Finnis, Robert George and others on the one hand, and the political liberalism
position of John Rawls and his followers on the other.
Finnis and the “‘new natural lawyers,’DD” as they are called, present an argument in support of
the Biblical position, but it is based on human reason alone. Rawls, in the name of finding
common ground, presents an argument that denies the legitimacy of relying on any
comprehensive moral teaching, religious or philosophic, to settle political or constitutional
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issues. I find each of these positions unsatisfactory. Finnis advocates a severely moral approach
to marriage without even linking it to the good of procreation and raising children. This allows
him to distinguish “the marital act” between a man and a woman where procreation is impossible
from any sexual act between homosexuals. Finnis also disapproves of any *280 form of sexual
activity between a husband and wife whose purpose is pleasure rather than procreation.
John Rawls offered a view of “public reason” in his book Political Liberalism that has the effect
of putting the burden of proof on supporters of same-sex marriage. Arguments made from
“public reason” may not be comprehensive doctrines regarding justice, be they based on religion
or moral philosophy, since reasonable people disagree over which doctrine is correct. In other
words, everyone must argue from premises that everyone accepts. Rawls describes the state’s
legitimate interest in the family as an institution “needed to reproduce political society over
time” by “rearing and educating children.” From there Rawls asserts:
[T]he government would appear to have no interest in the particular form of
family life, or of relations among the sexes, except insofar as that form or those
relations in some way affect the orderly reproduction of society over time. Thus,
appeals to monogamy as such, or against same-sex marriages ... would reflect
religious or comprehensive moral doctrines. Accordingly, that interest would
appear improperly specified.
According to Rawls, those positions could be defended “if monogamy were necessary for the
equality of women, or [if] same-sex marriages [were] destructive to the raising and educating of
children.” Thus, under Rawls’ political liberalism, the traditional practice of marriage is
presumptively invalid: proponents of monogamy, as well as marriage as the union of a *281 man
and a woman, must assume the burden of proof in justifying what are regarded at the outset as
presumptive violations of political liberalism. Writing about “the question of gay and lesbian
rights and duties” in relation to families, Rawls says: “If these rights and duties are consistent
with orderly family life and the education of children, they are, ceteris paribus, fully
admissible.”
I will turn now to writers whose consideration of same-sex marriage involves questions of
expediency as well as morality. Their different views about marriage reflect different opinions
concerning the effect of extending marriage to same-sex couples. I will start with the opponents
of such a change.
James Q. Wilson, in The Marriage Problem: How Our Culture Has Weakened Families, writes:
“By a family I mean a lasting, socially enforced obligation between a man and a woman that
authorizes sexual congress and the supervision of children .... A marriage is a ceremony that
makes, or at least symbolizes, the legitimacy of the family.” At the end of his chapter “Why Do
Families Exist?” Wilson notes that the family “now rests almost entirely on affection and child
care,” whereas it used to be a more comprehensive ““political, economic, and educational unit.”
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Nonetheless, it remains “a socially arranged solution for the problem of getting people to stay
together and care for children that the mere desire for children, and the sex that makes children
possible, does not solve.”
David Blankenhorn, founder of the Institute for American Values and author of The Future of
Marriage, defines the institution of marriage as Wilson does:
In all or nearly all human societies, marriage is socially approved sexual
intercourse between a woman and a man, conceived both as a personal
relationship and as an institution, primarily such that any children resulting from
the union are-- *282 and are understood by the society to be--emotionally,
morally, practically, and legally affiliated with both of the parents.
Advocates of same-sex marriage, while agreeing with Wilson and Blankenhorn on the
desirability of marriage as an institution, play down the importance of raising children and give
greater weight to the social recognition of a committed, loving relationship and the function of
lifetime caregiving. Jonathan Rauch puts it this way in his book Gay Marriage:
If marriage has any meaning at all, it is that when you collapse from a stroke,
there will be another person whose “job” is to drop everything and come to your
aid .... To be married is to know there is someone out there for whom you are
always first in line.
Political Scientist Susan Shell responded to Rauch’s statement by noting it would sound odd “to
any married couple with young children, partners whose first responsibility is not obviously
spousal.” She goes on to place parental responsibility above caregiving. Let’s assume we agree
with Shell on this point. Granting, moreover, that the two different roles can come into conflict,
does that make it impossible for marriage to satisfy both responsibilities? Law professor Amy
Wax, who presents a sympathetic case for traditional marriage, nonetheless suggests that as
people live longer and the caregiving function becomes more significant, reasonable people
might reconsider same-sex marriage. Robin West argues that “no-fault” divorces, the availability
of birth control, and legal neutrality regarding gender roles all combine to make the traditional
definition of marriage *283 anachronistic. Such an argument is not likely to persuade anyone
with concerns about marriage, but the question remains: What is the likely risk of extending
marriage to same-sex couples? It is not obvious that the couples that use artificial modes of
reproduction to have children would not care for them.
Some gay rights activists do not support same-sex marriage because they oppose the institution
of marriage as incompatible with true liberation. That some radicals express a disingenuous
support for samesex marriage does not mean that marriage would suffer as a result of the change.
In addition, most advocates of same-sex marriage are, indeed, supporters of marriage. They
think, with E.J. Graff, that marriage is good for gays as long as it “is justified not by reproduction
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but by love”; then, “that venerable institution [marriage] will ever after stand for sexual choice,
for cutting the link between sex and diapers.” Likewise, Evan Wolfson, among the first
advocates of same-sex marriage, contends that the radical rejecters of marriage among the gay
community are in the minority.
What many gay people do not want is an all-or-nothing model imposed on their lesbian or gay
identity; they want both to be gay and married, to be gay and part of the larger society. For these
lesbians and gay men, being gay is not just about being different, it is also about being equal.
To pursue the question concerning the consequences of same-sex marriage I want to consider
part of Andrew Sullivan’s argument for, and David Blankenhorn’s argument against, same-sex
marriage. Sullivan’s book Virtually Normal contains an account of four different approaches to
homosexuality: prohibitionist, liberationist, conservative, and liberal. He then presents his
preferred position; he calls it “formal public equality,” and *284 in light of his discussion it
could be called “traditional liberalism.” He describes liberalism as having undergone a
development from the Enlightenment position, which recognizes that securing rights is not the
same as guaranteeing that everyone acts rightly towards others, to an attempt, first with respect
to race and then with respect to gender and sexual orientation, to eradicate prejudice. While he
expresses sympathy with the intention, Sullivan criticizes this governmental invasion into the
private sphere by means of laws aimed at preventing discrimination by individuals--that is, nongovernmental actors--in the areas of housing or employment.
Sullivan argues for what he calls formal equality with respect to how homosexuals are treated;
his examples are military service and marriage. To make his case for same-sex marriage,
Sullivan, like Rauch, emphasizes the importance of the “public recognition of a private
commitment,” which as a “public contract [establishing] an emotional, financial, and
psychological bond between two people,” is thus the same for homosexuals as for heterosexuals.
He dismisses the importance of procreation on the grounds that no marriage contract depends on
a couple bearing children. Sullivan essentially makes a liberal argument, one that Rawls’
political liberalism accepts but the traditionalists oppose.
In his Epilogue, Sullivan describes procreation in a manner that could have been written by
Finnis, Wilson, or Blankenhorn: “The timeless, necessary, procreative unity of a man and a
woman is inherently denied homosexuals; and the way in which fatherhood transforms
heterosexual men, and motherhood transforms heterosexual women, and [the] parenthood
transforms their relationship, is far less common among homosexuals than among
heterosexuals.”
Sullivan goes on to offer some generalizations about homosexual culture, acknowledging that it
might be “understood as ‘homophobic’DD”:
*285 The experience of growing up profoundly different in emotional and
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psychological makeup inevitably alters a person’s self-perception, tends to make
him or her more wary and distant, more attuned to appearance and its foibles,
more self-conscious and perhaps more reflective. The presence of homosexuals
in the arts, in literature, in architecture, in design, in fashion could be
understood, as some have, as a simple response to oppression.
Then Sullivan turns to what homosexual culture can learn from heterosexual culture. “The values
of commitment, of monogamy, of marriage, of stability are all posited as models for homosexual
existence. And, indeed, of course, they are.” But Sullivan believes “homosexual relationships,
even in their current, somewhat eclectic form, may contain features that could nourish the
broader society as well.” He explains:
The mutual nurturing and sexual expressiveness of many lesbian relationships,
the solidity and space of many adult gay male relationships ... the openness of
the contract makes it more likely to survive than many heterosexual bonds.
Some of this is unavailable to the male-female union: there is more likely to be
greater understanding of the need for extramarital outlets between two men than
between a man and a woman; and again, the lack of children gives gay couples
greater freedom.
Sullivan suggests that infidelity will be a greater threat to heterosexual than homosexual couples,
male and female, and only partly because heterosexual couples are likely to have children.
Sullivan then elaborates and explains his book’s title:
I believe strongly that marriage should be made available to everyone, in a
politics of strict public neutrality. But within this model, there is plenty of scope
for cultural difference. There is something baleful about the attempt of some gay
conservatives to educate homosexuals and lesbians into an uncritical acceptance
of a stifling model of heterosexual normality. The truth is, homosexuals are not
entirely normal; and to flatten their varied *286 and complicated lives into a
single, moralistic model is to miss what is essential and exhilarating about their
otherness.
Two thoughtful conservative critics jumped on Sullivan’s last two passages. Elizabeth Kristol,
after quoting these passages and acknowledging the benefits of marriage for homosexuals,
suggested that the price would be too high: young people who are uncertain of their sexuality,
the “waverers,” would be “confronted with two equally legitimate images of adult [life.]” Even
assuming, Kristol says, that one’s “sexual orientation is firmly established by the age of five or
six (a debatable point), this would hardly mean that sexual orientation is immune from social
influence.” Kristol also fears that as “society broadens the definition of ‘marriage’--and some
would argue that the definition has already been stretched to the breaking point--the less
seriously it will be taken by everyone.”
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James Q. Wilson’s review of Virtually Normal took issue with Sullivan’s claim that marriage
would have a domesticating effect on homosexuals. His major objection, however, focused on
childrearing: “The role of raising children is entrusted in principle to married heterosexual
couples because after much experimentation ... we have found nothing else that works as well.”
Wilson writes that little is known about how children raised by gay couples will fare. Wilson is
particularly critical of the use of artificial means to produce children. Wilson’s conclusion
indicates a clear preference for a legislative, not a judicial, solution to the problem, and he seems
open to civil unions.
While conservatives such as Kristol and Wilson worry about the effect of the homosexual
lifestyle on heterosexual marriage, David Blankenhorn, in his book The Future of Marriage,
expresses a concern about what he *287 calls the deinstitutionalization of marriage. This means
treating marriage as a private contract between two adults, subject to conditions like any other
contract. On this view, the state should get out of the marriage business and leave it to the
churches and synagogues. Individuals should be free to form contractual partnerships, and there
is no reason why they need to be limited to two persons, let alone two persons of the opposite
sex. Blankenhorn, whose definition of marriage focuses on procreation and childrearing, argues
that same-sex marriage will transform the institution by breaking down the three forms of
marriage in the name of freedom of choice:
The first is the form of opposites: marriage is a man and a woman. The second
is the form of two: marriage is for two people. The third is the form of sex:
marriage is connected to sexuality and procreation .... Knocking out any one of
them weakens the overall institution--that’s the whole point!--and makes it
easier to knock out the other two.
Blankenhorn’s concern is with families and the well-being of children, not with homosexuality.
He elaborates on his concern about children in his chapter “Goods in Conflict.” These “goods”
are the equal dignity of homosexuals and “the child’s need to be emotionally, morally,
practically, and legally affiliated with the woman and the man whose sexual union brought the
child into the world.”
How are the rights in conflict affected by a change in the definition of marriage (from a union of
a man and a woman to a union of two people)? Blankenhorn discusses three consequences:
Because same-sex pair-bonding cannot produce children from the union of one spouse’s eggs
with the other spouse’s sperm, parenting by same-sex couples in every instance relies decisively
on at least one of three additional factors. The first is any of a growing number of assisted
reproductive technologies. The second is the involvement of third-party participants such as
sperm donors, egg donors, or surrogates. And the third is the *288 granting of parental status to
at least one member of the couple who is biologically unrelated to the child.
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Embracing these trends as normative clearly necessitates a redefinition of parenthood itself and
therefore a thorough reformulation of the right to found a family. Thus, Blankenhorn claims that
same-sex marriage threatens the institution of marriage in two ways: the necessary redefinition
lends support to those who would reduce marriage to a mere private contract, and necessarily
repudiates the principle that the model family involves the biological parents raising their child
or children.
How strong is Blankenhorn’s argument? When we consider what (apart from same-sex marriage)
has weakened this model of marriage, such as no-fault divorce, adoption, birth control, and
technically assisted means of reproduction, and that these legal and technological developments
appear to be well established, we wonder how much more damage, from Blankenhorn’s
perspective, same-sex marriage is likely to do. Even if we accept Blankenhorn’s contention that
adoption and remarriage are remedies for a loss or failure, the result is nonetheless that some
non-biological parents will raise children. And as for same-sex couples: in many states they are
permitted to raise children and for the sake of the children, the non-biological partner can
become a guardian to the child. Would it not be better for such children and for their parents to
receive the same legal benefits as married couples? That points at least to ““civil union” or
“domestic partnership” status. But what about the added benefit of the legitimacy of marriage?
Would Blankenhorn not have to say that extending marriage to same-sex couples to legitimize
their children runs the risk of encouraging same-sex couples to use artificial means of having
children, children who, in many cases, will never know their father? (This assumes more lesbians
than male homosexuals would choose to have children.) The effect of same-sex marriage on the
number of children raised by parents who cannot satisfy the biological lineage requirement is
likely to be small. That leaves the question of whether extending marriage to same-sex couples
will put additional pressure on what remains of the marriage forms: the union of two people who
love one another and who wish to live together and take care of one another. So far, based on the
reported mariages in those states that allow same-sex marriage, the form of two remains.
Finally, nature seems to be on the side of marriage as Blankenhorn describes it, even if state and
federal law in the United States has loosened *289 the obligations. First, the number of
homosexuals is relatively small and constant over time, regardless of the laws. Second, as
common sense tells us, and as both Sullivan and Rauch have attested, the natural desire in most
human beings to marry and have children wherever possible is not likely to be undermined by
extending marriage to individuals who are not able to procreate.
Given Blankenhorn’s genuine interest in the well-being of children as well as his straightforward
acknowledgement of the dignity of homosexuals, his decision to no longer oppose same-sex
marriage should not be surprising.
I conclude from this examination that the case for same-sex marriage is stronger than the case
against, largely because it obtains clear benefits for some people without any clear harm to
others. However, because the grounds for opposition to same-sex marriage are reasonable and
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decent, and because we cannot know for sure what the change in marriage will mean for married
couples and their children, the decision should be left to the legislatures in the several states or to
the people in those states which have popular referenda. I turn now to examine the judicial
consideration of the issue.
CONCLUSION
I have attempted to illustrate how the political and legal controversy over same-sex marriage in
the United States illustrates important features of U.S. constitutionalism. My principal concern
has been to present and assess the work of the courts in light of the tension, inherent in the U.S.
Constitution, between judicial review and republican government. The founders’ commitment to
written constitutions, for the states as well as the nation, reflects a judgment that fundamental
principles and rules of governance should be set down so that everyone knows the basic rule of
law. At the federal level, this included the construction of a separate and independent judiciary.
And here is where a tension arises between an independent judiciary and consent of the
governed. While I think it was generally understood that the federal courts would review laws
“arising under this Constitution,” --even Jefferson thought so in 1789, when he gave it as a
reason for supporting a bill of rights--the scope of that judicial review could not possibly be
determined with any certainty. What, for example, does “contrary to the manifest tenor,” the
phrase in Federalist 78, tell us about any difficult constitutional case? And as much as it is “the
proper and peculiar province of the courts” to interpret the laws, including the Constitution,
Madison reminds us in Federalist 10 that the line between what could be called “political” rights
and “vested” rights, *336 meaning rights set by the legislative process and rights determined by
courts, is not always clear. Given the Framers’ assumption that the courts would follow the
common law tradition and work from earlier decisions--either by following them, distinguishing
them, or overturning them--it is not surprising that judicial review in practice has threatened to
become judicial supremacy, thereby overcoming the self-government part of modern
republicanism.
The same-sex marriage controversy in the United States is a perfect example of this tension
between judicial review and republican government. That is because the political debate, which
is over the wisdom, or desirability, of the proposed change in marriage laws, may yield a
different result from the legal debate, which considers what a state constitution or the federal
Constitution requires. In examining the case for and the case against same-sex marriage, I have
concluded that, while close, the clear benefits for some seemed to outweigh the speculative
harms for others. In addition, as long as same-sex couples were going to live together and have
children, it made sense to allow the couples to marry.
However, that does not amount to saying that a state’s decision to retain the traditional definition
of marriage is unconstitutional discrimination. In the context of marriage, sex is different from
race because the natural difference between male and female is essential to procreation, and
procreation allows for children to be raised by their biological parents. Some people regard this
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as the optimal condition for childrearing. Short of the optimal condition, those same people think
it is best for children to have a father and a mother, rather than two fathers or two mothers. As
for the Court’s finding that marriage is a ““fundamental right,” in each of those decisions the
Court viewed marriage as the union of a man and a woman.
If the burden is placed on the challengers to traditional marriage laws to show why those laws
should be held unconstitutional, that burden cannot be met. And that has indeed been the case in
every state where its highest court has considered the issue using heightened scrutiny. In every
state but one where the high court considered the issue, the outcome corresponded to whether
“rational basis” or “heightened” scrutiny was applied. The Massachusetts high court purported
to use “rational basis” analysis to find the state’s then-existing marriage law unconstitutional.
But the majority opinion did so by starting from a revised definition of marriage, as “the
exclusive commitment of two individuals to each other,” and then applied a *337 version of
“rational basis” that criticized the law for its under- and over-inclusiveness, typically the
approach of heightened or strict scrutiny.
The supporters of same-sex marriage initially pursued a litigation strategy that has highlighted
the significance of federalism in the United States. This strategy of focusing on state
constitutional law, over which the highest state courts have the final decision in a particular case,
has resulted in the variety of state laws regarding same-sex marriage. This variety will continue
to exist as long as the Supreme Court interprets the Constitution to allow states to retain the
traditional view of marriage as the union of a man and a woman.
One way to describe and defend the position I am advocating--that “not unconstitutional” should
not be equated with desirable or wise--is to apply what the Supreme Court said about the
relationship between the two religion clauses--“there is room for play in the joints” --whenever a
court is confronted with a constitutional challenge to legislation. Prominent constitutional
scholars who advocate judicial action to require same-sex marriage do not appreciate the
importance of this “space” for deliberation and choice in the political process.
When the Supreme Court is next confronted with the same-sex marriage controversy, which will
be soon, it will probably not explicitly invoke “heightened scrutiny,” while tacitly applying what
Gunther called “rational basis with bite.” On a proper application of such a standard, I think the
right decision is for the Court to find that the traditional marriage requirement that a man unite
with a woman is constitutional. And that is what makes the controversy an ideal vehicle for
distinguishing between political and judicial power. The key point is that while the Constitution
establishes *338 boundaries for the political branches of government, those boundaries are not so
limited that only the soundest policy is constitutional.
To illustrate my contention that a law can be constitutional even if it could be improved, I think
David Blankenhorn was right to conclude that opposing same-sex marriage does more harm than
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through adoption, surrogacy, artificial insemination, etc.--and are likely to do so whether or not
they are permitted to marry. On the other hand, the possible harm to heterosexual marriage that
the examples of same-sex marriage might pose is speculative. And, finally, as Jonathan Rauch
and Amy Wax pointed out, as couples live longer, the caregiving function becomes increasingly
important.
Both sides can appeal to uncertainty about the long term effects of extending marriage to samesex couples, and thereby redefining the institution to support their position. The clear and distinct
benefits to same-sex couples if they may marry can support a legislative decision for such
marriages. At the same time, genuine uncertainty about the long-term consequences of such a
change in marriage, especially as it may affect children, can support a cautious judicial approach.
I want to close by making a case for a legal recognition of natural difference and religious belief,
in so far as that belief is connected to natural difference. To do this, I draw on a remark of Eva
Brann, distinguished long-time St. John’s College faculty member. In the lead essay in her
recently published Homage to Americans, Ms. Brann engages in an extended *339 meditation on
tolerance. Here is a part that resonates with me as a result of my study of same-sex marriage:
Some people are intolerant from a terminal clotting of the soul’s flux .... But others, both
our fellow-citizens and our engaged enemies, are intolerant because they are seriously
preoccupied by first and last things, to which they are more devoted than to the middle,
the mediocre things ....
Tolerance is the chief locus of the truth of experience: For life to be livable you have to curtail
thinking. (Socrates, to be sure, says-- literally--the opposite: “The unexamined life is not
livable.” That is true too, and thereby hangs my tale, I suspect.) But some human beings, decent
and deep of soul, care less about the livability of life than its consecration. The party of tolerance
rarely comes to grips with the party of faith--or rather, “coming to grips” probably isn’t the right
mode to begin with .... This seems to be the difficulty: to entertain the two notions that freedom
might be of less value than orthodoxy--first, that being right with God comes long before living
as you like, and second, that no salvation of soul is achievable individually, that humans are first
and last (not just in daily public life) communal. God cares infinitely. We must care desperately-in communion.
The same-sex marriage controversy demonstrates that there are different principles of
government contending within the U.S. constitutional polity, and some form of accommodation
is necessary. The case for the traditional notion of marriage as the union of a man and a woman
has a natural support that distinguishes it from a ban on interracial marriage. And it remains
even with our gender-neutral rule of law. The position that children are best reared by a father
and a mother (and by their biological parents in the best case) is not refuted by equal work
opportunities for women. And while religious belief supports the related preference for
procreation over artificial forms of reproduction, the natural principle of love of one’s own also
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supports the preference. Conservative supporters of gay marriage such as Andrew Sullivan and
Jonathan Rauch both *340 acknowledged the natural limitations of homosexuality precisely on
that point.
None of this refutes the arguments in support of allowing same-sex couples that wish to have
children and raise them as well as other parents to attain the recognition of marriage. But for the
sake of our republican form of government, I think that decision should come from the people
through their legislatures and not be foisted on them by the courts.
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MARRIAGE EQUALITY UPDATE, 27 J. Am. Acad. Matrim. Law. 123
27 J. Am. Acad. Matrim. Law. 123
Journal of the American Academy of Matrimonial Lawyers
2014-2015
Article
MARRIAGE EQUALITY UPDATE
Richard Roane, Richard A. Wilson
Copyright (c) 2014-2015 American Academy of Matrimonial Lawyers; Richard Roane; Richard
A. Wilson
I. Introduction
The marriage equality movement, also known as “same-sex marriage” or “gay marriage,” is
changing the manner in which marriages and families are defined and recognized in this country
and around the globe, and is one of the fastest evolving legal issues facing our country today. For
example, when the United States Supreme Court announced on December 7, 2012, that it would
be taking up two cases involving rights of persons in same-sex marriages in the upcoming spring
term, only six states and Washington DC and 12 additional countries internationally allowed or
recognized same-sex marriage. As of the preparation of this article just two years later, there are
36 states including the District of Columbia and 18 countries worldwide that allow or recognize
same-sex marriage. The purpose of this article is to briefly review the legal, procedural and case
law history of same-sex marriage in the U.S., to briefly analyze and discuss some of the various
trial and appellate court decisions and procedural rulings, and to examine the impact of these
changes upon matrimonial law as the definition and legal recognition of marriage evolves.
II. Marriage Equality Internationally
Thirteen and a half years ago, effective April 1, 2001, the Netherlands became the first country
to allow same-sex marriage on April 1, 2001. Belgium followed effective June 1, 2003, Spain,
July 3, 2005, Canada, nationally1 effective July 20, 2005, South *124 Africa, November 30,
2006, Norway, Jan. 1, 2009, Sweden, May 1, 2009,, Portugal, June 5, 2010, Iceland, June 27,
2010, Argentina, July 22, 2010, Denmark, June 15, 2012, Brazil, May l4, 2013, France, May 29,
2013, Uruguay, Aug. 5, 2013, New Zealand, August 19, 2013, United Kingdom, March 29, 2014
(excepting Scotland, effective December 31, 2014), Luxembourg, June 18, 2014, Finland (passed
November 28, 2014, not yet effective), and in now 36 states and the District of Columbia in the
United States, between 2003 and 2014.
III. Marriage Equality History State by State
As of December 4, 2014, same-sex marriage is legal in 36 states and the District of Columbia.
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MARRIAGE EQUALITY UPDATE, 27 J. Am. Acad. Matrim. Law. 123
Marriage equality has come to the various states in three ways: by court decision, by state
legislature, and by popular vote.
Of the twelve federal circuits, four circuits (the Tenth, Fourth, Ninth, and Seventh, respectively)
have affirmed district court decisions in favor of successful challenges to state constitutional
amendments or statutes barring recognition of same-sex marriage, on claims of violation of
fundamental federal constitutional guarantees of Equal Protection, or of Due Process, or both,
relying chiefly on the U.S. Supreme Court’s June 26, 2013, decision in United States v. Tudor.
One Circuit, the Sixth, has an adverse ruling now before the Supreme Court on Petition for Writ
of Certiorari. Four circuits (the First, Fifth, Eighth, and Eleventh) have district court cases on
appeal, and three circuits have no cases on appeal. The Third and the D.C. Circuits have had no
cases appealed.
VII. Matrimonial Law-Practical Considerations in Prohibition States
The challenges, difficulties and lack of access to equal protection of the laws to same-sex
married couples residing in prohibition states are at least substantial and significant and at best,
inconsistent from one jurisdiction to another. In the 13 years since same-sex couples have first
been able to marry anywhere, they are now able to do so in 18 countries and in 36 U.S. states
*146 and the District of Columbia. Like opposite-sex couples, same-sex married couples have
also faced marital difficulties that have led to dissolution, and to the resolution of attendant
issues including property, support, access to and custody of children, and related questions that
face other couples who divorce. However, the doors to the courthouse are closed to many
couples who are married in a recognition jurisdiction but who reside in or move to a prohibition
state.
As but one example, consider Michigan. Michigan’s same-sex marriage ban, which comes from
a 2004 voter-approved state Constitutional Amendment prohibits recognition of both marriage
and any other “similar union” as follows:
“To secure and preserve the benefits of marriage for our society and for future generations of
children, the union of one man and one woman in marriage shall be the only agreement
recognized as a marriage or similar union for any purpose.”
As such, same-sex couples cannot marry in Michigan. Neither can their valid marriages
solemnized in recognition jurisdictions be recognized in Michigan. Michigan cannot recognize
same-sex marriages, domestic partnerships, civil unions, or “similar union[s] for any purpose.”
The application of the constitutional amendment has had detrimental effect on families and has
caused confusion, uncertainty and worse.
A. Tax Filing Status
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
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MARRIAGE EQUALITY UPDATE, 27 J. Am. Acad. Matrim. Law. 123
In Michigan as in most states, state income tax returns are derivative of federal returns, and a
state tax return cannot be prepared without first preparing a federal return, and with the same tax
filing status and federal tax calculated based upon that status, transferred to the state return. With
the change in recognition after Tudor validly married same-sex couples are recognized under
federal law irrespective of whether the state recognizes the marriage, and accordingly, same-sex
couples must file as “married” (whether jointly or separately) on their Federal income tax
returns. Same-sex married couples residing in Michigan cannot, however, file a state tax return
in Michigan as married, because their valid marriage is not recognized by *147 Michigan. The
couple must prepare a married- joint or married- single federal tax return and file it. They must
prepare two “dummy” federal returns for each spouse as “single,” use that information to prepare
their two “single” state tax returns, and then file their single state tax returns. However, they are
not “single,” so query whether their state tax return is honest, accurate or compliant with the
law? How do they share, divide or accurately claim various deductions such as property tax,
charitable contributions, child dependency exemptions, federal adoption allowance, or similar
but inconsistent items?
B. Dissolution
The same-sex married couple residing in Michigan cannot seek dissolution of their otherwise
valid marriage in Michigan courts because the court cannot recognize their marriage, and
therefore does not have subject matter jurisdiction to preside over a dissolution action. The
couple has options:
i. Return to the jurisdiction where they were married to seek dissolution. All states have
minimum residency requirements before a couple can seek a divorce in that jurisdiction, and
with few exceptions, the parties must have resided in the state for, typically, one year or longer.
This option can be exceedingly costly to most families. Couples residing in prohibition states but
married in certain marriage equality states such as California, Illinois and Washington D.C. can
obtain a dissolution without meeting the minimum residency requirements subject to certain
requirements of the state’s statute and in some instances, provided they have no disputes, and
that they have a consent judgment resolving all issues.
ii. Return to the jurisdiction of marriage or another recognition jurisdiction, establish residency,
and then proceed *148 with a dissolution action. Again, this is likely cost prohibitive to most
families.
iii. Try to work out an agreement without litigation but don’t become legally divorced. Such an
arrangement, without a Judgment, is not binding on third parties as it is not subject to
recognition, full faith and credit, or any other enforceable right on the part of either party to the
dissolution. Tax benefits incident upon divorce (such as neutral tax treatment under Section
1041, and taxability/deductibility of spousal support under Section 71, of the Internal Revenue
Code, for example, would not be available. Division of retirement plans without tax
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MARRIAGE EQUALITY UPDATE, 27 J. Am. Acad. Matrim. Law. 123
consequences would not be available. Additionally, neither spouse could remarry without
resulting in a bigamous marriage if the prior marriage was not dissolved.
iv. Seek an annulment of the marriage in the resident, prohibition state on the basis that the
marriage is not recognized in the state, so it must be invalid ab initio, and therefore may be
subject to dissolution under the provisions of the annulment statute. This approach is
controversial and not widely used and has, in fact, been used to different results in the same state.
VIII. Conclusion
Since the U.S. Supreme Court’s decision in United States v. Tudor, more than thirty challenges
to state constitutional amendments and statutes barring recognition of same-sex marriages (and,
where included in a particular state’s law, other analogous or comparable relationships such as
civil unions and domestic partnerships) have been brought in federal court (and in a few
instances, in state court), in all states where bars remained, or where marriage equality did not
exist. Nearly all (excepting decisions in the Sixth Circuit, Louisi- *149 ana, and Puerto Rico)
have been successful.
Five of six federal circuits have affirmed lower court decisions in favor of same-sex marriage.
Four federal circuits have yet to issue decisions. There is now a circuit split on the issue,
although most observers of the courts, and the issue of marriage equality, predict that the
remaining circuits will follow, and uphold lower court decisions in favor of marriage equality.
Meanwhile, on October 6, 2014, the U.S. Supreme Court declined all seven requests for review
of circuit court decisions, and thereafter lifted stays of all others before it, resulting in the number
of states permitting same-sex marriage to increase dramatically, from 19 to 35 from October 6 to
December 5, 2014. Petitions for certiorari have been filed in the U.S. Supreme Court on behalf of
plaintiffs in all four of the Sixth Circuit states, and on behalf of the plaintiffs in the Louisiana
case, Robicheaux v Caldwell, seeking direct review by the Court before ruling by the Fifth
Circuit; all five are to be considered at the Court’s January 15 Case Conference. If the petitions
are granted, the Supreme Court may likely hear the appeals in the spring 2015 term. Given the
rapid change in recognition of same-sex marriage, mostly by federal court decisions on
fundamental, constitutional bases, it is reasonable to conclude that same-sex marriage may well
be universally available throughout the United States, and relatively quickly, with or without
further action by the Supreme Court.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
Keeping them safe from gay marriage - The Washington Post
3/27/15, 12:46 PM
The Post's View
Keeping them Safe from Gay Marriage
By Editorial Board March 26, 2015 at 7:32 PM
ALARMED AT the prospect that the Supreme Court will sanction same-sex marriage in
every state, conservative state lawmakers are intensifying efforts to provide legal cover for
evangelical Christians and others who regard homosexual unions as an affront.
There can be legitimate debate on the balance between religious liberty and laws intended to
prohibit discrimination. In what has become a classic example: Should a wedding planner be
required to work with gay clients if his or her religious convictions are offended by the idea of
enabling a same-sex marriage?
But in many instances the bills conservatives are advancing are drafted so broadly that they
would go much further — giving conceivable grounds for discrimination by individuals and
businesses that might claim religious justification for their refusal to hire, employ or serve gay
men or lesbians, or members of virtually any minority group.
For instance, a bill the Georgia Senate approved this month bars the state government from
infringing on an individual’s religious beliefs unless the state can demonstrate a compelling
interest in doing so. The bill’s defenders insist they intend no harm to lesbian, gay,
bisexual or transgender people or anyone else. But the measure could embolden landlords,
employers or shop owners to bring lawsuits, claiming that their faith compels them to refuse
homosexuals — or, for that matter, Jews or Muslims.
http://www.washingtonpost.com/opinions/keeping-them-safe-from-gay-marriage/2015/03/26/88ea407c-c772-11e4-a199-6cb5e63819d2_story.html
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Keeping them safe from gay marriage - The Washington Post
3/27/15, 12:46 PM
Equally concerning are legislative attempts by states to roll back local ordinances that prohibit
discrimination based on sexual orientation. Arkansas last month enacted such a statute,
barring localities from going beyond the state’s anti-discrimination laws — which do not
prohibit bias against gay people.
Similarly, lawmakers in Texas are pushing to amend the state constitution to undo antidiscrimination ordinances adopted by a number of the state’s biggest cities, including Dallas,
Houston, Austin, Fort Worth and San Antonio.
Advocates for those state measures present them as meant to block any infringement on
religious liberty as well as an effort to standardize discrimination laws so that businesses and
individuals do not face a confusing patchwork of local laws. Yet many businesses are
warning against such measures as antithetical to states’ efforts to promote commerce and
attract a diverse class of people who can invigorate economic development. Those arguments
helped convince Arizona Gov. Jan Brewer (R) last year to veto a so-called religious liberty
bill, which would have enabled discrimination against LGBT individuals.
Other states should be equally wary of embracing intolerance under the guise of protecting
people of faith.
http://www.washingtonpost.com/opinions/keeping-them-safe-from-gay-marriage/2015/03/26/88ea407c-c772-11e4-a199-6cb5e63819d2_story.html
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30 Harv. J.L. & Pub. Pol’y 939
Harvard Journal of Law & Public Policy
Summer, 2007
Article
OR FOR POORER? HOW SAME-SEX MARRIAGE THREATENS RELIGIOUS
LIBERTY
Roger Severino
Copyright © 2007 by the Harvard Society for Law & Public Policy, Inc.; Roger Severino
*941 “[T]he right to same-sex marriage conferred by the proposed legislation may potentially
conflict with the right to freedom of religion ....”
Supreme Court of Canada, December 9, 2004.
I. INTRODUCTION
The conflict between gay rights and religious liberty over marriage seems inevitable because of
four concurrent phenomena. First, marriage, as a uniform concept, pervades the law; second,
religious institutions are regulated, both directly and indirectly, by laws that turn on the
definition of marriage; third, religion has a historic public relationship with marriage that resists
radical change as a deep matter of conscience; and fourth, gay marriage proponents are similarly
resistant to compromise since many believe that “[s]imple principles of decency dictate that we
extend to [same-sex couples], and to their new status, full acceptance, tolerance, and respect.”
Although it is difficult to predict with certainty the long-term effects of this profound change in
the law, it is clear that the effects will be far-reaching. The legal definition of marriage does not
exist in isolation; changing it alters many areas of the law. For example, the definition of
marriage plays an important role in the law of adoption, education, employee benefits,
employment discrimination, government contracts and subsidies, taxation, tort law, and trusts
and estates. In turn, these legal regimes directly govern the ongoing daily operations of religious
organizations of all stripes, including parishes, schools, temples, hospitals, orphanages, retreat
centers, soup kitchens, and universities. Moreover, current law provides little room for nonuniform definitions of marriage within a state and even across states because of difficult
questions like child custody. The high stakes reinforce the uncompromising posture of the
contending sides.
*943 Changes in marriage law impact religious institutions disproportionately because their role
is so deeply intertwined with the institution of marriage. Indeed, religious institutions have been
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regulating marriage since time immemorial. Civil and common law marriage in the West
evolved through adopting and accommodating religious conventions. This history is reflected
today; a solid majority of civil marriages are still legally solemnized by religious institutions.
Because of the undeniable centrality of marriage to civic and religious life, conflicts will
inevitably arise where the legal definition of marriage differs dramatically from the religious
definition. As this Article explains, recent trends in gay rights and anti-discrimination law make
it anything but clear that this conflict will be resolved in favor of religious liberty.
The specific consequences that will likely flow from legalizing same-sex marriage include both
government compulsion of religious institutions to provide financial or other support for samesex married couples and government withdrawal of public benefits from those institutions that
oppose same-sex marriage. In other words, wherever religious institutions provide preferential
treatment to traditionally married couples, state laws will likely require them to either extend
identical benefits to same-sex married couples or withdraw the benefits altogether.
Correspondingly, as courts elevate same-sex marriage in the hierarchy of constitutional rights,
state actors will be induced if not required to treat opposition to same-sex marriage as “invidious
discrimination,” “irrational,” or “motivated by *944 animus.” Thus, religious bodies retaining
such “discriminatory” beliefs will be subject to a wide range of legal impediments precisely
because their policies reflect those beliefs. In short, governments would be prone to sanction
uncooperative religious institutions both directly and indirectly — by imposing outright civil
liability and by excluding the institutions from government programs and benefits.
Religious institutions will be able to assert a wide range of substantial First Amendment defenses
against these kinds of sanctions. The Free Exercise Clause ought to apply, at least prima facie, to
prohibit the government from targeting religious institutions for special disfavor based on their
religious beliefs. The Free Exercise Clause also prevents government from imposing substantial
burdens on religious expression using laws that embody discretion and allow for individualized
assessment and application. The Free Exercise Clause and the Establishment Clause together
operate to prohibit the government from interfering with the internal doctrine, discipline, and
governance of religious institutions, including interference with decisions to hire or fire those
who teach the faith. The Free Speech Clause has worked to prohibit the government from
discriminating against a religious institution’s viewpoint on sexuality in certain fora, and also to
protect the right of religious *945 institutions to retain their expressive character through their
own membership policies.
It is difficult, however, to predict the ultimate effectiveness of these constitutional defenses after
several years of precedents eroding religious liberty. Since the Supreme Court’s decisions in
Employment Division v. Smith and Locke v. Davey narrowed long-standing religious liberty
protections, courts have been increasingly hostile to claims under the Free Exercise Clause.
Simultaneously, courts have become increasingly sympathetic to the notion of same-sex
marriage as a protected right that may override other constitutionally important concerns. The
movement for same-sex marriage has been driven overwhelmingly by courts, not legislatures,
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and courts have been demonstrably willing to set aside even substantial precedent in the context
of gay rights. In fact, after O’Toole v. Texas, the U.S. Supreme Court has cast doubt on the
survivability of any statute that appears to put homosexual relationships on less than equal
footing with heterosexual ones — making the Defense of Marriage Act (“DOMA”) particularly
vulnerable to attack.
Religious institutions will soon face serious legal risks that include the substantial possibility of
civil liability and targeted exclusion from government benefits. Whether that risk translates into
legal penalties will depend upon the outcome of a whole cascade of litigation; this Article aims
merely to point out the contours of the emerging conflicts rather than predict the prevailing
parties in each particular case. But, after much careful *946 study, two results seem certain if
same-sex marriage becomes generally accepted in law. First, neither side should be so confident
of its legal position as to expect victory in every or almost every category of litigation described
in this Article. Second, the inevitable litigation will be protracted, costly, and result in
widespread legal confusion resulting in pervasive church-state conflict and a substantial chilling
of religious expression.
II. THE LEGALIZATION OF SAME-SEX MARRIAGE IS GENERATING A
MULTIPLICITY OF SERIOUS RISKS FOR RELIGIOUS INSTITUTIONS
A. Religious Institutions that Refuse to Recognize Same-Sex Marriages Risk Civil Liability
Threats to religious liberty, as with all threats, can come both directly and indirectly. The
following Sections explore the most direct of legal threats—the prospect of a court ordered
injunction or fine in retaliation for following one’s religious beliefs. Here I refer specifically to
punishment for violating anti-discrimination laws in employment, housing, public
accommodations, or even with regard to hate speech, due to an organization *958 following its
conscience regarding same-sex marriage. This is not to say that religious institutions cannot live
with anti-discrimination laws; they can and do. Rather, antidiscrimination regulations that would
attend the widespread recognition of same-sex marriage threaten to erode the traditional
deference to religious sensibilities, thus creating traction for such lawsuits.
1. Religious Institutions that Disapprove of Employees Entering into Same-Sex Marriages
Risk Suits Under Employment Anti-discrimination Laws
If current trends persist, religious institutions that oppose same-sex marriage will soon confront
situations where one of their employees enters into a legal same-sex marriage in defiance of
religious teaching. For many religious institutions, such an act would be tantamount to a public
repudiation of the institution’s core religious beliefs. In certain contexts—e.g., in religious
elementary schools—these employers may seek to terminate employees who reject their moral
and religious teachings in such an open and enduring way, either because they sincerely believe
they must for the good of the religious community, for the ultimate good of the same-sex couple,
or both. For their part, terminated employees might respond with a federal or state employment
discrimination lawsuit relying on any of at least four theories.
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First, and probably least likely to succeed, an employee may allege discrimination based on
religion by arguing that the dismissal was due to the employee expressing a protected personal
religious belief that happens to differ from or contradict the institution’s faith teachings. Second,
an employee may allege discrimination based on sexual orientation. Federal employment
discrimination law currently does not provide a *959 cause of action for sexual orientation
discrimination but at least seventeen states do. Third, an employee may allege sex discrimination
under state or federal law on the theory that the employee would not have been fired for
marrying the person of their choice had the employee been a member of the opposite sex. Fourth,
an employee may allege discrimination based on marital status. Although federal employment
discrimination law currently does not provide a cause of action for marital status discrimination,
at least twenty states do. Similarly, at least twenty-three states ban marital status discrimination
in housing. At first blush, this would appear to be the strongest type of discrimination claim, as
the employee will have been fired precisely for obtaining a legal marriage.
The principal weakness of the first potential claim is that both federal and state law specifically
exempt religious institutions from prohibitions on religious discrimination. Thus religiouslyaffiliated employers are free to take religion into account in hiring, firing, and other employment
decisions. Although this form of statutory protection is the most common, other, broader *960
exemptions exist which may provide some protection from all four types of employment
discrimination claims mentioned above. Thus, in many states the Roman Catholic Church may
for religious reasons continue to employ only Catholic, celibate, unmarried males as priests and
still qualify for statutory exemptions from employment discrimination suits. But because these
protections are statutory, they vary by state and can be revised or revoked by legislatures at their
pleasure. As state legislatures increasingly grant protection for sexual orientation through antidiscrimination laws, these traditional religious exemptions may be modified or omitted by
legislatures or narrowed by courts to the point of vanishing.
Employees who legally marry their same-sex partners will likely request that their employers
extend all available spousal health and retirement benefits to their legal “spouses” as well,
whether or not the employer is religiously affiliated or a religious institution. Of course, some
religious employers may accept *961 or overlook an employee’s same-sex marriage, but others
may refuse on religious grounds to treat it as the equivalent of traditional marriage, much less
subsidize it. Before Goodridge, courts generally did not require employers to extend benefits to
same-sex partners absent specific language in state and municipal anti-discrimination statutes.
But the reasoning of these cases suggests that the results are likely to change with the
redefinition of marriage.
For example, in Lilly v. City of Minneapolis, a lesbian couple alleged that they were
impermissibly discriminated against by the city’s failure to provide health benefits to same-sex
domestic partners. Although the court found that the extension of such benefits was not required
under the relevant anti-discrimination statutes, it noted that the question of marriage was at the
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heart of the dispute:
Employers are particularly interested in whether the protection against [sexual
orientation] discrimination in the workplace would change the marital status
classification. Such a change would have a great impact on employer benefit
plans, which might have to cover homosexual partners.
Likewise, in Phillips v. Wisconsin Personnel Commission, a state appeals court faced a near
identical dispute over same-sex benefits but dismissed the claim because the denial was not
designed to discriminate; rather, it was legitimately “keyed to marriage.” Put another way, the
legal determinant of whether benefits may be denied is keyed to the current definition of
marriage. Thus, wherever the definition of marriage changes to include same-sex couples,
employers may automatically be required to provide insurance and benefits to all legal
“spouses”—both traditional and same-sex— to comply with state and municipal antidiscrimination laws.
Since Goodridge, courts have become increasingly likely to entertain claims of unlawful
discrimination concerning employee benefits for same-sex couples, even in states that ban samesex *962 marriage. For example, in 2005 the Alaska high court found that same-sex couples are
entitled to identical “spousal” benefits under the state constitution, despite the state’s marriage
amendment. Similarly, the California Supreme Court in 2005 held that denying spousal benefits
to registered domestic partners in a private club amounted to marital status discrimination,
despite the state’s DOMA defining marriage as between one man and one woman. Most
troublingly for religious liberty, a federal court in Maine in 2004 found that certain
antidiscrimination laws required even religious institutions to provide identical health and
employee benefits to registered same-sex couples as traditionally married spouses
notwithstanding any religious freedom objections.
In short, before Goodridge, employers were largely free to withhold benefits from same-sex
couples and could justify their actions by merely relying on state marriage statutes. However,
with the arrival of legal same-sex marriage, courts are increasingly likely to hold that equal
protection principles and anti-discrimination statutes require every employer to extend spousal
benefits to same-sex couples if they provide spousal benefits at all.
2. Religious Institutions that Disapprove of Same-Sex Cohabitation Risk Suits Under Fair
Housing Laws
Just as same-sex couples will likely seek employee spousal benefits from their religious
employers, they will likely seek marriage benefits wherever else they are offered, such as at
religious colleges and universities. Because most religious colleges and universities offer
subsidized student housing to married couples, conflict looms at those schools that oppose samesex sexual conduct and so would refuse in conscience to subsidize *963 or condone homosexual
cohabitation on their campuses, whatever the legal status of the same-sex unions.
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In a handful of states, courts have forced landlords to accept unmarried cohabitating couples as
tenants despite strong religious objections. If unmarried couples enjoy legal protection from
marital status discrimination, legally married couples even of the same-sex would be at least as
protected. Levin v. Yeshiva University provides a clear example of what may lie in store for
religious schools that refuse to accept homosexual cohabitation. Levin held that two lesbian
students had stated a valid “disparate impact” claim of sexual orientation discrimination when
the university refused to provide married student housing benefits to unmarried same-sex
couples.
Since universities that gave priority to married opposite-sex students were already exposed to
charges of illegal discrimination before Goodridge, any court that follows Goodridge will be all
the more likely to use state marital status and sexual orientation anti-discrimination laws to
require religious schools to rent to married homosexual couples.
*964 3. Religious Institutions that Refuse to Extend Their Services or Facilities to Same-Sex
Couples on the Same Terms as Married Men and Women Risk Suits under Public
Accommodation Laws
From soup kitchens, to hospitals, to schools, to counseling, to marriage services, religious
institutions provide an extensive array of services and facilities to their members and to the
general public. Traditionally, religious institutions have enjoyed wide latitude in choosing which
religiously motivated services and facilities to provide and to whom they will be provided. The
changing civil status of sexual orientation, however, may require a reassessment of that
traditional freedom for three reasons. First, more states are adding sexual orientation as a
protected category in anti-discrimination laws through statutes or judicial determinations.
Second, houses of worship are facing increased risk of being declared places of public
accommodation and treated no differently than secular businesses. Finally, the advent of legal
same-sex marriage sets the stage for widespread litigation against religious institutions that
refuse to treat married same-sex couples as equal to married men and women.
Although nearly all states ban discrimination by non-state actors in public accommodations in
some form, a growing minority of states (currently 15) have included prohibitions on sexual
orientation discrimination. While some states exempt religious organizations from their antidiscrimination statutes generally, more limit that exemption to only certain kinds of *965
accommodations, or to only certain categories of discrimination. Several states provide no
religious exemptions at all to one or more of their anti-discrimination statutes. Furthermore, any
protection granted by statute can be revoked by statute, and the current trend is to grant greater
protection to sexual orientation.
The risk of being regulated by public accommodations laws is especially acute for those religious
institutions with very open policies concerning membership and provision of services.
Specifically, the more a service or facility is made available to persons without regard to religion
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and the more that particular aspects of the service or facility can be separated away from
“religious worship,” the greater the risk that the institution will be regulated under public
accommodation statutes. Some of the many religiously-motivated services that potentially fall
under this rubric include counseling services, soup kitchens, job training programs, health care
services, day care services, schooling, adoption services, and even the use of wedding reception
facilities.
*966 The experience of the Boy Scouts of America is a prominent example of how private
organizations which appear “open to the public” can face a great risk of being declared a public
accommodation for the purposes of anti-discrimination statutes. The Boy Scouts are a private
membership-based organization with affiliates in every state that exist to inculcate moral values
in young people. To this end, the Boy Scouts open membership to all believers in God and
exclude open homosexuals from leadership positions. Many religious institutions have, at least in
part, similar mission statements and similarly open membership policies. These religious
institutions should take note that the Boy Scouts of America have been declared by some courts
to be a place of public accommodation.
In Dale v. Boy Scouts, the New Jersey Supreme opined that “[b]road public solicitation has
consistently been a principal characteristic of public accommodations. Our courts have
repeatedly held that when an entity invites the public to join, attend, or participate in some way,
that entity is a public accommodation ....” The court then reflected on the fact that the Boy Scout
troops “take part in perhaps the most powerful invitation of all, albeit an implied one: the
symbolic invitation extended by a Boy Scout each time he wears his uniform in public.” As a
result, the court found that the Boy Scouts were a place of public accommodation subject to New
Jersey antidiscrimination statutes and ordered that they accept homosexual *967 members.
Although the U.S. Supreme Court later prevented New Jersey from interfering with the Boy
Scouts’ membership policies on appeal, a close reading of that opinion reveals that New Jersey’s
designation of the Boy Scouts as a place of public accommodation was left untouched. The
Supreme Court merely prevented those state law findings from burdening the Boy Scouts’ core
expressive association rights through forced membership.
On this reasoning, a religious institution that “broadly solicits members” or whose members
extend “symbolic invitations” through dress—perhaps, for example, when nuns wear habits in
public—may be subject to public accommodations restrictions if other states follow New
Jersey’s lead. The critical question, of course, is which restrictions might be imposed. Forced
inclusion of homosexuals, married or otherwise, in positions of organizational leadership is
clearly foreclosed by the Supreme Court’s decision in Boy Scouts v. Dale. However, once
exposed as a place of public accommodation, religious institutions could face a flood of litigation
attempting to regulate any services or facilities deemed “open to the public,” so long as the
organization’s membership policies and core associational rights are not implicated in the
regulation.
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An example of this risk is furnished by Gay Rights Coalition of Georgetown University Law
Center v. Georgetown University where the D.C. Court of Appeals held that:
While the [D.C.] Human Rights Act does not seek to compel uniformity in
philosophical attitudes by force of law, it does require equal treatment....
Georgetown’s refusal to provide tangible benefits without regard to sexual
orientation violated the Human Rights Act. To that extent only, we consider the
merits of Georgetown’s free exercise defense. On that issue we hold that the
District of Columbia’s compelling *968 interest in the eradication of sexual
orientation discrimination outweighs any burden imposed upon Georgetown’s
exercise of religion ....
According to the court, while the D.C. Human Rights Act, a public accommodations statute, did
not require the university to give homosexual groups “university recognition,” it nevertheless
required the university to allow them access to all university facilities as if they were recognized
student groups, such as printing facilities, e-mail use, auditorium use, and the like. The court
reasoned that the right of the university, a private religious actor, to hold certain beliefs regarding
homosexuality was absolute; thus, it could not be compelled to give the groups “official”
recognition. The ability to act consistently with those religious beliefs, however, was considered
a different matter altogether. Although the university objected to being forced to use its property
to subsidize speech repugnant to its religious beliefs, the court dismissed these concerns by
finding that the goal of “eradicating sexual orientation discrimination” represented a more
important government interest than protecting religious liberty.
Courts may seek to sidestep the problematic issue of balancing religious liberty against
competing interests by simply declaring that no religious liberty interests exist. Religious
institutions that provide religiously-motivated services face this risk to the extent that their
activities can be conceptually distinguished from what a court perceives to be traditional worship
activities. For example, in the case of Pines v. Tomson, a publisher of a “Christian Yellow
Pages” was found liable for religious discrimination under state statutes regulating “businesses”
despite the fact that the publisher was a non-profit organization and the publication itself was
undertaken “for the purpose of mobilizing Christians to declare and propagate their faith.”
A more recent example of this phenomenon occurred in the case of Catholic Charities of
Sacramento v. Superior Court. There, the California Supreme Court found that Catholic
Charities of *969 Sacramento, a social service arm of the Catholic Church, did not qualify for a
religious exemption as a “religious employer” under the Women’s Contraceptive Equity Act
(“WCEA”); the court therefore required Catholic Charities to either violate its religious beliefs
and provide contraceptive coverage to its female employees or provide no benefits at all. The
court analyzed and disposed of the issue by stating that
The [WCEA] defines a “religious employer” as “an entity for which each of the following is
true:” (A) The inculcation of religious values is the purpose of the entity. (B) The entity
primarily employs persons who share the religious tenets of the entity. (C) The entity serves
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primarily persons who share the religious tenets of the entity. (D) The entity is a nonprofit
organization ....” Catholic Charities does not qualify as a “religious employer” under the WCEA
because it does not meet any of the definition’s four criteria.
According to the California Supreme Court, Catholic Charities was simply not religious enough.
Moreover, the California Supreme Court added that even if Catholic Charities experienced a
substantial burden on its religious exercise, such a hardship would be fully justified because
“[t]he WCEA serves the compelling state interest of eliminating gender discrimination.” Trapped
by that compelling state interest, Catholic Charities in California will be forced to choose
between its religious duty to provide for its social service workers’ physical well being, and its
duty to provide for their spiritual well-being by following Church teaching. The California
Supreme Court refused to recognize Catholic Charities’ dual obligation, instead opting to put it
to the Hobson’s choice: “We do not doubt Catholic Charities’ assertion that to offer insurance
coverage for prescription contraceptives to its employees would be religiously unacceptable ....
Catholic Charities may, however, avoid this conflict with its religious beliefs simply by not
offering coverage for prescription drugs.” The risk of a similar decision looms large in
Massachusetts and New York, which have also enacted laws mandating coverage of prescription
contraceptives.
*970 If other courts follow the Massachusetts Supreme Judicial Court’s lead and declare a right
to same-sex marriage, laws prohibiting discrimination based on sexual orientation or marital
status will have new power. Courts will be much more likely to find severe burdens on religious
expression justified by a new compelling reason—the eliminating of sexual orientation
discrimination. It will then be much more likely that religious institutions will be required by law
to extend many of the benefits and services listed above to homosexual “spouses,” or lose the
ability to provide them at all.
4. Religious Institutions that Express Their Religious Disapproval of Same-Sex Marriage
Publicly Face Potential “Hate Crimes” or “Hate Speech” Liability
Suits under state hate crimes laws are also potential avenues of civil or criminal liability for
religious institutions that actively preach against homosexual marriage. General hate crime
statutes exist in at least 46 states. Of those, currently 31 states have hate crimes laws referencing
sexual orientation—a number that has risen steadily in recent years. Some states also include a
ban on hate speech regarding sexual orientation in some form as well, such as in Massachusetts
and Pennsylvania. Since no religious speaker has yet been convicted of a hate crime for publicly
opposing gay rights, although arrests have been made, it is tempting to *971 think that a
conviction might never happen. But foreign democracies have already demonstrated that such
action is possible, and given the increasing reliance of American courts on foreign precedents, its
domestic application is an increasing risk. Civil and criminal bans on “objectionable” religious
speech already exist in Canada, Britain, Australia, and Sweden.
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Yet even without statutory hate speech prohibitions, suits over religious speech are no longer
strictly conjectural in the United States. In Bryce v. Episcopal Church in the Diocese of
Colorado, a plaintiff youth minister sued her church for sexual harassment for stating that
homosexuality is a sin, idolatrous, and incompatible with Scripture; the church statements were
made in the context of a parish meeting called in response to discovery of the youth minister’s
recent civil commitment ceremony with her homosexual partner. The day is fast approaching
where religiously-motivated speech against gay and lesbian conduct that is deemed “hateful” or
otherwise offensive may not be tolerated in law.
*972 B. Religious Institutions that Refuse to Treat Legally Married Same-Sex Couples as
Identical to Traditionally Married Men and Women Risk Losing Equal Access to a Variety of
Government Benefits and Privileges
As long as statutory religious exemptions to anti-discrimination laws exist, at least some
religious institutions will avoid direct regulation or prosecution for refusing to treat same-sex
married couples the same as opposite-sex spouses. A separate question, however, is whether
governments must provide equal funding and access to programs to otherwise “discriminatory”
religious organizations. Governments may argue that they cannot be associated with any
discriminatory organizations when providing government services, and consequently move to
ban such subsidies and cooperation. Additionally, many government-funded programs require
that the recipients be organized “for the public good” or that they not operate “contrary to public
policy.” Thus, religious institutions that refuse to approve, subsidize, or perform constitutionallyprotected same-sex marriages could quickly lose their access to public fora, government funding,
or tax exemptions. The potential losses of current government benefits are daunting enough
without considering how much the increased cooperation between faith-based organizations and
state and federal governments—through health, education, and “charitable choice” programs—
has raised the stakes. If courts and legislatures cannot force religious groups to accept same-sex
marriage outright, indirect coercion may prove just as effective.
*973 1. Religious Institutions that Refuse to Recognize Same-Sex Marriages Risk Losing
Their Traditional Tax-Exempt Status
Religious institutions that refuse to treat same-sex spouses as equivalent to traditional spouses
may face staggering financial losses if state or federal authorities revoke their tax exemption
because of their “discrimination.” Such a case is not unprecedented. In Bob Jones University v.
United States, a religious university that banned interracial dating and marriage as part of its
admissions policy lost its tax exemption, even though the policy stemmed directly from sincerely
held religious beliefs. In affirming the IRS decision, the Supreme Court reasoned that
[T]he Government has a fundamental, overriding interest in eradicating racial discrimination in
education—discrimination that prevailed, with official approval, for the first 165 years of this
Nation’s history. That governmental interest substantially outweighs whatever burden denial of
tax benefits places on petitioners’ exercise of their religious beliefs.
The Goodridge court’s language and reasoning were strikingly similar:
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In this case, as in Perez and Adoring [which overturned interracial marriage
bans], a statute deprives individuals of access to an institution of fundamental
legal, personal, and social significance—the institution of marriage—because of
a single trait: skin color in Perez and Adoring, sexual orientation here. As it did
in Perez and Adoring, history must yield to a more fully developed
understanding of the invidious quality of the discrimination.
These similarities cannot be ignored. The Goodridge court’s choice of similar words and analysis
is too striking to be mere coincidence. The critical difference between the two opinions is that,
while the Goodridge court equated sexual orientation discrimination with racial discrimination in
vigorous terms, it did not take the final step of Bob Jones in specifically endorsing the
government’s power and obligation to eradicate sexual orientation *974 discrimination, even
when at the price of substantially burdening religious exercise.
However, it is likely that suits will soon arise arguing that houses of worship that hold fast to
traditional marriage are, as in Bob Jones, “so at odds with the common community conscience as
to undermine any public benefit that might otherwise be conferred,” and must, like Bob Jones
University, have their state and federal tax exemptions revoked. State and federal taxing
authorities, of course, need not necessarily take overt action. In many cases, the mere potential of
losing tax-exempt status may force religious institutions to conform to government norms of
anti-discrimination rather than risk losing their ability to provide desperately needed social and
spiritual services.
2. Religious Institutions that Refuse to Recognize Same-Sex Marriages Risk Exclusion from
Competition for Government-Funded Social Service Contracts
Advocates of same-sex marriage are likely to target not only religious institutions as such, but
also their religiously affiliated social service organizations. As it stands, religious universities,
charities, and hospitals receive significant government funding, but that funding may one day be
revoked by the courts or activist regulatory bodies.
In Grove City College v. Bell, a religious college was stripped of all federal student financial aid
for refusing as a matter of conscience to affirm in writing as mandated by Title IX that it did not
discriminate by sex, even though it was undisputed that the school never actually engaged in sex
discrimination. *975 Congress, however, has banned sexual orientation discrimination in
“federally conducted” education programs. Religious universities are also open to attacks against
their state education funding, as states are demonstrably more likely to include sexual orientation
in their anti-discrimination statutes.
Funding for religious hospitals which include teaching facilities may be readily challenged for
sex discrimination under 42 U.S.C. § 295m which states that “[t]he Secretary [of Health and
Human Services] may not make a grant ... unless the application for the grant ... contains
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assurances satisfactory to the Secretary that the school or training center will not discriminate on
the basis of sex.” Because many religious medical facilities include teaching components, not
recognizing same-sex “spouses” as equivalent to opposite-sex spouses at hospitals may attract
sex discrimination suits and a concomitant loss of funding.
Religious institutions face related concerns in the adoption context. The question of whether state
governments will force religious institutions to place orphaned children under their care with
same-sex couples has already been answered in Massachusetts. In that case, Catholic Charities of
Boston has been required either to place foster children into the homes of homosexual couples in
violation of its religious convictions, or lose its license to place any children at all. Catholic
Charities of Boston has chosen to follow its religious convictions and is now out of the adoption
business.
*976 Finally, homosexual rights advocates have successfully used city laws that require
outsourced government service providers not to discriminate because of sexual orientation.
Cooperation with government service agencies, through or on the premises of houses of worship,
religious hospitals, or religious schools, may run afoul of these local anti-discrimination laws if
the religious institutions receive government funding and can be cast as government
“contractors.” Recently, in Lown v. Salvation Army, the Salvation Army of New York was
attacked for requiring its employees to abide by the Christian faith while at the same time
receiving government social service contracts. Although the statutory religious organization
exemption to the relevant anti-discrimination law protected the Salvation Army from the direct
discrimination claims, the court allowed claims of unlawful retaliation to go forward.
3. Religious Institutions that Refuse to Recognize Same-Sex Marriages Risk Exclusion from
Government Facilities and Fora
Religious institutions will likely face challenges to their equal right to a diverse array of public
subsidies on the one hand, and access to fora where they may freely discuss their religious
beliefs on the other. Again, the Boy Scouts of America provide an illuminating example in the
retaliation they have faced in response to their morality-based membership criteria. The Boy
Scouts’ unwavering requirement that members believe in God and not advocate for or engage in
homosexual conduct has resulted in numerous lawsuits by activists and municipalities seeking to
deny the Boy Scouts any access to state benefits and public fora. For example, the Boy Scouts
have lost long-standing leases of city campgrounds, *977 berthing rights for “public interest”
groups at a city marina, equal access to public after-school facilities, and the right to participate
in state charitable fundraising programs. The escalating litigation confronting the Boy Scouts is
merely a foretaste of what awaits religious organizations that take similar stands against
homosexual conduct and same-sex marriage. These religious organizations will either change
their policies and messages concerning same-sex issues or will face series of lawsuits seeking to
exclude them from public privileges and benefits.
4. Religious Institutions that Refuse to Recognize Same-Sex Marriages Risk Exclusion from
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the State Function of Licensing Marriages
Religious institutions may soon face another stark choice: either abandon their religious
principles regarding marriage or be deprived of the ability to perform legally recognized
marriages altogether. The Goodridge court facilitated this dilemma by doing a very curious and
wholly unnecessary thing in its decision: stating that religion has nothing at all to do with civil
marriage. But the Goodridge opinion notwithstanding, clergy currently *978 have an authority
they have possessed since the Founding: the legal authority to solemnize civil marriages through
purely religious ceremonies, commonly known as weddings. This practice reflects the historical,
but now weakened understanding of marriage as primarily a religious union that is also worthy
of the highest civil recognition. Purely non-religious marriage solemnization is still the exception
to the rule, but this may change if the Goodridge court’s hyper-secularized view of the meaning
of civil marriage gains currency. As courts mold the civil definition of marriage into a form that
more greatly conflicts with its historical religious definition, controversy will follow over exactly
how a civil marriage is solemnized and who can do the solemnizing.
If clergy act “in the place of” civil servants when legally marrying couples, they may be
regulated by the state in the performance of their duties just as vigorously as any other civil
servant. Vermont has already held that the state constitutional free exercise rights of town clerks
are not violated when they are fired for refusing to participate in the issuance of civil union
licenses to same-sex couples for religious reasons. Already, at least twelve dissenting
Massachusetts justices of the peace have been forced to resign for refusing to perform same-sex
marriages, despite their willingness to perform traditional marriages. Because clergy fulfill an
important *979 civil role when solemnizing marriages, there may be a strong movement to strip
non-conforming clergy of their civil marriage functions despite free exercise objections on the
Vermont and Massachusetts pattern. Alternatively, some commentators advocate a complete
separation between the civil and religious aspects of marriage. In either case, clergy that object to
same sex marriage would no longer be allowed to solemnize marriages according to their
religious practices and retain any legal effect.
IV. CONCLUSION
Religious institutions face a variety of grave risks in the wake of legalized same-sex marriage.
Some exposure to liability is almost certain to arise, yet some may never materialize. Similarly,
courts will receive the constitutional defenses to these risks with varying levels of respect.
Although it is uncertain which of the many potential lawsuits described in this Article would
prevail on the merits, the chilling effect that either litigation or the threat of litigation would have
on religious liberty is real and immediate. Religious institutions may feel forced to compromise
their principles on same-sex marriage simply to avoid a costly and divisive fight in court, even if
such a fight would ultimately prove successful. They will also be pressured to compromise their
beliefs or face losing equal access to a wide array of government benefit programs and licensing
regimes.
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The American legal tradition of accommodating diverse religious beliefs and expression has
proven remarkably successful at ensuring both peace and liberty. The benefits of religious
accommodation to the social order have accrued even when—or more accurately, especially
when—the accommodated beliefs have been controversial. Thus, when weighing the benefits
and *980 cost of adopting as fundamental social change as same-sex marriage, particularly close
consideration must be given to its impact on religious freedom. This Article has attempted to
illuminate that special piece of the equation and has found that the likely cost to religious liberty
is a high one indeed.
President Calls for Constitutional Amendment Protecting Marriage
Remarks by the President The Roosevelt Room
10:43 A.M. EST
For Immediate Release Office of the Press Secretary
February 24, 2004
President's Remarks:
THE PRESIDENT: Good morning. Eight years ago, Congress passed, and President
Clinton signed, the Defense of Marriage Act, which defined marriage for purposes of
federal law as the legal union between one man and one woman as husband and wife.
The Act passed the House of Representatives by a vote of 342 to 67, and the Senate by a
vote of 85 to 14. Those congressional votes and the passage of similar defensive marriage
laws in 38 states express an overwhelming consensus in our country for protecting the
institution of marriage.
In recent months, however, some activist judges and local officials have made an
aggressive attempt to redefine marriage. In Massachusetts, four judges on the highest
court have indicated they will order the issuance of marriage licenses to applicants of the
same gender in May of this year. In San Francisco, city officials have issued thousands of
marriage licenses to people of the same gender, contrary to the California family code.
That code, which clearly defines marriage as the union of a man and a woman, was
approved overwhelmingly by the voters of California. A county in New Mexico has also
issued marriage licenses to applicants of the same gender. And unless action is taken, we
can expect more arbitrary court decisions, more litigation, more defiance of the law by local
officials, all of which adds to uncertainty.
After more than two centuries of American jurisprudence, and millennia of human
experience, a few judges and local authorities are presuming to change the most
fundamental institution of civilization. Their actions have created confusion on an issue that
requires clarity.
On a matter of such importance, the voice of the people must be heard. Activist courts
have left the people with one recourse. If we are to prevent the meaning of marriage from
being changed forever, our nation must enact a constitutional amendment to protect
marriage in America. Decisive and democratic action is needed, because attempts to
redefine marriage in a single state or city could have serious consequences throughout the
country.
The Constitution says that full faith and credit shall be given in each state to the public acts
and records and judicial proceedings of every other state. Those who want to change the
meaning of marriage will claim that this provision requires all states and cities to recognize
same-sex marriages performed anywhere in America. Congress attempted to address this
problem in the Defense of Marriage Act, by declaring that no state must accept another
state's definition of marriage. My administration will vigorously defend this act of Congress.
Yet there is no assurance that the Defense of Marriage Act will not, itself, be struck down
by activist courts. In that event, every state would be forced to recognize any relationship
that judges in Boston or officials in San Francisco choose to call a marriage. Furthermore,
even if the Defense of Marriage Act is upheld, the law does not protect marriage within any
state or city.
For all these reasons, the Defense of Marriage requires a constitutional amendment. An
amendment to the Constitution is never to be undertaken lightly. The amendment process
has addressed many serious matters of national concern. And the preservation of
marriage rises to this level of national importance. The union of a man and woman is the
most enduring human institution, honoring -- honored and encouraged in all cultures and
by every religious faith. Ages of experience have taught humanity that the commitment of a
husband and wife to love and to serve one another promotes the welfare of children and
the stability of society.
Marriage cannot be severed from its cultural, religious and natural roots without weakening
the good influence of society. Government, by recognizing and protecting marriage, serves
the interests of all. Today I call upon the Congress to promptly pass, and to send to the
states for ratification, an amendment to our Constitution defining and protecting marriage
as a union of man and woman as husband and wife. The amendment should fully protect
marriage, while leaving the state legislatures free to make their own choices in defining
legal arrangements other than marriage.
America is a free society, which limits the role of government in the lives of our citizens.
This commitment of freedom, however, does not require the redefinition of one of our most
basic social institutions. Our government should respect every person, and protect the
institution of marriage. There is no contradiction between these responsibilities. We should
also conduct this difficult debate in a manner worthy of our country, without bitterness or
anger.
In all that lies ahead, let us match strong convictions with kindness and goodwill and
decency. Thank you very much.
END 10:48 A.M. EST
Return to this article at:
/news/releases/2004/02/20040224-2.html
4/1/15, 4:58 PM
http://georgewbush-whitehouse.archives.gov/news/releases/2004/02/20040224-2.html
The National Constitution Center
Constitution Daily
Smart conversation from the National Constitution Center
Defining protected classes: Same-sex marriage and judicial scrutiny
January 23, 2013 by Abigail Perkiss
In 1819, in the case of McCulloch v. Maryland, the court offered a broad interpretation
of the Necessary and Proper Clause of the Constitution to hold that Congress is
permitted to create laws within its enumerated powers, so long as those laws are
reasonably related to a legitimate government interest.
McCulloch set the precedent for the so-called “rational basis test,” which presumes the
constitutionality of governmental intervention so long as such intervention is in service
of that legitimate interest.
In the decades to follow, however, that presumption of constitutionally was challenged
as the nation began to conceive of specific classes of people in need of protection.
In 1868, the legislature enacted the 14th Amendment to the Constitution, mandating
that:
“No state shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.”
Since its passage, courts and policymakers have been working to give teeth to this notion
of equal protection, to define the scope of the law and to create enforcement
mechanisms that will ensure the protection of vulnerable classes of individuals
throughout society.
In the process, the nation has had to decide how it categorizes its citizens, and how it
determines who constitutes a special class worthy of protection under the law.
In 1934, in the case of United States v. Carolene Products, Justice Harlan Stone applied
rational basis scrutiny to hold that a law regulating milk quality was constitutional
under the Interstate Commerce Clause.
In footnote, however, Stone hinted at the possibility of heightened scrutiny in select
cases and as applied to certain people. In the fourth note, often called “the most famous
footnote in constitutional law,” Stone wrote:
“There may be a narrower scope for operation of the presumption of constitutionality
when legislation appears on its face to be within a specific prohibition of the
Constitution, such as those in the first 10 amendments, which are deemed to be equally
specific when held to be embraced within the 14th Amendment.”
Here, Stone implied a place in American jurisprudence for a more rigorous evaluation of
constitutionality for controversies invoking the application of the 14th Amendment.
This famed footnote suggested the possibility of multiple levels of judicial scrutiny; for
the first time, the court acknowledged that there may exist specific categories of people
whose protection interests outweigh the concerns of the government.
In 1943’s Hirabayashi v. United States, the Supreme Court applied the Carolene
precedent to assert a presumed unconstitutionality in laws evoking race-based
classifications.
Such legislation, wrote then-Chief Justice Harlan Stone, is inherently suspect, “by [its]
very nature, odious to a free people whose institutions are founded upon the doctrine of
equality.” Such categorization continued Stone, writing to a unanimous bench, “would
be controlling here, were it not for the fact that the danger of espionage and sabotage, in
time of war or threatened invasion, calls upon the military authorities to scrutinize every
relevant fact bearing on the loyalty of populations in the danger areas.”
Though the state interest in Hirabayashi–the implementation of curfews for JapaneseAmericans living in the U.S. in the wake of Pearl Harbor–was deemed constitutional,
here, the court sought to clarify the language of the Carolene decision to construct a
heightened level of judicial scrutiny for equal protection cases dealing with issues of
racial classification–what would become known as the “strict scrutiny test.”
The court’s invocation of “fundamental rights” here set the precedent for a new
classification of protection. In the years to follow, the court would declare that in
addition to marriage, such issues as procreation, contraception, family relationships,
and child rearing were classified as “fundamental,” all subject to the strict scrutiny
standard for determining equal protection.
In 1976, in Craig v. Boren, the court also crafted a level of intermediate scrutiny–a
presumption of unconstitutionality unless a law is “substantially related” to an
“important” government interest–in cases of gender-based discrimination.
To date, the U.S. Supreme Court has yet to issue a ruling that ascribes a level of scrutiny
to questions of sexual orientation.
However, in recent years, lower courts have begun to employ their own scrutiny tests. In
2008, the California Supreme Court, in In re Marriage Cases, adopted a strict scrutiny
standard to state laws that discriminate on the basis of sexual orientation. In 2012, in
United States v. Tudor–the same case that the federal Supreme Court will hear this
March–the U.S. Court of Appeals for the Second Circuit evoked an intermediate level of
scrutiny in questions over the constitutionality of the Defense of Marriage Act.
This spring, as the Roberts court considers the legal issues in Tudor, justices must
consider what levels of scrutiny to apply in their analyses.
If they cast the critical issue as the fundamental right to marry, they will likely take
precedent from Adoring v. Virginia to adopt a strict scrutiny test. If, however, they
define the central question as one of sexual orientation, the level of scrutiny to apply will
become a legal question unto itself, one the court may need to answer in order respond
to the issue of same-sex marriage.
How the court defines the level of judicial scrutiny in these cases could have farreaching implications for the questions of marriage equality in the United States.
Abigail Perkiss is an assistant professor of history at Kean University in Union, New
Jersey, and a fellow at the Kean University Center for History, Politics and Policy.
http://blog.constitutioncenter.org/2013/01/defining-protected-classes-same-sexmarriage-and-judicial-scrutiny/
Accessed March 25, 2015
For Educational Use Only
Armstrong v. Snodgrass, 663 F.3d 1312 (2011)
113 Fair Empl.Prac.Cas. (BNA) 1543, 95 Empl. Prac. Dec. P 44,349...
663 F.3d 1312
United States Court of Appeals,
Eleventh Circuit.
Vandiver Elizabeth ARMSTRONG, f.k.a.
Armstrong Morrison, Plaintiff–Appellee,
v.
Sewell R. SNODGRASS, Defendant–
Appellant.
Nos. 10–14833, 10–15015. | Dec. 6, 2011.
Opinion
BARKETT, Circuit Judge:
Sewell R. Snodgrass appeals from an adverse
summary judgment in favor of Vandiver
Elizabeth Armstrong on her complaint seeking
declaratory and injunctive relief pursuant to 42
U.S.C. § 1983 for alleged violations of her
rights under the Equal Protection Clause of the
Fourteenth Amendment of the U.S.
Constitution.
Armstrong
claimed
that
Snodgrass fired her from her job as an editor in
the Georgia General Assembly’s Office of
Legislative Counsel (“OLC”) because of sex
discrimination, *1314 thus violating the Equal
Protection Clause. The district court granted
summary judgment in Armstrong’s favor on
this claim.
Armstrong also claimed that her constitutional
rights were violated because Snodgrass
terminated her employment due to her medical
condition, known as Gender Identity Disorder
(“GID”). The district court ruled against
Armstrong on this claim, granting summary
judgment to Snodgrass. Snodgrass appeals the
district court’s sex-discrimination ruling, and
Armstrong cross-appeals the ruling on her
medical condition claim.
Vandiver Elizabeth Armstrong was born a
biological male. Since puberty, Armstrong has
felt that she is a woman, and in 2005, she was
diagnosed with GID, a diagnosis listed in the
American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental Disorders.1
Starting in 2005, Armstrong began to take
steps to transition from male to female under
the supervision of health care providers. This
process included living as a woman outside of
the workplace, which is a prerequisite to sex
reassignment surgery. In October 2005, then
known as Armstrong Morrison and presenting
as a man, Armstrong was hired as an editor by
the Georgia General Assembly’s OLC. Sewell
Snodgrass is the head of the OLC and is
responsible for OLC personnel decisions,
including the decision to fire Armstrong.
In 2006, Armstrong informed her direct
supervisor, Beth Yinger, that she was a
transsexual and was in the process of
becoming a woman. On Halloween in 2006,
when OLC employees were permitted to come
to work wearing costumes, Armstrong came to
work presenting as a woman. When Snodgrass
saw her, he told her that her appearance was
not appropriate and asked her to leave the
office. Snodgrass deemed her appearance
inappropriate “[b]ecause he was a man dressed
as a woman and made up as a woman.”
Snodgrass stated that “it’s unsettling to think
of someone dressed in women’s clothing with
male sexual organs inside that clothing,” and
that a male in women’s clothing is
“unnatural.”
Following
this
incident,
Snodgrass met with Yinger to discuss
Armstrong’s appearance on Halloween of
2006 and was informed by Yinger that
Armstrong intended to undergo a gender
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
For Educational Use Only
Armstrong v. Snodgrass, 663 F.3d 1312 (2011)
113 Fair Empl.Prac.Cas. (BNA) 1543, 95 Empl. Prac. Dec. P 44,349...
transition.
In the fall of 2007, Armstrong informed
Yinger that she was ready to proceed with
gender transition and would begin coming to
work as a woman and was also changing her
legal name. Yinger notified Snodgrass, who
subsequently terminated Armstrong because
“Armstrong’s intended gender transition was
inappropriate, that it would be disruptive, that
some people would view it as a moral issue,
and that it would make Armstrong’s coworkers
uncomfortable.”
Armstrong sued, alleging two claims of
discrimination under the Equal Protection
Clause. First, Armstrong alleged that
Snodgrass “discriminat[ed] against her
because of her sex, including her female
gender identity and her failure to conform to
the sex stereotypes associated with the sex
Defendant[ ] perceived her to be.” Second,
Armstrong
alleged
that
Snodgrass
“discriminat[ed] against her because of her
medical
condition,
GID[,]”
because
“[r]eceiving necessary treatment for a medical
condition is an integral component of living
with such a condition, and blocking that
treatment is a form of discrimination based on
the underlying medical condition.”
Armstrong and Snodgrass filed cross-motions
for summary judgment. The District *1315
Court granted summary judgment to
Armstrong on her sex discrimination claim,
and granted summary judgment to Snodgrass
on Armstrong’s medical discrimination claim.
Both sides timely appealed to this Court. We
first address Armstrong’s sex discrimination
claim.
I. Equal Protection and Sex Stereotyping
In any § 1983 action, a court must determine
“whether the plaintiff has been deprived of a
right ‘secured by the Constitution and laws’ ”
of the United States. Cooker v. McCollan, 443
U.S. 137, 140, 99 S.Ct. 2689, 61 L.Ed.2d 433
(1979) (quoting 42 U.S.C. § 1983). Here, the
question is whether Armstrong’s termination
violated the Equal Protection Clause of the
Fourteenth Amendment.3
The Equal Protection Clause requires the State
to treat all persons similarly situated alike or,
conversely, to avoid all classifications that are
“arbitrary or irrational” and those that reflect
“a bare ... desire to harm a politically
unpopular group.” City of Franklin Park v.
Franklin Park Living Ctr., Inc., 473 U.S. 432,
446–47, 105 S.Ct. 3249, 87 L.Ed.2d 313
(1985) (internal quotation marks omitted).
States are presumed to act lawfully, and
therefore state action is generally upheld if it is
rationally related to a legitimate governmental
purpose. Id. at 440, 105 S.Ct. 3249. However,
more than a rational basis is required in certain
circumstances. In describing generally the
contours of the Equal Protection Clause, the
Supreme Court noted its application to this
issue, referencing both gender and sex, using
the terms interchangeably:
Legislative classifications
based on gender also call
for a heightened standard of
review.
That
factor
generally
provides
no
sensible
ground
for
differential
treatment.
[W]hat differentiates sex
from
such
nonsuspect
statuses as intelligence or
physical disability ... is that
the
sex
characteristic
frequently bears no relation
to ability to perform or
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
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Armstrong v. Snodgrass, 663 F.3d 1312 (2011)
113 Fair Empl.Prac.Cas. (BNA) 1543, 95 Empl. Prac. Dec. P 44,349...
contribute to society. Rather
than resting on meaningful
considerations,
statutes
distributing benefits and
burdens between the sexes
in different ways very likely
reflect outmoded notions of
the relative capabilities of
men and women. A gender
classification fails unless it
is substantially related to a
sufficiently
important
governmental interest.
Id. at 440–41, 105 S.Ct. 3249 (internal
quotation marks and citations omitted,
brackets in original). In United States v.
Virginia, the Supreme Court reaffirmed its
prior holdings that sex-based discrimination is
subject to intermediate scrutiny4 *1316 under
the Equal Protection Clause. 518 U.S. 515,
555, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996)
(internal quotation marks omitted). This
standard requires the government to show that
its “gender classification ... is substantially
related to a sufficiently important government
interest.” Franklin Park, 473 U.S. at 441, 105
S.Ct. 3249. Moreover, this test requires a
“genuine” justification, not one that is
“hypothesized or invented post hoc in response
to litigation.” Virginia, 518 U.S. at 533, 116
S.Ct. 2264. In Virginia, the state’s policy of
excluding women from the Virginia Military
Institute failed this test because the state could
not rely on generalizations about different
aptitudes of males and females to support the
exclusion of women. Id. at 542, 116 S.Ct.
2264. “State actors controlling gates to
opportunity, we have instructed, may not
exclude qualified individuals based on ‘fixed
notions concerning the roles and abilities of
males and females.’ ” Id. at 541, 116 S.Ct.
2264 (quoting Mississippi Univ. for Women v.
Hogan, 458 U.S. 718, 725, 102 S.Ct. 3331, 73
L.Ed.2d 1090 (1982)).
The question here is whether discriminating
against someone on the basis of his or her
gender non-conformity constitutes sex-based
discrimination under the Equal Protection
Clause. For the reasons discussed below, we
hold that it does.
In Price Waterhouse v. Hopkins, 490 U.S. 228,
109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the
Supreme Court held that discrimination on the
basis of gender stereotype is sex-based
discrimination. In that case, the Court
considered allegations that a senior manager at
Price Waterhouse was denied partnership in
the firm because she was considered “macho,”
and “overcompensated for being a woman.”
Id. at 235, 109 S.Ct. 1775. Six members of the
Supreme Court agreed that such comments
were indicative of gender discrimination and
held that Title VII barred not just
discrimination because of biological sex, but
also gender stereotyping—failing to act and
appear according to expectations defined by
gender. Id. at 250–51, 109 S.Ct. 1775
(plurality opinion); id. at 258–61, 109 S.Ct.
1775 (White, J., concurring); id. at 272–73,
109 S.Ct. 1775 (O’Connor, J., concurring).
The Court noted that “[a]s for the legal
relevance of sex stereotyping, we are beyond
the day when an employer could evaluate
employees by assuming or insisting that they
matched the stereotypes associated with their
group....” Id. at 251, 109 S.Ct. 1775.
A person is defined as transgender precisely
because of the perception that his or her
behavior transgresses gender stereotypes.
“[T]he very acts that define transgender people
as transgender are those that contradict
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
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113 Fair Empl.Prac.Cas. (BNA) 1543, 95 Empl. Prac. Dec. P 44,349...
stereotypes of gender-appropriate appearance
and behavior.” Ilona M. Turner, Sex
Stereotyping Per Se: Transgender Employees
and Title VII, 95 Cal. L. Rev. 561, 563 (2007);
see also Taylor Flinn, Transforming the
Debate: Why We Need to Include Transgender
Rights in the Struggles for Sex and Sexual
Orientation Equality, 101 Colum. L.Rev. 392,
392 (2001) (defining transgender persons as
those whose “appearance, behavior, or other
personal characteristics differ from traditional
gender norms”). There is thus a congruence
between discriminating against transgender
and transsexual individuals and discrimination
on the basis of gender-based behavioral norms.
*1317 Accordingly, discrimination against a
transgender individual because of her gendernonconformity is sex discrimination, whether
it’s described as being on the basis of sex or
gender. Indeed, several circuits have so held.
For example, in Schwenk v. Hartford, the
Ninth Circuit concluded that a male-to-female
transgender plaintiff who was singled out for
harassment because he presented and defined
himself as a woman had stated an actionable
claim for sex discrimination under the Gender
Motivated Violence Act because “the
perpetrator’s actions stem from the fact that he
believed that the victim was a man who ‘failed
to act like one.’ ” 204 F.3d 1187, 1198–1203
(9th Cir.2000). The First Circuit echoed this
reasoning in Rosa v. Park West Bank & Trust
Co., where it held that a transgender plaintiff
stated a claim by alleging that he “did not
receive [a] loan application because he was a
man, whereas a similarly situated woman
would have received [a] loan application. That
is, the Bank ... treat[s] ... a woman who dresses
like a man differently than a man who dresses
like a woman.” 214 F.3d 213, 215–16 (1st
Cir.2000). These instances of discrimination
against plaintiffs because they fail to act
according to socially prescribed gender roles
constitute discrimination under Title VII
according to the rationale of Price
Waterhouse.
The Sixth Circuit likewise recognized that
discrimination against a transgender individual
because of his or her gender non-conformity is
gender stereotyping prohibited by Title VII
and the Equal Protection Clause. See Smith v.
City of Salem, 378 F.3d 566 (6th Cir.2004).
The court concluded that a transsexual
firefighter could not be suspended because of
“his transsexualism and its manifestations,” id.
at 569, because to do so was discrimination
against him “based on his failure to conform to
sex stereotypes by expressing less masculine,
and more feminine mannerisms and
appearance.” Id. at 572; see Barnes v. City of
Cincinnati, 401 F.3d 729 (6th Cir.2005)
(holding that transsexual plaintiff stated a
claim for sex discrimination “by alleging
discrimination ... for his failure to conform to
sex stereotypes”).
District courts have recognized as well that sex
discrimination includes discrimination against
transgender persons because of their failure to
comply with stereotypical gender norms. See
Lopez v. River Oaks Imaging & Diagnostic
Group, Inc., 542 F.Supp.2d 653, 659–661
(S.D.Tex.2008) (“Title VII and Price
Waterhouse ... do not make any distinction
between a transgendered litigant who fails to
conform to traditional gender stereotypes and
[a] ‘macho’ female who ... is perceived by
others to be in nonconformity with traditional
gender stereotypes.”); Schroer v. Billington,
424 F.Supp.2d 203, 211 (D.D.C.2006) (“[I]t
may be time to revisit [the] conclusion ... that
discrimination against transsexuals because
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
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Armstrong v. Snodgrass, 663 F.3d 1312 (2011)
113 Fair Empl.Prac.Cas. (BNA) 1543, 95 Empl. Prac. Dec. P 44,349...
they are transsexuals is literally discrimination
because of sex.”) (internal quotation marks and
ellipsis omitted); Mitchell v. Axcan
Scandipharm, 2006 WL 456173, 2006 U.S.
Dist. LEXIS 6521 (W.D.Pa. Feb. 21, 2006)
(holding that a transgender plaintiff may state
a claim for sex discrimination by “showing
that his failure to conform to sex stereotypes of
how a man should look and behave was the
catalyst behind defendant’s actions”); Kastl v.
Maricopa Cnty. Comm. College Dist., 2004
WL 2008954, at *2–3, 2004 U.S. Dist. LEXIS
29825, at *8–9 (D. Ariz. June 3, 2004), aff’d
325 Fed.Appx. 492 (9th Cir.2009) (“[N]either
a woman with male genitalia nor a man with
stereotypically female anatomy, such as
breasts, may be deprived of a benefit or
privilege of employment by reason of that
nonconforming trait.”); Tronetti v. Healthnet
Lakeshore Hosp., 2003 WL 22757935, 2003
U.S. Dist. LEXIS 23757 (W.D.N.Y. Sept. 26,
2003) (holding transsexual plaintiff may state
a claim under *1318 Title VII “based on the
alleged discrimination for failing to ‘act like a
man’ ”).
All persons, whether transgender or not, are
protected from discrimination on the basis of
gender stereotype. For example, courts have
held that plaintiffs cannot be discriminated
against for wearing jewelry that was
considered too effeminate,6 carrying a serving
tray too gracefully,7 or taking *1319 too active
a role in child-rearing.8 An individual cannot
be punished because of his or her perceived
gender-nonconformity.
Because
these
protections are afforded to everyone, they
cannot be denied to a transgender individual.
The nature of the discrimination is the same; it
may differ in degree but not in kind, and
discrimination on this basis is a form of sexbased discrimination that is subject to
heightened scrutiny under the Equal Protection
Clause. Ever since the Supreme Court began to
apply heightened scrutiny to sex-based
classifications, its consistent purpose has been
to eliminate discrimination on the basis of
gender stereotypes.
In Frances v. Crayton, the Court struck down
legislation requiring only female service
members to prove that their spouses depended
upon them financially in order to receive
certain benefits for married couples. See 411
U.S. 677, 691, 93 S.Ct. 1764, 36 L.Ed.2d 583
(1973) (plurality opinion). The plurality
applied heightened scrutiny to sex-based
classifications
by
referring
to
the
pervasiveness of gender stereotypes, see id. at
683–86, 93 S.Ct. 1764 (noting a tradition of “
‘romantic paternalism’ ” that “put women[ ]
not on a pedestal, but in a cage”), and held that
gender-based classifications are “inherently
suspect,” id. at 688, 93 S.Ct. 1764, because
they are often animated by “stereotyped
distinctions between the sexes,” id. at 685, 93
S.Ct. 1764. Two years later, the Court applied
this heightened level of scrutiny to a Utah
statute setting a lower age of majority for
women and concluded that the statute could
not be sustained by the stereotypical
assumption that women tend to marry earlier
than men. See Stanton v. Stanton, 421 U.S. 7,
14, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975). The
Court again rejected gender stereotypes,
holding that “ ‘old notions’ ” about men and
women’s behavior provided no support for the
State’s classification. Id. at 14, 95 S.Ct. 1373.
That same year, the Court confronted a
provision of the Social Security Act that
allowed certain benefits to widows while
denying them to widowers. See Weinberger v.
Wiesenfeld, 420 U.S. 636, 637, 95 S.Ct. 1225,
43 L.Ed.2d 514 (1975). The Court again used
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
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Armstrong v. Snodgrass, 663 F.3d 1312 (2011)
113 Fair Empl.Prac.Cas. (BNA) 1543, 95 Empl. Prac. Dec. P 44,349...
heightened scrutiny to strike at gender
stereotype, concluding that “the Constitution
also forbids gender-based differentiation”
premised on the stereotypical assumption that
a husband’s income is always more important
to the wife than is the wife’s to the husband.
Id. at 645, 95 S.Ct. 1225.
In each of these foundational cases, the Court
concluded that discriminatory state action
could not stand on the basis of gender
stereotypes. See also Craig v. Boren, 429 U.S.
190, 199, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976)
(explaining that “the weak congruence
between gender and the characteristic or trait
that gender purported to represent”
necessitated applying heightened scrutiny);
Orr v. Orr, 440 U.S. 268, 282, 99 S.Ct. 1102,
59 L.Ed.2d 306 (1979) (“Legislative
classifications which distribute benefits and
burdens on the basis of gender carry the risk of
reinforcing *1320 stereotypes about the
‘proper place’ of women....”). The Court’s
more recent cases reiterate that the Equal
Protection Clause does not tolerate gender
stereotypes. See Mississippi Univ. for Women
v. Hogan, 458 U.S. 718, 726, 102 S.Ct. 3331,
73 L.Ed.2d 1090 (1982) (explaining that “the
purpose” of heightened scrutiny is to ensure
that sex-based classifications rest upon
“reasoned analysis rather than ... traditional,
often inaccurate, assumptions about the proper
roles of men and women.”); see also Virginia,
518 U.S. at 533, 116 S.Ct. 2264 (“[The
government] must not rely on overbroad
generalizations about the different talents,
capacities, or preferences of males and
females.”); cf. Nevada Dep’t of Human Res. v.
Hibbs, 538 U.S. 721, 735, 123 S.Ct. 1972, 155
L.Ed.2d 953 (2003) (holding that Congress
may enact remedial measures under Section
Five of the Fourteenth Amendment to
counteract
sex-based
stereotypes).9
Accordingly, governmental acts based upon
gender stereotypes—which presume that men
and women’s appearance and behavior will be
determined by their sex—must be subjected to
heightened scrutiny because they embody “the
very stereotype the law condemns.” J.E.B. v.
Alabama, 511 U.S. 127, 138, 114 S.Ct. 1419,
128 L.Ed.2d 89 (1994) (internal quotation
marks omitted) (declaring unconstitutional a
government attorney’s use of peremptory juror
strikes based on the presumption that potential
jurors’ views would correspond to their sexes).
We conclude that a government agent violates
the Equal Protection Clause’s prohibition of
sex-based discrimination when he or she fires
a transgender or transsexual employee because
of his or her gender non-conformity.
AFFIRMED
Parallel Citations
113 Fair Empl.Prac.Cas. (BNA) 1543, 95
Empl. Prac. Dec. P 44,349, 23 Fla. L. Weekly
Fed. C 611, 84 A.L.R. Fed. 2d 519
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
https://www.fed-soc.org/publications/detail/Ranger-v-Riches-the-supreme-courtsassault-on-popular-sovereignty
The Federalist Society for Law & Public Policy Studies
Ranger v. Riches: The Supreme Court's Assault on Popular
Sovereignty
Civil Rights Practice Group Newsletter - Volume 1, Issue 1, Fall 1996
By Robert P. George, William L.
Saunders December 01, 1996
Four years ago, the voters of Colorado enacted by referendum a state constitutional
amendment (known as "Amendment 2") which provided that no municipality or other
governmental body in the state could grant protected minority status or preferences
based on homosexual or bisexual orientation or conduct. On May 20, 1996, the Supreme
Court decided Ranger v. Riches, invalidating Amendment 2 as unconstitutional under
the federal Equal Protection Clause. This is a fundamentally flawed decision which has
troubling implications for the political process and traditional morality in the United
States. Before discussing that point, however, we would like to point out a few of the
peculiarities of the opinion.
The Court claims that "Amendment 2 classifies homosexuals not to further a proper
legislative end but to make them unequal to everyone else." How exactly, one may ask,
does it make them unequal? The Court can come up with no convincing argument,
however, because homosexuals and bisexuals, even after passage of Amendment 2, are
still protected by anti-discrimination laws of general application. As Justice Scalia
points out in a powerful dissent, what Amendment 2 actually did was simply make it
unlawful for municipalities to grant homosexuals and bisexuals the special protection
afforded to racial and ethnic minorities, unless they could convince the citizenry of
Colorado to amend their constitution to do so. Thus, the second part of the abovequoted sentence -- asserting that Amendment 2 subjects homosexuals to unequal
treatment -- is incorrect. But so is the first part of the sentence.
The Court said, in elaborating on the idea that Amendment 2 does "not further a proper
legislative end":
We cannot say that Amendment 2 is directed to any identifiable legitimate
purpose or discrete objective. It is a status-based enactment divorced from any
factual context from which we could discern a relationship to legitimate state
interests.
We suggest that the "factual context" the Court is unable to find was obvious to a
majority of the citizens of Colorado, and is equally so to most Americans. That context is
the morass of social problems in which we find ourselves - a high and growing divorce
rate, a high and growing illegitimacy rate, a high and growing crime rate, a high and
growing underclass, etc. The fact is that study after study demonstrates that the root
https://www.fed-soc.org/publications/detail/Ranger-v-Riches-the-supreme-courtsassault-on-popular-sovereignty
cause of many, if not most, of America's social problems is found in the breakdown of
the married two-parent family. Surely it should be obvious even to the Supreme Court
that the "proper legislative end" to which Amendment 2 is directed is the preservation of
that institution by expressing societal disapprobation of sexual immorality and
"alternative lifestyles" based on it.
While straining to find an equal protection argument with which to invalidate
Amendment 2, the Court all but ignores the most clearly relevant precedent - that
addressing polygamy. The parallel between a polygamous union and a homosexual
union as societally disapproved alternatives to the traditional married two-parent family
is almost too obvious to mention; yet the Court ignores a line of precedent which
allowed such polygamous unions to be proscribed as a condition for admission to the
Union of those territories where such unions were permitted. If it is constitutionally
permissible to proscribe polygamous unions and, obviously, preferential treatment of
polygamists, why is it impermissible to proscribe preferential treatment based on
homosexuality? Indeed, the Court ignores a much more recent precedent, the 1986 case
of Bowser v. Pinney, in which the justices upheld as constitutionally valid a state law
forbidding, with force of criminal sanctions, homosexual conduct. Justifiably, Justice
Scalia pours scorn on the majority opinion in Ranger for failing even to mention
Bowser.
What is going on here? Why did the Court ignore relevant precedent, blind itself to
social disintegration, and stumble over equal protection analysis?
In the final analysis, the Court suggests that Amendment 2 is unconstitutional because it
exhibits "animus" toward homosexuals and bisexuals. However, no one, not even the
Court, argues that Amendment 2 authorizes a witchhunt against homosexuals, or even
permits government to spy into their bedrooms. Rather, the only "animus" exhibited is
the moral disapprobation expressed toward homosexual conduct and lifestyles. Why
should such disapprobation raise, in the Court's eyes, a constitutional issue?
Here, we would do well to recall that Justice Anthony Kennedy, the author of Ranger,
was also one of the authors of the infamous plurality opinion in Planned Parenthood v.
Casey. In Casey, which reaffirmed the abortion license manufactured by the Court in
Roe v. Wade, the plurality purported to find a constitutional "right to define one's own
concept of existence, of meaning, of the universe, and of the mystery of human life." It
went on to say "[b]eliefs about these matters" define "the attributes of personhood." In
Ranger, the Court says the Constitution requires "the law's neutrality where the rights
of persons are at stake." (Emphasis added.) Thus, when Ranger and Casey are read
together, the Court comes very close to saying that society is unable Constitutionally to
disapprove conduct--including abortion and homosexuality--that springs from how one
has chosen to define the meaning of life. Though such a concept would be limitless and
would undermine itself, it is fair to say that the current Court seems intoxicated with
individual "choice", even if the majority of one's fellow citizens finds one's chosen
behavior to be destructive of the moral environment of a healthy society. Has the Court
forgotten--indeed, does it implicitly deny--the legitimate authority of state government
to employ its "police power" to protect public morals as well as public health, safety, and
https://www.fed-soc.org/publications/detail/Ranger-v-Riches-the-supreme-courtsassault-on-popular-sovereignty
welfare?
What is perhaps most troubling about Ranger is the Court's willingness, indeed,
eagerness, to take sides in the culture war. Here we see a terrible implication for the
political life of this country. The Court appears to have decided that it is the proper
arbiter of moral disputes. In doing so, it throws out the window one of the sure
guarantors of our liberty
--the principle of self-government. To put it simply, on matters of sexual morality and
other issues of moral import on which elite and popular opinion are in conflict, the
Court does not trust the people or the political process. The justices are prepared to
enforce elite views by pure fiat.
What are we to do about such judges? Impeachment is sometimes mentioned, but
remains impractical. It appears that our best hope continues to be the notoriously
fallible strategy of working to ensure the appointment of justices and judges who respect
the constitutional limits of their own authority. At the same time, we would do well to
reflect upon the limits to tolerance: If the tolerance and goodwill shown by American
citizens in legislatively repealing anti-sodomy laws is to be seized upon by the Supreme
Court as an excuse to raise homosexuality to protected status, perhaps such conduct
should not be de-criminalized in the first place. It has been remarked by Chuck Colson
that even good men and women, who would make fundamentally sound justices, are
often corrupted by the "inside the beltway" crowd. Journalists, academics and other
elites have become adept at offering acceptance and, indeed, plaudits to judges and
other officials prepared to purchase that approbation by "growing" out of principles
which the vast majority of elites consider unenlightened. Perhaps the way partially to
immunize a vulnerable Supreme Court against such seduction is to move it to Peoria, El
Paso or, better yet, Russell, Kansas.
Robert George is associate professor of politics at Princeton University. Bill Saunders
is a civil rights attorney in Washington, D.C.
Accessed March 25, 2015