IN THE
SUPREME COURT of the UNITED STATES
APRIL TERM, 2000
__________
No. PS461G-001
__________
TERRY SMITH,
Petitioner,
V.
COMMONWEALTH OF KENTUCKY,
Respondent.
__________
On Writ of Certiorari to the
United States Court of Appeals
For the Sixth Circuit
__________
BRIEF FOR RESPONDENT
__________
Anonymous Civil Liberties Student,
Counsel for Respondent
TABLE OF CONTENTS
TABLE OF CONTENTS
………………………………………………………………… 1
TABLE OF AUTHORITIES………………………………………………………………. 2
QUESTION PRESENTED ………………………………………………………………… 5
STATEMENT OF THE CASE ………………………………………………… … … … . 5
SUMMARY OF ARGUMENT …………………………………………………………… 6
ARGUMENT ……………………………………………………………………………… 7
I.
II.
SECTION 402.020 IS CONSTITUTIONAL BECAUSE IT DOES
NOT ABRIDGE FUNDAMENTAL CONSTITUTIONAL PROTECTIONS DEFINED
BY THE SUPREME COURT……………………………………………………. 7
A.
Homosexuals do not Constitute a Suspect Class and are not Entitled to
Heightened Security Under the Equal Protection Clause of the Fourteenth
Amendment ……………………………………………………………… 7
B.
The Commonwealth of Kentucky has a Legitimate Governmental Interest
in Preventing Homosexual Marriage…………………………………… 9
C.
The Statute does not Violate Homosexuals' Right to Privacy……… 12
AS STATUTORILY DEFINED IN KENTUCKY, HOMOSEXUAL MARRIAGE,
AND ITS INCLUDED COMPONENTS, WOULD NOT BE PROTECTED UNDER
A FUNDAMENTAL RIGHTS ANALYSIS ………… … … … … … … … .…… 13
A.
Homosexual Conduct does not Constitute a Fundamental Right ……. 13
B.
In Order for Homosexual Marriages to be Consummated, the Parties
Would be Required to Engage in Sodomy, Which is not a Protected
Right…………………………………………………………………………14
The Commonwealth of Kentucky's Right to Deny Marriage Licenses to
Homosexual Couples is Statutorily Defined . ..………………………. 15
C.
III.
PETITIONER NEED NOT BE GRANTED A MARRIAGE LICENSE IN ORDER
TO COMPLY WITH FEDERAL CONSTITUTIONAL LAW ……… … … … … …17
CONCLUSION …………………………………………………………………… …. ……. 18
1
TABLE OF AUTHORITIES
Cases
Baker v. State of Vermont, 744 A.2d. 864 (1999)….. … … … … … … … … …11,12,15
Bowers v. Hardwick, 478 U.S. 186 (1986) …………….. … … … … … … … .11,12,13,14
City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985)………… … 6,7,8
Commonwealth v. Wasson, 842 SW.2d. 487 (Ky. 1992) ………… … … … … … .. .14,15
Dronenburg v. Zech, 741 F.2d. 1385 (D.C.Cir. 1984) … … … … … … … … … .11,13,14
FCC v. Beach Communications, Inc., 508 U.S. 397 (1993) … … … … … … … … …8,9
Frontiero v. Richardson, 411 U.S. 673 (1973) ……………………………… … … … … …7
Graham v. Richardson, 403 U.S. 365 (1971) …………………………………….. … … … 7
Griswold v. Connecticut, 381 U.S. 479 (1965) ……………………… … … … … … . 12,13
Heller v. Doe, 509 U.S. 312 (1993) ………………………………………………………. … 9
High Tech Gays v. Defense Indus. Sec. Clearance Office,
895 F.2d. 563 (9th Cir. 1999) …………………… … ……………………………… 9
James v. City of Douglas, 941 F.2d. 1539 (11th Cir.1991) … …. … … … … … … …..13
Korematsu v. United States, 323 U.S. 214 (1944) ……………………. … … … … … …7
Lalli v. Lalli, 439 U.S. 259 (1978) ……………………………………………………… … …7
Loving v. Virginia, 388 U.S. 1 (1967) ………………………………………………… .. … ..7
Mills v. Habluetzel, 456 U.S. 91 (1982) ……………………………………………. … … .. 8
Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) … … … … ……………. 8
Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) …………………….. 7
Moore v. City of East Cleveland, 431 U.S. 494 (1977) ………. … … … … … … … … .13
Palko v. Connecticut, 302 U.S. 319 (1937) …………………………………… … … … …13
Reynolds v. United States, 98 U.S. 145 (1878) ………………………. … … … … … … 11
Romer v. Evans, 517 U.S. 620 (1996) …………………………………………… … ... 10,11
San Antonio School District v. Rodriguez, 411 U.S. 1 (1973) …………………………. 6
2
Shahar v. Bowers, 114 F.3d. 1097 (1997) ………………………………………… 11
United States v. Carolene Products Co., 304 U.S. 144 (1938) …………………… 6
United States v. Hall, 39 M.J. 995 (1994) ………………………………………. … .. 9
Watkins v. U.S. Army, 847 F.2d. 1329 (9th Cir. 1988) ………… … … … … … … . 14
Zablocki v. Redhail, 434 U.S. 374 (1978) …………………………………………. … . 8
Statutes
1 U.S.C. §7 (2000) ……………………………………………………………………… 16
28 U.S.C. §1738C (2000) …………………………………………………………… 15,16
KRS §402.040 (1998) ………………………………………………………………….. 16
KRS §402.045 (1998) ………………………………………………………………….. 16,17
KRS §403.120 (1998)…………………………………………………………………….. 14
Treatises
Rotunda & J. Nowak, Treatise on Constitutional Law (3d. ed. 1999)…………………. 6
Law Review Articles
J. Wexler, Defending the Middle Way: Intermediate Scrutiny as Judicial Minimalism,
66 Geo. Wash. L. Rev. (1998) …………. … … … … … … … … … … … … …8
3
STATEMENT OF THE CASE
Terry Smith and Carry Jones, an adult homosexual couple residing in Lexington,
Kentucky attempted to obtain a marriage license, but were refused based on KRS
§402.005, which states:
As used and recognized in the law of the Commonwealth, "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. KRS §402.005
Smith and Jones brought suit in Federal District Court for E. D. Ky. challenging the
statute. The District Court upheld the marriage law, finding no violation of any federally
protected rights. The Federal Circuit Court of Appeals affirmed the decision, having
found no error by the District Court.
QUESTION PRESENTED
I.
Whether the Equal Protection Clause of the 14th Amendment or “liberty” in the
Due Process Clause of the 14th Amendment prohibits the Commonwealth of Kentucky
from legally recognizing only those marriages that occur between two persons of the
opposite sex from one another.
4
SUMMARY OF ARGUMENT
Section 402.020 is constitutional because it neither violates the Equal Protection
Clause of the Fourteenth Amendment nor the right to privacy. Sexual orientation is
neither a suspect nor quasi-suspect class, so the state need offer only a rational basis
for classification on such basis. The state’s rational basis in prohibiting homosexual
marriages is to preserve the traditional definition of marriage as existing between one
man and one woman. Furthermore, in order for homosexual marriages to be
consummated under Kentucky law, the practice of sodomy, which is not a federally
protected right and may be criminalized, would be necessary. If the state may
criminalize the conduct, by logical inference it may disfavor the conduct. Finally
marriage in Kentucky is defined statutorily, and the state has defined marriage as
existing only between one man and one woman.
5
ARGUMENT
I.
SECTION 402.020 IS CONSTITUTIONAL BECAUSE IT DOES NOT
ABRIDGE FUNDAMENTAL CONSTITUTIONAL PROTECTIONS DEFINED BY THE
SUPREME COURT.
A. Homosexuals do not Constitute a Suspect Class and are not Entitled to
Heightened Scrutiny Under the Equal Protection Clause of the Fourteenth Amendment.
The Equal Protection Clause of the Fourteenth Amendment grants every person
the equal protection of the law. Conventionally, three tiers of judicial review, based on
the nature of the right or class that is affected, are employed in equal protection analysis
under the Fourteenth Amendment. City of Cleburne v. Cleburne Living Center, Inc., 473
U.S. 432 (1985), Rotunda & J. Nowak, Treatise on Constitutional Law §18.3, at 216-10
(3d ed. 1999).
The Supreme Court has set forth several criteria for the identification of suspect
and quasi-suspect classifications. The Court has defined suspect classes as those in a
discreet and insular minority, those showing distinct immutable characteristics, and
those subjected to a history of invidious discrimination. United States v. Carolene
Products Co., 304 U.S. 144, 152-53 n.4 (1938).
In San Antonio School Dist. v.
Rodriguez, 411 U.S. 1 (1973), the Court further defined a suspect class as those:
saddled with such disabilities, or subjected to such a history of purposeful
unequal treatment, or relegated to such a position of political powerlessness as
to command extraordinary protection from the majoritarian political process.
Id. at 28. The Court has also held that the immutability of the group's identifying trait
must be considered for classification. Frontiero v. Richardson, 411 U.S. 673, 679(1973).
However, the Supreme Court has only recognized three suspect classifications,
to the exclusion of homosexuality. In Loving v. Virginia, 388 U.S. 1 (1967), the Court
recognized race as a suspect class. The two other suspect classes recognized by the
Court are alienage, Graham v. Richardson, 403 U.S. 365, 371 (1971), and national
origin Korematsu v. United States, 323 U.S. 214, 216 (1944). Additionally, the Court has
6
recognized two quasi-suspect classes: gender, Mississippi University for Women v.
Hogan, 458 US 718, 721-22 (1982), and illegitimacy, Lalli v. Lalli, 439 U.S. 259, 264-65
(1978).
In the case of a suspect class, strict scrutiny is applied, and in order for the law to
be deemed constitutional, the state must demonstrate a compelling governmental
interest that could not be accomplished through less restrictive means. Cleburne, 473
U.S. at 440. For those groups classified as quasi-suspect, the Supreme Court has set
forth a middle level of review, whereby laws affecting quasi-suspect classes must be
substantially related to an important government interest in to be deemed constitutional.
See Id.; Mills v. Habluetzel, 456 U.S. 91, 96 (1982). All other laws, are presumed
constitutional and will be upheld if they are rationally related to a conceivable and
legitimate governmental interest. Minnesota v. Clover Leaf Creamery Co., 449 US 456
(1981); see also Cleburne, 473 U.S. at 440; see also Zablocki v. Redhail, 434 U.S. 374
(1978) (RHENQUIST, J., dissenting). Rationality review, as explained by one
commentator, may be "used to uphold laws even by hypothesized or ad hoc state
interests." J. Wexler, Defending the Middle Way: Intermediate Scrutiny as Judicial
Minimalism, 66 Geo. Wash. L. Rev. 298, 300 (1998).
Furthermore, the Supreme Court has declared that in equal protection analysis
rational basis review is not "a license for courts to judge the wisdom, fairness or logic of
legislative choices." FCC v. Beach Communications, Inc., 508 U.S. 397, 313 (1993).
Rather, a classification that neither involves fundamental rights nor suspect classes is
allowed a strong presumption of validity. Id. That presumption of validity "must be upheld
against equal protection challenge if there is any reasonably conceivable state of facts
that could provide a rational basis for the classification." Id. at 314 (citation omitted).
7
Based on the criteria set forth by the Court, homosexuals do not constitute a
suspect class. They are far from politically powerless and historically have not been
singled out for discrimination. Furthermore, it is unclear whether their characteristics are
immutable. See Caroline Products Co., 304 U.S. at 152-53 n.4.; Frontiero, 411 U.S. at
679. Thus, because "homosexuals do not constitute a suspect or quasi-suspect class
[they are not] entitled to greater than rational basis scrutiny under the equal protection
component of the Due Process Clause of the Fifth Amendment," High Tech Gays v.
Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.1990).
B. The Commonwealth of Kentucky has a Legitimate Governmental Interest in
Preventing Homosexual Marriage.
The Supreme Court has defined the standard of rational basis review such that a
state need only show that the statute is rationally related to some legitimate
governmental interest. Heller v. Doe, 509 U.S. 312 (1993). Under the Court's standard of
rational basis review:
"[The government], moreover, has no obligation to produce evidence to sustain
the rationality of a statutory classification. A legislative choice is not subject to
courtroom factfinding and may be based on rational speculation unsupported by
evidence or empirical data. A statute is presumed constitutional, and the burden
is on the one attacking the legislative arrangement to negative every conceivable
basis which might support it, whether or not the basis has a foundation in the
record. Finally, courts are compelled under rational-basis review to accept a
legislature's generalizations even when there is an imperfect fit between means
and ends."
United States v. Hall, 34 M.J. 995 (1994).
In Romer v. Evans, 517 U.S. 620 (1996), the Court held that a Colorado state
constitutional amendment forbidding the state, its agencies, and political subdivisions to
enact, adopt, or enforce any statute, regulation, ordinance, or policy that would allow
homosexuals to claim a minority status, a protected status, or claim discrimination was a
violation of the Equal Protection Clause of the Fourteenth Amendment for several
reasons. Id. The amendment not only put homosexuals in a class by themselves in
8
regard to private and governmental transactions and relations, but also denied
homosexuals legal protection and imposed a special disability on them alone. The Court
also found that the state did not have a legitimate governmental purpose in enacting the
legislation. Id.
However, Romer is distinguishable based on its facts. In Romer, the legislation's
intent was to disadvantage the entire class of homosexuals and "deny them protection
across the board," Id. at 628. Furthermore, the government was classifying people for
the sake of classification, which is impermissible under the Equal Protection Clause. Id.
at 629. Denial of homosexual marriage is not in the same classification as across-theboard denial of legal protection. Shahar v.Bowers, 114 F.3d 1097 (1997).1
Because marriage is one of the foundations on which society rests, the
government is obligated to regulate it, as held in Reynolds v. United States, 98 U.S. 145
(1878):
"Marriage, while from its very nature a sacred obligation, is nevertheless, in most
civilized nations, a civil contract, and usually regulated by law. Upon it society
may be said to be built, and out of its fruits spring social relations and social
obligations and duties, with which government is necessarily required to deal."
Id. at 165. The Kentucky statute furthers the Common-wealth's legitimate and
conceivable interest in public morale and decency. In Dronenburg v. Zech, 741 F.2d.
1388 (D.C.Cir. 1984), the court declared that homosexuality "generate[s] dislike and
disapproval among many…who find it morally offensive." Id. at 1398. Additionally, in
Bowers v. Hardwick, 478 U.S. 186 (1986) the Court held that the beliefs of the electorate
provided a sufficient rational basis for the criminalization of sodomy. Id. at 191.
In Baker v. State of Vermont, 744 A.2d 864 (1999), the court ruled that the
Vermont Constitution requires the state to extend to same-sex couples the benefits and
1
In Romer, the Court did not overrule or disapprove Bowers, which held that homosexual sodomy was not
constitutionally protected.
9
protections gained by marriage and granted under Vermont law. However, the court did
not hold that homosexual couples are entitle to marriage licenses:
[w]e hold that the State is constitutionally required to extend to same-sex couples
the common benefits and protections that flow from marriage under Vermont law.
That the Sate could do so through a marriage license is obvious. But it is not
required to do so…
Id. at 886. Here, the issue is only whether the state is required to grant a marriage
license to homosexual couples, not whether it must offer them the same benefits as
heterosexual couples. Therefore, the holding in Baker is not applicable to this question.
C. The Statute does not Violate Homosexuals' Right to Privacy.
The right to privacy is not in doubt. Griswold v. Connecticut, 381 U.S. 479 (1965).
However, its extent is questionable. "The constitutional right to privacy has vague
contours and has been in a state of flux in recent years…" James v. City of Douglas,
941 F.2d 1539, 1543 (11th Cir. 1991).
Although the Kentucky statute refers to
marriage, to which the right to privacy is extended, as explained in Bowers, homosexual
conduct, to which the right to privacy is not extended, is implicit in homosexual
marriage. Bowers at 189-91. Because the statute implicitly deals with homosexual
conduct, to which the right to privacy does not extend, it does not violate a constitutional
right.
II. AS STATUTORILY DEFINED IN KENTUCKY, HOMOSEXUAL MARRIAGE, AND ITS
INCLUDED COMPONENTS, WOULD NOT BE PROTECTED UNDER A
FUNDAMENTAL RIGHTS ANALYSIS.
A. Homosexual Conduct does not Constitute a Fundamental Right.
Because homosexual marriage is not a fundamental right, it is not
unconstitutional for states to statutorily ban it. Although it is clear that some liberties
rank as fundamental, homosexual marriage does not fall into this category. In Palko v.
10
Connecticut, 302 U.S. 319, 325, 326 (1937), the court held fundamental rights are
defined as those "implicit in the concept of ordered liberty" and such that "neither liberty
not justice would exist if [they] were sacrificed." In Moore v. City of East Cleveland, 431
U.S. 494, 503 (1977) (opinion of POWELL, J.), the court defined fundamental liberties as
those "deeply rooted in this Nation's history and tradition." See also Griswold 381 U.S. at
506. Based on these criteria, the courts have repeatedly refused to define homosexual
conduct as a fundamental right. Bowers, 478 U.S. at 191; Dronenburg, 741 F.2d.at
1397. Similarly, homosexual marriage is neither rooted in the history of the nation, nor is
it implicit to the concept of ordered liberty.
B. In Order for Homosexual Marriages to be Consummated, the Parties Would
be Required to Engage in Sodomy, Which is not a Protected Right.
According to the Kentucky Revised Statutes, a marriage may be declared invalid
if it is not consummated by sexual intercourse. KRS §403.120 (Banks-Baldwin 1998).
"Sodomy is an act basic to homosexuality." Watkins v. U.S. Army, 847 F.2d 1329, 1357
(9th Cir.1988) (REINHARDT, J., dissenting), vacated, 875 F.2d 699 (1989). And, in the
case of homosexual marriage, sodomy may be the only means of consummating the
marriage. However, the federal courts have repeatedly found that homosexual sodomy
is not constitutionally protected. Bowers, 478 U.S. at 191; Dronenburg, 741 F.2d. at
1397. Thus, even if homosexuals were granted marriage licenses, the lack of a federally
protected right would prevent homosexual couples from consummating their marriage
and making it legally valid. Although this may possibly implicate some state
constitutional protections, Commonwealth v. Wasson, 842 SW.2d 487 (Ky. 1992)), they
are not relevant to this federal action.
In the alternative, should this Court create some type of protection for
homosexual conduct based on the reasoning in Wasson, 842 SW.2d 487, such
11
protection would not affect the issue at hand. See Baker, 744 A.2d at 886, wherein that
state's Supreme Court held that although the state could not deny certain privileges to
homosexual couples, the state did retain the right to refuse to issue marriage licenses.
So here, should this Court decide to extend a protection to homosexual conduct, that
protection would in no way abrogate Kentucky's ability to regulate marriage licenses
based on state public policy.
C. The Commonwealth of Kentucky's Right to Deny Marriage Licenses to
Homosexual Couples is Statutorily Defined.
The Commonwealth of Kentucky's right to refuse to recognize marriage licenses
obtained by homosexual couples in other jurisdictions is set forth in the United States
Code:
No State, territory, or possession of the United States, or Indian tribe, shall be
required to give effect to any public act, record, or judicial proceeding of any
other State, territory, possession, or tribe respecting a relationship between
persons of the same sex that is treated as a marriage under the laws of such
other State, territory, possession, or tribe, or a right or claim arising from such
relationship.
28 USCS §1738C (2000).
Additionally, the definition of marriage excludes
homosexual couples. According to the United States Code:
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 USCS §7 (2000).
The Kentucky Revised Statutes also contain provisions expressly preventing
homosexual marriage:
KRS §402.040
(1)If any resident of this state marries in another state, the marriage shall be valid
here if valid in the state where solemnized, unless the marriage is against Kentucky
public policy.
12
(2) A marriage between members of the same sex is against Kentucky public policy
and shall be subject to the prohibitions established in KRS 402.045.
KRSA §402.040 (Banks-Baldwin 1998).
Additionally, according to KRS §402.045, same-sex marriages performed in other
jurisdictions will be considered void in Kentucky:
KRS §402.045
(1) A marriage between members of the same sex which occurs in another
jurisdiction shall be void in Kentucky.
(2) Any rights granted by virtue of the marriage, or its termination, shall be
unenforceable in Kentucky courts.
KRSA §402.045 (Banks-Baldwin 1998). Thus, Kentucky's statutory denial of homosexual
marriage is acceptable under the United States Code, which no case has ever directly
held unconstitutional.
III. PETITIONER NEED NOT BE GRANTED A MARRIAGE LICENSE IN ORDER TO
COMPLY WITH FEDERAL CONSTITUTIONAL LAW.
It has been shown that there are no fundamental rights implicated in homosexual
marriage. Therefore, the Commonwealth of Kentucky has a right to prohibit homosexual
marriage in the interest of maintaining public moral and decency, which are legitimate
governmental interests. Furthermore, there is no federally protected right to engage in
homosexual sodomy, which would be required to validate a homosexual marriage under
Kentucky statutes.
Thus, this Court should find no violation on the part of the
Commonwealth of Kentucky.
13
CONCLUSION
For all the foregoing reasons, the Respondent respectfully prays that the Court
affirm the judgement of the Court of Appeals for the Sixth Circuit.
Respectfully submitted,
_/signature____________________________
Anonymous Civil Liberties Student,
Counsel For Respondent
1615 Patterson Office Tower
Lexington, Ky. 40506
14