Special Coverage: Should Marriage be Sex-blind?

 The Supreme Court held oral arguments for two same-sex marriage cases this past Tuesday and Wednesday.  Both cases have drawn so much attention that people started to line-up in the front of the Court the Friday prior.  Interestingly, not everyone in line wanted to be part of the historic moment; instead, some of them were paid to be there so interested parties could get the limited seats to the courtroom on the day of the argument—this is the first time that people line up three days in advance at the Supreme Court.[1]  Clearly, this shows the historic prominence of these two cases. 

It looks like today the majority opinion in the United States supports same-sex marriage.  Though traditionally being conservative, more members from the Republican Party are openly supporting the marital right of gays and lesbians.[2]  It seems the time for national change has come.  Republican kingmaker Karl Rove recently said publicly that next Republican president might support same-sex marriage.[3]  Recently, Republican Senator Rob Portman, a once possible running companion for Mitt Romney in last year’s election, decided to endorse same-sex marriage because his son is gay.[4]  In fact, dozens of prominent Republicans signed an amicus brief to the Supreme Court, supporting a constitutional right for same-sex marriage.  Theodore Olson, the former solicitor general of the Bush administration, as well as a prominent conservative, suggested that same-sex marriage is in accordance with the “conservative values of ‘limited government and maximizing individual freedom.’”[5]

In one of the current Supreme Court cases, Perry v. Brown, the question before the Court is whether the ban on same-sex marriage in the amended California Constitution violates the federal Constitution.[6]  The second case, Windsor v. US, focuses on whether a state has the right to deny spousal benefits according to the definition of “marriage” and “spouse” under the Defense of Marriage Act (DOMA).  Section Seven of DOMA declares,[7] “[i]n 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.”

Same-sex relationships have substantially changed the Constitutional protections of family autonomy, encompassing more than the right to marry.  If state legislatures intend to give same-sex couples more than a marriage license, it gives rise to a substantial change of family law and economic protections.  But before a legislature makes such a determination, the central question is whether a homosexual’s right to marry is in accord with the Constitution.

   

In Loving v. Virginia, the Supreme Court recognized the right to marry as a fundamental right.  In that case, a Virginia law criminalized persons engaged in interracial marriage.  The Court struck down the Virginia law and reasoned that “[t]he freedom to marry has long been recognized as one of the vital persona 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.”  Therefore, the Court protected the marital right under the Due Process Clause.

    

The Supreme Court has not heard many cases regarding same-sex issues.  When the Court had the chance to deal with such issues, its left too many questions open.  In Lawrence v. Texas, the Court declared unconstitutional a Texas law that prohibited “deviate sexual intercourse.”  Under the Texas law, it was an offense to engage in homosexual sodomy.  Justice Kennedy, writing for the majority, doubted the historical premises in Bowers v. Hardwick, reasoning that there was “no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.”  Specifically, Justice Kennedy pointed out that the purpose for prohibiting sodomy in criminal law was to cover the situation when a predator committed a sexual assault that did not constitute rape in criminal system.

 

The dissenting opinions in Lawrence are particularly important because they were written by Justice Scalia and Justice Thomas respectively––both Justices are still on the bench for the same-sex marriage cases currently being deliberated.  Justice Scalia, famous for upholding conservative traditions, criticized the majority opinion in Lawrence for avoiding the discussion of whether homosexual sodomy is a fundamental right under the Due Process Clause and not subjecting the Texas law to strict scrutiny.  And, he was on point that the majority in Lawrence failed to subject the same-sex marital right analysis to strict scrutiny.  Only Justice O’Connor’s concurring opinion mentioned that the Texas law should be subject to review on rational basis–– that the state law to interfere with individual rights is justifiable because the law is rationally related to preserve a state interest.

One big issue in Windsor is which standard of review should be used.  The Second Circuit, in reviewing Windsor, expressed its concern that “there is some doctrinal instability in this area.”[8]  Apparently, supporters of same-sex marriage rights would like to urge the Supreme Court to adopt strict scrutiny­­––usually used in cases involving fundamental rights in the Constitution­­––imposing a higher burden of proof on the government.  If the Supreme Court is going to use strict scrutiny, it will send a strong signal to the public that same-sex marital right is a fundamental right, which the Court seems to avoid discussing in Lawrence.  Perhaps it is time for the Supreme Court to make the doctrine clearer by shaping modern family law.

  

The argument in Perry shows that the Court is sharply divided on this issue.  Justice Roberts raised a very interesting question about the “label” nature of same-sex marriage.  Since, in California, same-sex couples enjoy almost every right as heterosexual couples, including adopting children, the license to marriage seems to be more of a label rather than the fight for a fundamental right.  In Tuesday’s argument in Perry, Mr. Olson, the counsel for the same-sex couples, answered the question directly by comparing the marriage status to citizenship, stating that acknowledging one’s marriage status actually means more than just a label.  Justice Sotomayer asked the counsel for the government how to reconcile the rationale of protecting procreation in marriage when the Court allows people over 55 to get married but refused homosexuals’ marital right.  Apparently, counsel for the government avoided the question.  Nevertheless, in the eyes of some––including California’s lawyers–– protecting procreation could be a strong argument for refusing homosexuals’ marital right because this is exact rationale the Court expressed in Loving when it decided to protect the right to marry as a fundamental right.

 

As predicted, Justice Scalia did not change his traditional opinion at all.  He kept inquiring when a used-to-be-constitutional right becomes unconstitutional and emphasized that this question is very important for the Court to make a decision.[9]  Justice Scalia even proposed that to raise a child by a same-sex couple would harm the development of a child.  Just like the New York Times pointed out, “[n]o one expects the conservative 78-year-old jurist to have a sudden equal-protection epiphany.”[10]  The New York Times even made a list of his recent track record about “his political and personal prejudices.”[11]  Justice Kennedy, who is considered to be the swing vote in this case, expressed his struggle with the question whether Proposition 8 in Perry qualified to be sex discrimination because of the gender-based classification issue.[12]  But Ilya Somin, a blogger for The Volokh Conspiracy, posted the opinion that, if a female could marry a male, but another male cannot marry to the same male, it is gender-based discrimination.[13]

At some point during the oral argument, the Justices started to ask whether there is the possibility of making this case only apply to California instead of nationwide.  Justice Alito said, “[w]e do not have the ability to see the future.”  In fact, the slippery-slope argument here could be:  if we allow same-sex marriage to change the traditional definition of marriage, would there be one day that we will allow a multi-partner marriage?  The notion seems to be very offensive, but one could use the same argument for defending this offensive position––that the law should not single out a class of people who are willing to have more than one sexual partner in marriage.  It seems that every Justice, no matter how divided they are, knows this decision will be a bold one with serious ramifications in multi-facets of the law going forward, regardless of the ultimate result.

      

Now that both Perry and Windsor are in the deliberation process, different interest groups are hoping for decisions in tune with their own socio-political beliefs.  One possible result would be, as the Washington Post predicted,[14] that “the court could strike down DOMA, taking the position that marriage should be left to the states––which would be consistent with the conservative majority’s reverence for states’ rights.”  Based on Justice Kennedy’s comments on Wednesday, stating that the essence of the State police power includes regulating marriage, divorce and custody,[15] this result is likely to come true.  For Perry, the court might leave the right to a state to define marriage.[16]  Considering the disputes among the Justices and highly demanding from the public opinion, it looks like a compromise that the Supreme Court is willing to make.

Xing Liu
Blogger, Criminal Law Brief 

Link to Oral Arguments:   http://abcnews.go.com/Politics/video/supreme-court-oral-arguments-gay-marriage-full-audio-18817944 

Picture courtesy of:
http://www.freedomtomarry.org/states/states/entry/c/louisiana
 

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[1] http://thecaucus.blogs.nytimes.com/2013/03/24/days-early-a-line-forms-at-the-supreme-court/

[2] http://tv.msnbc.com/2013/03/26/the-52-percent-republican-support-for-same-sex-marriage-is-growing/

[3] http://www.opposingviews.com/i/society/gay-issues/karl-rove-next-gop-presidential-noninee-could-support-gay-marriage

[4] http://wqad.com/2013/03/24/republicans-see-shift-in-party-ahead-of-same-sex-marriage-arguments/

[5] http://www.nytimes.com/2013/02/26/us/politics/prominent-republicans-sign-brief-in-support-of-gay-marriage.html?pagewanted=all

[6] http://www.nytimes.com/2013/03/26/us/background-on-same-sex-marriage-case-at-supreme-court.html

[7] http://www.gpo.gov/fdsys/pkg/PLAW-104publ199/pdf/PLAW-104publ199.pdf

[8]http://scholar.google.com/scholar_case?case=18269360752832114637&q=Windsor+v.+U.S.&hl=en&as_sdt=2,9&as_vis=1

[9] http://www.businessinsider.com/scalia-gay-marriage-prop-8-case-supreme-court-2013-3

[10] http://takingnote.blogs.nytimes.com/2013/03/25/scalias-gay-marriage-problem/

[11] Id.

[12] http://www.volokh.com/2013/03/26/justice-kennedy-on-proposition-8-and-sex-discrimination/

[13] Id.

[14] http://www.washingtonpost.com/opinions/eugene-robinson-supreme-court-takes-up-gay-marriage/2013/03/25/baf4e3e8-9578-11e2-bc8a-934ce979aa74_story.html

[15] http://fdlaction.firedoglake.com/2013/03/27/kennedy-seems-inclined-towards-striking-down-doma/

[16] http://www.cnn.com/2013/03/26/politics/same-sex-marriage-court