Posted on: Wednesday, November 19, 2003
Nation's same-sex marriage bans to be tested
By Charles Lane
Washington Post
WASHINGTON — Alarmed by a 1996 Hawai'i court case that raised the prospect of legalized same-sex marriage, Congress and 37 state legislatures enacted new laws designed to keep the phenomenon from spreading across the country.
It was a kind of legal flood-control system, built from statutes that defined marriage as the union of one man and one woman, designed so that no state would have to recognize a same-sex marriage from another state.
Now, thanks to the Supreme Judicial Court of Massachusetts, which ruled yesterday that homosexual couples have the right to marry, Americans are about to find out whether this containment structure can stand up under pressure.
If the ruling goes into effect six months from now as the court envisions, and if same-sex couples carrying Massachusetts marriage licenses settle in other states, it's probably only a matter of time before someone goes to court claiming the right to have a same-sex marriage recognized outside the Bay State, legal analysts on both sides of the issue said.
"The floodgates will be tested," said Dale Carpenter, a law professor at the University of Minnesota.
They likely will hold, at least initially, legal analysts said. Hawai'i's same-sex marriage ruling was never put into practice because the state's voters adopted a constitutional amendment permitting a ban on same-sex marriages. Supreme courts in states where the legislature has spoken only recently against same-sex marriage likely would not strike down those laws.
The U.S. Supreme Court's landmark decision last June to overturn state same-sex sodomy laws, Lawrence v. Texas, celebrated the dignity of same-sex relationships and clearly helped inspire yesterday's Massachusetts decision. But the court said in Lawrence that it was not expressing a view on same-sex marriage, and few believe the justices are eager to take on the issue soon.
Still, the impact of the Massachusetts ruling is not only legal but emotional and political. It could ultimately reverberate in ways that may not be apparent from a reading of black-letter law as it exists today.
"I very much feel this case has a lot of resonance with what the California Supreme Court did in 1948 when it became the first to strike down a ban on interracial marriage," said Mary Bonauto, the lawyer who represented the seven same-sex couples who won yesterday in Massachusetts. "That was at a time when nine out of 10 Americans still opposed interracial marriage and no court had ever ruled in favor of it."
The post-1996 legislation, known in its federal version as the Defense of Marriage Act (DOMA), reinforced existing Supreme Court doctrine, which interprets the U.S. Constitution to require states to give "full faith and credit" to one another's court judgments — but not necessarily to their legislative or administrative acts. If Kansas started issuing driver's licenses to 14-year-olds, for example, police in next-door Missouri still could order under-16 drivers off the roads.
"It is settled that states are not required to recognize every marriage performed in every other state," Carpenter said. "And they're not required to do so when they have a public policy contrary to recognizing that marriage."
This is why most of the state versions of DOMA include explicit language declaring that same-sex marriage is contrary to their public policy.
Still, it's possible that at least one state, Vermont, which has a law recognizing civil unions, would recognize a Massachusetts marriage, and the same might happen in California, which recently adopted a domestic partnership law that gives same-sex couples marriagelike status.
And in the states that do not have DOMAs yet, says Matthew Coles, director of the American Civil Liberties Union's Gay and Lesbian Rights Project, "courts are likely to find an absence of public policy."
Another line of attack against both the federal and state DOMA legislation would be to argue that, by denying those who wish to form same-sex couples a right that is enjoyed by different-sex couples, they violate the constitutional guarantee of equal treatment under the law.
The ACLU is currently pressing such a claim in a Nebraska federal court, arguing against the state's constitutional amendment on marriage, adopted by referendum in 2000, which prohibits the legislature from adopting any law that would recognize same-sex marriage, civil unions or domestic partnerships.
The ACLU believes it has a strong case based on a 1996 Supreme Court ruling that invalidated a Colorado constitutional amendment. The amendment would have abolished state anti-discrimination laws benefiting gays and lesbians, Coles said.
Still, in most cases, the equal protection argument would require advocates to convince courts that opposition to same-sex marriage is so irrational that no reasonable legislator could have voted for it, legal analysts noted. That argument won in Massachusetts, but probably wouldn't in, say, Alabama.
Mathew Staver, president and general counsel of Liberty Counsel, which opposes same-sex marriage in courts and legislatures nationwide, noted that trial and appeals courts in Arizona, New Jersey and Indiana all have recently dismissed equal protection claims in same-sex marriage cases. But those cases will be appealed.
President Bush criticized yesterday's ruling by Massachusetts' high court striking down the state's ban on same-sex marriage and said he would work with Congress to "defend the sanctity of marriage."
"Marriage is a sacred institution between a man and a woman," Bush said in a statement released shortly after he arrived in London for a state visit. He said the Massachusetts ruling "violates this important principle."
The Associated Press contributed the comments from Bush.
