New State Amendments Vulnerable

Legal challenges, though, must negotiate polarized political, judicial landscape

Amending a state constitution to ban same-sex marriage is not necessarily the last word on the subject, as Louisiana voters discovered when a trial judge ruled on October 5 that an amendment approved by voters on September 18 violated the state constitution.

In Louisiana, as in several other states where amendments were approved, the state constitutions may provide grounds for challenging their validity. In addition, of course, there is the possibility that one or more of these amendments may end up being challenged as violating the U.S Constitution’s guarantees of due process and equal protection of the laws, although prudence might dictate shying away from a federal constitutional challenge in light of probable changes in the composition of the Supreme Court over the next four years.

The most obvious ground to challenge many of these amendments is that they were presented to voters in misleading ways. Most state constitutions provide detailed requirements for the process of amending them, and many of these ballot proposals fell short, especially in terms of accurately describing the proposals in statements to be included on the ballot. This is the central argument in a lawsuit that was to be filed in Georgia by the southern regional office of Lambda Legal as soon as the final vote count is certified on that state’s amendment.

Attempts to block the amendment votes through litigation in advance of the voting were unsuccessful in Arkansas, Georgia, Louisiana and Ohio, but in each of those states, the state court decisions that refused to block the votes held out hope that a post-election challenge could be successful. In some cases, state supreme court justices asserted that there were significant questions about their constitutionality.

The amendments that were passed on Tuesday were of two types. The simpler ones, enacted in Mississippi, Montana and Oregon, just specify that only marriages between a man and a woman are valid in those states. The more complicated ones, approved in Ohio, Georgia, Kentucky, Oklahoma, Arkansas, Michigan, Utah and North Dakota, go further, adopting different verbal formulations to extend the ban beyond marriage to various other arrangements. There is considerable uncertainty about the ultimate effect of some of these, and in particular whether they would go beyond banning Vermont-style civil unions all the way to endangering domestic partnership benefit programs.

While grounds for challenging the simpler amendments, short of a federal constitutional challenge, are slim, the other amendments are open to a variety of challenges. Most importantly, in addition to Louisiana, the constitutions of Ohio, Kentucky and Oklahoma explicitly require that proposed amendments placed before the voters deal only with a “single general object or purpose” (to quote the Ohio Constitution) or words to that effect.

What this means was spelled out by Judge William Morvant in the Louisiana case. He accepted the challengers’ argument that Louisiana’s amendment dealt with multiple subjects because it would go beyond banning same-sex unions and also impinged on a variety of other arrangements, including the domestic partnership benefits available to New Orleans municipal employees. According to Morvant, a voter might want to ban marriages but allow civil unions or domestic partnerships, but the form of the amendment made such a vote impossible.

Morvant’s ruling has been appealed, and is currently pending before the Louisiana Supreme Court.

Winning invalidation of a state constitutional amendment through litigation would not end the matter, however, since state legislatures or anti-marriage groups in those states could come back in subsequent elections with measures tailored to correct any faults pointed out by the state supreme courts.

Of course, there is a higher authority on constitutional issues: the federal Constitution, the 14th Amendment of which states that no state shall “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 1967, when the Supreme Court decided in Loving v. Virginia that a state law against interracial marriage violated both the due process and equal protection guarantees, there has been a good federal constitutional argument in favor of the right of same-sex couples to marry, although it was not until recently that some state courts — most notably in Vermont, Massachusetts, Oregon and Washington — have begun to accept an analogous argument under similar state constitutional provisions. Not all courts have accepted the argument, however, as attested by recent failures in Arizona and New Jersey. In New York, two low-level trial courts have accepted the argument, while a state Supreme Court justice recently rejected these arguments in a case originating from Nyack that will soon be appealed. An appeal is also pending in New Jersey.

Passage of the Oregon amendment clouds the outcome of the lawsuit pending before that state’s Supreme Court, where oral arguments are scheduled to take place shortly. The state’s attorney general, pressed to issue a formal opinion last spring after officials in Multnomah County issued marriage licenses to same-sex couples, stated that the Oregon high court would probably rule in favor of litigants seeking marital rights in that state, and a state trial judge, ruling favorably on such a claim, had passed the case up to the state’s Supreme Court. Whether the case should be pressed forward or abandoned is a significant strategic question. It is possible that the Oregon Supreme Court would welcome a chance to apply federal constitutional principles to trump the new state amendment, but these are judges subject to re-election, and the comfortable margin of passage for the amendment, which received 57 percent of the vote, may have sent them an uncomfortable message.

Playing the federal constitutional card poses its own risks. One cautionary note is that several members of the Supreme Court, beginning with the ailing Chief Justice William H. Rehnquist, are likely to retire over the next few years, and Pres. George W. Bush and the enhanced Republican majority in the Senate are unlikely to place on the Supreme Court new justices with an expansive view of the constitutional right to marry. Indeed, this is likely to become the new behind-the-scenes “litmus test” for selecting nominees for the Court, given the president’s views on the subject. By the time this question comes before the Court, important members of the majority in Lawrence v. Texas are likely to have left the scene, replaced by judges whose sympathies are unknown.

Even more significantly, perhaps, pushing federal constitutional litigation at this time might goad the Republican majority in Congress, whose party platform calls for its enactment, into finally approving the Federal Marriage Amendment, leading to ratification battles in many states. An attempt to bring the amendment to a vote failed last summer in the Senate because a determined minority can stall a vote by filibustering, but that Democratic minority was further reduced on Election Day. If that amendment became law, the issue would be effectively taken out of the Supreme Court’s hands.

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