In his dramatic May 9 interview with ABC’s Robin Roberts, in which he announced his support for the right of same-sex couples to marry, President Barack Obama said, “I have to tell you that part of my hesitation on this has also been I didn’t want to nationalize the issue. There’s a tendency when I weigh in to think suddenly it becomes political and it becomes polarized. And what you’re seeing is, I think, states working through this issue –– in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that’s a healthy process and a healthy debate. And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”
The president, then, while saying he thinks same-sex couples should be allowed to marry, also stated his view that that this a local issue to be resolved by each state. On that latter point, he’s both correct and incorrect.
Numerous federal rights and benefits turn on whether a couple is married, and prior to 1996 any marriage sanctioned by a state would qualify a couple for those federal rights and benefits. The question of whether a marriage was recognized for federal purposes –– while in some sense a matter of federal law –– was determined by reference to individual states’ law.
But when Congress passed the Defense of Marriage Act (DOMA) in 1996, it made marriage recognition a matter of federal law by stating that only the union of one man and one woman could be considered a marriage for federal law purposes. Thus, departing from our historical practice –– and, ironically, at a time when no state was providing marriage licenses to same-sex couples –– Congress and President Bill Clinton enacted, for the first time in American law, a federal policy under which some marriages recognized under state law would not be recognized by the US government.
The Supreme Court had made it a federal issue three decades earlier –– in 1967, in Loving v. Virginia –– when it ruled that the 14th Amendment applies to state decisions about who could marry whom. In that case, the high court ruled, on alternative grounds of due process –– the fundamental right to marry –– and equal protection, that a state could not base eligibility to marry on the race of the individuals. A Virginia law that made it a crime for a “white person” to “intermarry with a colored person” could not be enforced, because the state did not have a right to interfere in the freedom of two individuals to marry, absent some compelling state interest.
As a result, though it is up to the states to determine the qualifications for marriage, that determination must be made consistent with the 14th Amendment guarantees of due process and equal protection, under which the state must show a compelling justification if it is going to interfere with individual choice in the selection of a marital partner.
In opposing constitutional same-sex marriage claims, some courts have tried to narrow Loving v. Virginia to its facts –– an interracial different-sex marriage case –– and state that the fundamental right identified by the Supreme Court was the right of a man and a woman to marry regardless of race. But to do that is to make the same error the high court made in Bowers v. Hardwick –– the 1986 ruling that upheld Georgia’s sodomy law –– in identifying the right at issue too narrowly, and thus failing to place the case correctly in context.
The Supreme Court corrected the Bowers v. Hardwick error in Lawrence v. Texas –– the 2003 ruling striking the nation’s remaining sodomy laws –– which overruled Bowers and stated it was wrong when it was decided, because the right at issue was not, narrowly construed, the “right of homosexuals to engage in sodomy” but rather the right of any person, regardless of sexual orientation, to intimate association with a consenting adult partner.
The Hawaii Supreme Court got this analysis right in Baehr v. Lewin (1993), the decision that provoked Congress into passing DOMA. The Hawaii court said that the state’s refusal to issue marriage licenses to same-sex couples was a form of discrimination on the basis of sex, because the state had erected a classification based on sex as a qualification for marriage. Under Hawaii’s constitution, sex is a “suspect classification” –– which means that any state action that makes eligibility for a right or benefit dependent on the sex of a person could be upheld only if the state offered a compelling justification. In a subsequent trial, the judge found that the state government had failed to do so and ordered that same-sex couples be allowed to marry. The judge’s decision never went into effect because Hawaii amended its constitution to provide that only the Legislature can determine whether same-sex couples can marry.
In the Proposition 8 case, US District Court Judge Vaughn Walker, in 2010, ruled that the 14th Amendment requires California to allow same-sex couples to marry. As in Loving v. Virginia, the court based its ruling on both due process –– the fundamental right to marry –– and equal protection.
On appeal, a Ninth Circuit panel affirmed Walker, but on the narrower groundthat the record provided no support for finding that California voters in 2008 had a rational basis for rescinding the right to marry for same-sex couples after the State Supreme Court had ruled in favor of a state constitutional right to same-sex marriage earlier that year. Because the adoption of Proposition 8 was an act of raw politics, not a reasoned judgment based on valid policy concerns, it could not meet even the least demanding level of judicial review, the panel found.
Supporters of Proposition 8 have filed a petition with the Ninth Circuit for rehearing by a larger panel. The case may end up going to the Supreme Court, which could address it narrowly along the lines of the panel decision or deal with Walker’s broader ruling at the trial court.
So, as a matter of Executive Branch authority and legislative authority, marriage has traditionally not been a subject for federal law, as the president observed. However, both DOMA and Loving v. Virginia have made it a subject for federal law.
The Obama administration has already answered the question whether the federal government must recognize same-sex marriages by abandoning any defense of Section 3 of DOMAand filing briefs in pending cases arguing that it is unconstitutional under the Fifth Amendment, which binds the federal government to comply with due process and equal protection principles.
The administration has yet to take a formal position on the 14th Amendment question –– whether state governments are obligated to allow equal marriage rights for same-sex couples. The Department of Justice could do this by filing amicus briefs in some pending same-sex marriage lawsuits in which it is not a party. Most marriage litigation has been in state courts, raising only state constitutional claims –– on which DOJ participation would not seem appropriate –– but more recently, such suits have begun to be filed in federal courts or to raise federal as well as state constitutional claims even though filed in state court (as with Lambda Legal’s challenge to New Jersey’s civil union law).
It would be a natural move for the administration to adapt the briefs it has been filing in DOMA litigation and submit them as amicus briefs on behalf of plaintiffs in pending same-sex marriage cases that raise 14th Amendment claims. When the federal constitutionality of a state law is drawn into question, it would be appropriate –– though not mandatory –– for DOJ to express a view.
Underlying the briefs the administration has been filing is the legal analysis summarized by Attorney General Eric Holder in his February 2011 letter to House Speaker John Boehner explaining why DOJ would no longer defend DOMA’s Section 3. The Justice Department determined that Section 3 discriminates based on sexual orientation, and that sexual orientation discrimination was comparable to other forms of discrimination to which federal courts apply “heightened scrutiny.” When heightened scrutiny applies, there is a presumption of unconstitutionality and the government has the burden of showing an important government interest substantially advanced by the discriminatory policy. Holder’s analysis determined that Section 3 could not survive this test; no important federal government interest, he concluded, was substantially advanced by systematically and across-the-board refusing to recognize lawfully-contracted same-sex marriages for purposes of federal law.
If that same analysis is applied in litigation challenging the refusal of a state to allow same-sex couples to marry, the same sort of question needs to be asked: What important state interests are substantially advanced by excluding same-sex couples from the right to marry? So far, the state high courts ruling in favor of same-sex marriage –– Massachusetts, Iowa, and Connecticut –– have concluded that there is no such state interest at stake. Those that have ruled against same-sex marriage have rested, generally, on some notion of legislative prerogative (as in the Vermont and New Jersey cases, finding a constitutional right to “equal benefits” but not to marriage) or the bizarre rationale of “channeling procreation” into stable households headed by different-sex married couples (embraced in 2006 in New York, for example, in a notoriously poorly-reasoned opinion). In light of the Supreme Court’s Lawrence ruling, merely preserving a traditional definition or expressing moral disapproval of homosexuality would not be sufficient, as Justice Antonin Scalia sarcastically observed in his dissenting opinion.
Summarizing the state of play, then: President Obama has already taken the legal position that the refusal of the federal government to recognize lawfully-contracted same-sex marriages violates the Fifth Amendment, concluding that Section 3 of DOMA cannot survive judicial review; he has taken the political position that same-sex couples should be able to marry. The last question for him to address, to complete the circle as it were, is whether the 14th Amendment requires the states, as a legal matter, to allow same-sex couples to marry. If it does, every state constitutional anti-marriage amendment would be invalid under the Supremacy Clause, and same-sex marriage would be universally available in the US.
The president’s May 9 statement marked a change of historic importance. For the first time, a sitting US president has stated that same-sex couples should be able to marry. But there is still a distance to traverse that is not solely a matter of state law, but also of federal constitutional principle.