Posted by Eugene Volokh:
Federal Court Strikes Down Ban on Same-Sex Marriage:
http://volokh.com/archives/archive_2005_05_08-2005_05_14.shtml#1115938636
The decision, from a federal trial judge in Nebraska, is [1]here. I
think it's quite mistaken, and will be reversed on appeal. A few
thoughts:
1. The judge doesn't hold that there's a constitutional right to
same-sex marriage as such. Rather, he holds that the recently
enacted Nebraska constitutional amendment banning same-sex
marriage -- "Only marriage between a man and a woman shall be
valid or recognized in Nebraska. The uniting of two persons of the
same sex in a civil union, domestic partnership, or other similar
same-sex relationship shall not be valid or recognized in
Nebraska." -- is unconstitutional. (See footnote 1 of the
decision.) But as I'll discuss below, the logic of the opinion
suggests otherwise; if the judge is right, then states would
indeed be required to recognize same-sex marriage.
2. First Amendment: The judge reasons that the amendment is
unconstitutional because it interferes with people's First
Amendment rights to advocate, and to association in order to
advocate, for legislation protecting same-sex relationships: "The
knowledge that any such proposed legislation violates the Nebraska
Constitution chills or inhibits advocacy of that legislation, as
well as impinging on freedom to join together in pursuit of those
ends."
That, I think, can't be right. Most state constitutional
provisions make it harder for people to enact certain laws -- a
state constitutional right to privacy, for instance, makes "chills
or inhibits advocacy of [privacy-restricting] legislation" in
precisely the same way as the Nebraska same-sex amendment does:
People become less willing to advocate the legislation since they
know it will be futile, so long as the amendment remains on the
book. Likewise, federal laws "chill[] or inhibit[] advocacy of
[state] legislation" that would be preempted by those laws. State
laws "chill[] or inhibit[] advocacy of [local] legislation" that
would be preempted by those laws. (For instance, state marriage
laws, which to my knowledge always set forth rules that apply
throughout the state and leave no room for contrary local
decisions, equally chill or inhibit advocacy of city- or
county-level marriage laws.)
Of course, none of these laws or constitutional provisions violate
the First Amendment; they don't keep people from expressing their
ideas -- they just make it harder for people to turn those ideas
into law. That is the very purpose of constitutional constraints
on legislation, and the purpose doesn't violate the First
Amendment. But precisely the same is true about the Nebraska
same-sex marriage amendment.
3. Intimate association: The Supreme Court has recognized that people
have an unenumerated right to engage in intimate association -- to
make friends, to rear children, to live with relatives, and the
like. The judge in this case argued that the Nebraska provision
interfered with this right:
The amendment goes far beyond merely defining marriage as between a
man and a woman. By its terms, Section 29 mandates that Nebraska
will not recognize or give effect to �the uniting of two persons�
in a same-sex relationship �similar to� marriage. This language,
especially given the expansive reading it has been afforded in
Nebraska, potentially prohibits or at least inhibits people,
regardless of sexual preference, from entering into numerous
relationships or living arrangements that could be interpreted as a
same-sex relationship �similar to� marriage.
Many social or associational arrangements run the risk of running
afoul of the broad prohibitions of Section 29. Among the threatened
relationships would be those of roommates, co-tenants, foster
parents, and related people who share living arrangements,
expenses, custody of children, or ownership of property.
I'm not sure that the court is reading the amendment properly:
Living together and sharing expenses (or even ownership of
property) is not necessarily "the uniting of two persons of the
same sex in a civil union, domestic partnership, or other similar
same-sex relationship" -- the only legal relationships there are
those of co-owners, which have never been seen as "civil unions,"
"domestic partnerships," or "same-sex relationships." (The matter
might be somewhat different as to shared custody of children.)
But in any event, the amendment does not prohibit any cohabitation
relationships -- at most, it bars the government from giving them
legal recognition as a "civil union," "domestic partnership," or
"same-sex relationship." The right to intimate association does
not include the right to have the government specially subsidize
or recognize your intimate association. That's why, for instance,
the law can give married people special benefits that single
people lack. Your intimate association rights doubtless give you
the constitutional right not to get married, but that doesn't mean
the government has to give you as a single person the same
subsidies and special legal privileges that it gives married
people. (I will deal with the equality argument below, but for now
my point is simply that there's no violation of intimate
association rights here.)
The amendment might conceivably bar same-sex couples, as couples,
from adopting children or having foster children. But the
constitutional right to intimate association does not include the
right to adopt or to have foster children.
4. Equal protection: The court holds that the Nebraska amendment
violates the Equal Protection Clause, citing [2]Romer v. Evans
(1996). Here, it's argument is at least plausible: Romer struck
down a Colorado amendment that prohibited all state and local bans
on sexual orientation discrimination. I think Romer is wrong,
badly reasoned, and vague in its implications; but, while it's
impossible to tell for sure given Romer's vagueness, I think that
Nebraska amendment is constitutional even under Romer.
Romer rested in large part on the conclusion that the Colorado
amendment's "sheer breadth is so discontinuous with the reasons
offered for it that the amendment seems inexplicable by anything
but animus toward the class that it affects; it lacks a rational
relationship to legitimate state interests." The Colorado
amendment's defenders urged that the amendment was needed to
protect "other citizens' freedom of association, and in particular
the liberties of landlords or employers who have personal or
religious objections to homosexuality"; and the Court did not
condemn this interest. Rather, it concluded that "The breadth of
the Amendment is so far removed from these particular
justifications that we find it impossible to credit them," chiefly
because the Colorado courts interpreted the amendment as being
extremely broad, covering many situations where no private
landlords or employers were involved (for instance, when the
government created a nondiscrimination policy governing its own
operations).
Here, the law leaves state and local government free to enact bans
on sexual orientation discrimination in lots of contexts. The
government only mandates that marriage and similar institutions be
reserved for opposite-sex couples; and this mandate is closely
tied to the government's desire to reserve the special benefits of
marriage for that sort of relationship -- a union of one man and
one woman -- that Nebraskans think is particularly valuable to
society, and thus particularly worth fostering.
The test that Romer set forth was that the law must have a
rational relationship to legitimate state interests, not the very
demanding "strict scrutiny" test (which requires narrow tailoring
to compelling state interests). This "rational basis" test is
traditionally pretty deferential to the government; and while in
Romer it wasn't applied with the normal deference, the Court's
stress in Romer was simply that the law was so overinclusive
relative to the interest in protecting associational freedom that
it was irrationally broad. Here, the law is a much better fit with
the government interest. And it seems to me (and, I'd wager, to
the Supreme Court) that the government interest in promoting
opposite-sex relationships as the best for society is indeed a
legitimate interest, even if it's one that reasonable minds may
differ about.
Nor is right to argue, as the court does, that the law "goes so
far beyond defining marriage that the court can only conclude that
the intent and purpose of the amendment is based on animus against
[the] class [it affects]." First, the law doesn't go at all far
beyond defining marriage; it clearly covers marriage and its
modern equivalents and near-equivalents. It makes perfect sense
that as new quasi-marriage statuses are set up to avoid the legal
restrictions on marriage, voters would cover these quasi-marriages
as well as traditional marriages.
Second, while the law does reflect a sense that same-sex unions
are less worthy of public support than opposite-sex unions, the
Court has never held that this view is impermissible. Most laws
reflect the notion that some conduct is better than other conduct.
Unless (and I'll get to this below) the court really is saying
that it's unconstitutional "animus" to have marriage be
opposite-sex-only -- that is to say, unless the court believes
that Nebraska has to recognize same-sex marriages -- there's no
unconstitutional animus in Nebraska voters' insisting that
marriage be opposite-sex-only, rather than just leaving the matter
to their representatives in the legislature.
Finally, note that the standard canon of interpreting statutes is
that they must be interpreted to avoid constitutional problems,
when such an interpretation is consistent with the language. For
instance, if the court fears that reading the amendment broadly --
for instance, covering co-tenancy contracts, or co-ownership
arrangements, among romantically linked same-sex couples -- would
violate the Equal Protection Clause under Romer, then the court
should read the amendment (quite plausibly) as not being that
broad, and only covering marriages, statutory civil unions, or
statutory domestic partnerships, not centuries-old generally
applicable rules of contract and property law.
Judges should not choose the broadest interpretation of a statute
and then striking the statute down because the interpretation they
themselves chose was unconstitutionally broad. Thus, the judge's
argument that "a domestic limited partnership" -- a business
entity -- "composed of same-sex partners as defined in the
Partnership Act could run afoul of [the Nebraska amendment] as it
is written" is quite wrong. Reading the amendment as covering
business partnerships that just happen to have partners of the
same sex isn't even a particularly plausible reading of the
amendment; and it certainly isn't the only or most plausible
reading of the amendment. The judge must therefore choose the
reading that is constitutionally permissible under Romer, rather
than choosing an unnecessarily broad reading that would then lead
him to strike the statute down.
5. However -- and here I return to what I said in point 1 -- if the
court is right about the Romer analysis, then it must be because
there is no legitimate government interest in favoring
opposite-sex long-term relationships over same-sex ones. Likewise,
if the court is right about the intimate association analysis,
then it must be because the right to intimate association
guarantees same-sex couples the right to equal government benefits
with opposite-sex married couples, rather than just a right to
live together. And if that's so, then despite the court's
protestations, its reasoning necessarily means that states are
constitutionally required to recognize same-sex marriage.
So this isn't just a battle over state constitutional amendments,
and what voters can do and what they must leave to the state
legislature. The court's decision, if upheld, would be a
Massachusetts Goodridge (or at least its Vermont civil-union
cousin, Baker) for the whole nation. I don't think this is at all
required by Romer, Lawrence v. Texas, or any other Supreme Court
decision. I'm pretty sure that the Eighth Circuit Court of Appeals
will reverse the decision; and if it doesn't, I'm pretty sure that
the U.S. Supreme Court will.
References
1. http://ads.omaha.com/media/maps/pdfs/0512initiative.pdf
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&navby=title&v1=romer
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