Same-Sex Marriage Law in the U.S.: History, Context, Current Issues

1. Same-Sex Marriage Law in the U.S.: History, Context, Current Issues Professor Jennifer Wriggins, University of Maine School of Law Continuing Legal Education ProgramMaine Attorney General’s office, July 30, 2014

2. Structure: Bostic v. Rainey 4th Circuit (July 28, 2014) Background legal history on efforts of mixed race couples to marry Legal history on efforts of same-sex couples to marry in five phases Current issues

3. Some legal history on efforts of mixed-race couples to marry Perez v. Lippold, 198 P.2d 78(CA 1948) Loving v. Virginia (1967) Trial court: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” Supreme Court: “These statutes also deprive the Lovings of liberty without due process of law . . . The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

4. Legal History (Partial) – Phase I-1968-1997 1971 Baker v. Nelson. 191 N.W.2d 185, 187 (Minn.). 1986 Bowers v. Hardwick 1993 Baehr v. Lewin (HI)-restriction against same-sex couple marriage is a gender-based law to which strict scrutiny applies. Remand for trial. Response nationally and in Hawaii. 1996 Evans v. Romer 1996 Federal Defense of Marriage Act 1997 Maine’s ‘Act to Protect Traditional Marriage and Prohibit Same-Sex Marriages’

8. “Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality . . . `[S]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people . . . feel ought to be illegitimate. . . . And in so doing it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval . . . on a union that many people . . . think is immoral.’” Defense of Marriage Act 1996

9. Legal history (partial), continued: Phase II-1998-2003 1999, Baker v. Vermont 744 A.2d 864 State constitution common benefits clause "[T]o acknowledge plaintiffs as Vermonters who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity.” Chief Justice Jeffrey Amestoy Court sent issue to legislature for remedy, civil unions resulted. 2003, Goodridge v. Massachusetts (2003) State constitution, Art. I, sec. 1 and other provisions 2003 Lawrence v. Texas, SCt strikes down sodomy law, overrules Bowers v. Hardwick (1986)

10. Goodridge plaintiffs

11. Goodridge v. Mass. (2003) Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.”

12. Legal history (partial) continued: Phase III-2004-2008 Myriad Unsuccesful Efforts to overturn Goodridge, Mass. starts to marry out of staters Civil union laws enacted, State law bans pass, state constitution bans passed. Unsuccessful court challenges in NY, MD, elsewhere. California turmoil. 2008 Kerrigan v. Ct. 957 CT 407 (second marriage state, court held civil union insufficient remedy)

13. Phase IV(partial) -2009-2013 2009 Vermont and NH legislature legalizes ss marriage 2009 Maine legislature legalizes ss marriage, voters repeal it. 2009 (March) Gill v. OPM, filed in federal court, decided 2010, 682 F.3d 1, the First Circuit held that section 3 of the federal Defense of Marriage Act (DOMA) violated the Constitution’s due process and equal protection guarantees. 2012 Maine voters pass same sex marriage 2012 Washington, MD pass marriage in legislature and at ballot box 2012 Minnesota voters reject anti-marriage constitutional amendment. Windsor 133 S. Ct. 2675 (June 2013). The USSCt held the same way as the First Circuit in Gill.

14. United States v. Windsor, 570 U.S. 12 (June 26, 2013) “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. … This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.” -- Majority Op. in Windsor

15. Phase V.I-Post DOMA, implementation “The Court’s ruling gives real meaning to the Constitution’s promise of equal protection to all members of our society, regardless of sexual orientation.  This decision impacts a broad array of federal laws.  At the President’s direction, the Department of Justice will work expeditiously with other Executive Branch agencies to implement the Court’s decision.  Despite this momentous victory, our nation’s journey – towards equality, opportunity, and justice for everyone in this country – is far from over.  Important, life-changing work remains before us.” Attorney General Holder Statement on Windsor, June 26, 2013

16. Implementation Thus FarThe Place of Celebration Rule IRS, DHHS, DoL, DoD, DoJ, DoS, DoEd, OPM: • As a general rule, a marriage of same-sex couple is valid if it was entered into in a domestic or foreign jurisdiction whose laws authorize the marriage of two individuals of the same sex even if the married couple resides in a domestic or foreign jurisdiction that does not recognize the validity of same-sex couples’ marriages .

17. Implementation Thus FarFederal Departments and Agencies • Department of Agriculture • Department of Defense • Department of Education • Department of Energy • Department of Health and Human Services • Department of Homeland Security • United States Citizenship and Immigration Service • Department of Justice • Department of Labor • Department of StateDepartment of the Treasury • Internal Revenue Service • Department of Veteran’s Affairs • Federal Elections Committee • Federal Retirement Thrift Investment Board • National Institute of Health • Railroad Retirement Board • Office of Government Ethics • Office of Personnel Management • Social Security Administration • U.S. Census Bureau

18. Phase V.2-post-DOMA litigation-pre-Winsor cases Federal court marriage litigation pending prior to Windsor ruling

19. Phase V.2-post-Winsor cases Rough Count of Pending Marriage Litigation as of 6/13/14

20. Phase V.2. – post-DOMA litigation Fed. Courts striking down state bans under fed law Example from July 28, 2014, Bostic v. Rainey, 4th Cir. 2-1, Constitutionality under 14 A Due process and equal protection of VA’s 2006 amendment and law banning same sex marriage and any ‘legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage.’

21. Bostic v. Rainey summary Majority – Fundamental right to marry includes right of individuals to marry someone of same sex Restrictions like Virginia’s are subject to strict scrutiny; must be based on compelling state interest (CSI) and be narrowly tailored to further that interest. Virginia’s 5 CSIs: 1. federalism based on interest in maintaining control over marriage within borders. 2. history and tradition of opposite sex marriage 3. protecting the institution of marriage 4. encouraging responsible procreation 5. promoting optimal childrearing environment.

22. Bostic analysis I. Virginia’s 5 CSIs and court’s response: federalism based on interest in maintaining control over marriage within borders. Federal constitution applies to family law. 2. history and tradition of opposite sex marriage Not compelling; discriminatory tradition not enough to justify more discrimination.

23. Bostic analysis ctd. 3. protecting the institution of marriage, destabilizing, if not link between procreation and marriage, bad for kids. Not compelling.; Griswold and other cases valued marriage distinct from children 4. encouraging responsible procreation; probably not compelling but even if it is the means do not further the interest. 5. promoting optimal childrearing environment. Evidence doesn’t support. Heightened scrutiny can’t support a law based on overbroad generalizations (VMI, Stanley v. Ill) Plus no link between means and end. THEREFORE violates DP and EP, affirm DC SJ

24. Bostic dissent Issue is whether state’s decision not to recognize ss marriage violates 14A. Fundamental rights analysis requires Glucksberg inquiry; ss marriage doesn’t meet Glucksberg criteria. Rational basis scrutiny therefore applies; there are some differences between ss and opp sex marriage that justify different treatment; marriage is a subsidy to married couple to encourage opposite sex couples to marry; which tends to provide kids from unplanned pregnancy with a more stable environment. Promotes correlation between biological order and political order and satisfies rational basis scrutiny. No heightened scrutiny under equal protection clause; Windsor and Romer didn’t use it, Lawrence used rational basis, Law/amendment satisfy rational basis.

25. Current issues: 1. What’s next for SCt. 2. Standard of review 3. Implementation 4. retroactivity, CT v. MA SCT cases 5. Pres. Exec. Order; added sexual orientation/gender identity 6. ENDA in Congress