Tag: same-sex marriage

Liberty’s Big Day at SCOTUS

Today, the Court upheld the equal liberty and dignity of all individuals, regardless of sexual orientation with its ruling in United States v. Windsor. This represents a major victory for gay rights, of course, but more broadly vindicates a robust view of individual liberty as protected by the Constitution. It should be axiomatic that the federal government has to treat all people equally, that it has to accept the several states’ sovereign laws on marriage (and many other subjects), and today there were five votes at the Supreme Court for that proposition.

It is now clear that there was simply no valid reason to uphold DOMA Section 3, no reason to deny the equal protection of more than 1,000 federal laws. As Justice Kennedy wrote for the unified majority, “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”

This is exactly the result we were hoping for. 

UPDATE:

The Court’s ruling in the Prop 8 case is weird, frustrating, and leaves great uncertainty in both the law and practical effect. It’s also wrong: to say that private parties can’t step in to defend a law when the state government declines to is to allow the executive to erase properly enacted laws and even state constitutional amendments simply by not defending them in court.

For practical purposes, those of us who support marriage equality can be heartened that Prop 8 has been struck down – but there will still be extensive litigation over whether California can only issue marriage licenses to the two couples who were the plaintiffs in Perry, to everyone in the federal district where the lawsuit originated, or in the entire state. The Supreme Court may have thought it was putting off the difficult issues for another day, but it may simply have complicated matters. While clothed in complicated, technical language, and surrounded by the unusual atmospherics of gay marriage, this ruling boils down to the Court’s shying away from the full implications of its other ruling today.

In short, Perry was a frustrating decision but doesn’t detract from the significant constitutional win in Windsor.

“Equality Under the Law” Requires State-Sanctioned Marriage to Be Available to Same-Sex Couples

The idea of equality under the law dates back to the foundations of democracy and the ancient Greek word “isonomia.” “Equal justice under law” remains so essential today that it is engraved in the cornice of the Supreme Court building.

In 1868, Congress and the states codified this important ideal into the Equal Protection Clause of the Fourteenth Amendment: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” As the text and history of the Fourteenth Amendment plainly show, the Equal Protection Clause guarantees to all persons — regardless of race, sex, or any other group characteristics — equality under the law, including the legal right to marry the person of one’s choosing.

In 2008, however, California voters passed Proposition 8, a ballot initiative reversing a California Supreme Court ruling that had authorized same-sex marriage and restricting the right to marry to opposite-sex couples only. Both the federal district court and the Ninth Circuit Court of Appeals ruled that Prop. 8 was unconstitutional, for reasons ranging from the violation of a fundamental right to the impropriety of removing rights/benefits once granted.

With the case, Hollingsworth v. Perry, now before the U.S. Supreme Court, the Cato Institute has joined the Constitutional Accountability Center (CAC) on an amicus brief that focuses on supporting marriage equality under the Equal Protection Clause. Our brief explains that the purpose of the Fourteenth Amendment was not exclusively to address the disparaged rights of former slaves but, as the historical record shows, was intended to be universal in its protection of “any person” within U.S. jurisdiction.

The broad and sweeping guarantee of legal equality was understood at the time to secure and protect the equal rights of all individuals, so as to prohibit arbitrary and invidious discrimination. The framers of the Fourteenth Amendment understood marriage to be a personal, individual right that, when established by a state, must be made available on an equal basis to all.

Moreover, the Constitution also protects fundamental rights against state infringement under the substantive liberty provisions of the Fourteenth Amendment. Decades of Supreme Court cases protecting the equal right to marry — without regard to race, being behind on child support payments, or even imprisonment — have been rooted in both the Equal Protection Clause’s guarantee of equality under the law and the Fourteenth Amendment’s broader liberty protections, which converge in securing for all persons an equal right to marry.

Prop. 8 denies gays and lesbians the liberty to marry the person of their own choosing, places a badge of inferiority on same-sex couples’ loving relationships and family life (with the full authority of the state behind it), and perpetrates an impermissible injury to these individuals’ personal dignity. It thus directly subverts the principle of equality at the heart of the Fourteenth Amendment, and is an affront to the inalienable right to pursue one’s own happiness that has guided our nation since its founding.

We urge the Supreme Court, which will hear Perry on March 26, to invalidate Prop. 8 as a violation of the foundational guarantee that all persons shall have equality under the law.

See also my op-ed with CAC’s Doug Kendall, which further explains our reasoning – and stay tuned for another joint brief tomorrow in United States v. Windsor, the Defense of Marriage Act case also on the Court’s docket this term.

We Support Gay Marriage but Oppose Forcing People to Support It

Elane Photography, a Christian-identified business in Albuquerque, N.M., declined to photograph Vanessa Willock’s same-sex commitment ceremony based on the business owners’ personal beliefs. New Mexico law prohibits any refusal to render business services because of sexual orientation, however, so Willock filed a claim with the New Mexico Human Rights Commission.  She argued that Elane Photography is a “public accommodation,” akin to a hotel or restaurant, that is subject to the state’s anti-discrimination law.

The commission found against Elane and ordered it to pay $6,600 in attorney fees.  Elane Photography’s owners appealed the ruling, arguing that they are being denied their First Amendment right to the free exercise of religion (and a similar provision in the state constitution).  Furthermore, New Mexico’s Religious Freedom Restoration Act defines “free exercise” as “an act or a refusal to act that is substantially motivated by religious belief” and forbids government from abridging that right except to “further a compelling government interest.”

The state trial and appellate courts affirmed the commission’s order.  Elane Photography v. Willock is now before the New Mexico Supreme Court, where Cato has joined UCLA law professor Eugene Volokh and University of Minnesota law professor Dale Carpenter—who, like Cato, support gay marriage—in filing an amicus brief siding with Elane Photography on free speech grounds.

Our brief explains that photography is an art form protected by the First Amendment because clients seek out the photographer’s method of staging, posing, lighting, and editing.  Photography is thus a form of expression subject to the First Amendment’s protection, unlike many other wedding-related businesses (e.g., caterers, hotels, limousine drivers).

The U.S. Supreme Court has already ruled in Wooly v. Maynard that photography is protected speech—even if it’s not political and even if the photos are used for commercial value—and that speech compulsions (forcing people to speak) are just as unconstitutional as speech restrictions.  The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all.”  Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other photographers in the same area.

The New Mexico Supreme Court should thus reverse the lower court’s ruling and allow Elane Photography to be free to choose the work it desires.

Gay Marriage Still Has an Uphill Climb

The right answer to the same-sex marriage question is to remove government from the marriage business altogether.  That’s a legislative matter, however, and not something the courts should decree. Until then, because state and federal laws confer benefits based on marital status, the equal protection provisions of the Fifth and Fourteenth Amendments require that same-sex couples not be subject to discrimination in receipt of those benefits. But that issue was not addressed by the U.S. Court of Appeals in California—a state that permits gay unions and does not discriminate against such unions in conferring “marital” benefits. The specific issue the court decided was whether the label “marriage” could attach to heterosexual but not homosexual partnerships. Quite properly, the court ruled that it could not. That’s a narrow but important step in the right direction. But it does not settle the more significant question whether states may grant benefits to heterosexual couples while granting less or no benefits to homosexual couples.

In fact, there’s a negative aspect of the court’s ruling, which essentially declared Prop 8 unconstitutional because California went further than other states in allowing civil unions. The court held there’s no rational basis for allowing such unions but requiring that they carry a different label. That’s quite different from invoking the Equal Protection Clause to forbid a state from denying gays a right to the benefits of marriage. That issue didn’t arise because California grants such benefits to gays. Regrettably, other states may be dissuaded from following the California civil union model because their voters wish to limit the definition of “marriage” to exclude gays. In this instance, the better may become the enemy of the good.

The Circuit Court Ruling on Proposition 8

A three-judge panel of the Ninth Circuit Court of Appeals has ruled that California’s ban on same-sex marriage – enacted in 2008 in a popular vote on Proposition 8 – violates the constitutional right to equal protection. The court’s decision upheld a 2010 decision by former Judge R. Vaughn Walker, a Reagan-Bush appointee, that found marriage to be a fundamental right protected by the Constitution, and that the proposition “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.” Proponents of Proposition 8 will likely appeal the decision either to the full Ninth Circuit or directly to the Supreme Court.

The American Foundation for Equal Rights is the sponsor of the case, Perry v. Brown (originally Perry v. Schwarzenegger). Cato Institute chairman Robert A. Levy is co-chairman of AFER’s Advisory Board. He and co-chair John Podesta wrote in the Washington Post in 2010:

Nearly a century after the 14th Amendment was ratified in 1868, the Supreme Court unanimously affirmed that “marriage is one of the ‘basic civil rights of man.’ ” That 1967 case, Loving v. Virginia, ended bans on interracial marriage in the 16 states that still had such laws.

Now, 43 years after Loving, the courts are once again grappling with denial of equal marriage rights — this time to gay couples. We believe that a society respectful of individual liberty must end this unequal treatment under the law…. The principle of equality before the law transcends the left-right divide and cuts to the core of our nation’s character. This is not about politics; it’s about an indispensable right vested in all Americans.

Levy and Podesta, along with AFER’s lawyers Ted Olson and David Boies, spoke at this Cato Institute forum. And Levy also wrote about the case in this New York Daily News column.

In this 7-minute video Levy, Podesta, Olson, and Boies make the case for equality in marriage law:

Gay Marriage in New York

In the Wall Street Journal today, Cato senior fellow Walter Olson praises the New York legislature both for passing a marriage equality bill and for including guarantees of religious freedom in the bill:

For those of us who support same-sex marriage and also consider ourselves to be right of center, there were special reasons to take satisfaction in last Friday’s vote in Albany. New York expanded its marriage law not under court order but after deliberation by elected lawmakers with the signature of an elected governor. Of the key group of affluent New Yorkers said to have pushed the campaign for the bill, many self-identify as conservative or libertarian. A GOP-run state Senate gave the measure its approval….

To their credit, New York lawmakers devoted much attention to the drafting of exemptions to protect churches and religious organizations from being charged with bias for declining to assist in same-sex marriages. Exemptions of this sort are sometimes dismissed as a mere sop to placate opponents. But in fact they’re worth supporting in their own right—and an important recognition that pluralism and liberty can and should advance together as allies….

Critics have charged that same-sex marriage will constrict the free workings of religious institutions and violate the conscience of individuals who act on religious scruples. Many of the examples they give are by now familiar….

Observe, however, that it isn’t the legal status of same-sex marriage that keeps generating these troublesome cases; it’s plain old discrimination law. Thus New York’s highest court ordered Yeshiva University, an Orthodox Jewish institution, to let same-sex couples into its married-student housing. But that ruling happened a decade ago and had nothing to do with last week’s vote in Albany. In the case of the wedding photographer ordered not to act on her scruples, New Mexico didn’t then and doesn’t now recognize same-sex marriage. While some of these rulings are to be deplored as infringements on individual liberty, they’re not consequences of the state of marriage law itself.

Also: Cato’s forum on the legal challenge to California’s Proposition 8, featuring Ted Olson, David Boies, John Podesta, and Robert Levy. And an earlier forum on gays and conservatism featuring Andrew Sullivan, Maggie Gallagher, and British Cabinet minister Nick Herbert.

Republicans and the New York Marriage Law

Since New York passed a law extending marriage to same-sex couples, Republican presidential candidates have been mostly silent. But not Rep. Michele Bachmann, who has had a long and strong interest in gay rights issues. In an interview on Fox News Sunday she endorsed both New York’s Tenth Amendment right to make marriage law and the federal government’s right to override such laws with a constitutional amendment, confusing host Chris Wallace:

WALLACE: You are a strong opponent of same-marriage. What do you think of the law that was just passed in New York state—making it the biggest state to recognize same-sex marriage?

BACHMANN: Well, I believe that marriage is between a man and a woman. And I also believe—in Minnesota, for instance, this year, the legislature put on the ballot for people to vote in 2012, whether the people want to vote on the definition of marriage as one man, one woman. In New York state, they have a passed the law at the state legislative level. And under the 10th Amendment, the states have the right to set the laws that they want to set….

WALLACE: But you would agree if it’s passed by the state legislature and signed by the governor, then that’s a state’s position.

BACHMANN: It’s a state law. And the 10th Amendment reserves for the states that right.

WALLACE: All right. I want to follow up on that, because I’m confused by your position on this. Here’s what you said in the New Hampshire debate. Let’s put it on.

(BEGIN VIDEO CLIP)

BACHMANN: I do support a constitutional amendment on marriage between a man and a woman, but I would not be going into the states to overturn their state law.

(END VIDEO CLIP)

WALLACE: That’s why I’m confused. If you support state rights, why you also support a constitutional amendment which would prevent any state from recognizing same-sex marriage?

BACHMANN: Well, because that’s entirely consistent, that states have, under the 10th Amendment, the right to pass any law they like. Also, federal officials at the federal level have the right to also put forth a constitutional amendment….

WALLACE: My point is this, do you want to say it’s a state issue and that states should be able to decide? Or would like to see a constitutional amendment so that it’s banned everywhere?

BACHMANN: It is— it is both. It is a state issue and it’s a federal issue. It’s important for your viewers to know that federal law will trump state law on this issue. And it’s also—this is why it’s important—

WALLACE: And you would [sic] federal law to trump state law?

BACHMANN: Chris, this is why it’s so important because President Obama has come out and said he will not uphold the law of the land, which is the Defense of Marriage Act. The Congress passed the Defense of Marriage Act and Bill Clinton signed it into law, to make sure that a state like New York passed a definition of marriage other [sic] one man, one woman, that other states wouldn’t be forced to recognize New York’s law….

WALLACE: So, just briefly, you would support a constitutional amendment that would overturn the New York state law?

BACHMANN: Yes, I would. I would. That is not inconsistent, because the states have the right under the 10th Amendment to do what they’d like to do. But the federal government also has the right to pass the federal constitutional amendment. It’s a high hurdle, as you know.We only have 27 amendments to the federal constitution. It’s very difficult. But certainly, it will either go to the courts, or the people’s representatives at the federal level.

Congratulations to Chris Wallace for his tenacious questioning. Presumably the way to understand Bachmann’s position is that she thinks states have a Tenth Amendment right to make their own laws in any area where the federal government doesn’t step in, and she supports a federal law overriding state marriage laws. That includes the Defense of Marriage Act, whose Section 3 says for the first time in history that the federal government will not recognize marriage licenses issued by the states. And it also includes a federal constitutional amendment to prohibit states from implementing equal marriage rights for gay couples.

Bachmann is not the only Republican who should be asked about the tension between support for the Tenth Amendment and support for federal laws and amendments to carve exceptions out of the Tenth Amendment. This month George Will has praised two Texas Republicans: First, Senate candidate and former Texas solicitor general Ted Cruz, whom he called a “limited-government constitutionalist” and who wrote a senior thesis at Princeton “on the Constitution’s Ninth and 10th amendments. Then as now, Cruz argued that these amendments, properly construed, would buttress the principle that powers not enumerated are not possessed by the federal government.” And second, Governor Rick Perry, who “was a ‘10th Amendment conservative‘ (‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people’) before the Tea Party appeared.”

Cruz boasts on the same page of his website of his support of both the Tenth Amendment and DOMA. Does he really think, as a staunch defender of the Tenth Amendment, that the federal government should override the marriage law of the great state of New York? Perry may be a consistent Tenth Amendment conservative. In his book Fed Up! Our Fight to Save America from Washington he makes his opposition to gay marriage more than clear. But he does write, “Crucial to understanding federalism in modern-day America is the concept of mobility, or the ability to ‘vote with your feet.’ If you don’t support the death penalty and citizens packing a pistol, don’t come to Texas. If you don’t like medical marijuana and gay marriage, don’t move to California.” And an NPR interviewer reported:

States should be free to make decisions regulating such things as taxes, marijuana and gay marriage, Perry says.

“If you want to live in a state that has high taxes, high regulations — that is favorable to smoking marijuana and gay marriage — then move to California,” he says.

Now that a large state has made national headlines by passing a gay marriage law—without any prodding from the judiciary—more political candidates, from President Obama to his Republican challengers, are going to be pressed to make their positions clear on the issue of marriage equality itself, on federalism and the powers of the states, and on the lawsuits that are moving through the courts.