Tag: SSM

Supporting Marriage Equality in Utah and Oklahoma

Utah Constitutional Amendment 3, passed by referendum in 2004, states that no union other than one between a man and a woman may be recognized as a marriage. Derek Kitchen and five co-plaintiffs took issue with this definition and filed a lawsuit in federal district court last year to challenge the gay marriage ban. In a surprising and widely publicized December 2013 ruling, the court invalidated the amendment, finding that such a restriction was an affront to equal protection and the fundamental right to marry.

Meanwhile, Mary Bishop and Sharon Baldwin also filed a federal suit to challenge a similar provision that was added to Oklahoma’s constitution by referendum in 2004. Like Utah’s district court, the Oklahoma district court found the amendment unconstitutional. Following on the heels of last term’s Supreme Court ruling in United States v. Windsor—which struck down part of the Defense of Marriage Act—these ground-breaking red-state cases are now both before the U.S. Court of Appeals for the Tenth Circuit, which will consider the constitutionality of a state’s decision to exclude same-sex unions from the definition of marriage.

Reprising our collaboration in Hollingsworth v. Perry—the Prop 8 case in which the Supreme Court avoided ruling on the merits—Cato and the Constitutional Accountability Center have filed a brief supporting the Utah and Oklahoma plaintiffs’ fight for equality under the law in their respective challenges. We argue that the Equal Protection Clause of the Fourteenth Amendment was intended to protect from this same type of arbitrary and invidious singling-out that the Utah and Oklahoma marriage restrictions effect; that the original meaning of the Equal Protection Clause confirms that its protections are to be interpreted broadly; and that the clause provides every person the equal right to marry a person of his or her choice. We believe that the Utah and Oklahoma constitutional amendments conflict with the equal protection rights of those same-sex couples whose unions are treated differently than those of opposite-sex couples.

Every person has the right to choose whom to marry, and to have that decision respected equally by the state in which they live. Especially in the wake of Windsor, it is becoming clearer that laws like these that force same-sex unions into second-class status have no place in a free society. The Tenth Circuit should affirm the district courts’ decisions.

With briefing in Kitchen v. Herbert and Bishop v. Smith now complete, the Tenth Circuit will be hearing argument shortly, with a decision expected in late spring or summer.

This blogpost was co-authored by Cato legal associate Julio Colomba.

 

Supreme Court Could Also Strike Down DOMA on Federalism Grounds

One of the more interesting and potentially influential amicus briefs in United States v. Windsor, the case challenging DOMA Section 3, is one filed by a group of federalism scholars, all of whom have some connection to Cato and/or are generally sympathetic to the positions we take at the Center for Constitutional Studies. As Dale Carpenter puts it on the Volokh Conspiracy blog:

Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy Barnett, and Ilya Somin — as well as Ernie Young and Lynn Baker in filing an amicus brief in United States v. Windsor arguing that DOMA Section 3 is unconstitutional. While this conclusion is shared by 69% of constitutional law professors around the country, our route to that end is probably not as widely shared.

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status.  While Congress has not (yet?) claimed a statutory authority to bar states from recognizing specific marriages, it has greatly complicated and burdened their police power to do so through the enforcement of DOMA. It may well be that Congress has authority to limit access to specific federal benefits otherwise available to validly married people.  But Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any “legitimate” interest of the federal government.

This may be an appealing argument for those on the Court who take federalism seriously and have a problem with Section 3 but may not be ready to extend the constitutional right to marry to same-sex couples. Coincidentally, the justice most likely to fall into that category is Anthony Kennedy—who will almost certainly be the swing vote in these cases—but the four “conservative” justices could also sign on to something like this even as they vehemently reject the broader constitutional argument in Hollingsworth v. Perry (the Prop 8 case) or in future cases challenging state denials of marriage licenses.  The four “liberal” justices, meanwhile, don’t care about limiting federal power through constitutional structure, but will presumably vote to strike down Section 3 on equal protection grounds.

Indeed, as I wrote in December, “I could see an opinion stating that marriage is an issue that our federal system leaves to the states and the federal government has to respect each state’s definition of it in granting benefits based on that status. That would mean that federal benefits would operate differently in different states, but so be it; gay married couples would have an incentive to live in the growing number of states that recognize their relationships.”

This federalism argument may ultimately be too clever because the federal government certainly does have the power to define the terms in its statutes, which would collapse the issue in Windsor back to whether the restriction on DOMA’s definition of marriage survives equal protection analysis (on which see Cato’s brief). It would also probably be a mere way-station on the road to full marriage equality, becoming increasingly academic as more states allow same-sex marriage. But, as I said, it’s more likely to resonate with certain members of the Court—and could have the potentially more important benefit of strengthening federalism in other areas of policy.

It would also mean the striking down of arguably the most signficiant federal law on federalism grounds in the modern era. We shall see.

“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.