<<  <  >  >>

Judicial decisions

light of Justice Scalia's fretting that same-sex

require states to recognize same-sex marriages

performed elsewhere.35 This does not mean, of

marriage may soon be the child of Lawrence,40

since Lawrence

course, that litigants might not be able to find

these qualifications signal a Court that seems

have interpreted

a state or federal court judge willing to do so.

very unlikely even to address the issue in the

it to have a very

But it does mean that the chances of having

near future, much less take the bold step of

such a ruling withstand appellate review are

ordering nationwide recognition of same-sex

limited reach.

slim. In fact, in the first attempt of a married

marriage.

gay couple from Massachusetts to have their

Judicial decisions since Lawrence have

marriage recognized in their new home state,

interpreted it to have a very limited reach.

DOMA was upheld against precisely this

The Eleventh Circuit, for example, held in

FFCC challenge.36

2004 that Lawrence did not render unconsti-

tutional a Florida law that barred homosexu-

als from adopting children.41 Whether or not

Substantive Federal Constitutional Doctrines

It is also unlikely that the Supreme Court

such decisions are correct in their application

or the federal appellate courts, for the foresee-

of Lawrence, they do signal that federal courts

able future, would declare a constitutional

have been very cautious in its wake. There is

right to same-sex marriage under present

simply no ground to believe that they will use

understandings of substantive doctrines aris-

Lawrence as the progenitor of gay marriage

ing from the Fourteenth Amendment's Due

any time in the foreseeable future.

Process Clause or the Equal Protection Clause.

A separate argument could be made that

No federal or state appellate court, to date, has

same-sex marriage is protected by the funda-

declared such a right under any substantive

mental right to marry--also protected by the

Due Process Clause.42 But, again, regardless

federal constitutional doctrine. Thus, once

again, we are dealing with a purely hypotheti-

of the merits of such a claim, since no federal

cal fear of a possible future ruling by a court of

court has yet accepted an argument that the

last resort.

fundamental right to marry extends to gay

The Due Process Clause. Lawrence v. Texas,37

couples, the possibility of a future ruling on

this basis is purely hypothetical and in any

the 2003 Supreme Court decision using the

event unlikely for the prudential reasons dis-

Due Process Clause to strike down Texas's law

cussed below.

criminalizing homosexual sex, has been trans-

The Equal Protection Clause. The Equal

formed by some popular media and by FMA

Protection Clause hardly seems more promis-

supporters into a pro-gay-marriage decision. It

ing in the near term for advocates of gay mar-

is not that. In Lawrence, the Court emphasized

riage. The only justice in Lawrence to embrace

that the Texas law violated the right to liberty

this seemingly more gay-marriage-friendly

insofar as it intruded on private sexual rela-

tions between adults in the home.38 The inter-

argument, Justice O'Connor, made clear her

unwillingness to take the doctrine that far,43

est involved was the liberty to avoid state

intrusion into the bedroom via criminal law. It

and has since retired from the Court.

Romer v. Evans,44 sometimes cited as an

did not involve the liberty to seek official state

recognition of the sexual relation, along with

example of judicial activism that might lead to

all the benefits state recognition entails.39

gay marriage, has not had much generative

force in fighting legal discrimination against

Lawrence involved the most private of acts (sex-

gay people. That may be because of the

ual conduct) in the most private of places (the

unprecedented nature of the law the Court con-

home); marriage is widely understood to be a

fronted in Evans: a state constitutional amend-

public institution freighted with public mean-

ment that (1) targeted a single class of people

ing and significance.

(homosexuals) and (2) sweepingly denied them

The Court noted explicitly that it was not

all civil rights protections in every area of life,

dealing with a claim for formal state recogni-

from employment to housing to education.

tion of same-sex relationships. Especially in

8