Galois

One Year Later

The decision of the SJC will go into effect Monday, May 17, 2004, at which time marriage as universally understood for millenia of human history will be forever changed. Chaos will ensue. Marriage has always been between opposite-sex couples, and for good reason. The incredible upheaval in Massachusetts is inevitable. - Appellant's Memo in Largess v. Massachusetts. 

I thought I would write a wonderful post in honor of the one year anniversary of marriage equality in Massachusetts.  Unfortunately, I'm a little short on time, so instead I provide links.  From today's Boston Globe editorial:

Another opportunity to measure the effects of gay marriage in Massachusetts will come this fall, when legislators again take up the constitutional amendment banning gay marriage -- but allowing parallel civil unions -- that they initially approved in March 2004. We are optimistic that the state's elected representatives will accept the thousands of individual commitments made in the past year and vote down the proposal. The legislators need not fear constituent anger: Every one of the legislators who voted against the ban last year was reelected; and three additional supporters of gay marriage won special House elections this spring.

It strains the imagination to see how a year of gay marriage has caused the state any discernible harm. Supporters even point to a modest economic boost due to tourism and other local spending on gay weddings. But the reason to toast today's wedding anniversaries has little to do with tax revenues and everything to do with the riches that come from extending civil rights to every citizen.

For more on the prospects of that amendment see this Globe article:

The erosion of support for the amendment, which won preliminary approval by four votes in March 2004, is caused by several factors, including the considerable clout of new House Speaker Salvatore F. DiMasi, a supporter of gay marriage; a net gain of four gay-marriage supporters in recent legislative elections; and increasing acceptance of gay marriage among the public....

A Boston Globe poll in March indicated that 56 percent of those surveyed supported gay marriage, 37 percent were opposed, and 7 percent were unsure. By comparison, a Globe poll conducted in spring 2004 indicated that 40 percent of those surveyed supported gay marriage. Those who either wanted to ban gay marriage and replace it with civil unions, or who wanted neither, represented 45 percent of those queried.

Like the majority of those surveyed, Lees, the state Senate's ranking Republican, said the relative lack of apparent societal damage caused by the onset of same-sex marriage has given him pause -- even though he was a coauthor of the amendment before the Legislature.

An even more recent poll (pdf) was comissioned by MassEquality and the results are great:

By a margin of 62% to 35%, voters say that gay or lesbian couples should have the right to enter into a legal marriage...fully 61% approve, and only 37% disapprove of the court’s decision to permit same-sex couples to marry...Fully 36% say legalized “gay marriage” has had a positive impact on Massachusetts, while compared to only 13% who say it has had a negative impact...with 68% saying that gay marriage has had a positive impact on gays and lesbians in Massachusetts (10% say it has had a negative impact), and 53% say it has had a positive impact on children being raised by gay and lesbian couples, compared to 17% who say it has had a negative impact...When asked about whether it is better for marriage or civil unions to be available to gay or lesbian couples, a majority of voters opt for marriage over civil unions by a margin of 50% to 32%, with 12% saying neither. This is substantial increase in support for marriage from the 38% to 23% margin (with 32% saying neither) in 2003.

The best thing I can leave you with today is a must read op-ed in the Globe by Anne and Chad Gifford who finally had the great joy of seeing their son marry the man he loves.  Please read it, but I will leave you with this brief excerpt:

Our initial period of concern and confusion and the subsequent learning has, at times, been tumultuous. But how could we as parents not do all we could to embrace our child? How could we not do all we could to strengthen our family? Many object to equal marriage because it represents an attack on family. This is tragic and wrong. Family means love and support for all, not the marginalization of one member of the family.

We have now had one year of legal same-sex marriage in our state. Despite predictions, we have not witnessed any threat to so-called ''traditional marriage." There has not been an attack on family, and almost all would admit that very little has changed. In fact, however, something has changed. Many of our citizens have experienced the joy of marriage for the first time where the laws of our state have said, ''You are equal." We have seen that joy in our son. To take that away would be an injustice. It would be devastating for our family and the real values we believe family should represent.

Bills of Attainder and Equal Protection

On Friday, because of time constraints, I gave a brief overview of the recent decision in CFEP v. Bruning (pdf) which struck down a Nebraska State Amendment prohibiting any recognition of same-sex relationships.  With a little more time today, I thought I would present some of my own views on the decision. I will start with the least defensible aspects of the decision and proceed to the most defensible.  In short, I believe that everything the court found wrong is most properly put into the consideration of the equal protection violation, and it is on that violation that the opinion is most justified by logic and precedent.

The least defensible part of the opinion was ruling that the amendment infringed plaintiffs first amendment right to petition for redress of grievances.  For one thing, as far as I can tell this argument was never raised by the plaintiffs directly in their complaint (pdf) or elsewhere.  In so far as the plaintiffs complained about their inability to seek protections from the Unicameral or the governor the complaint was an equal protection one.  That is gays and lesbians were unfairly being singled out in their ability to seek protections for their families.  An opposite-sex couple could seek protections for their non-marital relationship, but a same-sex couple could not seek the same protections.  As many people have noted any constitutional provision makes it more difficult to advocate for certain legislation, it only seems troublesome if it targets particular groups like the amendment before the court here.  The case that seems most on point to the violation here was Romer v. Evans which was decided on equal protection grounds, and not first amendment grounds.  At best this section of the opinion should be understood as the court emphasizing the significance of the impact of the amendment on same-sex couples and their families.  Thus the court wrote:

The elucidation of the constitutional deprivation at issue is preliminary to any finding that Section 29 violates either the Equal Protection Clause or a finding that Section 29 amounts to an unconstitutional bill of attainder and is, thus, properly before the court.

Unlike most of the cases the court relied upon in this section, though, the amendment did not prohibit the plaintiffs free speech rights, and it did not prohibit their right to stage rallies or form organizations to lobby for gay rights.  I disagree, then, with the court that absent any violation of equal protection the amendment needs extra justification.  The court should have, as the Supreme Court did with Romer, focused on this directly in the context of the equal protection violation.

The bill of attainder violation I think caught most people by surprise, but at least this was raised by the plaintiffs in their complaint.  The idea is that the purpose of the amendment was punitive in nature.  It sought to punish gays and lesbians by denying any recognition to their most important relationships.  There is certainly evidence for this, both on the face of the amendment itself which singled out same-sex relationships for the denial of any recognition as well as contextual evidence in the passage of the amendment and even in its defense before the court.  As the complaint notes:

[Guyla] Mills, [who led the petition drive to place Initiative 416 on the ballot and chaired the Defense of Marriage Amendment Committee in support of Section 29, publicly] explained that the second sentence of Section 29 was necessary “to send a message to society about homosexuality. . . that homosexuality and heterosexuality are not morally equivalent.” Mills stated that Section 29 was based on the prevailing morals of society and explained the importance of sending a strong message about homosexuality, “that homosexuality is a sin and should not be sanctioned even by ‘quasimarriage’ unions such as domestic partnerships and civil unions.”

The State even acknowledged in its defense (pdf) of the amendment that "Plaintiffs started the political fight that resulted in the adoption of Section 29."  Throughout there is a notion that the plaintiffs brought it upon themselves and this amendment was retribution for their advocacy of marriage rights.  "They had it coming" is not a legitimate legislative purpose for an amendment, but rather an indication that it is intended to punish a certain group (for which it is believed the punishment is deserved). 

Still, it is hard to see why it is necessary to frame things in terms of the Bill of Attainder clause.  If the purpose of the amendment was punitive, then it would violate the equal protection clause as in Romer, Moreno, or City of Cleburne.  Likewise it is hard to see how it could survive an equal protection claim and still be considered a bill of attainder.  In truth, it seems to me that any bill of attainder would be a violation of equal protection and/or due process, and thus the clause may be somewhat redundant this days.  Still, this section seems unnecessary in light of Romer.

This brings us to the equal protection violation.  As noted above, evidence from both the text of the amendment itself and the context in which it was passed, interpreted, and defended, that "the decisionmaker selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group" (Personnel Adm'r v. Feeney (1979)).  As in Romer the amendment is remarkably unusual in its selection of a narrow group for such a broad impact.  No other state in passing such a constitutional amendment struck so broadly in the denial of recognition of specifically same-sex couples.  How is that the state finds it necessary to prevent same-sex domestic partnerships, but not opposite-sex domestic partnerships?  When the Unicameral was considering allowing evidence of surviving partners of long-term committed relationships to make decisions regarding anatomical donations, the Attorney General delivered an opinion that this would violate amendment 29 because it would include same-sex couples.  If the proposal had only included non-marital heterosexual relationships the legislation would have been fine.  How in the world is this supposed to support heterosexual marriage?  So I cannot agree with Eugene Volokh that this law is a much better fit than Romer.  Nor do I agree with him that it necessarily follows from the court's reasoning that same-sex marriages must be recognized.  While I fail to see how restricting marriage to heterosexual couples advances any interest, the court was not considering that here.  One could suppose that the government's interest in marriage somehow requires that the definition be gendered, without necessarily believing that it must therefore be necessary to deny any recognition to same-sex relationships, while permitting the recognition of opposite-sex cohabitation. 

Volokh also notes:

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.

There was, however, evidence that the State had already been reading the amendment so broadly that it was unconstitutional.  Even supposing for a moment that there was a way to narrowly read the second sentence of the amendment so that it would be constitutional, what is the court to do to cure the unconstitutional implementation of it?  It cannot dictate to all Nebraska officials how they must interpret their own constitution, and even if it could, the court could not rule in advance on the constitutionality of unnumbered possible acts not before it.  The only alternative I could see is for the court to strike down the amendment and leave it to Nebraskans to pass a narrower amendment if they so wish.  This is, of course, not to mention the evidence that the entire amendment is tainted with the invidious motives noted above.  As Jason Kuznicki writes:

But let's be frank about all of this.  The real goal of the voters here was never to encourage heterosexual marriage.  Nor was it even to discourage homosexual marriage. The real purpose behind this amendment was to prevent dykes and faggots from being treated as though they were actually human beings. Now we can dream up all sorts of potential reasons that might justify the amendment, and, through some wondrous instinct toward self-preservation, the law itself even requires us to do so when it happens to fail. But we know the real reason behind the amendment, and it should be abundantly clear to everyone. At times it was even clear to Judge Bataillon, as when he cited Romer v Evans, a case that struck down an anti-gay Colorado amendment after finding behind it no greater rationale than "animus." Laws like these are not merely illegitimate, in the sense of lacking a genuine aim. They are downright oppressive.

Romer Returns

U.S. District Judge Joseph Bataillon today struck down an amendment to the Nebraska constitution which prohibited any recognition of same-sex relationships.  Before going further I want to emphasize that the judge did not rule on same-sex marriage, nor did he rule that same-sex couples were being unconstitutionally denied the protections of marriage.  The problem with the amendment was that it prohibited same-sex couples and others who would advocate on their behalf the ability to seek these rights through the political system without amending the constitution.  The situation was very similar to Colorado's Amendment 2 which was struck down by the US Supreme Court in Romer v. Evans (1996), and not surprisingly in today's opinion (pdf) Judge Bataillon made repeated reference to Romer. 

The Nebraska amendment, which passed overwhelmingly in 2000, read as follows:

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.

It was the second sentence that the court found troublesome.  It ruled that it interfered with the first amendment right "to petition the government for a redress of grievances"  (as applicable to the states via the fourteenth amendment), it violated the fourteenth amendment right to equal protection as its interference with first amendment rights was discriminatory, and finally it considered the amendment to effectively be a bill of attainder in violation of article I, section 9 of the US Constitution (I guess on the theory that it too is applied to the states via the fourteenth amendment).  The court noted that the amendment did far more than define marriage.  It disenfranchised same-sex couples and their allies from seeking protections for their families through normal governmental channels.  The Attorney General of Nebraska had offered his opinion that any bill that would grant any right traditionally associated with marriage to couples which include same-sex couples would run afoul of the Amendment 29.  As the court noted:

Plaintiffs seek only “a level playing field” that would permit them to access the Nebraska Unicameral to lobby for legal protections that have already been permitted in other states. Plaintiffs assert that they seek only to advocate to members of the Unicameral for passage of legislation that would make domestic partners responsible for each others’ living expenses; allow a partner hospital visitation; provide for a partner to make decisions regarding health care, organ donations and funeral arrangements; permit bereavement leave; permit private employer benefits; allow survivorship, intestacy and elective share; and permit same-sex couples to adopt children.

It is not that Nebraska had to allow these protections, but rather that they at least had to allow people to advocate for getting these laws passed.  If the state only wanted to keep the definition of marriage, they could have just had the first definition.  If they were worried about the equal protection or due process clause of their constitution being used by courts to order rights or protections to same-sex couples, the amendment could have made clear that no clause of the constitution guaranteed any such rights.  It is one thing to say a constitution does not guarantee certain protections, it is quite another to say it prohibits it. 

Nebraska Attorney General Jon Bruning has already said he would appeal the ruling.  The greatest difficulty he will have is distinguishing this case from Romer.  Apparently he tried two ways to do so.  One was that the amendment did not retroactively remove any protections.  The main concern with Romer was that it stifled the ability to seek protections through the normal political process just as Nebraska's amendment does.  The other way Bruning attempted to distinguish Romer is that it is not as broad dealing only with "marriage".  The amendment, however, is quite broad in denying the ability to seek any sort of protections for same-sex couples and their families.

So some will try to use this decision to argue the necessity of some federal amendment, but this decision said nothing about prohibiting same-sex marriage.  It just said everyone should be able to seek protections through their government.