Clearly there’s a lot of interest swirling around because SCOTUS is taking up Prop 8 and DOMA. And, as always, public interest in legal matters spawns armchair lawyering as people scramble for “legalese” justifications of the view they already hold.
Anyway, many people chime into the conversation and say something like:
[ul][li]"Yes, but gay people aren’t a protected class."or“Maybe, but marriage is not a constitutionally protected right.”[/ul][/li]
…and leave it at that. Which kind of leaves me wondering…
Question the first:
Do you have to be a member of a protected class to benefit from the Equal Protection Clause? The plain text of the Fourteenth Amendment doesn’t make it seem that way. I gather that, not being part of a “suspect class”, courts may have a different (lesser?) standard of scrutiny in constitutional matters, but couldn’t SCOTUS rule in favor of a plaintiff in terms specifically related to equal protection even if that plaintiff isn’t part of such a class?
Question the second:
Is marriage a constitutional right? Reading the decision for Loving v. Virginia certainly makes it sound that way even if Warren couched his language in race rather than gender preference.
Just to disclose my personal bias: I’m for gay marriage
As I recall, and my information is a couple decades old, it’s not so much that everyone isn’t entitle to equal protection. They certainly are. I think the issue has to do with the level of scrutiny to be applied. There’s one level for “normal” people and one for protected classes which have been clearly shown to have previously been denied equal protection.
Of course I would have to look this up to be sure but I’m a lazy son of a bitch (also not a protected class).
No. But classifications that do not involve a protected class are analyzed under a very deferential standard of review known as “the rational basis test.” It is very difficult to overturn a law under this level of scrutiny.
There are caveats, but in my view it’s fair to say that marriage is a right that finds support in current constitutional case law.
I’m pro gay marriage as well, on ethical grounds. The legal challenge, though, is tricky. As for your first question, yes, everyone is entitled to equal protection. Yet, we have lots of laws which discriminate. The constitutional test is whether the discrimination is permissible. Generally, the courts give wide leeway to the legislature (or the people acting by voter initiative). As Bricker says, if the discrimination has a rational basis, it stands. Whether the DOMA meets even this low burden is one of the questions the Supreme Court will decide. Only discrimination against protected classes, though, gets close scrutiny. Hence the importance of whether gays are a protected class. As for your second question, yes, Loving described marriage as a fundamental right. It also, as you note, involved a protected class. More to the point, nothing in Loving said everyone may marry whomever they choose. The laws against bigamy, for example, survived. Whether society may limit marriage to a man-and-woman, then, seems to refer back to discrimination.
All of which is to say, don’t be too hard on the Supreme Court if it rules this is a matter on which it can’t (or won’t) intervene. There’s plenty of case law precedent for that outcome. There’s plenty for the interventionist outcome also. It could go either way.
A very nice, concise and clear answer. A couple of notes which hopefully will not obfuscate what Bricker was at pains to make simple:
“Sexual orientation” is a protected class in some states’ equal protection jurisprudence. It is not in federal jurisprudence as yet, and the courts have been very loath to add new categories of protected class to the list. Both the Goodridge case establishing gay marriage in Massachusetts and the case which found California’s Prop. 22 unconstitutional, setting the state for the passage of Prop. 8, were founded on state constitutional equal protection grounds not involving Federal questions.
The “rational basis” test which Bricker references requires only that the court find some rational basis that the legislature might have used in passing a law; it’s very close to the “presumption of constitutionality” which someone challenging a law’s constitutionality is required to overcome by reasonable proof. But it is not totally a “gimme” presumption – the courts must at least be able to identify some rational basis the legislature might have used. The Romer case finding that Amendment II to the Colorado State Constittion barring gays from use of the courts had no rational basis is an example of where this is a real test; such cases have been described in jurisprudential literature as “rational basis with bite.”
The right to marry was described as a fundamental right, an integral part of the ‘liberty’ guaranteed by the 5th and 14th amendments, in the Loving case (which called on the earlier Skinner case for not-quite-on-point precedent). As such, it is in the conservative sound-bite phrase “judge-made law” – but it has 50 years of solid precedential validity as stare decisis. While what one SCOTUS bench decided, another could overturn, it is extremely unlikely that such a decision would happen – and it would be political suicide for any court to do so, given the fact that both sides believe themselves to be highlighting the social importance of marriage.
There are those who regard Loving as only finding anti-miscegennation laws unconstitutional. This can be disproven by review of the actual text of theopinion. Marriage, it says, is a fundamental right. Therefore a state law prohibiting marriage between persons of differing races is ultra vires and hence unconstitutional.
Thank you, Bricker, for the concise answer and, Polycarp, for the excellent elaboration complete with appropriate legal terminology and relevant case law. Seems I’ve some reading to do… But basically, while gays can enjoy Equal Protection, they’ll be hard-pressed to do so as an unprotected group. And, while there is precedent for marriage as a right, the related decisions contain sufficient ambiguity as regards the term “marriage” to make it difficult to definitively apply them directly to the issue at hand.
As an aside: It’s kind of annoying how often it’s impossible for someone to be objectively right in matters of law.
Then there’s the question - what are protected classes and how?
IIRC the ERA failed to pass as an amendment. Sex discrimination is simply banned by a law (or laws, counting the states). Law vs. law is not the same as constitution vs. law.
So, for example, to overrule DOMA - I assume the people who drafted it did not neglect to make it exempt from civil rights laws; so unless the SCOTUS pulls a new antidiscrimination right out of somewhere moist, dark and hidden, they do not have a means to declare it invalid?
However, if there is a historical recognition of rights that apply to “common law” marriages (yes, there is no such thing in many states?) then they could perhaps rule that the same rights adhere without discrimination about gender?
Similarly, there needs to be a stronger principle to override a state constitutional amendment?
One of the comments I saw was that some think SCOTUS will find a narrow grounds to weasel out of making a definitive permanent judgement - i.e. the group arguing for PROP8 is a separate body, not the government of California, therefore by ruling they have no standing, they avoid the decision over the basic issue for now. SCOTUS has often taken the back door that way…
Another relevant question - while states don’t recognize same-sex marriages valid in other states; has there ever been a case where a state refused to recognize a marriage from another state because the state does not allow first-cousin marriages, under age, or similar disallowed marriage criteria? Or do such marriages remain valid in every state? (Goodness gracious, great balls of fire!!)
I’m not sure if this is still true but I think one reason why incest related marriage laws were permitted was public policy. It was believed that within a certain degree of relatedness (???) there was a higher incidence of genetically transmitted disease. I think it’s still statistically significant for first cousins, but whether or not it’s enough to justify making it illegal, I wouldn’t hazard a guess.
For those interested, here’s a link to the full decision in Loving. The fundamental right of marriage discussion (Part II) is exactly two paragraphs long and less than 20% of the opinion:
By my reading, that’s about discrimination. Would that it were broad enough to cover SSM without suspect class protection. Unfortunately, it ain’t.
But this goes back to my question - Virginia did not, it seems, consider the marriage “null and nonexistent”, they considered the Lovlins legally married from elsewhere but in violation of some provision of the state law.
Is there a case where a state says “we don’t consider you married” - because the couple, although legally married under another state’s criteria (I.e. some states allowed marriages when the girl was 13, some states allow first-cousin marriages) the couple violate the criteria in the second state? Or is gay marriage unique in this regard?
The only situation that comes to mind is polygamous marriages from foreign countries. Not sure what the legal status is there? (Those relgious splinter group multiple marriages in the USA would not count because they are not legal under any states’ laws.) I presume the spousal rights don’t exist, but I wonder about “under-age” laws being applied to some visiting sheik’s 17-year-old fourth wife?
Well, the trick here is what do you mean when you say “marriage”. Do you mean one man and one woman? Clearly, the answer is yes.
Do you mean any two adults regardless of the genders? Unclear at this point.
Do you mean any two or more adults, regardless of the gender? Almost certainly not, but still unclear as it has not been challenged in the SCOUTS.
When the SCOTUS used the the term in Loving, what definition were they using? Can the SCOTUS change the definition contrary to what the legislature says? These are all GD type discussions.
A quick Google search suggests states are not required to recognize marriages not legal in their jurisdiction. (Although they may. That was the situation in the Windsor case.) Only had time for a brief skim, so may have missed something, but thought I’d pass along the search for your own research efforts.
Unfortunately, any terms related to my query tend to google-flood me with same-sex articles.
I see on Wikipedia, for example , Arkansas:
Reading between the lines, even though under-age marriages are not permitted locally, only same-sex marriages are explicitly not recognized. From what I read about “Great Balls of Fire” Gerry Lee Lewis, I never heard anything hat suggested any state he visited would consider his marriage null and void and therefore would charge him with child sexual assault… ditto for Loretta Lynn and her husband… of course, that *was *a different time.
Maybe because the baby was born August 24th and they were wed in May? Baby, 7-pound, 1-ounce baby girl, is at home, not in an incubator.
I guess the inference is that he, 22, had sex with her, 13, before he had the benefit of matrimony to protect him. A full-term baby 4 months after the marriage is a fairly definitive proof.
So if he had been married first, would they have done anything? Or if the date had been questionable?
I didn’t see anything suggesting they were charging him for any activity after the marriage happened.
A couple notes – the DOMA case is not grounded in Equal Protection or Due Process (fundamental right) jurisprudence. It’s a federalism case, arguing that federal diminution of certain marriages is an impermissible encroachment by the federal government on the traditional state power to regulate marriage and family law. States decide who can marry and under what circumstances, but by enacting DOMA, the federal government made it impossible for Massachusetts, Maryland, Iowa, etc., to grant the full panoply of rights and responsibilities to couples in legal marriages, something that is a fundamental exercise in state power.
The Prop 8 side is definitely a 14th Amendment case, although the court (from what I’ve read – haven’t more than skimmed the decision, and that not recently) did say it failed under even rational basis. That’s pretty much bullshit – until gay rights cases started appearing in the '90’s, rational basis was such an easy test there was almost no way to fail it, and it’s gotten teeth almost exclusively, AFAIK, in gay rights cases, because it’s really judges who want to apply a more stringent test but don’t want to call it that because they knew it wouldn’t pass appellate review.
Don’t know where you got that understanding, but it’s not correct. Windsor (the DOMA case) is squarely grounded in equal protection (as a subset of the federal due process clause). Here’s the full opinion (see, e.g., p.2). That’s long. If you prefer, here’s the Wiki. To be sure, federalism is discussed (see p.35 et seq. of the full opinion), but the basis of the decision is equal protection. Circling back to the OP (and bearing in mind we’re in GQ not GD), the majority opinion and dissent in Windsor illustrate pretty well why suspect classification, and hence the standard of review, is the key issue in answering the legal question.
As for your query, md2000, it sounds like you tried to create your own search rather than click on mine (which, if fact, was generated by Google based on my initial search terms). See here for the basis of the summary I gave above. That’s a Yale law professor, BTW, not just some “average site.”