Same Sex Marriage: Free Association and Due Process Protection

by Cliopatria

That rustling noise you hear is the Alliance Defense Fund (see also here) phone tree: a federal judge overturned a state constitutional initiative against same sex marriage, and I'd bet dollars to donuts that the Defense of Marriage Amendment is going to be back on the table before the week is out. The decision is based on"expressive and intimate associational rights" and the"right to petition or to participate in the political process," both of which seem pretty sound (that's amendments I, V, IX, and XIV if my score-keeping is correct; Orin Kerr's scorekeeping tallies pretty closely with mine and he's a smart lawyer). It follows pretty closely some of the same arguments used in New York in the sense that the ruling relies on the fact that our definition of family is too broad to rationally exclude homosexual unions: Judge Joseph Bataillon pointed out that the Nebraska amendment would place significant burdens on non-homosexual couples of all sorts, including"potential adoptive or foster parents and children, related persons living together, and people sharing custody of children."

Eugene Volokh thinks the decision will be reversed; I think he's conflating citations of previous cases with reliance on previous cases, and that the decision can stand on its merits. He believes that"despite the court's protestations, its reasoning necessarily means that states are constitutionally required to recognize same-sex marriage" [emphasis in original]. Good. Regular readers know how I feel about same-sex marriage: it's inevitable, just and good, and the sooner we write reasonable laws permitting it, the fewer problems we'll have. Creeping change gets messy (especially when you forget to repeal things) and trying to legislate culture is absurd. I have heard lots of good arguments in favor of it -- it's interesting to note that the HNN Index on Gay Marriage is overwhelmingly so, even aside from my entries -- and none against it. Marriage has changed in the past in spite of immense resistance, and largely for the better. We just can't maintain the distinction between heterosexual and homosexual unions on any rational grounds.

Someone mentioned to me today that it's been a year since Massachusetts legalized gay marriage. What surprises me, frankly, is that Nevada hasn't.

Update (No, I'm not going to post links to the whole blogospheric spasm on this case, I promise): Jason Kuznicki expands on his comments here arguing both that the decision is deeply flawed (following Volokh, mostly, which I think is an error except in a very technical sense) and that the amendment is indefensibly bigoted (which I certain agree with). And there's the obligatory libertarian rejection of state interest in private matters, which is fine, but will require dismantling a massive compendium of state and federal law before it's relevant.

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Jonathan Dresner - 5/14/2005

Yeah, we've had this fight before. There's a pretty big gray area between referendum and judicial fiat, which involves judges reconciling existing law with existing practice in ways which clarify the application of legal and constitutional and statutory definitions to new situations. The decision in this case, in spite of Volokh's analysis, does not require that the state do anything, merely that it refrain from violating the existing rights of its citizens. That argument may yet be extended to include positive injunctions, but unless those rights are curtailed by constitutional statute, there is no inconsistency.

John H. Lederer - 5/14/2005

generally is not that it be just, reasonable, good,inevitable or make common sense, but that that a majority of people vote directly or indirectly for it through some defined process like a constitutional amendment or a statute.

That a judge see it illuminated by an emanation or hidden in a penumbra is probably not a good criterion in the long run.

Rebecca Anne Goetz - 5/13/2005

Right, both Ralph and Oscar. Thanks for saving me the trouble of looking it up! In case any one is interested, here's a link that explains why some supporters of ERA think the amendment could still be ratified if two more states ratify: http://www.equalrightsamendment.org/faq.htm [scroll down].

I suppose Congress could, in theory, simply extend the ERA's deadline but I really don't see that happening. All this is to say: if we can't get Equal Rights explicitly enshrined in the Constitution (and if you ask me, we need it, all other laws aside) then we shouldn't be able to get denial of equal rights (FMA) enshrined in the Constitution either.

BTW, Ralph, thanks for the mention in your recent article. I didn't know about it until an archivist friend emailed and wanted to know, jokingly, if I'd ever written anything bad about him (I hadn't!). I'm on a research trip now, hence light (read: no) blogging but since I'm taking the time to comment, I might as well blog I suppose.

Oscar Chamberlain - 5/13/2005

The ERA amendment sent to the states in the early 1970s had an expiration date built into it. People have argued since that such a date is unconstitutional. I'm not sure if it is or not, but for a range of reasons I'm not fond of the idea of the Supreme Court having to rule on whether an amendment really passed or not.

Ralph E. Luker - 5/13/2005

Right, Rebecca. You're thinking of the XXVIIth Amendment, first proposed in 1789 and adopted in 1992. It requires that the election of members of the House of Representatives must intercede between passage of a congressional pay increase and its becoming effective.

Rebecca Anne Goetz - 5/13/2005

I don't think the Defense of Marriage Amendment will pass. Too many Republicans still adhere to the conservative idea that one must amend the Constitution only in the most necessary of circumstances. As long as marriage equality rights proceeds state by state, I think most Senators and Congress-people will be inclined to stay out of it.
Remember too, that over-meddling Amendments have been repealed before (think Prohibition). I think that that would eventually be the likely outcome in the unlikely event that the Defense of Marriage Amendment was passed and ratified.
Incidentally, there are those who don't think the ERA is dead yet. Illinois recently ratified it in 2001, I think it was, which means only two more states need to ratify it. There is precedent for that...I cannot remember the particulars (and should probably look them up before mouthing off here) but in the early 1990s a Constitutional amendment that had originally been proposed in the late eighteenth century passed. I'll try to look it up.

Jonathan Dresner - 5/13/2005

The ERA is a specific law, not a principle: the principle of gender equality which the ERA was intended to promote is about as deeply enshrined in our legal codes as you can get, anyway.

I don't normally use words like "inevitable": there's all kinds of ways to project backlash and regression in the short term: I'm very unhappy with the success of anti-marriage initiatives in the last election round. But I don't believe they are, in the long term, plausible or sustainable.

Oscar Chamberlain - 5/13/2005

My feelings are mixed. Like Jon, I want Gay Marriage to become part of the landscape. Like Jason, I fear that we might get a dreadful constitutional amendment instead. (For a worst-case comparison, just think what life in the 1950s would have been like if the separate but equal logic of Plessy v. Ferguson had been placed into the constitution.)

A majority is, I think, still willing (or even more willing) to provide just about all of the substance of marriage in the form of civil unions.
However, it is also clear that for a majority of people there is something sacred about the word "marriage" that makes them very, very uncomfortable with altering its meaning in a substantive way. Does that blur church and state together. Yes, but marriage has been one area where that blurring has long been accepted.

How this will play out in the long run, either in the courts or in politics, I have no idea. But the short term trends politically don't look great from my perspective.

Jason Kuznicki - 5/13/2005

This means that the "Defense" of Marriage Amendment is more likely than ever to pass.

I also don't agree that recognition for same-sex couples is inevitable. Nothing in history is inevitable. Just think of the ERA, for instance, which also looked like a sure thing.