Legal Primer on Same Sex Marriage

In the interest of getting something up here, I've provided "A Legal Primer on Same Sex Marriage," written by Nate Oman from the Times and Seasons Web site. The original post can be found in its entirety with all subsequent comments here.

Lets start first with marriage. As a legal matter in the United States marriage is defined by state law rather than federal law. Indeed, the law of marriage varies from state to state with regard to issues such as the status of marital property and the permissible degrees of consanguinity (in other words, how close of a relative you can marry). The federal government is a government of enumerated powers. In other words, in theory Congress only legislates on issues related to one of the specific areas set forth in Article I of the constitution. In contrast, state governments have broad powers to regulate for the general welfare of their citizens. This is the “police power.” Marriage is regulated under the police power.

Every state in the union has a written constitution containing a bill of rights. Generally speaking, these state bills of rights contain provisions that more or less mirror the federal bill of rights – freedom of the press, freedom of religion, etc. – but there are some special provisions. For example, the Arkansas constitution guarantees to each citizen an “adequate education,” and the Utah constitution contains a prohibition on any church “dominating the state.” These state bills of rights can grant any rights that they wish so long as they do not conflict with a provision of the federal constitution. However, they apply only to the laws of the state. They have no legal effect on the laws of other states or on federal laws. Hence, while the states have a much larger grant of power than does the federal government, that power is limited by state bills of rights. Finally, the power of state governments are also limited by those rights under the federal constitution that have been deemed as applying to the state. For example, the First Amendment’s prohibition on the establishment of religion applies to state laws. The Seventh Amendment’s guarantee to trial by jury in civil cases does not apply to the states.

Proposition 22 was a state referendum that amended the California law governing marriage. Previously, the law made no reference to gender. Proposition 22 changed it so that it was clear that only opposite sex couples could be married in California. It did not amend the California constitution. Several same sex couples in Calfornia sued, arguing that the law violated their right to “the equal protection of the laws” under the state constitution.

The federal constitution and virtually all state constitutions contain some guarantee to “the equal protection of the laws.” Generally speaking, the words of in the state constitutions are not much more specific than that. The problem is to figure out what such a phrase means in actual practice. By and large, state and federal courts use the same method for analyzing this question, although there is no reason that state courts must follow federal interpretations of equal protection or vice versa. Here is how it works.

All laws create classifications. A law that says that the speed limit is 55 mph, creates at least two classes of citizens: those who drive less than 55mph and those who drive more than 55mph. The mere fact that a law classifies its citizens does not mean that it violates “the equal protection of the laws.” Rather, the courts will merely ask if the classifications created by the law has some “rational basis.” A rational basis need not be a good reason or even a reason that the court finds persuasive. There must simply be a showing that the law bears some relationship to some legitimate goal of the state government. Traditionally, rational basis review – under both the federal and the state constitutions – has been very deferential. Historically virtually all statutes challenged under the “rational basis” test have been upheld.

Now suppose that the law creates a classification on the basis of race or religion. For example, it says that black people must pay higher taxes. This law would almost certainly be unconstitutional under any state or federal “equal protection” clause. The reason is that certain classifications are deemed to be inherently suspect. The classic example is race, but others include ethnicity and religion. If a law draws lines based on race it will only be upheld if it one can show that it serves a vital and compelling government interest. In practice virtually no law can survive this test, and it has been saved as a kind of safety valve for truly extreme situations, such as laws forbidding the press from publishing troop movements during a battle.

Finally, there are certain classifications that burden fundamental rights. For example, imagine a law that imposed a tax on voting. Voter is not a suspect classification, and it is actually used in pretty unobjectionable ways such as in choosing juries. Hence, the tax on voting law would seem to fall under the rational basis test. Taxing is rationally related to the state’s legitimate interest in raising revenue, and the law would seem to be unobjectionable. However, the courts have said that even when a classification is not suspect if it burdens a fundamental right – such as voting – it will only be upheld if it serves a compelling government interest. In other words, classifications that burden fundamental rights are treated like racial or other suspect classifications.

Okay, now we apply this rather cumbersome framework to Proposition 22. First we ask ourselves whether or not the classifications the law creates have some rational basis. The San Francisco Superior Court concluded that they did not. In considered essentially two rationales. The first is that the law had a rational basis because it accommodated the deeply felt beliefs of Californians that marriage should be limited to a man and a woman. The court admitted that sometimes accommodating historical traditions and deeply seated beliefs could be rational basis for a law, but – while not being as a clear as it could be – the court held that mere moral disapproval could not supply a rational basis for the law. Next the court considered the argument that opposite-sex marriage advanced the state’s interest in procreation. Here, rather than holding that there was no legitimate interest in procreation, the court held that there was no meaningful connection between this goal and a law restricting marriage to opposite-sex couples, noting that fertility was not a condition of marriage.

In theory, the court could have stopped its opinion there, but it chose to continue. In next asked whether Proposition 22 rested on a suspect classification. It concluded that it did, in this case gender. Now under federal law, gender is not a suspect classification but occupies a sort of shadowy middle ground mainly defined by what Sandra Day O’Connor eats for breakfast. However, gender is a suspect classification under the California state constitutions – and under many other state constitutions. The court concluded that because the law restricted a persons’ ability to marry solely on the basis of the gender of the proposed spouse it classified on the basis of gender. In so doing, the court rejected the argument that because the law imposed perfectly symmetrical disabilities on men and women – men can’t marry men but women can’t marry women – it was not a suspect classification. The court relied on the rejection of a similar argument that had been made in the context of anti-miscegenation laws that had prohibited inter-racial marriage. Defenders of those laws had claimed that they did not discriminate on the basis of race because they applied equally to blacks and whites. State and federal courts across the country rejected this argument. Having concluded that the law classified on the basis of gender – a suspect classification – the court turned to the question of whether or not it was justified by a compelling state interest. Here the work had already been done. A law that lacks a rational basis, by definition cannot be necessary for some compelling state interest, since compelling state interests by definition are rational.

Finally, the court held that the law burdened a fundamental right, in this case the right to marry. In coming to this conclusion it rejected the claim that the fundamental right to marry included only opposite-sex marriage. Such a position was ruled out, the court reasoned, because it was based solely in the moral disapproval of the citizens. Analogously, in the anti-miscegenation context, the courts had refused to limit the fundamental right to marry to same-race marriages, despite the long tradition of anti-miscegenation laws. Because the classifications in the law burdened a fundamental right, the court went on, it may only be upheld if the state has a compelling interest, which it had already concluded did not exist.

The court’s conclusions in this case rested almost entirely on California law. The case will now be appealed to the California Court of Appeal. This court is required to hear the case. From there, either side can try to appeal to the California Supreme Court. This court, however, can decide to not hear the case if it so chooses. Hence, the legal arguments in California are far from over.