Currently, nine US states and the District of Columbia have legalized same-sex marriage, including Massachusetts (2004), Connecticut (2008), the District of Columbia (2009), Iowa (2009), Vermont (2009), New Hampshire (2010), New York (2011), Maine (2012), Washington (2012), and Maryland (2013). The Rhode Island Senate passed a marriage equality bill in 2013, which Governor Lincoln Chafee said he would sign. This would make Rhode Island the tenth US state to legalize same-sex marriage. Several other states have introduced marriage-like civil unions or registered partnerships – California (1999), New Jersey (2006), Oregon (2008), Colorado (2009), Nevada (2009), Wisconsin (2009), Illinois (2011), Rhode Island (2011), and Delaware (2012). On the other hand, 38 states prohibit same-sex marriage by statute or state constitutional amendment.
Recent legal cases raise the issue that prohibitions against same-sex marriage are unconstitutional, based primarily on the Equal Protection Clause of the Fourteenth Amendment, guaranteeing equal treatment under the law, and the Full Faith and Credit Clause of the Constitution, which ensures that judicial decisions in one state are recognized in other states. The legal status of same-sex marriage, however, remains contentious.
The same-sex marriage debate in the United States began in 1990 when the Hawaiian Department of Health denied marriage licenses to three gay couples. The couples sued and lost in 1991. The case was appealed in 1993, when the Hawaiian Supreme Court held that denial of marriage licenses to same-sex couples was unconstitutional and again in 1996, with the Circuit Court’s ruling that prohibiting same-sex marriage violated the state’s equal protection clause. In 1998, Hawaiian voters passed Constitutional Amendment 2, allowing the state legislature to ban same-sex marriage. The Hawaiian Legislature did not recognize same-sex marriage, but had, in 1997, passed legislation allowing same-sex couples to benefit from some marriage-like rights. This case led President Bill Clinton to sign the Defense of Marriage Act (DOMA) in 1996, which restricted the use of “marriage” and “spouse” to legal unions between one man and one woman in federal law. Section 3 of this policy prevents same-sex couples from benefiting from over 1,110 federal marriage benefits, including being able to file joint federal taxes, inheriting Social Security survivor benefits, sponsoring a partner’s immigration visa, deferring federal property taxes on a deceased spouse’s estate, and so on.
On March 27, 2013, the Supreme Court of the United States heard arguments about the constitutionality of DOMA in United States v. Windsor. Edith Windsor, the widow and executor of the estate of her late spouse, Thea Clara Spyer, would have avoided $363,000 in federal estate taxes if their 2007 marriage in Toronto, Canada, which was recognized by New York state law, had been federally recognized. Windsor’s suit sought a declaration that DOMA was unconstitutional. When she brought the suit in 2010, the official government position was to support DOMA and the restriction of marriage to one man and one woman; the Bipartisan Legal Advisory Group of the House of Representatives filed a petition to defend DOMA and urged dismissal of Windsor’s case in 2011. The District Court denied the motion, holding that DOMA was unconstitutional. In total, eight federal courts (including the First and Second Circuit Court of Appeals) have found DOMA unconstitutional. The Obama administration has also decided not to enforce DOMA, but this does not resolve the legal restrictions in DOMA.
The Court has not rendered its ruling on this matter, but statements by the Justices during the March arguments suggest the Court may find DOMA unconstitutional. Justice Anthony Kennedy was concerned that the federal law intrudes on states’ rights to regulate marriage and that the more than 1,100 federal rights of marriage meant that the federal government was “intertwined with citizens’ daily lives.” Many gay rights activists and lawyers use the argument that laws like DOMA violate the Fifth and Fourteenth Amendments’ guarantee of legal equality, but many Justices did not seem convinced by this argument, particularly Justice Antonin Scalia, when he said “I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted? Sometime after Baker, where we said it didn’t even raise a substantial federal question? When did the law become this?”
Justice Scalia’s comment is referring to the status of gays and lesbians in the legal system and the fact that gays and lesbians are not a “protected class” under the Equal Protection Clause of the Fourteenth Amendment, which ensures that state laws treat individuals similarly in similar circumstances and conditions. The Court relies on a three-tiered approach when deciding if a group can qualify for this most stringent legal protection. Most challenges to constitutionality are decided using the “rational basis test” – that is, a discriminatory policy is arbitrary or irrational and serves no legitimate state need. The rational basis level of scrutiny has been used in most LGBT cases brought to the Court. When homosexual sodomy was decriminalized in Lawrence v. Texas 539 US 558 (2003), Justice Sandra Day O’Connor argued that criminalizing homosexual sodomy, but not heterosexual sodomy, did not pass the rational basis test because it made sodomy criminal only when engaged in by homosexuals, but not by heterosexuals.
The next stringent level of judicial review is intermediate-level judicial scrutiny. This level of review requires the state to prove that differential treatment under the law is substantially related to some state interest. The Court discussed intermediate scrutiny in Romer v. Evans 517 US 620 (1996), when it struck down a Colorado state amendment that would have prevented sexual orientation from being included in any anti-discrimination legislation in Colorado. The Court found that this policy did not protect a legitimate state interest because it was motivated by a desire to harm a politically unpopular group.
The most stringent level of judicial scrutiny, strict scrutiny, requires the state to show that different treatment under the law serves a necessary state interest and is used in cases when a claim is made by a protected group. To be classified as a protected group, the group must meet specific criteria, such as having “obvious, immutable, or distinguishing characteristics,” being politically powerless, and having a history of discrimination. Different legal treatment by categories such as race, religion, and national origin are protected and cases involving these groups are subject to strict scrutiny. The classification of sexual orientation as a protected class has been difficult, in part, because gays and lesbians may not be perceived as politically powerless and the evidence of immutable characteristics or persistent discrimination have not been compelling, according to the Court. When the Court makes its decision on United States v. Windsor, it could decide that gays and lesbians are a protected group. If so, the US government would have to prove that violating the Fifth Amendment’s guarantee of equal protection for same-sex couples who are legally married under the laws of their state serves an important and necessary state interest. However, based on the discussion during the March arguments, it seems most likely the Court will make its decision using the rational basis test – that is, determine if same-sex couples are being treated differently than heterosexual couples for no legitimate state interest.
The Court heard arguments on another significant case regarding same-sex marriage on March 26, 2013 in Hollingsworth v. Perry. In this case, a lesbian couple, Kristin Perry and Sandra Stier, and a gay couple, Paul Katami and Jeffrey Zarrillo, sued California state officials after being denied marriage licenses in 2009 on the basis that California’s Proposition 8 violated their Fourteenth Amendment right to equal protection under the law. Proposition 8 amended California’s Constitution such that “only marriage between a man and a woman is valid or recognized by California.” The statements in this case provide no clear evidence of how the Court will rule. Unlike the DOMA case, which concerns federally granted rights, this case involves a state-level matter of defining marriage; that point makes this case problematic because regulating marriage has historically been a state right, not a federal responsibility. Justice Kennedy wondered if “the case was properly granted” – if the Court had jurisdiction to hear Hollingsworth at all. Justice Scalia, however, argued that the Court had already “crossed that river;” they had already agreed to hear the case. If the Court decides it should not hear the case, the Ninth Circuit Court ruling striking down Proposition 8 as unconstitutional would prevail; alternatively, the Court could overturn the Circuit Court’s decision (if the backers of Proposition 8 did not have “standing” – that is, they did not properly show that their personal legal interest had been violated by overturning Proposition 8). It is likely that the Court will make a decision on this case. And yet, if they do render a decision, it is unclear what impact it will have on the state of same-sex marriage in the United States. The Court could find that same-sex couples have the right to marry, it could deny same-sex couples the right of marriage, or it could decide this is a state-level issue.
No matter the outcome of both these cases before the Supreme Court, they indicate a growing concern with the state of same-sex marriage in the United States. Activists and lawyers on both sides of this issue argue passionately about the economic costs and consequences of marriage, the affect of parental marriage on children, the moral orientation towards homosexuality, and more. But for same-sex couples seeking relationship recognition, these are not simply legal or scholarly arguments. These are lived experiences of inequality.