Homosexual marriage is primarily a creation of the judiciary, a fact which is especially evident right now as the lower federal courts go about using the United States Supreme Court’s 2013 Windsor decision to nullify the marriage laws of state after state.
In this essay, we deal with the decisions of the Massachusetts Supreme Court in 2003 and a federal district court in California in 2010 holding man-and-woman marriage deficient and, indeed, unconstitutional. But how and on what basis did they do that? There were no written laws, constitutions, or case precedents in either state or federal constitutional law to which to refer. Marriage had existed in the form of a relationship of a man and a woman with a primary purpose of procreation for all human history. Before the homosexual rights movement, no one had ever thought to sue marriage. Marriage was not considered to be a subject for “equal protection” analysis in either state or federal constitutional law. It was not a civil rights issue, much less an “issue.” So, where did those two courts find “law” to do what they did?
There are two answers. The first concerns the definition of marriage that, although seldom written down, prevailed everywhere and at all times. As we saw in the last essay in this series, Congress, while recognizing that such a definition was always “implicit,” decided to define it in the Defense of Marriage Act (DOMA) in 1996 as requiring a man and a woman. The courts have needed to overcome this obstacle by defining marriage in new and “explicitly” different terms. The second answer lies with two decisions of the United States Supreme Court, both written by Justice Anthony Kennedy, a Reagan appointee, concerning homosexual rights in other areas. As will be seen below, neither the Massachusetts nor the California cases could have occurred without the Court’s two decisions in Romer v. Evans (1996) and Lawrence v. Texas (2003), which are not merely “landmark” cases in an area of the law but are cases that created a whole new area of public law.
The issue in Romer concerned a Colorado state constitutional amendment passed by a citizen referendum that prevented affirmative action in favor of homosexuals—in other words, an amendment providing for “equal protection of the laws.” In Romer, a 6-3 decision in which Justice Kennedy was joined by three other Republican appointees and two Democratic appointees, Justice Kennedy began what has become his theme of denouncing defenders of marriage by asserting that the Colorado amendment had been “born of a bare desire to harm a politically unpopular group.” DOMA was passed by Congress four months after Romer was handed down. One of DOMA’s major purposes was to protect the states from Romer’s effects and implications. In its report on DOMA, the House Judiciary Committee had included an extensive criticism of what it called that “elusive decision.”
In Lawrence v. Texas (2003), a 6-3 decision in which the majority consisted of Justice Kennedy and three other Republican appointees and two Democratic appointees, Justice Kennedy expanded on that theme and also introduced his autonomy theme: “Liberty assumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Lawrence had to do with Texas sodomy laws, and in declaring such laws unconstitutional, the Court did not blink in overruling its previous decision allowing sodomy laws in Bowers v. Hardwick only seventeen years previously. So much for precedent. Of homosexuals, Justice Kennedy said that “the state cannot demean their existence or control their destiny by making their private sexual conduct a crime.” He recognized “a homosexual lifestyle.” He spoke of the “stigma” a sodomy law puts on homosexuals, saying that it “demeans the lives of homosexual persons.” And in Lawrence, he quoted the famous passage in the abortion decision of Planned Parenthood v. Casey (1992), a case in which he joined fellow Republican appointees Justices Sandra Day O’Connor and David Souter:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.
This new jurisprudence—judicially enforceable prohibitions on hurting certain persons’ self-concept—served and continues to serve as the basis of homosexual marriage.
Massachusetts—the first court-ordered homosexual marriages
Massachusetts had passed legislation providing various benefits based on sexual orientation, notably in 1992 by executive order of Republican governor William Weld, who also later called DOMA unconstitutional. In 2002, sufficient signatures of Massachusetts citizens were certified to require the state legislature to call a constitutional convention to consider legislation to pass a constitutional amendment preserving marriage against such developments, but the legislature subverted the plebiscite and never called the convention. Homosexual advocates turned to the courts. In Goodridge v. Dept. of Public Health (2003), the lower court denied their suit and ruled that procreation was the “central purpose” of marriage. In overruling that, the Massachusetts Supreme Court in 2003 by a vote of 4-3 was quite open about redefining marriage, calling it a “reformulation”: “We construe civil marriage to mean the voluntary union of two persons as spouses to exclude all others.” The court did not define “spouse.” The court said that the homosexual plaintiffs were in “committed relationships” and that the state had wrongly identified procreation as the “essence of legal marriage.” The court went on to say that the state was likewise wrong to maintain that marriage was the “optimal setting” for raising children because of “the changing realities of the American family” and “the demographic changes of the past century,” quoting the United States Supreme Court in a case having to do with visitation rights of grandparents. Homosexual “right, protections, and privileges” had recently advanced, the court said, and “there is no reason to believe that the evolution will not continue,” thus continuing and advancing that evolution. The court concluded that there was no “rational basis” for the exclusion of homosexuals, even though it conceded that legislation is routinely upheld by courts if there is “a minimal threshold of rationality.” As for the role of religion in marriage, the court said that there were “equally strong” and “deep seated religious, moral, and ethical convictions” on both sides. And the court heavily emphasized the “enormous” material and financial advantages to marriage in state law.
In declaring that opposition to homosexual marriage was “rooted in persistent prejudices” that “work a deep and scarring hardship on a very real segment of the community for no rational reason,” the Massachusetts Supreme Court relied extensively on Lawrence, handed down by the United States Supreme Court only four months previously. Dissenting in Lawrence, Justice Scalia had predicted that the rationale of Lawrence could be used to justify homosexual marriage. While that did not happen in federal law until ten years later in Windsor, it happened only four months later in Massachusetts.
As for the separation of powers and the prerogative of the legislature to legislate, the Massachusetts high court said that to bring up that question was to “misunderstand the nature and purpose of judicial review.” The purpose of judicial review was to make sure that legislation was rational, and it was the job of the court to do so. Without referring to any specific passage of the Massachusetts constitution, any case as precedent, or anything in traditional American jurisprudence, the court asserted that “the Massachusetts Constitution requires that legislation meet certain criteria and not extend beyond certain limits.” Even if the legislature thinks that it has been rational, “the courts, in the last instance, must ascertain whether such a rational basis exists.” Thus, the entire Massachusetts—and American—constitutional history of the separation of powers was reduced to “do not question our authority.” Apparently, the legislature of the state of Massachusetts had been irrational about marriage for its entire history.
The court did not directly enact homosexual marriage but gave the state legislature 180 days to conform Massachusetts’ statutes to its decision. Backed by Governor Mitt Romney, the state Senate actually petitioned the supreme court whether it was permissible for them to enact civil unions instead of homosexual marriage, and the court refused that permission. Despite various attempts to pass a constitutional amendment protecting marriage, the 180 days expired and homosexual marriage came about by order of the court. A federal court then denied a suit asking for a ruling to the effect that the Massachusetts Supreme Court had denied Massachusetts its right to a republican form of government because it was the state supreme court, not the legislature, that was enacting laws.
So, in 2003, ten years after the Hawaii Supreme Court invented the notion of homosexual marriage, there was only one state, Massachusetts, which had homosexual marriages, and that had been accomplished by court order. Realizing that a state-by-state campaign—that is, a campaign based on American federalism—would take forever and might never succeed, the homosexual movement turned to the federal courts with their power to overturn state laws and constitutions and their concomitant power to issue rulings with immediate multi-state effect.
First, however, a federalist counter-movement ensued nationwide. In response to the Hawaii and Massachusetts court decisions, the national movement to protect marriage from the courts via state constitutional amendments swept through the states. This was totally unprecedented. No such legal and constitutional movement had ever occurred in American history. Between 1998 and 2012, thirty-one states passed constitutional amendments. And, of course, the remaining eighteen states (not counting Massachusetts) maintained their laws with the traditional definition, even if only “implicit,” of marriage. Against such a movement, the federal courts were needed.
Marriage is sued in federal court
The turning to federal court to cancel state laws and constitutional provisions concerning marriage started, unsurprisingly, in California. There, the campaign against marriage began in 2008 with the state supreme court negating a state statute (Proposition 22) that had been passed by citizen initiative in 2000 to preserve marriage. The California Supreme Court went beyond the “marriage is irrational” analysis of the Massachusetts Supreme Court and decided that sexual orientation was a protected class, subject “like gender, race, and religion,” to the strictest judicial scrutiny and essentially concluded that this new invented protected class was superior to any state law, even though it also said, ironically, that “restraint is the hallmark of constitutional review.” Five months later, the citizens of California again passed a provision, this time a constitutional amendment, Proposition 8, that negated the decision of the state supreme court. So, the homosexual lobby turned to federal court. California attorney general Jerry Brown refused to defend California’s constitution. And in Perry v. Schwarzenegger, homosexual federal district court judge Vaughn Walker ruled in 2010 that the California constitution was unconstitutional under the federal constitution. Although it seems to have been well-known, Judge Walker only publicly admitted his homosexuality after he retired, which was soon after his decision.
Judge Walker allowed members of the organization that had succeeded in passing Proposition 8 to intervene as defendants. They, rather than the state attorney general, became the defenders of the state constitutional amendment enacted by Proposition 8. And so, their words in the public campaign about marriage—rather than the objective decision of the majority of the California citizens—became the focus of the court.
Unlike the Massachusetts Supreme Court and the federal district court later in Windsor, Judge Walker held a trial and in his decision extensively purported to refute every argument in favor of marriage. He found them all “irrational.” His specific arguments and debating points will be treated more extensively in a later essay, “Is Marriage Rational?” Suffice it to say now that he issued eighty “findings of fact” against marriage. He became quite expansive in his attempted historical, sociological, and philosophical account of how marriage had undergone an “evolution in the understanding of gender rather than a change in marriage.” Denying that he was creating a new right, he directly confronted the argument that homosexual marriage was not rooted, quoting the United States Supreme Court, “in our nation’s history, legal traditions, and practices.” It was “marriage,” which included homosexual marriage in its essence, that was traditional, Judge Walker held. The past racial restrictions on intermarriage and dominance by the husband as well as what society now believes is the lesser procreative purpose of marriage were not “the historical core” of marriage. Rather, marriage “requires two parties to give their free consent to form a relationship…. Gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents….Gender no longer forms an essential part of marriage; marriage under law is a union of equals.” He repeatedly cited and heavily relied on Justice Kennedy’s opinions in Romer and Lawrence.
With respect to motherhood and fatherhood as an aspect of marriage, Judge Walker decreed that “children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.”
In his seventy-three-page decision, Judge Walker allowed himself two paragraphs to comment on the role of the legislature or the people in making laws. While conceding that “most laws subject to rational basis easily survive equal protection review,” the California constitutional amendment would not survive because its sole discernible purpose was to “disadvantage or otherwise harm a particular group.” He cited no large principle of constitutional law for this proposition. He did, however, mostly find justification for it in Romer.
In his supposed “findings of fact,” Judge Walker several times referred to religion as the basis for opposition to “gay and lesbian relationships.” He credited evidence that had been introduced that “religions teach that homosexual relations are a sin and that contributes to gay bashing,” that the “Catholic Church views homosexuality as ‘sinful,’” that religion was “the chief obstacle to gay and lesbian political advances” and that “religion lies at the heart of the hostility and violence directed at gays and lesbians.”
Proposition 8 had provided that “only marriage between a man and a woman is valid or recognized in California.” Judge Walker replaced that with his own definition of marriage: “the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.” He concluded that Proposition 8 had been based on “the notion that opposite-sex couples are superior to same-sex couples” and that it placed “the force of law behind stigmas against gays and lesbians.”
When California appealed to the federal Ninth Circuit Court of Appeals, that appeals court in 2012—in an opinion authored by perhaps the most liberal judge in the federal system, Stephen Reinhardt—upheld Judge Walker’s decision. Judge Reinhardt relied heavily on Romer and to a lesser degree on Lawrence. Indeed, Judge Reinhardt’s opinion would not have been possible without Romer. The case was directly comparable to Romer because both cases involved constitutional amendments concerning homosexuals, he said. California’s Proposition 8, denied the “societal status ” that “affords dignity” to the “committed relationships” of gays and lesbians and deprives them “of the right to use a state-authorized and socially meaningful designation.” The implication was that the law was motivated by “animosity” and “disapproval of gays and lesbians as a class.” It was a judgment about their “worth and dignity.” None of the arguments attempting to justify the law were “rational.” As for Judge Walker’s elaborate “trial” and “findings of fact” about marriage, the appeal court ignored both. Judge Reinhardt had nothing to say about any possible prerogatives the citizens of California might have in enacting amendments to their constitution.
The substitute defenders of the law, but not the state of California, appealed. The definitive issue on appeal was whether to dismiss the appeal and let Judge Walker’s ruling stand because the defenders of the California constitutional amendment had no standing to appeal since they were not the “defendant” against whom the ruling had been issued in the case. The actual defendant was the state of California, which had abdicated its standing, colluded with the plaintiffs, and not appealed since the state had “won” in the district court. The appeals court allowed the defenders of the amendment to proceed on appeal.
To the United States Supreme Court, the standing of the defenders of marriage was the only issue. In a 5-4 decision in Perry v. Schwarzenegger, handed down in 2013 on the same day as Windsor, the Court ruled that the appellants, the defenders of the California amendment, could not have their day in court. With Chief Justice John Roberts as the author of the opinion, the majority included Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan, with Justices Kennedy, Clarence Thomas, Samuel Alito, and Sonia Sotomayor in dissent. “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to.” So, it did not rule on the merits. Thus, the Supreme Court allowed the state of California’s decision not to enforce its constitution to stand. By contrast, in the Windsor decision nullifying DOMA handed down on the same day, the United States Supreme Court allowed the substitute parties to appeal. But the underlying great similarity of the two cases was that the governments, state and federal, had refused to defend their laws and had sided with their opponents.
Next, “Homphobia and Evolution in Constitutional Law,” and, last, “Is Marriage Rational?”
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