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Gay marriage litigation continues to occur in various forms among the several states. In the first half of 2005, state courts in New York, California and Oregon decided controversial gay marriage related cases on the basis of their respective state constitutions and laws. This article, the first in a series, will update, overview and summarize those cases. 

I. NEW YORK: Hernandes, et al. v. Robles

On February 5, 2005, Justice Doris Ling-Cohan of the Supreme Court of New York, the trial court, held that certain provisions of New York’s Domestic Relations Law (“DRL”) violated the New York State Constitution’s Due Process and Equal Protection clauses. This case involved five same-sex couples in New York City who sued Victor Robles in his official capacity as City Clerk of the City of New York and administrator of the New York City Marriage License Bureau. The DRL does not specifically ban or allow gay marriage, but refers to “husband,” “wife,” “bride,” and “groom.” New York interpreted the law as not allowing gay marriage.1 The plaintiffs sought declaratory relief and an injunction requiring Robles to grant each of the couples a marriage license. The plaintiffs won on summary judgment. The court wrote that the defendant failed to “dispute the material facts set out by plaintiffs in their motion for summary judgment,” and “[s]ince both sides agree that there are no material facts in dispute, summary judgment is appropriate.”

The court ordered that (1) with respect to the DRL, the words “husband,” “wife,” “groom,” and “bride” be construed to mean “spouse;” (2) with respect to the DRL, all personal pronouns apply equally to men or women; (3) the defendant be permanently enjoined from denying a marriage license solely on the ground that the applicants are a samesex couple; and (4) stayed its own order pending appeal.

Due Process

Article 1, § 6 of New York’s State Constitution provides, in pertinent part, that “[n]o person shall be deprived of life, liberty or property without due process of law.” The court noted that the protections of New York’s Constitution “extend beyond those found in the Federal Constitution.” In analyzing the “fundamental right to marry,” the court applied the “strict scrutiny” test, where the government bears the burden of showing that (1) it has a compelling interest which justifies the challenged law and (2) the distinctions drawn by the law are necessary to further its purpose. The court described this right as “the right to choose whom one marries” which “resides with the individual,” thus falling “squarely within the contours of the right to privacy.” 

The city argued two interests: (1) fostering the traditional institution of marriage, and (2) avoiding the problems that might arise from other jurisdictions refusing to recognize the validity of samesex marriages.

Tradition

The court formulated the question as whether the plaintiffs had a fundamental right to marriage, not whether they had a fundamental right to gay marriage. The court reasoned that the proper right was the right to marriage because defining marriage as the union between a man and a woman was “factually wrong.” As an example, the court, citing the Books of Genesis and Deuteronomy, stated that “polygamy has been practiced in various places and at various times” though in the modern day it is outlawed nationwide. 

The court found that tradition was not a sufficiently compelling state interest, pointing out that tradition was previously rejected as a reason to uphold slavery, anti-miscegenation laws, segregation, sodomy bans, divorce restrictions, the “marital rape exception,” and “coverture,” the ancient legal doctrine that suspends a wife’s legal existence or folds it into her husband’s.

As Justice Scalia feared in his Lawrence v. Texas dissent, 539 U.S. 558, 590, 604-05 (2003) (Scalia, J., dissenting), Justice Ling-Cohan leaned heavily on Lawrence to support her ruling. In an ironic twist, she also cited from Justice Scalia’s dissenting opinion and Romer v. Evans, 517 U.S. 620 (1996) to support her finding that moral disapproval of samesex couples or of individual homosexuals is not a legitimate state purpose or a rational reason for depriving plaintiffs of their right to choose their spouse.” Justice Ling-Cohan went on to say that

...[t]here has been a steady evolution of the institution of marriage throughout history which belies the concept of a static traditional definition. Marriage, as it is understood today, is both a partnership of two loving equals who choose to commit themselves to each other and a State institution designed to promote stability for the couple and their children. The relationships of plaintiffs fit within this definition of marriage.

Justice Ling-Cohan also drew direct correlations between forbidding gay marriage and forbidding interracial marriage, leaning heavily on Perez v. Sharp, 32 Cal. 2d 711 (1948), which struck down California’s anti-miscegenation law, and Loving v. Virginia, 388 U.S. 1 (1967), which struck down anti-miscegenation laws nationwide. She stated that “[t]he challenges to laws banning whites and non-whites from marriage demonstrate that the fundamental right to marry the person of one’s choice may not be denied based on longstanding and deeply held traditional beliefs about appropriate martial partners.”

Part of New York’s “tradition” argument was that marriage and procreation were traditionally linked, and that the government could deny marriage licenses to same-sex couples because it had a compelling interest to maintain procreation within the structure of marriage. 

The court rejected this argument, noting that (1) the DRL does not bar women who are unable to bear to children from marrying, (2) same-sex couples are having biological children through artificial insemination or surrogate mothers, (3) New York law forbids denying adoption applications on the basis of an applicant’s sexual orientation, and (4) same-sex couples may adopt jointly. The court noted that neither the defendant nor amici indicated how permitting samesex couples to marry would either diminish the central role of marriage in human life, or adversely affect the marriages of opposite-sex couples.

Criticizing the Defense of Marriage Act (“DOMA”)

The court summarily dismissed New York’s second argument that it could deny gay marriage because other states and the federal government did not recognize gay marriage, describing the argument as “irrational and perverse.” The court, however, specifically pointed out that the federal and various state DOMAs “may be vulnerable to legal challenge,”stating that “it is not clear on what authority Congress, let alone States, can suspend or abrogate the Full Faith and Credit Clause of the United States Constitution.”

Equal Protection

Article 1, § 11 of New York’s State Constitution provides, in pertinent part, that “[n]o person shall be denied the equal protection of the laws of this state or any subdivision thereof.” The court held that the DRL discriminated against GAY MARRIAGE (CONT. FROM PG. 1) 8 the plaintiffs on the basis of their sexual orientation. The court did not raise sexual orientation to a heightened level of scrutiny, but, based on its due process analysis, summarily dismissed New York’s reasons as not even passing the “rational basis” test, where legislative classifications are presumptively valid and upheld so long as the challenging party cannot show an absence of a rational relationship between the disparate treatment and some legitimate governmental purpose or state interest

Legislative Analysis

Justice Ling-Cohan opined that the DRL should be read to permit same-sex marriage because New York statutorily protects gays in non-marriage contexts. For example, same-sex couples in New York may adopt children and even be considered a “family” for rent control purposes. Interestingly, the court noted that New York’s Sexual Orientation Non-Discrimination Act (“SONDA”) should be read as supporting gay marriage, despite acknowledging that SONDA explicitly states that it is “not to be construed to require or prohibit marriage rights for same-sex couples.” 

The court, citing Loving, summarily rejected the defendant’s argument that the question of gay marriage should be answered by the legislature, rather than by the courts. The court stated that the “role of the judiciary is to enforce statutes and to rule on challenges to their constitutionality either on their face, or as applied in accordance with their provisions.” The court also summarily rejected civil unions as a possible remedy, stating that the plaintiffs sought the relief of marriage, not something marriage-like. 

Current Status 

New York’s high court, the Court of Appeals, declined New York’s request to bypass the Appellate Division and hear the case directly. As of this writing no decision has come out of the Appellate Division. II. 

II. California: Marriage Cases 

On March 14, 2005, Judge Richard Kramer of the San Francisco County Superior Court found unconstitutional California Family Code § 300, which provides that marriage “is a personal relation arising out of a civil contract between a man and a woman,” and California Family Code § 308.5, formerly known as Proposition 22, which provides that “only marriage between a man and a woman is valid or recognized in California.” 

The court consolidated six cases from San Francisco and Los Angeles and held that the Family Code sections were unconstitutional under the Equal Protection and Privacy provisions of Article I of the California State Constitution. The court resolved the case on Equal Protection grounds alone, applying the “strict scrutiny” test based on gender. The court further found that the laws also failed the “rational basis” test.

Gender Discrimination

The court held that California’s prohibition on gay marriage unconstitutionally discriminated on the basis of gender because (1) while men could marry women and vice versa, men could not marry men and women could not marry women, (2) it created improper same-gender versus opposite-gender classifications, and (3) the gender of the intended spouse was the sole determining factor. California argued that its same-sex marriage prohibition applied equally to males and females, and thus neither gender is segregated for discriminatory treatment. The court rejected this “gender neutral” argument, directly comparing it with the “race neutral” arguments used to support anti-miscegenation laws which were rejected in California and nationwide by the landmark cases Perez v. Sharp, 32 Cal. 2d 711 (1948) and Loving v. Virginia, 388 U.S. 1 (1967), respectively. Importantly and in contrast with Justice Ling-Cohan’s decision, Judge Kramer did not analyze whether the Family Code sections discriminated on the basis of sexual orientation.

Fundamental Right to Marry

California argued that the fundamental right to marry, implying heterosexual marriage, is different from the fundamental right to homosexual marriage, which never existed in California. The state further argued that the right to marry is defined in terms of who may marry, or else a slippery-slope will open for forbidden marriages such as incest. The court quickly rejected these arguments, stating that the freedom to chose whom to marry may only be limited when there is a “legitimate governmental reason for doing so” and that prohibitions against incestuous marriages “further an important social objective by reasonable means and do not discriminate based on arbitrary classifications.”

Rational Basis

The court rejected the state’s three main arguments: the “tradition” argument, the “same rights but not marriage” argument, and the “procreation” argument, finding that none of them passed rational basis review. With respect to “tradition,” California in essence argued that the challenged laws should be upheld because male-female marriage is deeply rooted in California’s history, culture and tradition; therefore the courts should not redefine marriage to be what it has never been in the past. The court rejected this argument, stating that “same-sex marriage cannot be prohibited solely because California has always done so before.” The court noted that California was the pioneer state in rejecting a similar “tradition” argument in Perez v. Sharp, 32 Cal. 2d 711 (1948) (stating that “the fact alone that the discrimination has been sanctioned by the state for many years does not supply such justification”), which struck down California’s statutory ban on interracial marriage.3 As Justice Scalia feared in his dissent in Lawrence v. Texas, 539 U.S. 558, 590, 604- 05 (2003) (Scalia, J., dissenting), Judge Kramer, like Justice Ling-Cohan in New York, cited Lawrence to support his ruling.

In arguing “same rights but not marriage,” the state argued that “it is not irrational for California to afford substantially all rights and benefits to same-sex couples while maintaining the common and traditional understanding of marriage.” The court rejected this argument, finding no legitimate governmental purpose in denying same-sex couples the right to marriage itself, and holding that 9 creating a “marriage-like benefits superstructure is no remedy” because prohibiting gay marriage could not be justified on tradition alone. The court further found that this “superstructure” fell under the “separate but equal” principle which the U.S. Supreme struck down in Brown v. Bd. of Ed. of Topeka, et al., 347 U.S. 483 (1952), and was thus invalid.4

In arguing “procreation,” the state asserted that California courts have long recognized that the “purpose of marriage is procreation and that limiting the institution to members of the opposite sex rationally would further that purpose.” The court rejected this argument, finding that the cases cited in support of prohibiting gay marriage were not applicable because those cases supported annulling marriages based on fraud or fraudulent inducement.5 The court stated that “one does not have to be married in order to procreate, nor does one have to procreate in order to be married.” Interestingly, the court analyzed the legislative history of California Family Code §§ 300, 308.5 and found that while the legislative history of § 300 was “irrelevant,” the “background materials to Proposition 22 indicate that its purpose as articulated to the voters was to preclude the recognition in California of same-sex marriages consummated outside of this state,” and did not control whether California should recognize California marriages of its samesex couples.

Current Status

On March 30, 2005, Judge Kramer announced a stay that prevented samesex couples from marrying during the appeals process, which is expected to last approximately one year. The case will go to the intermediate appellate court and almost certainly to the California Supreme Court. Interestingly, as of this writing, California Attorney General Bill Lockyer, representing the state, bowed out of a widely-expected gubernatorial run, where gay marriage would certainly be a political issue, choosing to run for state treasurer instead.

III. Oregon: Li v. Oregon

On April 14, 2005, the Oregon Supreme Court ruled that Multnomah County improperly issued marriage licenses to approximately 3,000 same-sex couples. The court held that Ballot Measure 36, a voter-initiated amendment to the Oregon constitution, limited marriage to opposite-sex couples.6 The court further held that Oregon statutory law predating Ballot Measure 36 had already limited the right to obtain marriage licenses to opposite-sex couples. Finally, the court held that the abstract question of whether Oregon Revised Statutes (“ORS”) chapter 106, “Marriage,” conferred marriage benefits in violation of the Privileges or Immunities section of the Oregon constitution, Article I, section 20, was not properly before the court.7

Unlike the New York and California cases, the Oregon Supreme Court did not need to undergo a due process or equal protection analysis. The plaintiffs argued that ORS chapter 106 “violates the Fourteenth Amendment to the United States Constitution,” but the court summarily rejected that argument because it “was not raised before the trial court and therefore is unpreserved.”

Instead, the court began by analyzing ORS chapter 106’s plain text. For example, ORS chapter 106 defines marriage as a “civil contract entered into in person by males at least 17 years of age and females at least 17 years of age” and requires the parties to a marriage to declare that “they take each other to be husband and wife.” 

Foretelling challenges to Ballot Measure 36, the court rejected the plaintiffs’ argument that, due to the amendment’s use of the word “policy,” the constitutional amendment was not an operative statement of Oregon constitutional law and thus presently enforceable, but rather a mere “aspirational principle” that required further enforcement action. In analyzing the amendment’s plain text, the court stated that “there is no ambiguity regarding the measure’s substantive effect. Today, marriage in Oregon — an institution once limited to oppositesex couples only by statute — now is so limited by the state constitution as well.”

Perhaps because the plain text of the law and the constitution were clear, the plaintiffs also argued that Ballot Measure 36 did not explicitly refer to marriage benefits and thus did not speak to the issue of whether the Privileges or Immunities section of Oregon’s constitution prohibits using gender or sexual orientation as a basis for denying marriage benefits.8 The plaintiffs argued that the voters did not intend to hinder the courts from creating a remedy that extends such benefits to same-sex couples. The court refused to reach this issue on the merits, stating that the issue was not properly before it because the plaintiffs, at trial, “did not seek access to the benefits of marriage apart from, or as an alternative to, marriage itself. The trial court therefore improperly went beyond the pleadings in fashioning the particular remedy that it chose.” 

Interestingly, in swiftly rejecting the plaintiffs’ argument that Multnomah County properly issued the approximately 3,000 same-sex marriage licenses, the court touched upon the almost-certain upcoming full faith & credit battles with respect to gay marriage. First, the court described the marital relationship as “one in which the state is deeply concerned and over which it exercises a jealous dominion.” Second, the court stated that while marriages deemed valid in states where they are performed will generally be recognized in Oregon, there are “exceptions to the general rule where the policy of this state dictates a different result than would be reached by the state where the marriage was performed,” to the point that Oregon’s power is sufficiently broad to “preempt other states’ contrary marriage policies.”

Current Status

Although this particular litigation is over, Governor Kulongoski, along with Republican and Democratic senators, introduced a civil union bill which would give same-sex couples the same legal rights as marriage. The bill also would outlaw discrimination against gays and lesbians in housing, jobs and insurance. Also pending is a lawsuit directly challenging the legality of Ballot Measure 36, which won the support of nearly 57 percent of Oregon voters in November 2004.

 

Endnotes

1 In New York City, same-sex couples may register as “domestic partners” under New York City’s Administrative Code Section 3- 240, et seq. However, the benefits from registering as domestic partners are somewhat less than marriage. 

2 In California, gender discrimination is analyzed under strict scrutiny. Sail’er Inn, Inc. v. Kirby, 5 Cal. 3d 1 (1971). 

3 The U.S. Supreme Court did not strike down anti-miscegenation laws until Loving v. Virginia, 388 U.S. 1 (1967), nineteen years after Perez. 

4 On April 4, 2005, California’s 3rd District Court of Appeal denied a challenge to California’s broad domestic partners benefits law, ruling that the rights conferred fell short of those offered by marriage and thus did not violate Proposition 22. For properly registered same-sex and unmarried opposite-sex couples 62 years or older, the law grants rights and obligations relating to children, community property, death and other issues. The court noted that the benefits law does not provide state joint tax filing privileges, are obtained with no ceremony or license, and are not recognized outside California. 

5 It should be noted, however, that one of the cases, Baker v. Baker, 13 Cal. 87 (1859) states that “the first purpose of marriage, by the laws of nature and society, is procreation.” 

6 Multnomah County began issuing samesex marriage licenses on March 3, 2004. Ballot Measure 36 became effective on December 2, 2004, and provides that “It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.” 

7 Article I, section 20 of the Oregon constitution provides that “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” 

8 This argument is of some interest because pending gay marriage litigation in neighboring Washington state will almost certainly turn on interpreting the Privileges or Immunities section of Washington’s state constitution, Article I, Section 12, which states that “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.”

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].