SCOTUS upholds equal protection, rules against laws excluding gays and lesbians from marriage

What a long, strange trip it’s been.

In 2003 I was a graduate student in the philosophy program at UCSD, taking a seminar on jurisprudence from the eminent moral philosopher David Brink. In his seminar we read and discussed a variety of arguments by scholars ranging from Justice Antonin Scalia on “originalism” to Joel Feinberg on free expression vs. “offensive nuisances,” and we also read and discussed seminal Supreme Court cases relating to these issues. I had been interested in law and legal issues for many years by that time, having taken up policy debate as a way of life in high school, not to mention mock trial and Model U.N. in college. Moreover, I was a gay man and conscientious citizen who had already concluded that legal discrimination on the basis of sexual orientation had no place in a constitutional democracy that depends, in its very meaning, on the motto “equal protection under the law.” In other words, I was a “second-class” citizen with an axe to grind and had the analytical skills and arguments to hone its edge to near perfection. Sharpen Sie!

It was in that seminar that a close reading of constitutional principles and significant SCOTUS decisions on due process and equal protection convinced me there was one, and only one, simple line of argument leading from the 14th Amendment to the legal validity of same-sex marriage. I wrote my seminar paper on this topic, revised it later that summer, and sent it out for publication. The paper was titled “Equal Protection and Same-Sex Marriage” and it was published in the Journal of Social Philosophy in 2004. In it, I argued that the proper constitutional argument for supporting a decision on behalf of same-sex marriage and invalidating both federal and state laws defining “marriage” as a union of a man and woman is easily discerned in equal protection doctrine.

Admittedly, there is a lot of semantic confusion about the word “marriage” and its proper referent in this case, as well as a lot of empirically inaccurate, vaguely historical arguments about its definition as such a union (truthfully, before the emergence of the modern democratic state in Western societies only recently, and in much of the world still, “marriage” really refers to men owning and treating women like property). However, there is a precise legal meaning to the word “marriage” in this constitutional debate, and here we are talking exclusively about “civil” marriage, or the state’s legal recognition of a union between two persons that includes all the benefits and burdens that such recognition entails. Insofar as the state recognizes such unions from a legal standpoint they cannot exclude some persons from participating in it but not others. To do so is to violate the letter and the spirit of the equal protection clause of the 14th Amendment, which can be found at the very end Section 1 of that amendment. The sections reads:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Unfortunately, the inane and insanely inaccurate debate sponsored by American-style conservatism about re-defining the word “marriage” has simply muddied the water to what is otherwise a crystal-clear expression of the obvious:  The decision that the Supreme Court reached in Obergefell v. Hodges on June 27, 2015 doesn’t redefine “marriage” at all, doesn’t substitute the judgment of “five lawyers” on the bench for the “will of the people,” and doesn’t even invent a new “gay” right on anything. Rather, the landmark ruling does nothing more and nothing less than enforce the equal protection of the clause of the 14th Amendment concerning the “civil” recognition of marriage laws by states. In short, there are already are “marriage” laws on the books, and since the 14th Amendment states to the letter, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” it follows without remainder that the majority decision of this civil rights case is exactly right.

Now for those who unfamiliar with its history, the 14th Amendment to the United States Constitution was adopted on July 9, 1868, as one of several Reconstruction Amendments drafted in response to issues related to former slaves following the American Civil War including the intransigence of southern states to accept the rule of law. In short, the amendment was created as a means of strengthening our constitutional system against detractors and scofflaws. We fought them in the Civil War, we fought them against Jim Crow, we fought them to desegregate. Therefore, it is important to recall that the basis of this landmark decision overturning anti-gay marriage laws, that civil rights are for all not just for some, is rooted in this country’s long and painful history to overcome, confront, overcome again and confront yet again.

By Kory P. Schaff, Editor

Breaking: Attorney General of PA won’t defend marriage prohibition

From the NYT’s News Desk:

Pennsylvania’s attorney general, Kathleen Kane, said on Thursday that she would not defend the state against a lawsuit to overturn a ban on same-sex marriage.

The lawsuit, filed by the American Civil Liberties Union with 23 plaintiffs, including 10 gay and lesbian couples, two teenage children of one couple and a widow who lost her partner of 29 years, cites a ruling last month by the Supreme Court striking down the federal Defense of Marriage Act.

It was the first of a wave of lawsuits that activists are planning to file to expand the number of states allowing same-sex marriage, including in Virginia and North Carolina.

Attorneys general in Illinois and California have previously declined to defend their states in similar cases. In Pennsylvania, the general counsel’s office of Gov. Tom Corbett, a Republican, was seen as likely to pick up the defense.

Americans return Obama to the job

The most expensive election campaign in U.S. history came to an end yesterday. According to FEC and independent estimates over $4 billion was spent in the race between President Obama and former Gov. Mitt Romney. Although the race appeared to be tight, and in the final days appeared to be a dead heat, in the end the electoral map barely changed and Obama was swept into power with 303 electoral college votes and a much slimmer margin of victory by popular vote. (This morning Florida’s 29 electoral college votes are still undecided as counting continues in that state. The race is very close there with Obama ahead by a mere .07 of a percent.)

The balance of power in Washington remained largely the same despite the large sums of money thrown into this race by individuals, parties, and Super PACs alike. Democrats picked up 1 additional seat in the Senate and 2 additional seats in the House. The President returns for a second term to confront the political gridlock that stymied efforts in his first term to pass a comprehensive jobs bill and financial regulation. The country is poised to dip back into recession as growth slows, revenues drop, job creation remains slack, and the soaring deficit run amok. To avoid another financial cliff more compromise by the Republican Party will be needed, but whether it can get beyond its vicious anti-Obama sentiments in order to do the hard work of governing remains to be seen. It is, in fact, doubtful given its track record during the President’s first term.

In other electoral results the news for progressive politics was largely great. The night was a major political victory for the Constitution and gay and lesbian politics. In Wisconsin, Rep. Tammy Baldwin defeated former governor Tommy Thompson by a decent margin, making her the first lesbian elected to the U.S. Senate. Voters in Maryland and Maine voted to legalize same-sex marriage, while voters in Minnesota rejected a constitutional ban on same-sex marriage. Referendum 74 to legalize same-sex marriage in the state of Washington was ahead in the polls, and with King County still tallying its ballots the measure will most likely pass. These important votes in four states represents a water-shed moment for the equality movement because they are the first time states have voted to uphold rather than deny the constitutional rights of gay and lesbian citizens. Minds really do change.

The election was also an important victory to bring the senseless and costly war on marijuana to an end. Voters in Washington and Colorado voted to legalize recreational use of the drug. Although a similar measure failed in Oregon, this represents a direct challenge to the federal government by states to change its drug policy. Recent backlash against medical marijuana users by the DEA in California and other states is a case in point why the federal law needs to change to accommodate states’ rights.

Here in California, several important initiatives passed. Voters passed Prop 30 to raise taxes on the wealthiest Californians and temporarily increase sales taxes in order to avoid otherwise devastating cuts to education. Although Prop 34 to eliminate the death penalty did not pass, it was by a narrow margin (53 to 47 percent), signaling the public’s shifting mood on capital punishment. In a victory for criminal justice Prop 36 to reform the state’s draconian “3 strikes” law passed by a wide margin, and this victory should bring some relief to an overcrowded prison system filled with non-violent offenders. Finally, the State Assembly is approaching Democratic supermajorities in both houses, which may help alleviate the state’s governance and budget problems.

In the end, American voters rejected Republican lies that deregulation and less taxes on the wealthy is the solution to a slow economic recovery. Across the nation, voters who were concerned about unemployment voted for Democrats by a significant margin. Perhaps people did not easily forget that 4 years ago the recession swept across America because of, not in spite of, those same policies. The question remains whether President Obama and Congress can get the job done and bring the economy back with healthy, sustainable growth. In the meantime, this victory of progress over the forces of reaction will almost certainly go down in the history books as a vindication of the hard work Obama has done bringing the country back from economic ruin and a crucial turning point in American politics.


Cleaning up DOMA’s constitutional mess?

Last Week U.S. Attorney General Eric Holder announced that the Obama Administration would no longer defend Section 3 of the Defense of Marriage Act (DOMA). DOMA was passed in 1996 by a Republican majority in Congress and signed into law by former President Bill Clinton in response to a wave of culture wars and anti-gay sentiment fostered by right-wing conservatives and the Republican Party.

At the time there were no states with laws protecting civil marriage between gay or lesbian couples. Although it was widely believed that a state supreme court case in Hawaii (Baehr v. Miike) would lead to that state legalizing same-sex marriage, it was not until 2003 that the first state legalized same-sex marriage after the Massachusetts State Supreme Court (Goodridge v. Dept. of Public Health) ruled that denying same-sex couples marriage licenses violated the equal protection clause of the state constitution. Since then California, Connecticut, Vermont, Iowa, and the District of Columbia have followed reached the same conclusion, and more states are following this constitutional trend with civil marriage or civil unions.

Holder’s announcement comes as a surprise and a controversy for two reasons. First, the Obama Administration has been defending the constitutionality of DOMA the past two years in numerous cases challenging the constitutionality of that law. Second, there is a constitutional tradition for the Executive to defend laws passed by Congress in order to let the courts decide the constitutionality of those cases. This constitutional tradition is apparent in the doctrines of the “separation of powers” and “checks and balances,” the idea that each branch of government has specific constitutional duties to make laws (Legislative), enforce laws (Executive), and interpret laws (Judicial). Although there is no specific law requiring the Attorney General to defend the constitutionality of laws in the courts, this principle is generally respected as part of this tradition in order to keep political differences from eroding constitutional duties.

The announcement was made, According to Holder, the decision to stop defending Section 3 of DOMA after President Obama and the Justice Department conducted a thorough review of the law’s constitutionality, and reached the conclusion that it cannot continue to defend that part of the law, which holds that the federal government may not recognize same-sex marriages anywhere, including states where they are legally permitted.

Last Friday, Speaker of the House John Boehner (R-OH) quietly announced the formation of an “advisory group” comprised of congressional members who would step in to defend this part of the law in the courts either by asking them to appoint it as a party in the case or filing briefs as an interested observer. These legal maneuvers and political posturing raise an interesting question. Who is responsible for cleaning up this constitutional mess?

Conservatives, Republicans, and even some Democrats are crying foul, claiming that Obama’s decision is a breach of constitutional responsibilities, and that it is for the courts to decide the constitutionality of DOMA. Never mind that when the California State Supreme Court ruled that Proposition 8 violated the equal protection clause of its state constitution, conservatives and Republicans alike cried foul, claiming that “activist” courts were overriding the will of the people. The reaction to Obama’s decision in DOMA is therefore more hypocrisy from conservatives and their Republican supporters who do not care about the constitutional issues on their own merits. The only thing they care about is whether the constitution serves their bigotry and homophobia, and they will use and misuse constitutional principles in any way they see fit as long as their religious and personal agendas are satisfied. If there is a constitutional mess then Obama’s decision brings clarity to it, because it is Republicans and their religious agenda that made it in the first place. They are the ones who chose to pursue a legislative agenda that is so clearly unconstitutional in the first place. American constitutional history can be summed up in one phrase:  majority rules with minority rights. In this respect, the shameless attempt to deny gay and lesbian citizens equal protection of the law by encouraging and permitting majorities to legislate their civil rights away has never been and will never be consistent with the constitutional principles on which this country is founded.

Of course, there is a principled argument that the Executive has a constitutional duty to uphold the law of the land whether it agrees with the law or not. This is certainly a legitimate expectation and one that should be encouraged, especially in this deeply divisive period of partisan politics where zero-sum mentalities have prevailed over the common good. However, every rule admits of exceptions, and in this case the stakes are extraordinary. The issue of civil and political equality for gays and lesbians is a political hot-potato for every branch of government that none will take responsibility for. Anti-constitutional majorities will not voluntarily set aside their homophobia to recognize the principle of equal protection, elected officials are happy to appease them, and courts are reluctant to intervene and encourage the perception of judicial activism. The social, economic, and political consequences of this constitutional stalemate means, in effect, that the dominant majority in the country accepts a hierarchy of citizenship in which gays and lesbians are second-class citizens. This is wrong.

President Obama’s decision not to defend Section 3 of DOMA is entirely reasonable when viewed in this wider frame, but even in the details his decision is less controversial than the media hype and soundbites admit. Consider the difference between Sections II and III of the law. There is at once a constitutional contradiction evident in the intent and text of the law, while Obama’s decision is a deft compromise intended to deflate that contradiction so that the Justice Department can fulfill its duty to enforce the law. The relevant parts of DOMA read as follows:

Section 2. Powers reserved to the states

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of marriage

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

Section II of DOMA defers to the constitutional principle of states rights, allowing individual states to determine whether they will acknowledge the legal standing of same-sex marriages from other states. This part of the law raises direct and complicated issues about the Full Faith and Credit Clause of the Constitution, which traditionally plays a role in resolving disputes between states over the similarity and continuity of laws. Without this form of adjudication, for example, all those couples descending on Vegas to be married in Sin City would have to get remarried in their own respective states, and couple married in one state would have to remarry in other states in which they lived. However, in the rush to serve this anti-constitutional agenda many states have amended their state constitutions either to recognize “marriage” only between a man and woman or to prohibit the recognition of marriages and civil unions of same-sex couples from other states. (Currently, 29 states have constitutional amendments defining marriage between a man and woman.) The courts will therefore have to resolve disputes between states where the legal standing of same-sex marriages is in question, and Obama has wisely chosen to continue defending this part of the law.

Section III of DOMA denies this principle of states rights, however, by refusing to allow the federal government to recognize even the legitimate marriages of same-sex couples from states where they have legal standing. In addition, DOMA places the federal government in new legal territory because marriage and family law has almost always been left to the purview of states.

By enacting Section III of this law, the intent of the legislators is made apparent:  to deny same-sex couples any constitutional standing whatsoever, even in states where there marriage is legally recognized. This creates a legal limbo for gay and lesbian citizens, as well as those states who have rightly chosen to recognize the equal protection of marriage rights for their gay and lesbian citizens. The law places the federal government in the position of denying both equal protection of the law to gay and lesbian citizens who are legally married, as well as denying the principle of states right to those states that permit same-sex marriage.

Rather than refusing to defend DOMA in its entirety, which would amount to gross negligence of constitutional duty, the Obama administration correctly anticipates that this part of the law is prima facie unconstitutional. Moreover, this decision has legal precedent in its favor. In a federal district court in Boston in 2010, Judge Joseph Tauro has already ruled in two cases (Gill v. OPM and Massachusetts v. U.S. Department of HHS) that Section III of DOMA violates the equal protection of the law found in the Due Process Clause of the Fifth Amendment, as well as violates the Tenth Amendment, supposedly because it exceeds the authority of Congress under the Spending Clause.

The legal issues are technical but the writing of history is on the wall. Laws that deny gay and lesbian citizens equal protection, whether passed by homophobic majorities, anti-constitutional legislators, or written into state constitutions, cannot and will not pass constitutional muster. One only has to read Romer v Evans (1996) and Lawrence v Texas (2003), which struck down Colorado’s Amendment 2 and all state laws criminalizing sodomy, to reach this conclusion. President Obama’s decision not to defend Section III of DOMA is therefore consistent with both law and tradition. Anti-gay laws and amendments are deeply, uncontroversially, and politically motivated attempts to deny gay and lesbian citizens equal protection under the law, and they encourage a long-standing and heinous animus against gays and lesbians. This is an animus that motivates much of this constitutional mess and continues to motivate many citizens, elected officials, and judges from upholding their sworn duties to preserve and protect the Constitution. It is an animus that is contrary to the Constitution, and therefore cannot be constitutionally defended.