From Toronto to Houston: What It All Means

July 27, 2003

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. [This] case involves liberty of the person both in its spatial and more transcendent dimensions. Justice Kennedy, writing for the majority in Lawrence v. Texas.

I don't think any person, gay or straight, can help but see that June 2003 will go down as one of the most momentous months in the gay civil rights movement. First, there was the decision in Ontario to begin granting marriage certificates to same-sex couples, followed shortly thereafter by the announcement by the Canadian government that it would legalize gay marriage throughout Canada. While we were still celebrating this breakthrough, and trying to parse its legal ramifications in the US, the US Supreme Court released its remarkable decision in Lawrence v. Texas, in which it not only threw out its prior decision on sodomy laws but laid the basis for some further advances in US gay rights. That's what I'll try to address with this column.

To begin with, it's useful to understand a little about how the US courts evaluate issues like this when it comes to Constitutional law. There are two important ways that the Supreme Court can use to evaluate whether a law, such as the Texas sodomy statute, is Constitutional. One is to evaluate the law based on the Equal Protection Clause, the other is to evaluate it based on the Due Process Clause. Both are contained within the first clause of the Fourteenth Amendment, which provides that No State shall ... 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.

Equal Protection means that no group of people can be singled out for different treatment. This would mean that the Texas law, which prohibited same-sex sodomy but not different-sex sodomy, was suspect because it violated the equality rights of homosexuals. However, simply finding that there is unequal protection does not immediately make the law unconstitutional, since the rights protected under the Equal Protection Clause are not considered to be fundamental rights. The Court must go undergo a further analysis, called rational basis analysis, which requires a State to show that the law is rationally related to a legitimate State interest.

On the other hand, the Due Process clause is expressly concerned with fundamental rights, even when those rights are not specifically articulated in the Constitution. When a fundamental right is implicated, the law is subjected to strict scrutiny, which means that the State must show that the law is narrowly tailored to achieve a compelling state interest. When a fundamental right is involved, a law regulating it is almost certain to be found unconstitutional.

Over the last 75 years or so, the Supreme Court has begun developing the fundamental right to privacy, once defined by Justice Oliver Wendall Holmes as the right to be left alone. The Court has previously carved out a right to privacy in cases regarding the right to marry (striking down barriers to interracial marriage), procreation (striking down laws against contraception and abortion), and family. In the prior sodomy case, Bowers v. Hardwick, the Court refused to extend privacy rights to homosexual sodomy. Indeed, the Bowers holding expressed the majority's vehement condemnation of homosexuality, ignoring the fact that the challenge included a heterosexual couple who had been convicted of heterosexual sodomy under the Georgia law.

Had the Supreme Court wanted to, it could have struck down the Texas law on the basis of Equal Protection, and this was the gist of Justice Sandra Day O'Connor's concurrence. Such a holding would have been welcome, but would have meant that laws against sodomy that did not distinguish between homosexual and heterosexual conduct would have been upheld, as the majority recognized. The decision would have done nothing to reverse or, at least, minimize the prior holding in Bowers. Indeed, Justice O'Connor, one of the three remaining justices who decided and one of the two remaining who voted to uphold the Georgia sodomy law in the Bowers case, stated in a separate opinion that she would not join the majority in voting to overrule Bowers.

Fortunately, the majority (excluding O'Connor) chose to strike down the law, and reverse the Bowers decision, on the basis of Due Process, which enforces the view that private sexual behavior between adults is a fundamental right. In particular, the majority endorsed Justice Stevens ringing dissent in the Bowers case, which concluded that the fact that a State's governing majority viewed a particular practice as immoral is not sufficient reason for upholding a law prohibiting the practice and that individual decisions about intimate physical relationships, even when not intended to produce offspring are a form of liberty that due process protects. Even though the majority stated that they could have struck down the law based on the Equal Protection argument, it chose the Due Process route in order to be able to reverse Bowers, which, the majority goes on to say, demeans the lives of homosexual persons. I cannot emphasize enough the significance of the overturning of the Bowers decision which had been used to justify a tremendous amount of anti-gay discrimination, a fact that the Justice Kennedy noted when he wrote the stigma this ... statute imposes, moreover, is not trivial.

Although the Court specifically stated that it was not ruling that marriage laws should be extended to same-sex couples, it did cite European law for the first time, indicating that it could see that the trend in other countries was toward greater recognition of gay rights. Furthermore, the majority merely stated that this particular case did not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. They did not, however, forbid States from extending such formal recognition. Justice O'Connor, in her separate opinion clearly states that she would vote to uphold a law forbidding gay marriage but only if a State can articulate another legitimate state interest, such as preserving the traditional institution of marriage. Even she, however, seems to recognize the changing tide of opinion, stating that moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause to justify a law that discriminates among groups of persons.

In his blistering dissent, Justice Antonin Scalia recognized that the majority's opinion would ultimately lead to legal recognition of gay marriage. State laws against ... same-sex marriage ... are called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude [same-sex marriage] from its holding.

The Court today pretends that ... we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada. ... At the end of its opinion ... the Court says that the present case 'does not involve whether the government must give formal recognition to [homosexual marriage].' Do not believe it. ... Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. ... What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

Justice Scalia also finds fault with Justice O'Connor's concurring opinion, believing that her reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. [She] seeks to preserve them by the conclusory statement that 'preserving the traditional institution of marriage' is a legitimate state interest. But [this] is just a kinder way of describing the State's moral disapproval of same-sex couples. ... In the jurisprudence Justice O'Connor has seemingly created, judges can ... invalidate [laws] by characterizing them as 'expressing moral disapproval'.

In light of the Canadian decision to legalize gay marriage, and the setting aside of all laws that criminalize and invade our most intimate conduct, where is this all leading? I am amazed to find myself, in part, in agreement with Justice Scalia, who recognizes that the majority naively believes that they can hold back the tide.

To get from Lawrence to recognition of gay marriage, three things will have to be decided. First, can State's prohibit gay marriage, as many have tried to do with Defense of Marriage Acts? Second, can the US federal government refuse to recognize a state law granting gay marriage (or some other status, such as civil unions), as it did when President Clinton signed the federal Defense of Marriage Act? Finally, can the US refuse to recognize a Canadian gay marriage?

A heterosexual marriage performed in Canada is recognized in the US (and vice versa) under the principle of comity, which says, in essence, that I give recognition to your laws because you recognize my laws. However, the US is now faced with a dilemma: it must either recognize all legal Canadian marriages or only extend recognition to those that would otherwise be legal in the US. In addition, marriage between the two countries is recognized pursuant to treaty. This creates diplomatic strain since the US will now have to prohibit recognition of some Canadian marriages and/or repudiate its treaty. It will be quite awkward but it can be done and there may be some retaliation from our increasingly independent neighbors.

The state and federal Defense of Marriage Acts are also an obstacle, but they will inevitably fall as well. Marriage, as the Court pointed out in Lawrence, is a fundamental right. Thus, laws regulating or prohibiting marriage are subject to strict scrutiny analysis of Due Process review.

In 1967, the Supreme Court overturned a Virginia law, similar to laws in 16 other states, that made it illegal for a white person to marry a person of another race. In Loving v. Virginia, an interracial couple, married in Washington, D.C., moved to Virginia, where they were arrested and sentenced to one year in jail. The trial judge, however, suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. Although the Court in Loving v. Virginia overturned the antimisegenation laws on the basis that a racial law such as this violated the Equal Protection Clause, it also would have overturned the law on the basis of Due Process.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. ... Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.

Thus, marriage was placed in that category of fundamental rights that subjects laws regulating marriage to Due Process analysis. The State must show that laws regulating marriage must be narrowly tailored to achieve a compelling state interest. I'm not aware of any law that has ever passed this strict scrutiny test. Perhaps prohibitions on gay marriage might be found to be a compelling state interest but Lawrence seems to say that laws regulating gays can't even stand up to the legitimate state interest required by the rational basis analysis. Defense of Marriage Acts will unquestionably be found unconstitutional.

The last restrictions will fall when at least one state recognizes gay marriage. Under the Privileges and Immunities Clause of the Fourth Amendment to the US Constitution, states are prohibited from creating unreasonable distinctions in law between citizens of one state and citizens of another. Thus, if I get married in Massachusetts, and I move to Maryland, Maryland must recognize my Massachusetts marriage under this amendment (sometimes called the comity clause). One state's prohibition against recognizing gay marriages that are legal in another state must reasonably relate to legitimate state or local purpose. And as we know from Justice Scalia's analysis of Justice O'Connor's opinion in Lawrence, moral disapproval of same-sex couples is not a legitimate state interest. Thus, each state will most likely have to extend recognition to all marriages performed in all other states, even if those other states allow gay marriage.

Supreme Court justices do not idly write their decisions. They know other courts and other attorneys will comb through their words looking for ways in which to interpret other cases. The measured references to marriage in these opinions lead me to believe that the Justices understand that laws that discriminate against same-sex marriage are ultimately unconstitutional on the basis of Due Process analysis as well as Equal Protection. Even Justice Scalia recognizes the inevitable result. If, as this Court holds, we have a fundamental right to be ourselves, and if, as Justice O'Connor held, we have a right to equal protection, then we cannot be denied the same rights, including marriage, adoption and immigration, as heterosexuals.