same sex marriage

April, 1997
In the last decade, the federal and state judiciary, with the guidance of several Supreme Court decisions, has defined the rights of homosexuals in America. One prevailing issue relating to the rights of homosexuals is the ability to legally marry. By looking at the precedent setting decisions of the Supreme Court as well as influential state court decisions, this essay focuses on the current and future state of laws relating to homosexual marriage.
Black's Law Dictionary defines sodomy as a "crime against nature...originally only an ecclesiastical offense." Sodomy was initially a common law offense with its roots in the church. At some point every state in America had a law proscribing sodomy. Currently, twenty-two states have laws against sodomy, ten of which carry prison sentences of ten years or longer (Waters). In 1986, an attempt was made to repeal all sodomy laws based on the theory that they proscribed a fundamental right of persons to be free in their homes and to engage in free association of a sexual nature between consenting adults. The Supreme Court rejected this theory, and held in Bowers v. Hardwick, 478 U.S. 186 (1986), that a state law prohibiting acts of sodomy was constitutional, and did not violate any fundamental rights of homosexuals. Justice White, writing for the Court, expressed great caution in using the Due Process Clause to "expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental.'' Justice White echoed the sentiments of the majority in warning against broadening the scope of fundamental rights, which has traditionally been held to those enumerated in the Bill of Rights, and a handful of non-enumerated rights found in case law. 
In their dissent in Hardwick, Justices Blackmun, Brennan, Marshall, and Stevens disagreed with the majority that Hardwick's claim was one of a fundamental right to engage in sodomy. They felt that Hardwick was expressing an issue involving a fundamental right of privacy, not sexual behavior, and that a long string of precedent did apply: "Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government.'' They further stated that, "before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is an abominable crime not fit to be named among Christians."  Thus, the minority belief was that the government must balance the rights of the people to be protected from government intrusion (privacy) versus the desire of the government to uphold the morals on which the nation was founded. In this case, the moralistic ideals were prioritized over the right claimed by Hardwick. In future cases explored below, however, the minority view of a right to privacy begins to overtake the government's interest in upholding Christian morals.
Equal Protection in Colorado
Ten years after the Hardwick decision, voters in Colorado passed an amendment to their state's constitution which invalidated all legislative, executive and judicial actions which protected homosexuals from most forms of public discrimination. In the case which struck down Amendment 2, Romer v. Evans, ___ U.S. ___ (1996), the Supreme Court held that the ban on laws protecting homosexuals from discrimination was a violation of the homosexuals' Equal Protection rights. The Court's reasoning was that the Amendment placed a "broad disability" upon the homosexuals by preventing them from seeking specific legal protection from injuries caused by discrimination in...public and private transactions." The Court was further unable to find any identifiable legitimate purpose or discrete objective in the Amendment, and found that it was a status- based classification, which the Equal Protection Clause "does not permit.'' The Romer court cited Sweatt v. Painter, 339 U.S. 629, 635 (1950) in stating that the "equal protection of the laws is not achieved through indiscriminate imposition of inequalities" and stated that this principal "explains why laws singling out a certain class of citizens for disfavored legal status ... are rare."
In their dissent, Justices Scalia and Thomas point out the reversal of judicial thought in the majority decision from the decision in the Hardwick case. The Hardwick case set the precedent for singling out homosexuality for unfavorable and unequal treatment, and as the dissenting justices point out, the Romer case states that such treatment is in violation of the Equal Protection Clause. Justices Scalia and Thomas do not see any difference between laws that prohibit a type of conduct and measures that prohibit laws protecting a group of people from discrimination.  I see a wide difference, and I believe that the Supreme Court's ruling in Romer and Hardwick are independent of each other.  Romer deals with a fundamental right (Equal Protection of the laws, under the Fourteenth Amendment), and Hardwick deals with a right that the Court specifically stated is not fundamental. Nothing in the Romer case suggests that the state may penalize or punish homosexuals for their sexuality, as Amendment 2 proposed to do by not affording homosexuals the same protection from discrimination that other groups based on characteristics enjoy.
Which Level of Analysis?
Any time a case regarding the rights of homosexuals is raised, one of the most important issues before the court is which level of analysis to use, and it has historically been far from an easy answer. Choosing a level of analysis for a case is of utmost importance because it dictates what level of justification must be brought to counteract the civil rights of a sexual orientation based group. Finding a level of analysis for cases relating to sexuality is difficult because the issue of sexuality being an immutable characteristic is debatable, as is the effect of discrimination, prejudice and whether they have had political power. In Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989), Judge William Norris wrote in the majority opinion that there is a three stage process for determining the validity of laws regarding sexual orientation based burdens on classes of people:
1. Does the regulation discriminate on the basis of sexual orientation?
2. What level of judicial scrutiny applies (strict, intermediate, or rational basis scrutiny)?
3. Does the challenged regulation survive the level of scrutiny?
In deciding if sexual orientation meets the strictest level of scrutiny, i.e. if being homosexual is a suspect class, four qualifications must be met: Immutability, stereotypes, history of discrimination and politically powerless minority status. Courts have traditionallv been conservative in expanding the coverage of this suspect class label, but in the Watkins case the majority did feel that sexual orientation fit the suspect classification. In terms of immutability, the court found that the Supreme Court has never restricted suspect classification to those with immutable characteristics. Rather, "the Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty...such as a change in identity." Most people, including the justices in this case, would agree that one's sexuality is a key aspect of one's identity, and to change it would involve a very seat difficulty.
There was no dispute in this case that "homosexuals have historically been the object of pernicious and sustained hostility" and that this treatment is comparable to discrimination based on other suspect classifications, such as national origin. The court also found that society has historically subjected homosexuals to "grossly unfair" prejudice. With regard to political powerlessness, the court found that homosexuals are politically powerlessness in the sense that because they are often forced to hide their sexuality, and because they are a minority, they often are deterred from openly advocating legislation that would be beneficial to homosexuals. The prejudices which homosexuals face further "renders political participation wholly ineffective.'`
Therefore, the Watkins court found that homosexuals do constitute a suspect class, and the burden was thus placed upon on the government to prove that the challenged restriction is "necessary to promote a compelling governmental interest," as was established in University of California Regents v. Bakke, 438 U.S. 265 (1978). In Baehr v. Lewin, 852 P.2d 44, 58, 68 (1993), the Hawaiian Supreme Court accepted the Watkins strict scrutiny reasoning, as I explore below, and on its remand to the trial court, instructed the State to show a compelling reason for the discrimination, thus utilizing the strict scrutiny analysis.
Marriage in Hawaii
In 1992, the Hawaiian Supreme Court ruled in Baehr v. Lewin that excluding homosexuals from the ability to marry was in violation of the Hawaiian state constitution's guarantee of equal protection under the laws. The state's high court ruled that unless the government could convince the court that there was a compelling, legitimate reason to ban the marriage of two people of the same sex, that a prohibition of the same would be unconstitutional. The Supreme Court remanded the case back to the trial level, where the trial judge found that the state did not have a compelling, legitimate reason to ban same-sex marriages. The case is currently on re-appeal to the state Supreme Court, but given its prior ruling, the justices are likely to uphold the trial court's rulings, legalizing the marriage of homosexuals in Hawaii. Because this case is based upon the state constitution, the U.S. Supreme Court will likely not be presented with the opportunity to review this case.  (Kunen)
The Hawaiian court's ruling sets no binding precedent in other states, but it may well prove to be an example for other state courts to rule by. Conversely, the laws of another state may actually invalidate the Hawaiian Supreme Court's ruling because of the Full Faith and Credit clause of Article IV, Section 1 of the Federal Constitution. No state has ever been required to recognize the marriage of two people, of any gender combination, from another state. However, the Full Full Faith and Credit clause requires states to recognize the judgments of another state's courts. In fact, the Defense of Marriage Act of 1996 expressly forbids the federal government from recognizing same-sex marriages, and tells the states that they do not have to recognize a same-sex marriage from another state. Further, sixteen states have laws which specifically prohibit the recognition of same-sex marriages. (Kunen)
If the Hawaiian Supreme Court does eventually rule that same-sex marriages are legal in Hawaii, and a same-sex couple from another state goes to Hawaii to get married, and then returns to their home state, they may be presented with legal opposition to their marriage. If their home state's judiciary finds the same-sex marriage (performed and legal in Hawaii) to be void, the marriage would most likely be void in Hawaii as well. This is because the Full Faith and Credit clause does require states to recognize each other's court judgments (Kunen). Undoubtedly, the next decade will see the Supreme Court presented with questions regarding same-sex marriage and their recognition across state boundaries.
There is little question that in terms of common and modern law, marriage is a legal institution between a man and a woman, i.e. people of two different genders. In the last two decades however, the term "gender" has itself become an increasingly vague word as medical procedures which can change gender have become increasingly available and accepted. Our society has also become more accepting of homosexuality, as is evidenced in the difference between the anti-homosexual Hardwick decision and the Romer decision, which supported the concept of sexuality as a classification comparable to gender and national origin. In light of these changes in society, I believe it is nearing the point when the legal definition of marriage should and will be changed to accommodate those with less traditional choices in whom to many. From a constitutional standpoint, I believe that should the Supreme Court be presented with a same-sex marriage case similar to Baehr, the Supreme Court will and should uphold same-sex marriage statutes as constitutional, and strike down the state and federal laws which prohibit recognition of same-sex marriages.  In doing so, I would expect the Supreme Court to also address and reverse the Hardwick ruling, not by expanding fundamental rights to encompass sexual acts, but by removing government's  ability to regulate consensual, adult bedroom behavior. The Constitution does not define marriage, but it does ensure our freedom to associate with whomever we wish, our right to privacy in matters of personal choice including marriage, and it ensures that the records, such as marriage records, of one state will be honored in another. I believe that the Supreme Court will have no constitutional choice but to permit same-sex marriages. Undoubtedly, when the topic of same-sex marriage is brought before the Court, conservative politicians including the religious right, as well as many other organized religions will come out against same-sex marriages and homosexuality as abhorrent, unnatural and un-Christian. These are the same arguments made against interracial marriage, which is now commonplace and fully legal, and I hope the Supreme Court will have the courage not to be swayed by the opinion of those against same-sex marriages.
Black's Law Dictionary (3rd ed. 1991) p.455 col.2.
Kunen, Hawaiian Courtship (Dec. 16, 1996). Time Magazine, pp. 44-45.
Waters, J. (1995 December).  United States Anti-"Sodomy" Laws.

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