Defense of marriage acts: An analysis under state constitutional law

Temple Law Review

Volumn 70, Issue 3, 1997, Pages 1017-1035

  Feather, Nancy J ^a  

^a NONE

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EID: 9444252991     PISSN: 08998086     EISSN: None     Source Type: Journal    
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References (129)

1. Ralph Waldo Emerson, Hymn Sung at the Completion of the Concord Monument, in THE OXFORD DICTIONARY OF QUOTATIONS 276 (Oxford Univ. Press 4th ed. 1992).
2. 852 P.2d 44 (Haw. 1993).
3. Id. at 68.
4. U.S. CONST, art. IV, § 1 ("Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.").
5. See The Defense of Marriage Act: Hearings on S. 1740 Before the Senate Judiciary Comm., 104th Cong. (1996) (statement of Senator Orrin Hatch, Chairman, Senate Judiciary Committee) (asserting that "[t]he Defense of Marriage Act ensures that each State can define for itself the concept of 'marriage' and not be bound by decisions made by other states," and makes it "clear that no federal law should be read to treat a same-sex union as a 'marriage'").
6. 852 P.2d 44 (Haw. 1993).
7. WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 729 (9th ed. 1983).
8. Loving v. Virginia, 388 U.S. 1,2 (1967) (holding antimiscegenation laws unconstitutional on equal protection and due process grounds).
9. Richard Stengel, For Better or for Worse? As the Debate Heats Up Over Same-Sex Marriage, We Take a Look at the Arguments For and Against, TIME, June 3, 1996, at 52 (noting that both opponents and advocates of same-sex marriages believe marriage is a hallmark of stable society).
10. 1 Corinthians 7:2 (Revised Standard Version 2d ed.) (stating that "[b]ut because of the temptation to immorality, each man should have his own wife and each woman her own husband").
11. ROBERT LXDUIS STEVENSON, VIRGINIBUS PUERISQUE AND OTHER PAPERS 34 (Piccadilly, Chatto and Windus 2d ed. 1887) (musing that "[t]o marry is to domesticate the Recording Angel. Once you are married, there is nothing left for you, not even suicide, but to be good.").
12. Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (quoting Maynard v. Hill, 125 U.S. 190, 211 (1888)).
13. Maynard v. Hill, 125 U.S. 190, 205 (1888).
14. Anna Dubrovsky, Same-Sex Marriage: A Struggle for Equal Rights, PITTSBURGH POST-GAZETTE, Sept. 10, 1996, at Al, available in 1996 WL 12087169 (stating that "[w]ithin every major faith and virtually every Christian denomination - from Mormon to Roman Catholic-there is a contingent of support for same-sex couples" and specifically identifying the Quakers, the Unitarian Church, and Metropolitan Community Churches as performing "union ceremonies" for gay couples).
15. See U.S. CONST, amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.").
16. Stengel, supra note 9, at 52.
17. Suzanne Cassidy, State Watches Hawaii's Same-Sex Marriage Case, HARRISBURG SUNDAY PATRIOT-NEWS, June 9, 1996, at Al, available in 1996 WL 5693180 (describing how sixty-eight percent of individuals questioned in a Gallup poll conducted in March of 1996 for CNN and USA TODAY responded that homosexual marriages should not be legally recognized, while only twenty-seven percent believed that such marriages should be legally recognized).
18. Leviticus 18:22 (Revised Standard Version 2d ed.) (stating that a man "shall not lie with a male as with a woman; it is an abomination").
19. See 142 CONO. REC. S10,068 (daily ed. Sept. 9, 1996) (statement of Sen. Helms) (describing homosexuals as "the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle").
20. Id.
21. Dubrovsky, supra note 14, at A1.
22. 142 CONG. REC. S10,129 (daily ed. Sept. 10, 1996) (statement of Sen. Kennedy).
23. Dennis Barbagello, Same-Sex Marriage Ban Advances, PITTSBURGH TRIB.-REV., Oct. 2, 1996, at A1.
24. See 142 CONG. REC. S10,079 (daily ed. Sept. 9,1996) (Appendix A to the statement of Rabbi David Saperstein) (providing that "the Central Conference of American Rabbis support[s] the right of gay and lesbian couples to share fully and equally in the rights of civil marriage").
25. Stengel, supra note 9, at 52.
26. NATIONAL GAY AND LESBIAN TASK FORCE, COMBINED FEDERAL CAMPAIGN LEAFLET No. 2622, WHAT WE WANT: THE GAY AGENDA 3-4 (1996).
27. 852 P.2d 44 (Haw. 1993).
28. Id. at 49 n.2 (citing HAW. REV. STAT. § 572-6 (Supp. 1992), which requires filing of marriage license applications with Department of Health).
29. Id. at 49 n.3.
30. Id. at 50 nn.4-5 (citing HAW CONST, art. I, §§ 5, 6, which guarantee rights to privacy, equal protection, and due process).
31. Id. at 49-50.
32. Id. at 48-49 ("seeking inter alia (1) a declaration that Hawaii Revised Statutes (HRS) § 572-1 (1985) - the section of the Hawaii marriage Law enumerating the [r]equisites of [a] valid marriage contract - is unconstitutional insofar as it is construed and applied by the DOH to justify refusing to issue a marriage license on the sole basis that the applicant couple is of the same sex; and (2) preliminary and permanent injunctions prohibiting the future withholding of marriage licenses on that sole basis").
33. Id. at 51-52.
34. Id.
35. Id. at 52.
36. Id.
37. Id.
38. Id. at 54 (explaining "it is apparent that an order granting an HRCP 12(c) motion for judgment on the pleadings must be based solely on the contents of the pleadings. A claim that is evidentiary in nature and requires findings of fact to resolve cannot properly be disposed of under the rubric of HRCP 12(c).").
39. Id.
40. Id. at 54-55.
41. HAW. CONST, art. I, § 6.
42. Baehr, 852 P.2d at 55.
43. 434 U.S. 374, 384 (1978).
44. Baehr, 852 P.2d at 55.
45. Id.
46. Id. at 56.
47. 671 P.2d 1351 (Haw. 1983).
48. Baehr, 852 P.2d at 57 (referring to State v. Mueller, 671 P.2d 1351, 1360 (Haw. 1983)).
49. Id.
50. Id.
51. Id.
52. HAW. CONST, art. I, § 5.
53. Baehr, 852 P.2d at 59-60. The Fourteenth Amendment provides that a state cannot "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1.
54. Baehr, 852 P.2d at 60.
55. Id. at 59.
56. Id. at 60.
57. Id. at 60 n.20 ("It is plain that the electorate as a whole, whether by referendum or otherwise, could not order ... action violative of the Equal Protection Clause.") (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985)).
58. Id. at 61.
59. Id. (discussing Loving v. Virginia, 388 U.S. 1 (1967)).
60. Id. at 62.
61. Id. (quoting Loving v. Virginia, 388 U.S. 1, 3 (1967)).
62. Id. (quoting Loving v. Virginia, 388 U.S. 1, 3 (1967)).
63. Id. at 63 (emphasis added).
64. Id.
65. Id. at 63-67.
66. Id. at 64, 67.
67. W. at 68.
68. See Stanley Mosk, State Constitutionalism: Both Liberal and Conservative, 63 TEX. L. REV. 1081, 1081-83 (1985). The author states that "[t]he founding fathers derived much of their inspiration from guarantees provided by the colonies that became the original states." Id. at 1081. For example, in their original charters and governing ordinances, Massachusetts prohibited double jeopardy, Rhode Island guaranteed religious freedom, Virginia guaranteed freedom of the press, Pennsylvania granted freedoms of speech and press, Delaware prohibited the quartering of soldiers, Maryland prohibited bills of attainder, and North Carolina recognized most of the fundamental rights now associated with criminal proceedings, such as the right to trial by jury, the privilege against self-incrimination, and protections against cruel and unusual punishment. Id. at 1081-83.
69. Id. at 1084. The Fourteenth Amendment provides that "[n]o 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." U.S. CONST. amend. XIV, § 1. Utilizing the Due Process Clause of the Fourteenth Amendment, the United States Supreme Court has selectively incorporated various provisions of the Bill of Rights so that they apply to the states. See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968) (guaranteeing right to trial by jury); Klopfer v. North Carolina, 386 U.S. 213 (1967) (requiring speedy and public trials); Malloy v. Hogan, 378 U.S. 1 (1964) (protecting against self-incrimination); Gideon v. Wainwright, 372 U.S. 335 (1963) (guaranteeing right to counsel); Mapp v. Ohio, 367 U.S. 643 (1961) (guarding against unreasonable searches and seizures as well as exclusion of illegally seized evidence from criminal trials); Fiske v. Kansas, 274 U.S. 380 (1927) (protecting rights of free speech, press, and religion). In Brown v. Board of Education, 347 U.S. 483 (1954), the Court used the Equal Protection Clause of the Fourteenth Amendment to prohibit race-based segregation in public schools; see also William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 495 (1977) (observing that "when during the 1960's our rights and liberties were in the process of becoming increasingly federalized, state courts saw no reason to consider what protections, if any, were secured by state constitutions").
70. Ken Gormley, State Constitutions and Criminal Procedure: A Primer for the 21st Century, 67 OR. L. REV. 689, 693 (1988); see also Brennan, supra note 69, at 494. Justice Brennan stated that the Supreme Court of recent years has strayed from the principle that "constitutional provisions for the security of person and property should be liberally construed. . . . It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Id. (quoting Boyd v. United States, 116 U.S. 616, 635 (1886)).
71. Brennan, supra note 69, at 495.
72. See Ravin v. State, 537 P.2d 494, 504 (Alaska 1975) (holding that a person's privacy interests under Alaska Constitution prevented state from entering private home to seize marijuana).
73. See In re T.W., 551 So. 2d 1186, 1194-96 (Fla. 1989) (holding parental consent statute, which must be followed by minors seeking abortion, is violation of minors' rights to privacy under Florida Constitution).
74. Ken Gormley and Rhonda G. Hartman, Privacy and the States, 65 TEMP. L. REV. 1279, 1282 (1992).
75. Id. at 1321.
76. No. 93C-1547 (Tenn. Cir. Ct. Feb. 2, 1995).
77. See Lisa M. Farabee, Note, Marriage, Equal Protection, and New Judicial Federalism: A View from the States, 14 YALE L. & POL'Y REV. 237, 247-48 (1996) (citing Campbell v. Sundquist, No. 93C-1547, slip op. at 2-3 (Tenn. Cir. Ct. Feb. 2, 1995) (granting summary judgment)).
78. 842 S.W.2d 487 (Ky. 1992).
79. Id. at 492-93.
80. Id. at 491.
81. 478 U.S. 186 (1986).
82. See Gormley and Hartman,supra note 74, at 1296. See, e.g., Bowers, 478 U.S. at 190-91 (upholding criminalization of homosexual conduct in 5-4 decision); Baehr v. Lewin, 852 P.2d 44, 55-57 (Haw. 1993) (concluding that no fundamental right to same-sex marriage existed under right to privacy and that right to same-sex marriage not "implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed").
83. 381 U.S. 479 (1965).
84. Id. at 485-86.
85. 405 U.S. 438 (1972).
86. Id. at 453. The court maintained that "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id.
87. Bowers, 478 U.S. at 191.
88. Id. at 191-92 (quoting from Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977); Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
89. See generally Carrie Hillyard, The History of Suffrage and Equal Rights Provisions in State Constitutions, 10 BYU J. PUB. L. 117 (1996) (giving brief history of each state's equal rights provisions). Utah and Wyoming incorporated equal rights language within their original constitutions, whereas Alaska, Colorado, Connecticut, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, Pennsylvania, Texas, and Virginia either have equal rights amendments or have added equal rights language to their equal protection clauses, generally by adding the term "sex" as an explicitly protected category. Id. at 117, 132-35.
90. All provisions, whether separate equal rights amendments or equal rights language within other articles or amendments of the state constitutions, will be referred to as ERAs.
91. See Commonwealth v. Carson, 368 A.2d 635, 639-40 (Pa. 1977) (finding that to apply tender years doctrine in custody cases would be "offensive to the concept of the equality of the sexes which we have embraced as a constitutional principle within this jurisdiction"); see also Conway v. Dana, 318 A.2d 324, 326 (Pa. 1974) (stating that presumption that father has principal burden of support for children based on his sex "may no longer be followed. Such a presumption is clearly a vestige of the past and incompatible with the present recognition of equality of the sexes.").
92. Although the Supreme Court first invalidated gender classifications under the Equal Protection Clause in Reed v. Reed, 404 U.S. 71 (1971), striking down an Idaho statute giving preference to men as the administrators of an intestate estate, it established the intermediate scrutiny standard applicable to gender cases in Craig v. Boren, 429 U.S. 190 (1976). In its decision, the Court stated that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Id. at 197.
93. Hillyard, supra note 89, at 133-35.
94. See Michael J. Gentile, Note, Burning Tree Club, Inc. v. Bainum - State Action, Strict Scrutiny, and the "New Judicial Federalism," 47 MD. L. REV. 1219, 1229 (1988) (discussing scrutiny standards adopted by state courts for cases involving sex-based classifications where states have ERAs).
95. See Farabee, supra note 77, at 271 (citing William N. Eskridge, A History of Same-Sex Marriage, 79 VA. L. REV. 1419, 1493 (1993)).
96. Singer v. Hara, 522 P.2d 1187, 1189-95 (Wash. Ct. App. 1974).
97. See generally Hillyard, supra note 89, at 132-35 (discussing various means by which states incorporate equal protection rights).
98. Id.
99. Id.
100. Id.; see also Kroger Co. v. O'Hara Township, 392 A.2d 266, 273-74 (Pa. 1978) (finding equal protection rights guaranteed implicitly by PA. CONST, art. III, § 32).
101. See Bowers v. Hardwick, 478 U.S. 186, 190-91, 195-96 (1986) (failing to apply strict scrutiny because homosexuality is neither a suspect class nor a fundamental right protected by right to privacy).
102. 411 U.S. 677 (1973).
103. Id. at 684-86.
104. See generally David Gelman, Born or Bred?, NEWSWEEK, Feb. 24,1992, at 46 (examining a number of theories that attempt to explain reasons for homosexuality).
105. See supra Part II.B.2.
106. Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993).
107. See supra Part III.A.1 (discussing state courts' analysis of privacy rights); see also Gormley and Hartman, supra note 74, at 1320 (asserting that states that have adopted "express 'fundamental decision' privacy amendments in the aftermath of Griswold and Roe in the 1970's have been somewhat disappointing in terms of their follow-up").
108. See Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). In delivering the opinion of the Court, Justice O'Connor found that a state decision is within federal jurisdiction if [it] fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. Id. ; see also Murdock v. City of Memphis, 87 U.S. 590, 630-31 (1874) (construing § 25 of Judiciary Act of 1789 to limit Supreme Court's jurisdiction to state court errors relating to federal law, and to review of decisions relying on federal law).
109. See Murdock, 87 U.S. at 635-36 (providing test for determining adequate and independent state grounds).
110. See Long, 463 U.S. at 1041 (stating that "[i]f a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached").
111. Kevin Francis O'Neill, The Road Not Taken: State Constitutions as an Alternative Source of Protection for Reproductive Rights, 11 N.Y.L. SCH. J. HUM. RTS. 1, 31 (1993).
112. See Sosna v. Iowa, 419 U.S. 393, 404 (1975) (referring to "domestic relations [as] an area that has long been regarded as a virtually exclusive province of the States"); Boddie v. Connecticut, 401 U.S. 371, 376 (1971) (stating "marriage involves interests of basic importance in our society. It is not surprising, then, that the States have seen fit to oversee many aspects of that institution.") (citations omitted).
113. See 142 CONG. REC. S10,101 (daily ed. Sept. 10, 1996) (statement of Sen. Lott) ("The Defense of Marriage Act will ensure that each State can reach its own decision about this extremely controversial matter: The legal status of same-sex unions. The Defense of Marriage Act, likewise, ensures that for the purposes of Federal programs, marriages will be defined by Federal law.").
114. The Defense of Marriage Act reads in pertinent part: SEC. 2. POWERS RESERVED TO THE STATES. § 1738C. Certain acts, records, and proceedings and the effect thereof 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. 28 U.S.C.A. § 1738C (West 1996 & Supp. 1997). SEC. 3. DEFINITION OF MARRIAGE. § 7. Definition of marriage and spouse 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. 1 U.S.C.A. § 7 (West 1996 & Supp. 1997).
115. 116 S. Ct. 1620 (1996).
116. Article II, Section 30(b) of the Colorado Constitution stated: Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing. COLO. CONST. art II, § 30b.
117. See Romer, 116 S.Ct. at 1629. The court concluded that: Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed. Id.
118. Mark D. Agrast, Keith O. Boykin, and Helen C. Gonzales, Address at the National Association for Public Interest Law Career Fair and Conference (Oct. 19, 1996). Mr. Agrast is the Senior Legislative Assistant to Congressman Gerry Studds (D-MA), a member of the House of Delegates of the American Bar Association, and a co-chair of the National Lesbian and Gay Law Association. Mr. Boykin is the Executive Director of the National Black Gay & Lesbian Leadership Forum. Ms. Gonzales is the Public Policy Director at the National Gay and Lesbian Task Force.
119. Bowers v. Hardwick, 478 U.S. 186, 191 (1986).
120. See Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage, 1996 BYU L. REV. 1, 37 (1996). Professor Wardle asserts that: Romer purports not only to protect the rights of all independently identifiable groups to participate equally in the political process, but also to protect that right against the burden of having to generate supermajoritarian consensus to create policy. . . . In other words, the Romer principle could be interpreted to prevent constitutionalization of the same-sex marriage issue by the judiciary of a state. Id.
121. Cassidy, supra note 17, at A1.
122. See Harold P. Schombert, Note, Baehr v. Lewin: How Far Has the Door Been Opened? Finding a State Policy for Recognizing Same-Sex Marriages, 16 WOMEN'S RTS. L. REP. 331, 334 (1995) (discussing concept of marriage evasion).
123. Id. (discussing application of doctrine of lex loci contractus in marital context).
124. Id. at 334-45.
125. Id.
126. See Wardle, supra note 120, at 7-8 (observing that "[t]he trend in affluent Western nations [including Belgium, Finland, and the Netherlands] during the past decade has been to increase legal accomodation of homosexual relations and has included the extension of some marriage benefits to same-sex couples").
127. See Farabee, supra note 77, at 240 (observing that contractual arrangements can be complicated and expensive but allow same-sex couples means of distributing property, handling estate matters, and delegating responsibility for medical decision-making).
128. Id. Because of a vagueness in the definition of domestic partners, the "requirements for domestic partner status tend to be more exacting than the requirements for marriage." Id. However, domestic partnership ordinances, usually only available in large metropolitan areas, allow unmarried employees "who reside with a significant other of either sex to provide their partner with the same rights to health benefits, hospital visitation, sick leave, bereavement leave, property and life insurance, and annuity and pension rights as those enjoyed by married employees." Id.
129. See Vincent C. Green, Note, Same-Sex Adoption: An Alternative Approach to Gay Marriage in New York, 62 BROOK. L. REV. 399,403 (1996) (discussing how individuals attempted to adopt their partner's children or use best interests of the child theory when partners have children to establish familial relationships in which courts may have to recognize same-sex marriage or allow some benefits of heterosexual marriage).