From: FORMNATL@aol.com Date: Sun, 15 Dec 1996 14:15:23 -0500 Subject: LEGAL SUMMARY Legal Summary (revised 12/96) Court Decisions Following Baehr v. Lewin (Baehr v. Miike ) This handout is designed as a brief guide to how other state courts (and possibly federal courts) are likely to handle marriage cases following a likely Hawaii victory in Baehr v. Lewin. We will focus on what will perhaps be the most common scenario; that same-sex couples will legally marry in Hawaii, and then seek to have those marriages recognized in the other forty- nine states (and the District of Columbia). Marriage statutes are a matter of each state's law, all of which vary somewhat. As long as federal constitutional issues are not at issue, same-sex marriage lawsuits will, therefore, not proceed beyond each state's highest court. This is true of Baehr v. Lewin. Although federal issues were raised here, the case was initially decided in favor of the plaintiffs based on the fact that the denial of marriage licenses to same-sex couples presumptively violates Hawaii's state constitutional prohibition of sex discrimination. The Hawaii Supreme Court ruled that because, for example, a man was seeking to marry another man, rather than a woman (which he would have been permitted to do), the state was therefore discriminating based on sex. The Court did not, however, rule that such discrimination was actually unlawful; merely that it was presumptively so. That is, unless the State of Hawaii can prove a "compelling state interest" {1} in discriminating against same-sex couples seeking marriage licenses, it will have to begin issuing such licenses to all who apply and are otherwise qualified (i.e., they are not closely related by blood, etc.). Although we do not yet have a complete victory in this case, because the state must meet this strictest of legal tests--a test which in reality proves fatal to the vast majority of all cases to which it is applied--it seems very likely that final victory isjust a matter of time. (The case is due to be reheard on August 1st, 1996. A final ruling is expected sometime in 1988.) Dean v. D.C. , the Washington, D.C. lawsuit brought by a gay male couple, Associate Judge Ferren, dissenting in part, provides a useful analysis of precisely what "compelling state interests" would allow the state of Hawaii to prevail in Baehr v. Lewin. (This case is also interesting because it is the only major same-sex marriage ruling to occur after the May, 1993 initial Baehr decision.) Ferren writes in part: ". . .if the government cannot cite actual prejudice to the public majority from a change in the law to allow same-sex marriages, such as a predictable increase in antisocial homosexual behavior, then the public majority will not have a sound basis for claiming a compelling, or even a substantial, state interest in withholding the marriage statute from same-sex couples; a mere feeling of distaste or even revulsion at what someone else is or does, simply because it offends majority values without causing concrete harm, cannot justify inherently discriminatory legislation against members of a constitutionally protected class--as the history of constitutional rulings against racially discriminatory legislation makes clear." [1] (Please note that Ferren may be playing devil's advocate here. Though some of this may be offensive to gay people, keep this in mind.) Ferren is arguing that state may attempt to argue that allowing for gay marriage will increase the incidence of homosexuality, and may also create role models for gay children that could encourage "experimentation" that otherwise might not occur. Ferren stresses, however, that the state would have the burden of proving these to be true. This information is provided because of a need to anticipate what arguments the state may come up with, and how best we can respond to them.) On the next page are the major statutes and points of law that are likely to bear heavily on future same-sex marriage judicial decisions. In considering these various factors, it must be kept in mind that predicting precisely what will happen is by no means an exact science. By legal tradition, these are the major factors that should be taken into account. However, the fact remains that no matter how precisely a judge may seek to render his or her decision with pure objectivity, the fact remains that, because different aspects of the law may point in very different directions, ultimately judges will have to exercise some measure of subjective choice over what legal aspects are most important, a choice which will largely determine the outcome of each case. One more caveat: Although most judges claim that their decisions are merely the result of the principles and methods of adjudication applied, the reality is that much of the time, especially in highly-charged issues such as this, they simply decide what result they wish to achieve, and only then seek arguments to achieve it. Of course, those of us who are advocating for same-sex marriage rights have a certain outcome in mind as well. However, it is also true that many of us who have studied the law on this issue in some depth believe that the law itself, if properly, even "conservatively" applied, must inevitably lead to the recognition of this right. STATE ISSUES * Marriage Validation Statute These are statutes which, essentially, provide that a "forum" state (the state where the judicial recognition of a marriage performed elsewhere is being sought) will recognize marriages performed in a "marriage" state (the state where the marriage was actually performed), even if such a marriage could not have been legally performed in the marriage state. This doesn't automatically mean that, for example, a same-sex marriage performed in Hawaii would automatically be recognized by a state with a validation statute. In some case there are enumerated exceptions, and sometimes even unenumerated exceptions can and will be made. But, it is nevertheless a very positive factor. (Section 210 of the Uniform Marriage and Divorce Act, which is the basis of many states' validation statutes, seems to indicate that all marriages legally performed elsewhere will be validated in the forum state. This is true because the drafters of this legislation pointedly declined to include a "public policy exception" provision. This had been part of the Restatement (Second) of the Conflict of Laws, a document which otherwise formed the basis of the Uniform Marriage and Divorce Act.) * Marriage Evasion Statute These statutes say that if a couple goes to another state to get a legal marriage that would not have been legally obtainable in their home (evasion statute) state, that marriage shall be null and void. This of course is a negative factor in our post-Baehr scenario, but it also is not "dispositive"; in other words, it does not completely answer (or "dispose of") the question of whether such a marriage will be validated in the forum state. For example, depending on the precise language of the statute, a plaintiff could conceivably argue, and a judge could conceivably rule, that absent proof that our couple went to Hawaii specifically because they knew they couldn't have a marriage legally performed in their home state, the court would have to consider the marriage to be have performed in "good faith" and would err on the side of recognition. Additionally, evasion statutes would almost certainly not apply to a couple who had lived in Hawaii for a long time, then come to, say, Massachusetts (which has an evasion statute) expecting their marriage to be validated. Such a couple would not have "evaded" Massachusetts law at all, because they weren't originally subject to it. The case for this becomes even stronger if the couple could show it had moved to Massachusetts out of necessity--for example, job reasons--and only then realized their marriage might not be recognized. This is probably the best test case for a marriage with an evasion statute, or indeed for any other state. If same- sex couples who moved from Hawaii were granted marriage licenses, it would seem anomalous, to say the least, to deny marriage licenses to native same-sex couples. * Anti-Gay Marriage Law A handful of states have language in their marriage law that specifically states same-sex marriages are invalid. This is to be distinguished from states which merely have language indicating marriage as applying to a "man" and a "woman," but not specifically stating it can only apply to such couples. And this, in turn, is to be distinguished from states whose marriages laws are essentially "gender-neutral." But once more, the existence of such a law is not dispositive, for several reasons. Depending on the precise language, a judge could conceivably rule that such a law applied only to marriages attempted in the forum (statute) state. A judge could also rule that other factors outweigh the provisions of this law. (Some states have one or more or even all of the following: a marriage validation, a marriage evasion, and an anti-gay marriage law. In these cases, there would be an internal state conflict of laws that can be resolved no other way than by giving some more weight than others.) * Equal Rights Amendment Many states have a provision of their constitution which provides that their shall be no discrimination on the basis of gender. As in Baehr, this provision may be used to argue that denial of marriage licenses to same-sex couples constitutes sex discrimination. Because state ERAs are state constitutional provisions, as opposed to merely state laws, they should be given much more weight than, for example, anti-gay marriage laws or other non-constitutional factors arguing against same-sex marriage recognition. If and when Baehr is finally ruled in our favor, it will create a strong precedent for states with ERAs to validate same-sex marriages on this basis. * Gay Rights Law Although a gay rights law will probably not be of direct help in a same-sex marriage case, at the very least it constitutes a progressive indication of public policy that could be quite helpful regarding any federal Constitutional issues that might be raised (see below). However, if the state's gay rights law outlaws discrimination in "public accommodations," as many do, it could conceivably be argued and ruled that marriage licenses are a form of "public accommodation," and therefore cannot be denied on the basis of sexual orientation. (This was a basis of the Dean v. Barry case brought in Washington, D.C. This case was lost, but perhaps due primarily to a judge whose ruling was perhaps the most hostile in a marriage case yet, including those brought and lost in the early 1970s.) This argument becomes problematic, however, in cases where the gay rights law has a provision (as Massachusetts does) which indicates that the gay rights law shall not be construed as providing for same-sex marriage. However, these should not and probably will not be construed as a prohibition on any recognition of same-sex marriage; merely as an indication that if such marriages are to be validated, they may have to be validated on some basis other than this "tainted" form of gay rights law. From: FORMNATL@aol.com Date: Sun, 15 Dec 1996 14:16:35 -0500 Subject: LEGAL SUMMARY * Sodomy Law Just as a gay rights law may not be directly helpful, a sodomy law may not be directly unhelpful; but unhelpful it is nevertheless. However, the majority of states still retaining a gay rights law don't single out same-sex couples for prosecution. In those states, it could be argued that the sodomy law should not be seen as an indication of the state's public policy regarding same-sex couples (see below). Arguments in these states could be tailored to precisely how sodomy was defined; not to become too graphic, but in many states only anal sex is prohibited. Therefore, it could be argued that only those gay male couples that take part in this activity could be denied a marriage license due to public policy reasons. Those who do not, and of course assumably virtually all lesbian couples, could not be denied a license on this basis. It could further be argued that allowing licenses on this basis would be arbitrary and untenable, and that licenses would therefore have to be issued irrespective of the sodomy law. Finally, it could be argued that unless the state could prove gays committed sodomy at a far greater frequency than straights, the state would have to deny marriage licenses not only to gay couples who had committed or were "likely" to commit sodomy, but also to straight couples who had or would. Again this would produce an unworkable situation. For states which specifically target gay people, sodomy laws are a bigger problem. However, even these, depending on definition, may be viewed as applying to some same-sex couples and not others, creating a similar problem of arbitrary denial. Note: Bowers v. Hardwick, the 1986 U.S. Supreme Court case which ruled state sodomy laws are constitutional, based its ruling on due process analysis. It specifically declined to address equal protection issues. Therefore, equal protection may provide protection not only against sodomy laws, but against efforts to stop same-sex marriage as well. Additional note: As one court has noted: "If marriage can make behavior acceptable--and constitutionally protectable--that would otherwise be unacceptable and unprotectable, this means that marriage can legitimize behavior that may be contextually, but not inherently, unacceptable." [2] * Privacy Several state constitutions{2} have a privacy provision. These are usually quite strong; stronger, in any case, than the "penumbral" right to privacy explicated in several major U.S. Supreme Court and other cases but nevertheless not an actual provision of the U.S. Constitution. Again, because these are state constitutional provisions, they carry much more weight than any statutory or common law issues that might argue against recognizing same-sex marriage. FEDERAL AND INTERSTATE ISSUES * Full Faith and Credit Clause (U.S. Constitution) This clause states: "Full Faith and Credit shall be given to each state to the public Acts, Records, and Judicial proceedings of every other state." (U.S. Constitution, Article IV, Section 1.) However, there is generally considered to be a "public policy exception." If the state is determined to have a strong public policy against the recognition of a same-sex marriage--a policy as enumerated in its laws, judicial decisions, state constitution, as well as community attitudes--it can decline to validate a same-sex marriage legally performed in another state. It is in this area that gay rights and sodomy laws "go to inform" public policy (see above). Whether public policy exceptions can be made, and which ones can be made, depends largely on whether the state's courts follow a "strong" or "weak" theory of Full Faith and Credit Analysis. Not surprisingly, the "strong" theory would tend to validate marriages, while the "weak" would be less inclined to. Courts tend to validate when two other factors are present as well: the couple have been married for a long time, and they are raising children. According to one law review article, however: ". . .no American court has invalidated a marriage license which was validly contracted in another American state by parties domiciled there." [3] This is a crucial, extremely helpful point in establishing the validity of same-sex marriages obtained in Hawaii by Hawaiian citizens who later move to another state. * Right to Interstate Travel (U.S. Constitution--penumbral right) Due to this right, many courts will validate, even when evasion has taken place and validation would be contrary to community attitudes. "Good faith" vs. "bad faith" issues tend to be important; i.e., if the couple sincerely expected and were counting on their marriage to be validated, and/or their move to a new state was necessitated by pressing, personal factors such as a new job, desire or need to be with other spouse or family, etc. * Marriage as a Fundamental Right Under the Due Process Clause (U.S. Constitution) A right is thought to be "fundamental" if liberty could not exist without it. Restrictions on fundamental rights would have to pass the "strict scrutiny" test, meaning the state had a "compelling interest" in placing these restrictions, and that the state could only achieve its objectives through these restrictions, and not by some less restrictive tool or method. (The objectives themselves must also be constitutionally permissible.) Due Process Analysis looks at what rights have traditionally been granted, and analyzes whether the restriction of rights at issue is or is not in keeping with traditional guarantees. Opposite-sex marriage has been ruled to be a fundamental right under Due Process. (It might be more accurate to say that marriage itself has been ruled to be a fundamental right, at least as applied to heterosexuals.) Sodomy laws are a major obstacle to winning via this route because of the fact that they have existed for a very long time, and as recently as 1986, in Bowers v. Hardwick, were ruled Constitutional by the U.S. Supreme Court. * Same-Sex Couples as a "Suspect" or "Quasi-Suspect" Class Under the Equal Protection Clause (U.S. Constitution) Equal Protection Analysis is in a way the opposite approach to Due Process. It instead looks at what classifications (such as race) have historically been employed to unfairly deny rights. The Equal Protection clause requires that laws treat people similarly situated in a similar way; i.e., distinctions cannot be drawn that arbitrarily exclude or restrict the rights of only certain groups of people. If restrictions are placed against a "suspect" or "quasi- suspect" class, {3} then that restriction requires strict scrutiny (or intermediate scrutiny in the case of a quasi-suspect class. Gender is often considered a quasi-suspect class.) Strict scrutiny requires not only that a statute have a legitimate goal, but that it be structured as narrowly as possible to achieve that goal without violating anyone's (usually defined as a minority group) right to equal protection of the laws. (The core of the Baehr ruling was that gender is a suspect class, as per Hawaii's state constitution--see above.) If the restrictions are against some other class, they must only meet the "rational basis" test; the state must prove a rational relationship exists between the restrictions and a legitimate state interest. Some courts have attempted to deny same-sex marriage rights on the basis that marriage by definition only applies to opposite-sex couples. Therefore, such courts argue, gay couples are precluded from marriage not by what the courts or any other government branch does, but by the definition of marriage itself. However, the U.S. Supreme Court has warned: "Care must be taken in ascertaining whether the statutory objective itself reflects archaic and sterotypic notions." [4] (It is noteworthy that in Loving v. Virginia, the 1967 Supreme Court case that struck down inter-racial marriage proscriptions, was based on equal protection, not fundamental rights analysis. [5]) NOTE: Romer v. Evans On May 20, 1996, the U.S. Supreme Court struck down Colorado Amendment 2, a provision that would have voided all existing and future protections from discrimination based on sexual orientation. In addition to being the most far-reaching legal victory for gay rights to date, the ruling will almost certainly impact positively any future Supreme Court review of marriage recognition as well as anti-gay marriage law cases. In a 6-3 opinion, the court wrote in part: ". . .we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. . .We find nothing special in the protections Amendment 2 withholds. . .The resulting disqualification of the right to seek specific protection from the law is unprecedented in our jurisprudence. . .A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense." [6] NOTE: Anti-marriage amendments: Individual states and perhaps also the federal government may consider constitutional amendments to bar same-sex marriage. Even if adopted, such amendments may still be ruled unconstitutional, under Romer and other precedent, because they deny the federal constitutional right to political participation. [7] NOTE: "Defense of Marriage Act: (DOMA) On September 21st, 1996, President Clinton signed into law this legislation purporting to allow individual states the right to deny recongition of same-sex marriages legally contracted in another state. It will also define marriage for federal purposes as a union between one man and one woman only. DOMA is considered by many legal scholars to be redundant, unconstitutional, or both. States may already have the right to deny recognition of gay marriages under the public policy exception to the Full Faith and Credit Clause (see above). However, if such non-recognition is unconstitutional because of this same clause, it remains unconstitutional nothwithstanding DOMA's passage. DOMA could, however, make a difference in some states. Provisions related to federal recognition will certainly be enforced, meaning that any of the federal rights and benefits attending marriage will be denied to gay couples unless and until it is succesfully challenged in court, as it certainly will be. * Conflict of Law Analysis The typical conflict of laws we are likely to see here is that of the marriage state (likely Hawaii) versus the forum state (another state, where validation of the marriage is sought). Once again, there is no automatic means to choose which law should take precedence. One might think because the couple was no longer in Hawaii, Hawaiian law would no longer apply; that of the home state would. But because of Full Faith and Credit and other issues discussed above, this is not quite true. However, because of anti-gay marriage laws and other issues also discussed above, it is also not a foregone conclusion that Hawaiian law will win the day. How is this seeming tug-of-war resolved? There are various legal theories to approach this problem, and different states--and different courts--subscribe in greater or lesser degree to one or more of them. The two major, discrete approaches are the First Restatement versus the Second Restatement of the Conflict of Laws. These are legal treatises; the first written in the 1930s, and the second in the 1980s. The Second Restatement makes the following very important point: "To date. . .A marriage has only been invalidated when it violated a strong policy of a state where at least one of the spouses was domiciled at the time of the marriage and where both made their home immediately thereafter." [8] In other words, if a Hawaiian gay couple got married there and moved to another state, and sought recognition of their marriage there, that state would either have to recognize the marriage, or break with the entire legal tradition of marriage recognition cases. States can be fairly definitely said to fall into one or the other of these camps. However, most analysts agree that the differences between the two for the purposes of same-sex marriage recognition are negligible. It is likely that judges' own personal preferences will manifest themselves to a far greater degree, regardless which Restatement they subscribe to. Another approach is Interest Analysis, which urges courts to consider how the interests of the forum state would best be served. (In practice, regardless of approach, it is well understood that judges are often far more likely to prefer the law of their own state over that of another.) Only slightly different is the "Better Law" approach, which urges a rather subjective appraisal of how best to make law generally, with less parochial regard for home laws. Similar also is the "Emerging Law" approach, which urges judges to favor the direction other courts are heading in, even if most courts still follow what might be called the "regressive" approach. Note: Declaratory Judgments As same-sex marriages are contracted in states such as Hawaii, and the question arises as to their validity in another state (the "forum" state), couples may seek to obtain a declaratory judgment from a forum court that their marriage will in fact be considered valid for all purposes in the forum state. NOTES FOOTNOTES******************************** {1} It is noteworthy that in Holdman v. Olin (581 P. 2d 1164 (Hawaii 1978)), the Hawaii Supreme Court--in the only such example we are aware of--found a compelling state interest in a gender case. This case involved women prison guards being forced to wear brassieres, whereas men, of course, were not. The court found that the compelling state interest here was prison security, which justified the differential treatment. ("Baehr v. Lewin: Will Equal Protection Lead to the End of Prohibitions on Same-Sex Marriages?," by Greg Ladner, in National Journal of Sexual Orientation Law, Vol. 1 No. 1, January, 1996.) Preventing incest, child marriages, venereal disease, and bigamy have been cited by the court as potential compelling state interests. ("The Right to Say 'I Do': The Legality of Same-Sex Marriage," by Pul RoyL, in Law &Psychology Review, Vol. 20: 249 (1996)). Hawaii courts have ruled that only sex discrimination based differing "physical characteristics" of the sexes can be permissible. Although a somewhat obvious and even humorous distinction, Holdman is nevertheless noteworthy as an example of an exception--in Hawaii--to the rule thscrutiny is "strict in theory, fatal in fact." {2} Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, and Washington. {3} Suspect classes include distinctions based on race and national origin, according to the U.S. Supreme Court, the final authority on all U.S. Constitutional issues. Some lower federal and state courts have indicated that other distinctions, such as gender and sexual orientation, may in some cases be suspect or "quasi-suspect." ENDNOTES******************************** [1]. Dean V. D.C., 653 A.2d 307 (D.C. App. 1995) at 355. [2]. Ibid., at 344. This is part of a dissenting opinion, and therefore, is only "dicta," i.e., it doesn't have the force of law.) [3]. "Sister-State Recognition of Valid Same-Sex Marriages: Baehr v. Lewin--How Will It Play in Peoria?," by Candace Sage, in Indiana Law Review, Vol. 28: 115-134 (1994). [4]. Mississippi University for Women, 458 U.S. at 725. [5]. "Marriage, Equal Protection, and New Judicial Federalism: A View from the States," by Lisa Farabee, in Yale Law and Policy Review (14: 237-286 (1996)), pg. 253. [6]. Romer v. Evans, 94 U.S. 1039 (1996). [7]. "Marriage, Equal Protection, and New Judicial Federalism: A View from the States," by Lisa Farabee, in Yale Law and Policy Review (14: 237-286 (1996)), pg. 251. [8]. Restatement (Second) of Conflict of Laws x 283 (1988) cmt. k.