The U.S. Supreme Court took up the case, hearing oral argument in March 2003. The questions posed by the justices during oral argument revealed much about their thinking. The transcript shows Justice Stephen Breyer quoting a childish poem to mock the idea that a state could ban certain conduct simply because it didn’t like it.32 He also badgered the lawyer representing Texas for trying to justify the sodomy statute: “You’ve not given a rational basis except to repeat the word morality,” Breyer said, as if morality is an insufficient basis for law. Breyer summed up the main argument for overruling Bowers: It was not about sodomy per se, but that “people in their own bedrooms…have their right to do basically what they want, [if] it’s not hurting other people.”33 This is wrong as a matter of law and fact.
Before Lawrence was decided, Senator Rick Santorum of Pennsylvania provoked a firestorm of criticism in the media with his opinion about the case. “If the Supreme Court says that you have the right to consensual [gay] sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything,” he said. “All of those things are antithetical to a healthy, stable, traditional family.”34
Although Santorum was making an accurate prediction about the legal ramifications of overturning Bowers, he was denounced as “a bigot who spreads lies.”35 The New Republic stated, “It’s hard to characterize Santorum’s remarks as anything other than those of a homophobic bigot; but, rest assured, Santorum’s staff has tried.”36
In June 2003, the U.S. Supreme Court’s majority opinion in Lawrence overruled Bowers. Kennedy wrote the opinion for the majority, which was long on philosophy and short on precedent. Kennedy’s opinion in Lawrence is a result in search of a rationale. He began with “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.”37 This statement means absolutely nothing from a constitutional perspective. Every criminal or immoral act can be justified on the grounds of exercising liberty. But Kennedy has a purpose in such an approach. By using the catchall word “liberty” rather than applying the Constitution to the issue, he seeks to expand the plain meaning of the due process clause of the Fourteenth Amendment (which prohibits the states from depriving any “person of life, liberty, or property, without due process of law”) to grant rights not mentioned elsewhere in the Constitution.
Kennedy and the majority explicitly overruled Bowers and wrote that Stevens’s original reasoning, in dissent, that morality alone is not a legitimate basis to support a law was right. Scalia countered, “This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, [no law against fornication, bigamy, adultery, adult incest, bestiality, and obscenity] can survive rational-basis review.”38
Kennedy, traveling further and further away from his judicial responsibility to interpret the Constitution, wrote of an “emerging awareness that liberty gives substantial protection”39 to sexual decisions and reviewed how sodomy laws had been repealed in most states and even in Europe, where the European Court of Human Rights found sodomy laws invalid under the European Convention on Human Rights.40 Kennedy concluded with a lecture about liberty: “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government…. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”41 (Emphasis added.)
Justice O’Connor was faced with a problem. How could she vote with the majority in Lawrence when seventeen years earlier she had voted with the majority in Bowers? She attempted to solve this dilemma with a laughable approach. She concurred in Lawrence’s result but provided a different rationale for her vote, arguing that the Texas sodomy statute, which prohibited same-sex sodomy but not heterosexual sodomy, violated the equal protection clause.42
As Scalia wrote, the Texas statute could not possibly be a denial of equal protection “since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.”43
Scalia’s conclusion describes how the Supreme Court has effectively set the terms for the gay marriage debate. He wrote:
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. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…and if, as the Court coos (casting aside all pretense of neutrality), “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,”…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. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.44
These three cases—Bowers, Romer, and Lawrence—demonstrate some undeniable and unpleasant facts that need to be considered if traditional marriage is to be preserved. The Supreme Court is clearly in the business of vetoing state (and federal) legislation by inventing new and increasingly more absurd justifications. It does not feel bound by the Constitution or even precedent. It is abandoning the constitutional framework that supports the moral foundation of our laws. In the future, statutes and even state constitutional provisions that uphold the public’s moral consensus and traditions will be open to challenge.
None of this was lost on the Lambda Legal Defense and Education Fund, which saw Lawrence as the truly radical decision that it was:
Lambda Legal will announce its aggressive plan for turning this landmark ruling into a reality in LGBT [lesbian, gay, bisexual, and transgender] people’s everyday lives. From couples and families to kids in school, we’re sharing our vision for how this decision will touch every LGBT person in America—and we’re sharing the Lambda Legal plan for making that happen. Celebrate our victory this week…together, we’re going to use it to win even greater equality for LGBT people for generations to come.45
Susan Sommer, a supervising attorney for the group, hailed the decision as an opportunity: “But even beyond what we can do with it [the Supreme Court’s decision] technically as a legal precedent, which is quite a bit, it also simply changes the landscape, changes the culture, and reflects an enormous shift in this nation. The court has sent a very powerful message to courts around the land, to legislatures around the land and to every community that gay men and women should be afforded the same dignities and liberties as everyone else. It is now a new day.”46
Scalia and Sommer are right. The Supreme Court has set the stage for imposing gay marriage on every state under a distorted reading of the Fourteenth Amendment. And the Supreme Judicial Court of Massachusetts might have created the circumstances under which the U.S. Supreme Court could eventually act.
In 2001, seven gay couples sued the Massachusetts Department of Public Health when they were denied marriage licenses. The couples claimed that they had a fundamental right under the Massachusetts Constitution to pick the spouse of their choice. Therefore, they argued, the Massachusetts marriage statutes could not be interpreted to exclude same-sex couples.47
In November 2003, by a narrowly split vote of 4 to 3, the Supreme Judicial Court of Massachusetts found that the denial
of marriage to gay couples violated the Massachusetts Constitution. The court wrote, “Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.”48
To rectify this supposed injustice, the Supreme Judicial Court changed the common-law definition of civil marriage to mean “the voluntary union of two persons as spouses to the exclusion of all others.”49 While explaining their action, the court claimed that it would not be “appropriate” to strike down the existing marriage laws. Their concern rings hollow, considering that instead of striking them down, the court drastically changed a fundamental aspect of the state marriage laws. Moreover, the court explicitly adopted the approach taken by the Court of Appeal for Ontario, Canada, in a gay marriage case, by changing the common-law definition.50 Not only did the court usurp the state legislature, but it looked beyond its own constitution to a foreign legal system for guidance.
After it altered the definition of marriage that had existed in Massachusetts for centuries, the Supreme Judicial Court went a step further. The Court gave the state legislature 180 days to “take such action as it may deem appropriate in light of this opinion.”51 The legislature was, in effect, given a deadline to fix the legal mess the Court had created.
The Massachusetts legislature scrambled to come up with a possible solution. An attempt by the legislature to protect traditional marriage through a constitutional amendment required longer than 180 days. The legislature decided to propose the enactment of civil union laws, which would provide many, if not all, of the benefits of marriage, except one—the name.
By a quirk of the Massachusetts Constitution, “each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.”52 The Massachusetts Senate asked the court to consider if the civil union proposal was constitutional, to which the court responded in February 2004 with a forceful “no.” Central to its reasoning was the terminology of the bill:
The bill’s absolute prohibition of the use of the word “marriage” by “spouses” who are the same sex is more than semantic. The dissimilitude between the terms “civil marriage” and “civil union” is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status…. The bill would have the effect of maintaining and fostering a stigma of exclusion that the Constitution prohibits. It would deny to same-sex “spouses” only a status that is specially recognized in society and has significant social and other advantages. The Massachusetts Constitution, as was explained in the Goodridge opinion, does not permit such invidious discrimination, no matter how well intentioned.53
Despite the opinion, the Massachusetts legislature was not deterred. It went ahead with a constitutional convention. It passed the civil union law and an amendment to the state constitution banning same-sex marriage, but the earliest it will appear on the ballot for ratification is 2006.
Nevertheless, shortly after midnight on May 17, 2004—the end of the court’s deadline to institute gay marriage—municipal clerks began handing out marriage licenses to same-sex couples in Massachusetts. As the Associated Press reported, “As of Monday, Massachusetts joins the Netherlands, Belgium, and Canada’s three most populous provinces as the only places worldwide where gays can marry.”54
Four of seven justices of the Supreme Judicial Court of Massachusetts—with the stroke of a pen—abolished hundreds of years of tradition and law over the strong objections of the legislature. And as these activist justices undoubtedly intended, their ruling will have consequences well beyond their jurisdiction and Massachusetts’s borders.
Unfortunately, without federal intervention, the prospect of one state imposing gay marriage on other states is quite real. The Constitution requires each state to honor a sister state’s public acts and judgments under the full faith and credit clause.55 If a gay couple marries in Massachusetts, what prevents them from moving to Alabama and demanding that their marriage be recognized there? The existing legal impediments to gay marriage nationally can be easily circumvented.
For example, in 1996 Congress overwhelmingly passed the federal Defense of Marriage Act (DOMA), which was signed into law by President Bill Clinton. Congress acted because of rumblings that Hawaii’s state courts were going to recognize a constitutional right to gay marriage. The DOMA 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.”56 In essence, a state does not have to honor a same-sex marriage performed in a sister state.
Thirty-nine states have also passed equivalent versions of the DOMA, thereby refusing to recognize gay marriages performed elsewhere.57 In August 2004, Missouri became the fifth state to pass an amendment to its state constitution banning gay marriage.58 There are more constitutional amendment efforts under way in numerous other states.
The possibility also exists that a state could argue, if challenged in court, that the recognition of gay marriage is not compelled by the full faith and credit clause because it goes against the “public policy” of the objecting state. Even heterosexual marriages have not been uniformly enforced in the United States. For example, the age of consent differs among the states, so some states declare a marriage from a sister state invalid if a spouse is too young.59
Yet all these legal obstacles to gay marriage will crumble before an activist U.S. Supreme Court. The U.S. Constitution is the highest law in the land, and the Court routinely strikes down state and federal law, and even state constitutional provisions, by invoking the federal Constitution. Given the Supreme Court’s rulings in Lawrence and Romer, a homosexual couple could plausibly argue that denying recognition of their marriage would be a violation of the Fourteenth Amendment’s equal protection clause. In fact, “equality under the law” was the cornerstone of the Massachusetts court’s ruling.
There are essentially two options available to the elected branches of government to prevent the judiciary from seizing the ultimate authority to define marriage—to amend the federal Constitution, or for Congress to pass a law denying the federal courts jurisdiction to rule on this subject.60
A federal marriage amendment was put forth by Senator Wayne Allard and Representative Marilyn Musgrave, both Colorado Republicans. It stated: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”61
In February 2004, President Bush called for a constitutional amendment to protect traditional marriage. He noted that “some activist judges and local officials have made an aggressive attempt to redefine marriage.”62 Although he did not specifically mention it, he announced his support for an amendment that followed the Musgrave/Allard approach.63
A primary criticism of this approach, however, is that it violates the principles of federalism by defining marriage for the states. Senator John McCain, among others, said it was “antithetical in every way to the core philosophy of Republicans.”64 The procedure for amending the Constitution, however, apart from holding a constitutional convention, which no one endorses, requires the vote of two-thirds of both houses of Congress and then ratification by three-fourths of the states. The amendment process itse
lf—involving all state legislatures and requiring a super-majority for passage—is federalism.65
On July 14, 2004, the Senate voted 50–48 against a procedural motion to bring the federal marriage amendment to the floor for a vote.66 A week later, House Republicans tried the alternative approach: limiting the Court’s jurisdiction to rule on marriage. Representative John Hostettler of Indiana sponsored the Marriage Protection Act, which would strip jurisdiction from all federal courts over the Defense of Marriage Act. The bill passed 233–194.67
House Minority Leader Nancy Pelosi of California derided the measure, citing Marbury v. Madison for the proposition that the judiciary has final say over the constitutionality of congressional acts. She said, “Subsequent decisions and the court’s role as an equal branch strongly suggest that Congress cannot prohibit the court from determining the validity of a law in the first place.”68 Hostettler countered, “Anyone [who] actually reads the Constitution and has a basic understanding of grammar and the English language in general can find the fact that the Constitution grants the Congress the authority.”69
For now, the issue is stalled. Not a single state legislature has recognized homosexual marriage, and most states have taken steps to defend themselves against activist courts that would impose it. This issue, like few others, will determine whether Congress has the will finally to defend its constitutional role as the public’s federal representative body.
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