The Constitutional Perils of Recognizing Gay Unions

When President Obama
endorsed gay marriage last year, he said the issue should be
left to the states. Last week he said it shouldn’t.
To be more precise, a
Supreme Court brief filed by the Obama administration last
Thursday argues that California’s ban on gay marriage denies
homosexuals the “equal protection of the laws” guaranteed by the
14th Amendment. Although the brief focuses on Proposition 8, the
2008 ballot initiative that overturned a California Supreme Court
decision requiring the state to recognize gay marriages, its logic
suggests that a policy Obama himself rejected less than a year ago
is constitutionally mandatory.
For many years Obama
said he supported equal rights for gay couples, except for the
right to call their relationship a “marriage.” That is exactly the
policy he now says is unconstitutional.
Proposition 8 amended California’s constitution to declare that
“only marriage between a man and a woman is valid or recognized.”
But the initiative’s backers assured voters that “Proposition 8
doesn’t take away any rights or benefits of gay or lesbian domestic
partnerships.” ;And under California law, as the Obama
administration’s brief notes, “domestic partnerships carry all the
substantive rights and obligations of marriage.”
The administration argues, rather counterintuitively, that
California’s decision to treat gay and straight couples the same
but for the word marriage makes its policy more vulnerable
to constitutional challenge than a policy that does not recognize
same-sex unions at all. Why? Because the only point of withholding
the label is to mark gay marriages as inferior, a goal motivated by
“impermissible prejudice,” which is not a constitutionally valid
reason for treating people differently under the law.
The administration could have argued, as the trial judge and the
U.S. Court of Appeals for the 9th Circuit
did, that the justification for Proposition 8 is so slight that
it fails even the highly deferential “rational basis” test that is
used in most equal protection cases. But the Justice Department had
already taken the position, in a
separate case involving the federal Defense of Marriage Act
(DOMA), that discrimination based on sexual orientation should
receive the same sort of “heightened scrutiny” that the Supreme
Court has said is appropriate for discrimination based on sex or
“illegitimacy” (i.e., birth outside of marriage).
To withstand heightened scrutiny, a legal distinction must
substantially further an important government interest. The Justice
Department, which
announced two years ago that it would no longer defend DOMA and
is now actively
opposing it before the Supreme Court, concluded that the
statute’s ban on federal recognition of state-approved marriages
between people of the same sex fails that test, since it affects
marriage policy only “at the margin.”
Likewise, says Solicitor General Donald Verrilli, Proposition 8
does not substantially advance any legitimate interest, since its
impact is almost entirely symbolic. His brief strongly implies that
the same argument invalidates the laws of seven other states
(Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode
Island) that give same-sex couples “rights substantially similar to
those available to married couples, yet still restrict marriage to
opposite-sex couples.”
Nine states and the District of Columbia recognize gay marriage.
So what about the remaining 33? It is pretty clear from Verrilli’s
discussion of the arguments for banning gay marriage that the
administration does not think those states’ laws could survive
heightened scrutiny either.
But if the Supreme Court, which is scheduled to hear
this case on March 26, adopts the administration’s reasoning,
the decision could discourage states from moving toward recognition
of gay marriage, because doing so would make their laws less
substantive and therefore less likely to be upheld. That would be a
bizarre result, since it is hard to understand how giving gay
couples none of the rights and privileges associated with marriage
is less offensive to the principle of equal treatment
under the law than giving them all those rights and privileges
while calling their relationship something else. ; ;

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The Constitutional Perils of Recognizing Gay Unions

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