Monday, June 01, 2009

Letter From the Editor: Federal Court Challenges to Same-Gender Marriage Bans Were Long Overdue

When the Supreme Court Struck Down Laws That Banned Interracial Marriages in 1967, Public Opposition to Such Unions Was Far Stronger -- and More Vicious -- Than Opposition to Same-Gender Marriages Is Today; Gay Leaders Have Made a Big Mistake in Not Going After Same-Gender Marriage Bans in Federal Court on the Same 14th Amendment Equal-Protection Grounds as the 'Loving v. Virginia' Case

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Opponents of same-gender marriage are increasingly running into a constitutional brick wall as a growing number of state courts are ruling that gay and lesbian couples have a constitutional right to marry. Yet gay-rights advocates have been derelict in not recognizing this right at the federal level, insisting on going state-by-state -- wasting valuable time, resources and money -- when they should have done what Richard and Mildred Loving did nearly a half-century ago: Fight for their freedom to marry in the federal courts. The fact that a lawsuit has at long last been filed in federal court against California's Proposition 8 is a long-overdue wake-up call to everyone that the freedom of gay and lesbian couples to marry legally is a matter of constitutional rights guaranteed by the Fourteenth Amendment. (Image courtesy

(Posted 5:00 a.m. EDT Monday, June 1, 2009)


The last time that I wrote about the issue of same-gender marriage in April, I argued forcefully that California's Proposition 8 and other state laws that banned same-gender marriage -- as well as the federal Defense of Marriage Act of 1996 -- all violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and that ultimately the U.S. Supreme Court will settle the matter once and for all.

In the particular case of Proposition 8, I also pointed out last November that, given the fact that the campaign in favor of the measure was operated and heavily bankrolled by conservative churches -- particularly the Utah-based Church of Jesus Christ of Latter-Day Saints and the Reverend Rick Warren's Southern California-based Saddleback Church -- the measure also enshrined into the California Constitution an anti-gay religious dogma in clear violation of the federal Constitution's ban on mixing religion and government under both the First Amendment and the Religious Test Clause (Article VI, Section 3).

I have been making this argument against same-gender marriage bans again and again and again for the past five years. Yet advocates for same-gender marriage have repeatedly ignored my argument in seeking to legalize same-gender marriage through the very laborious, time-consuming and piecemeal method of going state-by-state, fully aware that in many states, their efforts would likely be overturned by conservative voters -- and apparently ignorant of the fact that the freedom to marry is a freedom that is guaranteed by the U.S. Constitution and that the nation's highest court has ruled time and again that constitutional rights cannot be subjected to the whims of a fickle electorate.


I can't believe that supporters of same-gender marriage have forgotten the high court's 1996 Romer v. Evans decision, which struck down Colorado's voter-approved Amendment 2, and its 2003 Lawrence v. Texas ruling, which struck down the last remaining anti-sodomy laws in 16 states, most of which were enforced exclusively against same-gender couples -- even in the privacy of their own homes -- but not against opposite-gender couples performing the same sexual practices.

And both decisions were written by conservative Justice Anthony Kennedy to boot.

In the Romer case, Amendment 2 was an amendment to the Colorado state constitution that barred the state legislature and every city, town and county in the state from taking any legislative, executive, or judicial action to protect the state's gay and lesbian citizens from discrimination on the basis of their sexual orientation and overturned every such law already in place.

The Colorado Supreme Court issued an injunction against Amendment 2, on the grounds that it violated the Equal Protection Clause of the Fourteenth Amendment to the federal Constitution and effectively deprived them of their First Amendment right to petition the government for redress of grievances.

In upholding the Colorado court's decision, the U.S. Supreme Court rejected arguments by the state and Amendment 2's conservative supporters that it merely blocked gays from receiving so-called "special rights." Writing for the court's 6-3 majority, Justice Kennedy declared that, "To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint."

Kennedy went on to declare that the scope of Amendment 2 "is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class [homosexuals] that it affects; it lacks a rational relationship to legitimate state interests . . . [Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence."


Gay and lesbian couples effectively earned the right to marry in 2003, when the U.S. Supreme Court, in Lawrence v. Texas, struck down the last remaining anti-sodomy laws in 16 states, most of which were enforced exclusively against gay and lesbian couples, even in the privacy of their own homes.

The court had previously addressed the same issue in 1986 in Bowers v. Hardwick, where it upheld, by a 5-4 vote, a challenged Georgia statute, not finding a constitutional protection of sexual privacy. The Lawrence decision explicitly repudiated Bowers, holding that it had viewed the personal liberty interest too narrowly. The 6-3 majority held that intimate sexual conduct between two consenting adults of the same gender in the privacy of their homes was part of the personal liberty standard protected by substantive due process under the Fourteenth Amendment.

The practical effect of the Lawrence ruling was to invalidate all similar laws across the country that criminalized sexual intercourse between consenting adults of the same gender under the Equal Protection and Due Process clauses of the Fourteenth Amendment, because they were enforced almost exclusively against same-gender couples, but not opposite-gender couples performing the same sexual acts.

Writing for the court majority, Justice Kennedy boldly declared that "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."

Kennedy wrote that "the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment's due process protections." Holding that the Texas anti-sodomy statute at issue "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," the court majority struck down the anti-sodomy law as a violation of both the Equal Protection and Due Process clauses of the Fourteenth Amendment.

As a result, same-gender relationships were fully decriminalized -- and, according to the bitter dissenting opinion of conservative Justice Antonin Scalia, the Lawrence decision also removed the last legal justification to bar gay and lesbian couples from marrying. Even though the justices did not directly address that issue, Scalia insisted that state laws barring same-gender marriage -- as well as the federal Defense of Marriage Act -- were now in constitutional jeopardy.


And for once, this correspondent agrees with Scalia. Laws banning same-gender marriage are indeed in constitutional jeopardy -- as they should be. And six years after Lawrence, the justices will soon get an opportunity to finally settle the issue of same-gender marriage once and for all -- a lot sooner than anyone had expected.

Less than 24 hours after the California Supreme Court last Wednesday upheld Prop.8 -- and also upheld the more than 18,000 same-gender marriages performed in the state since it legalized them a year ago until Prop. 8 passed last November -- a lawsuit was filed in federal court challenging the constitutionality of Prop. 8 on Fourteenth Amendment equal-protection grounds.

In my opinion, the federal lawsuit is long overdue, by at least the five years since same-gender marriages became legal in Massachusetts. But even I was surprised by who was bringing the lawsuit: Two of the nation's most high-powered attorneys, David Boies and Ted Olson.

That Olson was one of the two lawyers bringing the federal legal challenge against Prop. 8 was an even greater surprise, given the fact that Olson is a conservative who served as solicitor general under President George H. W. Bush.

Olson and Boies, in fact, were on the opposite sides of the most contentious case ever brought to the U.S. Supreme Court: Bush v. Gore, the 2000 case that determined who won the 270 Electoral College votes necessary to be elected president. As everyone knows, the court sided with Bush -- even though the Republican Texas Governor George W. Bush lost the popular vote to the Democratic Vice President Al Gore by a half-million votes, the biggest vote deficit ever by a president who won the White House despite losing the popular vote.

But in perhaps the greatest example yet of the old cliche that "politics makes strange bedfellows," Olson and Boies have joined forces in taking the fight for same-gender marriage equality to its almost-inevitable conclusion: A battle in the chambers of the nation's highest court.

In addition to asking that Prop. 8 be declared unconstitutional on Fourteenth Amendment equal-protection grounds, Olson and Boies, representing two same-gender couples who were denied marriage licenses after Prop. 8 passed, asked the U.S. District Court in Los Angeles to issue an injunction barring enforcement of the measure pending a ruling on its constitutionality.

"Mr. Olson and I are from different ends of the political spectrum, but we are fighting this case together because Proposition 8 clearly and fundamentally violates the freedoms guaranteed to all of us by the Constitution," Boies said at a Los Angeles press conference announcing the lawsuit -- which caught both social conservatives and gay-rights activists by complete surprise.

On the other side of the country, a separate lawsuit was filed in March in U.S. District Court in Boston on behalf of eight same-gender couples and three surviving spouses -- including the widower of the late former Representative Gerry Studds (D-Massachusetts) -- challenging the constitutionality of the 1996 federal Defense of Marriage Act.

The plaintiffs in the Boston lawsuit, who wed after same-gender marriages were legalized in Massachusetts in 2004, argue that the federal law unconstitutionally deprives them of federal spousal benefits enjoyed by married opposite-gender couples, in violation of the Equal Protection Clause.


Both federal lawsuits are no surprise to this correspondent, other than the fact that Olson is involved in the Prop. 8 case. To the contrary, my reaction is, "What the hell took you so long?"

For the last five years, I have been very frustrated by the refusal of gay-rights advocates to do what Richard and Mildred Loving did nearly a half-century ago: They took their fight against the law that criminalized their marriage directly to the federal courts, eventually winning a landmark unanimous decision by the Supreme Court in Loving v. Virginia that laws barring interracial marriages violated the Equal Protection Clause.

Instead of using the Loving decision -- as well as Romer and Lawrence -- in attacking the state and federal bans on same-gender marriage in federal court, the advocates followed the state-by-state route, filing lawsuits under state constitutions, a very laborious, time-consuming and piecemeal approach. While the states have historically had sole jurisdiction over marriage, state laws must nonetheless comport to the rights guaranteed to all Americans under the federal Constitution.

Indeed, every public official at the state and local level is mandated by Article VI to swear to "faithfully uphold and support the Constitution of the United States" in his or her oath of office first and foremost before swearing to uphold their respective state constitutions. Implicit in that oath is a requirement to obey the Constitution of the United States and to protect the rights and freedoms that the U.S. Constitution guarantees.

It is, of course, the job of the U.S. Supreme Court to determine whether laws -- federal, state or local -- comply with the U.S. Constitution and protect the rights and freedoms guaranteed by it. And since the justices ruled unanimously nearly a half-century ago that the freedom of two unrelated, single adults who love one another to marry irrespective of race, religion or nationality is protected by the Fourteenth Amendment, there is, is my opinion, no rational reason to deny that freedom to two unrelated, single adults who love one another solely because they are of the same gender.


This writer did not always hold this viewpoint. In fact, as recently as a decade ago, I held the exact opposite view -- although not for the same reasons that conservatives hold against same-gender marriage.

In a July 1999 column published in the now-defunct Vermont gay newspaper Out in the Mountains, I wrote, "In this day and age, why get married at all? Frankly, I think marriage sucks."

I was quite adamant back then against the idea of anyone getting married, whether same-gender couples or opposite-gender couples -- and I pulled no punches. "Would I marry my boyfriend or my would-be girlfriend if I was allowed to do so? Absolutely not!" I wrote. "That would be about the dumbest mistake I could ever make. And if you're contemplating marrying your significant other, my advice is: Don't! You'll be making the dumbest mistake you'll ever make."

Having survived no fewer than six bitter and nasty divorces amongst my relatives, I was quite hostile toward marriage for many years. I also knew more than a few opposite-gender couples whose relationships were very harmonious before they got married, then degenerated into possessiveness, acrimony -- and in some cases violence -- after they got married.

(Reading that old column after running a Google search of myself as part of my research for this editorial, all I can say is, "What the hell was I thinking?")

In the interest of full disclosure, I am openly bisexual; at the time I wrote that Out in the Mountains column, I was still technically single, although I was in the 17th year of a 21-year same-gender relationship. Eight years later, I did the one thing that I had vowed for decades I would never do -- I got married. To a woman. Yes, my wife knows that I'm bisexual. And yes, we are in an open marriage; we have a mutual male partner (also bisexual) whom we both love dearly.

Why the about-face? Simply put:

1) I'm midway through my 50s now and don't want to grow old alone. It's been proven that married people live anywhere from 10 to 20 years longer than single people, precisely because they have a loved one to share their lives with. For most people, after you've hit the Big Five-Zero, the desire for total independence gradually gives way to a growing awareness of your mortality -- and the desire to spend your remaining years on Earth with a loving companion.

2) I was appalled and outraged by the sheer ferocity of the Christian Right in their crusade against same-gender marriage -- a ferocity far greater than their opposition to abortion. As one who is a longtime adherent to a non-Christian, Earth-centered spirituality (Namely, Wicca), I saw the Christian Right's jihad against same-gender marriage as the latest salvo in their much broader crusade to destroy the constitutional separation of church and state and impose a fundamentalist Christian theocracy in this country.

3) I also came to the realization that same-gender marriage debunks the persistent stereotype that gay people -- particularly gay men -- are promiscuous, despite recent studies that showed that a solid two-thirds majority of same-gender couples who have legally tied the knot are female and that nearly all same-gender couples who have done so are well over 30 years of age, considerably older than opposite-gender couples -- in many cases, longtime companions well over 50.


My marriage is interracial; my wife is white. My parents were likewise an interracial couple; I'm half-black and half-Cherokee Indian. My wife and I live in Vermont, which is the second-whitest state in the Union (after Maine), according to the U.S. Census Bureau. I am one of fewer than 5,000 nonwhite Vermonters out of a total statewide population of 620,000. 

Being a living witness, albeit as a child, to the civil rights struggles of African Americans in the 1960s, I am dumbfounded by the profound ignorance of the Loving v. Virginia chapter of American history demonstrated by far too many (mostly white) gay-rights advocates -- not to mention African Americans who oppose same-gender marriage.

Supporters of same-gender marriage who insist on going the state-by-state approach argue that it's not politically smart to fight it out in the federal courts because a majority of the public -- 54 percent, according to recent opinion polls -- oppose same-gender marriage.

They ignore the fact that this split is primarily along generational lines: The younger you are under 30 years of age, the more you're likely to support same-gender marriage, while the older you are over 60 years of age, the more you're likely to oppose it -- with those between 30 and 60 split down the middle.

They also are ignoring this fact of history: When the Supreme Court handed down its ruling in the Loving case in 1967, interracial marriage was much more vehemently -- often violently -- opposed by a much larger majority of the public than same-gender marriage is today.

Opinion polls taken at the time of the Loving decision found that up to 79 percent of the public opposed interracial unions -- especially marriages between black men and white women. The irony that Richard and Mildred Loving were a white man and a black woman is hardly lost on me. Before the ruling, my African American mother's home state of Louisiana refused to recognize her marriage to my Native American father (Mildred Loving, who died a year ago at the age of 68, was herself  half-black and half-Cherokee). Had I been born in Louisiana instead of in New York in 1953, I would have been branded "illegitimate" by the State of Louisiana.

Had my wife and I been born a half-century earlier than we were, our marriage in the 1950s or 1960s would have likely resulted, among other things, in our being awakened in the middle of the night by a cross burning on our front lawn -- even here in Vermont. And I'm not going to even speculate on whether my wife (and her family) would have been accepting of my bisexuality, let alone my being nonwhite, 50 years ago.

What amounts to the "gay leadership" -- still as white-dominated today as it was back in the 1970s (although far less male-dominated in recent years) -- is being short-sighted in not recognizing this history. They also have very little faith in the rightness of their cause in light of that history. But then again, given the deep-seeded distrust and outright animosity between much of the gay community and the religious establishment, that should not be all that surprising.

People wonder why Ted Olson, of all people, would join forces with his former Bush v. Gore opponent to challenge Prop. 8 in federal court. Has the thought occurred to anyone that Diane Olson, who with Robin Tyler became one of the first same-gender couples to legally marry in California, might be related to the former solicitor general -- perhaps a sister or a cousin? I cannot say for certain that family ties are what motivated Ted Olson to act, but wouldn't it be a great thing if they did?

Now that same-gender marriage is legal in five states, this is the perfect time to go to federal court to strike down same-gender marriage bans, not only on Fourteenth Amendment equal-protection grounds, but also under the Full Faith and Credit and Entitlement clauses (Article IV) of the Constitution.

Indeed, the time to go to federal court was long overdue. But better late than never.

Skeeter Sanders
Editor & Publisher
The 'Skeeter Bites Report

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Volume IV, Number 43
Copyright 2009, Skeeter Sanders. All rights reserved.


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Martin Brant said...

I agree that a favorable ruling at the federal level would be greater victory than a small collection of favorable state rulings; but there is something to said for the grassroots approach. Eventually it overwhelms the status quo.

Anonymous said...

I really enjoyed reading your commentary. The legal eagles should have listened to you a long time ago. There is a deep down impression that the judiciary is wholly prejudiced, and incompetent of handing down a ruling that would be fair and just. To illustrate this fear, picture Antonin Scalia reading his scathing dissent, from the bench, in Lawrence Vs. Texas. He was furious, and seemed to go out of his way to show it. He has been the voice behind "conservative" leaders to use the ballot process in any fashion that they wish, and they have. There is a climate of using the ballot process as a weapon against us, and so far, they've been getting away with it.

I really hope you're right. Thanks for the read!