Marriage, Democracy, the First Amendment and Federalism

1. Marriage, Democracy, the First Amendment and Federalism Panelists: Tara Borelli, Lambda LegalBruce Johnson, Davis Wright TremaineRoger Leishman, Davis Wright Tremaine Moderator: Edward Davis, Davis Wright Tremaine

2. Who Decides Who Can Marry? • State legislatures • State courts • Congress • Federal courts • The public (through ballot measures)

3. How Are Their Efforts Interacting? • Courts are asked to recognize a right to marriage. • Legislatures preclude or overrule court decisions. • Legislatures enact marriage or civil union rights. • Ballot measures seek to preclude or overturn legislation and court decisions. • Courts determine whether legislation and ballot measures are constitutional.

4. Some Historical Developments • 1971 The Minnesota Supreme Court rejected a constitutional challenge to the state’s limitation of marriage. • 1993 The Hawaii Supreme Court held that restricting marriage to opposite-sex couples would be unconstitutional without a compelling state interest. • 1996 A Hawaii trial court found no adequate reasons to deny same-sex couples the right to marry.

5. Some Historical Developments • 1996 Congress passed the Defense of Marriage Act, defining marriage for the purposes of federal law as between a man and a woman. • 1996–1998 The Hawaii constitution was amended to allow marriage to be restricted to heterosexual couples. • Other states enacted statutes and constitutional amendments to prohibit the recognition of same-sex marriage.

6. Some Historical Developments • 2000 Vermont created the status of “civil union” after its Supreme Court held that same-sex couples were entitled to the same benefits and protections afforded to married opposite-sex couples. • 2004 Massachusetts became the first state to legalize same-sex marriage after the Supreme Judicial Court ruled that it was unconstitutional to allow only heterosexual couples to marry; efforts to amend the state constitution to overrule the Supreme Judicial Court failed.

7. Some Historical Developments • 2005 Connecticut’s legislature enacted a civil union law. • 2006 New Jersey enacted a civil union law after its Supreme Court held that same-sex couples were entitled to the same protections as married opposite-sex couples.

8. Some Historical Developments • 2006-2007 The highest courts of New York, Washington and Maryland refused to recognize a right to marry for same-sex couples. However, New York and Maryland recognize the marriages of same-sex couples performed in other jurisdictions. • 2008 California’s Supreme Court legalized same-sex marriage by overturning a statutory ban, but a referendum (Proposition 8) overturned the law. • 2009 New Hampshire’s legislature legalized same-sex marriage, replacing civil unions.

9. Some Historical Developments • 2009 The Iowa Supreme Court held that Iowa’s marriage law must allow “gay and lesbian people full access to the institution of civil marriage.” • 2009 Washington’s legislature enacted expanded rights and protections for domestic partners; a referendum seeking to overturn the measure was placed on the ballot but failed. • 2010 A federal district court in Massachusetts held the Defense of Marriage Act unconstitutional on equal protection and federalism grounds.

10. Some Historical Developments • 2010 A federal district court in California held that Proposition 8 violated the due process and equal protection rights of same-sex couples in California. • Currently, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia recognize same-sex marriage. • Litigation to establish rights short of marriage continues in some states with constitutional or statutory bans on marriage.

11. State Overview

12. State Overview

13. State Overview

14. State Overview

15. Countries that RecognizeSame-Sex Marriage • The Netherlands • Belgium • Canada • Spain • South Africa • Norway • Sweden • Portugal • Iceland • Argentina

16. Andorra Austria Colombia Czech Republic Denmark Ecuador Finland France Germany Greenland Hungary Ireland Luxembourg New Zealand Slovenia Switzerland United Kingdom Uruguay Countries that Recognize Civil Unions and Registered Partnerships

17. Marriage and Federal Law

18. Perry v. Schwarzenegger(N.D. Cal. 2010) • Proposition 8: “Only marriage between a man and a woman is valid or recognized in California.” • “The freedom to marry is recognized as a fundamental right protected by the Due Process Clause.” • “‘…fundamental rights may not be submitted to [a] vote.’” • “The tradition of restricting marriage to opposite-sex couples does not further any state interest.”

19. Perry v. Schwarzenegger • “Proposition 8 cannot survive any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.” • Selected findings of fact: “21. California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.” “23. …After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained.”

20. Perry v. Schwarzenegger “24. Many states, including California, had laws restricting the race of marital partners so that whites and nonwhites could not marry each other.” “33. Eliminating gender [restrictions such as coverture] and race restrictions in marriage has not deprived the institution of marriage of its vitality.” “46. Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”

21. Perry v. Schwarzenegger “49. California law permits and encourages gays and lesbians to become parents….” “55. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.” “70. …Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.”

22. Perry v. Schwarzenegger “56. The children of same-sex couples benefit when they can marry.” “58. Proposition 8 places the force of law behind stigmas against gays and lesbians….” “80. The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.”

23. Perry v. Schwarzenegger • “…domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples.” • “Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.”

24. Gill v. Office of Personnel Management(D. Mass. 2010) • The Defense of Marriage Act defines “marriage” as a legal union between one man and one woman and defines “spouse” as a person of the opposite sex, for the purposes of more than 1,000 federal laws. • Plaintiffs were married legally in Massachusetts but were denied federal benefits afforded to married couples, opposite-sex spouses or widowers.

25. Gill v. Office of Personnel Management • “…there exists no fairly conceivable set of facts that could ground a rational relationship between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.” • None of the interests asserted by Congress is supported by a “sufficient factual context…to ascertain some relation between it and” DOMA.

26. Gill v. Office of Personnel Management • “[I]t is only irrational prejudice that motivates the challenged classification.” • The federal government has no legitimate interest in imposing a uniform definition of marriage nationwide and has in the past honored state definitions of marriage even when states, for instance, banned interracial marriage.

27. Massachusetts v. U.S. Department of Health and Human Services(D. Mass. 2010) • DOMA prohibits the burial of a military veteran’s same-sex spouse in one of Massachusetts’ state-run military cemeteries. • DOMA penalizes the state by prohibiting the recognition of Massachusetts same-sex marriages for Medicaid and Medicare purposes. • The Commonwealth of Massachusetts sued.

28. Massachusetts v. U.S. Department of Health and Human Services • “DOMA exceeds the scope of federal power [because it] imposes an unconstitutional condition on the receipt of federal funding….” • “DOMA impermissibly interferes with the Commonwealth’s domestic relations law…. Family law, including ‘declarations of status, e.g., marriage, annulment, divorce, custody and paternity,’ is often held out as the archetypal area of local concern [and] the federal government traditionally regarded marital status determinations as the exclusive province of state government.”

29. Marriage Under State Laws and Constitutions

30. Marriage Under State Laws and Constitutions • States whose highest courts have recognized marriage rights: • Massachusetts • Vermont • Connecticut • Iowa • California (for a time) • States whose highest courts have not allowed couples to marry: • New York (recognizes out-of-state marriages) • Washington • Maryland (recognizes out-of-state marriages)

31. Varnum v. Brien(Supreme Court of Iowa 2009) • The Iowa statute limiting civil marriage to a man and a woman “violates the equal protection provisions of the Iowa Constitution.” • “[T]he County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage.” • “All justices concur.”

32. Andersen v. King County(Supreme Court of Washington 2006) • Trial Courts in King County and Thurston County: • Washington’s DOMA (1998) facially violates the privileges and immunities and due process clauses of the Washington State Constitution. • Restricting marriage to opposite-sex couples “is not rationally related to any legitimate or compelling state interest.”

33. Andersen v. King County • Supreme Court (majority): • “The plaintiffs have not established that they are members of a suspect class or that they have a fundamental right to marry, that includes the right to marry a person of the same sex.” • “The State has established that DOMA was enacted to codify the common law, to promote procreation, and to encourage stable families.” • “[T]he legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race….”

34. Andersen v. King County • “We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington.” • Supreme Court (dissent): • “[D]enying same-sex couples the right to marry has no prospect of furthering any of [the State’s] interests.” • The majority opinions “condone blatant discrimination against Washington’s gay and lesbian citizens.”

35. A State in Flux?New Jersey: Lewis v. Harris • In 2006, the New Jersey Supreme Court held in Lewis v. Harris that the plaintiffs were entitled to the full rights and benefits enjoyed by heterosexual couples. New Jersey’s legislature implemented civil unions. • A Civil Union Review Commission was created to review the compliance of the civil union law with the 2006 ruling. • The Commission found that the inequality still exists and recommended that the legislature amend the law to allow same-sex couples to marry because the separate and inferior status does not meet the mandate of equality for same-sex couples.

36. Litigation in States with Constitutions or Statutes Banning Same-Sex Marriage • Alaska • Hawaii • Arizona

37. Alaska • ACLU v. Alaska (2005) • The Alaska Supreme Court held that the equal protection clause of the Alaska Constitution requires the state to provide benefits to same-sex domestic partners of state employees. • Schmidt v. Alaska (pending) • Plaintiffs seek to require equal treatment in the allowance of a property tax exemption for senior citizens. Unmarried senior couples may receive only half the exemption married couples get.

38. HawaiiYoung v. Lingle • The legislature passed civil union legislation in 2010, but Governor Lingle vetoed it. • Plaintiffs cannot sue for marriage but seek civil union protections, such as access to health benefits and familial rights. • The equal protection clause of the Hawaii Constitution may be applied to require equal treatment, as in New Jersey.

39. ArizonaCollins v. Brewer • An Arizona statute eliminated family health coverage for unmarried domestic partners of state employees in 2009. • The Arizona Constitution prevents same-sex couples from marrying. • Plaintiffs’ claims under the equal protection clause of the Fourteenth Amendment are going to trial.

40. First Amendment Controversies Opponents ask for judicial imprimatur to stay “in the closet.”

41. Doe v. Reed(U.S. Supreme Court 2010) • After a Washington statute extended certain benefits to same-sex couples, 137,000 signatures were submitted to the Secretary of State on a petition for a referendum put that law to a popular vote. • Opponents requested copies of the petitions under the Public Records Act. • Signers of the petitions sued to prevent the release of their names, arguing that it would violate their First Amendment rights.

42. Doe v. Reed • Majority (8 justices): • Petition-signing is entitled to First Amendment protection. • But “the state’s interest in preserving the integrity of the electoral process suffices to defeat the argument that the PRA is unconstitutional with respect to referendum petitions in general.” • However, “compelled disclosure” could be found unconstitutional with sufficient evidence of likely reprisals.

43. Doe v. Reed • Concurrence of Justice Sotomayor: • No one is compelled to sign petitions. • Petitions are signed in public and have been widely available. • States should be allowed to retain the traditional openness of their electoral processes.

44. Doe v. Reed • Concurrence of Justice Alito: • Plaintiffs may still pursue an “as-applied” challenge. • Supporters of Prop 8 in California suffered “widespread harassment and intimidation.” • It is not legitimate to release names to encourage “uncomfortable conversation” about the issues the petition seeks to put to a vote. • “The potential that such information could be used for harassment is vast.”

45. Doe v. Reed • Concurrence of Justice Scalia: • The petitioners are legislating; petitioning is not protected by the First Amendment. • “There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” • “[A] society which…exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism…. does not resemble the Home of the Brave.”

46. Hollingsworth v. Perry (U.S. Supreme Court 2010) Proponents of Prop 8 asked the Supreme Court to forbid television coverage of the preliminary injunction hearing in Perry v. Schwarzenegger, which the District Court and 9th Circuit would have permitted under a pilot program.

47. Hollingsworth v. Perry • Majority (5 justices): • The local rule on cameras in the courtroom was too hastily revised. • “[W]itnesses have stated concerns for their…security.” • Studies “have not analyzed the effect of broadcasting in high-profile, divisive cases.”

48. Hollingsworth v. Perry • Dissent (4 justices): • The Supreme Court has never before “intervene[d] in the procedural aspect of local judicial administration.” • The district court did not have to wait for public comment on the proposal to allow cameras, but in any event it received plenty: 138,574 comments (138,542 in favor).

49. Hollingsworth v. Perry • “All of the witnesses…are already publicly identified with their cause.” • “‘I think the only time that you’re going to draw sufficient interest in the legal process is when you have an issue such as the issues here, that people think about, talk about, debate about and consider.’” (quoting the trial judge).

50. For More Information • Visit dwt.com/lgbt for more information, including: • Today’s speakers • Information on groundbreaking LGBT cases • An interactive timeline of historical developments