State Law and Same Sex Marriage
Prior to the commencement of Perry v. Brown, many litigants challenged the validity of state marriage restrictions under their respective state constitutions. Below is a chronological account of such challenges.
The First Case: Hawaii
Judicial Victory, Legislative Defeat
The first victory for marriage equality occurred in Hawaii in 1993. On December 17, 1990, three same-sex couples sought marriage licenses from the Hawaii Department of Health (DOH). DOH interpreted Haw. Rev. Stat. § 572-1, which set forth the requirements for a legal marriage, not to include couples of the same sex, and denied these couples marriage licenses. The couples filed suit in Baehr v. Lewin, 74 Haw. 530 (1993). In Baehr, the Hawaii Supreme Court held that statutes restricting marriage to opposite-sex couples are subject to strict scrutiny under Hawaii’s Equal Protection Clause. This means that a law treating same-sex couples differently than opposite-sex couples in Hawaii must serve a compelling government interest. The court remanded the case the circuit court to give the government the opportunity to prove that it had a compelling interest in restricting marriage to opposite-sex couples. The circuit court found no such compelling interest and held that § 572-1, as construed by DOH, violated Hawaii’s Equal Protection Clause.
In response to this decision, the Hawaii state legislature amended the state constitution in 1998 to define marriage as between one man and one woman. One year later, the Hawaii supreme court ruled that it did could not require lower courts to enforce the holding in Baehr because the new constitutional amendment had rendered it moot. While Hawaii did not ultimately legalize same-sex marriage after Baehr, the legislature did grant same-sex couples certain benefits typically associated with marriage. Unfortunately, Baehr and its aftermath also sparked what is widely considered the marriage equality movement’s most severe backlash, the Defense of Marriage Act (DOMA).
Judicial Victory, Defeat by Referendum
In 1994, Jay Brause and Gene Dugan sought a marriage license from the Alaska Office of Vital Statistics. The office denied their application because the Alaska Marriage Code explicitly denied marriage licenses to same-sex couples. In Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743 (Super. Ct. Alaska Feb. 27, 1998), plaintiffs challenged the Alaska Marriage Code under both the Privacy and Equal Protection Clauses of the Alaska Constitution. In Brause, the Alaska Superior Court held that the right to choose a “life partner” was a fundamental right under the Alaska Constitution’s privacy provisions and that any law abridging that right must be reviewed under strict scrutiny. The court granted the plaintiffs’ motion for summary judgment and ordered further hearings to determine whether the state in fact had a compelling interest that would justify the abridgment of the fundamental right. Before these hearings could be held, Alaskans utilized a ballot initiative that amended the state constitution to deny same-sex couples the right to marry.
The Birth of Civil Unions
Three same-sex couples in Vermont sought marriage licenses from their respective town clerks, and all three licenses were denied on the grounds that same-sex couples were ineligible for marriage licenses under Vermont law. The couples filed suit in Baker v. State, 744 A.2d 864, 170 Vt. 194 (1999). The court held that Vermont’s marriage laws, which denied the benefits of marriage to same-sex couples, violated the Common Benefits Clause of the Vermont constitution. Analysis under this clause are similar, but not identical to, analysis under the Equal Protection Clause of the Federal Constitution. The distinction is that Vermont’s analysis eschews discussions of suspect classes (classifications of persons likely to be subject to discrimination); instead, courts focus on the rationality of the relationship between classifications drawn and purposes furthered by government statutes. Therefore, if there is no rational relationship between the classification and the purpose, it does not matter whether the group affected is a “suspect class”— the law is unconstitutional.
While the court did find Vermont’s marriage laws unconstitutional, it did not require the state to issue marriage licenses to same-sex couples. It required only that the legal and economic benefits of marriage be made available to such couples. Therefore, Vermont became the first state to make civil unions available to same sex couples.
In 2009, Vermont extended marriage rights to same-sex couples. It was the first state to do so by legislation, rather than by judicial decision.
Testing the Boundaries of Lawrence v. Texas
In 2003, the Supreme Court issued its decision in Lawrence v. Texas, 539 U.S. 588 (2003), in which it declared criminal anti-sodomy laws unconstitutional. In the immediate wake of that decision, Plaintiffs Harold Donald Standhardt and Tod Alan Keltner sought a marriage license from the Superior Court Clerk in Maricopa County, Arizona. The clerk denied the application because Arizona’s marriage laws explicitly deny licenses to same-sex couples. Plaintiffs filed suit in Standhart v. Super. Ct. ex rel Cnty. of Maricopa, 77 P.3d 451, 206 Ariz. 276 (Ariz. Ct. App. 2003). The Court of Appeals of Arizona upheld the laws, holding both that there is no fundamental right to marriage for same-sex couples, and sexual orientation is not a suspect class under equal protection analysis. The court gave the statutes rational basis review and held that Arizona’s marriage laws were rationally related to the legitimate government purposes of encouraging procreation and child-rearing within marriage.
The First State Legalizes Same-Sex Marriage
Fourteen same-sex couples sought marriage licenses in five different Massachusetts counties. The town clerk in each county denied the couples licenses on the grounds that Massachusetts did not recognize same-sex marriage. The couples filed suit in Goodridge v. Dep’t of Pub. Health, 798 N.E.2d. 941, 440 Mass. 309 (2003). In Goodridge, the Supreme Judicial Court of Massachusetts held that the state’s marriage statutes violated the Equal Protection Clause of the Massachusetts Constitution. Applying rational basis review, the court held that the restriction of marriage to opposite-sex couples bears no rational relationship to any legitimate government purpose.
The court delayed judgment for 180 days to allow the legislature to take action in light of the opinion. During this time, the state senate asked the court whether it would consider civil unions to be a constitutionally adequate substitute. The court responded with an unequivocal no, saying “[t]he 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 . . . . For no rational reason the marriage laws of the Commonwealth discriminate against a defined class; no amount of tinkering with language will eradicate that stain.” Ultimately the legislature did not act within the 180 days allotted; it neither passed marriage legislation nor amended the state constitution. Although several attempts were later made to amend the state constitution, the measures consistently failed to garner sufficient support.
Judicial Failure, Legislative Victory
In New York, forty-four same-sex couples were denied marriage licenses by state offices in Albany, Ithaca, and New York City. The couples sued the cities and the State in four separate cases. These cases were consolidated on appeal into Hernandez v. Robles, 855 N.E.2d 1, 7 N.Y.3d 338 (2006). The New York Court of Appeals held that New York’s marriage statute, N.Y. Dom. Rel. Law §§ 5–25, did not violate the Due Process and Equal Protection Clauses of the New York Constitution, even though it granted marriage rights to opposite-sex couples only. The court held that the state’s constitution does not provide a fundamental right to same-sex marriage. Furthermore, the court held that sexual orientation is not a suspect class. Therefore, under rational basis review, New York’s marriage law does not violate either due process or equal protection.
On June 24, 2011, the state legislature passed the Marriage Equality Act granting same-sex couples in New York the right to marry. Governor Andrew Cuomo signed it into law that same day. One month later, on July 24, 2011, the first same-sex couples were wed in New York State.
Two years after the passage of the Federal Defense of Marriage Act (DOMA) in 1996, the state of Washington passed its own Defense of Marriage Act, defining marriage as between one man and one woman. Eight same-sex couples were denied marriage licenses pursuant to this new law and sued King County for violations of the state constitution in Andersen v. King Cnty., 138 P.3d 963, 158 Wash. 2d 1 (2006). The Supreme Court of Washington upheld the law. The court found that sexual orientation was not a suspect class and that there was no fundamental right to same-sex marriage. The court subjected the law to rational basis review, which it passed. Next, the court looked at privacy provisions in the Washington constitution. It found that because there was no historical right to same-sex marriage, there could be no protected privacy interest in it. Finally, the court held that Washington’s DOMA does not violate the state constitution’s Equal Rights Amendment because it does not discriminate on the basis of sex; instead, DOMA bans same-sex marriage for either sex.
Same-Sex Marriage Denied
Maryland’s marriage laws explicitly restrict marriage licenses to opposite-sex couples. Multiple same-sex couples in Maryland requested and were denied marriage licenses, after which they filed suit against various circuit court clerks throughout Maryland in Conaway v. Deane, 932 A.2d 571,401 Md. 219 (2007). Plaintiffs alleged multiple violations of the Maryland constitution under its Equal Protection, Due Process, and Equal Rights provisions. In Conaway, the Court of Appeals of Maryland first held that the state’s marriage laws do not violate Maryland’s Equal Rights Amendment because they do not discriminate on the basis of sex. Second, the court held that sexual orientation is not a suspect class and there is no fundamental right to same-sex marriage. Consequently, the court employed rational basis review and found that the marriage laws bore a rational relationship to the legitimate government purpose of furthering procreation. The court upheld the marriage laws.
City Leads, Courts Follow, Constitutional Amendment by Referendum
On February 10, 1994, the Mayor of San Francisco directed the county clerk to issue marriage licenses to same-sex couples who sought them. Two days later, actions were filed in San Francisco Superior Court seeking a stay and a writ prohibiting marriage licenses to same-sex couples. The court denied both the stay and the writ. The California Attorney General and several citizens then filed petitions seeking writs of mandamus asserting that same-sex marriage licenses are unlawful. The City responded by filing suit seeking a declaration that Cal. Fam. Code § 308.5, which restricted marriage to opposite-sex couples, is unconstitutional. Shortly afterward, several same-sex couples filed suit seeking identical declarations.
The superior court found in favor of the plaintiffs and the City, but the Court of Appeals reversed. On appeal, the Supreme Court of California invalidated § 308.5 as applied to same-sex couples, finding that sexual orientation is a suspect class and subjecting § 308.5 to strict scrutiny. The court held that the California constitution confers a fundamental right to an official family relationship. The court found that the denial of marriage licenses to same-sex couples serves no compelling state interest, therefore violating California’s Equal Protection Clause. The court then directed the state provide marriage licenses to same-sex couples who sought them. In re Marriage Cases, 76 Cal. Rptr. 3d 683, 43 Cal. 4th 757 (2008).
In response to this decision, opponents to marriage equality sponsored a ballot initiative, Prosposition 8 or the Marriage Protection Act, designed to define marriage as between one man and one woman through a statue constitutional amendment.
Multiple same-sex couples and municipalities, supported by the California Attorney General, filed petitions to prevent state officials from enforcing Proposition 8. Strauss v. Horton, 93 Cal. Rptr. 3d 591, 46 Cal. 4th 364 (2009). As the proposition was designed to amend the constitution itself, Plaintiffs were not challenging its constitutionality. Instead, they were challenging whether the amendment was actually an amendment. California draws a distinction between amendments and revisions to the state constitution and only allows the former to be made through ballot initiatives. The court held that Proposition 8 is an amendment, not a revision, to the state’s constitution. Despite this holding, which allowed Proposition 8 to stand, the court did preserve the validity of any same-sex marriage entered into before the enactment of Proposition 8.
Eight same-sex couples were denied marriage licenses in Madison, Connecticut. The couples filed suit. They argued that any law that denies same-sex couples both a marriage license and official recognition of their marriage violates the Due Process and Equal Protection Clauses of the Connecticut constitution. While the suit was pending, Connecticut passed a law that granted same-sex couples the right to enter into civil unions, but it retained a definition of marriage that was limited to opposite-sex couples. The plaintiffs continued to press their claims. In Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 289 Conn. 135 (2008), the Supreme Court of Connecticut held that sexual orientation is a quasi-suspect class; therefore, any laws discriminating on the basis of sexual orientation are subject to intermediate scrutiny. The court held that the civil unions statute violated same-sex couples’ right to equal protection, applying the intermediate scrutiny standard. Instead of striking down the civil union law, however, the court granted the plaintiffs request for injunctive relief, directing the state to allow the couples to marry. In 2009, the Connecticut legislature enacted new marriage laws that included same-sex marriage.
Marriage Equailty Expands into Midwest
Iowa’s marriage law had been amended in 1998 to define marriage as between one man and one woman. Afterwards, six same-sex couples requested marriage licenses, but several county recorders denied them the licenses in light of the 1998 statute. The couples filed suit in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). The Supreme Court of Iowa found that sexual orientation was a quasi-suspect class and applied intermediate scrutiny to the language restricting marriage to opposite-sex couples. The State put forward five purposes for the law: (1) protecting traditional marriage, (2) ensuring an optimal environment for raising children, (3) promoting procreation, (4) promoting stability in opposite sex relationships, and (5) conserving state resources. The court held that the first purpose, protecting traditional marriage, was not important. The court then held that the other purposes were important, but the state statute was not substantially related to them. The court also rejected the state’s claim that religious objections to same-sex marriage could constitute an important government interest. Therefore, the court found that the statute violates the Equal Protection Clause of the Iowa constitution. The court then struck the statutory language restricting marriage to opposite-sex couples and directed the State to construe the remainder of the statute to grant same-sex couples the right to marry.
Civil Unions, State and Federal Constitutions
In 2006, the New Jersey Supreme Court issued a decision in Lewis v. Harris, 908 A.2d 196, 188 N.J. 415 (2006), which required the State to extend the benefits of marriage to same-sex couples. In response, the legislature passed a law granting civil unions to same-sex couples. Plaintiffs filed suit to challenge that law under the Federal Constitution’s Equal Protection Clause in Garden State Equality. v. Dow, 2012 WL 540608, (N. J. Sup. Ct. Law Div. Feb. 21, 2012). Most recently, the Superior Court granted plaintiffs’ motion to reinstate count three of their complaint alleging a federal Equal Protection violation. The Superior Court reinstated the count on the grounds that relevant precedent, especially Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), showed that plaintiffs’ claim presented a substantial federal question.