Federal Same-Sex Marriage Cases

Introduction

 State Laws Argued in Federal Court

Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997):  The Plaintiff, Ms. Robin Shahar has received a job offer from the Georgia Attorney General’s office.  When the Attorney General learned of Ms. Shahar plans to marry her female partner, he withdrew the offer, claiming that Ms. Shahar’s sexual orientation would infringe upon her ability to enforce the state’s sodomy laws.    Ms. Shahar sued in federal court, citing her constitutional right to freedom of association and equal protection.    In its decision, the 11th Circuit balanced the State’s interest in efficiency with the plaintiff’s interest in personal association and found that the Attorney General’s decision did not violate Plaintiff’s First Amendment rights. The court ruled in favor of the state and upheld the decision to fire Shahar.

Note:  Throughout the opinion, the court makes linguistic choices that diminish the significants of  the relationship between Ms. Shahar and her wife.  For example, the words “marriage” and “wedding” are placed between quotation marks throughout the opinion, e.g.“Plaintiff Robin Joy Shahar is a woman who has ‘married’ another woman.”

Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005): A lesbian couple was legally married in Massachusetts and sought to have their marriage license accepted in their home state of Florida.  The law in Florida expressly prohibited the recognition of same sex marriages performed in other states, and the couple challenged the constitutionality of this statute in Federal Court.  The court held while there was a fundamental right to marry it must be narrowly construed and does not include the right to marry persons of the same sex.  To address the equal protection claim, the court first rejected the notion that LGBT persons were members of a suspect class.  The court therefore utilized rational basis review and found that a legislature could have a rational basis for same-sex marriage in order to encourage stable families and foster the nurturing of children. The court further found that the law did not violate equal protection or due process and granted summary judgment for the defendants. The court also addressed the constitutionality of the federal Defense of Marriage Act, and found that it did not violate Equal Protection Clause, Due Process Clause, or the Full Faith and Credit Clause of the US constitution.

Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006): Nebraska’s constitution limits marriage to relationships between a man and a woman.  It expressly denies recognition of civil unions, domestic partnerships or relationships between same sex partners. Various groups of LGBT advocates sued the state, arguing that this constitutional provision of the state constitution violates the US constitution’s guarantee of equal protection.  Finding that homosexual people are not a suspect class, the court upheld Nebraska’s law utilizing rational basis scrutiny. The court dismissed the complaint with prejudice.

Zavalidroga v. Cuomo, No. 6:11-CV-831 (NAM/ATB), 2012 WL 3137110 (N.D.N.Y., Aug. 1, 2012): Plaintiffs attempted to argue that New York’s Marriage Equality Act, which legalized same sex marriage in the state, was unconstitutional. However, in order to have standing to sue, they must be able to allege an injury in fact. The plaintiffs’ leading claim to standing was that, as taxpayers, they would be forced to pay higher taxes to give tax breaks to “undeserving gay partners.” The court found that they lacked standing, and would never be able to achieve standing with such speculative, hypothetical injuries. Complaint dismissed without leave to plead the case again.

Jackson v. Abercrombie, No. 11-00734 ACK-KSC, 2012 WL 3255201 (D. Hawai’i, Aug. 8, 2012):  This case was one of multiple lawsuits brought by same-sex couples that argued that Section 23 of the Hawaii Constitution, which grants the legislature the right to reserve marriage only to opposite-sex couples, violates the Due Process and Equal Protection of the US Constitution.  The court, finding that same-sex couples were not a suspect class, conducted a rational basis review.  It held that the ability of oposite sex couples to procreate was sufficient to justify the difference in treatment with regard to marriage and upheld the provision of the Hawaii constitution.  The court distinguished this case from Perry v. Brown due to the narrow grounds of the 9th Circuit Decision. In Perry, the court based its decision on the fact that California had granted same-sex couples the right to marry and then taken it away by popular vote.  In Hawaii, no same-sex couples had ever been legally wed, nor did they ever have the right to do so.  Therefore, the legislature had not stripped any citizens of rights previously granted, and the basis of the 9th Circuit decision was not present in the facts of this case.

Defense of Marriage Act (DOMA)

Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006): A same-sex couple in California argued that the provisions of the California Family Code limiting marriage to oposite-sex couples was unconstitutional. The plaintiffs challenged the constitutionality of Section 3 of DOMA, which bars the federal government from recognizing the validity of same-sex marriages. The Ninth Circuit found that the plaintiffs lacked standing to challenge DOMA because they were not married and therefore did not suffer an actual injury. On the state law issue, the court abstained from making a ruling pursuant to Pullman doctrine; that is, marriage is a realm traditionally regulated by the states, and because of the sensitive nature of the area federal courts ought not to involve themselves.

In re Levenson, 587 F.3d 925 (9th Cir. 2009): Brad Levenson was a deputy federal public defender, legally married to his same-sex partner in the state of california.  When he tried to enroll his husband for health, vision and dental benefits, his request was denied because DOMA dictated that the Federal Employee Health Benefits Act be interpreted to apply only to opposite sex couples. The Ninth Circuit found that DOMA exhibits a “bare desire to harm” while serving no legitimate governmental purpose.   Citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), and Romer v. Evans, 517 U.S. 620 (1996), the court found that DOMA did not pass rational basis scrutiny and thus violated equal protection.   The court awarded the plaintiffs back pay for all denied benefits.

Massachusetts v. U.S. Dep’t of Health and Human Servs., 62 F.3d 1 (1st Cir. 2012): DOMA denied benefits to the legally married, same-sex spouses of Massachusetts residents. The First Circuit first stated that homosexuals have suffered a historic pattern of disadvantage. While the court did not determine whether LGBT people are a suspect class, the court found that DOMA violates equal protection even under rational basis review. The federal government did not present a sufficient reason to deny benefits to couples legally married within a state; such denial violates the right of Massachusetts to determine its own marriage laws.

Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010):

Legally married same-sex couples in Massachusetts were denied federal healthcare and survivor’s benefits pursuant to DOMA and challenged DOMA Section 3. The court analyzed DOMA under “rational basis with bite.” Rejecting the government’s arguments that supporting procreation, encouraging heterosexual marriage, and conserving resources justify the classification in DOMA, the court found that Section 3 served only to disadvantage a particular class. The court found that Section 3 violates equal protection and entered summary judgment for the plaintiffs.

Dragovich v. United States Dep’t of the Treasury, 764 F. Supp. 2d 1178 (N.D. Cal. 2011): Plaintiffs were public employees who had legally married their same-sex partners in California in 2008, but who were unable to receive federal benefits for their spouses because of Section 3 of DOMA. The court first rejected the government’s argument that the plaintiffs had no standing; the plaintiffs suffered an actual injury from being denied equal access to the insurance program. The court then found that the plaintiffs reasonably stated an equal protection claim. The proffered justifications for DOMA, that is, to preserve the status quo, encourage procreation, promote heterosexual marriage, and express moral disapproval, would not be sufficient even under rational basis scrutiny to grant Defendant’s motion to dismiss. Thus, the government’s motion to dismiss was denied.

Pederson v. Office of Personnel Management, No. 3:10-CV-1750 (VLB), 2012 WL 3113883 (D. Conn., July 31, 2012):

Legally married homosexual couples argued that Section Three of DOMA is unconstitutional; each couple had been denied a benefit of marriage, such as tax breaks and health insurance, because of their marriage to a person of the same sex. The Court found that homosexuals have suffered a history of discrimination; that they have been subjected to disabilities in terms of societal contribution because of stereotypes; that homosexuality is an immutable characteristic; and that gay people lack meaningful political power. Not only did the court find that gay people qualify as a suspect class, but the court held that DOMA violates the Equal Protection Clause even under mere rational basis scrutiny. The court granted Plaintiffs’ motion for summary judgment and denied Defendants’ motion to dismiss.

Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012):

Under New York laws, a person is exempt from paying estate taxes upon his/her spouse’s death; however, a woman who had legally married her same-sex partner was required to pay these taxes because of DOMA. The court distinguished Baker v. Nelson, 291 Minn. 310 (1971), dismissed,409 U.S. 810 (1972), in that Baker dealt with an issue of state law and DOMA is an issue of federal law; the Supreme Court’s decision therefore is not binding in this case. The court did not decide whether LGBT persons are a suspect class, but did find that there was no relation between DOMA and its proffered purposes; DOMA therefore violates equal protection even under rational basis scrutiny.

Golinski v. U.S. Office of Personnel Management, 824 F. Supp. 2d 968 (N.D. Cal. 2012):

A staff attorney in the Motions Unit of the Ninth Circuit was not allowed to enroll her wife in her Federal Employee Health Benefits Program pursuant to Section 3 of DOMA. First, the court found that LGBT persons are a suspect class due to the history of discrimination against them, their relative powerlessness as evidence by the majority of states’ marriage laws, and the immutability of sexual orientation. The Court rejected the government’s arguments that DOMA is justified by preventing gay marriage from “trivializing” heterosexual marriage and by reflecting a moral disapproval of homosexuality. Under heightened scrutiny, Section 3 of DOMA violates equal protection.

Significant Supreme Court Cases

 

Loving v. Virginia, 388 U.S. 1 (1967):

Virginia law criminalized interracial marriage; the Lovings, a Black woman and a Caucasian man, were convicted under the Virginia statute for their marriage. Virginia argued before the Supreme Court that because the law penalized all races equally, it did not violate equal protection. The Court disagreed. The racial classifications drawn by the statute were a clear product of White Supremacy, and the Court struck down the law. The opinion holds that the freedom to marry is a fundament right under the Due Process Clause. The due process analysis of the Court is somewhat vague, leaving open the question of whether the right to marry entails the right to marry a person of the same sex.

 

Baker v. Nelson, 291 Minn. 310 (1971), dismissed,409 U.S. 810 (1972):

A Minnesota law restricted marriage to between one man and one woman, and same-sex couples challenged the law under equal protection. The Supreme Court dismissed the case for lack of a substantive federal question. This dismissal has been used in various contexts to argue that defining marriage as between one man and one woman does not create Fourteenth Amendment issues.

 

Bowers v. Hardwick, 478 U.S. 186 (1986):

Under a Georgia law that criminalized any form of sodomy, a gay couple was arrested for performing sex acts in their home. The Court surmised that proscriptions against homosexual sodomy have ancient roots and that therefore there is no fundamental right to engage in homosexual sex. Rejecting the argument that the privacy right explained in Roe v. Wade, 410 U.S. 113 (1973), and Griswold v. Connecticut, 381 U.S. 479 (1965), protects the rights of gay couples to engage in sexual behavior, the Court upheld Georgia’s statute.

 

Romer v. Evans, 517 U.S. 620 (1996):

A statewide referendum added Amendment 2 to the Colorado Constitution, which stated that no protective status would be given to the LGBT community and thereby nullified all the antidiscrimination laws that had previously been in force. The Court found that Amendment 2 only served the purpose of animosity and thereby violated the Equal Protection Clause.

 

Lawrence v. Texas, 539 U.S. 558 (2003):

A Texas statute criminalized sodomy when performed by two people of the same sex. The Supreme Court interpreted the privacy right contained in Roe and Griswold broadly; the Court held that there is a fundamental right to engage in consensual sexual behavior with an adult partner. Thus, Texas’s law was struck down as a violation of the Due Process Clause, and Bowers v. Hardwick was overturned. In a concurring opinion, Justice O’Connor wrote that the law should be struck on equal protection grounds rather than due process because the law specifically targeted a group of people.

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