As was noted by Bill Moyers in his February PBS program, the Bill Moyers Journal, the quest for marriage equality has created some unlikely allies in attorneys Theodore Olsen, a conservative, and David Boies, a liberal. The two became nationally famous as the opposing counsel in Bush v. Gore, the Supreme Court case that halted the Florida recount and resolved the 2000 election in favor of George W. Bush. Now the two lawyers, who have successfully argued many cases before the Supreme Court, are lead co-counsel in Perry v. Schwarzenegger, a case that was recently argued in the United States District Court for the Northern District of California. That case is a challenge to Proposition 8, California’s ballot initiative that amended the State Constitution so as to put an end to same sex marriage. A decision will likely be issued this spring by the presiding judge, Vaughn Walker.
Bill Moyers interviewed the two lawyers on February 26. Here are some of the things they each had to say:
Conservatives, just like liberals, rely on the Supreme Court to protect the rule of law, to protect our liberties, to look at the law and decide whether or not it fits within the Constitution. And I think the point that’s really important here, when you’re thinking about judicial activism, is that this is not a new right. Nobody is saying, ‘Go find in the Constitution the right to get married.’ Everybody, unanimous Supreme Court, says there’s a right to get married, a fundamental right to get married. The question is whether you can discriminate against certain people based upon their sexual orientation. And the issue of prohibiting discrimination has never in my view been looked at as a test of judicial activism. That’s not liberal, that’s not conservative. That’s not Republican or Democrat. That’s simply an American Constitutional right.
The whole point of a Constitution is to say there are certain things a majority cannot do, whether it’s 52 per cent or 62 per cent or 72 percent or 82 per cent of the people.
The Supreme Court has said that the right to get married is a fundamental individual right. And our opponents say. ‘Well, the state has an interest in procreation and that’s why we allow people to get married. That marriage is for the benefit of the state. Freedom of relationship is for the benefit of the state.’ We don’t believe that in this country. We believe that we created a government (to which we gave certain authority). The government doesn’t give us liberty, we give the government power to a certain degree to restrict our liberty, but subject to the Bill of Rights.
There are certain rights that are so fundamental that the Constitution guarantees them to every citizen regardless of what a temporary majority may or may not vote for…. And what the Supreme Court has said is that even a democratic-elected legislature in Wisconsin cannot decide by majority rule that marriage scofflaws, people who don’ t pay their child support, who abuse their children, abuse their wives, cannot get married again. They said marriage is so fundamental that you can’t take it away, even for people who have abused an initial marriage. Missouri, the legislature, democratic-elected legislature voted majority rule, overwhelmingly, that imprisoned felons could not get married. Supreme Court says, ‘No, even though they can’t live together, they can’t be together, marriage is such a fundamental human right that you can’t take that away.’I think it is noteworthy that unless you knew the individual rhetorical styles of the liberal Boies and the conservative Olsen, you could not distinguish their comments, from a philosophical or political point of view.
I will come back to the Perry case, but let’s first take a look at the present state of same-sex marriage in our country and how we got there .
In 1993, the Hawaii Supreme Court ruled that laws denying same-sex couples the right to marry violated state constitutional equal protection rights unless the state could show a “compelling reason” for such discrimination. In 1996 a trial court ruled that the state had no such compelling reason and the case headed back to the Supreme Court. However, in 1998, before a final ruling was issued, voters adopted a Constitutional amendment giving the Legislature the power to reserve marriage to opposite-sex couples, effectively ending the lawsuit.
On November 18, 2003 the Massachusetts Supreme Judicial Court held, in the case of Goodridge v. Department of Mental Health, that “barring an individual from the protections, benefits and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution.”
“Marriage is a vital social institution,” wrote Chief Justice Margaret H. Marshall for the majority of the Justices. “The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial and social benefits. In turn, it imposes weighty legal, financial and social obligations.” The question before the Court was “whether, consistent with the Massachusetts Constitution,” the Commonwealth could deny those protections, benefits and obligations to two individuals of the same sex who wish to marry.
In ruling that the Commonwealth could not do so, the Court observed that the Massachusetts Constitution “affirms the dignity and equality of all individuals,” and “forbids the creation of second class citizens.” This conclusion is reached, the Court said, giving “full deference to the arguments made by the Commonwealth.” The Commonwealth, the court ruled, “has failed to identify any constitutionally adequate reason for denying civil marriage to same sex couples.”
The Court affirmed that it owes “great deference to the Legislature to decide social and policy issues.” Where, as here, the constitutionality of a law is challenged, it is the “traditional and settled role” of courts to decide the constitutional question. The “marriage ban” the court held, “works a deep and scarring hardship” on same-sex families for “no rational reason.” It prevents children of same-sex couples “from enjoying the immeasurable advantages that flow from the assurance of a stable family structure in which children will be reared, educated and socialized.” “It cannot be rational under our laws,” the court held, “to penalize children by depriving them of State benefits because of their parents’ sexual orientation.
The court rejected the Commonwealth’s claim that the primary purpose of marriage was procreation. Rather, the history of the marriage laws in the Commonwealth demonstrates that “it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of marriage.”
The court remarked that its decision “does not disturb the fundamental value of marriage in our society. That same sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.”
The opinion redefines the common law definition of civil to mean, “the voluntary union of two persons as spouses, to the exclusion of all others.” Noting that “civil marriage has long been termed ‘a civil right,’’’ the court concluded that “the right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropriate government restrictions in the interests of public health, safety and welfare.”
I would make note here that our own [Berkshire native] Justice Francis X. Spina, one of three dissenting justices in this 5 to 3 decision, stated that the issue is not the unequal treatment of individuals or whether individual’s rights have been impermissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts. He emphasized that “the power to regulate marriage lies with the Legislature, not with the judiciary.”
Pursuant to this decision, the state of Massachusetts began issuing marriage licenses to same sex couples on May17, 2004. In the following six-month period, approximately 6,100 couples were married. Subsequently, about 1,000 have been performed each year.
In 2000, Vermont approved landmark legislation to recognize civil unions between same-sex couples, granting them virtually all the benefits, protections and responsibilities that married couples have under Vermont law. The Vermont legislation was the result of the state Supreme Court ruling in Baker v. Vermont that same-sex couples are entitled, under the state constitution’s “Common Benefits Clause,” to the same benefits and protections as married opposite-sex couples. The court ruled that the Vermont Legislature must decide how to provide these benefits and protections, either by legalizing marriage for same-sex couples or by establishing an alternative system. The Vermont Legislature chose to preserve marriage as the legally recognized union of one man and one woman but at the same time created a parallel system of civil unions for same sex couples that went beyond existing “domestic partnership” and “reciprocal beneficiaries” laws that exist in California and Hawaii and other jurisdictions in the country today.
In April, 2005, Connecticut became the first state to legalize civil unions without prompting from the courts.
In October, 2006, the New Jersey Supreme Court ordered the legislature to redefine marriage to include same-sex couples or to establish a separate legal structure, such as civil unions, to give same-sex couples the same rights as heterosexual couples. In late 2006, the legislature passed a statute allowing civil unions beginning in February, 2007.
New Hampshire passed legislation authorizing civil unions, which took effect on January 1, 2008.
In May, 2008, the California Supreme Court ruled that same-sex couples should have the right to marry. The ruling took effect in mid June and same-sex marriages were performed there for a short period of time before the ballot initiative, known as Proposition 8, was passed in November, again banning same-sex marriage. It is the constitutionality of Proposition 8 that is being contested in the Perry case.
In October, 2008, the Connecticut Supreme Court ruled that a ban against same-sex marriage was in violation of the equal protection clause in the state constitution. Connecticut became the second state to allow same-sex marriage.
In April, 2009, the Iowa Supreme Court ruled that the state’s ban against same-sex marriage was unconstitutional. The ruling was a unanimous one, 9-0, and was based on equal protection and fairness grounds. Supporters pointed out that, as with the electoral caucuses, “as Iowa goes, so goes the nation.”
In May, 2009 Vermont became the first state where the legislature, without judicial mandate, passed legislation to allow same-sex marriage. Maine and New Hampshire quickly followed, bringing the number of states to allow same-sex marriage to six. However, same-sex marriage was never performed in Maine because a ballot measure passed in November, 2009, repealing the law.
In December, 2009 the District of Columbia Council passed a same-sex marriage law. As with most such actions in the District, this was subject to a Congressional review period of 90 days. In what could be seen as a measure of its current temperament, the Congress declined to act, thereby allowing it to become law, just three weeks ago, on March 3.
In 1996, Congress enacted the Defense of Marriage Act, which bars federal recognition of same sex marriages and allows states to do the same. Since 1996, many states have enacted legislation prohibiting same-sex marriages or the recognition of same-sex marriages performed in another jurisdiction. States have traditionally recognized marriages solemnized in other states, even those that are contrary to the marriage laws of that particular state. Under the full faith and credit clause of the U.S. Constitution, states are generally required to recognize and honor the laws of other states, unless those laws are contrary to the strong public policy of that state. The constitutionality of the Defense of Marriage Act, as it applies to same-sex couples legally married in Massachusetts, is the subject of a pending lawsuit in the U.S. District Court for the District of Massachusetts, Gill v. the Office of Personnel Management, to which I will refer later.
Over half of the states have passed legislation defining marriage as between a man and a woman in their state constitutions. Arizona is the only state where a constitutional amendment on the ballot in a general election has failed. Typically, such amendments have passed with overwhelming majorities. There have been several proposals before Congress to amend the federal constitution, defining marriage as between a man and a woman and ensuring that states would not be required to recognize same sex marriages from other jurisdictions. Opponents of such an amendment cite federalism concerns in addition to support for same sex marriages. A constitutional amendment requires two thirds of the House and Senate and three quarters of the state legislatures for enactment.
The January 18 issue of the New Yorker published an article by Margaret Talbot entitled “A Risky Proposal,” which raised the question of whether it is too soon to petition the Supreme Court on gay marriage. Addressing that question, Ted Olsen said, “The Supreme Court has said over and over again that marriage is a fundamental right, and although our opponents say, ‘Well, that’s always been a man and a woman,’ when the Court has talked about it they’ve said it’s an associational right, it’s a privacy right, it’s a liberty right, and it’s an expression of your identity, which is all wrapped up in the Constitution.” The justices of the Supreme Court, Olsen said, “are individuals who will consider this seriously, and give it good attention.” Bill Moyers, raising the same issue, asked David Boies, “I’m leading up to a point that seems crucial to me in the whole history of the Supreme Court, which is at what time does it take on public opinion? I mean, for example, roughly 40 states have laws banning gay marriage. In other words you would be disenfranchising the voters of, not just California, and not just the Congress, if you go this route. And isn’t it risky to ask the Court to invalidate that much public opinion before the public is ready for it?” Boies responded, making reference to the 1967 case of Loving v. Virginia, the landmark civil rights case in which the Court, by a 9-0 vote, declared Virginia’s anti-miscegenation statute, the Racial Integrity Act of 1924, unconstitutional. He said, “When the Supreme Court held that it was unconstitutional to prevent interracial marriages, 64 percent or more of the population of the United States, about two thirds of the population…, believed interracial marriages were wrong. That’s a much higher percentage than opposes gay and lesbian marriage in this country today.”
When the Perry case was brought, there were many leading gay rights organizations that did not support the initiative, thinking it was premature. They saw a loss in the Supreme Court as setting back the movement for marriage equality. They felt that the odds for success were not good because the Supreme Court, in their view, does not typically get too far ahead either public opinion or the law in the majority of the states. The legal precedent that these groups were concerned about wasn’t Loving v. Virginia but, rather, Bowers v. Hardwick, the 1986 decision that upheld Georgia’s antiquated law against sodomy. It was 17 years before the Court was willing to revisit the issue, in Lawrence v. Texas, though by then only 13 states had anti-sodomy statutes. This time, the Court overturned the laws by a 6-3 decision, but with a dissent from Justice Antonin Scalia, who declared that the Court had aligned itself with the “homosexual agenda,” and that the opinion of the majority would clearly lead to an assertion by same sex couples that they have the right to marry. A reading of that dissent, in its substance and tone, would strongly suggest that Justice Scalia is not a vote to count on if or when the Perry case reaches the Court. Seventeen years was a long time to wait and the activists’ sense was that a loss now would make it harder to go to court later. “It will take us a lot longer to get a favorable decision if the Court has to overrule itself.”
When the Supreme Court decides whether a law violates the Equal Protection clause, it engages in one of three levels of scrutiny: rational basis, intermediate or strict. If the Court uses strict scrutiny, the law in question will be struck down unless it can be shown to have been “narrowly tailored to further a compelling interest” of the state. This was the standard applied in the Loving case. Strict scrutiny applies only when a law either interferes with a fundamental right or deals with a so-called “suspect classification” — religion, race, ethnicity or national origin. Olsen and Boies will try to convince the Court that sexual orientation is a suspect classification, and that lesbians and gays have been subject to a history of discrimination, are defined by an immutable characteristic that “bears no relation to their ability to perform or contribute to society,” and are “politically powerless.” In this connection, the plaintiffs called as an expert witness professor George Chauncey of Yale University, to give his opinion as an expert in the history of the United States as it relates to gender, homosexuality, sexuality and civil rights in the United States, with a particular focus on the history of discrimination experienced by gays and lesbians.
Vaughn Walker, the presiding judge, who was appointed to the bench by George H. W. Bush in 1989, could have relied on legal filings, primarily affidavits, to make his decision but instead chose to admit oral testimony on everything from the history of marriage to the history of anti-gay discrimination, from the fitness of gays and lesbians as parents to the definition of homosexuality. As David Boies said, “We brought in experts from all over the world, the leading experts in psychology and sociology and history and political science and anthropology.” “I think that anybody that saw the case that we put in….that we built a record… that you cannot look at and come away believing that Proposition 8 is constitutional."
In “A Risky Proposal” Margaret Talbot relates that David Boies is of the opinion that he could still argue, successfully, that Proposition 8 fails the much more commonly applied “rational basis” scrutiny. Under that test, a law is considered valid as long as it is logically related to a plausible state interest. But, Boies says, “There is overwhelming evidence of damage to gay and lesbian couples who cannot marry — and to their children — and no evidence that permitting gays to marry damages heterosexual couples. Olsen and Boies will aim to show that the motivation for Proposition 8 could only have been animus, a rationale that the Court does not look kindly on. In the 1996 case, Romer v. Evans, for instance, the Court ruled that a Colorado amendment that excluded gays and lesbians from anti-discrimination laws was motivated by anti-gay feeling, and was therefore unconstitutional.
The legal team for the defense in the Perry case is led by Charles Cooper, a Washington lawyer who succeeded Olsen as Assistant Attorney General under President Reagan, and by the Alliance Defense Fund, “ a sort of Christian conservative counterpart of the ACLU.” Cooper argued that the State of California has rational interest in upholding “procreative marriage.” At the heart of the case “are two competing conceptions of the institution of marriage, and of its central purpose,” said Cooper. We say the central and the defining purpose of marriage is to channel naturally procreative sexual activity between men and women into stable, enduring unions for the sake of begetting, nurturing and raising the next generation. Plaintiffs say that the central and constitutionally mandated purpose of marriage is simply to provide formal government recognition to loving, committed relationships.”
Bill Moyers asked Ted Olsen what Cooper’s most effective argument had been and Olsen responded that, with all due respect, he did not feel any argument had been effective. “But what really happened,” Olsen said, “which was a very eye opening event, during the course of a pre-trial proceeding…the Judge in our case asked my opponent, ‘What harm to the institution of heterosexual marriage would occur if gays and lesbians were allowed to marry?’ This went back and forth and back and forth. The judge kept wanting an answer. ‘What damage would be done to the institution of marriage if we allowed this to happen?’ And my opponent said, finally, he had to answer it truthfully. He paused and he said, ‘I don’t know. I don’t know.’ That to me sums up the other side.”
Returning to the pending Massachusetts case, Gill v. the Office of Personnel Management, in which the plaintiffs are challenging the federal Defense of Marriage Act, there are many legal scholars who feel it stands a better chance of success than Perry, although the two cases involve different issues and would have different legal ramifications. Gill challenges a section of the Act which prevents same sex couples from receiving the many benefits accorded to married couples at the federal level- from joint tax filing to health insurance for the families of federal employees- even though in the state of Massachusetts those couples are legally married. Gill insists not on the federal constitutionality of same sex marriage but on the unconstitutionality of denying federal benefits to a class of citizens whose marriages are recognized by the state.
Margaret Talbot notes that as seemingly modest as the Gill case is, it could help create a favorable climate for more ambitious challenges, including the Perry case. She quotes Thomas Keck, a political science professor at Syracuse University, who is an expert on the Supreme Court, “I don’t think any of us can predict how it’s all going to turn out. But Gill is a very well designed case, a well targeted challenge that has a good chance of winning and that broader challenges could be built on. If it wins, in a practical sense, we would have federally recognized same-sex marriage. At that point, it would be much harder to defend the federal government’s refusal to recognize same-sex marriage in other parts of the country.” Gill could also go to the Supreme Court, and if it makes it there first, and succeeds, it could help Olsen and Boies.
In his interview with Bill Moyers, Ted Olsen pointed out that, “When the Supreme Court had made the decision in Loving v. Virginia in 1967, striking down the laws of 17 states that prohibited interracial marriage, now it’s only what? Forty years later? Forty years later we think it’s inconceivable that Virginia or some other state could prohibit interracial marriage. It’s inconceivable."
In their felony trial in Virginia, the Lovings were sentenced to one year in prison, with the sentence suspended for 25 years on condition that the couple leave the state of Virginia. The trial judge in the case, Leon Bazile, echoing Johann Friedrich Blumenbach’s 18th century interpretation of race, proclaimed that: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
On June 12, 2007, Mildred Loving issued a rare public statement, prepared for delivery on the 40th anniversary of the Loving v. Virginia Supreme Court decision. The concluding paragraphs of her statement read as follows:
Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the wrong kind of person for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights. I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.
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