Law in Plain English: Same Sex Marriage Cases

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Obergefell v. Hodges (consolidated with Tanco v. Haslam, DeBoer v. Snyder, Bourke v. Beshear)

Argument: Apr 28 2014 (Aud.)

Background: James Obergefell and John Arthur are from Ohio, and were married in Maryland. When Arthur died, Ohio would not list Obergefell as his spouse on their death certificates. Obergefell sought an injunction to require the State to list him as a spouse on the certificate. The district court concluded that the Fourteenth Amendment protects a fundamental right to keep existing marital relationships intact, and that the State failed to justify its law under heightened scrutiny. The court likewise concluded that classifications based on sexual orientation deserve heightened scrutiny under equal protection, and that Ohio failed to justify its refusal to recognize the couples’ existing marriages. Even under rational basis review, the court added, the State came up short. The Sixth Circuit reversed, finding that the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment does not require States to expand the definition of marriage to include same-sex couples. Further, the court found that the Constitution does prohibit a State from denying recognition to same-sex marriages conducted in other States.

Issue: The questions before the Court: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Holding: In a 5-4 decision, the Supreme Court ruled that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

Can a wedding photographer be compelled to provide services to a same-sex couple?

Yes, says the New Mexico Supreme Court:

{1} By enacting the New Mexico Human Rights Act (NMHRA), NMSA 1978, §§ 28-1-1 to -13 (1969, as amended through 2007), the Legislature has made the policy decision to prohibit public accommodations from discriminating against people based on their sexual orientation. Elane Photography, which does not contest its public accommodation status under the NMHRA, offers wedding photography services to the general public and posts its photographs on a password-protected website for its customers. In this case, Elane Photography refused to photograph a commitment ceremony between two women. The questions presented are (1) whether Elane Photography violated the NMHRA when it refused to photograph the commitment ceremony, and if so, (2) whether this application of the NMHRA violates either the Free Speech or the Free Exercise Clause of the First Amendment to the United States Constitution, or (3) whether this application violates the New Mexico Religious Freedom Restoration Act (NMRFRA), NMSA 1978, §§ 28-22-1 to -5 (2000). 

{2} First, we conclude that a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the NMHRA and must serve same-sex couples on the same basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races.  

{3} Second, we conclude that the NMHRA does not violate free speech guarantees because the NMHRA does not compel Elane Photography to either speak a government mandated message or to publish the speech of another. The purpose of the NMHRA is to ensure that businesses offering services to the general public do not discriminate against protected classes of people, and the United States Supreme Court has made it clear that the First Amendment permits such regulation by states. Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws. We also hold that the NMHRA is a neutral law of general applicability, and as such, it does not violate the Free Exercise Clause of the First Amendment. 

{4} Finally, we hold that the NMRFRA is inapplicable in this case because the government is not a party. For these reasons, we affirm the judgment of the Court of Appeals.

Law in Plain English: Hollingsworth v. Perry

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

My preview of the case is here.

Hollingsworth v. Perry

In 2008, Californians passed Proposition 8, which amended the California constitution to prohibit same sex marriage. Perry and her spouse and another same sex couple filed suit, alleging that Prop 8 violated the Fourteenth Amendment. California refused to defend the constitutionality, but the District Court allowed Hollingsworth and other residents, who had placed Prop 8 on the ballot, to intervene and defend the law. The District Court found that Prop 8 violated both the Due Process Clause, because the state had no compelling interest in denying the right to marry to same sex couples; and the Equal Protection Clause, because there was no rational basis for limiting the designation of marriage to opposite-sex couples. The results below, and the decision by California not to defend the law, raised two questions before the Court: first, whether Hollingsworth had standing to defend Prop 8; and second, whether the Equal Protection Clause of the Fourteenth Amendment prohibited California from defining marriage as the union of a man and a woman. It is important to note that the first question was threshold question, meaning it must be decided in the affirmative for the Supreme Court to consider the constitutionality question. In a 5-4 decision, the Supreme Court ruled that Hollingsworth did not have standing to appeal. As a result, the Ninth Circuit's decision was reversed and remanded. The practical impact of this decision is that same sex marriage will be permitted in California, because the petitioners do not have standing to defend the law. This is a narrow ruling that will not apply outside of California.

Law in Plain English: United States v. Windsor

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

My preview of the Windsor case is here.

United States v. Windsor

Windsor married her spouse in Canada, but New York (where she lived) did not recognize same sex marriage. After her spouse died, she filed suit, claiming that she was denied the spousal deduction for federal estate taxes because the Defense of Marriage Act (DOMA) defines marriage as being between a man and a woman. Both the District Court and the Second Circuit decided in Windsor's favor, finding DOMA unconstitutional. Three months after Windsor's suit, the federal government also decided to stop enforcing DOMA, believing (as the courts in this case did) that DOMA was unconstitutional. The House of Representative's Bipartisan Legal Advisory Group (BLAG) moved to intervene on behalf of the United States. The results below, and this decision by the federal government, raised the questions before the Court: First, whether the federal government's decision not to defend DOMA took away jurisdiction from the Supreme Court to hear the case (BLAG argues that because the Second Circuit's decision in favor of Windsor was in line with the government's new position not to defend DOMA, the government prevailed and cannot appeal; the government argues otherwise); second, whether BLAG had standing to defend DOMA (because, arguably, their interest in seeing the law enforced does not rise to the level of a specific injury); and third, whether DOMA itself was unconstitutional by violating the Fifth Amendment's guarantee of equal protection. In a 5-4 decision, the Supreme Court ruled that DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. The practical impact of this decision is that the federal government cannot deny benefits to same-sex couples.

Law in Plain English: Hollingsworth v. Perry (Prop 8 preview)

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

UPDATE: A summary of the Supreme Court's decision is here.

For a preview of the other same sex marriage case, United States v. Windsor, see here.

Hollingsworth v. Perry

In 2008, Californians passed Proposition 8, which amended the California constitution to prohibit same sex marriage. Perry and her spouse and another same sex couple filed suit, alleging that Prop 8 violated the Fourteenth Amendment. California refused to defend the constitutionality, but the District Court allowed Hollingsworth and other residents, who had placed Prop 8 on the ballot, to intervene and defend the law. The District Court found that Prop 8 violated both the Due Process Clause, because the state had no compelling interest in denying the right to marry to same sex couples; and the Equal Protection Clause, because there was no rational basis for limiting the designation of marriage to opposite-sex couples. The results below, and the decision by California not to defend the law, raises two questions before the Court: first, whether Hollingsworth has standing to defend Prop 8; and second, whether the Equal Protection Clause of the Fourteenth Amendment prohibits California from defining marriage as the union of a man and a woman. It is important to note that the first question is a threshold question, meaning it must be decided in the affirmative for the Supreme Court to consider the constitutionality question. If the Court decides that Hollingsworth couldn't intervene to defend the law because he didn't have standing, then the Court could not decide on the constitutionality of Prop 8 (the other same sex marriage case involves DOMA and doesn't implicate Prop 8). The outcome is likely to be one of five choices; for a fuller understanding of all of the options at the disposal of the Supreme Court, see here.

Law in Plain English: United States v. Windsor (same sex marriage preview)

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

 UPDATE: A summary of the Supreme Court's decision is here.

For a preview of the other same sex marriage case, Hollingsworth v. Perry, see here.

United States v. Windsor

Windsor married her spouse in Canada, but New York (where she lived) did not recognize same sex marriage. After her spouse died, she filed suit, claiming that she was denied the spousal deduction for federal estate taxes because the Defense of Marriage Act (DOMA) defines marriage as being between a man and a woman. Both the District Court and the Second Circuit decided in Windsor's favor, finding DOMA unconstitutional. Three months after Windsor's suit, the federal government also decided to stop enforcing DOMA, believing (as the courts in this case did) that DOMA was unconstitutional. The House of Representative's Bipartisan Legal Advisory Group (BLAG) moved to intervene on behalf of the United States. The results below, and this decision by the federal government, raises the questions before the Court: First, whether the federal government's decision not to defend DOMA takes away jurisdiction from the Supreme Court to hear the case (BLAG argues that because the Second Circuit's decision in favor of Windsor was in line with the government's new position not to defend DOMA, the government prevailed and cannot appeal; the government argues otherwise); second, whether BLAG has standing to defend DOMA (because, arguably, their interest in seeing the law enforced does not rise to the level of a specific injury); and third, whether DOMA itself is unconstitutional by violating the Fifth Amendment's guarantee of equal protection. It is important to note that the first two questions are threshold questions, meaning they must be decided in the affirmative for the Supreme Court to consider the constitutionality question. If the Court decides that the federal government couldn't appeal, or that BLAG couldn't intervene, then the Court could not decide on the constitutionality of DOMA and would have to save that question for another case (the other same sex marriage case involves California's Proposition 8 and doesn't implicate DOMA).

Maryland's ballot questions in November

Here are the four ballot questions on November's General Election ballot that apply statewide (questions #1-3 are constitutional amendments that only effect certain jurisdictions). The text in the heading is a short summary, while the next that follows it is the actual ballot question text:

#4 - Give in-state college tuition benefits to illegal aliens:

Establishes that individuals, including undocumented immigrants, are eligible to pay in-state tuition rates at community colleges in Maryland, provided the student meets certain conditions relating to attendance and graduation from a Maryland high school, filing of income taxes, intent to apply for permanent residency, and registration with the selective service system (if required); makes such students eligible to pay in-state tuition rates at a four-year public college or university if the student has first completed 60 credit hours or graduated from a community college in Maryland; provides that students qualifying for in-state tuition rates by this method will not be counted as in-state students for purposes of counting undergraduate enrollment; and extends the time in which honorably discharged veterans may qualify for in-state tuition rates.

#5 - Keep Maryland's gerrymandered congressional districting plan:

Establishes the boundaries for the State’s eight United States Congressional Districts based on recent census figures, as required by the United States Constitution.

#6 - Redefine marriage in Maryland to include same-sex couples:

Establishes that Maryland’s civil marriage laws allow gay and lesbian couples to obtain a civil marriage license, provided they are not otherwise prohibited from marrying; protects clergy from having to perform any particular marriage ceremony in violation of their religious beliefs; affirms that each religious faith has exclusive control over its own theological doctrine regarding who may marry within that faith; and provides that religious organizations and certain related entities are not required to provide goods, services, or benefits to an individual related to the celebration or promotion of marriage in violation of their religious beliefs.

#7 – Expand gambling in Maryland:

Do you favor the expansion of commercial gaming in the State of Maryland for the primary purpose of raising revenue for education to authorize video lottery operation licensees to operate “table games” as defined by law; to increase from 15,000 to 16,500 the maximum number of video lottery terminals that may be operated in the State; and to increase from 5 to 6 the maximum number of video lottery operation licenses that may be awarded in the State and allow a video lottery facility to operate in Prince George’s County?

On homosexuality and same sex marriage

I grew up believing that homosexuality was wrong, from a Biblical standpoint. In large part, I still believe this. Don't get me wrong, I have never believed and advocated for a literal interpretation of Leviticus 20:13 which suggests execution for homosexuals (I would also argue that many other parts of the Bible aren't meant to be read literally, but that's another argument for another day). Rather, I hold it (both the Old Testament and the New Testament) as a general moral prohibition against homosexuality.

Until recently, I uncritically applied this moral code to marriage. For many years, I was one of the many people in our country (mostly on the Right, but in reality of all political persuasions) who believed that as a result of this moral code, homosexuals should not be allowed to marry.

The reality of the situation, from a liberty and freedom perspective, is that this argument simply doesn't make sense. I have come to believe that it is perfectly compatible to be opposed to homosexuality and still support same sex marriage.

Marriage is not exclusively a religious compact. In fact, it is a civil contract between two individuals. Truly, it can be one, or the other, or both, depending upon your beliefs.

When conservatives talk about defending traditional marriage, they're talking primarily about a religious contract. This is certainly a common view of marriage, but it's not the only one. People get married in shotgun weddings in Las Vegas. Celebrities get married and divorced months (or even days and hours) later. Neither of these are the traditional marriage that the Right would typically defend, but I don't see them trying to outlaw them, either.

Would those who believe in traditional man/woman religious marriage oppose the concept of a man and woman who wanted to get married, but aren't religious? Of course not. So conservatives don't really seem to be opposed to non-religious, civil marriage, either.

The issue really comes down to whether or not the government has such a power to push a social agenda through public policy. Perhaps there are circumstances when the government should do this; circumstances when the government has a vested interest. In this case, it's difficult to define.

Human beings are free to enter into civil contracts with one another. Whether those human beings are a man and a woman, two men, or two women, seems immaterial to me. From a civil perspective, I don't see any reason why same sex marriage should be outlawed.

This isn't a religious issue, it's a freedom issue. It's about the power of the government vs. the will of the people to do what they choose.

To approach someone who is religiously opposed to homosexuality by arguing that they are wrong, or that the Bible is wrong, is a non-starter. Not only are you putting them on the defensive from the start, but you're arguing on their turf. Rather, consider approaching the discussion from a liberty and freedom perspective. Religious opposition to homosexuality doesn't necessarily mean that this policy must be enforced by the government (if such was the case, the application of the Leviticus moral code to our public policy would be mandatory, no? Either way, it could be argued to absurdity). One (such as myself) can be opposed to homosexuality and still believe that the government does not have the power to outlaw civil marriage between same sex persons. Indeed, asking what authority the government has to prohibit same sex marriage is a preferable starting point.

We should avoid here, as in all discussions, about the "right" to do this or that. When you start talking about rights, people think the government is granting "special rights" to people. Rights are unalienable (or inalienable, they mean the same thing!), not granted by government.  The question should never be: "Do we have the right to do this?" but rather, "Does the government have the power to prohibit it?"

Of course, a same-sex couple who wishes a religious marriage can have one, if they find clergy who are willing to do it. But I would always insist that no religious person should ever be forced to officiate a marriage against their own will and personal beliefs (heterosexual or homosexual). I think all of us could agree with that.

Thoughts?

Not all gloom for conservatives

Despite the Democratic gains, there were some bright spots in yesterday's election for conservatives:

• "Michiganders voted overwhelmingly on Tuesday to amend their state's Constitution to ban public colleges and other state agencies from operating affirmative-action programs that grant preferences based on race, color, ethnicity, national origin, or gender." See here.

• Seven states (Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia, and Wisconsin) passaged marriage amendments. Only one (Arizona) was defeated (and by a 49-51 margin).

• While the race hasn't been officially called yet, Minnesota Governor Tim Pawlenty (incumbent Republican) is leading by 14,000 votes. In the 1% of unreported precincts (almost exclusively small and rural), it does not appear that there are enough votes for the margin to get much smaller.
  

Today's rant

Consider the following statement:

To bring the State into compliance with Article I, Paragraph 1 so that plaintiffs can exercise their full constitutional rights, the Legislature must either amend the marriage statutes or enact an appropriate statutory structure within 180 days of the date of this decision.

Without any amplifying information, it makes little or no sense, so let me explain. The quoted passage above is the last statement of the recent decision of the New Jersey Supreme Court allowing same sex marriages.

I am not a lawyer, but I did stay at a Holiday Inn Express last night. But seriously, I was a political science major, so I know at least a little bit about how government operates. We operate under a concept called the separation of powers, which means there are three branches of government that have checks and balances on one another. In this way, no one branch alone can control the government.

In the passage above, the New Jersey Supreme Court commands the legislature to "either amend the marriage statutes or enact an appropriate statutory structure..." or else. Or what? What will the Court do if the legislature does nothing?

The Court is trying to have it both ways. Rather than be seen as an "activist" Court by rewriting the statutes themselves (something most judicial activists wouldn't think twice about doing), they are trying to compromise and play it safe by telling the legislature what to do. Unfortunately, our system of government doesn't work that way.

Here's what Peter Sprigg of the Family Research Council had to say (and I agree):

The New Jersey Supreme Court has professed respect for judicial restraint by refusing to change the definition of "marriage." But they have imperiously commanded the state Legislature to either redefine marriage itself, or create a "statutory structure" (such as "civil unions") to grant 100% of the legal rights and benefits of marriage to same-sex couples.

This is not judicial restraint. Courts have no power to command the legislative branch to enact a particular law. That the court has given the Legislature a choice (the frying pan or the fire) in no way mitigates this violation of the separation of powers.

The New Jersey Legislature should therefore simply ignore this command. Indeed, we urge them to go further and follow the lead set by 19 other states, by amending the state constitution to define marriage as the union of a man and a woman (and to make clear that only the Legislature may determine and distribute the "benefits of marriage").

The court based its ruling in part on protections against "discrimination" and limited "domestic partnership" rights already granted to homosexuals by the Legislature.

This rationale - that because the state offers limited "rights," it must offer more expansive ones - turns logic on its head. It should, however, serve as a cautionary tale for politicians who think that such measures to appease homosexual activists will forestall the counterfeiting of marriage itself. Instead, they merely accelerate it.

Society gives benefits to marriage because marriage gives benefits to society. Therefore, the burden of proof must rest upon the advocates of homosexual unions to demonstrate that such unions benefit society (not just the individuals involved) in the same way and to the same degree as marriage between a man and a woman.

Because homosexual unions never result in natural procreation and never provide children with both a mother and a father, this is a burden they simply cannot meet.

"[A]mending the state constitution to define marriage as the union of a man and a woman (and to make clear that only the Legislature may determine and distribute the 'benefits of marriage')" might wake up the Court to realize that they have no such power to command the legislature to do anything. Perhaps they ought to pick up a book on our American system of government and turn to the chapter on the separation of powers. Maybe then will they realize the stupidity of what their "compromise" really looks like.