an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Another Federal District Court Heard From: Why Moral Disapproval Can’t Sustain a Marriage Ban in the “All-or-Nothing” State of Oklahoma
On January 14, 2014, a second federal district court in the 10th Circuit ruled that a state constitutional amendment limiting marriage to opposite-sex couples violates the U.S. Constitution. The first ruling, on December 20, 2013, by a federal district court in Utah, in Kitchen v. Hebert, has received considerable attention, most recently because the U.S. Supreme Court granted the State’s request to stay the district court’s order pending appeal, after that court and the 10th Circuit declined to do so. Earlier this week, In Bishop v. United States, a federal district court in the Northern District of Oklahoma held that Oklahoma’s constitutional amendment, approved by voters on November 2, 2004, stating that marriage in Oklahoma "shall consist only of the union of on man and one woman" (Part A") violated the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. (The court ruled that the challenge to DOMA by the other same-sex couple ("the Barton couple"), who married in California, was moot because of United States v. Windsor and the federal government’s new policy making federal benefits available, but it praised them for their "foresight, courage, and perseverance" over the many years of the lawsuit.) The court referred to Oklahoma as an "all-or-nothing state" because Oklahoma does not offer same-sex couples an alternative legal status, such as a civil unions: without a marriage license, they receive no marital benefits. Indeed, its amendment bars construing Oklahoma’s constitution or laws as requiring that any of "the legal incidents" of marriage "be conferred upon unmarried couples or groups." (Whether this characterization was a sly nod to Ado Annie’s and Will’s duet, in the musical Oklahoma, about the terms of their impending marriage, I am not sure.)
I want to focus on the federal district court’s reasoning about why, in light of United States v. Windsor and earlier U.S. Supreme Court precedents, moral disapproval of homosexuality is not a constitutionally sufficient basis for Part A of Oklahoma’s constitutional amendment, which prevented Mary Bishop and Sharon Baldwin (referred to by the court as "the Bishop couple") from obtaining a marriage license. (They filed their original lawsuit in 2004.)
I have recently posted an article taking a close look at the evolution and fate of this moral disapproval argument from Romer v. Evans to United State v. Windsor. That evolution features in the district court’s opinion. The court notes that both sides in the case – the couples challenging Part A and the governmental officials defending it – appeal to Windsor as supporting their opinion, and that each side "has a point." The Utah federal district court, recall, concluded Justice Scalia’s dissent had the right of it in terms of predicting the import of the Windsor majority opinion for federal constitutional challenges brought to state marriage laws. By comparison, the Oklahoma federal district court "gleaned" from Windsor two principles that "happen to help different sides of the marriage debate." On the one hand, supporting the state’s position is the principle that "a state law defining marriage is not an ‘unusual deviation’ from the state/federal balance" – by contrast to Section 3 of the Defense of Marriage Act – "such that its mere existence provides ‘strong evidence’ of improper purpose." Windsor, the court points out, stressed that DOMA departed from the tradition of "accepting state definitions of marriage," and was "discrimination of an unusual character." Because Part A is a state marriage definition, it "must be approached differently, and with more caution, than the Supreme Court approached DOMA." The court expresses this in terms of a cautionary "yellow light"against extending Windsor to "similar state definition."
The court continued, however, that the "yellow light" argument" has limits, including the Supreme Court’s repeated disclaimer – including in Windsor – that this state authority to define marriage is "subject to constitutional guarantees." Thus, that Windsor cited to Loving v. Virginia on this point is a "disclaimer of enormous proportion."
The second principle the court gleans from Windsor points in the direction of plaintiffs’ challenge to Part A: "courts reviewing marriage regulations, by either the state or federal government, must be wary of whether defending traditional marriage is a guise for impermissible discrimination against same-sex couples." The court observes that much of Justice Kennedy’s reasoning about the "purposes and effect" of DOMA – that is, as "‘defending’ a particular moral view of marriage, imposing inequality, and treating legal same-sex marriages as ‘second class’" – could be "readily applied to the purpose and effect of similar or identical state-law marriage definitions." Indeed, although promoting or upholding morality was not advanced in the litigation as a justification for Oklahoma’s law, the court asserts that plaintiffs have shown, as a matter of law," that "moral disapproval of same-sex marriage" and the aim of upholding morality was a justification offered to the public prior to the passage of the law. The court quotes statements such as those by State Representative Bill Graves: "This is a Bible Belt state . . . Most people don’t want that sort of thing here . . . Gay people might call it discrimination, but I call it upholding morality.’" Here, the court invokes Lawrence v. Texas (both the majority and Justice O’Connor’s concurring opinion) to conclude that, however rooted in conscientious religious beliefs, "moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law." So too, again following Lawrence, history and tradition are not a sufficient reasons for upholding a law prohibiting a practice.
The district court concludes: "Preclusion of ‘moral disapproval’ as a permissible basis for laws aimed at homosexual conduct or homosexuals represents a victory for same-sex marriage advocates, and it forces states to demonstrate that their laws rationally further goals other than promotion of one moral view of marriage." In the rest of the opinion, the court considers and rejects as insufficient, under a rational basis test, the state interests proffered in defense of Oklahoma’s constitutional amendment. These proffered interests are, by now, very familiar, as is the judicial evaluation of their insufficiency. To take the "responsible procreation" interest: the court reasons that while Oklahoma has a legitimate interest in encouraging "responsible procreation" – and tried to support that interest by submitting scholarly articles about the purposes of marriage – equal protection demands a link between the classification being drawn against same-sex couples and the state objective. Here, the court circles back to the point that historical practice does not supply a rational basis (citing Loving) and makes the usual moves about procreation not being a prerequisite for marriage and that Oklahoma does not treat other "non-procreative couples desiring to marry" the way it treats same-sex couples.
Particularly notable is how the court disposes of the state’s "lack of interest" argument, that is, that because same-sex couples are not at risk – as heterosexual couples are – for "irresponsible procreation," their sexual relationships "neither advance nor threatened society’s interest in responsible procreation in the same manner." The court calls this "lack of interest" argument "ironic," given the history surrounding" the amendment’s passage, namely, appealing to the threat posed to marriage by homosexuals. With respect to the "optimal child reading environment" argument, the court raised the question of whether excluding same-sex couples form marriage advanced this interest or it was simply "a guise for singling out same-sex couples for different treatment due to ‘moral disapproval’ of a same-sex household with children. Here, the court transfers Windsor’s solicitude for the humiliation experienced by children of same-sex married couples denied federal benefits to the impact of Part A on children reared by those Oklahoma couples denied access to state-provided marital benefits – children who will not be able to "‘understand the integrity and closeness of their own family and its concord with other families in their community.’"
Excluding same-sex couples from marriage, the court wryly observes, has done little so far "to keep Oklahoma families together," since Oklahoma "consistently has one of the highest divorce rates in the country." (Some readers of this blog may recall that, in 1999, Oklahoma Governor Frank Keating, using federal government TANF funds, created the Oklahoma Marriage Infinitive and pledged to reduce the divorce rate by one third.)
Finally, the federal district court characterizes the state’s argument that allowing same-sex couples to marry will have a "negative impact" on marriage as being "impermissibly tied to moral disapproval of same-sex couples as a class of Oklahoma citizens." Here, the court applies Justice Scalia’s dissent in Lawrence: "‘ Preserving the traditional institution of marriage . . . is just a kinder way of describing the State’s moral disapproval of same-sex couples."
Applying rational basis review, and eschewing any heightened form of scrutiny, the court concludes that Oklahoma’s constitutional amendment that defines marriage in a way that excludes same-sex couples is an "arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit." Specifically, it excludes the Bishop couple, who have "been in a loving, committed relationship for many years, and jointly own a home together, "wish to retire together, . . .to make medical decisions for one another, . .and to be recognized as a married couples with all its attendant rights and responsibilities." This passage is evocative of Justice Kennedy’s language in Windsor about the role of recognition of marital status and how Section 3 of DOMA divests married same-sex couples of the "duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force." Posted
by Linda McClain [link]