Tumultuous Year Ahead for Same-Sex Marriage

Equal protection for gays and lesbians is the civil rights issue of our day. On the flashpoint topic of same-sex marriage, the significant litigation has been in state courts, as exemplified by the 2006 New York Court of Appeals ruling rejecting a state constitutional right to same-sex marriage in New York. Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770 (2006).

With trepidation from an advocacy community wary of the Supreme Court, the fight over same-sex marriage has now shifted to federal court. Two disputes heading toward the High Court squarely present the issue that for decades to come may define the legal landscape for gays and lesbians: whether the Constitution's Equal Protection guarantees bar states and the federal government from denying marriage and marital benefits to same-sex couples.

Challenge to Prop 8

The case that has garnered the most attention is the challenge to California's so-called Prop 8, the voter initiative amending the California Constitution to provide that “[o]nly marriage between a man and a woman is valid in California.” The odd pairing of David Boies and Ted Olsen, who famously squared off against each other in the Bush v. Gore litigation, charged into federal court and, after a widely publicized trial, won a ruling that Prop 8 violated the Equal Protection Clause.

The state defendants did not defend Prop 8 in the district court and refused to appeal, leaving both to Prop 8 supporters who had intervened in the case. That raises a serious question about whether they have standing to defend Prop 8 in the place of state officials, and in January, the Ninth U.S. Circuit Court of Appeals slowed the progress of the case by sending it to the California Supreme Court to resolve that issue. Perry v. City & County of San Francisco, No. 16696 (9th Cir., Jan. 4, 2011).

Attack on DOMA

Meanwhile, a second and more important federal Equal Protection challenge has opened in the form of an attack on the Defense of Marriage Act (DOMA), Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. ' 7), which denies those in same-sex marriages the whole range of federal benefits (like Social Security and tax benefits) otherwise afforded to married couples. Last July a Massachusetts federal district court issued a landmark ruling declaring that the law violated the Equal Protection Clause. Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D. Mass. 2010). Taking a doctrinally conservative approach, the Gill court required only that the statute meet the rational basis test, the least exacting form of Equal Protection scrutiny. Nonetheless, it found that conditioning marital benefits on the sexual orientation of the spouses served no rational purpose, including an interest in “responsible procreation” or, as the government primarily asserted, an interest in maintaining the status quo pending political resolution of the national controversy over same-sex marriage. That case is now before the First Circuit.

Meanwhile, in two cases recently filed in district courts within the Second Circuit, Pedersen v. OPM and Windsor v. United States, the Obama Administration announced in February that it would not defend DOMA. The U.S. House, however, has since decided to step in and defend the law. Between these two cases, the First Circuit case, and the Prop 8 case pending in the Ninth Circuit, 2011 is the year we will see major federal Court of Appeals rulings on the federal right to same-sex marriage.

Supreme Court Review

Hovering over all of this is the prospect of Supreme Court review. Conservative as a majority of the Court is, there is reason for optimism. In its last two major gay rights cases, the Court struck down discriminatory provisions. In Romer v. Evans, 517 U.S. 620 (1996), decided in 1996, the Court declared that a Colorado constitutional amendment barring the granting of legal protections to gays and lesbians (such as anti-discrimination rights) violated the federal Equal Protection Clause because it was not rationally related to a legitimate government purpose.

And in Lawrence v. Texas, 539 U.S. 556 (2003), decided in 2003, the Court held that a state statute criminalizing sodomy between people of the same sex violated the federal Due Process Clause because it violated the right of consenting adults to engage in intimate sexual activity. Most importantly, Justice Anthony Kennedy wrote Lawrence and Romer, and he remains the fifth vote on same-sex marriage.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union and an adjunct professor in the Civil Rights Clinic at New York University School of Law. He can be reached at [email protected] article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

Equal protection for gays and lesbians is the civil rights issue of our day. On the flashpoint topic of same-sex marriage, the significant litigation has been in state courts, as exemplified by the 2006 New York Court of Appeals ruling rejecting a state constitutional right to same-sex marriage in New York. Hernandez v. Robles , 7 N.Y.3d 338, 821 N.Y.S.2d 770 (2006).

With trepidation from an advocacy community wary of the Supreme Court, the fight over same-sex marriage has now shifted to federal court. Two disputes heading toward the High Court squarely present the issue that for decades to come may define the legal landscape for gays and lesbians: whether the Constitution's Equal Protection guarantees bar states and the federal government from denying marriage and marital benefits to same-sex couples.

Challenge to Prop 8

The case that has garnered the most attention is the challenge to California's so-called Prop 8, the voter initiative amending the California Constitution to provide that “[o]nly marriage between a man and a woman is valid in California.” The odd pairing of David Boies and Ted Olsen, who famously squared off against each other in the Bush v. Gore litigation, charged into federal court and, after a widely publicized trial, won a ruling that Prop 8 violated the Equal Protection Clause.

The state defendants did not defend Prop 8 in the district court and refused to appeal, leaving both to Prop 8 supporters who had intervened in the case. That raises a serious question about whether they have standing to defend Prop 8 in the place of state officials, and in January, the Ninth U.S. Circuit Court of Appeals slowed the progress of the case by sending it to the California Supreme Court to resolve that issue. Perry v. City & County of San Francisco, No. 16696 (9th Cir., Jan. 4, 2011).

Attack on DOMA

Meanwhile, a second and more important federal Equal Protection challenge has opened in the form of an attack on the Defense of Marriage Act (DOMA), Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. ' 7), which denies those in same-sex marriages the whole range of federal benefits (like Social Security and tax benefits) otherwise afforded to married couples. Last July a Massachusetts federal district court issued a landmark ruling declaring that the law violated the Equal Protection Clause. Gill v. Office of Personnel Management , 699 F.Supp.2d 374 (D. Mass. 2010). Taking a doctrinally conservative approach, the Gill court required only that the statute meet the rational basis test, the least exacting form of Equal Protection scrutiny. Nonetheless, it found that conditioning marital benefits on the sexual orientation of the spouses served no rational purpose, including an interest in “responsible procreation” or, as the government primarily asserted, an interest in maintaining the status quo pending political resolution of the national controversy over same-sex marriage. That case is now before the First Circuit.

Meanwhile, in two cases recently filed in district courts within the Second Circuit, Pedersen v. OPM and Windsor v. United States, the Obama Administration announced in February that it would not defend DOMA. The U.S. House, however, has since decided to step in and defend the law. Between these two cases, the First Circuit case, and the Prop 8 case pending in the Ninth Circuit, 2011 is the year we will see major federal Court of Appeals rulings on the federal right to same-sex marriage.

Supreme Court Review

Hovering over all of this is the prospect of Supreme Court review. Conservative as a majority of the Court is, there is reason for optimism. In its last two major gay rights cases, the Court struck down discriminatory provisions. In Romer v. Evans , 517 U.S. 620 (1996), decided in 1996, the Court declared that a Colorado constitutional amendment barring the granting of legal protections to gays and lesbians (such as anti-discrimination rights) violated the federal Equal Protection Clause because it was not rationally related to a legitimate government purpose.

And in Lawrence v. Texas , 539 U.S. 556 (2003), decided in 2003, the Court held that a state statute criminalizing sodomy between people of the same sex violated the federal Due Process Clause because it violated the right of consenting adults to engage in intimate sexual activity. Most importantly, Justice Anthony Kennedy wrote Lawrence and Romer, and he remains the fifth vote on same-sex marriage.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union and an adjunct professor in the Civil Rights Clinic at New York University School of Law. He can be reached at [email protected] article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.