Transcript Same-Sex Marriage

Professor Jennifer Wriggins, University
of Maine School of Law
Continuing Legal Education Program
Maine Attorney General’s office, July 30,
2014
 Structure:
 Bostic
v. Rainey 4th Circuit (July 28, 2014)
 Background legal history on efforts of
mixed race couples to marry
 Legal history on efforts of same-sex
couples to marry in five phases
 Current issues
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Perez v. Lippold, 198 P.2d 78(CA 1948)
Loving v. Virginia (1967)
Trial court: “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.”
Supreme Court:
“These statutes also deprive the Lovings of liberty without
due process of law . . . The freedom to marry has long
been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men.”
“There can be no doubt that restricting the freedom to
marry solely because of racial classifications violates the
central meaning of the Equal Protection Clause.”
 1971
Baker v. Nelson. 191 N.W.2d 185, 187
(Minn.).
 1986 Bowers v. Hardwick
 1993 Baehr v. Lewin (HI)-restriction against
same-sex couple marriage is a gender-based
law to which strict scrutiny applies. Remand
for trial.
 Response nationally and in Hawaii.
 1996 Evans v. Romer
 1996 Federal Defense of Marriage Act
 1997 Maine’s ‘Act to Protect Traditional
Marriage and Prohibit Same-Sex Marriages’
Defense of Marriage Act 1996
“Civil laws that permit only heterosexual marriage
reflect and honor a collective moral judgment about
human sexuality. This judgment entails both moral
disapproval of homosexuality, and a moral conviction
that heterosexuality better comports with traditional
(especially Judeo-Christian) morality . . . `[S]ame-sex
marriage, if sanctified by the law, if approved by the law,
legitimates a public union, a legal status that most people
. . . feel ought to be illegitimate. . . . And in so doing it
trivializes the legitimate status of marriage and demeans
it by putting a stamp of approval . . . on a union that
many people . . . think is immoral.’”
1999, Baker v. Vermont 744 A.2d 864
State constitution common benefits clause
"[T]o acknowledge plaintiffs as Vermonters who seek
nothing more, nor less, than legal protection and
security for their avowed commitment to an intimate
and lasting human relationship is simply, when all is
said and done, a recognition of our common
humanity.” Chief Justice Jeffrey Amestoy
 Court sent issue to legislature for remedy, civil unions
resulted.
 2003, Goodridge v. Massachusetts (2003)
 State constitution, Art. I, sec. 1 and other provisions
 2003 Lawrence v. Texas, SCt strikes down sodomy
law, overrules Bowers v. Hardwick (1986)
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Marriage is a vital social institution. 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 return it imposes weighty legal, financial, and
social obligations. The question before us is whether, consistent with
the Massachusetts Constitution, the Commonwealth may deny the
protections, benefits, and obligations conferred by civil marriage to
two individuals of the same sex who wish to marry. We conclude that
it may not. The Massachusetts Constitution affirms the dignity
and equality of all individuals. It forbids the creation of secondclass citizens. In reaching our conclusion we have given full
deference to the arguments made by the Commonwealth. But it
has failed to identify any constitutionally adequate reason for
denying civil marriage to same-sex couples.”
 Myriad
Unsuccesful Efforts to overturn
Goodridge, Mass. starts to marry out of
staters
 Civil union laws enacted, State law bans
pass, state constitution bans passed.
 Unsuccessful court challenges in NY, MD,
elsewhere. California turmoil.
 2008 Kerrigan v. Ct. 957 CT 407 (second
marriage state, court held civil union
insufficient remedy)
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2009 Vermont and NH legislature legalizes ss marriage
2009 Maine legislature legalizes ss marriage, voters repeal
it.
2009 (March) Gill v. OPM, filed in federal court, decided
2010, 682 F.3d 1, the First Circuit held that section 3 of the
federal Defense of Marriage Act (DOMA) violated the
Constitution’s due process and equal protection guarantees.
2012 Maine voters pass same sex marriage
2012 Washington, MD pass marriage in legislature and at
ballot box
2012 Minnesota voters reject anti-marriage constitutional
amendment.
Windsor 133 S. Ct. 2675 (June 2013). The USSCt held the
same way as the First Circuit in Gill.
“DOMA instructs all federal officials, and indeed all
persons with whom same-sex couples interact,
including their own children, that their marriage is less
worthy than the marriages of others. The federal statute
is invalid, for no legitimate purpose overcomes the
purpose and effect to disparage and to injure those
whom the State, by its marriage laws, sought to protect
in personhood and dignity.
… This requires the Court to hold, as it now does, that
DOMA is unconstitutional as a deprivation of the liberty
of the person protected by the Fifth Amendment of the
Constitution.”
-- Majority Op. in Windsor
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“The Court’s ruling gives real meaning to the
Constitution’s promise of equal protection to all
members of our society, regardless of sexual
orientation. This decision impacts a broad array of
federal laws. At the President’s direction, the
Department of Justice will work expeditiously with
other Executive Branch agencies to implement the
Court’s decision. Despite this momentous victory, our
nation’s journey – towards equality, opportunity, and
justice for everyone in this country – is far from
over. Important, life-changing work remains before
us.” Attorney General Holder Statement on Windsor,
June 26, 2013
IRS, DHHS, DoL, DoD, DoJ,
DoS, DoEd, OPM:
• As a general rule, a marriage
of same-sex couple is valid if
it was entered into in a
domestic or foreign
jurisdiction whose laws
authorize the marriage of two
individuals of the same sex
even if the married couple
resides in a domestic or
foreign jurisdiction that
does not recognize the
validity of same-sex
couples’ marriages .
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
Department of Agriculture
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Department of Veteran’s Affairs
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Department of Defense
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Federal Elections Committee
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Department of Education
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Federal Retirement Thrift Investment
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Department of Energy
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Department of Health and Human Services  National Institute of Health
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Department of Homeland Security
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Railroad Retirement Board
 United States Citizenship and
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Office of Government Ethics
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Office of Personnel Management
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Social Security Administration
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U.S. Census Bureau
Immigration Service
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Department of Justice
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Department of Labor
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Department of State
Board
Department of the Treasury
 Internal Revenue Service
17
Federal court marriage litigation
pending prior to Windsor ruling18
Rough Count of Pending
Marriage Litigation as of
6/13/14
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 Fed. Courts
striking down state bans under
fed law
 Example from July 28, 2014, Bostic v. Rainey,
4th Cir. 2-1, Constitutionality under 14 A Due
process and equal protection of VA’s 2006
amendment and law banning same sex
marriage and any ‘legal status for
relationships of unmarried individuals that
intends to approximate the design, qualities,
significance, or effects of marriage.’
Majority –
Fundamental right to marry includes right of
individuals to marry someone of same sex
 Restrictions like Virginia’s are subject to strict
scrutiny; must be based on compelling state interest
(CSI) and be narrowly tailored to further that interest.
 Virginia’s 5 CSIs:
 1. federalism based on interest in maintaining control
over marriage within borders.
 2. history and tradition of opposite sex marriage
 3. protecting the institution of marriage
 4. encouraging responsible procreation
 5. promoting optimal childrearing environment.
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 Virginia’s
5 CSIs and court’s response:
1. federalism based on interest in
maintaining control over marriage within
borders.
 Federal constitution applies to family law.
 2. history
and tradition of opposite sex
marriage
 Not compelling; discriminatory tradition
not enough to justify more discrimination.
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3. protecting the institution of marriage, destabilizing, if not
link between procreation and marriage, bad for kids.
Not compelling.; Griswold and other cases valued marriage
distinct from children
4. encouraging responsible procreation; probably not
compelling but even if it is the means do not further the
interest.
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5. promoting optimal childrearing environment.
Evidence doesn’t support. Heightened scrutiny can’t
support a law based on overbroad generalizations (VMI,
Stanley v. Ill)
Plus no link between means and end.
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THEREFORE violates DP and EP, affirm DC SJ
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Issue is whether state’s decision not to recognize ss
marriage violates 14A.
Fundamental rights analysis requires Glucksberg inquiry; ss
marriage doesn’t meet Glucksberg criteria.
Rational basis scrutiny therefore applies; there are some
differences between ss and opp sex marriage that justify
different treatment; marriage is a subsidy to married couple
to encourage opposite sex couples to marry; which tends to
provide kids from unplanned pregnancy with a more stable
environment. Promotes correlation between biological order
and political order and satisfies rational basis scrutiny.
No heightened scrutiny under equal protection clause;
Windsor and Romer didn’t use it, Lawrence used rational
basis,
Law/amendment satisfy rational basis.
 1. What’s
next for SCt.
 2. Standard of review
 3. Implementation
 4. retroactivity, CT v. MA SCT cases
 5. Pres. Exec. Order; added sexual
orientation/gender identity
 6. ENDA in Congress