With last week’s back-to-back opinions on single-sex marriage from the New Mexico Supreme Court and a federal court in Utah, the setting for a final determination of the constitutional status of both single-sex marriage, and sexual orientation in general, under the Equal Protection Clause of the Constitution appears to be coming into place. If trends continue as they have been in the next two or three years, I think that by the time the Utah case reaches the Supreme Court, it will be very likely that the Court will then be ready to rule that states must recognize single-sex marriage. The probable reasoning for the ruling, however, may be a determination that sexual orientation should be treated with similarly to gender in analyzing the equal protection requirements of both the federal and New Mexico constitutions, which was the basis of the New Mexico ruling.
Until last week, New Mexico was the last state not to take an unambiguous position whether it did or did not recognize single sex marriage. Conversely, Utah has taken a very strong stance toward allowing only opposite-sex marriage. Two sets of suits, one asking for clarification of New Mexico law and the other challenging the constitutionality of Utah’s law, were decided on successive days last week, and in both cases the courts ruled in favor of single-sex marriage, but for different reasons.
The New Mexico Case
In New Mexico, the county clerks took different stances on whether they were required to license single-sex marriages. After one clerk took the lead in August 2013, several counties began issuing licenses. Others did not, or indicated that they would wait for a court to rule on the question. A series of suits in various counties resulted. After a trial court ruled that licenses should be issued, the various county clerks asked the New Mexico Supreme Court to take up the case under its power to supervise the state court system, and the Supreme Court agreed. This fast-tracked the cases for a decision.
The court first ruled that although the licensing law did not limit marriage to opposite-sex couples, the other laws regulating marriage and divorce often referred to marriage in terms indicating that the intent was to allow only opposite-sex marriages. As a result, the court proceeded to review the question under the New Mexico state constitution.
Under the Equal Protection Clause of the New Mexico constitution, classifications between groups in application of the law are decided by first deciding what level of review applies to a particular classification, either based on the nature of the classification or the nature of the rights and benefits at issue. This is similar to the federal analysis. Also similar to the federal scheme, New Mexico recognizes three levels of review for equal protection analysis; strict scrutiny, intermediate review, and rational basis review. Unlike the federal analysis, however, New Mexico considers gender-based classifications to be subject to strict scrutiny because of a history of discrimination against women and because New Mexico has an Equal Rights Amendment in its state constitution. Federal cases review gender-based classifications under the intermediate standard.
The court decided that the New Mexico Equal Rights Amendment did not apply to sexual orientation, but it decided that sexual orientation had historically been a basis for discrimination that had not been overcome by recent political success. As a result, it analyzed the constitutionality of recognizing only opposite-sex marriage under the intermediate level of scrutiny, which is the level that applies to gender under federal law without a federal Equal Rights Amendment.
Applying intermediate scrutiny involves two steps. First, the government has to show that the classification is substantially related to an important government interest. Second, that interest is balanced against the burdens placed on the affected class. The court reviewed three proposed governmental interests: procreation, child rearing, and discouraging divorce, and found that recognizing single-sex marriage was not sufficiently related to any of them. It also found that child rearing would be inhibited by excluding marital rights to single-sex couples.
The court did not decide the second argument proposed under the equal protection argument, whether marriage is a fundamental right. If it had decided that marriage was a fundamental right, it would have applied strict scrutiny. Because intermediate scrutiny was enough to rule that single-sex marriage was constitutionally required, it didn’t need to answer the fundamental right question.
The New Mexico case provides an analytical road map for the Supreme Court to copy if it decides in a future case to rule that single-sex marriage is required by the Constitution. In addition, by not answering the question of whether marriage is a fundamental right, it sidesteps the question of whether single-sex marriage would lead to recognition of multiple-party marriage.
The Utah Decision
Utah’s marriage law has prohibited single-sex marriage since 1977. In 2004, the legislature placed a single-sex marriage constitutional amendment on the ballot, which passed.
Two single-sex couples applied for marriage licenses and were refused, then sued in federal court for a ruling that the Utah law and constitutional amendment were unconstitutional under the United States Constitution. A third couple married in Iowa and sued for recognition of their marriage in Utah.
The court first looked at the Supreme Court’s ruling earlier this year that the section of the Defense of Marriage Act prohibiting federal recognition of single-sex marriages was unconstitutional. In that case, the Supreme Court strongly indicated that it would defer to state decisions regarding the definition of marriage, but it also made strong statements that the Defense of Marriage Act was discriminatory in intent. As a result, the court decided that it needed to review whether the Utah law and constitution did violate the United States Constitution.
After ruling that a 1972 Supreme Court case deciding that single-sex marriage did not have federal constitutional implications because of subsequent developments in the law, the court proceeded to rule on the case.
The first question addressed by the court was whether marriage was a fundamental right that could not be curtailed. After reviewing a series of Supreme Court cases going back to 1888, it decided that marriage, both by itself and in relation to privacy and association, was a fundamental right. It then took a step that several state courts have not been willing to take: the right to marry was not limited to the right to marry a person of the opposite sex because gays cannot form the necessary intimacy with a person of the opposite sex. Significantly, the court noted that single-sex marriage was a question of access to an existing right and not creation of a new right.
After finding a fundamental right, the court noted that, except for the fact that their relationships were single-sex, the plaintiffs met all of the other significant policy objectives of marriage in Utah, including the formation of exclusive relationships and capacity to raise children. The court rejected procreation as a relevant factor because opposite-sex marriages were not limited to partners who could have children. It also ruled that the historical definition of marriage was not a sufficient reason to prohibit single-sex marriage.
Because the court held that marriage was a fundamental right, it analyzed the constitutionality of prohibiting single-sex marriage by strict scrutiny. To survive strict scrutiny, a restriction must be narrowly tailored to serve a fundamental governmental interest. The kind of restrictions that survive strict scrutiny, when applied to marriage, include age, mental capacity to form the necessary relationship, or as punishment as part of a life sentence. The court found that single-sex couples were not similar to any of these restrictions. As a result, partially for reasons discussed in the next part of its ruling, it held that limiting marriage to opposite-sex couples violated the plaintiffs’ due process rights.
The court did not stop there. Probably because it expected an appeal, the court also ruled on the equal protection argument. Because marriage was a fundamental right, it applied strict scrutiny, but it also ruled that even if marriage was not a fundamental right, limiting marriage to opposite-sex couples could not be upheld under rational basis review, the lowest of the three usual standards of review.
In a rational basis review, all the government need show is a rational relationship to any permissible government interest. Only in very rare cases will a classification fail a rational basis review. Utah proposed procreation and child-rearing as relevant interests, but the court found that it did not show how denying marriage to single-sex couples would be related to these policies. Importantly, the court emphasized that the question was not whether allowing opposite-sex couples to marry was related to the interests. A third interest proposed by Utah was the need to proceed with caution in expanding rights. The court ruled that this was a meaningless argument, in that it essentially was an advancement of a negative attitude toward gays, and that in any event the record in states that had adopted single-sex marriage showed that opposite-sex marriage rates were not affected. A final interest proposed was preservation of the historical definition of marriage. The court ruled this was not a sufficient interest, relying on the Supreme Court’s ruling in the case holding laws against interracial marriages unconstitutional.
I am not convinced that the Supreme Court is necessarily ready to hod that the single-sex/opposite-sex marriage classification will fail a rational basis review. At least three Justices appear to be implacably opposed to single-sex marriage, Chief Justice Roberts appears to be leaning against it, and Justice Kennedy is probably inclined to leave the issue to state determination in most cases unless he finds a serious constitutional question. That said, the record in the passing of the Utah constitutional amendment indicates a similar intent to discriminate as was found in the case involving the Defense of Marriage Act, in which Justice Kennedy wrote the opinion, so I think he may be willing to find that intermediate scrutiny would not be met.
That said, one of the reasons the Supreme Court did not go further in the Defense of Marriage Act case was that the political issue did not appear to be settled, and the Court appears to be ware of making a significant constitutional ruling ahead of public opinion. Since that ruling, however, four states have enacted single-sex marriage laws, the governor of New Jersey chose not to appeal a lower court ruling on the question, and the New Mexico court has issued its ruling. Oregon may prove to be significant in future political developments. An initiative to repeal Oregon’s constitutional amendment against single-sex marriage is likely to qualify for the 2014 ballot, and if it passes, that will be the first repeal of such an amendment. At that point, I think the Court may consider public opinion to have shifted enough to justify addressing the issue squarely.
Unlike most of my articles, I do not have any suggestions how to address anyone’s potential situations. Instead, watch the news for future developments.