Sunday, April 12, 2009

Gay Marriage - Coming to a State Near You

I live in California, a state that has recently passed an amendment to the state constitution banning marriage between same-sex couples. Proposition 8 was inspired by an earlier California Supreme Court ruling that a statute created by Proposition 22 outlawing same-sex marriage to be unconstitutional.

Last week Iowa took the first step down the same path when their Supreme Court overturned a ban on same-sex marriage citing equal protection. The DesMoines Register reported:

Basic fairness and constitutional equal protection were the linchpins of Friday’s historic Iowa Supreme Court ruling that overturned a 10-year-old ban on same-sex marriage and puts Iowa squarely in the center of the nation’s debate over gay rights.
I have often thought that an equal protection argument would be the way that same-sex marriage would become recognized in every state, and I still think that will turn out to be the case. I think that Supreme Court precedent involving interracial marriage is illustrative of what might happen with same-sex marriage.

The key case was Loving v. Virginia, in which the Court found that Virginia's anti-miscegenation law violated Due Process Clause and Equal Protection Clause. The court wrote in the decision:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
How close this passage reads to a possible ruling on same-sex marriage!

As to how a case might come about, I think that would be simple. Iowa, Massachusetts, Connecticut, and Vermont all recognize same-sex marriage. The United States does not. Couples married in these four states that move to another state may have cause to sue to force a state to recognize the marriage. They could also sue the United States to recognize the marriage. I am frankly surprised that this has not happened yet.

The argument I think would be simple: male-female married couples do not lose their married status by moving to another state, but a same-sex married couple does, violating both the Due Process Clause, and the Equal Protection Clause. I think that this would be a strong case.

If a same-sex married couple prevails in the Supreme Court, then every "defense of marriage" statue on the books would be swept away. And I think it is only a matter of time.

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