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Times They are a Changing?

Not too long ago, I was talking to a friend of mine in Harrisburg who is probably the leading Republican lobbyist in the state capitol. I have known him for a long time. In a recent conversation, he had the following to say: “Gay and lesbian rights are the 1960’s civil rights of the present. All the young Republicans are clearly on board with this change.” The times they have a changed.

Many were outraged by the United States Supreme Court decision in United States v. Windsor, 133 S.Ct. 2675 (2013) and its companion case Hollingsworth v. Perry, 133 S.Ct. 2652 (2013). Hollingsworth addressed who had a right to bring claims with respect to gay marriage but others believed that the ruling was merely a dodge. Chief Justice Roberts delivered the opinion of the court in Hollingsworth. Roberts was joined by fellow conservatives Scalia, as well as more liberally inclined members Ginsburg, Breyer and Kagan. The so-called swing vote, Justice Kennedy, filed a dissenting opinion in which he was joined by two members of the right wing, Thomas and Alito, and one member of the left side, Sotomayor. What an odd admixture of bed fellows.

Roberts concisely stated the issue in Hollingsworth as being whether the Equal Protection Clause prohibits the State of California from defining marriage as a union of a man and a woman. The wording of Roberts’ introduction suggested he wrote it to explain to the public why every serious political issue is not necessarily a judicial one as well.

Two same sex couples, who wished to marry, filed suit in federal court challenging California Proposition 8 under the Due Process and Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution. Proposition 8 created an exception to the state constitutional rights otherwise guaranteed to same-sex couples. Proposition 8 reserved the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, although granting to same-sex couples the same legal rights as opposite-sex couples.

The question not addressed by this Court was whether the grand language of the Fourteenth Amendment, incorporating as it does, the Equal Protection Clause, extends to relationships never imagined by the Founders of this Republic. At the time this nation was put together from an assortment of colonies, same-sex relationships were considered sodomy, blasphemy, and criminally punishable.

When I came to Williamsport, Pennsylvania, to work for the Honorable Malcolm Muir as a Law Clerk, the first case I was given to work on was U.S. v. Brewer. Mr. Brewer had been represented by well-respected criminal defense lawyer Ron Travis. Mr. Travis’s client was an inmate at the Lewisburg Penitentiary who had sex with his same-sex partner cellmate. The government claimed that the sex was involuntary. The jury acquitted Mr. Brewer of involuntary sex but found him guilty of consensual sexual intercourse. Travis filed a motion to throw out the verdict, claiming that a criminal conviction for voluntary same-sexual conduct was an invasion of privacy and otherwise unconstitutional.

Judge Muir said to me: “You are a bright, young, recent Georgetown graduate who loves writing treatises and law review articles; give me a good memo on what you think.” Muir then proceeded to tell me that he would not be opposed to finding the conviction unconstitutional. After researching the matter, I came to the conclusion that there were indeed serious privacy issues in criminally punishing consensual sex between members of the same gender, but that in the context of the prison, officials could prohibit such conduct because it would oftentimes be difficult to know when the sex was consensual and when it was forced. Judge Muir agreed with me and refused to throw out the conviction. United States v. Brewer, 363 F.Supp. 606 (M.D. Pa. 1973), United States v. Brewer, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 768 (May 13, 1974) (cert denied). Ron Travis was way ahead of his time.

Was Hollingsworth a dodge by the court? The federal district court declared Proposition 8 unconstitutional in banning the designation “marriage” between same-sex couples and state officials chose not to appeal. The same-sex couples had won. The United States Supreme Court found that in such a context, there was no case or controversy to be decided. The court was correct. It could very well be that the proponents of same-sex marriage on the bench were concerned that there was not a majority to find that states could not prohibit same-sex marriage and therefore chose to join Justice Roberts in simply not addressing the issue.

U.S. v. Windsor was a decision which would command the vote of “swing” Kennedy. Kennedy delivered the opinion in which Ginsburg, Breyer, Sotomayor, and Kagan joined. This was clearly a victory of liberals over conservatives. Roberts filed a dissent, which Thomas and Alito joined, in part.

Two New York residents married in a lawful ceremony in 2007. One of the members of the couple died in 2009, leaving her estate to Windsor. Windsor claimed a tax exemption for surviving spouse. She was barred from the benefit under federal law, the Defense of Marriage Act, which excluded a same-sex partner from the definition of “spouse.”

Most constitutional authorities believe that the question in Windsor would be whether the federal government was prohibited, on a state’s rights basis, from infringing on state sovereignty by defining marriage differently than the state did. A tax refund case thus turned into one of the most debated decisions in the public domain. Again, the “standing” issue, which is in Article III, was raised here; however, the dispute was truly live and required adjudication. The executives’ failure to defend the constitutionality of the act of Congress did create a procedural dilemma. The Court noted the thorny separation of powers issue when the legislature passes the statute, the president signs it, and then the executive refuses to enforce the will of the legislature, in effect nullifying the enactment on his own initiative and without any further determination from the Court. The majority, more or less, excused the President by stating that he made a principled decision that the statute was unconstitutional and therefore he could not enforce it. The Justices questioned the integrity of a political process whereby the executive would be able to punt to the judicial forum rather than making his case to Congress to amend or repeal the statute. President Obama simply could have gone to the legislature and asked them to repeal the Defensive Marriage Act, but instead he refused to enforce it thus placing the problem with the courts. The majority of the Justices were willing to engage the issue because they have found the case “not routine.” The Court in effect ruled that while the President might be “gutless” and even acting unconstitutionally himself, the court would not walk away from its responsibilities.

Kennedy’s lengthy and thoughtful opinion noted the allocation of domestic relations matters to the states throughout United States history. “The significance of state responsibilities for the definition and regulation if marriage dates to the Nation’s beginning.” At 2691. The states have a right to define marriage as they see fit. On the other hand, the federal government has the right to utilize state-defined classes for its own lawful purposes such as imposing restrictions in benefits. The question is whether the federal government can intrude upon the court’s definition of the Fifth Amendment. New York State determined that same-sex couples could marry, but DOMA, according to the majority of the court, sought to “injure” the very class New York seeks to protect.” At 2693. By so doing, Justice Kennedy wrote that New York State violated basic due process and equal protection principles applicable to the Federal Government. The Court, rather than making its decision on a simple state’s rights basis, found a violation of the Federal Constitutional protections by the federal government ignoring the decision New York State made to permit same-sex couples to marry. “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter the same-sex marriages made lawful by the unquestioned authority of the States.” Id.

The Court vacillated between arguing that DOMA intruded upon the state sovereign power as opposed to finding that DOMA trounced upon equal protection and due process principles. The Court recognized that DOMA’s intention was to tell same-sex couples “and all the world” that their otherwise “valid marriages are unworthy of federal recognition.” That is quite correct in terms of the purpose of DOMA. In discussing the way that DOMA would affect same sex couples and children they raise, the Court found such a federal repudiation of same-sex marriage unacceptable.

The more difficult analysis was tying this separate unfair status into existing constitutional precepts. The Fifth Amendment Due Process Clause prohibits denying to any person equal protection of the laws. With no reasoning, the Court concluded that the federal statute is in violation of the Fifth Amendment because it serves “no legitimate purpose” in connection with those whom the state is attempting to protect “in parenthood indignity.”

In the past, it has been difficult to have a law declared unconstitutional on due process grounds because it “serves no legitimate purpose” or treats people “unequally.” Those standards have been extremely high in the past and the question is whether the Court lowered the scrutiny permitting a due process or equal protection clause challenged or whether same-sex marriages are a case so special that traditional analysis does not apply.

When the Court decided Bush v. Gore, prohibiting Florida from performing a recount of votes even though Al Gore had won the popular election, the court made clear that this was a one-time case that would not be repeated. In other words, the due process and equal protection clause placing George Bush in office would be uniquely applied in order to assure stability of government. The majority of the court advises that Bush v. Gore was in effect an aberration for special circumstances which should not be thought of as changing classic due process and equal protection analysis.

For serious constitutional lawyers, we wonder whether U.S. v. Windsor effectuates a new definition of when a law will be held unconstitutional under due process and equal protection analysis or simply whether the compelling nature of human relationships is such that the Court simply could not let the federal government intrude upon a state determination to permit same-sex marriage in this case only. Only the future will portend whether the times are a changing or whether they have changed.

Needless to say, the dissenters in U.S. v. Windsor pointed out the lack of analysis that we would normally expect to read in a substantive due process challenge. The dissent of Justice Scalia is sadly sarcastic and bitter.

Some might conclude that this loaf could have used awhile longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “bare…desire to harm” couples in same-sex marriages. At 2707.

Justice Alito was correct to write that the Court was unwilling to face head-on the question as to whether it was changing due process or equal protection analysis or if, like Bush v. Gore, Windsor was a one-time unique exception case. Constitutional lawyers would like to know the answer to that, and undoubtedly will find out in future years.

Clifford A. Rieders, Esquire
Rieders, Travis, Humphrey,
Waters & Dohrmann
161 West Third Street
Williamsport , PA 17701
(570) 323-8711 (telephone)
(570) 323-4192 (facsimile)

Cliff Rieders, who practices law in Williamsport, is Past President of the Pennsylvania Trial Lawyers Association and a member of the Pennsylvania Patient Safety Authority. None of the opinions expressed necessarily represent the views of these organizations.

Our Legal Team

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