By Stephen Bergstein
When the New York State Senate voted to legalize same-sex marriage on June 24, 2011, it became the largest state in the country to recognize marriage equality. The vote confirmed that the tide is turning in favor of same-sex marriages, including in liberal New York, where two years ago it was overwhelmingly rejected by the State Legislature. While the recent turn of events is cause for celebration, the irony is that this vote did not have to take place at all. It happened because the New York courts failed gays and lesbians in their quest for marriage equality.
Civil rights should not be up for a majority vote. But that’s what happened in Albany, when the State Legislature cobbled together enough votes to override the religious and moral objections raised by Republicans who mostly voted against the bill. Prior to this vote, courts had been taking up gay rights issues for over 20 years, with mixed results. While the conservative Supreme Court is slowly coming around on these issues, the highly-regarded New York Court of Appeals went out of its way to avoid recognizing same-sex marriages, forcing the State Legislature to take up the issue.
Bowers v. Hardwick: Same-Sex Prosecution in Georgia
The Supreme Court did not take up a case involving gay rights until 1986. The issue in Bowers v. Hardwick was whether the state of Georgia could criminalize consensual homosexual sex. In a 6-3 ruling, the Court said that these sexual relationships were not protected by the constitutional right to privacy, which only protected heterosexual relationships.
Justice Byron White framed the issue in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.” In making reference to the long practice in many states to criminalize this sexual behavior, Justice White answered the question by asking it. But this was not an easy case. For one thing, the Eleventh Circuit Court of Appeals struck down the anti-sodomy law under the constitutional right to privacy. Moreover, although the Constitution says nothing about gay rights or even the right to privacy, prior Supreme Court rulings had extended privacy rights to the sort of private, heterosexual conduct that compared with the sexual and personal behavior at issue in Bowers, including contraception, child-rearing, marriage and family relationships in general.
The six justice majority in Bowers was dismissive of the plaintiff’s claims. In addition to repeatedly referring to the sexual behavior as “sodomy,” a word that carries more negative connotations than “same-sex relationships” or “private sexual behavior,” the Court stated: “Proscriptions against that conduct have ancient roots.” Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy and, today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.
The Court also used the logical fallacy of the slippery slope, stating, “If [plaintiff’s] submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.” Taking things further, Chief Justice Warren Burger stated in his concurring opinion that “[d]ecisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards.... To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”
The irony of Bowers is that one of the Justices who voted with the majority in rejecting the plaintiff’s claims was Justice Lewis Powell, who told one of his law clerks at the time that he did not know anyone who was gay. In fact, the law clerk himself was gay. In retirement, Powell publicly stated that he regretted his vote in Bowers.
Romer v. Evans: Striking Down Anti-Gay Bias In Colorado
Even if a Justice later regrets his or her vote, the precedent stands until the Supreme Court decides to overturn it. The Court rarely overturns its precedents and Bowers remained good law for years. In the meantime, as the composition of the Supreme Court changed, younger Justices slowly replaced their older brethren. If conventional wisdom holds that the younger generation is more open–minded about racial and sexual equality than its predecessors, the same may be true of Supreme Court Justices. In 1996, the Court struck down Amendment 2 to the Colorado Constitution, which made it illegal for the government to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” Amendment 2 was enacted under a public referendum. Gays and lesbians in Colorado no longer had any civil rights.
Although the Supreme Court in 1996 had a conservative majority, the Court in Romer v. Evans ruled 6-3 that Colorado’s Amendment 2 violated the Equal Protection Clause of the U.S. Constitution for several reasons. First, “it identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.” In addition, Justice Kennedy reasoned, “If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare...desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” The Court majority was essentially ruling that the public cannot pass hateful laws intended to disadvantage a particular social group.
Justice Kennedy is a Reagan-appointed Republican who often sides with his fellow conservatives on the Court on other issues. But he could not abide the implications of Amendment 2 and its effect on gays and lesbians. In striking down Amendment 2, Justice Kennedy easily rejected conservative Justice Antonin Scalia’s histrionic dissent, which referenced Bowers v. Hardwick in arguing, “If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct.” Known for his acerbic writing style, Justice Scalia further stated, “The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of ‘animus’ or ‘animosity’ toward homosexuality, as though that has been established as un-American. Of course, it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.” The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons—for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homo- sexual conduct—that is, it prohibits favored status for homosexuality.
Lawrence v. Texas: Overruling Bowers
By 2003, public attitudes about gay and lesbian rights had further evolved. That year, writing for a 6-3 majority, Justice Kennedy put Bowers to rest, ruling in Lawrence v. Texas that the Constitution prohibited the State of Texas from making it a crime for people to engage in homosexual conduct. Only 17 years after the Supreme Court had issued the Bowers decision, this time around, the Court held that Bowers was wrongly decided and poorly-reasoned.
Justice Kennedy stated, “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”
This was music to the ears of civil libertarians, but not to Justice Scalia, who revived his emotionally-charged dissent from Romer v. Evans to further lambaste the Court majority for caving in to some kind of powerful homosexual lobby: “Today’s opinion is the product of a Court, which is the product of a law profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.
“One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is ‘an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.’ It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
Although the states cannot outlaw homosexual conduct, Lawrence v. Texas was not the final word on gay and lesbian rights. It remains legal under federal law to discriminate against employees because of their sexual orientation, as efforts to expand Title VII of the Civil Rights Act of 1964 beyond protections against racial, gender, and religious discrimination have failed. The other frontier was same-sex marriage, which was barely a blip on the horizon when I was in law school in the early 1990s. Yet, this movement gained steam over the last decade, as mayors from large and small municipalities began officiating same-sex marriages. That a Green Party mayor in his 20s took this initiative was no surprise. It was also no surprise that a much older District Attorney prosecuted the young mayor for violating the law in officiating these marriages. The next generation always takes things a step forward from its predecessors, who sometimes hold firm on yesterday’s values.
Hernandez v. Robles: Blue-State Justice In New York?
Yet, while New York is a blue state that consistently elects Democratic Party candidates, its Court of Appeals in 2006 rejected a state constitutional right to same-sex marriage, engaging in contorted legal reasoning that re-framed how courts traditionally analyze the right-to-marry cases. As the Court of Appeals is the highest court in New York, this decision closed the door on same-sex marriages for another five years.
When the Supreme Court rules on marriage cases under the Constitution, it frames the legal standard in a precise way. As the Constitution is written in broad terms, few legal problems can be resolved solely by reading the relevant constitutional provision. The Supreme Court has therefore devised multi-part balancing tests that allow it to apply the Constitution in light of competing social, political and legal interests.
Here’s the general framework for courts to apply in deciding whether to strike down marriage restrictions. Under the Constitution, there are certain “fundamental” rights, like the right to travel, the right to privacy, the right to raise your children as you see fit, and the right to marry. The language we usually see in these court rulings is that a fundamental right is something that is “deeply rooted in our tradition.” In Loving v. Virginia, the Supreme Court in 1967 held that it was illegal for the Commonwealth of Virginia to prohibit interrracial marriage. In addition to striking down the anti-miscegenation law on the basis that racial discrimination violates the Constitution, the Court further stated that the law arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. By the late 1970s, rounding up the Court’s marriage jurisprudence, the Supreme Court flatly stated,“The right to marry is of fundamental importance for all individuals.” For this reason, even inmates can get married.
If a right is “fundamental” under the Constitution, it cannot be abridged or restricted without a “compelling” reason. Few compelling reasons can overcome the existence of a fundamental right. Under this framework, if two consenting adults wish to marry, the state cannot prohibit them from doing so absent a compelling reason, i.e., to prevent minors or family members from marrying or to prohibit bigamy.
The New York courts took up same-sex marriage in the mid-2000s. In 2005, a New York City trial court in Hernandez v. Robles followed the traditional framework in noting that “the Supreme Court has ‘long recognized that freedom of personal choice in matters of marriage and family is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.’” Under the “compelling interest test,” the trial court further ruled that the New York Constitution protected same-sex marriage because the state could not identify any compelling reason to prohibit it. It is not a compelling reason under the Constitution to argue that, “We’ve always done it this way.” Nor are deeply- rooted religious concerns a compelling interest. Once the court found that marriage between consenting adults was a fundamental right, its final conclusion in favor of same-sex marriage was a fait accompli; the government is rarely able to justify the abridgment of a fundamental right.
That ruling was overturned by the New York Court of Appeals, which held that the State Constitution does not recognize a right to same-sex marriage. The state’s highest court ruled that, while “the right to marry is unquestionably a fundamental right,” same-sex marriage was not a fundamental right because it is not “deeply rooted in this nation’s history and tradition.” Courts invoke language about this nation’s history and tradition in determining whether an activity or entitlement is a fundamental right that cannot be abridged without a compelling interest. Yet, since marriage itself is a fundamental right, the Court of Appeals engaged in a slight-of-hand in further breaking down the legal analysis to include a sub-question: whether same-sex marriage—as opposed to marriage between two consenting adults—is part of our national tradition. In dissent, Chief Judge Judith Kaye saw through the majority’s tactic, noting that “fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. Indeed, in recasting plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a ‘new’ right to same- sex marriage, the Court misapprehends the nature of the liberty interest at issue.”
The irony is that, as the New York Court of Appeals framed the issue, the Supreme Court’s interracial marriage decision in 1967 would have come out the other way, as interracial unions were not deeply rooted in American tradition, either. Moreover, under the New York Court of Appeals’ narrow inquiry, the Supreme Court’s prior cases allowing prison inmates to marry also would have come out the other way, for the same reason, as there is no national tradition allowing inmates to marry. In rejecting the right to same-sex marriage, the New York Court of Appeals moved the goalposts to achieve the outcome it wanted, semi–apologizing for its result by stating that this issue is best left for the State Legislature.
In ruling as it did, the New York Court of Appeals only required the State to justify its prohibition by advancing a “rational basis.” This makes it much easier for the government to defend its policy, since “rational basis” in constitutional law means any conceivable purpose that the legislature might have considered in passing the law. The government nearly always wins under the rational basis test. Here is how the New York Court of Appeals found it rational for New York to prohibit same-sex marriages: “The Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite- sex couples who make a solemn, long-term commitment to each other.
“The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.
“There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule—some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes—but the Legislature could find that the general rule will usually hold.”
In other words, reckless sex between heterosexual couples can produce children. The State wants to prevent children from growing up without a mother and father, so we induce the lovers to get married to save the children. The State can deny the same marriage right to gays and lesbians because, although they can adopt children, they cannot “naturally” reproduce. The State Legislature can thus distinguish between same-sex marriage and heterosexual marriage. And, the Court ruled, the Legislature can rationally decide that children are better off with a mother and father rather than a father and father.
The same-sex marriage decision by the New York Court of Appeals was not a proud moment. In any event, it did shift the debate over to elected representatives and an argument could be made that this important issue was now before New Yorkers in a more democratic posture. But that argument assumes that constitutional rights should be up for a popular vote. They are not, which is why constitutional values are counter-majoritarian and rightly so, in order to prevent the majority from crushing the minority out of discriminatory animus. There is nothing wrong with a court altering the social structure if that result is compelled by constitutional values. In 1954, the Supreme Court struck down racially-segregated schools in the south. No one suggests that the state legislatures in, say Arkansas or Alabama, were going to mandate equal rights for schoolchildren on their own. Yet, no one suggests that the Supreme Court in Brown v. Board of Education improperly usurped the will of the people.
The New York State Legislature eventually took up the issue of same-sex marriage, finally recognizing marriage equality in June 2011. While Hernandez v. Robles is not as hateful as Justice Scalia’s dissenting opinions in Romer v. Evans or Lawrence v. Texas, it reflected excessive caution on the part of some New York judges to fairly apply constitutional principles to knock down discriminatory barriers. While activists celebrated the legislature’s vote in June 2011, lost in the shuffle was the recognition that the Court of Appeals’ questionable ruling in Hernandez v. Robles is now a dead-letter.
Stephen Bergstein is a lawyer in upstate New York. He writes about civil rights issues at www.secondcircuitcivilrights.blogspot.com.