Abstract
In their jurisprudence on same-sex marriage, the U.S. Federal Courts have touched on almost all aspects of constitutionalism, combining issues of federalism (e.g., the Full Faith and Credit Clause, the Tenth Amendment, and State or Federal jurisdiction in marriage and family cases) and substantial variations of concepts such as equality, dignity, and the anti-discrimination principle. In this sense, same-sex marriage is a unique lens through which to examine the development of constitutional commitments. The struggle for same-sex marriage has now reached a new crucial stage, after the decisions of the U.S. Supreme Court in Hollingsworth v. Perry and, above all, United States v. Windsor. The U.S. Supreme Court ruled that Section 3 of DOMA—which, for the purposes of 1,000 federal laws and multitudes of official regulations, defines marriage as the union of one man and one woman only—violates the Fifth Amendment and is, therefore, unconstitutional. Even after the decisions of the Supreme Court, however, the issue will continue to be controversial and to animate the political and legal debate, especially with respect to the question of parenting and child rearing.
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Notes
- 1.
Bickel (1986), p. 133.
- 2.
Barsotti (2002).
- 3.
Similar considerations can be found in the brief of the petitioner. In order to emphasize the difference from the previous case of Stanley v. Georgia, which concerned the right to use obscene materials in the privacy of one’s home, the petitioner stated that: “homosexual sodomy as an act of sexual deviancy expresses no ideas. It is purely an unnatural means of satisfying an unnatural lust, which has been declared by Georgia to be morally wrong”. Richards (2009), p. 79, recalls that “the brief also argued (and is a very harsh and unpleasant argument) ‘the relationship of homosexual sodomy in the transmission of Acquired Immune Deficiency Syndrome (AIDS) and other diseases’”.
- 4.
Ibidem, pp. 88–89.
- 5.
Ibidem.
- 6.
Ibidem.
- 7.
See Tushnet (2005), p. 157: “Gays rightly heard overtones of homophobia in White’s opinion; the word facetious was particularly insensitive”, even though “Burger’s separate opinion was even worse”.
- 8.
Richards (2009), p. 113.
- 9.
Richards (2009), pp. 113–114.
- 10.
See the chapters by Crisafulli and Pustorino in this volume.
- 11.
Friedman (2009), p. 573.
- 12.
Commonwealth v. Wasson, 842 S. W 2d 487 (Ky. 1992).
- 13.
For an in-depth analysis of these cases, see Montalti (2007), pp. 115–117.
- 14.
Richards (2009), p. 120.
- 15.
Montalti (2007), p. 230.
- 16.
Richards (2009), p. 116.
- 17.
Baker v. Nelson, 191 N.W. 2d 185 (Minn. 1971).
- 18.
Baker v. Nelson, 409 U.S. 810 (1972). On this point, see Duncan (2006), pp. 30–31.
- 19.
Singer v. Hara, 522 P. 2d 1187 (Wash. Ct. App. 1974).
- 20.
Adams v. Howerton, 673 F. 2d 1036, 1038 (9th. Cir. 1980). See also Bowers, Dean v. District of Columbia, 653 A. 2d 307 (D.C. App. 1995): “we cannot overlook the fact that the Supreme Court has deemed marriage a fundamental right substantially because of its relationship to procreation”.
- 21.
See Wolfson (1994), p. 611.
- 22.
Montalti (2007).
- 23.
After Goodridge, another important ruling was that of the New Jersey Supreme Court in Lewis v. Harris (2006), where the Court held that limiting the access of opposite-sex couples to civil marriage violated the state constitution, but did not rule that the State should allow same-sex couples to marry. Moreover, in 2008 the California Supreme Court ruled in favor of same-sex marriage in case In re Marriage Cases. See Knauer (2008), p. 101.
- 24.
Montalti (2007), pp. 434–435.
- 25.
It is useful to remember that the Congress approved the DOMA by a large majority: 342-67 in the House of Representatives, and 85-14 in the Senate.
- 26.
On DOMA and the Baehr case, see Strasser (2011). It should be emphasized that DOMA was approved by a large majority: 342-67 votes in the House of Representatives and 85-14 in the Senate.
- 27.
See again Strasser (2011), passim.
- 28.
Solimine (2010), pp. 105–107.
- 29.
419 U.S. 393, 404 (1975).
- 30.
Among these, 17 states have particularly aggressive provisions that not only prohibit same-sex marriage, but also purport to prohibit all other forms of relationship recognition (Knauer 2008, p. 103). The only states without marriage restrictions are Massachusetts, New Jersey, New Mexico, New York, Rhode Island.
- 31.
In any case, there is no doubt that anti-marriage measures—some of which extremely hostile to same-sex relationships—were predominant: see Knauer (2008), p. 109.
- 32.
On this point, ibidem, p. 112, and Montalti (2007), p. 409.
- 33.
Simson (2010), p. 43.
- 34.
See Kramer (1997).
- 35.
“(I)t is horizontal because it primarily concerns the relations among the co-equal sovereign States of the Union” (Wardle 2010, p. 149).
- 36.
Jackson and Tushnet (1999), p. 193.
- 37.
296 U.S. 268, 277 (1935). See Strasser (2011), p. 89.
- 38.
See, again, Milwaukee County v. M.E. White Company.
- 39.
See Baker v. General Motors Corp., 522 U-S. 222, 232 (1998).
- 40.
See Pacific Employers Insurance Company v. Industrial Accident Commission, 306 U.S. 493, 591 (1939).
- 41.
See Baker v. General Motors Corp. and Sherrer v. Sherrer, 334 U.S. 343, 356 (1948), on divorce and marital status. See also Strasser (2011), pp. 89–90.
- 42.
Wardle (2010, pp. 1345 and 1353) emphasizes that the DOMA “is an architectural provision protecting the architecture of federalism” and “the constitutional allocation of authority to set public policy regarding recognition of same-sex marriage”, and that “it protects each State from aggressive Federal judges, and other governmental officials, who would use the supremacy of Federal law to force States to recognize same-sex marriage in their internal domestic relations laws”.
- 43.
In this regard, Strasser (2011, p. 197) notes that: “Marriage is a fundamental interest for right-to-travel purposes, and states have a heavy burden of justification when making citizens sacrifice their marriages as a price of migrating to the State. That right-to-travel guarantees are triggered when states force citizens seeking to immigrate to leave their marriages at the border does not somehow create National marriage law”.
- 44.
Wardle (2010), p. 149.
- 45.
Ibidem.
- 46.
Strasser (2011), p. 74.
- 47.
Wardle (2010, p. 177) notes that Section 3 has both federalism and separation of powers dimensions, which protect Congress “from aggressive federal judges and executive branch officials who may use their power to force the recognition of state-created same-sex marriages into federal programs, policies, laws, without congressional approval”.
- 48.
See Finnis (1980), p. 220.
- 49.
See Varnum v. Brien, 763 N.W. 2d 862, 907 (Iowa 2009).
- 50.
See Knauer (2008, p. 118): “this confusing and conflicting status of relationship recognition weighs heavily on same-sex couples, […] creates a level of uncertainty that complicates daily life in ways that opposite-sex couples need never consider”.
- 51.
374 F. Supp. 2d 861 (C.D. Cal. 2005).
- 52.
Duncan (2006), pp. 40–43.
- 53.
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005).
- 54.
See Wilson v. Ake, 354 F. Supp. 2d, 1302, where it is stated that DOMA was an appropriate exercise of Congress’ power to regulate conflicts between the laws of different States, and that holding otherwise would create “a license for a single State to create National policy”. The Federal District Court also rejected the argument that “Congress may only regulate what effect a law may have, it may not dictate that the law has no effect at all” (1303).
- 55.
In re Kandu, 315 B.R. 123 (Bankr. WD. Wash. 2004).
- 56.
Ibidem, p. 132.
- 57.
According to Strasser (2011, p. 147), “this lack of uniformity is unsurprising, both because the language in one State Constitution might differ from that of another and because, even where the language is the same, the jurisprudence in the respective states fleshing out the depth and breadth of the guarantees might differ”.
- 58.
Ibidem, p. 85.
- 59.
Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 397 (D. Mass. 2010), and Massachusetts v. U.S. Dep’t of Health and Human Servs., 698 F. Supp. 2d 234, 249 (D. Mass. 2010). The year before, two Federal courts of appeals had expressed strong doubts about the constitutionality of the DOMA. Chief Judge Kozinski, of the 9th. Circ., In re Golinsky (587 F. 3d 901, 903, 2009), expressed doubts about the possibility of identifying “legitimate governmental end” for the exclusion of same-sex spouses from the coverage of the Federal Employees Health Benefit Act (FEHBA); Judge Reinhardt, also from the 9th Circ., In re Levenson (560 F. 3d 1145, 1149, 2009), stated even more firmly that “the denial of benefits here cannot survive even rational basis review, the least searching form of constitutionality scrutiny”.
- 60.
According to Jack M. Balkin (quoted in Wardle 2010, p. 1347): “the credibility of the judgments was undermined for several reasons: the District Court, in an ‘Alice-in-wonderland’ judicial moment, brushed aside all differences between conjugal marriages and same-sex relationships; Judge Tauro was painfully unpersuasive in his attempt to ignore the long history of Federal preemption of State marriage law for purposes of Federal programs; and he desperately focused on ‘straw man’ equality arguments.”
- 61.
The Court of Appeals stated that: “In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded”.
- 62.
In particular, Judge Boudin’s ruling concluded that: “Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”
- 63.
See the decision written by Judge Boudin, p. 26, which also states that: “Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples […] or explain how denying benefit to same-sex couples will reinforce heterosexual marriage.”
- 64.
Ibidem, p. 25.
- 65.
Ibidem, p. 30.
- 66.
Dogliani (1982), p. 40.
- 67.
See also Diaz v. Brewer, 656 F. 3d 1008, 1014–1015 (Court of Appeals of the 9th Cir. 2011).
- 68.
Nussbaum (2010), p. 1.
- 69.
Tribe (2011), p. 1.
- 70.
- 71.
Justice O’Connor concurred with the majority opinion in Lawrence that the Texas criminal statute, which banned only gay/lesbian sexual acts, was unconstitutional, but she did not agree that a statute such as the Georgia ban in Bowers, equally applicable to heterosexual and homosexual forms of non-procreational sex, should be regarded as unconstitutional. For O’Connor, therefore, it was not necessary to reverse Bowers. On this point, see Friedman (2009), p. 339.
- 72.
Tribe (2008, p. 135) considers this conclusion “unusual (indeed, I think, unprecedented)”.
- 73.
D’Aloia (2003).
- 74.
Sunstein (2009), p. 55.
- 75.
Tushnet (2005), p. 157.
- 76.
And maybe only implicitly hinted at, as noted by Nejaime (2012, p. 1216), according to whom Kennedy’s rhetoric moved beyond “(private) same-sex sex and instead gestured toward the (potentially public) same-sex relationships that enact lesbian and gay identity […] thereby suggesting the way in which relationships are linked to the actualization of identity”. Nejaime also notes that: “Lawrence constitutes a crucial moment in the developing shift toward recognizing that unequal treatment of same-sex relationships is unconstitutional sexual orientation discrimination” (p. 1218). A connection between same-sex relationships and lesbian and gay equality is supported also by Strasser (2004) and Glazer (2011). The latter notes that: “it seems reasonable to argue that Lawrence paved the way for successful same-sex marriage decisions”.
- 77.
As observed by Richards (2009, p. 168), although “Lawrence held that gay/lesbian sex may not be criminalized, not that gay/lesbian relationships must be accorded marriage rights. Justice Scalia may nonetheless be right that grounding the holding of Lawrence in the right of constitutional privacy […] must have normative implications for the recognition of same-sex marriage”.
- 78.
Or “ferocious criticism”, according to Tribe (2008), p. 183. See also Friedman (2009), p. 338, who underlines that in his dissent, Scalia wrote that the decision was “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”.
- 79.
In fact, rather than being in favor of sodomy ban, Justice Thomas was persuaded that the legislator was entitled to decide whether to maintain it. On this point, see Tushnet (2005), p. 96.
- 80.
On this topic, see Bychkov Green (2011).
- 81.
Tribe (2008), p. 183.
- 82.
Ibidem, p. 189.
- 83.
On this case see Fisher (1988), pp. 139–140.
- 84.
Bork (2003), pp. 2–16.
- 85.
The question of whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection as applied to same-sex couples legally married under state law is also presented in the government’s petition for a writ of certiorari in United States Department of Health and Human Services v. Massachusetts (filed 3 July 2012), and in the government’s petition for a writ of certiorari before judgment in Office of Personnel management v. Golinski (filed same day).
- 86.
See In re Marriage cases, 183 P. 3d 384 (Cal. 2008).
- 87.
See Strauss v. Horton, 207 P. 3d 48 (Cal. 2009). It is interesting to note that the Court first found that gays and lesbians were the type of minority strict scrutiny was designed to protect and that strict scrutiny was the appropriate standard of review to apply to legislative classifications based on sexual orientation, but then ultimately held that Proposition 8 was unconstitutional under any standard of review, because proponents had failed to identify any rational basis for Proposition 8 in denying the right to marry to same-sex couples.
- 88.
On this case, see Conte (2012).
- 89.
U.S. Merits Brief (Windsor), p. 23. Concerning employment, the brief states that: “By the 1950s, based on Presidential and other directives, the federal government investigated its civilian employees for ‘sexual perversion,’ i.e., homosexuality. Until 1975, ‘[t]he regulations of the Civil Service Commission for many years ha[d] provided that […] immoral or notoriously disgraceful conduct, which includes homosexuality or other types of sex perversion, are sufficient grounds for denying appointment to a Government position or for the removal of a person from the Federal service” (p. 23). With regard to immigration, the brief noted that: “For decades, gay and lesbian noncitizens were categorically subject to exclusion from the United States on the ground that they were ‘persons of constitutional psychopathic inferiority,’ ‘mentally … defective,’ or sexually deviant” (p. 24). As for voter referenda: “Efforts to combat discrimination have engendered significant political backlash, as evidenced by a series of successful state and local ballot initiatives […] repealing anti-discrimination protections for gay and lesbian people” (p. 26). See also Wintermute (1995).
- 90.
U.S. Merits Brief (Windsor), pp. 27ff.
- 91.
U.S. Merits Brief, cit., p. 33.
- 92.
See Baker v. Carr, 369 U.S. 186, 266 (1962).
- 93.
See City of Richmond v. J.A. Croson, 488 U.S. 469, 493 (1989).
- 94.
570 U.S., 26 June 2013, p. 17.
- 95.
Ibidem, p. 8. Contra, see the dissent of Justice Kennedy (570 U.S., 2013, dissenting, p. 14), which sustain that “In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying…”.
- 96.
Ibidem, p. 2.
- 97.
See Lederman (2013).
- 98.
Ibidem, p. 17.
- 99.
Also the Supreme Court, in a sentence of the majority opinion (ibidem, p. 3), seems to highlight that the officials in charge of applying the Judge Walker’s injunction should be those “named as defendants” in the case.
- 100.
At present, the “marriage equality States” are: Connecticut, Delaware (where a new law took effect on 1 July 2013), Iowa, Maine, Maryland, Massachusetts, Minnesota (where a new law will take effect on 1 August 2013), New Hampshire, New York, Rhode Island (where a new law will take effect on 1 August 2013), Vermont, Washington, and District of Columbia. See Lederman (2013).
- 101.
Ibidem, p. 16.
- 102.
Ibidem, p. 21.
- 103.
Ibidem, p. 25.
- 104.
Ibidem, p. 22.
- 105.
Nussbaum (2010), pp. 1–2.
- 106.
Ibidem, p. 10.
- 107.
See Eskridge (1993), pp. 1419 and 1495.
- 108.
See also Novak (2010), p. 713.
- 109.
For an in-depth analysis, see Lee (2010), pp. 126–127.
- 110.
Nussbaum (2010), p. 679.
- 111.
For similar observations, see Novak (2010), p. 715.
- 112.
See, recently, X et al. V. Austria, n. 19010/07, 19th February 2013 on which see the chapters by Crisafulli and Pustorino in this volume.
- 113.
This distinction can be found also in Novak (2010), p. 718.
- 114.
Brief Administration, case Windsor, 42-43.
- 115.
Tribe (2011) states “in the end the Court must do its duty and recognize a right to same-sex marriage. There is no other way”.
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D’Aloia, A. (2014). From Gay Rights to Same-Sex Marriage: A Brief History Through the Jurisprudence of US Federal Courts. In: Gallo, D., Paladini, L., Pustorino, P. (eds) Same-Sex Couples before National, Supranational and International Jurisdictions. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-35434-2_3
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