Archive for the ‘courts’ Category

Two women who were married to one another in Massachusetts are petitioning the Rhode Island State Supreme Court for the right to divorce one another in their home state of Rhode Island. Rhode Island currently neither bans same sex marriage nor allows it–the two women were able to marry because of a September 2006 ruling in MA which found that out of state same sex couples could marry in MA so long as the laws of their home state don’t ban it.

I thought it was interesting that the lawyers for the women are stressing that this case would have no bearing on same sex marriage in Rhode Island. I beg to differ. The right to a legal divorce is, perhaps ironically, one of the most important benefits of legal marriage.  It provides a legal (and the fairest possible) framework for couples to separate their shared assets and lives.

It is my hope that this is yet another incremental step towards the recognition of gay marriages in Rhode Island. I think it is a wise choice that the women’s lawyers are steering clear from the topic. If the state legislature works the way it is supposed to, it should, at some point, address the problems of denying gay couples legal equality (as demonstrated by this case) by granting full marriage equality.

Until then, I think it’s best the courts refrain from finding in favor of gay marriage. They should continue to correct the real inequalities that gay couples face by being denied the right to marry. Maybe then, when straights realize that gay unions are the functional equivalent to heterosexual marriages, they will not feel as passionate as many are now about denying the word ‘marriage’ to gays.


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The Fate of the Death Penalty

From NYT:

A day after the United States Supreme Court halted an execution in Texas at the last minute, Texas officials made clear on Friday that they would nonetheless proceed with more executions in coming months, including one next week.

Though several other states are halting lethal injections until it is clear whether they are constitutional, Texas is taking a different course, risking a confrontation with the court.

Should be interesting.

p.s. Don’t Mess with Texas.

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And now I would like to devote another post, as a follow up to previous ones, on refuting the argument that the purpose of civil marriage is procreation, as the Maryland Supreme Court found.

Opponents to same sex marriage also argue that the prohibition of gay couples from marrying rests on the fundamentally procreative purpose of marriage. In denying a gay couple’s petition for a marriage license in Singer v. Hara, the Washington Court of Appeals held that, “marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race.

Further, it is apparent that no same-sex couple offers the possibility of the birth of children by their union. Thus the refusal of the state to authorize same-sex marriage results from such impossibility of reproduction.”[1] That marriage “uniquely involv[es] the procreation and rearing of children within a family” supposedly provides “a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.”[2]

However this argument falls short. Outside of the context of the debate over same-sex marriage, procreation is not, and never has been, a precondition for marriage. In applying for a marriage license, couples are not required to prove either their ability or intent to have children. As of 1998, there were 5.7 million married couples within the child-bearing age that did not have children.[3] That is roughly ten times the number of same sex couples recorded in the United States in 2000.[4] This is largely related to the standard set by Roe v. Wade, and the cases which follow from it, which establish the constitutional right of privacy. Marriage is protected regardless of whether or not children are produced because the decision to beget children is a private matter, free from state coercion.[5]

If procreation were in fact the fundamental reason for marriage, one would expect the inability to procreate to be primary grounds for divorce. However, an examination of state domestic relation laws shows that this has never been the case. Between 1969 and 1985, each of the fifty states enacted no-fault provisions to their divorce codes.[6] The Uniform Marriage and Divorce Act (UMDA), established that a court shall dissolve a marriage upon finding that the marriage is “irretrievably broken” based on evidence of “serious marital discord adversely affecting the attitude of one or both of the parties toward that marriage.”[7]

Thus, the UMDA treats the relationship between spouses as the sole determinant of a viable marriage. The UMDA is explicit in stating that it “intentionally makes no distinction between childless marriages and those with minor children.”[8] The couple’s procreative achievements are entirely irrelevant in determining when a marriage is “irretrievably broken.”

Even states that still do adopt a system of fault-based divorce do not recognize the inability to conceive as grounds for the dissolution of a marriage. For example New York offers only four fault-based grounds for divorce: “cruel and inhuman treatment of the complaining spouse; abandonment for at least a year, confinement in prison during the marriage for three consecutive years, and voluntary commission of an act of adultery.”[9] Again, all of these grounds relate to the quality of the relationship the spouses share, not their ability to produce children.

Infertility is similarly not a ground for annulment. While impotence is grounds for annulment in many jurisdictions, infertility is not.[10] As noted in the case of Wendel v. Wendel:

It is a fact well known to medical science, and familiar in our common experience, that every woman passes through a climacteric period . . . after which she is incapable of conception, and yet it has never been suggested that a woman who has undergone this experience is incapable of entering the marriage state . . . . It seems to us clear, therefore, that it cannot be held, as a matter of law, that the possession of the organs necessary to conception are essential to entrance to the marriage state, so long as there is no impediment to the indulgence of the passions incident to that state.[11]

The issue of sexual intimacy is again related to the quality of the relationship a couple shares. The express denial that procreation is required for marriage is yet again clear.

Another way by which we can evaluate the claim that the primary purpose of marriage is procreation is to examine co-parenting laws. Whereas the possibility of joint parenthood is seen as a necessary precondition for marriage when speaking about same sex couples, the opposite is often the case for opposite sex couples. In Michael H. v. Gerald D., the Supreme Court upheld a California statute which held that a child born to a married woman is also the legal child of her husband, regardless of whether or not her husband is the biological father, stating that “given a certain relationship between the husband and wife, the husband is to be held responsible for the child, and . . . the integrity of the family unit should not be impugned.” The Court went further saying, “Where . . . the child is born into an extant marital family, the natural father’s unique opportunity [to develop a relationship with his offspring] conflicts with the similarly unique opportunity of the husband of the marriage; and it is not unconstitutional for the State to give categorical preference to the latter.”[12]

In this case, as well as in similar cases such as those involving artificial insemination, parenthood is determined by marital status, even when biological joint parenthood is impossible. However, when it comes to same sex marriage, opponents insist on arguing the opposite, that for same sex couples marital status must be determined by the couple’s ability to produce joint biological children.

It is significant that opposite sex couples who are unable to produce biological joint children are similarly situated as same sex couples. Each can produce children, either through artificial insemination or adoption, but those children can never be biologically related to both parents.

The only difference between these similarly situated couples is that heterosexual couples are granted the legal status and protection of marriage whereas the homosexual couples are not. It should be noted that many states now allow for co-parent adoption, in which the gay partner of a child’s biological parent may also be considered a parent to that child. In Michael H. v. Gerald D, that is a given for married couples. It is ironic that both partners making up a gay couple may establish legal connections to the biological child of one, but they are not granted a legally binding status to one another.

While opponents of gay marriage speak of the fundamentally procreative nature of marriage, which supposedly fundamentally distinguishes gay couples from straight couples, they ignore how straight couples that do not or cannot create joint biological children are functionally the same as gay couples in terms of parenthood.

[1] Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App.), review denied. 84 Wash. 2d 1008 (1974).
[2] Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971).
[3] “Childless by Choice: Survey of Women on Having Children,” American Demographics, October 1, 2001.
[4] US Census Bureau, ““Married-Couple and Unmarried Partner Households: 2000,” February 2003.
[5] Roe v. Wade 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 112 S. Ct. 2791, 2805 (1992).
[6] Hohengarten, 1514.
[7] Uniform Marriage and Divorce Act § 5 302(a)(2) cmt., 9A U.L.A. 181 (1973).
[8] Ibid.
[9] N.Y. DOM. REL. LAW 5 170(1)-(4) (McKinney 1988).
[10] Hohengarten, 1994.
[11] Wendel v. Wendel, 52 N.Y.S. 72, 74 (App. Div. 1898).
[12] Michael H. v. Gerald D. U.S. 110 (1989).

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In a follow up to my previous post about the Maryland Supreme Court decision which upheld the state’s statute defining marriage as a union between one man and one woman, I’m going to devote this post to countering the argument that the ban serves the legitimate state purpose of protecting traditional marriage. The following analysis comes from a term paper I wrote for a civil rights seminar (as such, it contains footnotes, rather than hyperlinks):

Many opponents of same sex marriage still argue that gays must not be allowed to marry, for doing so would threaten the traditional family. The protection of the traditional family is regarded as a vital state interest, thus the prohibition of gay marriage is upheld as legitimate. The exact connection between gay marriage and the downfall of traditional marriage is somewhat elusive.

Arguments are generally wrapped in highly moralistic rhetoric. This is seen in statements made by many of the US Congressmen in the House of Representatives debate over the 1996 Defense of Marriage Act, which defined marriage for all federal purposes as a union between one man and one woman, and which stipulated that no state be required to recognize gay marriages preformed in other states.[1]

Representative Barr decried that “the very foundations of our society are in danger of being burned. The flames of hedonism, the flames of narcissism, the flames of self-centered morality are licking at the very foundations of our society: the family unit.”[2]

Representative Stearns admonished that “If traditional marriage is thrown by the wayside, brought down by your manipulation of the definition that has been accepted since the beginning of civilized society, children will suffer because family will lose its very essence.”[3] Representative Hyde continued, saying that:

It is appropriate that Congress define marriage. You may not like the definition the majority of us want, but most people do not approve of homosexual conduct. They do not approve of incest. They do not approve of polygamy, and they express their disapprobation through the law. It is that simple. It is not mean-spirited. It is not bigoted. It is the way it is, the only way possible to express disapprobation.[4]

Other opponents, in spite of previous arguments, maintain that heterosexual relationships are still inherently superior to homosexual relationships, and that to give the two equal legal status would dilute the former. All of these arguments have a fundamentally moral basis. They hold that same sex couples should not be granted the fundamental right of marriage because doing so would recognize homosexuality and heterosexuality as moral equivalents, thus undermining the clearly more moral option of heterosexuality.

However, in light of the landmark Lawrence v. Texas decision, laws enacted solely to express a moral purpose are unconstitutional. In the majority opinion, Justice Kennedy frames the debate stating, “the issue is whether the majority may use the power of the State to enforce these [moral] views on the whole society through operation of the criminal law.”[5] He answers this question by declaring that “our obligation is to define the liberty of all, not to mandate our own moral code.”[6]

Justice Kennedy found that “intimate, adult consensual conduct…[is] part of the liberty protected by the substantive component of the Fourteenth Amendment’s due process protections.”[7] Since the Texas antisodomy statue in question was “born of animosity toward the class of persons affected,”[8] the Supreme Court overturned the statue because it had “not rational relations to a legitimate governmental purpose.”[9] Kennedy rejected the argument put forth by the State of Texas, that the display of moral disapproval through the enactment of criminal law was a legitimate state purpose.

In her concurring opinion, Justice O’Connor relied on equal protection analysis rather than due process analysis. She declares that “moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be ‘drawn for the purpose of disadvantaging the group burdened by the law.” She goes on to say that “Texas’ sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law…[it] subjects homosexuals to a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass … cannot be reconciled with the Equal Protection Clause.” [10]

It is interesting to note that O’Connor recognizes and criticizes the Texas antisodomy law for creating a group of second class citizens. Surely being denied legal access to marriage, one of societies most fundamental institutions, makes gays second class citizens, psychologically at least, if not socially and economically as well. However, O’Connor explicitly states that her concurrence does not suggest that she supports legal marriage for same sex couples. She states that:

this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review…Unlike the moral disapproval of same-sex relations-the asserted state interest in this case other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

While O’Connor contends that there are in fact legitimate state interests that are met by denying same sex couples the right to marry, she does so without ever actually stating what those reasons might be.

O’Connor’s lack of elucidation opened the door for the potential of future gay marriage victories on the High Court. Justice Scalia recognizes this in his scathing dissent. In fact, his dissent in Lawrence could be read as arguments for of gay marriage. He states that “today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”

This is because the general argument that homosexuals must be banned from marriage in order to preserve traditional marriage “is just a kinder way of describing the State’s moral disapproval of same-sex couples.” As far as O’Connor’s claim that the Lawrence decision does not involve the formal recognition of homosexual relationships, Scalia admonishes not to believe it, stating:

More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to ‘personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,’ and then declares that ‘[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.[11]

Scalia even dismantles the argument that procreation may be a legitimate state interest that could merit the prohibition of gays from marriage, recognizing that the elderly and sterile are still allowed to marry. Lawrence thus provides a final blow to the morality arguments and opens the door to future Court rulings that could recognize that the fundamental right of marriage applies to same sex couples.


[1] Defense of Marriage Act Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996).
[2] 142 Cong. Rec. H7480, H7482 (daily ed. July 12, 1996)(Statement of Rep. Barr).
[3] Ibid at H7488 (Statement of Rep. Stearns).
[4] Ibid at H7501 (Statement of Rep. Hyde).
[5] Lawrence v. Texas 539 U.S. 558 (2003).
[6] Planned Parenthood v. Casey, 112 S. Ct. 2791, 2805 (1992).
[7] Lawrence v. Texas 539 U.S. 558 (2003).
[8] Bowers v. Hardwick, 478 U.S. 186, 192 (1986).
[9] Lawrence v. Texas 539 U.S. 558 (2003).
[10] Lawrence v. Texas 539 U.S. 558 (2003).
[11] Lawrence v. Texas 539 U.S. 558 (2003).

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This morning, the Maryland Supreme Court upheld the state statute which defines marriage as a union between a man and a woman in a 4-3 decision.

The court found that 1) the statue does not discriminate on the basis of gender 2) that sexual orientation is neither a suspect or quasi-suspect class, whereby discriminatory laws require a higher scrutiny 3) that there is no fundamental right to marry a person of the same sex and 4) that the statute in question is related to a legitimate state objective, that is, upholding traditional marriage.

I’m not familiar with the intricacies of the Maryland constitution, but I’m going to offer some thoughts on point 3 it relates to the United States constitution (and maybe some of the others in future posts, time permitting).

The Supreme Court has stated that fundamental rights are “those liberties that are deeply rooted in this Nation’s history and tradition,” and have repeatedly found that marriage is included in the list of fundamental rights. Opponents to marriage equality argue correctly that same sex marriage has never been apart of our nation’s history or tradition.

Marriage itself, has. Herein lies the distinction. Same sex couples are not asking for the right of some special same sex marriage, they are asking for the right to be included in the preexisting institution of marriage, pure and simple.

The way that a right is defined plays a huge role in determing if its is in fact a legitimate right or no. The more broadly defined, the more likely it is to fit within tradition, thus being upheld, and vice versa.

Imagine if this ‘most specific’ methodology had been applied in Loving v. Virginia, which struck down the state’s ban on interracial marriage. Had the Lovings claimed that the right to a mixed race marriage was rooted in our nation’s history and tradition, they would have been instructed to review the long history of America’s antimiscegenation laws. The first antimiscegenation law in North America was enacted in Virginia in 1691. Thirty one states maintained such laws by 1945; sixteen states still held them by the time Loving was decided.

Further, in Dred Scott v. Sandford, Chief Justice Taney cited the long standing antimiscegenation laws in his decision to deny citizenship to blacks, stating, “intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes” The Lovings’ claim was upheld, because they called upon the more general right to marry, rather than the specific right to marry someone of a different race, which clearly went against the longstanding traditions of the United States.

The Loving decision provides an important comparison for those who support same sex marriage. First it establishes that one of the most basic decisions in family life is the decision of whom one chooses to marry. It shows that the right to marry is not limited to longstanding legal or cultural traditions of exclusion. It also provides a framework by which the right of gays to marry should be addressed.

Just as the Lovings petitioned for, and the courts recognized, the fundamental right to marry, rather than the fundamental right to marry someone of a different race, so too should courts recognize that gays seek the right to marry in the broadest sense, rather than the specific right to marry someone of the same sex.

All of that being said, though I would have welcomed a decision from the court that recognized the equality of gay families, I respect their restraint. I have said before that I believe decisions involving divisive social issues such as gay equality are better decided by the legislature rather than judges, even if it means the path to equality is slower. I believe the legislature lends an air of legitimacy that the judiciary is largely lost.


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Judge Robert Hanson of Polk County, Iowa struck down the state’s decade-old anti-gay marriage statute this morning, finding that it violated the state constitution’s due process and equal protection clauses.

Gay couples across the state of Iowa are now free to apply for marriage licenses.

While I was excited to learn of this ruling for gay equality, I fear it will be short lived. The Polk County attorney plans on appealing the ruling to the State Supreme Court, and he has already filed a stay to prevent gay couples from marrying until the appeal is resolved.

What’s worse, Republican House Minority Leader Christopher Rants is already preparing an anti-gay marriage amendment to Iowa’s constitution.

We saw how the 2003 Massachusetts ruling in favor of marriage equality ushered in backlash across the country, culminating in 27 state amendments denying the right of marriage to gays. I fear this Iowa ruling will have a similar effect, especially with election season upon us. This is why I’m generally against sweeping court decisions like this. I think an incremental steps toward equality such as the ones in Pennsylvania, Oklahoma, New Mexico, Washington, Virginia, and Michigan.

I may be overly pessimistic–a lot has changed even in the five years since the Massachusetts ruling. In spite of all of the state wide amendments banning gay marriage, we have seen several states move in the opposite direction to provide the status of civil unions to gay couples (though still unequal).

In addition, Rove (mastermind of the gay-baiting tactics to get out the conservative base) is gone. The ‘family values’ wing of the Republican party is awash with the sex scandals of Senators Craig and Vitter. And recent polling has indicated that social wedge issues like gay marriage and abortion may not have the pull they had in past, what with two failing wars in the Middle East and all.

Either way, should be a very interesting case to follow, and certainly more to come on the Blitz.

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Convicted drug dealers Daniel Mangini and Steven Roberts, who have been together for over 20 years, were dealt a victory in the U.S. District Court in Philadelphia last month.

After serving their time and sobering up in prison, the men were eager to reunite during their 5 year probation period. However, federal probation policy prohibits ex-cons from associating in any way with other ex-cons unless their are spouses or blood relatives.

According the ACLU, who represented Mangini and Roberts, Judge Marvin Katz relied on the 2003 Supreme Court case Lawrence v. Texas to rule that “same-sex couples have the same right to form intimate relationships as opposite sex couples and that it is unconstitutional to treat same-sex couples differently.”

Mangini noted, “It’s fair to say we’re not role models, but that doesn’t mean we should have less rights than anybody else.” Mangini is certainly right that he is no role model for the equal marriage movement, nonetheless this case may have far reaching effects for future cases.

This case is a part of a growing trend to expand the benefits of marriage to same sex couples, even in light of state statutes and amendments banning the recognition of same sex marriage. This is similar to Michigan State University, who changed their employment benefit policies to get around the state’s anti-gay marriage amendment, as well as the University of Virginia, who similarly changed their gym membership policies.

While the particularities of theses cases are different, the core similarity is that they weaken ‘traditional’ marriage by offering the benefits of marriage to gay couples who cannot, by law, marry. Opponents to gay equality say they only want to protect traditional marriage, but these cases show that by excluding gays, they are only undermining that cause.

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