A series of
significant judicial decisions-beginning with that of a trial court
judge in Hawaii, followed by a superior court judge in Alaska and
then by the Vermont Supreme Court-has brought the issue of
homosexual "marriage" to the forefront of our nation's
attention.
After judges in
Hawaii declared that the state's marriage statute violated the
Hawaii constitution, Congress overwhelmingly passed the Defense of
Marriage Act (DOMA), under its Article IV power to prescribe the
effect of the Full Faith and Credit Clause. Signed by President
Clinton, the law defines marriage for purposes of federal law as
the union of one man and one woman and prevents states from being
forced to recognize other states' conflicting definitions.
Two Supreme Court
cases severely weaken the case for DOMA. In Romer v. Evans
(1996), the Court declared a state constitutional amendment
unconstitutional because it was "born of animosity" toward
homosexuals and thus violated equal protection under the U.S.
Constitution. In Lawrence v. Texas (2003) the Court stated
that all individuals have a due process right to "seek autonomy" in
their private relationships, including "personal decisions relating
to marriage." In his dissent, Justice Scalia warned that
Lawrence "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."
Last November, a
4-3 ruling of the Massachusetts Supreme
Judicial Court declared, based on these precedents, that traditional marriage upholds "persistent
prejudices" and "works a deep and scarring hardship on a
very real segment of the community for no rational reason."
The court redefined marriage to be
"the voluntary union of two persons as spouses, to the exclusion of
all others," declaring that "the right to marry means little if it
does not include the right to marry the person of one's
choice."
Since May 17,
Massachusetts has been forced to issue marriage licenses to
same-sex couples. Massachusetts alone has now issued over 2,500
same-sex "marriage" licenses to residents of 27 states and the
District of Columbia, creating state-recognized legal standing to
challenge DOMA nationwide. As the Boston Bar Association states:
"It is only with 'marriage' that
Massachusetts citizens can request the Congress to repeal this law
[DOMA], or challenge its constitutionality."
The first
challenge to the constitutionality of DOMA has been filed in a
Florida federal court-"because it's the fastest way to get to the
Supreme Court of the United States," said the filing
attorney-arguing that DOMA violates equal protection and full faith
and credit guarantees of the U.S. Constitution.
Under normal
circumstances, the federal DOMA should survive constitutional
scrutiny, but the legal profession has been building the case
against DOMA since its adoption. According to the ACLU, the law is
"an unmistakable violation of the
Constitution" and "a deplorable act of hostility unworthy of the
support." In the end, despite strong arguments that support
congressional powers to pass it, DOMA won't survive activist judges
bent on using their evolving interpretations of personal liberty,
equal protection, or due process to advance their policy
objectives.
This argument is
made explicit in the June 2004 Harvard Law Review:
Until recently, DOMA was effectively unchallengeable by the
individuals subjected to its stigma. . . . Now the time is ripe for
a constitutional challenge to DOMA. . . . DOMA violates principles
of equal protection and due process. A strong case can also be made
that DOMA abuses the Full Faith and Credit Clause and contravenes
fundamental principles of federalism. A successful equal protection
or due process challenge, however, is likely to have the
farthest-reaching implications for the future of same-sex marriage
in two respects. First, if DOMA is found to violate equal
protection or due process, the state DOMAs are likely to fall on
the same grounds. And second, it is difficult to imagine how the
Court could find excluding same-sex couples from the definition of
marriage unconstitutional without creating a constitutional
requirement that same-sex couples be allowed to marry.
Assuming the
Supreme Court follows the logical trend of its own precedents and
jurisprudence of recent decades, it would be inconsistent for a
majority of the Justices not to redefine marriage according
to their previously stated opinions. As Harvard Law Professor
Lawrence Tribe has stated, "You'd have to be tone deaf not to get
the message from Lawrence that anything that invites people
to give same-sex couples less than full respect is constitutionally
suspect."
Matthew
Spalding, Ph.D., is Director of the B. Kenneth Simon
Center for American Studies at The Heritage Foundation.