Note: I wrote this during the spring of 2012, at the time that the 9th Circuit had issued its opinion.
The
reason for writing this paper is to determine and to analyze how Chief Justice
Roberts of the U.S. Supreme Court would rule on the issue of gay marriage,
specifically concerning Proposition 8 in California, with the appellate case of
Perry v. Brown (formerly Perry v. Schwarzenegger). The case has
been upheld as unconstitutional by both the federal district court (North
District) and the federal appeals courts (9th Circuit) of California[1]. I,
personally advocate for Justice Roberts to rule in favor of gay marriage due to
the fact that the denial of marriage to committed same-sex couples because of
religious dogma is a violation of the 1st amendment and of the 14th
amendment. Roberts should put aside ideology and see the basic facts that
stripping away rights that were once exercised, is simply unconstitutional. When
deciding, he should not only look at the law (Proposition 8) but also at the
moral dilemma of gay marriage to create some precedent and to establish where
the court stands on same-sex marriage, just as they did with interracial
marriage in Loving v. Virginia (1967),
where the court explicitly expanded marriage to interracial couples.[2]
With
my understanding of the law and of Justice Roberts’ background on “privacy,
equality and liberalism,” I will try to make the argument of Justice Roberts
ruling in upholding the 9th Circuit’s decision by providing a brief
background on the case, how and why Roberts would rule as such, and evidence that
supports my argument. I will try to be as explicit as possible by citing news
articles and other similar cases that have gone through the Supreme Court
regarding privacy and the various clauses (equal protection and due process),
seeing as “gay marriage” has yet to be heard by the court. Not only will I be referencing
his position whilst in the Supreme Court, but also while he was a judge in the
D.C. Circuit.
In
the summer of 2008, the California Supreme Court struck down California’s “one
man, one woman” marriage law and Proposition 22, in the case titled, In re Marriage Cases (2008) and led to
California granting same-sex marriage licenses for the first time. The decision
argued that “statutes that treat persons differently because of their sexual
orientation should be subjected to strict scrutiny.”[3] This
was met with opposition by then Governor Arnold Schwarzenegger and various
religious groups who then initiated a ballot proposition, amending the state’s
constitution to redefine marriage only between a man and a woman. Out of this,
emerged Proposition 8 and it narrowly got enough votes to pass (52% to 48%).[4] It
was then challenged and the California Supreme Court upheld it, but allowed
same-sex marriages before Prop. 8 took into effect, to stand. It was then brought
to the Federal District Court which found that Prop. 8 was unconstitutional,
because it violated both the Due Process and Equal Protection clauses of the Constitution.
It recently got appealed then to the 9th Circuit, which upheld the
district court’s decision and now it awaits whether the losing side will appeal
the decision to the Supreme Court or call for an en banc decision.[5]
If
it were to be appealed to the Supreme Court, the most likely verdict is the
infamous 5-4 ruling, where the four conservatives (Roberts, Scalia, Alito,
Thomas) and the four Liberals (Ginsburg, Breyer, Sotomayor, Kagan) must rely on
Justice Kennedy’s swing vote, but Justice Roberts could have as much impact as
Justice Kennedy in the decision. With this ruling, ideology (based on the attitudinal
model) takes center-fold, but there have been some key moments where Justice
Roberts has diverged in a few cases regarding privacy, and ruled with the
liberal side of the court. It is no doubt that the four liberal justices will
upheld the 9th Circuit, but the Chief Justice could change the scope
of the case and yield a historic decision based on the questions arising from
the case.
When the Supreme Court grants certiorari for Perry v. Brown, it is likely that it
will bring out other legal issues, concerning the “full-faith and credit”
clause and laws dealing with child custody, divorce, etc. Based on the case
alone, there is a chance that Justice Roberts could rely only on the legal
model with his decision-making as well as the strategic-interaction model. What
makes the case unique is that the same-sex couples had the opportunity to get married and many of them did. How
exactly would this play a role in the decision? Well, there have been notable
cases and infamous acts that stripped away rights and have not been keen with
the public (Korematsu v. United States,
1944). That being said, Justice
Roberts has a pivotal role in the public’s eye, seeing as gay rights have
shifted and gained momentum throughout the decades, and most of the public is
aware of this issue and there is an overwhelming push for these rights by the
youth and by a new wave of Americans.[6]
Marriage is no longer seen as a religious ceremony, but as a civil union
between a couple who loves each other and has a commitment towards each other and
then being able to be protected by the law.
By taking into account the public and the clear violation
of the law in Perry v. Brown, Justice
Roberts would rule in a 6-3 decision to upheld the 9th Circuit’s
decision, and may even answer the legality of gay marriage by bringing into
question the Defense of Marriage Act (DOMA, 1996), which established marriage
between a man and woman through federal law.[7] His
decision on the constitutionality of Proposition 8 would be on the basis that
it violated the due process clause seeing as, “no compelling state interest
justifies denying same sex couples the fundamental right to marry” and it also violated
the Equal Protection Clause, because “there is no rational basis for limiting
the designation of ‘marriage’ to opposite-sex couples.”[8] It
also inhibits the right of privacy and it “establishes” that religion has a say
in marriage, when the benefits under the law for married couples has nothing to
do with religion but about benefits such as wills, hospital visits, child
custody, etc. This ruling would be seen as this generation’s Roe v. Wade or Brown v. Board, because it puts the American public in a position
where long enough has a group of individuals been compelled to be treated as
second-class citizens to be guaranteed the same treatment under the law.
Looking at why Proposition 8 violates the notion of
“separation of church and state,” is to look at the individuals who pushed for
the proposition, which were mainly religious groups, particularly the Mormon Church.
Proposition 8 forces religious beliefs on every Californian, as well as any
other state that has same-sex marriage banned because of religious reasons.
Marriage is simply a fundamental right, and “[it’s] not just a word; it is a
status, a state of mind, a way of being.”[9] Another
argument made by the religious groups was the justification that only
opposite-sex couples can procreate naturally, but besides the fact that
heterosexual couples can have a baby naturally; studies have shown that married
couples are choosing to have fewer children than ever before and some none at
all.[10]
If enough evidence was presented to show that the religious groups pushed Prop
8. to discriminate against LGBT groups, Justice Roberts could see that the proposition
is wrong because it infringes on the Free Exercise Clause of Americans who
don’t believe otherwise, but at the same time, Justice Roberts—a devout
religious-proponent—could use it to advocate that they (religious groups
funding Prop. 8) through the Free Exercise Clause had the right to express and
initiate Proposition 8. I only highlighted this because the issue of same-sex
marriage is surrounded by religion, but it is not certain it will be a
justification by Justice Roberts, seeing as the case is not questioning the
constitutionality of “church and state.”
The
case will mainly revolve on the violation of the use of the Equal Protection Clause,
which “forbids the government from stripping rights away from any group of
persons based on prejudice.”[11]
Proposition 8 was a ballot initiative which took away rights that were
exercised in a period of five months, with over 18,000 same-sex couples getting
married.[12]
Romer v. Evans (1996) was the first
Supreme Court case dealing with LGBT rights and it established that the Colorado
amendment which would treat gay individuals as second-class citizens, did not
pass the strict scrutiny test because it violated a provision of the
Constitution and it discriminated against a set of minorities.[13]
This was one of the key cases used by the district court to make the argument
that Proposition 8 does those same exact things. Roberts at the time was
working for a private law firm (Hogan and Hartson, 1993-2003), and provided
pro-bono assistance in the case, but he was not involved in the litigation.[14]
This exemplifies that being a conservative; he was able to put aside ideology
and to look at the facts, which plainly showed discrimination against
homosexuals. (Also to note, that during his confirmation process in the Senate
Judiciary Committee he left this out of his repertoire).
Looking
further into the Equal Protection Clause, Proposition 8 assumes and puts
same-sex couples as groups that don’t deserve the right to marry because of
their lifestyle, and that because of that lifestyle they should be treated less
of a citizen and have less rights under the law. Judge Walker, the federal
district judge stated, “marriage is the state recognition and approval of a
couple’s choice to live with each other, to remain committed to one another and
to form a household based on their own feelings about one another and to join
in an economic partnership and support one another and any dependents.” [15]
Under this definition of marriage, “same sex couples are identical to
opposite-sex couples,” and the current statutes provide no incentive or
specifics when determining marriage, and just go simply by making it an affair
between a man and a woman with the
intention of procreation being one of main objectives of marriage.
Under
the Equal Protection clause, the arguments made for marriage are: 1) “Marriage
is a civil (as well as religious) institution; married couples benefit from
more than 1000 benefits under federal law,” 2) “Supporters of gay marriage
argue that equal protection requires equal access to civil benefits of
marriage,” 3) “Opponents of gay marriage argue that there is a legitimate
rational basis for limiting marriage to heterosexual couples,” and 4) “Currently
legal classifications based on sexual orientation are subjected only to the
rational basis test, not to strict scrutiny.”[16]
With the first point, same-sex couples who are not recognized by the state as married
are deprived from the benefits that come with marriage, such as “hospital
visitation during an illness, taxation and inheritance rights, access to family
health coverage, protection in the event of the relationship ending, and
adoption.”[17]
These benefits aren’t just attached to marriage as an optional inclusion, but
as a vital necessity. Point two goes back to the core of point one that with
the Equal Protection Clause, these benefits are included in the concept of
marriage, and they aren’t specifically oriented towards heterosexuals, but for
those seeking out marriage. With this notion, they should have the right to
seek out marriage. Point three and four are the ways in which the court can see
if there has been a violation of the Equal Protection Clause, opponents saying
that there is a reason for gays to be left out of the scope of marriage and
that the court would only have to rely with the rational basis test, which
refers to the level of scrutiny under the 14th amendment, and also
addressing the issue whether LGBT groups are seen as a “suspect class” like
racial minorities. Lawrence v. Texas
(2003) questioned the “right to sexual privacy triggering strict scrutiny,” but
it was heard using only the rational basis test in determining whether certain
intimate sexual activities were criminal offenses for homosexuals but not for
heterosexuals was constitutional.[18]
With
equal protection you see the treatment of individuals equally, but with the Due
Process Clause, it says “states may
not deprive persons of life, liberty,
or property without due process of law.”[19]
One of the most notable cases concerning the due process clause and marriage is
Loving v. Virginia (1967) which held
that states did not have the right to ban interracial marriage and that "the
freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men."[20]
Also, in 1974 in Cleveland Board of
Education v. LaFleur, it sets up the foundation for the pursuit for gay
marriage, which stated that the "freedom of personal choice in matters of
marriage and family life is one of the liberties protected by the Due Process
Clause.”[21] Many have cited that by using
the due process clause, it may push the legalization of same-sex marriage even
further. Many of the states that have same-sex marriage relied on the notion of
the due-process clause, and if it can happen at the state level, then there’s a
possibility that the same logic can be applied at the federal level (i.e.
Supreme Court).[22] One of the main arguments
that the Court should look into is that at first In re Marriage granted same-sex couples to get married and with
Proposition 8 it took that right away, but this was limited by Romer v. Evans which tried to take the
rights of gay individuals, and the Supreme Court ruling that this was
unconstitutional. Roberts, being involved in the behind-the-scenes for Romer, could see how Perry v. Brown is quite similar to Romer in retrospect to the law, not in the
dilemma of the constitutionality of “same-sex marriage” alone. But this raises
an issue of whether marriage can be seen as a right that should not be taken
away. Religiously it can, but the court should not justify it by using
religion. This argument alone shows the deprivation of due process for same-sex
couples.
Recently, Washington, D.C. passed a new law
legalizing same-sex marriage, and several same-sex marriage opponents wanted to
stop it from taking effect by initiating a referendum, and asked Justice
Roberts whether he would stop the law from taking into effect, but he decided
not to. Serving as the Circuit Justice for that area he based his decision in Harry Jackson v. D.C. Board of Elections and
Ethics (2010), that the opponents should seek to give this case to Congress
to deal with it or continue with the referendum, but it needs to be after the
law takes into effect.[23]
Justice Roberts alone, could’ve gone further into the constitutionality of the
law, but decided not to.
To
sum up the arguments, Justice Roberts has the chance to make a lasting legacy in
the civil rights of the LGBT community and to redefine his reign on the court. With
the arguments I presented, Proposition 8 clearly violates the Due Process
Clause because it deprives same-sex couples to get married and to have the same
rights as their heterosexual counterparts as well as it deprived them of a
right that they once held. It also violates the Equal Protection Clause, for it
places same-sex couples as individuals that should not have the discretion to
marry because of their lifestyle. With these reasons, Justice Roberts alone
could rely on either clause and make a historic landmark ruling. The states
that have passed laws to allow same-sex marriages took the component of
religion out of their votes and based it on equal treatment under the law, and
that’s what the Court and Roberts should aim for. Justice Roberts may come off
as just basing his decisions on political preferences, but he does seem to be
pragmatic in doing so. This case is not one to be taken so lightly, and one
that for years Congress has ignored. Whether or not the Supreme Court agrees to
hear the case, same-sex marriage is likely to come to the United States in the
near future and I am certain that Roberts would rule in upholding Perry v. Brown on the merits of the law,
but what may still be up for debate, is the dilemma of same-sex marriage.
[1] See Perry v. Brown.
[2] Loving v. Virginia, 388 U.S. 1
(1967)
[3] In re Marriage Cases.
[4] Duray.
[5] Bink.
[6] Jost.
[7] See Gill v. Office of Personnel Management and Windsor v. United States. These two cases have begun challenging
DOMA. Both have yet to be heard by the Federal Appeal’s Court.
[8] See Perry v. Brown, pg. 5.
[9] Brosnahan.
[10] Rimmerman, 193-213.
[11] Brosnahan.
[12] Duray.
[13] Romer v. Evans, 517 U.S. 620 (1996).
[14] Hurt.
[15] Perry v. Brown.
[16] ProCon.
[17] ProCon.
[18] Lawrence v. Texas, 539 U.S. 558 (2003).
[19] 14th Amendment to the
United States Constitution.
[20] Loving v. Virginia.
[21] Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974).
[22] "Same-Sex Marriage &
the 14th Amendment."
[23] Hinman; Jones.
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