The Lawletter Vol 37 No 8
A hot topic in politics as well as in the courts these days is the extent to which same-sex couples may be treated differently from heterosexual couples. While much of the focus has been on the right to marry, there have been other questions, distinct from the marriage issue, such as rights to government, employment, or other benefits offered to otherwise similarly situated couples but withheld from same-sex couples. Not surprisingly, the decisions have not been uniform, even within the same circuit.
In a recent case out of the Ninth Circuit, involving a challenge to Hawai'i's statutory prohibition on same-sex marriage, the district court for Hawai'i rejected both the plaintiffs' due process argument and their equal protection argument. Jackson v. Abercrombie, Civ. No. 11-00734 ACK-KSC, 2012 WL 3255201, at *21‑46 (D. Haw. Aug. 8, 2012). As to due process, the court first acknowledged that there is a fundamental right to marry but concluded that the right did not encompass a right to marry a person of the same gender. It noted that the Supreme Court has never acknowledged such a right, although it has found a liberty interest in consensual same-sex relations. It also noted that same-sex marriage has not been traditionally recognized as a right. As to equal protection, the court determined that the statute was not based on gender but on sexual orientation, and that sexual orientation is neither a suspect nor a quasi-suspect class. It found, therefore, that the statute was subject only to rational-basis review. Not surprisingly, under the traditional rational-basis review, the court easily found that the statute passed muster. It should be noted that while Hawai'i law prohibits same-sex marriage, it also provides for civil unions, granting same-sex couples all the legal rights of marriage—except for the title.
In another recent case out of the Ninth Circuit, the challenge was to provisions disallowing recognition of same-sex marriage under the Defense of Marriage Act ("DOMA") that resulted in the plaintiff's inability to get health insurance coverage for her spouse. Golinski v. U.S. Office of Personnel Mgmt., 824 F. Supp. 2d 968 (N.D. Cal.), reh'g en banc denied, 680 F.3d 1104 (9th Cir. 2012) (scheduled for argument before the Ninth Circuit in Sept. 2012). In contrast to Jackson, the Golinski court concluded that the question of whether classifications based on sexual orientation are suspect or quasi-suspect is still an open one with both the Ninth Circuit and the Supreme Court. It went on to evaluate the factors traditionally used to determine whether a class is suspect and concluded that different treatment of those with a same-sex sexual orientation should be subjected to heightened scrutiny based on (1) a history of discrimination against gay men and lesbians; (2) the fact that sexual orientation has no relevance to a person's ability to contribute to society; (3) the fact that sexual orientation is, if not immutable, highly resistant to change; and (4) the fact that, despite some gains, gays and lesbians are still relatively powerless politically. Finding that the rationales provided in support of the law were without basis in fact and/or not legitimate justifications, the court concluded that the provisions did not pass heightened scrutiny. Moreover, the court concluded that because there was no legitimate justification, they could not withstand even the "more searching" rational-basis review required where classifications are drawn for the purpose of disadvantaging a class. The Golinski plaintiff and her spouse were legally married. The questions should, presumably, be even more probing where the targeted disadvantage is dual, or cumulative—that is, where same-sex couples are denied benefits available to opposite-sex couples specifically because they are unmarried and where they are also specifically prohibited from marrying.