Windsor Update: Kentucky and Virginia

Brett Turner, Senior Attorney, National Legal Research Group

       Two more decisions have held that the U.S. Constitution requires broader acceptance of same-sex marriage than state law presently permits.

Kentucky

      In Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014), the court held that Kentucky was required to recognize out-of-state same-sex marriages, and that Kentucky's constitutional and statutory provisions barring such recognition are unconstitutional. The court relied entirely upon a Fourteenth Amendment due process theory. Because no clear majority of Justices in Windsor applied a higher standard, Bourke used the rational-basis test.  It nevertheless found no rational basis for refusing to recognize out-of-state same sex marriages. The effect of the Kentucky provisions was to identify a group of state-sanctioned marriages (same-sex marriages from other states) and subject them to unequal and demeaning treatment. The only justification alleged in support of the provisions was to preserve a traditional definition of marriage as a relationship between persons of opposite sexes. But the court held that tradition alone cannot justify discriminatory treatment.

      Interestingly, Bourke did not expressly rely on a finding that Kentucky's provisions against same-sex marriage had been enacted with discriminatory intent. It is therefore a stronger opinion than that in Obergefell v. Kasich, which this blog criticized here.

      But Bourke still ignores that portion of the Windsor opinion that held that recognition of marriages is uniquely a subject for state law. That portion clearly implies that states may choose either to recognize or not recognize same-sex marriage. If there is literally never any rational basis for recognizing out-of-state same-sex marriages—and that is what the Bourke court held—then Windsor would not have placed so much emphasis upon state law. 

      In this author's opinion, the federalism portion of the Windsor opinion was not intended to be meaningless. The validity of marriages is a subject over which state legislatures have particularly great power, and a subject over which the federal government has particularly little power. A strong majority of Kentucky citizens have chosen to place restrictions upon the recognition of same-sex marriage. The decision made by these citizens should not lightly be discarded as irrational.

     There are especially strong practical reasons why federal courts should not dismiss all opposition to same-sex marriage as irrational. Recognition of same-sex marriage is a fundamental social change. In a democracy, fundamental social changes should result from elections, not from court decisions. 

     Only in 2012 did same-sex marriage begin to show strength at the ballot box. This showing was very important, for it offered a path to recognition of same-sex marriage that was relatively free of divisive controversy. If a majority of voters choose to reject restrictions upon same-sex marriage, that rejection will be a clear basis for accepting fundamental social change. If the voters reject same-sex marriage in a sufficiently large number of states, that may even provide a basis for applying constitutional theories to force recognition of same-sex marriage nationwide.

     But it is important for the legitimacy of the process that additional elections be held on same-sex marriage. The strong wave of post-Windsor decisions striking down restrictions upon same-sex marriage raises a very real possibility that no more elections will be held and that the federal courts will declare the issue resolved. Such a declaration would substitute judicially imposed change, which is relatively less legitimate, for electorally or legislatively imposed change, which is relatively more legitimate. The dangers of judicially imposed change are especially strong when the decisions hold that all opposition to same-sex marriage, such as that expressed by a strong majority of Kentucky voters, is irrational—and that is what the Bourke court held.

     From all evidence visible to the author, the nation is moving rapidly toward widespread recognition of same-sex marriage. But it is important for the perceived legitimacy of the change that the change occur as democratically as possible. Democratic change is impeded, not faciliated, when federal courts insist that all opposition to same-sex marriage is irrational.

     The questions remains, if opposition to same-sex marriage is rational, what is the precise rational basis for such opposition? The federalism portion of Windsor holds clearly that recognition of marriage is a subject on which states and state legislatures have particular power. In enacting restrictions upon same-sex marriage, state governments have been responding to the fear on the part of their constituents that recognition of same-sex marriage will pose substantial dangers to society. Widespread recognition of same-sex marriage is a recent development, historically speaking; there is reason to proceed with caution.

     The federal court decisions to date have been inclined to take a hard look at the dangers of same-sex marriage, and conclude that the dangers are so imaginary that opposition to same-sex marriage is irrational. But state law is entitled to particular deference on matters involving the validity of marriages, and it is especially important to the legitimacy of fundamental social change that the change be ratified by as many elections as possible. Against this background, fears that widespread recognition of same-sex marriage will change society in harmful ways are not entirely irrational.

     The author therefore respectfully submits that the federal courts should not hold that all opposition to same-sex marriage is without rational basis. The courts should take a less assertive approach to this issue, and allow the democratic process to work its will for another few years.

Virginia

     The above analysis assumes, however, that a rational-basis test applies. In Bostic v. Rainey, No. 2:13CV395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014), the court held that the federal Constitution requires Virginia to allow same-sex marriages of its own citizens, even though both a constitutional and a statutory provision bar such marriages. Bostic held flatly that the right to marry is a fundamental right. It did not, therefore, apply rational-basis review.  Rather, the court applied strict scrutiny. It then found that preserving traditional marriage is not a sufficiently powerful goal to survive strict scrutiny. Like the Utah opinion in Kitchen v. Herbert, the opinion was consciously based upon Loving v. Virginia, 388 U.S. 1 (1967), and indeed the opinion begins with a quotation from the wife in Loving.

     Of all of the rationales yet expressed for mandating recognition of same-sex marriage, the Kitchen/Bostic rationale is clearly the strongest. If persons of the same sex have a fundamental right to marry one another, then tradition alone is not the sort of compelling reason the law has traditionally required to justify interference with such a right.

     Yet one might legitimately ask why the right to marry a person of the same sex is deemed fundamental. As of this writing, 17 states have recognized same sex marriage by normal operation of state law. That means that 33 states do not recognize same-sex marriage—well over half of all American states. By contrast, when Loving was decided, 35 states allowed interracial marriage and only 15 states did not. In short, when Loving was decided, a large majority of American states allowed interracial marriage.

     At present, a nearly equally large majority of American states do not allow same-sex marriage. This difference in public support suggests that the analogy to Loving should be used with caution. Bostic started its opinion by noting that "[a] spirited and controversial debate is underway regarding who may enjoy the right to marry in the United States of America," 2014 WL 561978, at *1, but the court then cut that debate off by asserting that it is resolved by the federal Constitution. 

     Supporters of same-sex marriage would probably argue that the right to marry a person of the same sex is objectively fundamental, regardless of what a majority of the voters think.  The author is not a constitutional originalist, and believes that the definition of a fundamental right can change over time in response to changes in society itself. But surely the bar for recognition of a new fundamental right should be relatively high. When a right is not yet recognized by a majority of states, courts should be cautious about declaring the right fundamental. That is especially so when proponents of same-sex marriage are showing strength at the ballot box—raising the possibility of an electoral resolution of the debate over same-sex marriage that will have much more legitimacy than any court decision will.

     At the same time, it might also be noted that there does not seem to be widespread outrage over post-Windsor case law striking down restrictions upon same-sex marriage.  Republicans in Congress seem more interested in Obamacare and budget issues than in attacking same-sex marriage. Protests over recognition of same-sex marriage are not dominating the nightly news. Even outgoing Virginia Attorney General Ken Cuccinelli, a determined opponent of same-sex marriage, wrote only a short summary opinion rejecting the possibility, missing the chance to make more determined protest. If social conservatives seem disposed to accept the validity of the recent lower court decisions, perhaps legitimacy is a less important concern.

     But the fact still remains: In the United States, divisive public issues are resolved by elections. Same-sex marriage did well at the polls in 2012, but that was only one election, in which only four states voted on the issue. The debate over same-sex marriage would be resolved in a better way, a more legitimate way, a way more in keeping with the American tradition, if a broader base of states were permitted to vote.

     And that is the fundamental problem with the recent wave of decisions holding that states are required to recognize same-sex marriage. It ends an important and necessary debate early, with an arbitrary decision by the courts that one side of the debate is taking an irrational position. The people whose position is being called irrational are likely to disagree with this reasoning, and to reject the legitimacy of these decisions. The result may well be greater social opposition to same-sex marriage, even after the purely legal issue is resolved.

     The more prudent approach, therefore, is to let the normal political processes of state law run their course. If current trends continue, within only a few more years, 50% or more of the states will recognize same-sex marriage under state law. At that point, when support for same-sex marriage begins to approach the same levels as support for interracial marriage did in 1967, it would then be time to recognize a fundamental right to marry a person of the same sex.