Brett Turner, Senior Attorney, National Legal Research Group
A Michigan federal court has joined the growing consensus of federal decisions holding that all restrictions upon same-sex marriage are per se unconstitutional. DeBoer v. Snyder, 12-CV-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014).
DeBoer adopted the broad rationale that there is no rational basis for legislation limiting same-sex marriage. The court expressly rejected an argument that same-sex marriages are a suboptimal environment for raising children, accepting expert testimony that children fare equally well, regardless of whether they are raised by opposite-sex or same-sex couples.
The Court finds Rosenfeld's testimony to be highly credible and gives it great weight. His research convincingly shows that children of same-sex couples do just as well in school as the children of heterosexual married couples, and that same-sex couples are just as stable as heterosexual couples. The Court notes that the testimony of Brodzinsky and Rosenfeld is in line with a strong "no differences" consensus within the professional associations in the psychological and sociological fields. Brodzinsky made the following statement in his expert witness report, which defendants did not challenge:
Every major professional organization in this country whose focus is the health and well-being of children and families has reviewed the data on outcomes for children raised by lesbian and gay couples, including the methods by which the data were collected, and have concluded that these children are not disadvantaged compared to children raised in heterosexual parent households. Organizations expressing support for parenting, adoption, and/or fostering by lesbian and gay couples include (but are not limited to): American Medical Association, American Academy of Pediatrics, American Psychiatric Association, American Academy of Child and Adolescent Psychiatry, American Psychoanalytic Association, American Psychological Association, Child Welfare League of America, National Association of Social Workers, and the Donaldson Adoption Institute.
Pls.' Ex. 30 at ¶ 21. In fact, the 2004 Council of Representatives of the American Psychological Association ("APA") unanimously voted in favor of issuing a position statement that "research has shown that the adjustment, development, and psychological well-being of children is unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish." Pls.' Ex. 111 at 2.
Id. at *4 (emphasis added).
This author has suggested previously that federal courts should not recognize a broad nationwide right to same-sex marriage until a larger number of states recognize such marriage by legislative or electoral action. This is essentially the argument that federal law should proceed with caution in changing the traditional definition of marriage in a manner not yet accepted by a majority of states. The court responded to this argument as follows:
Legislatures and regulatory agencies often cite to such reasoning when postponing decisions related to issues of public importance, as matters of public policy are resolved with more candor and insight when they are decided after an open debate based on sufficient facts. This is why federal administrative agencies must provide the public with a notice and comment period before exercising their rule-making authority. Hearings must be held, studies must be conducted, and legislators must deliberate. These things necessarily take time. But the calculus is fundamentally altered when constitutional rights are implicated because "any deprivation of constitutional rights calls for prompt rectification." Watson v. Memphis, 373 U.S. 526, 532B533 (1963). "The basic guarantees of our Constitution are warrants for the here and now and, unless there is an overwhelmingly compelling reason, they are to be promptly fulfilled." Id. The state may not shield itself with the "wait-and-see" approach and sit idly while social science research takes its plodding and deliberative course. Were the Court to accept this position, "it would turn the rational basis analysis into a toothless and perfunctory review" because "the state can plead an interest in proceeding with caution in almost any setting." Kitchen v. Herbert, No. 13B217, 2013 U.S. Dist. LEXIS 179331, at *77 (D.Utah Dec. 20, 2013). Rather, the state must have some rationale beyond merely asserting that there is no conclusive evidence to decide an issue one way or another.
Id. at *14 (emphasis added).
From reading the above passage, one would think that many laws are found unconstitutional
under the rational-basis test. But, in fact, in most situations outside the context of gay rights and same-sex marriage, the great majority of all rational-basis arguments are unsuccessful. For example, "where 'ordinary commercial transactions' are at issue, rational basis review requires deference to reasonable underlying legislative judgments." Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073, 2080 (2012). In constitutional law generally, commentators regularly note "the extreme deference the Court has traditionally shown when applying [the rational-basis] standard." Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 Mich. L. Rev. 431, 437 (2005).
Yet the rational-basis standard has been applied with much less deference in cases involving gay rights and same-sex marriage. This point emerges most clearly from Lawrence v. Texas, 539 U.S. 558 (2003), which struck down the Texas sodomy statute without ever expressly stating a standard of review and therefore necessarily applying the rational-basis test. The version of the test applied in these cases has been very different from the version applied in commercial cases, to the point where some commentators have suggested a different label—"rational basis with teeth." See, e.g., Steven P. Wieland, Gambling, Greyhounds, and Gay Marriage: How the Iowa Supreme Court Can Use the Rational-Basis Test to Address Varnum v. Brien, 94 Iowa L. Rev. 413 (2008).
The DeBoer court showed very little deference to restrictions on same-sex marriage; it examined the alleged justification for such restrictions very closely, and ultimately concluded that no rational basis existed. Clearly, the standard applied is rational basis with teeth. In the passage emphasized above, the court justified this standard by claiming that "the calculus is fundamentally altered when constitutional rights are implicated." 2014 WL 1100794 at *4. But constitutional rights are implicated in every rational-basis case, and only some of the rational-basis cases apply rational basis with teeth. The mere fact that constitutional rights are implicated, therefore, is alone not a sufficient basis for applying the sort of strict analysis the same-sex marriage cases are applying. There must be some additional reason, over and above the fact that "constitutional rights are implicated," id., why the DeBoer court (and many of the other recent district court same-sex marriage cases) chose to apply the stricter version of the rational-basis test.
One very logical explanation is that the courts have decided, at some informal level, to treat classifications based upon sexual preference as inherently suspect. That is the most likely reason for the strict standard applied in Lawrence: Justice Kennedy, who cast the crucial fifth vote for the majority opinion, has a history of disfavoring legislation that discriminates against gay people. See, e.g., Romer v. Evans, 517 U.S. 620 (1996). (Justice O'Connor provided a sixth vote for striking down the statute in Lawrence, but she preferred a different rationale.) Kennedy was not willing to overtly hold that a suspect class existed, but he was also not willing to apply the extremely deferential form of the rational basis that applies in commercial cases.
Behind the current wave of opinions applying a strict form of the rational-basis test to legislation limiting same-sex marriage, therefore, is an implicit determination that such legislation is, to a certain extent, inherently suspect. In effect, the courts have already made at least a preliminary determination that a right to same-sex marriage should exist unless there is some significant reason why it should not. DeBoer did not expressly find that persons of the same sex have a fundamental right to marry. But it spoke very favorably of Loving v. Virginia, 388 U.S. 1 (1967), which recognized a fundamental right to interracial marriage:
Loving has profound implications for this litigation. In that case, the Supreme Court overturned Virginia's anti-miscegenation statutes prohibiting interracial marriage because they violated substantive due process and equal protection. In doing so, the Court rejected Virginia's argument that "under the Constitution the regulation and control of marital and family relationships are reserved to the States." Kitchen, 2013 U.S. Dist. LEXIS 179331, at *83-84 (citation omitted). This position, which the state defendants advance again in the present case, is just as ineffectual now as it was in Loving. Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA cannot stand.
2014 WL 1100794 at *16. This passage suggests strongly that the court at some level accepted the basic notion that same-sex couples have a fundamental right to marry. That notion was the entire foundation for the opinion in Kitchen, which is favorably quoted in the above passage. If a broad nationwide right to same-sex marriage is to be recognized, the best path forward is the reasoning of Kitchen—recognition of a fundamental right to marry, which can be restricted only for a very strong reason. This reasoning avoids the need to label all opposition to same-sex marriage as irrational, which is likely to anger social conservatives and make them more reluctant to accept same-sex marriage.
