Brett Turner, Senior Attorney, National Legal Research Group
Petitions for Certiorari have now been filed in the United States Supreme Court from both the Fourth and Tenth Circuit decisions holding that restrictions on same-sex marriage are unconstitutional. The Court has not yet ruled on either petition. The Fourth Circuit opinion is discussed here; the Tenth Circuit opinion is discussed here and here.
Meanwhile, the Seventh Circuit has taken the same position as the Fourth and Tenth Circuits. In Baskin v. Bogan, No. 14-2386, 2014 WL 4359059 (7th Cir. Sept. 4, 2014), the Seventh Circuit held that state provisions limiting the right to same sex marriage are not constitutional. The case involved restrictions on same-sex marriage in both the Indiana and Wisconsin constitutions.
Baskin began with the premise that provisions barring same-sex marriage discriminate against gay persons, who are a suspect class. Therefore, "more than a reasonable basis is required" in order to uphold such provisions. The court rejected a series of arguments that restrictions upon same-sex marriage are justified by concerns of child welfare, and held that the necessary strong justification had not been proven.
Wisconsin further argued that tradition and deference to the democratic process supported restrictions upon same-sex marriage. This is the argument which the author of this blog finds
most persuasive. The court rejected the argument, specifically relying upon Loving v. Virginia, 388 U.S. 1 (1967), which invalidated restrictions upon interracial marriages. But as this blog has previously noted, only 15 states refused to allow interracial marriage at the time of Loving.
By contrast, 33 states presently refuse (absent federal court compulsion) to recognize same-sex marriage. The level of state law support for interracial marriage is 1967 was much higher than the level of public support or same-sex marriage in 2014. This fact substantially distinguishes Loving.
While Baskin held that more than a rational basis is needed to support restrictions upon same-sex marriage, it ultimately held that those restrictions do not survive even rational basis review.
Like most other decisions finding that states cannot constitutionally bar same-sex marriages, Baskin seems untroubled by the notion that three federal judges can almost casually hold that a policy position very strongly supported by a strong majority of American states (33 out of 50) is irrational and invalid. The author continues to believe that this notion is more dangerous than the courts think. In a nation that which purports to be federalist republic run upon democratic principles, the opinion of the voters should not so lightly be cast aside.
But this criticism applies mostly to the court's holding that restrictions upon same-sex marriage lack a rational basis. The author is inclined to accept the argument that tradition and respect for the democratic process provide a rational basis for restrictions upon same-sex marriage, when those restrictions are in place in a majority of states. (This proviso distinguishes Loving, as restrictions upon interracial marriage were very much a minority rule in 1967.)
But a different set of concerns is raised when fundamental rights and suspect classes are involved. Baskin deliberately refused to rule on whether marriage is a fundamental right, but it
did hold that sexual orientation is a suspect class. Moreover, the court noted several times that public opposition to same-sex marriage is steadily shrinking. Indeed, such opposition is under 50%, and may not be too far removed from the level of state opposition to interracial marriage in 1967.
This public opposition has not translated into state law change, partly because the change in opposition is recent, but mostly because restrictions upon same-sex marriage have been written into state constitutions to a degree to which restrictions upon interracial marriages were
not. But while the courts should be inclined to respect the settled opinion of the voters, it is not so important that the courts allow use of state constitutions to perpetuate restrictions upon fundamental rights, even after they lose majority support, merely because they have been written into state constitutions. The strongest part of the argument against restrictions upon
same-sex marriage is that 33 states have enacted such restrictions. The weakest part of the argument is the large and growing gap between support in state law and support in public opinion.
Because Baskin did find that a suspect class was involved, a mere rational basis was not enough to support the measures under attack. Given that opposition to same-sex marriage is under 50% and shrinking, it is not unreasonable to conclude that the measures under review lacked the strong support necessary to justify measures that burden a suspect class. But the court went too far in holding that the restrictions lacked a rational basis.
