Speaking up for marriage.

• Author: Duncan, William C.

In a weekly radio address in 2004, President George W. Bush said: "If courts create their own arbitrary definition of marriage as a mere legal contract and cut marriage off from its cultural, religious, and natural roots, then the meaning of marriage is lost and the institution is weakened." (1) Although fewer and fewer politicians are willing to speak up so forthrightly for the traditional understanding of marriage, President Bush was right to do so. Ultimately, his steadfast defense of marriage as the union of a man and a woman may be among the Administration's most important contributions.

1. MARRIAGE IN 2000

   The legal definition of marriage became an issue for President Bush even before his election. (2) On the ballot for the March 2000 election in California was Proposition 22, a citizen initiative to add to California's Family Code a provision stating, "Only marriage between a man and a woman is valid or recognized in California." (3) As the issue gained national prominence, the legal definition of marriage arose in debates and commentary during the 2000 presidential campaign. (4)

   Although the first lawsuit challenging a state's definition of marriage as the union of a man and a woman had been raised decades before, resulting in a United States Supreme Court decision (5) the issue assumed truly national stature in 1993. That year, the Hawaii Supreme Court issued a plurality opinion narrowly deciding that the state's marriage law was presumptively unconstitutional as a form of sex discrimination. (6) The court remanded the case to the circuit court for a hearing on whether the state had a compelling interest in maintaining its marriage law. The circuit court, predictably, found that it did not. (7) The passage of a state constitutional amendment, however, rendered the decision moot and reserved to the legislature the ability to define marriage as the union of a man and a woman. (8)

   But before the amendment passed, the Hawaii courts' decisions raised a major national issue: If Hawaii began to issue marriage licenses to same-sex couples, would other states be obligated to recognize these marriages? This question spawned a wave of law journal articles arguing in the affirmative, (9) a series of state laws (thirty-seven in total) enacted to prevent such a result, (10) and ultimately the federal Defense of Marriage Act (DOMA). (11) Overwhelming margins in both the House (342 to 67) and the Senate (84 to 14) approved the Act, and President Bill Clinton signed it into law on September 21, 1996. (12) DOMA defined marriage for federal purposes as the union of a man and a woman and asserted Congress's authority to give parameters to the Constitution's Full Faith and Credit Clause by allowing states to refuse to recognize same-sex marriages contracted in other states. (13)

   In the wake of DOMA, activist groups in New England sued to invalidate Vermont's marriage law. The Vermont Supreme Court ultimately decided the case in 1999. (14) Although the court rejected the plaintiffs' invitation to redefine marriage, it did interpret the Vermont Constitution as requiring the state to extend the benefits of marriage to same-sex couples. (15) In response, the Vermont legislature created a legal status, "civil union," for same-sex couples. Now, wherever the state statutes referred to marriage or spouses, the statutes would include partners in a civil union. (16)

2. MARRIAGE 2001-2008

   A few months after President Bush's inauguration, the group responsible for the Vermont litigation launched a carefully planned marriage lawsuit in Massachusetts, Goodridge v. Department of Public Health. (17) Although the plaintiffs failed at the trial court level in 2003 the Massachusetts Supreme Judicial Court ruled 4-3 that the Massachusetts Constitution mandated a redefinition of marriage. (18) Coming on the heels of, and generously citing, Lawrence v. Texas, (19) the United States Supreme Court's ruling invalidating state sodomy laws, the Goodridge litigation dramatically returned same-sex marriage to the national stage.

   Soon after Goodridge, activist groups launched similar lawsuits in several states. When deciding which states were most likely to hold in their favor, the activists considered such factors as the openness of the state's judiciary to creative interpretation of constitutional principles, the difficulty of amending the state constitution in response to a ruling adverse to traditional marriage, and the state's general social trends regarding marriage and the family. (20)

   But the record for such lawsuits was mixed. In fact, the Eighth Circuit and appellate courts in Indiana, Maryland, New York, and Washington all upheld statutes defining marriage as the union of a man and a woman. (21) In 2008, however, the high courts of California and Connecticut ruled by one-vote margins that these states had to redefine marriage. (22)

   Concurrent with the continued litigation against the inherited understanding of marriage, a new effort arose to provide state constitutional protection to existing marriage laws. After their legislatures failed to enact marriage statutes, the citizens of Nebraska and Nevada amended their constitutions through initiative. (23) In 2004, the small group of states whose constitutions had been amended to preserve the traditional definition of marriage (by now including Alaska and Hawaii) grew much larger. Shortly after Goodridge, the mayor of San Francisco began to offer marriage licenses to same-sex couples, contravening California's Proposition 22. (24) Perhaps as a response to these developments, the legislatures or voters (acting through initiative) of thirteen states placed proposed marriage amendments on the ballot in 2004. The voters approved all of them. (25) Between 2005 and 2007, another ten states approved marriage amendments. (26) Most recently, voters in Arizona, California, and Florida enacted marriage amendments in November 2008. (27)

   As already noted, the California marriage saga began with Proposition 22 and continued with San Francisco's disregarding it. This latter event prompted a full-scale legal attack on Proposition 22's validity. A few months after the California Supreme Court ruled that the city lacked the authority to disregard state marriage law, (28) the superior court in San Francisco County held that the Family Code provisions limiting marriage to opposite-sex couples "violate[d] the equal protection clause of the California Constitution." (29) The court of appeals reversed, (30) but in May 2008 the California Supreme Court finally issued a 4-3 ruling that California's definition of marriage was unconstitutional. (31) The people of California responded by approving Proposition 8 in November 2008. The proposition amended the California Constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized in California." (32)

   The campaign for Proposition 8 highlighted a development that had emerged during the Bush Administration's tenure--the increasing conflict between laws giving legal status to same-sex couples and the rights of third parties, especially religious believers and organizations. For instance, in the wake of the Goodridge decision, Massachusetts Catholic Charities sought an exemption from a state law requiring adoption agencies to make no distinctions on the basis of sexual orientation, because it could not do so consistent with its religious mandate. (33) The legislature refused the exemption, and Catholic Charities withdrew from providing adoption services. (34) The Goodridge court's equation of parenting by same-sex couples and married couples seemed to preclude any judicial relief. (35)

   Redefining marriage in Massachusetts also required public schools to modify their curricula to reflect the change, invariably provoking concern from parents. In a recent case, parents of young elementary school students objected to books meant to teach children to respect marriages and families involving same-sex couples. (36) The parents argued that the school's refusal to give them advance notice and the ability to opt out of instruction regarding same-sex couples violated the Free Exercise Clause and their substantive parental and privacy due process rights. (37) The First Circuit, however, rejected their claims, holding that although the plaintiffs' "sincerely held religious beliefs were deeply offended, ... they have not described a constitutional burden on their rights, or on those of their children." (38)

   Similarly, shortly after the California Supreme Court redefined marriage, the court heard a case involving a doctor who had referred a woman in a same-sex relationship to another doctor for in vitro fertilization because of his religious concerns about participating in the procedure. (39) The court stated that even if the civil rights law under which the plaintiffs sued were subject to strict scrutiny, the doctor still could claim no religious exemption because California's compelling interest in ending sexual orientation discrimination would outweigh even a "substantial[] burden" on religious belief. (40)

   In New Jersey, the Division on Civil Rights found probable cause to charge a Methodist camp association with violating New Jersey's antidiscrimination laws after the association declined to allow...