Is same-sex marriage a threat to traditional marriages?: How courts struggle with the question.

• Published date: 01 January 2011
• Author: Busch, Patrick
• Date: 01 January 2011

Legal recognition of same-sex marriages (1) has only recently become one of the leading issues in American politics, (2) but the history of related impact litigation goes back four decades. (3) Although the arguments raised in the litigation have developed over the years, one argument has persisted: that the State has an interest in preserving the traditional institution of marriage. (4)

Same-sex marriage litigation in the United States has generally proceeded as a challenge to a state's statutory ban of same-sex marriage recognition under the state constitution's equal protection provision. (5) States have consistently defended their bans on the grounds that there is a legitimate state interest in protecting or promoting the traditional institution of marriage, and that this interest is furthered by preventing the legal recognition of same-sex marriages. (6) Despite the ubiquity of this argument, the responses it has received in courts have varied widely. Some courts have accepted the argument and held that there is a legitimate state interest that is furthered by the same-sex marriage ban; (7) others have subjected it to critical analysis and have partially accepted it, finding an equal protection violation but allowing the legislature to remedy the violation by creating a parallel institution (often called a "civil union") that is intended to have all the substantive benefits of civil marriage; (8) and some courts have rejected the argument as a red herring. (9) Several courts have found ways to avoid addressing the argument at all. (10)

German (11) courts began to examine the putative threat posed to marriage by the legal recognition of same-sex unions in 2001 after the German legislature introduced registered civil partnerships for same-sex couples. (12) The partnerships law was challenged on German constitutional grounds. (13) The German Constitution (entitled "Basic Law") requires the government to affirmatively support the institution of marriage, (14) and the challenge to the partnerships law claimed that legal recognition of any form of cohabitation other than a marriage between one man and one woman would undermine the traditional institution of marriage. (15) The German Federal Constitutional Court, which is the court of final jurisdiction for constitutional questions, (16) considered the argument in detail and concluded that the legal recognition of same-sex unions did not undermine the traditional institution of marriage. (17) In a dissenting opinion, one judge argued that the constitutionally required guarantee of the institution of marriage required the State to privilege the institution of marriage above all other forms of cohabitation. (18) However, the Federal

Constitutional Court has since rejected this argument (19) and mandated that all the substantive rights extended to married couples be extended equally to those in registered civil partnerships, except in situations where the government can show a justifiable reason to treat the institutions differently. (20)

While the issue may be more settled in Germany, the legal recognition of same-sex marriages (and other parallel institutions) (21) remains one of the hottest controversies in American politics, (22) and equal protection challenges to same-sex marriage bans continue to be raised in American courts. (23) The political nature of the controversy raises difficult questions about the appropriate scope of judicial intervention in the area, especially when courts are confronted with the politically charged claim that the traditional institution of marriage is threatened by the legal recognition of same-sex marriages. This Note will conduct a brief overview of the ways in which American courts have dealt with the traditional institution argument. It will then address in some detail the approach of the German Federal Constitutional Court to the same argument. This Note concludes that the German judicial approach of providing a clearly explained, logical analysis of the traditional institution argument is an appropriate and desirable way for American courts to address the argument. However, this Note does not advocate a particular conclusion that courts should reach regarding the argument's merits.

I. APPROACHES BY AMERICAN COURTS TO THE TRADITIONAL INSTITUTION ARGUMENT

The first equal protection challenge to a same-sex marriage ban was heard by the Supreme Court of Minnesota in the 1971 case Baker v. Nelson. (24) The court did not directly address the traditional institution argument, but upheld the State's denial of a marriage license to the two petitioners against a challenge under the Federal Equal Protection Clause, although it was undisputed that the sole reason for the denial was that they were of the same sex. (25) The next year, the Supreme Court of the United States dismissed the petitioners' appeal "for want of a substantial federal question." (26) This dismissal "for want of a substantial federal question" has been recognized by several courts to constitute a binding Supreme Court ruling that the Federal Equal Protection Clause permits states to refuse to recognize same-sex marriages while recognizing opposite-sex marriages. (27) In the next two years, Kentucky and Washington state courts heard challenges to denials of same-sex marriage recognition under their state constitutions, and both courts upheld the denials. (28) The next state court consideration of a challenge to the denial of same-sex marriage recognition took place in Hawaii in 1993. (29) In Baehr v. Lewin, the Supreme Court of Hawaii did not require the State to recognize same-sex marriages, (30) but it did find that the denial of marriage licenses to same-sex couples constituted sex discrimination, (31) and remanded to the lower courts for further proceedings. (32) This decision was significant because it was the first time that the highest court of any state treated the traditional institution argument as being within its competence to assess.

However, one dissenting justice did not agree that the argument was judicially assessable, arguing that there was "no question" that the maintenance of the traditional institution of marriage was a legitimate state interest that would satisfy rational basis review. (33) That justice viewed the prospect of a judicial mandate of same-sex marriage recognition as equivalent to "rooting out the very essence of a legal marriage," (34) and argued that "redress for [the] deprivations" of any statutory rights suffered by same-sex couples was "a matter for the legislature." (35) The plurality's response to these arguments was to point out that the court had not ruled on the constitutionality of the same-sex marriage ban, but had merely found that it was facially discriminatory. (36)

However, as no doubt concerned the dissenting justice, the court had held that the state's interest in maintaining the traditional institution of marriage could be evaluated by courts, opening the possibility that a court might someday find the interest insufficient to support a same-sex marriage ban. The justice would have forestalled this possibility by relying on the reasoning of the Court of Appeals of Washington in Singer v. Hara, (37) which held that the State's restriction of civil marriage to opposite-sex couples was not state action for the purposes of equal protection analysis. (38) The strong national reaction to the Baehr ruling spurred the passage of the Federal Defense of Marriage Act in 1996. (39) In 1998, Hawaiian voters amended their state's constitution to preserve the legislature's ability to confine civil marriage to opposite-sex couples. (40)

Legal challenges to same-sex marriage bans in various states and the District of Columbia continued after Baehr, (41) proceeding on equal protection or equal protection-type challenges. (42) None came close to success until the 1999 Vermont case Baker v. State. (43) In Baker, the Supreme Court of Vermont held that the legislature was constitutionally required to either include same-sex couples in the institution of civil marriage or find another way to provide them with identical substantive benefits. (44) In response, the legislature created a parallel institution of "civil unions" in 2000, (45) but in 2009, it granted full recognition to same-sex marriages instead. (46) Vermont thus became the first state to recognize same-sex marriages through legislative, rather than judicial, action. (47)

The first successful judicial challenge to a state's same-sex marriage ban was the 2003 Supreme Judicial Court of Massachusetts ruling in Goodridge v. Department of Public Health. (48) In Goodridge, the court considered the argument that the legal recognition of same-sex marriages would threaten the traditional institution of marriage, but held that the argument contained "circular reasoning." (49) As the court acknowledged in its opinion, the ruling was highly controversial. (50) In the five years following Goodridge, the number of states with constitutional amendments preventing courts (and, with the exception of Hawaii, legislatures) (51) from establishing same-sex marriage recognition jumped from four to thirty. (52)

In 2008, the Supreme Courts of California (53) and Connecticut (54) held that their states' constitutions required the legal recognition of same-sex marriage. Both courts found that the traditional institution argument was not persuasive. In California, the proponents of the traditional institution argument relied on the works of the philosopher John Rawls, who "state[d] that one of the essential functions of the family 'is to establish the orderly production and reproduction of society and of its culture from one generation to the next.'" (55) The court, however, found that the quoted text actually suggested that same-sex marriage recognition would not undermine traditional marriage: "Rawls proceeds to observe that in his view, 'no particular form of the family (monogamous, heterosexual...