Legislating love: ancillary issues arising from South Dakota's refusal to recognize same-sex marriage.

• Author: Haigh, Tyler
• Position: Symposium on LGBT Rights

In recent years, the people of the United States have witnessed a movement toward equality as more states recognize same-sex marriages. This recognition has helped to develop a more consistent legal system. In states that have failed to recognize same-sex marriage, however, the inconsistent application of laws is stark. This article analyzes the anomalies and contradictions that occur in the legal system when states treat same-sex citizens differently. The impact of a state's decision to not recognize same-sex marriage is not confined to just that single issue; issues of discrimination, travel, legal privileges, domestic laws, and criminal defense laws are rampant. By recognizing same-sex marriages, states can resolve the inconsistent legal problems while protecting the rights of all.

1. INTRODUCTION

   In February 2007, Janice Langbehn faced a problem that no family member should ever be forced or expected to deal with. (1) Her partner of eighteen years, Lisa Pond, suffered an aneurysm and was admitted to Jackson Memorial Hospital in Miami, Florida. (2) Hospital staff refused Ms. Langbehn and their legally adopted children the ability to visit. (3) Under Jackson Memorial Hospital policy, homosexual partners and their adoptive children are not considered "family," and therefore are not granted visiting privileges. (4) The staff also failed to notify Ms. Langbehn of Ms. Pond's health status or any medical procedures the staff planned on performing. (5) She spent hours alone while her family was unable to visit her in the trauma room. (6) Ms. Pond died that night. (7) She passed without her family members getting the opportunity to say goodbye. (8)

   Ms. Langbehn brought an action against the hospital in federal court for lack of access to her partner, as well as a claim for the intentional infliction of emotional distress that was wreaked upon both her and the children. (9) The United States District Court in Florida determined that the hospital "did not have any duty under Florida law to provide such information about Ms. Pond to the children, who did not have the authority to make any medical decisions on her behalf." (10) Furthermore, the Court stated that the doctors at the trauma unit did not have a legal obligation to allow Ms. Langbehn to visit with Ms. Pond. (11)

   Because same-sex couples are prohibited from marrying in many states, gay and lesbian couples are often denied the right to visit their sick or injured loved ones in the hospital. (12) This is just one example of the adversity gay and lesbian couples must face in states that have unequal and restrictive laws. (13) While heterosexual couples do not usually experience issues like these, millions of gays and lesbians repeatedly confront similar issues, because their right to marry has been restricted. (14)

   Nine million American adults identify with the LGBT community. (15) Despite the fact that "gays and lesbians are members of our families, clubs, and workplaces," and are "our doctors, our teachers, our soldiers ... and our friends," they are treated differently. (16) Similar to heterosexual couples, gay and lesbian couples strive for acceptance and loving relationships, yet they do not have the same rights as heterosexual couples in many respects. (17) Thirteen states have statutes or constitutional amendments banning marriages between homosexual couples, (18) and each ban invariably leads to inconsistent legal outcomes. (19) This rejection of same-sex marriage is unequal and detrimental to the integrity of our legal system, as well as our society. (20)

   This article will review South Dakota's constitutional adoption of "Amendment C" as well as the Defense of Marriage Act. (21) This article also includes an overview of relevant Supreme Court case law on marriage, recent federal and state cases regarding same-sex marriage, and rights affected by marriage. (22) It further advocates for the recognition of same-sex marriage, because a failure to do so leads to intolerable societal outcomes. (23) It must be emphasized that restricting gay and lesbian couples from the right to marry is not only unequal and discriminatory itself, but it also creates collateral issues outside of those marital rights. (24) Some practical issues that develop in dealing with the individual liberties of gay and lesbian couples who are denied the rights to marry include their rights to travel, (25) rights to testify at trial, (26) as well as rights to benefits that are only awarded to married couples. (27) This article argues that inequality on the basis of sexual orientation creates a discriminatory legal system that is unfair, inconsistent, and generally unreasonable to the gay and lesbian community. (28) Finally, this article will advocate that South Dakota should recognize same-sex marriage in order to recognize the loving relationships between those of the same gender, limit the current inconsistencies within the state, and provide the same rights to gay and lesbian couples that are afforded to heterosexual couples. (29)

2. BACKGROUND

   1. "THE MOST IMPORTANT RELATION IN LIFE": A CONSTITUTIONAL HISTORY OF MARRIAGE

      Over a century ago, the United States Supreme Court first stated that the right to marry is a fundamental right of all individuals. (30) The Court stated that marriage is viewed as an institution which establishes, "the most important relation in life, as having more to do with the morals and civilization of a people than any other institution...." (31) The Court further observed that marriage is more than a mere contract, as it creates "a social relation like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals...." (32) In effect, the Court opened the door for many non-traditional marriages to be recognized as a basic fundamental right. (33)

      Once marriage was recognized as a fundamental right, many cases followed and expanded on this principle. (34) In Loving v. Virginia, (35) the Supreme Court struck down Virginia's state regulation prohibiting interracial marriages. (36) It is clear the Court recognized the enduring significance of marriage between individuals, among families, and within society as a whole. (37) The Court also acknowledged that marriage is subject to state regulation without federal intervention under the Tenth Amendment, which allows powers that are not delegated to the federal government to be governed by the states. (38) The Court, thus, must merely ask "whether there is any rational foundation for the discriminations," and has deferred to the wisdom of the state legislatures. (39) It determined that statutory classifications could not be created for the sole purpose of discriminating against a specific group of people. (40) The Court reasoned, "the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination." (41) Furthermore, the Court recognized that "[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States." (42) With that foundation, the Court ultimately held that the freedom to marry a person of a different race is up to the individual, not the state, and further cited precedent stating that "[m]arriage is one of the 'basic civil rights of man'...." (43) This landmark case created the notion that marriage, as well as any other fundamental right, (44) may not be restricted unless the prohibition conforms to substantive constitutional objectives. (45) Finally, the Court draws much of its attention to the fact that the Equal Protection Clause requires that classifications based on race be subject to the "most rigid scrutiny," meaning they must be necessary for accomplishing a compelling governmental interest. (46)

      In many opinions in which marriage was not the ultimate subject at issue, the United States Supreme Court has referenced the right to marry as a fundamental right (47) For example, in Moore v. City of East Cleveland (48) a homeowner was charged for violating of a housing ordinance that limited who could reside in the home to only certain "family" members. (49) In its opinion, the Court explained that "when the government intrudes on choices concerning family living arrangements," the Court is forced to "examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation." (50) Following Moore, a number of United States Supreme Court cases expanded on the notion that the government must carefully scrutinize its interests before restricting individuals from having marital rights. (51)

   2. REPRESSING THE RIGHT TO MARRIAGE: A HISTORY OF DOMA AND SOUTH DAKOTA'S CONSTITUTIONAL AMENDMENT

      Federal and state laws on same-sex marriage largely disapprove of the gay and lesbian community. (52) South Dakota has never recognized same-sex marriage and furthermore adopted state constitutional provisions making the path to legal same-sex marriage more difficult. (53) In addition to states restricting same-sex marriage, the United States Congress enacted statutes preventing same-sex marriages from being recognized at the federal level. (54) This section discusses the recent history of discriminatory statutes and constitutional provisions that the gay and lesbian community has faced in South Dakota and around the nation. (55)

      1. DOMA

         In 1996, the United States Congress enacted the Defense of Marriage Act (DOMA) containing two operative provisions. (56) Section two of DOMA authorizes states to ignore same-sex marriages that are legally recognized in other states. (57) The rationale for section two was that each individual state should have the capability to dishonor marriages that violate their public policy. (58) South...