Same-sex marriage referenda and the Constitution: on Hunter, Romer, and electoral process guarantees.

• Author: Strasser, Mark

1. INTRODUCTION

   Recently, Alaska, Nebraska, Nevada, and California passed referenda limiting the marriage rights of same-sex couples.(1) The constitutionality of these referenda might be attacked on a number of grounds, for example, that they violate substantive due process guarantees of the Federal Constitution, or that they discriminate on the basis of gender without a sufficiently important basis for doing so or even that they do not promote legitimate state interests but are instead motivated by animus.(2) While an argument might be made that these referenda are vulnerable on any of the grounds mentioned above, the focus of this article will instead be on whether constitutional guarantees are violated when the electorate makes it harder for one group to secure marriage rights by precluding the legislature from according those rights.

   Part II of this article focuses on Romer v. Evans(3) and Hunter v. Erickson,(4) suggesting that although the amendment at issue in Romer was unconstitutional in light of standard equal protection analysis, the case is better understood in light of the Court's developing electoral process jurisprudence as exemplified by Hunter.(5) Part III discusses Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati(6) and Coalition for Economic Equity v. Wilson(7) (hereinafter "CEE"), in which federal appellate panels in the Sixth and Ninth Circuits respectively seemed to fail to follow the Court's existing electoral process jurisprudence.(8) In both cases, the Court refused to grant writs of certiorari,(9) missing great opportunities to clarify how these circuit panels had misapplied the electoral process jurisprudence.(10) Yet, appearances to the contrary notwithstanding, even the rulings of these federal appellate courts support the analysis offered here.(11) Finally, Part IV suggests that the referenda in Alaska, California, Nebraska, and Nevada are all constitutionally vulnerable, even assuming for the sake of argument that Equality Foundation and CEE were rightly decided, precisely because those same-sex marriage initiatives violate electoral process guarantees.(12)

2. HUNTER, ROMER, AND EQUAL PROTECTION

   During the past few years, a few states have amended their constitutions via referenda to make it difficult, if not impossible, for residents of the state to marry a same-sex partner either within or outside of the state.(13) Numerous articles and books have been written suggesting that state legislatures are precluded by the Federal Constitution from passing same-sex marriage bans.(14) What has received relatively less attention, however, is that even if it were true that federal constitutional guarantees would not be violated by a state legislature passing a statute which precluded same-sex domiciliaries from marrying each other, it would not mean that such a rule could be incorporated within the state constitution via referendum without offending constitutional guarantees.(15)

   Arguably, states are constitutionally precluded from passing legislation to preclude same-sex couples from marrying.(16) If a state law banning same-sex marriages violates the Equal Protection(17) or Due Process(18) Clauses of the Federal Constitution, no state will be permitted to enforce such a law.(19) Further, it would not matter whether there was a state constitutional amendment precluding the extension of such recognition, since the Supremacy Clause of the United States Constitution would make those state constitutional provisions null and void, whether or not they remained on the books.(20) For example, when the Court struck down Virginia's anti-miscegenation law in 1967 in Loving v. Virginia,(21) several other states had constitutional provisions prohibiting interracial marriage.(22) Those state constitutional provisions were thereby made unenforceable, whether or not they remained on the books for many years.(23)

   Suppose that one brackets the constitutionality of a state legislature's prohibition of state domiciliaries from marrying same-sex partners, whether within or outside the state,(24) since establishing the unconstitutionality of that would make establishing the unconstitutionality of the referenda at issue a very easy matter. Even so, a separate question is whether that same prohibition could be included within the state constitution without offending constitutional guarantees.

   It might seem that if the Federal Constitution would permit a legislature to pass a law with a particular content, then the Constitution would also permit the electorate of a state to amend the state constitution to include a provision which had that same content. However, there is a constitutionally significant difference between a legislative enactment and a constitutional amendment that might make the latter, but not the former, constitutionally offensive.(25) Thus, a referendum with a particular content might be constitutionally defective if proposed or adopted as a state constitutional amendment, even if it would not have been defective as a proposed or adopted statute.(26) While the United States Supreme Court has not yet specifically addressed whether a state constitutional amendment precluding same-sex couples from marrying violates federal constitutional protections, the developing electoral process jurisprudence suggests that such a measure is constitutionally vulnerable, since referenda that are designed to alter the political structure to make it more difficult for a particular identifiable minority to secure benefits or avoid burdens may well offend constitutional guarantees.(27)

   The claim here must be distinguished from a much bolder claim. It might be argued that a measure adopted by referendum, rather than in a legislative session, will be constitutionally defective either because such a measure will not be sufficiently well-thought out(28) or because such a measure will not have involved the kind of compromise that legislation often involves when passed in a legislature.(29) This much bolder claim suggests that the referendum process itself is constitutionally defective, whereas the more modest claim offered here is that a particular referendum to amend a state constitution may violate federal constitutional guarantees if the referendum falls within certain narrow conditions.(30)

   In Romer v. Evans,(31) the United States Supreme Court struck down Colorado's "Amendment 2," which read in part:

   Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.(32) The Court noted that "[t]he amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies."(33) While understanding that discrimination laws could be reinstated if the amendment forbidding their reinstatement was itself repealed,(34) the Court pointed out that this was too great a burden to impose on one particular group, since no other group would need to have a state constitutional amendment passed in order to receive such protection.(35) Therefore, the Court held that the state constitutional amendment violated federal constitutional guarantees.(36)

   The meaning of the Romer decision is not entirely clear, in part because the amendment's "sheer breadth [was] so discontinuous with the reasons offered for it that the amendment seem[ed] inexplicable by anything but animus toward the class it affect[ed]; it lack[ed] a rational relationship to legitimate state interests."(37) Some commentators have noted the Court's focus on the amendment's breadth, and have suggested that Amendment 2 would not have offended constitutional guarantees if it had been written more narrowly.(38) However, this interpretation is implausible because the Court was using the sheer breadth of the amendment as an indicator of animus and of a lack of a rational relationship between the provision and legitimate state interests.(39) Something less broad might just as clearly indicate that those constitutionally significant factors were present.(40) For example, the anti-miscegenation laws at issue in Loving were held unconstitutional because there was "no legitimate overriding purpose independent of invidious racial discrimination which justifie[d] th[e] classification."(41) Because the key feature was that the statute lacked a rational relationship to legitimate state interests and instead evidenced animus towards a particular group,(42) the statute did not need to be broad to be unconstitutional.

   Suppose that Amendment 2 had been drafted more narrowly so that its only effect was to impact the fundamental interests of lesbians and gays. Presumably, such a statute would still not have had a rational relationship to legitimate state interests and would still have been held to have been motivated by animus, notwithstanding its narrower focus.

   The referenda at issue here do not adversely impact all of the fundamental interests of lesbians and gays, since they "merely" involve the right to marry a same-sex partner. However, the freedom to marry involves "one of the vital personal rights essential to the orderly pursuit of happiness by free men."(43) The Court has made clear that the "freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment,"(44) and that "[w]hen a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state...