The evolution toward judicial independence in the continuing quest for LGBT equality.

• Author: Becker, Susan J.
• Position: III. Judicial Independence Shift in LGBT Marriage Cases through Conclusion, with footnotes, p. 905-947

3. JUDICIAL INDEPENDENCE SHIFT IN LGBT MARRIAGE CASES

The Supreme Court's 2013 United States v. Windsor (230) decision makes marriage cases an appropriate and timely lens through which to examine the ongoing shift in judicial decision-making models in cases involving LGBT litigants.

1. The Long Shadow of Baker v. Nelson

   Baker v. Nelson (231) is commonly acknowledged as the first reported case challenging the heterosexual exclusivity of marriage. Richard John Baker and James Michael McConnell argued that Minnesota's rejection of their marriage license application violated state and federal constitutional provisions, including the due process and equal protection guarantees of the Fourteenth Amendment. (232) The Minnesota Supreme Court summarized plaintiffs' arguments as an "assertion that the right to marry without regard to the sex of the parties is a fundamental right of all persons and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory." (233)

   Minnesota's highest court readily acknowledged the U.S. Supreme Court's characterization of marriage as a "basic civil right" that is "fundamental to our very existence and survival," (234) and that constitutional guarantees of privacy surround the marriage relationship. (235) But the court found no reason to extend these bedrock constitutional principles to a couple of the same sex.

   To the contrary, the Baker Court concluded that "[t]he institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis." (236) The court found neither contemporary concepts of marriage nor societal interests as justification for modifying its Bible-based paradigm of marriage, concluding that "[t]he due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation." (237)

   The Baker Court was unwavering in its reliance on procreation and child rearing as its primary rationale for reserving marriage exclusively for opposite sex couples, even though, as plaintiffs pointed out, some married couples never procreate or raise children. "[T]he classification is no more than theoretically imperfect," the court reasoned, further explaining that the Fourteenth Amendment does not demand "abstract symmetry." (238)

   Minnesota's Supreme Court expressed an equally firm conviction that Loving v. Virginia, (239) the U.S. Supreme Court decision that declared antimiscegenation statutes contrary to Fourteenth Amendment equal protection guarantees, had no relevance to same-sex marriage. (240) The Baker court characterized racial discrimination as "directly subversive of the principle of equality at the heart of the Fourteenth Amendment," (241) and concluded that "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex." (242)

   The same-sex partners in Baker sought U.S. Supreme Court review on the grounds that Minnesota's denial of their marriage license violated their Fourteenth Amendment substantive due process fundamental right to marry, constituted gender discrimination in violation of the Fourteenth Amendment equal protection clause, and denied their privacy rights grounded in the Ninth Amendment. (243) The U.S. Supreme Court rejected the appeal in a one-sentence order, stating that the appeal was "dismissed for want of a substantial federal question." (244)

   McConnell, one of the Baker plaintiffs, was subsequently denied employment with the University of Minnesota for seeking a marriage license. The federal district court analogized McConnell's treatment by the university to the witch hunts of homosexuals exercised during the McCarthy era and concluded that such discriminatory treatment violated McConnell's liberty and property interests under the Fourteenth Amendment. (245) In McConnell v. Anderson, (246) the Eighth Circuit reversed, holding that a state university's decision not to hire McConnell due to his homosexuality did not constitute the "arbitrary, unreasonable or capricious" level of conduct required for courts to intervene. (247) The court held:

   [I]t is at once apparent that this is not a case involving mere homosexual propensities on the part of a prospective employee. Neither is it a case in which an applicant is excluded from employment because of a desire clandestinely to pursue homosexual conduct. It is, instead, a case in which something more than remunerative employment is sought; a case in which the applicant seeks employment on his own terms; a case in which the prospective employee demands, as shown both by the allegations of the complaint and by the marriage license incident as well, the right to pursue an activist role in implementing his unconventional ideas concerning the societal status to be accorded homosexuals and, thereby, to foist tacit approval of this socially repugnant concept upon his employer, who is, in this instance, an institution of higher learning. We know of no constitutional fiat or binding principle of decisional law which requires an employer to accede to such extravagant demands. (248) In short, Baker and McConnell characterized a same-sex couple's request to marry as a "socially repugnant" and "extravagant demand." (249) Other judges embraced this perspective. (250) What cannot be measured, of course, is the profound effect the Baker and McDonnell decisions had in discouraging lesbian and gay activists from pursuing marriage equality litigation for decades after those cases were decided.

   More recently, the Supreme Court's recognition of the federal constitutional rights of gay men and lesbians in cases such as Romer v. Evans (251) and Lawrence v. Texas (252) led federal courts to question Baker's apparent bar to federal constitutional marriage equality claims. (253) But Baker's continued impact, if any, will not be fully resolved until the Supreme Court resolves a Fourteenth Amendment equal protection challenge to a state's denial of a same-sex couple's right to marry. (254)

2. Pro-Equality State Decisions Prior to Windsor and Perry

   1. Hawaii's Saga: Baehr v. Lewin

      The Hawaii case of Baehr v. Lewin (255) represents the first significant victory for marriage equality advocates, albeit a short-lived one. Baehr offers a classic example of judicial independence due to the trial court's: 1) full consideration of the extensive evidence plaintiffs adduced to dismantle negative stereotypes about same-sex couples and their parenting abilities; and 2) appropriate application of established legal doctrine to that largely uncontroverted evidence.

      Three same-sex couples denied marriage licenses alleged in Baehr that the state's rejection of their marriage applications violated Hawaii's constitutional guarantees of privacy, equal protection, and due process. On October 1, 1991, the Baehr trial court dismissed the couples' complaint for failure to state a claim prior to any evidence being submitted in the case. (256) Hawaii's Supreme Court reversed, declaring the trial court's dismissal inappropriate because the trial court had made factual findings and rendered conclusions of law instead of limiting its analysis to the face of the complaint. (257) Rather than merely remanding to the trial court, the court provided a detailed analysis of same-sex marriage under the Hawaii Constitution.

      In its plurality decision, Hawaii's highest court found no fundamental right to marriage "arising out of the right to privacy or otherwise." (258) Two of the four justices, however, held that denial of marriage licenses to persons of the same sex implicated Hawaii's explicit constitutional guarantee of equal protection based on sex, thus requiring strict scrutiny of the state's reasons for that denial. (259) These two justices deemed the denial presumptively unconstitutional, requiring the state to prove "compelling state interests" for excluding same-sex couples from marrying and to demonstrate that "the statute is narrowly drawn to avoid unnecessary abridgments of the applicant couples' constitutional rights." (260) The concurring judge also foresaw a possible equal protection claim based on sex, but only if plaintiffs could show that "heterosexuality, homosexuality, bisexuality, and asexuality are 'biologically fated.'" (261)

      At trial after remand, (262) the state attempted to satisfy strict scrutiny by asserting compelling state interests in: (1) promoting "the optimal development of children," further urging that "all things being equal, it is best for a child that it be raised in a single home by its parents, or at least by a married male and female"; (2) "securing or assuring recognition of Hawaii marriages in other jurisdictions"; and (3) "protecting the public fisc from the reasonably foreseeable effects of approval of same-sex marriage." (263) Because the state provided minimal (and ultimately unpersuasive) evidence on the latter two points, (264) the optimal environment for child-rearing became the determinative issue.

      Defendants proffered the testimony of four expert witnesses to support the state's claimed interests in limiting marriage to opposite-sex couples. One defense expert claiming psychology credentials was disqualified from testifying about alleged methodological flaws in social science studies on same-sex families due to his belief that all "modern psychology is so flawed that no fix, reconciliation or overhaul can correct it." (265) The other three defense experts provided significant support for plaintiffs' arguments that no compelling rationale exists for treating same-sex couples differently than their heterosexual counterparts.

      Defense experts tried to stress the importance of having both a mother and a father to a child's development, but they readily conceded that gay and lesbian parents can and do make excellent parents. Based on...