Already Settled Law?

There is a “reasonable people can differ” argument over whether states can decline to create same-sex marriage statutorily without falling afoul of the Equal Protection Clause of the Fourteenth Amendment (the argument, more or less, is that such “bans” mirror bans on mixed race marriages, held unconstitutional in Virginia v. Loving, and here, the argument depends crucially on the analogy between race and sexual orientation holding or not.) However, what happened in North Carolina was not the act of a state legislature (or the omission of an act by a state legislature). It was an amendment to the state constitution. This may matter in ways that have not occurred to people who care only about winning or losing on the substantive issue.

Once upon a time, the state of Colorado attempted to do something similar. There were political forces at work leading to the inclusion of sexual orientation as a prohibited form of discrimination in various antidiscrimination statutes and ordinances within the state. Colorado responded by amending its state constitution. The effect of this would be that even if advocates of sexual orientation antidiscrimination statutes were successful in persuading the majority of the people and the political branches of their desirability, they would still be impossible unless there was also success in repealing the amendment to the state constitution. And the U.S. Supreme Court held that this was a bridge too far.The case is called Romer v. Evans, and you can read it here.

The reasoning of the court focused on the wide range of potential statutory protections homosexuals were prevented from seeking from the legislature by the amendment, and given the absence of any rational relationship to any legitimate governmental interest, the inevitable inference that the amendment was born of animus. “Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”

Now it is arguable that marriage is quite different in substance from antidiscrimination legislation, but consider: marital status carries with it a slew of status-based advantages both public and private. If North Carolina’s Amendment One left the door open to domestic partnerships or civil unions which were functionally equivalent to marriage but lacking its dignitary value, one could argue that this slew is unaffected, and that the legislature was still “open on impartial terms to those who seek its assistance” but the language of Amendment One makes it clear that this too shall be blocked from statutory creation (“Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State”), and that if gays and lesbians seek functional equivalents, they will have to cobble them together piecemeal using existing law (“This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts”). This can be done, but it is complex and inconvenient (consider this book of legal forms and notice the long list of forms it provides for precisely this purpose.)

So my question is: isn’t the unconstitutionality of Amendment One already settled law?

Postscript: a legal scholar recommends that the Supreme Court arrive at a holding not unlike what I have described above. I would go further and predict it.

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4 comments on “Already Settled Law?

  1. Richard says:

    Not so sure about that. Colorado’s amendment was very explicitly directed against a class of people and denied them any form of protection. As the Court’s majority opinion said, it had “the peculiar property of imposing a broad and undifferentiated disability on a single named group”. In contrast, the North Carolina amendment (and others like it) does not name a group. It bars recognition of various types of “union”. Now, the unions in question happen to be particularly valued by a certain class of people, but nonetheless they are denied to everyone. So there is a superficial fairness in it that could be taken to pass Romer‘s requirement that the state “remain open on impartial terms to all who seek its assistance.” The amendment is still a big steaming pile of bias and bigotry, but at least they sprayed a bit of air freshener on it, and that might be enough for a conservatively inclined Court.

    • poseidonian says:

      I see that, but it’s not necessarily dispositive. In my favorite case, Lukumi, which is a First Amendment case with an Equal Protectionesque style of reasoning, the city never even mentioned the Santeria practitioners by name. But the court (Kennedy again, who also wrote Romer) reasoned that by imposing a general ban on animal slaughter with various seemingly reasonable exemptions, that the city was merely camouflaging its intent, which was to ban Santeria. The basis was: everyone who slaughters animals fell into one of the exemptions, except them. Now this is a stretch for any proposition other than the one that says targets of animus need not be named, but consider: which class of people does a universally applicable ban on same sex marriage affect differentially? Only one group. And the purpose is to make sure that that group cannot enjoy the same opportunities to give their intimate relationships a certain legal status that everyone else does. One could make too much of this, but I was struck by the fact that I have seen very little made of the fact that it was a state constitutional amendment, and yet in Romer that fact by itself is given great weight.

  2. Gordon says:

    Kevin, I think you have a very interesting point. (I don’t have an argument here, I just think you make a very interesting point.)

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