Repost: Already Settled Law?

[Originally posted 5/9/2012]

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.


[Postscript 3/26/2013: In case it is not clear, the North Carolina amendment is not the subject matter of the case now before the Supreme Court, and there are disanalogies. For one, California is now for all practical purposes a “civil unions” state, so the issue largely becomes a dignitary one rather than a practical one. However, the fact that access to this dignitary interest is blocked by state constitutional amendment in California makes the case not unlike Romer, and since the perennial swing vote, Justice Kennedy, was the author of Romer, I think that at least the following prediction is plausible: California cannot win. Whether the gay community will get everything it wants remains to be seen.]