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Gay Marriage, Federalism
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and Democracy
Professor Dale Carpenter Answers Questions Posed by Senate Republicans
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FOREWORD BY ASSOCIATE DEAN MAE KUYKENDALL, JD, MA, PhD
The matter of gay marriage presents some real conundrums about rights and democracy, the role of courts in effecting social change, and the traditional power of the states to define the American family.
These conundrums have deepened in recent years as the gay rights movement has achieved some degree of success through litigation, the greater visibility of gay people and gay families, anti-discrimination rules passed by businesses to protect gay employees, and favorable legislation in the states on anti-discrimination and domestic partnerships. Gay marriage, once impossible to imagine, is now a real point of contention. Will it become a legal reality in America? Who will decide?
Many successes of the gay rights movement have come from courts, both state and federal. A few have come from city councils and a very few from state legislatures. The prominent role played by courts in advancing gay rights has brought forward critics who argue that gay rights advocates seek to achieve in the courts what they cannot achieve in legislatures. Given that personal liberty is a critical component of our democratic system, yet democratic input is associated with voting and with legislatures, there is disagreement about how “democratic” are the pro-gay decisions of courts and the counter measures that are proposed and sometimes enacted in response.
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The Vermont Supreme Court held that, under its state constitutional rule requiring that the “common benefits” of the state government be provided to all citizens, the state could not withhold the benefits of marriage from same-sex partners. |
A simple time line of decisions that have most concerned opponents of gay rights probably begins with the 1990 decision by the Hawaii Supreme Court holding that there was a right to gay marriage under the Hawaii Constitution. The court reasoned that refusing to issue a marriage license to a woman to marry a woman, when the state would issue one to a man to marry a woman, was sex discrimination. The response came in two parts. Hawaii passed a constitutional amendment that left to the legislature the task of defining marriage, thus overriding the state constitutional norm against sex discrimination. After a similar Alaska sequence, the United States Congress passed, and President Clinton signed, a bill called the Defense of Marriage Act (DOMA), which defined marriage for all federal laws as the union of one man and one woman. It also provided that no state need recognize any other marriage.
After the passage of DOMA, Vermont emerged as the next battleground in the “culture wars” over marriage. The Vermont Supreme Court held that, under its state constitutional rule requiring that the “common benefits” of the state government be provided to all citizens, the state could not withhold the benefits of marriage from same-sex partners. The court waffled on the remedy, however, leaving it to the legislature to devise a solution that offered all the benefits of marriage to same-sex couples. The result was “civil unions,” a legal status created in Vermont that has all the identical characteristics of marriage, except for the name.
The Vermont example worried opponents of same-sex legal unions, but the cultural dispute over gay marriage remained quiet until the summer of 2003. What caused the change? Quite simply, three powerful events coalesced: a U.S. Supreme Court pro-gay decision, a Massachusetts court decision on gay marriage, and the first gay marriages in the hemisphere—in Canada.
First, in a case called Lawrence v. Texas, the United States Supreme Court overturned a benchmark ruling that was regarded by opponents of gay rights as a critical firewall against pro-gay interventions by federal courts. The overruled case was the renowned and reviled 1986 case of Bowers v. Hardwick, which held that the Constitution does not provide any protection for a liberty interest in sexual intimacy between same-sex partners. So long as the Supreme Court was committed to the principle that a criminal ban on same-sex sexual relationships did not raise a claim for substantive due process violations, there appeared to be little reason to fear that the federal courts would ever hold either that there was a federal constitutional right for gay people to marry under state laws that recognize opposite-sex marriage, or that DOMA violated any constitutional principle.
That understanding shifted when, in Lawrence v. Texas, the Supreme Court finally held that same-sex relationships do have dignitary rights that are violated by state criminal prosecutions. In a stinging dissent, Justice Antonin Scalia argued that the underlying case logic would eventually lead to a court mandate for the recognition of same-sex marriage. While the majority disclaimed that implication, the language of the opinion was sufficiently expansive—even poetic—to leave open the possibility that the logic of precedent and the court’s emotional embrace of ideas about liberty and equality might someday undermine DOMA or even be applied to require states to issue marriage licenses to same-sex partners.
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“The definition of marriage should generally be left to the states, as it historically has been, and thus no branch of the federal government should redefine’ marriage.“
— Professor Dale Carpenter
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The second landmark event was the Massachusetts case of Goodridge v. Massachusetts Department of Health. In Goodridge, the Massachusetts Supreme Judicial Court unleashed a storm of protest by holding that, under the Massachusetts constitution, the state must afford the benefits of marriage to same-sex couples. Although there is some doubt among legal analysts about the court’s willingness to allow the Massachusetts legislature to devise a solution like that of Vermont by creating civil unions and withholding the term “marriage” from opposite-sex couples, the firestorm ignited by the court’s language suggesting same-sex couples are entitled to all the benefits of marriage is under way.
Finally, there is concern that the availability of gay marriage in Canada will create a supply of couples who return after their Canada marriage rites to demand recognition in the United States as married couples.
The result of these three events is a renewed pressure from opponents of same-sex marriage for a definitive barrier against same-sex marriages anywhere in the United States. That pressure takes the specific form of a proposed constitutional amendment to ban same-sex marriage in the United States. The debate has a political connection; the Republican Senate website contains a statement on the need for a constitutional amendment to definitively stop gay marriage.
The Senate Judiciary Committee recently held hearings on the question. Professor Dale Carpenter of the University of Minnesota Law School testified and later answered questions propounded by individual Republican senators. Professor Carpenter is a conservative constitutional scholar who gained notice, before he was a law professor, as president of the Log Cabin Republicans of Texas. The Log Cabin Republicans are a gay organization devoted to advancing the interests of gay people in being recognized within the Republican Party as adhering to principles of that party while also being openly gay. In 1996 and 1998, Carpenter attempted to set up booths at the Texas Republican Convention for the Log Cabin Republicans. In a well known incident, he was forced to close the booth and subjected to considerable opprobrium.
Today, Professor Carpenter is a member of the Republican Unity Coalition (RUC), a group of gay Republicans with access to the White House and an agenda of helping the party achieve “unity” by treating gay people with respect. The RUC presented a brief in the case of Lawrence v. Texas that emphasized a libertarian argument against state interference in personal lives, through applying the criminal law, where there is no rational basis other than a moral disapproval closely connected to an animus against a minority. The Coalition argued that the Texas law against same-sex sodomy demonstrated those characteristics. By comparison, as a First Amendment scholar, Professor Carpenter has argued that the Boy Scouts should be allowed to exclude gay scoutmasters, on the grounds that noncommercial groups have an interest in controlling the speech that their membership policy helps to create.
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Excerpts from Testimony on
Gay Marriage
Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights on “What Is Needed to Defend the Bipartisan Defense of Marriage Act of 1996?”
Professor Dale Carpenter has given permission for Amicus to excerpt some of his answers to questions propounded to him. The questions and answers bear on matters of federalism and individual rights. They also provide an interesting example of the interplay between “hot” rhetoric about law and democracy emanating from the political realm and “cool” rhetoric about law and democracy from a law professor deploying legal analysis to undermine the political message expressed in the questions propounded. Excerpts follow, with some questions and answers not included.
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Question from Senator Saxby Chambliss (R-Ga.)
Please provide your thoughts as to the need for a remedy like the Federal Marriage Amendment, which has been introduced in the House, when it would be possible to insure the continued viability of the existing Defense of Marriage Act by resubmitting its language in the form of a constitutional amendment.
Professor Carpenter: I believe that, for the foreseeable future, a constitutional amendment is unnecessary as a means to prevent courts from imposing same-sex marriage nationwide. Further, the proposed Federal Marriage Amendment would not simply constitutionalize the Defense of Marriage Act. Among many other things, it would prevent states from recognizing same-sex marriage even through ordinary democratic processes.
Questions from Senator Lindsey Graham (R-S.C.)
1. During the hearing, Senator [Russell] Feingold noted that, if an act of Congress is struck down as unconstitutional, then “the only remedy for that…is a constitutional amendment.” Do you agree that, if a law is going to be struck down as unconstitutional, the only remedy to enforce that law is a constitutional amendment, and that the same result could not be accomplished by statute?
Professor Carpenter: No. Assuming the decision came from the Supreme Court, Congress would have at least three other options: (1) rewrite the law to conform to constitutional requirements, (2) exercise whatever authority it has to limit federal courts’ jurisdiction over the matter, and (3) reargue the matter in a subsequent case and ask for reconsideration of the issue.
4. [You] testified that “[no] State in the Union has ever recognized same-sex marriages.” What is your understanding of how previous state court suits were resolved? Specifically, please address the situations in Hawaii, Alaska, Nebraska, Nevada and California where voters in those states adopted state constitutional amendments, or a statewide initiative in the case of California, in 1998 and in 2000. Finally, would a federal constitutional amendment be necessary to defend these amendments from a suit based on Romer and Lawrence?
Professor Carpenter: As to the first question, the ex-
perience in the states so far is that they have successfully dealt on their own with judicial invalidations or prospective judicial invalidations of laws limiting marriage to opposite-sex couples. They have not needed, nor have they requested, the assistance of Congress or of a constitutional amendment to deal with their state courts.
As to the second question, the answer for the foreseeable future is no. In the first two decisions evaluating arguments for same-sex marriage in light of Lawrence v. Texas, one in Arizona and one in New Jersey, state courts have rejected the claims. This is no guarantee that every court will reach the same conclusion but it indicates what is likely to be a strong trend in state and federal courts for the foreseeable future.
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“With elected representatives voting on an amendment, and the states ratifying it, how is the debate over marriage removed from the states, and thereby ‘anti-democratic,’ when the states are the ones that ultimately determine the fate of the amendment?”
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Questions from Senator Jon Kyl (R-Ariz.)
To all panel members: 1. (b) If DOMA is ruled unconstitutional on equal protection and/or due process grounds, can you suggest any other statute that would be upheld that would provide the substantive results embodied in DOMA?
Professor Carpenter: The answer depends on the particular constitutional infirmity found in the law. Without knowing that, it is very difficult in the abstract to give an answer.
To lawyers on the panel: 1. As you know, many lawyers have argued, both in legal briefs and in the news media, that traditional marriage laws, like the federal Defense of Marriage Act and the marriage laws of every state, should be struck down by courts as unconstitutional. For example, according to media reports, Patricia Logue of the Lambda Legal Defense and Education Fund has said, “I think it is inevitable now” that courts will strike down DOMA and recognize same-sex marriage. Will Harrell, executive director of the American Civil Liberties Union in Texas, says he believes “the [Lawrence] decision opens to challenges the Defense of Marriage Act.” And organizations like Lambda Legal Defense and the ACLU, as well as the Human Rights Campaign; People for the American Way; the National Gay and Lesbian Task Force; the International Lesbian and Gay Law Association; the Lesbian and Gay Equality Project; Lesbian and Gay Legal Equality; The Freedom to Marry Coalition of Massachusetts; The Freedom to Marry Foundation; The Lesbian, Gay, Bisexual and Transgender Political Alliance of Western Massachusetts; The Massachusetts Gay & Lesbian Political Caucus; Bay Area Lawyers for Individual Freedom; The Freedom to Marry Collaborative; PridePlanners Association; and other groups have all argued in courts across the country that courts should recognize a constitutional right to same-sex marriage, and that democratically enacted laws limiting the institution of marriage to traditional marriage should be struck down as unconstitutional.
(a) Do you believe that these legal arguments are
frivolous?
Professor Carpenter: While I am not familiar with all of the legal arguments being made on behalf of same-sex marriage advocates, and so cannot comment on the specifics of each group’s advocacy, I believe there are non-frivolous arguments that can be made for holding unconstitutional laws that exclude same-sex couples from marriage. The fact that an argument is non-frivolous hardly means it will be successful, however. Many imaginable non-frivolous arguments on almost any legal issue would have very little chance of success, especially in a court of final resort such as an appeal court or the Supreme Court.
(b) Should courts sanction those individuals and organizations who file such briefs for making frivolous arguments?
Professor Carpenter: Only if the particular arguments they make are, indeed, frivolous.
(c) Do you instead believe that these arguments have some basis in law?
Professor Carpenter: The answer depends on the arguments and the case. However, I believe there are non-frivolous arguments that can be made for holding unconstitutional laws that exclude same-sex couples from marriage.
4. Professor Carpenter testified that “[n]o State in the Union has ever recognized same-sex marriages,” but that is true only because certain states adopted state constitutional amendments to prevent courts from imposing same-sex marriage by judicial fiat.
(a) For example, didn’t courts in Hawaii and Alaska indicate that they were going to impose same-sex marriage by judicial decree, and weren’t they stopped only because voters in those states adopted state constitutional amendments in 1998?
Professor Carpenter: Yes. Each case was a textbook example of the states’ ability to deal with perceived activism by their own state courts. Neither state asked for or received the assistance of Congress or of a federal constitutional amendment in doing so.
6. (a) Is it appropriate for courts to change the longstanding, preexisting statutory and common law definitions of
marriage?
Professor Carpenter: The answer depends on the basis of
the challenge. It was appropriate, for example, for the Court to declare unconstitutional the longstanding antimiscegenation laws of 16 states in Loving v. Virginia. The court has also struck down state marriage laws excluding inmates and dead-beat parents who do not pay legally required child support. As to same-sex marriage, I do not believe the Supreme Court would or should, for the foreseeable future, strike down state laws excluding same-sex couples.
(b) Which branches of government should be involved in any effort to redefine marriage, and which branches of government should not be involved in such an effort?
Professor Carpenter: The definition of marriage should generally be left to the states, as it historically has been, and thus no branch of the federal government should “redefine” marriage. The exception to this is when a state defines marriage in a way that violates the Constitution, as in the case of antimiscegenation laws.
To Carpenter: 2. (c) Perhaps you rely completely upon the Supreme Court as the only true protector of the Constitution. Do you believe that none of the current Justices would rule that the 5th or 14th Amendments require states to grant marriage licenses to same-sex couples? If not, then please identify which Justices you believe would be amenable to so ruling.
Professor Carpenter: All six Justices in the majority in Lawrence explicitly stated their view that the case did not address the issue of same-sex marriage. No Justice currently on the Court has argued for heightened scrutiny of discrimination based on sexual orientation, although Lawrence and Romer v. Evans presented them with opportunities to do so. If there is a Justice presently on the Court who would support a decision ordering a state to recognize same-sex marriages, I do not know which one it would be.
(d) You filed an amicus brief in the Lawrence case. If a coalition of law professors asked you to join an amicus brief in the hypothetical case above—a brief that advocated recognition of a constitutional right for same-sex couples to be married—would you join that brief? Would you file a brief on the opposite side of the same-sex couple(s) seeking recognition of a new constitutional right?
Professor Carpenter: Since I do not believe the Court would or should, for the foreseeable future, issue an opinion ordering the states to recognize same-sex marriages, I doubt I would sign a brief urging it to do so. I also doubt I would sign a brief urging it not to do so.
3. (b) Do you believe that the drafters of the 5th or 14th Amendments intended to create a right for same-sex couples to receive marriage licenses, or that the text of either amendment compels such a result?
Professor Carpenter: I doubt the drafters of the Fifth or Fourteenth Amendments specifically intended to create a “right” to same-sex marriage. I also doubt they intended to end
public racial segregation or the exclusion of women from the law profession.
I do not believe the text of the 5th or 14th Amendments compels the recognition of same-sex marriage. The relevant texts are so spacious they are consistent with many possible outcomes on many issues, but compel very few outcomes on any issues.
4. If the Massachusetts Supreme Judicial Court rules in the pending case of Goodridge v. Massachusetts Department of Health in favor of the same-sex petitioners, do you expect legal challenges to DOMA to follow? Would you be supportive of those challenges?
Professor Carpenter: Yes, I expect same-sex marriage advocates eventually to challenge DOMA after a hypothetical future victory in a state court case. Since I do not know what the basis for these hypothetical, future, contingent challenges would be, I am not sure whether I would support them. I am dubious, for example, about Section 2 of DOMA as a matter of congressional power. The constitutional text suggests, to me, a purely procedural role for Congress to determine “the manner” in which foreign state acts or judgments are “proved” and the “effect” of that manner of proof. I have not further considered the matter, devoted time to the scholarship on the congressional power issue, or researched the relevant history, so this view is a tentative one.
Question from Senator Larry E. Craig (R-Idaho)
You called a constitutional amendment defining marriage as the union between one man and one woman “anti-democratic” insofar that it removes the debate over same-sex marriages from the states. But, at present, it seems that the courts—not the voters—have been doing most of the talking on the issue, with voters stepping in only to check state court decisions or decide questions of civil unions, domestic partnerships, and other forms of legal same-sex partnerships. If a constitutional amendment defining marriage was ratified, would conditions be any less democratic? That is, if the amendment defined marriage as the legal union of one man and one woman, it seems that the voters in the states could still debate the issue of civil unions, domestic partnerships, and the like. With elected representatives voting on an amendment, and the states ratifying it, how is the debate over marriage removed from the states, and thereby “anti-democratic,” when the states are the ones that ultimately determine the fate of the amendment?
Professor Carpenter: These are important questions. Let me take them in order.
(1) If a constitutional amendment defining marriage were adopted, democratic control over family law would be significantly eroded. As of now, the people of the states may, through their legislatures, choose to recognize same-sex marriages, to ban same-sex marriages via state statute or state constitutional amendment, or to adopt some “marriage-like” option like domestic partnerships or civil unions. The people of the states have been actively considering, and exercising, these options through their state legislatures and through popular initiatives. Very few state court challenges—and no federal court challenges—to the exclusion of same-sex couples from marriage laws have been successful. Even those few state court successes have been reversed (Alaska, Hawaii) or limited (Vermont) by democratic processes. Thus, the “activism” of state and federal courts in this area has been exaggerated. The people of the states have so far very much been in control of their own destinies on this issue.
Yet the proposed Federal Marriage Amendment (FMA) would, at a minimum, strip the people of the states of their ability to recognize same-sex marriages. It would also likely prevent courts from enforcing the rights of parties to state-created domestic partnerships or civil unions, since enforcing such rights would require courts to “construe” state law to give “the incidents” of marriage to couples other than one man and one woman. Thus, while the states might in theory be able to adopt domestic partnerships or civil unions, in practice these state experiments would be meaningless (because they would be effectively unenforceable). The proposed amendment would be a significant and radical intrusion on the traditional role of the states in our federal system.
(2) Even though an amendment requires a supermajority in Congress and among the states, it has three antidemocratic effects. The first two are common to all constitutional amendments; the third is peculiar to the FMA.
First, any amendment is antidemocratic as to the states that refuse to ratify it. There could be as many as 12 states, perhaps among them our most populous, like California and New York, that would be stripped of their traditional power to decide the issue democratically by the actions of the Congress and the 38 ratifying states.
Second, an amendment would bind the people of all the states, even those states that had approved the amendment, from ever reconsidering the issue democratically (except through another federal constitutional amendment). Under the present system, states may opt for one policy choice now but are free to revise their own choice at a later date based on their experience. The FMA would preclude that normal democratic process, binding the people of the states forever to an earlier decision made by an earlier generation lacking their experience.
Finally, the proposed FMA would be “peculiarly” anti-democratic. It would mark the first time we amended the Constitution to limit states’ ability to decide democratically to expand rights and to include more people in the fabric of national life. Up to now, the constitutional constraints on democratic processes have been designed to limit states’ ability to diminish rights and to exclude people from national life. Rather than setting a floor on rights and inclusion, for the first time in our history the FMA would set a ceiling on them. What a tragic and needless departure from our history and traditions that would be.
Dale Carpenter is associate professor of law at the University of Minnesota Law School, where he teaches in the areas of constitutional law, sexual orientation and the law, and commercial law. His current research interests include same-sex harassment and the First Amendment. Professor Carpenter received his BA degree in history, magna cum laude, from Yale College in 1989. He received his JD, with honors, from the University of Chicago Law School in 1992. At Chicago, he was editor-in-chief of the University of Chicago Law Review and received both the D. Francis Bustin Prize for excellence in legal scholarship and the John M. Olin Foundation Scholarship for Law & Economics. Professor Carpenter clerked for the Honorable Edith H. Jones of the United States Court of Appeals for the Fifth Circuit from 1992 to 1993. After his clerkship, he practiced as an associate at Vinson & Elkins in Houston, and at Howard, Rice, Nemerovski, Canady, Falk & Rabkin in San Francisco.
Mae Kuykendall is associate dean for academic affairs and professor of law at Michigan State University-DCL College of Law. She holds a JD, cum laude, from Harvard Law School, and a PhD and an MA from the University of North Carolina. Upon completion of law school, she clerked for the Honorable Joseph W. Hatchett of the U.S. Court of Appeals for the 11th Circuit. She then spent six years as an associate in the New York City firm of Debevoise & Plimpton, practicing in the area of corporate finance. Dean Kuykendall writes in the area of corporate law and has a scholarly interest in the relationship between legal definitions of marriage and the evolving common usage of the term “marriage.” She is the co-reporter of the Michigan Business Corporation Act. Prior to her law career, Dean Kuykendall was involved in civil justice research in an office attached to the U.S. Attorney General’s office at the Justice Department in Washington, D.C. She is co-chair of MSU-DCL’s Corporate Law Concentration and teaches Business Enterprises, Mergers and Acquisitions, and Constitutional Law II.
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