Dmytro Taranovsky
December 9, 2012
Modified: Dec 11, 2012

Same-Sex Marriage under the US Constitution

Suggested outline for how the Supreme court should rule in Hollingsworth v. Perry.
Note: The document is largely written in the style as if it is a Supreme Court opinion.

Held: California Proposition 8 (2008) is unconstitutional.


We first note that the appellants have standing because as the California Supreme Court held, for the purposes here, they are agents of the state. While standing in federal courts is a federal issue, it may rely on rights created by state law, and on questions of state law, we ordinarily defer to state courts.

The Right to Marry

The Fundamental Right
Substantial due process protects not only those rights enumerated in the Bill of Rights, but also, as the Ninth Amendment suggests, some unenumerated rights, including rights that are deeply rooted in the consciousness and legal traditions of the American people. The right to marry predates the formation of our government and is so deeply rooted in history and traditions as to be considered fundamental. It is recognized as fundamental by our precedent: Loving v. Virginia 388 U.S. 1 (1967), Zablocki v. Redhail 434 U.S. 374 (1978), Turner v. Safley, 482 U.S. 78 (1987). In Turner, a unanimous court has concluded that the right to marry extends even to prisoners who, under our precedent, can be denied so many of the other rights considered fundamental.

Our traditions guide us in deciding which unenumerated rights are fundamental but are not the end of the inquiry. In particular, the scope of the recognized rights must be consistent with the constitutional text. The due process clause uses "person" not "man" and as such is gender-neutral: It grants the same rights to men as it does to women. Men and women are fundamentally equal, and it would make no sense to hold that, for example, men but not women have a constitutional right to marry. We emphasize that the question is not just whether a state may discriminate on the basis of sex but whether the due process clause itself is discriminatory. It is not. The opposite sex restriction is not a permissible construction of the constitutional right to marry.

Sex Discrimination
Because of the importance of the holding, we note that it is independently supported on another ground as well: The ban discriminates on the basis of sex without satisfying a sufficiently important governmental interest. Under the initiative, the class of persons one can marry is determined at birth (actually, conception) and depends solely on one's sex. The initiative does not prohibit gay men from marrying lesbian women; it prohibits persons of same sex from marrying regardless of their sexual orientation. Moreover, the ban is related to the long-standing historical practice of sex discrimination, particularly in marriage. In the past, the husband was regarded as the master and the wife was expected to obey him; men and women had very different roles, and same-sex marriage was incomprehensible to many as inconsistent with these gender roles. However, this is now mostly in the past, and under our precedent, men and women have generally equal rights, including in marriage.

Sexual Orientation Discrimination
Furthermore, we believe that discrimination based on sexual orientation is subject at least to intermediate scrutiny because of effective permanence of sexual orientation, its general irrelevance, the history of discrimination based on sexual orientation, and the close connection between sexual orientation discrimination and sex discrimination. Also, while homosexuals were not generally denied the right to vote, for most of the nation's history, their access to the political process was curtailed by the need to maintain secrecy, necessitated in part by unconstitutional laws.

Lack of Rational Basis
Even if strict or intermediate level scrutiny were not applicable, the ban would still fail the heightened rational basis test. Heightened rational basis test is essentially rational basis test but with a more searching review that the discrimination is in fact rational rather than arbitrary. Its use reflects the fact that discrimination between different classes of humans — even those that are not traditionally a suspect class — is still discrimination and is not like discrimination between different breeds of dogs. Marriage does not, and constitutionally cannot, require a sexual relationship; neither long term commitment nor the government benefits require sex, and we see no rational basis for legally enforced gender discrimination in a nonsexual relationship, so the ban fails the test.

Moreover, while not strictly necessary for our holding, we note in accordance with Lawrence v. Texas, 539 U.S. 558 (2003) that suppression of gay sex is not by itself a legitimate government interest. Furthermore, sexual orientation is not ordinarily a matter of choice. For a gay person, the alternative to same-sex marriage is not likely to be a similar opposite-sex marriage. It is more likely to be having multiple homosexual trysts while perhaps having a loveless opposite sex marriage for cover and government benefits. That can hardly be argued to be more in line with family values than a loving committed same-sex relationship.

Similarly, reproduction is not and cannot be required of marriage. Furthermore, as a class, same-sex couples are as adept in raising adopted children as are opposite-sex ones. Studies suggest that same-sex and opposite-sex couples are on average equally good in raising adopted children. And even if gender / sexual orientation was correlated with other factors that cause adverse outcomes for children, the damage is from those other factors and not from gender per se.

Other Marriage Restrictions

In holding that the same-sex marriage ban is unconstitutional, we do not need to decide constitutionality of other marriage restrictions, but a few comments are in order.

Polygamy and group marriage are different in kind from one-on-one marriage and are not protected by the fundamental right to marry.

There are four differences between same-sex marriage and incestuous marriage: (1) Bans on incestuous marriage are narrow, and rights that are ordinarily fundamental can have narrow exceptions — given two people selected at random from the population of the United States, a same-sex marriage ban applies 50% of the time while incestuous marriage ban has less than one in a million chance of applying. (2) Bans on incestuous marriage does not discriminate against a suspect or a quasi-suspect class. (3) Close relatives are likely to have a pre-existing relationship which may impair their freedom to resist marriage to each other. (4) Reproduction between close relatives is likely to cause genetic defects.

Among fundamental rights, marriage — being a long-term contract of the highest importance — is least susceptible to being applicable to children. The ban on child marriage is constitutional unless bans on children making contracts, running away from home, and voting in elections are all unconstitutional.

Marriage and Language

The right to marry is distinct from the words the state uses in documenting the relationship. Unlike the Ninth Circuit, we are not convinced that it is unconstitutional for a state to call opposite-sex marriage marriage and same-sex marriage civil union or domestic partnership, nor do we see any constitutional significance in California having same-sex marriage for a brief period. While taking property is different from not giving it, Proposition 8 did not annul preexisting marriages but merely precluded future same-sex marriages.

English language is full of arbitrary rules that remain there by tradition. Like most other languages, it treats males and females differently — males are referred as 'he' and females as 'she', and there is no suitable gender-neutral pronoun. We do not believe that it is unconstitutional for government officials to use these pronouns. Similarly, the word 'marriage' has traditionally implied two people of opposite sex. Moreover, at present, a significant fraction of the population would not consider same-sex marriage to be marriage in what they view as the fundamental sense of 'marriage'. On the other hand, there is no generally agreed word other than marriage to denote same-sex marriage, and thus, from a purely linguistic point of view, 'marriage' seems the best term here.

We are not convinced that the constitution (which does not mention marriage by name) resolves this question, and just like it is our duty to strike down unconstitutional statutes, it is our duty to uphold constitutional laws, including laws that are unwise, and to leave them to the democratic process. We also note that the First Amendment protects the right of couples to call their relationship marriage.

Proposition 8

Nevertheless, California Proposition 8 is unconstitutional because California domestic partnerships are not substantially similar to marriages. While domestic partners receive similar state benefits, they receive none of the federal benefits of marriage. Because the federal DOMA Section 3 is unconstitutional, married couples regardless of sex receive a vast array of federal benefits.

The following factors convince us that California domestic partnerships are not marriages for federal law purposes and thus do not receive the federal benefits of marriages:

  1. Federal law only uses the word 'marriage' without mentioning other relationships. Furthermore, while different jurisdictions might use different terminologies, the question here is whether the relationship is simultaneously 'marriage' and 'not marriage' in the same place, differing only in whether this is a state or a federal point of view.
  2. Opposite-sex domestic partnerships are not recognized as marriages under the prevailing understanding of the federal law.
  3. State legislature did not indicate that the partnerships should be treated as marriages for federal purposes.
  4. It is not clear whether calling domestic partnerships marriages for federal purposes is consistent with Proposition 8.
  5. Same-sex marriages performed in other states are given a different status from domestic partnerships. California same-sex marriages prior to Proposition 8 are also not treated as domestic partnerships.
  6. History shows that California domestic partnerships are not intended to be marriages — among other things, they initially offered only some of the enumerated rights and then gradually became closer to marriage.
  7. The procedure for entering into a domestic partnership is different from the procedure for marrying.

Thus, Proposition 8 denies same-sex couples equal protection under the law and denies them the liberty to marry without due process of law.

The judgment is affirmed.

[Addendum (not part of the suggested decision): An alternative is to remand to the Ninth Circuit in light of DOMA being unconstitutional and in light of potential inapplicability of federal benefits to domestic partners. Also, when a combination of state and federal laws is unconstitutional (here, federal nonrecognition of domestic partnerships combined with state delegation of same-sex couples to domestic partnerships), it is ordinarily the state and not the federal law that is struck down or preempted.]