In September 2014, nineteen states were issuing marriage licenses to same-sex couples; another three recognized lesbian and gay relationships as civil unions or domestic partnerships.
1 Conversely, twenty-eight states did not issue marriage licenses to same-sex couples, nor did they recognize out-of-state lesbian and gay marriages under their laws. The typical pattern for the nonrecognition states was that they had until recent decades criminalized lesbian or gay romantic relationships and had never knowingly issued marriage licenses to same-sex couples, that the emergence of lesbian and gay marriage as a salient issue triggered new statutes specifically excluding lesbian and gay couples from civil marriage and other forms of recognition, and that those statutory bars have been reinforced by state constitutional amendments to the same effect.The Commonwealth of Virginia was typical in this respect. From colonial times, Virginia considered sodomy (anal intercourse) to be a serious crime; in the twentieth century, the Legislature expanded the crime against nature felony to include oral sex as well.
Because the authorities interpreted the statute to include consensual sodomy, lesbian and gay relationships consummated by oral or anal sex were, literally, felonies in the Commonwealth. It went without saying that Virginia did not issue marriage licenses to lesbian and gay couples, but when the issue emerged on the national agenda, the Virginia Legislature promptly adopted a statute explicitly limiting civil marriage to one man, one woman.Virginia’s felony bar to consensual sodomy was invalid after the Supreme Court’s 2003 decision in Lawrence v. Texas, but the Commonwealth has continued to enforce the consensual sodomy crime and has expanded its bar to lesbian and gay relationship recognition.
After the Vermont and California Legislatures passed laws according almost all the legal rights and duties of marriage for lesbian and gay couples joined in civil unions (Vermont, 2000) or domestic partnerships (California, 2003), the Virginia Legislature responded with a statute barring state recognition of any “civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage.” Responding to the possibility that judges would upend these statutes as a violation of the Virginia Constitution, the Legislature and the voters adopted a constitutional amendment barring the Commonwealth or its political subdivisions from recognizing lesbian and gay marriages, civil unions, partnerships, or any “other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”In July 2014, the Fourth Circuit struck down Virginia’s exclusion on the ground that plaintiff couples have a “fundamental right” to marry, which triggers strict scrutiny that the Commonwealth’s justifications could not satisfy. Supporters of the exclusion filed a petition for certiorari with the Supreme Court.
In a big surprise, the Supreme Court on October 6, 2014, denied the petition in the Virginia Marriage Equality Case, as well as in similar appeals taken for circuit court decisions striking down marriage exclusions in Indiana, Oklahoma, Utah, and Wisconsin. The next day, the Ninth Circuit struck down marriage exclusions in Idaho and Nevada.11 Thus, in two days, seven states lost their marriage exclusions, and nine more states (those in the Marriage Equality Fourth, Ninth, and Tenth Circuits) seemed destined toward marriage equality in the near future.12 Added to the nineteen states (and the District of Columbia) recognizing Marriage Equality before October 6, the total number of Marriage Equality jurisdictions almost doubled (literally) overnight.
No fewer than thirty-five states now recognize Marriage Equality for lesbian, gay, bisexual, and transgender (LGBT) persons.As of February 20, 2015 (as this article goes to press), Marriage Equality lawsuits are still pending in fifteen states, two of which (Alabama and Florida) are issuing marriage licenses pending appeal. One is Michigan, whose voters amended the state constitution in 2004: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” The Michigan Supreme Court has interpreted the Michigan Marriage Amendment to prohibit the state and its agencies, local governments, and state-supported colleges and universities from providing even health care benefits to persons designated as “domestic partners” of the same sex.
In DeBoer v. Snyder, a federal district court ruled that the Michigan Marriage Amendment violated the Equal Protection Clause because the state had not even advanced a rational basis for the discrimination against lesbian and gay couples. Consolidating the Michigan Marriage Equality Case with similar appeals for the marriage exclusions in Kentucky, Ohio, and Tennessee, the Sixth Circuit denied relief to the lesbian and gay couples, ruling in DeBoer v. Snyder that their exclusion did not violate the Fourteenth Amendment.
The Sixth Circuit’s decision in DeBoer created a clear split in the circuit courts of appeals on this issue, and the Supreme Court granted the petitions for certiorari for the appeals in all four states on January 16, 2015, as Obergefell v. Hodges (the Ohio case).The primary constitutional issue before the Court is whether Michigan’s and other states’ exclusions of lesbian and gay couples from civil marriage and other family law regimes violate the Fourteenth Amendment’s command that states may not “deny to any person . .
. the equal protection of the laws.” The courts of appeals have created a useful analytical roadmap for the Court, as the opinions supporting state exclusions as well as those supporting marriage equality are exploring the doctrinal and factual arguments with admirable rigor and detail.One line of argument that the appellate judges have thus far neglected is whether state marriage exclusions of lesbian and gay couples violate the “original meaning” of the Equal Protection Clause.
The Sixth Circuit came closest to engaging with this question, as the majority ruled that the plaintiff couples failed to show that “the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.” In my view, the Sixth Circuit’s focus on original understanding misses the point of the Supreme Court’s focus on original meaning. And I shall now maintain that the latter is an important inquiry in the Marriage Equality Cases.