The Constitutional Amendments:
Don't Just Don't Sue - Do Something Useful
On election day 2004, 11 states added new sections to exclude same-sex couples from marriage. Two others did the same thing at the end of the summer. Add those to the four states that passed amendments in the last six years, and now a third of the states constitutionally exclude same-sex couples from marriage.
We need to fight back. Much of the fight will not happen in the courtroom because there is no easy way to take all of these amendments down quickly. We can go to court over some of the amendments, but in the long run we must convince more Americans that same-sex couples should not be excluded from marriage. And to do that, the lesbian, gay, bisexual, and transgenderpeople of America are going to have to do a lot of local ""retail"" political work, which will take a serious commitment of time as well as money from the LGBT community.
Here is why there is no quick solution in court, and how the long run solution lies in the work we all must do.
The amendments can be divided into three groups: amendments that exclude same-sex couples only from marriage, amendments that both exclude same-sex couples from marriage and ban civil unions or other systems which under state law are very similar to marriage, and amendments that forbid any legal recognition of same-sex couples at all.
Only two amendments clearly forbid any legal recognition of same-sex couples at all. The ACLU and Lambda Legal are already challenging one of those, the Nebraska amendment that passed in 2000.
The Nebraska case says that the amendment violates the federal Constitution because it completely prevents people in same-sex couples from getting any legal protection for their relationships. Shutting us out so completely, we say, is an obvious violation of the constitutional guarantee of equal protection of the law.
Could we challenge the new amendments in federal court?
It is possible to challenge the other two kinds of amendments in a similar way, claiming that they are all invalid. Since they are now part of the state constitutions, we would have to bring cases like these under the federal Constitution. We could say that the amendments, since they limit the kind of protection we can get for our relationships, violate the federal equal protection clause. Or we could go all the way, and say that the federal Constitution requires states to stop excluding same-sex couples from marriage. That would get rid of the amendments, and get marriage in all 50 states.
Should we?
Either federal constitutional case would be a very bad idea right now.
As explained in an earlier article on marriage cases,we are likely to lose cases like these. Constitutional law on gay people is not very developed. That means that it is easy for hostile or cautious judges to decide against us (this is explained in more detail in the earlier article). And we will be worse off than we are now if we bring these cases and lose. Over the next few years, we will be developing the constitutional law on gay people through cases about adoption and students, and relationship cases that are not about marriage (such ascases about excluding same-sex partners from health plans).
If we continue to develop the law as we have, we will create a basis for eventually winning federal cases on marriage. But if we take the more extreme cases now and lose, we may completely stop that development. At the very least, it will take us much longer to win marriage cases, since courts are generally slow to overrule their own earlier decisions.
How about taking it to the Supreme Court?
If we win an amendment challenge at one of the federal appeals courts, or in a state supreme court, it is very likely that the case will go to the U.S. Supreme Court. But the odds of winning there are not great. Four justices have already said in writing that they do not think the federal Constitution requires states to let same-sex couples marry. That means we have to get all five who've said nothing. And the odds are not likely to get better anytime soon. If we lose at the Supreme Court, we'll set back the work on parenting, adoption, students and relationships, all of which relies on some of the same constitutional principles. And ultimately, we'll have to get the Supreme Court to overrule itself to make any legal progress. It took 17 years to get the court to overrule its decision upholding sodomy laws. It took 59 years to get it to overrule its decision upholding segregation.
But what makes this a really bad idea is that we could not handle winning in the Supreme Court. A Supreme Court decision that said that states had to let same-sex couples marry - or even one that said states could not pass constitutional amendments saying they will not - would give an enormous boost to the effort to amend the federal Constitution to keep same-sex couples out of marriage.
We've kept any federal constitutional amendment from passing so far. But most of the people who have voted with us have said they were doing so because each state could and should decide for itself (the Dick Cheney position). A win at the Supreme Court saying states cannot decide for themselves would give them all the reason they need to change their votes. And our opponents are already working on versions of a new federal marriage amendment that will look more acceptable to some people who have supported us in the past anyway.
Would three fourths of the states ratify an amendment? More than three fourths have already passed laws limiting marriage to a man and a woman. Stopping it is no sure thing.
And there is no way to appeal a constitutional amendment, no lawsuit to set it aside. Once it is in the Constitution, it is there until we can repeal it. And repealing it would require the approval of two-thirds of each house of Congress and then ratification by three-quarters of the states. That would certainly take a long time.
Are there other lawsuits that are a better idea?
Yes. Some of the amendments should be challenged in court. For example, the amendments that go beyond excluding same-sex couples from marriage but also ban civil unions and similar systems can be challenged on the basis that they cover more than one subject. A ""single subject"" rule is designed to keep voters from being forced to decide on two questions people often feel differently about. It's to prevent ""log rolling,"" getting people to accept a less popular idea by tying it to a more popular idea. The argument against the amendments would be that the initiatives forced people to vote on civil unions and marriage together, even though many people have very different views on the two things.
It's a good argument. But only some states have a single subject requirement. And if we win, the proponents can always bring the issue back, in two separate initiatives or in one just aimed at marriage.
Some of the amendments in the ""no marriage/civil union"" category will certainly be the subject of lawsuits about what they mean. Before the election, their proponents typically say these initiatives are just about marriage. After the election, they often try to use them to dismantle domestic partnership health plans and any other form of recognition for same-sex couples.
While these amendments do invalidate civil unions, they almost certainly do not invalidate domestic partnership health or pension plans, or wills or property agreements. The amendments usually say they forbid things that are ""substantially similar"" to marriage, or things which are ""incidents"" of marriage. But anyone can be named in a will and anyone can have a property agreement. These are not legal rights that are special to marriage. And typically, marriage doesn't legally entitle you to health insurance.
Cases designed to narrow the scope of the amendments, and make sure they don't interfere with health plans and private documents, are very important. The ACLU, Lambda Legal, and other groups working for LGBT people will be bringing them.
So what else can we do?
In the end, we can not force America to accept marriage for same-sex couples with lawsuits. But we can persuade America to do that. We already know that we can win over a majority of Americans if we show them that same-sex couples have committed relationships and suffer tragically when society treats them as strangers. When they understand that, people realize that a higher principle--basic fairness--is at stake. You don't have to personally endorse marriage for same-sex couples to agree that the exclusion is unfair and should end.
To change the thinking of America, national organizations like the ACLU, HRC, NGLTF, GLAAD and others have to find stories of committed couples, show how society mistreats them by treating them as strangers, and get those stories out.
But just as important to change the thinking of America, individual LGBT people have to work to make our relationships visible to ourneighbors. Getting your town to create a registry for domestic partners does that. Getting your employer to add domestic partners to the health plan does that. Getting your school or your church to recognize same-sex couples does that.
If those things sound too ambitious for your town, get your town or your employer to pass a law or a policy against discrimination. Get your local school board to adopt a policy against harassment of students, including gay students.
Making change in your workplace, in your town, or with the local school board is not rocket science. Hundreds of gay people all across the country have done it over the last twenty years. And the ACLU has a comprehensive, step-by-step guide to show you how to organize and the get the kind of policy you want.
People can't be expected to understand how ordinary same-sex relationships really are if they never see them. All the lawsuits and the public information campaigns in the world won't change people's hearts if same-sex relationships are not a part of ordinary life.
We will bring the smart lawsuits. We will put together the public information campaigns that are needed. But you need to do your part. Make same-sex relationships a part of the American landscape.