Faculty Scholarship 1994 - Present

Equal Protection, Due Process, and Same-Sex Marriage: The Reformation Continues

At midnight on September 21, 1996, President Clinton, quietly and without fanfare, signed the Defense of Marriage Act (DOMA) into law. DOMA has two provisions. The first defines �marriage� and �spouse� for the purpose of all acts, rulings, regulations, or interpretations of administrative bureaus and agencies of the United States. �Marriage� is defined as a �legal union between one man and one woman as husband and wife,� and �spouse� refers only to �a person of the opposite sex who is a husband or wife.� The second provision permits states to give no recognition of same sex marriages authorized by other states. Since DOMA became law, thirty-eight states have enacted legislation, modeled after DOMA, mandating (1) that only a female may marry a male and only a male may marry a female, and (2) that a marriage between two persons of the same gender is void. By creating classifications permitting some and prohibiting others from marrying, these statutes deprive the latter of a fundamental right and set the stage for constitutional challenges under the Equal Protection and Due process Clauses of the Fourteenth Amendment of the United States Constitution. Several recent events have infused the issue of same-sex marriage with greater urgency. On June 26, 2003, the United States Supreme Court in Lawrence v. Texas ruled that the right to liberty under the Due Process Clause gives homosexuals the right to engage in consensual sexual activity in their home without the intervention of government. On November 18, 2003, the Supreme Court of Massachusetts in Goodrich v. Department of Public Health, ruled that prohibitions against same sex civil marriages lacked a rational basis and violated the equal protection principles of the Massachusetts constitution. Both Lawrence and Goodrich have filled in several important blanks in the legal landscape of same-sex marriages. During the Spring 2004 primary elections, measures banning same-sex marriage were approved by voters in primary elections in Missouri and Louisiana, and during the November 2, 2004, presidential election voters approved prohibitions against same sex marriages in eleven additional states: Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah. Litigation has been initiated in five of those states to challenge the validity of the approved measures, and additional legal battles are expected in the courts, state legislatures, and ballot initiatives of the issue of same-sex marriage. These challenges will certainly provide multiple opportunities to assess the constitutionality of bans on same-sex marriages under the Equal Protection and Due Process Clauses, and make a review of those issues both timely and topical. The purpose of this article is to demonstrate that denying individuals the right to enter same-sex marriages violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution. More particularly, this article contends that statutes restricting marriage to a man and a woman create a legal classification that disadvantages men and women who want to enter into same-sex marriages, by denying them the fundamental right to marry without advancing a substantial government interest. This article also argues that restricting marriage to a man and a woman unjustifiably undermines the protection accorded personal decisions relating to marriage and family relationships- choices that are not only central to personal dignity and autonomy but central to the liberty protected by the Due Process Clause of the Fourteenth Amendment. Part I of this article will examine the protection provided by the Equal Protection Clause of the Fourteenth Amendment. Part II will explore the protection provided by the Due Process Clause of the Fourteenth Amendment. Part III will review United States Supreme Court decisions that invalidate classifications on the basis of sex or gender under the Equal Protection Clause. Part IV will scrutinize United States Supreme Court decisions that invalidated classifications on the basis of sexual orientation. Part V will examine United States Supreme Court decisions applying the Due Process Clause to intimate, personal decisions to engage in sexual conduct. Part VI will explore the right to marriage as a fundamental right protected by the Constitution of the United States. Part VII will evaluate the justifications advanced for limiting marriage to same-sex couples to ascertain whether there is any basis for restricting marriage to a man and a woman under the Equal Protection Clause. Part VIII will ascertain whether the prohibition against same-sex marriages can be sustained under any of the Equal Protection Clause tests. Part IX will determine whether the prohibition against same-sex marriages can be sustained under the Due Process Clause.