*1 Craig Patrick Robert DEAN and Gill, Appellants,
Gerard COLUMBIA,
DISTRICT OF al., Appellees.
et
No. 92-CV-737. Appeals. Court of
District of Columbia
Argued Nov. 19, 1995.
Decided Jan. Jr., Georgetown Eskridge, N. Uni-
William Center, Craig with whom Robert versity Law DC, brief, Dean, Washington, was on appellants. Counsel, Jr., Corp. McKay, C. Asst.
James Payton, Corp. John Counsel with whom filed, L. was and Charles the time the brief Counsel, Reischel, Washington, Deputy Corp. brief, DC, appellee. on the were A. Richard Foggan, A. whom Laura DC, brief, Gross, Washington, was on A. and Bar- Elizabeth Leader curiae amicae Lewis. bara R. Smith, Stephen Spitzer, B. W.
Arthur DC, Washington, an Chen, filed M. Micki American Civil for the curiae brief amicus Area, on Capital of the Nat. Liberties Union appellants. behalf of Wieber, Christopher A. Evan Wolfson curiae brief City, filed amicus York New Fund, Educ. Legal Defense and for Lambda Inc., appellants. on behalf of *2 308 FERREN, concurring opin- TERRY, opinion and and Before FeRREn’s
STEADMAN, Judges. Associate Terry Judges ions of and Steadman. PER CURIAM: judgment affirmed The of the trial court is I., II., III.,
pursuant Judge to Parts Y. Opinion Judge Ferren
Table Contents Page 309 309 310 INTRODUCTION Proceedings I. to Date Marriage II. The Statute Claim 310 312 Legislative History Marriage A. Statute Statutory “Marriage” B. Definition of Scheme, Including Larger Legislative Marriage C. The as Part of a Statute 314 315 315 316 317 the Divorce Statute Understanding “Marriage” D. The Traditional E. Gase Law from Other Jurisdictions F. The Anti-Sex Discriminatory Language Act of 1976 G. The 1982 Gender Rule of Construction Rights 318 III. The Human Act Claim Analytical Prerequisites 320 Issues: Procedural IV. Constitutional 320 321 Properly Have Been Raised A. Whether Constitutional Issues B. of Review Standard “Adjudicative “Legisla- Facts” and C. Relevance of the Distinction Between 322 322 323 326 Facts” tive 1. In General “Adjudicative” Distinguished “Legislative” 2. Facts Legislative Fact-Finding 3. Process of Judicial A MARRIAGE “FÚNDAMEN1 DUE PROCESS: IS SAME-SEX Y. CONSTITUTIONAL 331 331 RIGHT”? Right” A. Definition of “Fundamental 332 Appellants’ Process B. Due Claim “QUASI-SUSPEC A OR EQUAL ARE HOMOSEXUALS “SUSPECT” VI. PROTECTION: 333 333 334 CLASS? Ruling A. Trial Court’s Equal Protection of the Laws B. Introduction: Discrimination Equal Inquiry 335 Marriage Justifying an Protection C. The Attributes of Assuming, Summary Appellants Inappropriate Judgment D. Applies Argument, That the Rational Basis Test Sake of Assuming, for the Summary Judgment Inappropriate for the District E. Scrutiny Applies Argument, that Strict Sake v. Carotene Products Constitutionally Protected Classes: United States F. Co. “Quasi- “Suspect” and Equal After Products Co.: G. Protection Carotene Suspect” Classes Equal Protection Any, If Bowers v. Hardwick for Implications, H. The Analysis “Quasi-Suspect” Determining “Suspect” and Applicable Factors I. The Class Status History Deep-Seated Purposeful Discrimination 1. Prejudice Stereotypes That Do Causing Inaccurate 345 346 349 Members’ Abilities Not Reflect Class Immutability 4. Political Powerlessness “Quasi-Suspect” Class Comprise “Suspect” Homosexuals J. Whether Easily Applied Factors 1. Three 351 352 Immutability 2. 3. The Prevention/Immutability Distinction Interest “Compelling” State Has a “Substantial” K. the District Whether 355 356 359 Marriage Barring Same-Sex Trial and Remand for Proposed Disposition: L. Reversal Majority Postscript: Response Equal VII. Protection constitutionally groups FERREN, Judge, protected concurring in Associate part dissenting part: But I do not believe that forbidden. point at this properly court can conclude —as men, Plaintiff-appellants, two homosexual a trial— without benefit of matter law marry They appeal each want other. *3 proffer have failed to appellants that summary granting the trial court’s order equal Accordingly, unlike protection claim. Columbia, judgment for the District of re- my colleagues, dispose of the matter who injunction jecting complaint for an to summarily, I and remand this would reverse Superior of require the Clerk the Court to equal protection the issue. for trial on case marriage Appellants them a license. issue contend the trial court erred three re- (1) spects: ruling that the District of Colum- I. DATE PROCEEDINGS TO statute, §§ marriage bia D.C.Code 30-101 13, 1990, appellants Craig On November (1993),prohibits to -121 the Clerk issu- applied Gerard Gill Robert Dean and Robert couples; ing marriage licenses to same-sex of marriage for license from the Clerk the a (2) ruling unlawfully the that Clerk did not Court, Superior required by D.C.Code against appellants under the discriminate Clerk, acting § as head of the 30-110. The Act, Rights Human District Columbia Bureau, appli- Marriage denied their License (1992), by §§ 1-2501 -2557 re- D.C.Code to cation, explaining his action a memoran- license; fusing marriage to them issue a Family the dum to the Director of court’s a interpreting marriage way the statute in Division: unconstitutionally deprives that same-sex 30-110 of the District of Columbia Title right many. couples the to the of the Court to Code authorizes Clerk statutory find no violation or denial of We deny applications marriage grant or but, majority, I process, due unlike the be- licenses. genuine there of material lieve are issues fact District of Columbia The sections the precluding summary appellants’ judgment on governing marriages do not autho- Code constitutional claim that have been de- persons the marriage between same rize Specifical- nied of the laws. a mar- application sex. Therefore ly, required trial to conclude respectfully case is riage license couples determine whеther com- same-sex denied. prise “suspect” “quasi-suspect” or a class Superior Appellants filed an action in to entitled either “strict” or “intermediate” injunctive declaratory and re- seeking scrutiny governmental discrimination requiring lief Clerk to issue them mar- against them —in this case denial of complaint, In their amended riage license. Furthermore, if, marry. as a result appellants they qualified for the alleged that trial, couples court decides same-sex statute, marriage license because class, comprise protected do such trial -121, “gender-neu- §§ 30-101 D.C.Code
will also be needed determine whether the Clerk, and, further, tral” because District, constitutionally protect- despite license, refusing to had discrimi- issue couples, has a “com- ed status grounds them on of sex or nated “substantial,” govern- pelling,” at least a orientation, in District violation sexual limi- keeping mental interest Act, Rights D.C.Code Human Columbia couples as is. If it tation heterosexual §§ to -2557. does, prevail, the District would otherwise not. failure to moved to dismiss for The District grant- Judge relief. Bowers state a claim for
Recognition that homosexuals—like racial He summary judgment for the District. spe- ed women—are entitled minorities and therefore, definitional sources for explained that all protection, cial constitutional legislative history of the “marriage” necessarily mean that homosexuals —the Act, D.C.Law marry Marriage Divorce constitutionally one entitled to 114; various references another; D.C.Stat. governmental not all discrimination 2, 1992, Judge granted the Bowers gender provisions in relevant of the District June Code; rejected ap- of Columbia the common law of the for reconsideration but motion Columbia; appellate District of decisions of Appellants pellants’ constitutional claims. states; references to mar- courts statutory timely appeal on both filed Bible; dictionary riage in the definitions grounds.1 constitutional “marriage” inherent- —show ly requires partici- one male and one female Marriage II. Statute Claim Furthermore, pant. according Judge Bowers, “City' consciously Council chose the Clerk Appellants contend language the Human not to make the required to issue them a should be Rights applicable regulation Act gen statute is license because the relationship.” marital He drew that conclu- *4 expressly prohibit does not der-neutral and that, only sion from the fact a few months agree. The marriages. We cannot same-sex the Human before the Council enacted history mar language Act, rejected Rights proposal ex- it had riage that neither Con statute demonstrate marriages. pressly permit same-sex of the District of Co gress nor the Council Judge Bowers concluded: intended to define “mar lumbia has ever [Pjlaintiffs marriage were denied a license riage” to include same-sex unions. itself, marriage because of the nature of does, parties
requiring, as it thereto be a male and a female. What Marriage Legislative History of the A. n Statute plaintiffs sought herein a license to enter into, definition, simply was not a “mar- 3, 1901, Congress March enacted Any On
riage.” change in that definition must An legislature Code. See Act come from the Court. first District of Columbia —not Law for the District of to Establish a Code of Appellants moved reconsideration. (1901). 1189, Columbia, ch. 854 That 31 Stat. that, ruling They asserted that same-sex Congress by acts of their “[A]ll Act read: right marry, the couples did not have the applicable to the District of Columbia terms marriage interpreted the statute trial court passage of this ... in force at the date of the ways Rights Human Act in and the except in far as act shall remain in force so rights to appellants’ violated constitutional with, or are re- the same are inconsistent equal process protection of the laws due Id., provision this code.” placed by, some Amendment, Fifth and violated the under the 1, 1, Chapter § 43 of the Code ch. at 1189. religion of the First establishment of clause 22 marriage;2 Chapter dealt with opinion In issued on addressed Amendment as well. by Maryland. appeal part ceded See Appellants of the District 1. have not renewed on (and possibly 1866, argument (1991). that the trial court’s Congress vol. 1 at 46 In D.C.Code Council's) reliance on the Bible to understand Marriages Legalizing and for "An Act enacted appellants' meaning "marriage” violated the First Amendment Columbia," Purposes 14 in the District of Other rights. 236, (1866), permitted "[c]er- which Stat. ch. 240 Columbia, persons in the District of tain colored marriage enacted and codified in 2. The statute wife, living together ... to be as man a 1777 was a new statute derived from 1901 1870, "An Act to deemed husband and wife.” Concerning Maryland Act statute entitled “An Md.Laws, 12, Marriages,” ch. in 1 District of Colum- 1777 Further Amend the Law of the Clement Statutory Proceedings, Dorsey, Judiсial and Pre- General bia in Relation to Law and Public The at 130 Maryland, Therein,” State Marriages 16 Stat. Law of the Records of Public Local serve (hereafter Dorsey). Ency- D.C.Code See 146, (1870), primarily to set ch. was enacted 115 original, 1977 Ma- clopedia 30-101 record of licenses. forth the form and by "An Act to ryland had been amended statute requiring the clerk of the court to Provisions Concerning Marriages,” Repeal of the Act Part names, ages, full and ascertain the "examine Md.Laws, ch. in 1 Dorsey, status, color,” relationship of prior marital Repeal the Act Con- Act to So Much of "An issuing desiring marry prior parties Mentioned,” cerning Marriages as is Therein in 1896 in "An Act license were added Md.Laws, ch. in 1 Dorsey, Marriages Colum- Regulate in the District of To bia," was created in After the District of Columbia (1896-97). apply Stat. ch. Maryland law continued to “A changed § 30-101 to read: provisions, The current would divorce.3 and, persons is li- §§ 30-101 between two which -121 D.C.Code part, present provisions, censed, provid- registered most divorce solemnized and (1989 Supp. §§ 16-901 to -924 & D.C.Code in the District of ed in this Act is valid essentially added.) 1993), same as those en- During (Emphasis Id. Columbia.” acted in 1-89, 1901.4 public hearing on Bill Councilmember permit explained that bill Dixon only significant changes in the mar- persons of same sex. marriages between provisions riage and divorce since oc- Dixon, Open- Arrington See Councilmember Marriage curred in the and Divorce Act of Hearings Bill No. at Public Statement 1-107, D.C.Law 1977 D.C.Stat. (June 1975). 7-8, Although lan- Long, & generally Samuel Green John V. directly authorize did not guage of the bill Illusory Changes the 1977 The Real and § Act, marriages, proposed 30-112 ex- Marriage and Divorce Cath.U.L.Rev. pressly to such and thus (1978).5 adopted, referred unions Before Act was validity: however, indirectly acknowledged their Arrington Dixon Councilmember legisla- substantially had introduced different (a) enter its declar- The court shall decree tion, Bill of Columbia No. the “District invalidity marriage entered ing the of a bill, Marriage and Divorce” which would have following under the circumstances: into *5 completely repealed and redrafted D.C.Code (1973) (marriage) and 30-101 §§ -121 (2) physical capacity to party lacks the (1973) (divorce). See The 16-901 §§ -924 marriage by the sexual in- consummate Marriage and Divorce District Columbia tercourse, marriage time the Act, and the 1976, (May 6, Bill 1-89 with amend- (hereafter party did solemnized the other 1975) July was 7, proposed ments provided that 1-89). Original particular, incapacity; In Bill know of the Bill No. 1- (restored 515, 87-246, (1963) Congress § 3 enacted the District’s first divorce Stat. Pub.L. statutory right in "An dower and established statute 1860 entitled Act Authorize wife’s Columbia, husband); 560, the and for the 77 Stat. Divorces in District of dower in (defined 59, (1860). 88-241, (1963) § Purposes,” the term 12 Stat. ch. 158 1 Other Pub.L. precursor chapter; substantively act of the statute This was the divorce "court” as used changed Encyclopedia changed residency requirements; enacted 1901. See D.C.Code Concerning arrangement phraseology "An sec- 16-901 Act Divorces and of several 147, Columbia,” tions). ch. the District of (1870), 16 Stat. 116 drunkenness, cruelty, added habitual and marriage changes to the and grounds 5.The minor made willful divorce. desertion for primarily on statutes before 1977focused divorce arrangement phraseology. note 4. and See 1977, and From time to time between 1901 1977, however, Marriage Act of and Divorce respects; marriage was in minor statute amended changes As in the law. substantive however, made changes significance of the none Judiciary Chairperson on the of the Committee See, 543, present e.g., for the case. 32 Stat. ch. reported Criminal Law members and (added (1902) requirement age of consent District of Columbia: Council 30-103, "Marriages § for males and females to Decree”; misspell- Void from Date of corrected particular, subject bill reduce the In residency requirement 626, (1937) 30-104); ing § ch. 596 Stat. eligibility to file a (increased age of consent for males from sixteen the current or annulment action from divorce eighteen and for females fourteen to year The bill one to six months. standard of 89-493, 13(b) sixteen); § Stat. Pub.L. “no fault” the D.C.Code new would add to (added permit § sentence to 30-106 to separa- obtaining legal ground tion, divorce or marriages); deputy clerks to celebrate court parties to namely, "if both I, 155(a) 91-358, § Pub.L. Title Stat. apart separate cohabi- and without have lived (changed of General "District Columbia Court year proceeding period of one next tation for a "Superior District of Sessions” ... [T]he the action.” the commencement of Columbia”). grounds current fault modifies the [also] bill year removing one by desertion for Although significant were for divorce more amendments felony provi- imprisonment for a conviction time to time to the divorce made from sions, grounds.” changes are irrelevant those also Report Judiciary present e.g., 41 Stat. ch. See Crim case. Comm, on Bill Lаw. on 1-89, (added 983(a) (1920) setting § the effec- No. Columbia Marriage section The District 1976). (June 24, decree); 5-6 tive date of an annulment divorce Act Divorce (b) apply 1296 of the Act of March this clause shall not to married Section 30-116) persons (D.C.Code, repealed.8 the same sex. sec. 1-89, § Original (Emphasis Bill 30-112 add- sum, 119. In the 1977 [O. 7] D.C.Stat. ed). change germane Act made no to the issue law, If Bill had become us; interpret left to “mar before we are marriages clearly would have been autho- by Congress that riage” as understood in the rized District. Because fervent enacted and codified the statute 1-89,6 however, generated by debate Bill and, later, by as understood the Council Councilmember Dixon moved to substitute implicitly existing provi reconfirmed original proposed Bill 1-89 another bill amending others sions of that statute while the bar associations. This substitute bill was through Act. the 1977 Marriage the one Council enacted as the Statutory “Marriage” Definition of Divorce Act of 1977. 119. B. See 1977 D.C.Stat. entirely repealing Rather than and redraft- present marriage statute is Because the (1973) (mar- §§ -121 D.C.Code 30-101 to statute, essentially the same as the 1901 (1973)(divorce), §§ riage) and 16-901 to -924 legisla- which was derived from even earlier merely existing the 1977 Act amended code tion, supra note the initial is: Comm, provisions. on JudiciaRY Congress the word “mar- what did intend Report CRIm.Law, Bill No. riage” when it enacted the statute Marriage and Di- District of Columbia in 1901?9 (June 24,1976). Act, at 1-5 The 1977 vorce Act no mar- contained reference to same-sex criteria, interpretive Citing our well-known fact, following riages. made focus, first, appellants stress we should changes long-standing two in the plain on the words of the statute. See Peo- chapter: Columbia, ples Drug Stores v. District *6 (en banc). (a) (D.C.1983) They 1291 of the Act of A.2d Sec. 113. Section 30-110) (D.C.Code, marriage inception contend that since its
March sec. is alone, “names, statute, essentially by standing striking ages amended and col- has been reason, and, has al- inserting gender-neutral thereof “names for that or” and lieu ways marriages. ages.”7 authorized same-sex prohibit 6.Original generated "the law’s failure to Bill No. 1-89 substantial be inferred from Gay rights groups agreed pro- expressly something that the which has otherwise never debate. marriage gender-neutral language permitted posed of the statute au- been under a statute.” however, they amending § marriages; 30- thorized same-sex letter nonetheless recommended provide to amend the bill to 101 to read: asked the Council marriages. marriage expressly testi- A between a man and a woman for same-sex In his licensed, mony Judiciary registered the Committee on as before on which is solemnized Ware, 7, 1975, July Gay provided Cade President of the in this act is valid in the District of Washington, proposed Activists Alliance of D.C. Columbia. Baum, Archbishop § 30-101 amended to read: be Letter from William W. Clarke, Washington, of the to David Chairman regardless persons, A two between Law, Judiciary Committee on the and Criminal affiliation, creed, race, religious li- sex or 27, 1975). (Aug. at 8 solemnized, censed, registered provided valid the District of Columbia. in this is act § of the 7. D.C.Code 30-110 describes the duties Marriage and The District Columbia Uniform certain from mar- Clerk to obtain information Act, Hearing Bill Be- 1975: on 1-89 Dissolution riage applicants. license Comm, Columbia Council on the District of fore Law, 7, 1975, July Judiciary at 8 and Criminal § 30-116 dealt with slave 8. Former D.C.Code Ware, Gay (testimony Cade President of the marriages. D.C.). Washington, Activists Alliance of Groups were the other side of the debate marriage stat- prohibit We reiterate: the District’s 1901 to same- concerned with the bill’s failure D.C.Code, ute, incorporated the first was a expressly. into The Catholic Archdiocese sex unions legislation, Judiciary replaced previous new statute that Washington a letter to the submitted merely § sweeping change 1. It was not a stating 31 Stat. at ch. that such a Committee See implicit law carried over from before codification. of same- in the law—the authorization marriages proposed § note 2. 30-101—could sex of a prohibition is obvious provision present concern One of the stat- always gender- mar- only marrying his sister or a woman’s ute —and one—has used man’s danger father, genetic specific language.10 The so-called consan- no rying her there is situations; § guinity provision, example, refers D.C.Code prohibited in other “wife,” marriages a a to of “man” with marrying his against a man’s prohibitions Appellants a a “woman” with “husband.”11 stepfa- marrying or a her son’s wife woman’s policy underlying pro- maintain that 30-101(1) (2), § su- ther. See D.C.Code genetic prevention is birth de- vision consanguinity provision, pra note 11. The retardation, policy that fects and mental therefore, moral reflects taboos—indeed necessarily apply to cou- would same-sex improper marriage relation- judgments about produce ples cannot children because genetic transcend concerns. ships—that premise, appel- together. policy From this terminology in gender-based The use of argue statutory exception that this one lants marriages, § prohibit to certain neutrality gender in the statute therefore, legislative understanding reflects actually argument their substantiates marriage, Congress at as understood right marry cou- extends same-sex original enactment the time of and__thereaf- ples. According appellants, because ter, relationship. inherently a male-female only gender references are contained in a so, statutory of the If that were not some public only op- provision, health relevant genetic reproduc- prohibitions not based on follows, posite-sex couples, perforce, that or, not be there tive concerns either would in all gender references omission extended, consistent, would been provisions necessarily statute marrying man’s his example, prohibit marriages permit- implies that same-sex (just lawfully aas man cannot stepfather McGee, McCray 504 A.2d ted. prevent a wom- marry stepmother) his or to (basic (D.C.1986) statutory rule of con- (just as marrying father an’s her wife’s legislature is “that makes struction when lawfully marry woman cannot her husband’s thing, express mention of one the exclusion father). 30-101, supra § note See D.C.Code implied, of others is because there inference that all omissions should be under- exclusions”).
stood
statu-
appellants
prevail
If
were
permit
interpretation,
law
tory
Appellants’
argument,
its own
kinds
couples to
into some
terms,
enter
consanguinity
has force if the
*7
relationships
marriage
that the statute for-
provision
prohibitions against
is limited to
opposite-sex couples,
though
biological inbreeding.
even
It is not. While that
bids
(2)
marriage
discussing
with
§
The
of a woman
her
Former D.C.Code 30-116
slave
10.
husband,
Code,
grandmother’s
marriages
grandfather,
hus-
used the
traceable to the
brother,
wife”; however,
grandfather,
mother’s
band’s
brother, father,
father’s
and
terms "husband
Mar-
father,
stepfather, husband’s
riage and Divorce Act of
1977 D.C.Stat.
son,
husband,
son,
daughter’s
broth-
husband's
repealed §
supra
See
note
30-116.
8.
son,
er,
son,
daughter's
daughter’s
son’s
son’s
husband,
husband, daughter's daughter's
hus-
"Marriages
§
ab
11. D.C.Code
titled
void
son,
son,
daughter’s
band's son’s
husband’s
general,” provides:
initio—In
son,
son;
sister’s
brother’s
following marriages
prohibited in
marriage
any persons either of
the District of Columbia and shall be absolute-
previously
and
married
whose
whom
been
initio,
decreed,
being
ly void
without
so
ab
marriage
previous
been terminated
has not
may
any
nullity
be shown in
collateral
of divorce.
death or a decree
namely:
proceedings,
adopted in
provision was
was
This
(1)The marriage
grand-
statute,
a man with his
Maryland
1 Dor-
from the 1777
derived
wife,
mother,
grandmoth-
grandfather’s
Although
wife's
supra
§
See
note
at 130-31
1.
2.
sey
mother,
sister,
er,
sister,
step-
differently
father’s
mother’s
Maryland provision was worded
mother,
mother, daughter,
daugh-
wife's
wife’s
the statute
provided that one who violated
wife, sister,
ter,
daugh-
daughter,
pounds
son’s
from the
pay
son’s
or be banished
must
wife, daughter's
forever,
daughter,
relationships
son’s
in the
ter’s
son’s
forbidden
state
wife,
daughter,
daugh-
exactly
wife’s
even
wife’s son’s
were
the same—and
son’s
1777 statute
daughter,
current
daughter,
sister's
the same order—as in the
ter’s
brother's
were listed in
daughter;
D.C. statute.
legislative intent is to be deter-
relationships
genetically
not be
scheme when
Indeed, mined.”);
SingeR,
2A
any
marriage.
see also
Noeman J.
dangerous for
kind of
Statutory
men, §
marry
30-101 would not
men could
Construction
Sutherland
on
1992).
(5th
earlier,
§
As
may
46.05
ed.
indicated
preclude a bi-sexual man who
have had
son,
marriage
supra
biological
marrying that
or
see
notes
son from
originally were enacted at
marrying
statutes
his own father or brother.
divorce
times,
were
Congress,
different
but the modern statutes
We do not believe that
almost
supra
2 and
*8
divorce,
say
one cannot
scheme that includes
statutory
by looking
larger
at the
buttressed
gender-neutral.
marriage is
part.
of
it is a
See Citizens
scheme which
corroborative,
Comm’n,
Although
not
we attribute
Georgetown Zoning
v.
392
Ass’n of
(D.C.1978)(en banc) (“It
determinative,
the divorce
1027,
significance to
is a
A.2d
1033
gender terminolo-
pervasive use of
statutory interpretation that one
statute’s
canon of
Congress enacted
gy,
significant
it is
statutory language
particular
at the
looks
chapter at the same
legislative
and codified the divorce
of the whole
within the context
Law for the
"An Act to Establish a Code of
chapters of the Do-
provisions in other
12. Two
1189,
Columbia,”
Rights
Property
and Uni-
ch. 854
31 Stat.
mestic Relations
District of
(1901).
title—
Support
the terms "husband"
form
use
until
was not enacted
Section 30-318
—also
(section
§§
extend,
and "wife.” See D.C.Code
through
improve and
"An Act To
by
ownership
property held
of
does not affect
reciprоcal legislation,
of duties
the enforcement
-
entireties),
by the
and wife as tenants
husband
Columbia,”
support
71 Stat.
the District of
of
288,
in
(husband
competent wit-
wife shall be
318
nesses).
and
10, 1957).
(July
§
Pub.L. 85-94
30-201 was codified
Section
added).
dictionary today
defines
marriage
same
time it enacted and codified the
being
united
chapter,
using gender-specific
marriage
termi-
as “the state of
person
opposite
sex as husband
nology
each. See District
Columbia
the
of
of
”
(D.C.1991)
Had the Council in'.ended therefore, marriages. The trial did statutory “marriage” definition of to include granting summary judgment not err in unions, surely would have men- appellants’ District on claim under significant tioned leg- such a intention in the marriage statute. history implementing islative of the statute the new Gender Rule of Construction. See Rights III. The Human Act Claim Org. National Women v. Mutual Oma- that, Appellants next contend re (D.C.1987) (if Co., ha 531 A.2d Ins. license, fusing to issue them a Council in change intended such dramatic Clerk them discriminated because of law, “it is reasonable assume that there orientation, or sex sexual violation of specific have been at least some refer- Act, §§ Human Rights D.C.Code or, language ence to it in the of the Act (1992). Specifically, appellants to -2557 ar least, (hereaf- legislative history”) within its Bureau, gue Marriage that when the License NOW). ter did not The Council do so. The place public accommodation under the merely Council intended to resolve a conflict Court, Superior Clerk of the refuses to issue inconsistent rules of between two construc- couples, gays licenses to same-sex conclude, accordingly, tion on the books. We unlawfully an “equal and lesbians are denied Construction, the Gender Rule opportunity” participate marriage, an 1-230, § § D.C.Code does not re- important “aspect of life.” See D.C.Code quire recognition marriages of same-sex 1-2511, -2519, §§ -2532. NOW, District. See A.2d at 276. l-2519(a)(l) Rights §
Human Act makes it discriminatory practice” Act “an Marriage and Divorce of 1977 and unlawful for one “deny, indirectly, any Discriminatory Language directly person Act Anti-Sex equal enjoyment goods, the full of the well as the Gender Rule of Con- services, facilities, аdvantages, privileges, did enacted not substan- struction public tively provisions any place of ac- change the central accommodations of commodations,” “wholly enacted and if the denial marriage statute codified partially discriminatory reason commonly meaning understood for a based *12 179). undoubtedly intended ... The Council ... sexual orientation [or] the ... sex on flexible, powerful, Rights Act to be “place public A of accom- Human any individual.” of § discrimi- far-reaching prohibition 1- in D.C.Code modation” is defined 2502(24) kinds, sexu- many including and retail sex and include “wholesale nation of stores, dealing with and establishments al orientation. kind,” as well as goods or services of Council, however, not intend did buildings public elevators of “public halls and discriminatory practice. every prohibit Act to Appellants contend and structures.” 277-78, NOW, A.2d at example, in For “place of Bureau is a Marriage License intend did not that the Council we concluded it an “es- because is
public accommodation”
gen-
to the
Rights
apply
Act to
Human
of
dealing
goods or services
tablishment
pricing practices
der-discriminatory actuarial
Superior
located in the
any kind” and is
explained:
companies. We
insurance
building
“public hall.”
—a
argued with some
that it can be
It is true
government assumes for
appeal, the
On
language” of the
“plain
persuasion that the
Marriage Li-
argument that the
the sake of
gen-
based on
prohibits discrimination
Act
place
public accommoda-
Bureau is a
cense
by insurance
in the services offered
der
Furthermore,
A.
Elizabeth
Leader
tion.
§§ 1-
D.C.Code
companies.
Lewis,
Rights
Human
R.
District
Barbara
2502(24),
Significantly, how-
-2519
who,
ca-
individual
Commissioners
pur-
ever,
language
contains no
the statute
be-
an amicae curiae brief on
pacities, filed
regulate
insurance
porting explicitly
all
appellants, argue that
District
half of
had
If the Council
premium practices.
places
public
ac-
agencies are
Columbia
change
such a dramatic
intended to effect
commodation,
Hu-
meaning of the
within the
practices,
it
is
rate-setting
in insurance
Act,
they proride goods
Rights
man
because
there would
to assume that
reasonable
residents. See also
and services Distinct
specific reference
at least some
have been
v. Dis-
In the Matter Kevin S. Dickerson
least,
or, at
language of the Act
to it in the
Department
Human
trict
Columbia
history.
legislative
within its
Services,
on
of Columbia Commission
District
at 276.
Id.
89-465-PA(N), Final De-
Rights,
Human
No.
1991) (District
(May
cision and Order
NOW, determining wheth-
analysis in
Our
Department of Human Services is
Columbia
Rights
Human
intended the
er the Council
Human
place
public accommodation under
rate differen-
preclude gender-based
Act to
Rights
provides
Act
services
because
statute,
with a
dealt
tials in the insurance
residents). We, too, assume, without
District
currently
than the one
much clearer case
deciding,
Marriage License
formally
that the
NOW, although
the Commit-
us.
before
place
public
accommodation
Bureau is
history
nev-
Report
tee
analysis.
purposes of our
rating
actuarial
referred to
specifically
er
testi-
clearly had heard
practices, the Council
the District of Columbia
The Council of
in other states
mony regarding legislation
Rights Act of 1977 to
the Human
enacted
com-
by insurance
prohibiting discrimination
intent
“underscore
Council’s
the 1973
considered
panies, when the Council
the Dis-
of discrimination within
elimination
Rights, see 34
Governing Human
highest
regulation
have the
should
trict of Columbia
(“Title
Rights
Human
Rights
Human
Act DCRR
priority and that
Law”),
virtually identical
harmony with
which
read in
therefore be
should
NOW, 531
Rights Act. See
present Human
the Dis-
supplementing other laws of
and as
that,
Furthermore,
Comm,
noted
we
A.2d at 277.
trict.”
and Con-
on Public Services
Regu-
Report
period of
throughout the effective
Affairs,
on Bill No.
sumer
Rights
Act
Rights
time the Human
(July
lation and at the
at 3
Act of
Human
expressly
1977) (citations
statute
adopted, the insurance
quotation marks was
and internal
Report
(hereafter
for calculat-
omitted)
three-year set-back16
Bill 2-
allowed a
Comm.
years
age
according
more than three
to an
three-year
permits life
set-back
insurance
16. A
age,
the fact
younger
due to
premiums
than their actual
companies
for women
to "calculate
Act,
women,
Marriage and Divorce
premiums for
but
instead of the
life insurance
Finally,
expand
not for men. See id.
we considered
statute to authorize
that,
NOW,
adopting
the fact
soon after
the Human
of
(1954) (demonstrable
691-92,
Similarly, legislative facts can be outcome-
evidence,
appropriately
is more
but rather
“political”
determinative
or “economic” facts.
categorized
general
in the more
area of
See,
Carr,
e.g., Baker v.
369 U.S.
judicial reasoning. A
must he
distinction
691, 7
(recognition,
L.Ed.2d 663
pariicular
made
evidence
between
facts,
political
political
based on
disincen-
case,
accepted only
can be
which
malapportionment
tives to
cure for
facts
through
methods
prescribed
calculated
legislative representation);
Capital
SEC [legislative]
credibility, and those
assure
Bureau, Inc.,
Gains Research
F.2d
greater
signifi-
policy
(2d Cir.1961)
which
(judicial
notice of eco-
facts
aspects
our
cance in that
describe
tending
prove
nomic facts
advice tendered
larger
the basis
environment
advisory
small
service could not influence
form
*18
upon
adjudicative
are evaluat-
which
rev’d,
market),
stock
375 U.S.
84 S.Ct.
facts
best;
slippery
It
but
ed.
is a
distinction at
(judicial
237
notice of
L.Ed.2d
it is
that has been drawn
[Professor
one
tending
prove
economic facts
the con-
Davis, incorporated into the
Culp]
Kenneth
trary).
rules,
recog-
implicitly
and at least
federal
Legislative
include
facts also
“scientific
nearly every
where a
nized in
situation
facts,”
answers,
providing
example,
for
upon
a
called
to address
“
court has been
question
profiling
‘DNA’
'whether
evidence
question
policy
evaluating
in
the ration-
is admissible to corroborate
identification
ality
a
rule.
behind
statute or
or reason
case,”
in a criminal
defendant
United
(footnotes omitted)
Erickson,
21. Professor Sanford H. vey and Criteria in the Brandéis tation of factual data the device of but the To some Court’s Court cal, summarized economic and Criticism, through principal independent degree judicial Due brief, lower court direct data of this kind access to it has been Process approach: scientific] Yale LJ. researches or the notice, (footnotes omitted). by Kadish, counsel in the Adjudication combined with the has reached the *19 [social, Methodology testimony; —A through form presen- (1957), politi- Sur- of Adverse stein, tive facts" in the (1951), Similarly, law either brief” extending prior terials. The court acts what the rule of law Information useful to the court in variety in Judicial Notice and the has addressed consideration Information, giving Professor in its of extensive factual ways, including case doctrine. interpretation following way: (later 51 Iowa L.Rev. ought creatively Judge) to be is background Duty of statutes or in Its Jack B. Wein- to make new problems supplied to Disclose "Brandéis deciding "legisla- ma-
327 legal tested Accordingly, adjudicative against whereas facts All the data is then exclusively are found on of trial the basis norms. testimony by fact of so-called and witnesses short, judge par- appellate tests the evidence, properly leg documentary verified fact rea- proffers ties’ differently. islative often facts are found soned, published have at- authorities who “process up is set to establish the one through tempted to seek the truth document- necessarily adequate not the oth ascertain research, efforts. ed often critical earlier HOROWITZ, supra, Legislative er.” at 45. process is the that Justice Holmes This commonly hearing facts are found after testi merely adоpt- identifying premises called mony by qualified experts, but that testimo Pventis, 227, law, 211 at ing a rule of U.S. ny judicial usually by buttressed attention 69-70, at Mor- 29 S.Ct. Professors only to other court also to decisions but Davis, and have characterized as gan, others literature, scientific or science includ social judicial reasoning law-making part books, treatises, reviews, ing law and other See, fact-finding. rather than of traditional journals containing useful information not of Notice, Morgan, e.g., E.M. 57 Harv. Judicial Legislative record.22 facts also sometimes (1944); Davis, 270-71 K.C. An L.Rev. exclusively are found in non-record sources^23 Approach to Problems Evidence in the party’s such as a “Brandéis brief’ and Process, Administrative 55 Harv.L.Rev. research,
judge’s
help
own
from ex
without
Preliminary
Thayer,
(1942);
J.B.
Trea-
Brown,
pert
e.g.,
testimony. See
at
347 U.S.
Erickson,
(1898);
tise on Evidence 279-80
489-94,
688-91;
at
v. Ar
McLean
329
Sinclair,
543,
405,
housing market over
of Columbia
264
44
68 L.Ed.
the District
U.S.
S.Ct.
(1924),
an
for the
when a
claimed that
be more “convenient”
841
landlord
time —it would
an
emergency justifying
was at
rent control
the
court to do
work.
trial
regulation was
continuing
end and that
such
case, therefore,
appellate court
every
unconstitutionally
confiscatory,
Justice
discretion,
of the
the nature
based on
has
opined:
Holmes
record,
trial
to deter-
inquiry and the
court
that,
in an
It is conceivable
as is shown
law when
questions
decide
mine how to
bill,
ac-
affidavit attached
extensive
testimony or
supply
does
the record itself
not
tivity
building
added to the ease
finding es-
adequate for
documentation
re-
finding an abode.
If about all that
appel-
Certainly, the
legislative facts.
sential
war
increased
mains of
conditions is the
proceed-
further
court can remand for
late
justifica-
living,
that is
in itself a
cost
not
needed,
Corp., 264
ings as
Chastelton
beyond the
going
tion of the act. Without
406-07,
548^9, 44
but the
at
U.S. at
S.Ct.
judicial
say at
knowledge,
limits of
canwe
jurispra-
say,
without fear
coui’t also
plaintiffs’ allegations
that the
cannot
least
by
heresy,
proffered
that the data
dential
unmaintainable,
offhand
be declared
to be
court, from
parties,
as well as
the trial
not
a full
impossible
and that
is
sources,
non-record,
when
uncross-examined
development
facts will show them
own
appellate
court’s
supplemented
In that
of the
operation
be true.
case the
research,
case
particular
will
in a
like
suffice
be
statute would
at an end.
decision-making.
constitutional
for
enquire
not
We need
how far this Court
itself,
judges to
prescribed free rein for
might go
deciding
for
This
question
legislative
non-record sources
principles explained
on the
in Prentis v.
consult
Co.,
210,
judgments is not
policy
Line
227 facts to inform their
Atlantic Coast
U.S.
150],
limit,
69-70,
however.
[29 S.Ct.
53 L.Ed.
without
Collector,
v.
L.Ed.
[18
Gardner
witz,
things,
process
to assure constitutional due
process
Whether the
I have been discuss-
and
of the laws for minori-
legislative
fact-finding
called
an-
ties,
consequences—
without fear of electoral
law,
swering questions of
ours,
exercise is all
especially
jurisdictions,
such as
legislative
more difficult because
facts
judicial
pop-
where
selection is immune from
rarely “indisputable”
are
or “irrefut-
ular vote. Difficult as it
be to deter-
commonly change
able” but also
from time to
legislative
making
mine
facts for
social and
time,
“social,”
they
“political,”
whether
are
legal
judgments
about
the constitutional
“economic,” or “scientific”
In
homosexuals,
facts.
contrast
rights of
the courts have been
facts,
adjudicative
typically
which
so,
so,
are
they
obligated
asked to do
are
to do
static,
Lewis,
ble” because
patterns
involve
understandings
patterns
behavior —or
sum,
In
appellants’
whether
of behavior —that
change
over time. See
rights
process
equal
constitutional
to due
supra,
at 275.
HOROWITZ,
laws,
protection
presenting
of the
while not
Patterns can
change,
and sometimes do
any genuine
“adjudicative”
issue of material
especially
analysis
at the lower levels of
ease, requires
fact in this
“a most difficult
propositions
which verifiable
likely
undertaking,”
appli-
id.:
.ascertainment
behavior,
If
be found.
law is to follow
include,
“legislative”
cation of
facts that
constantly
changes'
must
monitor —a
see,
findings
we shall
origins
some
about the
undertaking.
most difficult
homosexuality
and the extent
to which
Lewis,
11).
(quoted
Id.
mental to existence and survival then, there is question, whether Skinner, at the race.” 316 U.S. S.Ct. process due under the constitutional basis moreover, the Court Zablocki recognized, funda- saying that this clause explained: couples to mar- right heterosexual mental surprising couples. It to gay is not decision lesbian ry also extends marry placed level of answer, simply, has been same “No.” Even very pro- importance relating decisions constitu- without reference Hardwick’s creation, childbirth, rearing, and fam- criminalizing child con- approval of statutes tional ily relationships. facts this cаse say As the that same-sex sodomy, we cannot sensual illustrate, make little sense deeply in this Nation’s rooted “is Moore, recognize right privacy respect history 431 U.S. tradition.” family Indeed, matters of life not with the District of at 1938. the rela- respect decision enter reflects an alto- statute Columbia family tionship that is Accordingly, the foundation of tradition. gether different society.... appellee’s right to [I]f our called a funda- marriage cannot be all, procreate anything at it must process means right protected by the due mental imply enter rela- some clause.
tionship in which the State of Wisconsin *25 take legally allows sexual relations to Equal Are Homosexuals VI. Protection:
place. “Suspect” “Quasi-Suspect” or Class? (footnote 386, at 434 at 98 681 U.S. S.Ct.
omitted). 12, Loving, also 388 at 87 See U.S. Ruling A. The Trial Court’s (“Marriage is one the ‘basic S.Ct. at 1824 man,’ very write, myself, civil rights only fundamental to our again, I and once survival.”) Skinner, (quoting thus, and opinion, respect- existence in the balance this 541, 1113). 316 at 62 at to fully judgment U.S. S.Ct. the affirm. dissent from the Appellants maintain that statute Although recognize gay we and lesbi- also couples through opposite-sex un limiting to couples can and do children against constitutionally them adoption, surrogacy, and artificial insemina- discriminates tion, of them Fifth Developments gay couple, the in violation Law —Sexual see Law, equal the right protection to 102 Harv.L.Rev. Amendment Orientation the (hereafter 1508, (1989) rejected this conten trial court Sexual Or- laws.29 The Laiv), Opinion Memorandum Supplemental the not all tion in a ientation 2, able, The court con couples and Order of June 1992. heterosexual married comprise neither a choose, procreate, cannot cluded homosexuals to we overlook scrutiny” of Supreme “suspect” mandating “strict fact deemed class Court has marriage, substantially against right statutory bar marriage a fundamental requiring “inter relationship “quasi-suspect” class procreation. its to nor a because of scrutiny” of barrier. Thus, right to mediate recognizing a fundamental 14, Doe, 216 & n. Plyler 457 U.S. at mar- v. marry, contemplated the Court has 14, n. persons opposite at 2394-95 & riages sexes— S.Ct. between accordingly the “rational having held that persons possibility had The court who Baehr, limit and that the statute applied test with each other. See basis” children “rationally 56; Note, generally ing marriage to heterosexuals P.2d see Homosexu- at “legitimate state inter to Ma'try: A Test related” three Right als’ Constitutional Solution, Legislative est[s]”: and a U.PaL.Rev. process through Fifth equal protection guarantee, due clause bia The constitutional Bolling Sharpe, 347 U.S. applicable through Fourteenth Amendment. See states Amendment, Colum- 74 S.Ct. L.Ed. is extended to the District of fostering [l] socially-approved at a point couples,31 homosexual legiti- can serve as (i.e.,
in time
during marriage), that which mate
excluding persons
basis for
from a state
is essential
human
race,
namely, procreation....
very
survival of the
[2]
which is
benefit —in
available
this case the
virtually
without limitation
marry—
[prohibiting]
conduct, wit,
...
the sexual
unrelated adult
couples.
heterosexual
sodomy, commonly
explained
associated with
homo
that certain
sexual
by
state-imposed
status —conduct
society
deemed
limitations or
exclusions.
morally reprehensible
to be so
equal
violate
protection guarantee
as to
be a
either
(1) by
criminal
restricting
offense
the District of
the exercise of a
Columbia
fundamen-
many
jurisdictions.30
Skinner,
right,
tal
see
[3] Final
at
U.S.
ly,
legislature
at
rationally
could also
S.Ct.
1113—not
con
the case here32 —or
clude that
discriminating,
justifica-
authorization
without
would consti
sufficient
tion,
unprecedented
tute
constitutionally
unwarranted “so
members of a
tinkering”
protected
cial
with one of
Plyler,
the most
class. See
sacred
even were the outset of members of a “sus- pect” “quasi-suspect” discussion what will pro- become clearer I previ- class. As ously noted, ceed: the addressing am state’s interests and con- —-wheth- homosexuals, cerns er only legitimate comprise are not but note compel- ling. constitutionally realistically protected And class—must there is no less restrictive answered for adequately purposes gen- means of addressing just them than simply erally, for a prohibiting pro- case. That is posed say, union. the answer to this “classification”
question will be the same whether the issue
*26
B.
Introduction:
Discrimination
in particular
alleged
case is
discrimination
Equal Protection of the Laws
against
employment,
homosexuals in
or in
housing,
statute;
or
marriage
under the
ho-
The fact that
marriage
is not a
will,
not,
mosexuals either
or will
comprise a
right,
fundamental
process
entitled to due
class
special
entitled to
constitutional scruti-
protection,
V.,
Part
does not end
ny
alleged
against
discrimination
them.
the
inquiry;
constitutional
equal protection
analysis is available to determine whether
What will not be the same from case to
issue,
the
case,
classification at
however,
unrelated adult
is the ultimate outcome result-
ruled,
30. After the trial court
the District’s stat-
at issue is somehow narrower than in other cases
criminalizing
ute
even
sodomy by
consensual
where sexual orientation receives constitutional
adults was amended “to eliminate consensual
any significance
consideration.
If there were
to
persons
sexual acts between
who are above the
only
the fact that
subclass
homosexuals is
existing age
Right
Privacy
of consent.” See
to
here,
presumably
involved
that
would have re-
10-14,
Amendment Act of
D.C.Reg.
D.C.Law
government
ceived attention
defending
the
in
(1993);
§
D.C.Code
22-3502
the
statute.
(1994 Supp.).
32.Appellants
argued
have not
that same-sex
Although
the class at issue is limited to adult
marriage, though
right"
not a
(in
"fundamental
un-
couples
homosexual
who
order to avoid the
clause,
process
der the due
is a
bar)
related,
unchallenged
"fundamental
consanguinity
are not
right”
equal protection
case,
purposes.
I
fundamentally,
therefore
question
deals with the
possibility.
do not address that
whether
Professor Sun-
"suspect”
homosexuals are entitled question,
stein has
"quasi-suspect”
pointing
adverted to this
or
equal pro-
class status under
out
convenience,
possible
therefore,
analysis.
tection
distinctions between
For
"fundamental
I
rights”
simply
process
rights
shall refer
in due
homosexuals or
anal-
lesbians,
Sunstcin,
gays
yses,
narrowly
in Cass R.
not more
Sexual
to unre-
Orientation and
couples.
lated adult
party
homosexual
the
Relationship
No
Constitution: A
Note on the
Be-
that,
suggested
case,
Protection,
because this is a
Equal
tween Due Process and
analysis
the
protected
constitutional
class
U.Chi L.Rev
ing
capacity to have children
Suppose, for
cess
from that classification.
clause —the
here, or
fact
example,
together
gainsay
this court were to conclude
the
not
—does
case,
comprise
important
another
homosexuals
attributes
marriage has other
constitutionally protected class. This would which,
has rec-
the
Court itself
government
do
in a
no more than shift
the
enough on occa-
ognized,
significant
can be
particular
proving
case the burden of
outweigh
interests
state
sion to
various
alleged
homosexu-
discrimination
marry
withholding
right
compelling,
impor-
als served a
at least an
or
or
group
from one
another.
tant, governmental
Plyler, 457
interest. See
Thus,
U.S.
S.Ct. at 2394-95.
Justifying
Marriage
The
C.
Attributes
classification of homosexuals as
constitu-
Equal
Inquiry
Protection
tionally
grant them
protected class
would
ities and women
inquiry
whether homosexuals
result of the
tiffs-appellants
tionally protected
ployment
showing
classes —I shall be
retically possible
be allowed to
fail
ceed,
public
right
nonetheless,
point
carry
why
discrimination
interest,
marry
is:
does
case.
its burden in a
there is
marry.
should have
in the
that the
class—
Basically,
dealing
one another.
are
demonstrating
necessarily
(1)
comprise a
no
ensuing
heterosexuals should
just as racial minor-
case
specially
whether the
government
rational
with a threshold
housing
but
shall be
discussion
might
dictate
burden
It is theo-
protected
basis
constitu-
why,
plain-
deal-
suc-
em-
weighed any penological
riage,”
could articulate
cause
In
2254, 96 L.Ed.2d
that a
result of incarceration.
marriages,
imposed by prison
after
attributes
In Turner v.
particular,
right
subject to
four
state
id.
taking
“important
marry
law
like
marry,
Safley, into
substantial restrictions
withholding
others,
support
107 S.Ct. at
violated due
account
life.
(1987),
like
attributes
said:
many
concern
remain, however,
U.S.
[1]
Many important
the Court held
expressions
First,
process
limitations
prisoners
of mar-
inmate
rights,
state
as a
ban.
out-
be-
support
public
emotional
commitment.
disallowing
marry
homosexuals to
one anoth-
er,
important
sig-
These elements are an
or whether instead the District should
aspect
relationship.
showing compelling,
have the burden of
nificant
of the marital
at least
substantial,
governmental
interest
[2]
addition,
many religions
recognize
*27
preventing
marrying
spiritual significance;
homosexuals from
one
marriage
having
as
another.
spouses,
for
inmates and their
there-
some
rights
persons,
for constitutional
not
beginning
U.S. at
able to
not withhold a
equal protection
statute
state funds
sification that withholds other
It also
“legally
and benefits from a
withholding
others,
216-18,
while
that,
for
admitted” violates
important
can
making
educating
right
riage support, religious spiri- or —emotional Applies Test consummation, significance, physical tual government and other benefits —are as rele- I do not believe this resolve court can vant important couples as to appellants’ by assuming, matter in favor couples. perceive heterosexual I basis no argument, the sake of that the rational basis doubting appellants that make applies. Although test I do not subscribe to Moreover, showing.33 appellants buttress reasoning, the trial court’s Part their argument noting many hetero- VI.A., say I also cannot as a matter laiv couples children, sexual are not able to have limitation heterosexu- so, not choose to do whereas homo- couples al would not survive the traditional couples, sexual policy absent state law or equal protec- “rational basis” test under the impediments,34 can parenthood and do elect tion clause. through adoption, surrogacy, or in- artificial test, government’s Under that action— parent- result being semination —the case, the marriage limitation hood, statute procreation, and even the benefits of couples— to heterosexual necessarily formally are not limited to united couples. heterosexual upheld against protection must equal considering pertinent legislative After challenge any reasonably there is con- law, facts applying relevant case must -provide ceivable state of facts that could conclude—as elaborated the trial later —that rational basis for the classification. A law, moreover, deciding, State, court erred in as a matter obligation pro- has no do comprise homosexuals rationality “sus- duce evidence to sustain the class, pect” “quasi-suspect” statutory and thus the classification. “[A] court in concluding erred as a subject matter law choice is to courtroom factfind- *28 First, unions, appellants 33. may lawfully stress that for the need emo- now consummate their if support relationship, so, tional for an they intimate through sodomy. choose to do blessing having well as for the need an official appellants Finally, catalogued what we religious significance spiritual for the relation- judicially know: the D.C.Code confers on ship, self-evidently is not limited to heterosexu- couples married a substantial number of benefits als. couples. not available to unmarried See note 19. Next, appellants contended in the court trial physical that riage consummation of a same-sex mar- opinion I this do not consider whether violating sodomy can occur without the law, couples, through if not appeal, foreclosed from mar- mutual masturbation. On adult, riage, appellants criminalizing protection entitled that are to note the law constitutional sodomy repealed. consensual has been See su- the exercise of various derivative actions that pra Accordingly, judicially parties, note 30. adoption we know would affect third such as that, District, couples age marriageable children.
337
may
summary judgment
inappro-
specula-
analysis;
tion
be based on rational
priate
this issue.
unsupported
empirical
tion
evidence
data.”
(1)
whether
then remains:
equal protec-
—
test under
the “rational basis”
Doe,
U.S. -, -,
Heller
113
v.
(2) a
analysis applies,
tion
or whether instead
2637, 2642-43,
257
S.Ct.
126 L.Ed.2d
policy
rigorous scrutiny
more
of the District’s
(citations omitted);
v.
see Cleburne Cleburne
required
marriage
be-
excluding same-sex
Center, Inc.,
Living
432, 442, 105
473 U.S.
specially pro-
comprise a
cause homosexuals
3249, 3255-56,
(1985);
87
313
S.Ct.
L.Ed.2d
event,
absent
tected class.
In either
365,
Richardson,
371,
Graham v.
403
91
U.S.
summary judgment, I conclude the
basis for
1848,
(1971);
1851-52,
S.Ct.
The underlying Carolene Prod- searching judicial inqui- call for ucts’ “more This discussion Carolene Products is ry” allegedly prejudicial into treatment background intended as for discussion of how “discrete and insular minorities” is that Supreme developed ap- Court has and political power minorities lack sufficient plied scrutiny the idea of to a intensified fend for process themselves a democratic variety of groups not limited “discrete should, fails, “generate[] but out- minorities,” insular and how the Court has systematically comes mi- more favorable to protectable expanded prejudice from lack Ackerman, nority interests.” supra, 98 political participation process effective in the problems at 716. There are Haev.L.Rev. prejudice stigmatizing stereotyp- from formulation, Carolene Products devaluing particular groups —from — underinclusive, however. It Su- later beings. human preme Court decisions have made clear. Women, subject example, prejudi- are Equal diffuse,
cial
comprising
discrimination while
G.
Protection After Carolene Prod-
“Quasi-Sus-
And,
course,
“Suspect”
not insular
Co.:
group.
ucts
women
minority. Furthermore,
pect”
are not a
Classes
discrete
and insular
necessarily
minorities are not
Products,
years
In the
since Carolene
less
through
able
effectuate their interests
Supreme Court has identified two
kinds
legislative process
groups
than other
or
legislative
require inten
classifications that
disorganized majorities.
even
Racial minori-
equal protection analysis.
sive
com
These
ties,
event,
appear
greater
to have
called,
monly have
respectively,
been
“sus
political muscle in most instances than other
pect”
“quasi-suspect”
(meaning
classes
disadvantaged groups,
illegitimate
such as
legislative classifications,
people
not the
poor,
children
homosexuals or the
all
them,
first,
“suspect”).
“suspect”
are
which tend on the whole to be less identifi-
Supreme
classification—which the
Court has
able and more diffuse than -African-Ameri-
complaints alleging
used
resolve
discrimi
cans,
example.
See id. at 728-31.
race,35alienage,36
based
nation
and nation
Finally,
prejudice
the kind of
reflected
origin37
scrutiny”
al
“strict
receive
—must
the Carolene Products footnote is also under-
courts; ie.,
use of the
inclusive.
are
There
at least two
kinds
survive,
classification to
the state must “dem
prejudice
recognized:
Court has
onstrate that
pre
its classification has been
(1)
participation
politi-
lack
effective
in the
cisely
compelling govern
tailored to serve a
process,
emphasized
cal
in Carolene Prod-
Plyler,
mental interest.”
at
&
457 U.S.
(2)
ucts,
i.e.,
stigma,
mark
of shame
15,
15;
n.
at
n.
S.Ct.
2395 &
see Cle
demeaning
regardless
invites
treatment
burne,
440,
at
U.S.
339
and “interme-
respectively, “strict”
requiring,
illegitimacy39 requires “interme
der38 and
—
ie.,
(or
scrutiny;
“heightened”)
scrutiny.40 The
“heightened”
diate” or
diate”
however,
of “the Court,
show that
use
from case to
state must
has focused
judgment
a reasoned
analysis
classification reflects
to guide
factors
on several
case
equal protection”
the ideal of
consistent with
classification, although the
applied
either
a substantial
interest
“further[s]
that
every
ev-
addressed
factor
has not
Court
16,
n.
Plyler,
U.S. at 217-18 &
457
State.”
see,
have
shall
these factors
ery ease. As we
Cleburne,
16;
2395
n.
473
102 S.Ct. at
&
various
thing
common:
reflect
one
441, 105
(“gender
at
at
3255
classi
U.S.
S.Ct.
court
evaluating whether
intensive
ways of
substantially
fication fails unless it is
related
and,
scrutiny
perhaps,
will be
intervention
sufficiently
governmental
in
important
ato
clause,
equal
necessary,
protection
under
terest”;
illegitimacy
classification based on
powerless
help substantially
classes
“substantially
to a
will survive if
related
le
im-
dignity and receive
people maintain them
interest”).
gitimate state
harmful, indeed
portant rights in the face of
yet
not
addressed
Court has
(mean-
invidious,
by the state
discrimination
homosexuals,
let alone homosexual
whether
majority).41
popular
“quasi-sus-
couples,
“suspect”
constitute
(1)
will ask:
Has
Specifically,
pect”
See
v. Mad River Lo-
class.
Rowland
purposeful
history
group
suffered
Dist,
1014,
1009,
470
105
cal School
U.S.
(2)
object
class the
(1985)
Is the
discrimination?42
1373, 1376-77,
members’
365,
abilities?43
Is
U.S.App.D.C.
the class de-
261
F.2d
822
Sien
by
97,
presence
fined
anof
immutable trait
102-04
beyond
that is
a class member’s control and
Padula,
the United States Court
yet bears no relation to the individual's abili- Appeals for the
District
Columbia Circuit
ty
(4)
society?44
to contribute to
Is the
summary judgment
govern-
affirmed
for the
group
politically
a
powerless minority?45
appellant’s
ment in
had
claiming
suit
the FBI
by
violated the
clause
refus-
Interestingly, the first two of these factors
appellant
to hire
because
was a ho-
she
stigma
reflect
concern for
unfair ster-
—for
mosexual. The
court concluded
homo-
eotyping.
ability
The latter
focus
two
on the
comprise
deserving
sexuals did not
a class
group
of the
to avoid the claimed disadvan-
scrutiny
Supreme
intensive
because the
tage through self-help
classic Ccirolene
—the
Court, Hardwick,
approved
had
laws
state
Products concern.
conduct,
criminalizing homosexual
and there-
by implicitly
precluded
special
any
pro-
had
Implications,
Any,
H. The
If
of Bowers v.
tection of homosexuals.
Equal
Analy-
Hardwick for
Protection
If
unwilling
[in
sis
the Court
Hardwick was
]
object
to state laws that
criminalize
considering
Before
whether
combina-
class,
hardly
behavior
defines
factors,
satisfied,
tion of
require
open
lower court to conclude that
judicial
intensive
scrutiny
prohibition
sponsored
against
state
discrimination
marriage,
necessary
homosexual
it is
class is invidious.
appeals
to note that four federal courts of
371,
added);
Id. at
822
(emphasis
F.2d at 103
primarily by
have
reference to the
ruled —
Zech,
Dronenburg
U.SApp.D.C.
v.
239
process
Court’s due
decision in
229, 238-39,
1388,
741 F.2d
1397-98
Hardwick,
v.
Bowers
homosexu-
—that
(private, consensual, homosexual
conduct
suspect
als
not comprise
quasi-sus-
do
or
constitutionally
not
protected).
pect
High
Gays
class. See
Tech
v. Defense
Security
Office,
Industrial
premise
Clearance
895
Padula’s
homosexual “be-
—that
563,
(9th Cir.1990);
F.2d
570-73
Ben-Shalom
class,”
havior ...
appeal’s
defines the
id.—
Marsh,
(7th
454,
overbroad;
881 F.2d
facially
564-66
Cir.
homosexuals
a class
1989);
States,
Woodward v.
by
United
871 F.2d
are defined
reference to sexual orienta-
1068,
(Fed.Cir.1989);
tion,
1076
Padula v. Web-
necessarily imply partic-
which does not
Cleburne,
440,
"is,
U.S.
illegitimate
473
at
105
at
S.Ct.
3254
status of
children
like race or
(statutory
alienage,
origin,
classifications
race
natural
a characteristic determined
origin
prejudice
national
are
"deemed
reflect
illegitimate
causes not within the control of the
individual”); Frontiero,
antipathy”);
686,
Mississippi University
Wom-
ular
as his
even in
33;
Sunstein,
holding
generally
note
R.
In
Cass
relied on Hardwick.
the court
the
A
Sexual Orientation and
Constitution:
not members of
were
that homosexuals
Relationship
Due
class,
Note on the
Between
Pro-
the court
quasi-suspect
suspect or
Protection,
Equal
cess and
55 U.Chi.L.Rev. merely
legislative
fact—without
asserted
n.
As
the D.C. Circuit
“[mjembers of rec-
any authority
citing
—that
earlier, “[Hardwick
itself had noted
did not
]
classes, e.g.,
suspect
quasi-suspect
ognized
or
agency
reach the difficult
of whether an
issue
women,
immutable charac-
or
exhibit
blacks
government
of the federal
can discriminate
primarily
homosexuality is
teristics whereas
against
merely
individuals
because of sexual
Woodward, 871 F.2d
in nature.”
behavioral
Casey,
U.S.App.
Doe
orientation.”
v.
at
282, 296,
1508, 1522
D.C.
796 F.2d
Marsh,
Similarly, in Benr-Shalom v.
(CIA
alleged
employee
he was dismissed be-
court,
reversing the district
appeals,
court of
orientation,
court
cause of homosexual
ad-
Army’s refusal to reenlist an
upheld the
if, indeed,
concluded that
CIA action re-
Hardwick,
Relying on
mitted lesbian.
policy
terminating employment
flected
that,
con-
concluded
homosexual
“[i]f
court
homosexuals,
justify
all
CIA would have to
criminalized,
constitutionally be
duct
why
policy
necessary
was
interests of
suspect
do not constitute
then homosexuals
States).46
United
greater
quasi-suspect
or
class entitled
note, however,
important
It
scrutiny
equal protec-
than rational basis
itself, plaintiff-appellant
Padula
herself re-
Ben-Shalom,
purposes.”
881 F.2d
tion
distinction,
jected the “conduct”/“orientation”
(footnote omitted).
ap-
The court also
premising
argument on a
her constitutional
by
fact
peared
be influenced
persons
“as
who
definition
homosexuals
Army regula-
an
had been asked to overturn
engage
in homosexual
conduct.”
tion,
an
which the court believed would be
U.S.App.D.C. at
F.2d at 102. The
military
unjustified
affairs.
intrusion into
accordingly
finding
court
balked
invidious
that “homo-
See id. at 465. The court added
who,.
persons
discrimination
class
proving that
are not without
sexuals are
that,
definition,
by
engaged in conduct
con-
growing
power.” Id. at 466.
political
Constitution,
crimi-
sistent with the
could be
nalized.
Finally,
High
Gays
Tech
v. Defense
Security
Office, a class
Industrial
Clearance
Three
federal circuits
suit.
followed
brought by
applicants
action
homosexual
States,
In
v. United
the court
Woodward
employment
Department,
the Defense
sustained dismissal of a naval reserve officer
court,
reversing the
appeals,
district
court
duty
ground
on
he
from active
was
arguments
De-
rejected plaintiffs’
rejecting
admitted homosexual.
security
partment’s
grant
clear-
refusal
Navy’s
that the
action violated Wood-
claims
privacy,
suspected gay
to known or
lesbian
ward’s constitutional
well
ances
Indeed,
Navy midshipman was
"any attempt
to which a former
to criminalize the status
suant
pres-
Academy
discharged
of an individual’s sexual orientation would
from the Naval
after admit-
Watkins,
grave
problems.”
ent
majority
constitutional
ting
A
he was a
homosexual.
(Norris, J., concurring) (citing
at 725
F.2d
government
that the
had
court concluded
California,
v.
Robinson
370 U.S.
82 S.Ct.
but, rath-
punished
for homosexual status
Steffan
(1962)).
Rowland,
The discussion above in Part who contend that the clause is not a fundamental entitles them to the same treatment clause, right process under the due 1163-64; made heterosexuals receive. See id. at that, clear process to the extent the due Army, Watkins United States 875 F.2d (9th protects rights, (en clause 699, 711, Cir.1989) banc) substantive charac- 716-20 teristically upholds tradition. As Professor (Norris, J., concurring). applied As in this Cass R. Sunstein has noted: case, that, analysis suggests Sunstein’s even though inception, says Hardwick
From its
the Due Process
state
outlaw
sodomy
largely
consensual
interpreted
Clause has been
between homosexuals
clause,
(though
exclusively)
violating
process
protect
tradi- without
due
this
practices against
depar-
necessarily
deny
tional
short-run
does not
mean the state can
right
tures. The clause
couples
marry,
has therefore been asso- homosexual
while
needs).
sodomy (among other
so,
couples
eonsensual
allowing
to do with-
heterosexual
Sunstein,
id.;
supra, 55 U.Chi.
protection
C.R.
violating
equal
clause.47 See
out
1169-70.
L.Rev. concluding
did
that homosexuals
sodomy
privacy right
engage
have a
analysis
is a subissue:
Lurking in this
clause,
process
protected by the
Hard-
due
Hardwick,
state, despite
assumption that the
did not decide whether the state consti-
wick
constitutionally prohibit consensual
cannot
deny consenting
tutionally could
heterosexu-
couple,
sodomy
a married
heterosexual
id.,
n.
right,
als the same
478 U.S. at
with the constitutional
consistent
although
hard
at 2842 n.
it is
106 S.Ct.
necessarily mean the state
privacy, does not
imagine that
find hetero-
the Court would
sodomy by
constitutionally prohibit
cannot
sodomy
Na-
“deeply rooted
sexual
couple,
consenting unmarried heterosexual
tradition,” Moore,
history and
431 U.S.
tion’s
fornication.
just as
state criminalizes
thus
97 S.Ct. at
constitu-
(1989
See,
Repl.)
§
e.g.,
D.C.Code
*34
tionally protected by
process
the
clause.
due
(fornication).
ques-
assumption, the
On that
Watkins,
(Norris, J.,
wise criminal conduct—that homosexual cou-
tion
ples
helpless
legitimize.
would be
If mar-
riage
acceptable
can make behavior
—and
The first issue is whether homosexuals as
constitutionally protectable
would oth-
—that
group
history
purposeful
have suffered a
unacceptable
unprotectable,
erwise be
discrimination. See
note
dis-
legitimize
this means that
be-
senting
from the denial
certiorari Row-
*35
contextually,
havior that
but
in-
land,
1014,
1377,
470
at
105
at
U.S.
S.Ct.
herently,
If, thei’efore,
unacceptable.
mar-
Justice Brennan remarked that “homosexu-
(under
riage
assumptions
considered
historically
object
perni-
have
als
been the
of
here)
only
is the
distinguishes
variable that
hostility,
and
cious
sustained
and it is fair to
acceptable
unacceptable
between
consen-
say
against
that discrimination
homosexuals
sodomy,
permitting marriage
sual
then a law
‘likely
deep-seated prejudice
...
to reflect
only
opposite-sex couples
ap-
between
”
rationality.’
High
than ...
rather
Tech
pear
invidiously against
to discriminate
mem-
(“homosexuals
Gays,
prejudice that are often as Family Law Meeting Forum al Provides stereotypes truly do re- inaccurate (BNA) 1512, 1513 Experts, Fam.L.Rep. supra 42. flect abilities.48 note See (Aug. 1987)). danger stereotyping from such is not but, stereotype obviously con- feelings promiscuity more only its unfafr assault on This undermining impact rights serious consideration significantly, prejudicial its tributes marriages. Viewing stereotyping legitimating same-sex opportunities: inaccurate light in the most favorable recognition ca- the record typically withholds of one’s must, say as a society. we I cannot productive appellants, member as pacity to be a Anticipated sexuality proven Stereotypes Sharon B. Gurwitz & Melinda Psychol 96 and cannot be are See Sexual Orientation college videotape more (the stereotypes false”) (footnotes omitted); trusted to students' likely оn First 'contagious'... Interaction, Sex, interview of a (1978) (In to molest Impressions, keep response “that secrets, and the an gay have fellow children, experiment to a Marcus, and Homosexual men repeatedly and that Law, J. questionnaire student, and lesbians Applied Effects generally supra, testing homo- been "the Soc. at mosexuality.”). Toward possessing ioral ward homosexuals sonality Gay unaware, extent.”); a person’s male Consequences, 7 Homosexuality: traits than (June regardless of their attitude toward was Mary Kite homosexuality stereotype-related rated 1986) E. than are (“Persons Basic Straight having & Assessment & Kay Applied traits to a more persons who are who less Deaux, male as well positive are Soc negative to- and Behav- Attitudes aware of Psychol greater per- ho- gays matter law that and lesbians are class has not had an immutable characteris- race, stereotyping. alienage, origin. victims of inaccurate tic: national See su- 35, 36, Furthermore,
pra notes and 37. specifically quasi-suspect classes deemed Immutability immutability gender, reflected as well: is a question: There third whether homo- illegitimacy. See *37 designed (emphasis ment was abolish” would be reviewable ba- under “rational added)). test, sis” unless the other factors relevant to Although Supreme has focused classes, suspect determining quasi-suspect or cases, immutability on in a number of together, when compel taken would more supra note it “never held rigorous scrutiny. Plyler, 457 at 219 U.S. Cf. classes with immutable traits can be deemed n. 19 & 102 at 2396 n. 19 & 2396 Watkins, suspect.” (Norris, F.2d 875 at 725 (adult class; illegal suspect aliens not a un- J., Miller, concurring); supra, see also at absolutely status is “an im- documented Indeed, on occasion the Court has re- product mutable characteristic since it is the broadly, ferred more to whether members of conscious, unlawful, action”). of indeed obvious, immutable, “exhibit or class dis- There is no scientific consensus about the tinguishing characteristics that define them orientation, origin although of sexual much Castillo, group,” Lyng as a discrete 477 quite recently. has been learned There is 635, 638, 2727, 2729, U.S. 106 S.Ct. 91 substantial literature to the effect that sexual 527 L.Ed.2d early age, orientation is formed at an has a hand, basis, genetic I am On the other aware of no or highly hormonal and is re- suspect in change Court decision which sistant once established.49 One See, Gorski, Brain, e.g., Roger Laura S. Allen & A. Commissure in Human 89 Nat’l Proc. (Neuroanatomical (1992) Sexual Orientation and the the Anterior Sci. U.S.A. 7199 Size of Acad.
347 study Finally, in finding buttresses its that homosexuali- environmental factors.51 contrast ty opinion, deep-seated, probably biologically is a with most of the recent scientific based, that, virtually suggest unchangeable condition some whatever its studies bisexuality, source, comparing probably with it which was homosexual orientation is result, and, extent, culturally perhaps, found to can be some from “learn- determined52 or, other, experiences.”50 changed through religious and social conversion Still success, mostly varying through suggest degrees older studies that homosexual with sus- probably personal orientation is commitment and intensive result of hormonal tained predispositions interacting therapy or other unusual with social and shock aversion study significant large part population reveals of the homosexual and differences between ho therapists patients by making mosexual and men heterosexual in structure homosexual harm brain); region “sick”); anterior commissure believe that are James D. them Pillard, Bailey Weinrich, & J. Michael Richard C. A Homosexuality Biologically Genetic Is Natu Orientation, Study ral?, Sexual Male 48 Homosexuality- Psychological Gen. in Arch Social. and (Dec. (Twin 1991) Psychiatry study (William Paul, al., 1093 et Issues Biological suggests "genetic important ("human eds., 1982) factors in are homosexuality ... as bio determining individual differences in sexual or heterosexuality”). logically natural as human ientation”); Hamer, al., Linkage H. Dean et A BetweenDNA Markers the X and Chromosome 50. Bell note at 211. These al., et Orientation, Male Sexual (July Science Kinsey from the Alfred C. Institute for authors 16, 1993) linkage (Pedigree analysis and Sex Research elaborated: indicates "a statistical confidence interval of we Another notable difference found has to percent subtype than more least one respondents with whether the were do bisexual genetically male sexual orientation is influ exclusively or homosexual. Exclusive homo- enced”); LeVay, Hypotha Simon A Difference sexuality something seemed to be that was firm- lamic Structure Between and Heterosexual Homo ly (Neu- established the end adolescence Men, (Aug.1991) sexual Science relatively impervious change study significant modification roanatomical reveals differences bisexuals, by by outsidе For the between homosexual and influences. heterosexual men contrast, preference a homosexual seemed to hypothalamus the structure of the anterior re learning emerge later and to be more tied brain); Hofman, gion D.F. Swaab & M.A. experiences. findings may These well social Enlarged Suprachiasmatic An Nucleus Homo implications help for whatever certain Men, (1990) (Neu- sexual Research Brain ambigu- homosexuals seek resolve own study significant roanatomical reveals differences guilt feelings ities or about their homosexu- between homosexual and heterosexual men in ality. therapists, suggest To we that ex- would suprachiamatic the structure of nucleus re homosexuality deeply probably clusive is so in- brain); gion of the see also Alan P. Bell al., et expect grained attempt that one should not Development Sexual Preference: in Men Its Rather, probably change it (sexual it. would make preference far Women simply recognize as a more sense component basic early age; citing genetic formed and hor person’s identity core and to factors, findings monal "our not inconsistent help develop more-positive feelings the client if, indeed, expect what one to find proclivi- respect her about his or sexual biological prefer were there basis for sexual ties. ence”); Evans, Ray Physical B. and Biochemical added). (emphasis Id. Men, 39 J. Characteristics Homosexual Con (1972) ("the Psychol sulting & Clin 51. William & Virginia Johnson, physical Masters Homo differences in and in the characteristics (1979) (critiqued sexuality Perspective values [of biochemical heterosexual homo *38 213). al., supra note at Bell, support general thesis et males] sexual of a biological etiology homosexuality in factor of Schwartz, Green, males”); Philip Pepper & Immutability Inti- in Richard Blumstein of (Homo)sexual Relationships Sexuality, and the Creation Orientation: Behavioral Science mate of Concepts
Implications (Legal)Analysis, Homosexuality/Heterosexuality: in Constitutional Sex- of (David (1989) Psychiatry (comprehen P. McWhirt- & 309 16 J. Law 537 Orientation ual studies, studies, er, 1990) (asserting sively that family twin et. al. eds. "fundamental examines hor studies, studies, per- categorical with and relations monal influence brain vari desire” sexual exist, only may specific gender" homosexuality "of one ous treatments for to conclude sons equal homosexuality pro “it the culture that under- is and that standings is creates that immutable for Hoffman, people how and deter- purposes); Homosexual about sexual tection Martin people able have Sexuality Perspectives ity, whether will be in Human 164- mines In Four sexes, Beach, focus, (Frank ed., 1976) or to (therapy one sexual to eroticize both should be 189 categorical at accept experience desire for one sex one help used to homosexuals themselves point categorical past and desire for the in their lives rather than to "cure” them because efforts lives”). point homosexuality at another in their not curable in other sex have shown that is 348 courts, citing
treatments.53 than Several research tion it would be heterosexual studies, genetic predominantly before the most recent see or readers become exclu- position, sively note have taken a middle homosexual. concluding that “the source of sexual orienta- Bell, al„ Alan P. et Preference: Sexual inadequately tion is still understood and is Development 222 In Men Its and Women thought genetic of be a combination and (1981). Plainly, very equal pro- of idea Opinion environmental influences.” way of of in squarely tection the laws stands Justices, 129 N.H. A.2d any argument gay of that a or lesbian is (1987); Wade, F.Supp. Baker emotionally obliged to could make what be (N.D.Tex.1982) (same). change sexual destructive effort orienta- receiving pro- tion rather than constitutional questions Whatever the answers are to persona is. tection of his or her sexual as origins of about sexual orientation and Watkins, (Norris, J., See F.2d at 725-26 required prevent about the kinds of efforts concurring).54 (if change or possible homosexual orientation all), authority there is substantial interesting is that a It note federal any change effect that effort to homosexual recently court has had a district full-blown orientation, traumatic, place, in requires once evidentiary hearing on the nature and causes self-destructive, perhaps emotionally even result, homosexuality. As a the court study publish- work toward end. that A1981 quasi- declared and homosexuals bisexuals Kinsey ed C. Alfred Institute for Sex concluded, suspect class on the and basis by saying:
Research concluded
“homo-,
testimony,
expert
substantial
that
Homosexuals,
hetero-,
particular,
dis-
cannot bе
and bisexual orientation is a charac-
simply
beyond
persons
missed as
who
refuse
teristic
the control of
individual.”
Cincinnati,
conform.
is
it Equality
There
no reason to think
Foundation
Greater
F.Supp.
specifically,
would be
easier for homosexual men
at 437. More
said
court,
or women to reverse
sexual
orienta-
“sexual orientation is set in at
(1972)
(autobio-
178-200
William
Straight
Stories
Aaron,
Their
Homosexuals
Tell
graphical description
(1975)
from
(concluding
transition
homo-
homosexuality
"a
that
is
lifestyle
sexual to
and
heterosexual
choice to be and do what
not intended" and
was
through
Christianity);
commitment to
people
El-
tempta-
cured of
Albert
homosexual
Harper,
&
Guide
lis
Robert A.
A New
to Rational
by turning
counselling
tions
and to Christiani-
(1975)
passive
(concluding
52-59
ho-
Living
ty);
Homosexuality
D.J.
West,
Re-Examined
mosexuality
Oedipal complex
result
is the
of an
(1977) (use
pornography
group
sex
corresponding
awith
fear
of castration and
help
get
troubled homosexuals
aroused in hetero-
possible
reindoctrination is
"better
with
informa-
situations);
(aversion therapy
sexual
id. at 261
(de-
thinking”);
tion and clearer
id.
showing
which involved
homosexuals erotic ho-
scribing
through change
homosexual's treatment
pictures
pleasure
interrupting
mosexual
Fookes,
attitude);
Experiences
B.H.
Some
unpleasant, punishing
discourage
sensations to
Therapy
the Use Aversion
in Male Homosexual-
enjoyed
them
homosexual arousal
consider-
Exhibitionism,
Fetish-Transvestism,
ity,
forties),
vogue in
able
the thirties and
(1969) (six
Psychiatry
J.
nine males
Brit.
experienced
had
who
heterosexual
inter-
prior
therapy
course
to shock aversion
demon-
appeals
54. Two federal circuit courts of
strated
arousal
en-
asserted,
self-evident,
decreased homosexual
simply
though
it were
gaged
years'
three
heterosexual coitus at
fol-
homosexuality
High
is not immutable. See
Iow-up);
Meyer,
William Freeman &
G.
A
Robert
Gays,
("Homosexuality
Tech
they
engage
political
in effective
activi- gay community
support
in 1975 had the
ty-
Dixon,
sponsored
Councilmember
who
a bill
that,
marriage legislation
while
supra, 98 HaRV.L.Rev. at 730-31.
Ackerman,
withdrawn,
eventually
received a serious and
political power
gays
and lesbians is
And,
hearing.
noted,
fair
the trial
court
the one relevant factor the trial court did
adopted
Mayor
the Council
signed
and the
briefly examine:
legislation,56
domestic partnership
although
perhaps
Of
equal significance to
Congress
this Court
effectively killed it.57 Two federal
in reaching
courts,
finding
moreover,
a similar
“suspect
denying
no
special scrutiny
homosexuals,
quasi-suspect
class” or
class”
reality
is the
increasing polit
their
noted
today
Ben-Shalom,
power.
homosexuals
are not
lacking
so
ical
881 F.2d at
(“In
in political power
to warrant
enhanced
these
proving
times homosexuals are
Witness,
protection.
constitutional
for in-
growing political
are not without
stance,
passage by
City power.”);
the recent
High
Gays,
Tech
This us back to the third factor: immutability. Clearly, especial- Comprise this factor J. Whether Homosexuals because, “Suspect” “Quasi-Suspect” ly groups critical unlike other here Class comprising suspect quasi-suspect classes Easily Applied 1. Three Factors date, opinion there is a serious division now, dispositive finally, ques- homosexuality is an immutable Comes as to whether Thus, tion: on the basis of the sources' trait. there is a serious non-record supplied parties augmented by escape whether .homosexuals can from that research, will, posi- own thereby court’s we in a orientation a matter of avoid- by applying tion to constitutional the scorn and discrimination that serves decide— norms to homosex- for an claim. facts—whether basis *42 Some may fact, homosexuals contend that plenty immut- 53. In there is it evidence will ability simply issue, ie., should not be an Green, not be. See Richard The Immutabili- that even if sexual significantly orientation is (Homo)Sexual ty Orientation: Behavioral choice, dictation, a matter of genetic not they Implications Science a Constitutional for entitled to substantial pro- constitutional PsychiatRY (Legal) Analysis, 16 J. & Law tection discrimination directed at (1989). 537, 568-69 preference. assume, if solely Even we circumstances, Under say these I cannot for the sake argument, that are cor- as a matter homosexuality of law that is not rect about what would be fair under that as immutable as gender purposes race or premise, free-choice mere fairness does not equal protection analysis, for I am not determine analysis; immut- traumatic, willing say possibly that emo- ability factor, is a critical good reason. tionally self-help, destructive rather than not, Were it all groups kinds of with all sorts protection, constitutional price is the homo- preferences would special protec- demand pay (assuming sexuals must self-help tion for behaviors that run counter legiti- effective, doubt) would be strongly which I mate publie-at-large. mores The Con- pernicious Indeed, avoid discrimination. stitution special does not afford treatment for increasing gene therapy use of drugs whims. manipulate health sug- and human behavior So what can be said immutability about gests quite scary spectre enforcing here? From the say, sources consulted can public policy “curing” homosexuals—an confidence, that homosexuality is not a Orwellian road not to be traveled.58 whim; matter of range falls within a from hormonal) biological (genetic psy- and/or Prevention!Immutability 3. The Dis- chological predisposition difficult, very that is tinction
if
impossible,
Indeed,
not
to reverse.
hand,
On the other
the source and nature
federal district court that has taken extensive
homosexuality,
while much
expert
better under-
testimony
subject,
on the
as indicated
stood than
earlier,
years ago,
even a few
supra
homosexuality
concluded that
“is
through
notes 49
largely
are still
not
un-
involuntary, but is unamenable to
known;
yet
much is
change.”
to be
Equality
learned. For
Foundation
Greater
Cincinnati,
example, although research
F.Supp
may
now
show
at 426. See also
Law,
homosexuality
virtually
Sexual Orientation
and the
immutable
Haev.
1567-68;
difficult,
49, 50,
being very
the sense of
supra
impos-
if
*43
homosexuals,
may
discrimination
bility
may may not
reflect
distinction —
bearing
an impres-
have
on how free
some
distinction;
is,
meaningful
the
scientific
fact
engage in
youth
feel to
homo-
sionable
example,
some courts have
it so. For
found
experiences,
sexual
if not to assume that
Supreme
Hampshire
the
Court of New
as-
orientation.
serted,
analysis,
without citation or
that
stress, however,
purposes
important
of
It
that
“[f]or
federal
is
analysis, homosexuals
not
there
that
role
powerful
do
constitute
is
evidence
so-called
class,
suspect
nor are
the
orientation.
within
ambit models do
influence sexual
height-
becoming significant
of
so-called ‘middle tier’ level
Research that
Justices,
scrutiny....”
Opinion
concerning
couples
ened
the
cases
efforts of
of
applied
530
at 24. The
adopt
A.2d
court then
the
children indicates there
“little
that,
ground”
might
rational basis test to conclude
con-
concern
“children
for
purposes, legislation
in a
barring
stitutional
ho-
homosexual if raised
lesbian or
become
adoption
Gay,
parenting
gay
Joseph Harry,
mosexuals from
or foster
Male
household.”
“legitimate government purpose”
had a
Relationships
of
in CONTEMPO-
Lesbian
Lifestyles
providing “appropriate
[for
role models
chil-
RARY
Families
Alternative
24,
216,
(Eleanor
explained:
Roger
court
D.
&
H.
dren].” Id.
The
229
Macklin
1983).
Rubin, eds.,
possibility
According
“Given the reasonable
of environ-
com-
one
influences,
genetic]
study
mental
prehensive report, “every
well as
we
on the sub-
[as
legislature
rationally
ject
believe
the
can
act
has revealed that the incidence of same-
theory
on the
among
gays
that a role
sex
children
model
influence
orientation
the
of
developing
identity.”
randomly
and in
child’s
sexual
Id. at
and lesbians occurs as
(Interestingly,
among
the court limited
as it
proportion
its anal-
same
does
children
ysis
“parent-child
general population;
they grow up,
or other familial
id.;
context,”
adopt
indepen-
the court declined to find a
sexual
children
orientations
Susoeff,
excluding
dently
parents.”
rational
basis
homosexuals
from them
Steve
id.)
centers,
day
Comment, Assessing
from operating
care
Best Inter-
Children’s
Furthermore,
Gay
showing
studies
ests
a Parent
Is
or Lesbian:
bisexuali-
When
Standard,
ty may substantially
experi-
Custody
reflect a learned
Rational
32
Toward a
ence,
(1985).59
852,
homosexuality
whereas exclusive
tends U.C.L.A.L.Rev.
882
59. The
follows:
thopsychiatry
er,
Straight,
Children
porting
sexual
havior in Lesbian-Mother
Best Interests
traits between
cant difference
ents,
dren Raised Homosexual or Transsexual Par-
erosexual
Hoeffer,
tions
192. See
"no
footnote
among
Am
135 Bull.Am.Acad.Psychiatry
boys
significant [gender identity]
normal
Children’s
Psychology Today,
mothers
lesbian]
by
Green,
or the
J.Psychiatry
supporting
Homosexuals Seem Headed
the Child with a Lesbian Moth-
behavior
subject
children of
Acquisition
Sexual
girls
set of
(1981) (noting
hypothesizing
acquisition
children); Green,
in either
Families,
this conclusion is as
Nov.
Identity
families”); Cohen,
&
lesbian
typical aspira-
L.
Sex-Role Be-
[the
51 Am
(1978)
differences
no
that chil-
sex-role
hetero-
signifi-
44-45;
(find-
J.Or-
Chil-
het-
(re-
Be
Mother
Constitutional
parents’ sexuality);
(quoting psychiatrist George Weinberg):
their sex-role
development that
&
dren’s
Hum. Dev
parents....
women
homosexual
Most
this fact
children
exclusively
Children
distinguish specific aspects
Denied,
watching
peers
homosexuals have had
and Her
do not learn their sexual
is unwarranted
suggests, homosexual men and
heterosexual or
development);
San Diego
Homosexuals, Challenge
parent
Right
(1975)
Note,
occasional
sexual
directly
will
L.Rev.
greatest
to Child
(finding impossible
That Can No
The AvowedLesbian
by the
activities of their
Weeks,
rear
primarily
of the children’s
parents
Child
related to their
concern that
influence on
homosexual
Custody:
preferences
evidence.
Two Cases
Psychiatry
who are
so.
Longer
As
A
example,
For
in Adoption
Tammy,
case,
In the Colorado
state
(1993),
Mass.
no more gay to be or lesbian than whether environmental factors influence sex- heterosexuals,” those children raised orientation, and, so, ual even whether a “[tjhere is no connection between homosexu- marriage permitting statute same-sex mar- “[hjomosexu- ality pedophilia,” and that riages would be such an influence. These ality is not tendency indicative of a towards major questions two fact child Equality molestation.” Foundation very significant become here. One Cincinnati, F.Supp. Greater at 426. cannot know for sure from all the studies I See also Single-Parent Psychosexual California Comm’n Households: on Personal Priva- Report Privacy cy, Psychol Psychiatric 24 J. Psychi- Appraisal, Comm’n Child on Personal (it (1983); likely al., is as that the left-handed minor- at. 4:551 Richard Green et Lesbian ity right- will "convert” members of the Comparison Mothers and Their Children: A majority handed as it is that homosexuals Solo Parent Heterosexual Mothers and Their Chil- heterosexuals). dren, (1986); can "convert” 15 Archives Behav. 2:167 Sexual Turner, supports Other literature Mary also conclusion. B. & Harris Pauline H. Gay al., Parents,
See Susan et Golombok J.Homosexuality Children in Lesbian 2:101 Lesbian any presented complex of the most prevention/immutabil- perhaps have cited whether But, truth validity any practical if there can be ity here. distinction all, is, inter- rationale at the state’s utility. though, fact fair-minded deterrence argu- marriages preventing same-sex naturally it. persons wonder about est deprive enough to ably may be substantial prevention/immutability dis- Even if the though right, even couples of that however, meaning, tinction does enough to allow discrimina- not substantial appeal; appear to be to this would irrelevant based, example, against homosexuals tion necessarily does cut that distinction housing employment. on ruling that constitute homosexuals pro- protected equal specially class under deterring interest homosexu- The state’s clause, because, pre- despite possible tection course, premised lifestyles, of al ventability, there is evidence considerable traditional public’s general adherence virtually homosexuality, place, once in favoring orientation— heterosexual values in need unchangeable presumably and thus ques- majoritarian values which homosexuals protection. in this of constitutional Seen however, scientifically If, no tion. at trial way, prevention/immutability distinction tending to presented evidence were credible from, reinforces, rather than a find- detracts pres- public policy, such as the prove that a homosexuality trait ing that an immutable statute, the ad- help deter ent Accordingly, equal protection purposes. and behav- of homosexual orientation vent (if any) possibilities action de- for state *45 evidence to I have seen no such ior—and terring preventing orientation or homosexual government I do believe the date —then play “suspect” into in or would come substantial, a let have demonstrated would analysis in “sub- “quasi-suspect” class but enforcing in compelling, state interest alone analy- “compelling” or interest stantial” state values, to the sub- heterosexual traditional I which now turn.60 sis—to prejudice of who cannot share stantial those govern- say, That if the values. is to those a K. Whether District Has “Substan- pub- prejudice cannot cite actual ment “Compelling” tial” or Interest State law to allow majority change from a in the lic Barring Marriage Same-Sex marriages, predictable a such as same-sex behavior, assume, that in antisocial homosexual argument, I for the sake of increase public majority will not a have an sexual or- then the homosexuals irreversible (when compelling, or claiming factors ientation and thus all relevant sound basis considered) substantial, in withhold- comprise or state interest quasi-suspect even a nonetheless, state, may cou- statute from same-sex suspect class. substantial, feeling even re- if not of distaste or attempt ples; a mere demonstrate does, is or withholding marriage at what someone else compelling, interest vulsion majority values couples simply of a because offends simply from same-sex because harm, justify legit- causing cannot marriages, that such without concrete concern deemed imate, legislation against inherently discriminatory influence orientation could the sexual constitutionally protected children, choice and behavior of to the extent members rulings history of constitutional repeat: “deterrence” class—as plays a role. legislation scientifically racially discriminatory may may scenario not —be —or far-fetched; clear.61 legislative this issue fact makes event, finding no of a Marriage and there was discussion or legislative history 60. The of the barring compelling or substantial state interest shows that Act of D.C.Stat. Divorce marriages. the bill substituted when Councilmember Dixon Act, withdrawing adopted Bill as after such, orientation, anti- is not mar- 61. Homosexual would have authorized same-sex which riages, behavior, social; het- response however—like intense debate homosexual he did so in to an not, be antiso- may, rights opponents of gay erosexual between activists behavior— unlikely hetero- therefore not cial. It is 1-89 led the Catholic Archdiocese Bill predictable majority supra would characterize Washington. See The Council sexual note 6. therefore, itself, kind of one of homosexual behavior never increase the District of Columbia behavior, bill, and, in antisocial another as increase rejected a same-sex Suppose, hand, Jones, community. the other that scienti- in the scientific See fically 39-47; credible “deterrence” supra evidence were A.2d at note 22. I am even trial, forthcoming at so that leery relying exclusively either the heter- more about on sci- majority osexual minority or the homosexual entific and other literature in this case of prejudiced way, would be magnitude some concrete constitutional without benefit of depending on whether the statute questions germane to the issue of immutabili- was, not, or was ty, including homosexuality, available to homosexual the causes of couples. supra case, subject See note 61. In that leading experts asked of to cross- question the ultimate of whose values should examination. enforced, framed in terms of what a sub- earlier, explained supra I have Part is, compelling really stantial or state interest IV.C., my efficacy doubts about the of trial pose possible the hardest proceedings legislative court to ascertain majority minority the court as interests facts, given parties likelihood resoundingly clash.62 truly qualified will too experts use few who are familiar with all relevant sources of infor- Proposed Disposition: L. Reversal and mation and who themselves do not have dis- Remand for Trial Thus, sanguine cernible biases. I cannot be Despite familiarity body with a substantial about the merits of a remand for literature, of scientific from which comes the trial, fact-finding, part unless the
range possibilities identified, I have I am parties arrange for the “ideal” kind of hear- opining subject not comfortable about a so ing I have called for. Part IV.C. elusive, controversial, nature, and so as the assumption On the there would be causes, preventability, immutability hearing necessary close to the ideal to ad- homosexuality without benefit of a trial rec- complex presented, dress the issues I see at expert ord with the testimony, kind of potential reversing least five benefits from subject expert to cross-examination. Such summary judgment remanding the case testimony would have to include—and this is *46 trial, for disposing rather than of the case important and cross-examina- —examination ourselves at this time on the basis of this probative, tion about the up-to-date most lit- legislative fact-finding. court’s own leery erature. relying This court was about all, exclusively, First, let alone on scientific liter- gain the court can whatever benefit ature to determine EMIT drug testimony by truly whether the there can be from knowl- testing system general acceptance edgeable experts, subject met with to examination and deter, behavior, therefore,
justifying legislation precisely tailored to if anto increase of antisocial is prevent, public majority, one, not that behavior. The self-evidently a contextual answerable in not substantial, example, might claim a or even the abstract. compelling, withholding state interest couples right marry, same-sex the to in order to terms, question theoretically 62. In concrete the who, prevent merely by creation of role models might government be: would the have substan- legitimate marriage, might encourage virtue of a tial, compelling, barring or even state interest in experimentation bisexual that could unsettle marriages same-sex if the best evidence available body point, eventually, mind and of mak- prove, example, tended to that there awas ing marriage relationships likely. stable less If marriages, chance that 25% 50% same-sex reasoning proffered, government were the amounting mаrriages of all formalized 3% in a demonstrating through would have the burden of community, would influence of all children .5% danger credible evidence that enough the was real (but more) probably community no in the before justify majority’s claimed interest. behavior, age experiment 12 to with homosexual II, hand, supra. Evans On the other if the Cf. if not settle on that sexual orientation? Evidence public majority justify barring were to presented precise in such terms not be marriages simply they "give wrong because forthcoming. postulate pre- I to show as message” public morality” or "offend or “debase cisely possible traditions,” inquiry kind of I believe is religious our and cultural that is not required harm, trying to formulate the state's inter- reflecting impor- the kind of concrete an earlier, interest, est. As indicated compelling the state cannot char- justi- tant or state that would fy government "compel- acterize its interest as "substantial” or discrimination homosexu- ling” merely by marriage. majori- al id. The whether reference to what offends Cf. values, ty accompanying increase in homosexual behavior would amount without concrete harm. catego- placed gender in that revealing, up- once most the Court cross-examination Frontiero, 93 S.Ct. at ry, 411 U.S. about of information available to-date sources although gender opinion), to- (plurality homosexuality and their effect the causes of illegitimacy, intermediate day, like receives immutability. Equality on the issue of See quasi-suspect classification. scrutiny as a Cincinnati, supra; Foundation Greater course, 38, Women, of do supra note II, I supra. The non-record sources Evans illegitimacy minority, comprise reviewed, course, will be already have discriminatory the kind of does not reflect only for examination at trial but available not historically ra- stereotyping experienced (as- again scrutiny court’s once also for this by homosexuals. See cial minorities —and in the trial record suming appeal) event the Mathews, at 2762- 96 427 U.S. at proves unsatisfactory. itself homosexu- If were to confirm that a trial Second, always possibility there ality, place, no less immutable than once process fact-finding at a trial will reveal so, .race, virtually then there or is no less test, why the reasons “rational basis” reason, factors, considering all may be when order, apply. scrutiny higher aof should suspect class. See to consider homosexuals reviewed, I how- on the sources have Based (Norris, J., Watkins, con- 875 F.2d at 724-28 ever, opinion, most of which cited in this comprise (concluding curring) homosexuals has) (as say I that the cannot the trial court (“homo- class); supra, at Tribe, suspect law, applies basis test as a matter rational satisfy all of particular sexuals seem least, skeptical, say I am about implicit suspectness”); criteria of Court’s surviving further in- likelihood of that test’s (“Homosexuals supra, at Ely, Coalition, Gay Rights A.2d quiry. See of both years have been the victims ‘first- (“sexual (lead ap- opinion) at 36 orientation exag- forms of degree prejudice’ and subtler pears possess most or character- all of the we-they At stereotyping”). gerated persuaded istics that have however, prepared to make point, am not apply heightened strict or constitu- judgment. scrutiny tional classifications Fourth, negative given predictable Clause”). Equal At the under the Protection response ultimately to a public decision time, yet say- I am not same comfortable recognize same- require could District to detailed, hopefully helpful more —without marriages compelling, or at sex —absent challenging my corroborating examination substantial, governmental interest least understanding of relevant and scienti- social important to continuing to ban them —it is assuredly fic test facts —that traditional parties every contending that the sure *47 apply. give At will the does not least a trial strongest possible opportunity to make the government opportunity its best to advocate cases, con, by all interested pro and observed opportunity the the rational basis test —an appears proeedurally there persons, so that government complex in consti- deserves legitimacy maximum to court deci- the to be case, just plaintiffs-appellants as tutional the danger, ultimately the made. There is sions the opportunity the deserve to demonstrate discussed, par- course, that the as I have contrary. experts, truly knowledgeable call ties will not Third, assumption my present, the who conducted critical persons have rejection test tentative the rational basis studies, supra through or notes 49 see trial, anticipated the cross-exam- holds after truly probative all informed about who are testimony, exist- expert when added to qualified ined to unquestionably and are studies sources, may important impor- to ing, be it is testify non-record them. But I believe about are a “sus- to deciding parties opportunity whether homosexuals do give the tant to pect,” Ultimately, enti- “quasi-suspect,” so, everyone’s class or instead benefit. (or course, beginning with reviewing to “strict” or “intermediate” tled court — scrutiny. (assuming appeal) Supreme Court eventual “heightened”) this court —would determining recognized only suspect whether responsibility three date have race, origin; anything useful alienage, national trial record added classes: and 35, 36, 37, already plurality know. supra notes what we Finally, sively legislative fact-finding. even this court were to conclude on their own appellants at this time comprise sus- See *48 “suspect” “quasi-' mosexuals are entitled to or
suspect” class status. Accordingly, summary I would reverse aware, judgment for the District and remand the virtually
As far
I am
as
all other
trial,
case for
at which the court
concerning suspect
eases
would decide
quasi-suspect
or
(1)
classifications,
scrutiny
the
immutability
constitutionally
level
re-
the
factor has
and,
indeed,
quired
scrutiny
if
or
not been
it has
self-
strict
intermediate
been
contested —
(2)
courts,
for,
Accordingly, appellate
were
evident.
in-
called
whether the District has
Court,
cluding
Supreme
typically
compelling
the
demonstrated a
or
substantial
judicial
enough governmental
justify
resolved the classification issue with
interest
re-
analysis
fusing appellants
of the relevant factors based exclu-
marriage
license.
moreover,
Nothing,
preclude
par-
expert
testimony.
would
the
other trial records for relevant
Jones,
referencing
ties or the trial court from
these
See
VII. heterosexual on anyone might consider it dis-
Equal
dreamed that
Protection
criminatory legislation against homosexuals.
My colleagues
majority very simply
in the
premise Judge
From that
con-
Steadman
reject
protection
ei-
appellants’ equal
claim
marriage
cludes
the
statute cannot be
(1)
traditionally
marriage,
ther
because
discriminatory purpose
held to reflect
defined,
statutorily
not
does
discriminate
essential
denial
against
“marriage,”
homosexuals
since
fact
Davis,
Washington v.
Compare
laws.
understood,
conceptually
include
cannot
229,
2040,
damental constitute the sub- relationship important govern-
stantial to an designed
mental interest6 of statute
recognize promote fundamental
right. Surely, only opposite-sex right,
is a may give fundamental the state
separate recognition solely to that institution
through marriage act as here.7 led,
These and like considerations have so aware, every appellate
far as am court in presented reject
the land with the issue to challenges opposite-
federal constitutional
proved capacity
capable
entering marriage
have a
or declared
and therefore
willingness
procreate, posing
marriage
a rhetorical
the denial of a
license to same-sex
demand that this court must read such condi-
couples infringes upon
rights);
no constitutional
marriages
Baker,
tion into the statute if same-sex
supra,
(holding
191 N.W.2d
186-87
prohibited.
assuming
to be
Even
[I think the
the state’s
statute did not authorize
Minnesota court here
makes massive as-
marriages
rejecting
plaintiffs’
sumption] that such a condition would be nei-
prohibition
claims that
of same-sex mar-
ther unrealistic nor offensive under the Gris-
riages violated the Fourteenth Amendment's
Connecticut,
wold rationale
v.
[Griswold
381
Clauses);
Equal
Protection
Due Process
In
479,
1678,
U.S.
85 S.Ct.
Notes
notes Norris has summa- so, marry? retain the Unencum- rized: Hardwick, by therefore, proceed bered by with the inquiry against re- Discrimination homosexuals has turning pervasive public classification issue. been both the and the Frontiero, 411 U.S. at have See private Legislative bodies sectors. Greater Cin- jobs Equality Foundation 1770; homosexuals from certain excluded cinnati, F.Supp. see also schools, 437; homosex- Lau- prevented and have H. sphere, marriage. private In the ual] TRIBE, CONSTITUTIONAL AMERICAN RENCE 1988) (“in (2d contrast with ed. to face continue discrimina- homosexuals Law 1616 retardation, homo- like mental characteristic jobs, housing and churches. See tion in indi- Note, at all Ap- sexuality no relation bears generally Argument An for society”); fully to ability to contribute Equal Heightened vidual’s plication Protection II, Note, Miller, Argument M. An Harris Scrutiny on Ho- Based Classifications Height- Equal Application Protection mosexuality, 57 824-25 S.Cal.L.Rev. (1984) Based on history Scrutiny to ened (documenting the of discrim- Classifications ination). Moreover, Homosexuality, 57 S.Cal.L.Rev. reports violence com- homosexuals have become sum, monplace society. the dis- our stereotype gays commonly advanced A plainly faced crimination homosexuals lesbians, example, suggests that dis- pernicious no or intense than the less promiscuous and do want sexually are already groups faced crimination long-term, committed rela- “settle down” classes, suspect aliens such as treated A. See Judith tionships to raise families. origin. particular people national Baer, Equality Under the Constitution: See, Cleburne, e.g. 473 U.S. at Reclaiming Amendment the Fourteenth S.Ct. at 3254.... Allen P. Bell & S. (1983); Maetin 226-28 (en banc) (Norris, Watkins, F.2d at 724 Study Weinberg, A Homosexualities: concurring). I am satisfied on the basis J. Diversity Among (1978); Men and Woman 81 judicial judge observations that no these Morality Klassen, D. et Albert Sex al.. law, reasonably could conclude as matter of (many in the U.S. judgment, ho- purposes summary dangerous, that homosexuals believe
notes 39. In 38 and defined, class, by sexuals be as a an light long-standing case law and the beyond immutable trait that is a class mem- public policy reflected in the stat- inquiry ber’s control. important This be- ute, say pressed would be hard cause characterization that is “not within [a couples belonged suspect to a or control,” person’s] race, gender, such as equal quasi-suspect protection pur- class for illegitimacy, and that “bears no relation to poses virtually if sexual orientation were not ability the individual’s participate immutable. Lucas, society,” contribute to 427 U.S. at If homosexuality genetic origin, has a like readily 96 S.Ct. at should not serve to gender, any race or court —aware of the his- justify discrimination the state. tory of purposeful discrimination ho- Frontiero, at U.S. 93 S.Ct. at sympathetic mosexuals—would have 1770-71. arguments forbidding statute same- degree controls, to which individual “strict,” subject sex should be or avoid, acquisition or cannot the defin “intermediate,” scrutiny, least with the trait, and the difficulty relative ease or “compel- result must that the District show a changed, which trait can be are rele “substantial,” ling,” governmen- or at least a “suspect” vant to whether a classification is in forbidding tal interest homosexuals to “quasi-suspect” inquiry because this is one marry Presumably, one another. same someone, way asking whether rather than true if hold sexual orientation were victimized, being voluntarily joined per substantially by prenatal determined hor- group thereby secuted invited dis orientation, monal influences. If sexual how- Plyler, crimination. See U.S. 216-17 ever, learned, entirely psy- were and thus 14, 102 n. (“legislation impos S.Ct. 2394 n. 14 chological, phenomenon subject were —and ing special upon groups disabilities disfa change through program predictably beyond vored virtue of circumstances successful, safe, therapy the stat- —then suggests their control the kind ‘class ute limiting marriage cou- to heterosexual caste’ treatment that the Fourteenth Amend ples, reflecting values, arguably traditional
notes mentally politically powerless” retarded required stringent scrutiny was because more factors, continuing antipathy prejudice "belie[d] group, so indicated. corresponding taken as a and a need for' more intrusive
notes L.Rev. sible, Virtually place, all reverse once materials I have re- there is a different, that, least, viewed tend to indeed very may show at the threshold intensive, undergoing easy short of be less prolonged, answer on the basis of what is shock) (or (usually today: traumatic therapy known can homosexuality prevent- reli- be gious conversion or ed happening? commitment that from point early cannot At some legally be compelled), development, homosexuals a child’s junc- cannоt rid is the child at a themselves of their sexual ture orientation —and where sexual orientation can be affect- guarantee, any event, ed, there is no determined, that such various environmen- therapy will supra influences, be successful. See note tal including lifestyle examples undoubtedly argue There alleged are those will viewpoint, who preju- victim's unwarranted principle, religious based on or other imagine any moral dice. I cannot constitutional basis premises, any therapy— if there is evidence allowing government for against to discriminate therapy even traumatic succeed in remov- way premised homosexuals in on an —will ing tendency homosexuality, one’s allegation, toward coupled that is finding, with a that homosex- preferred public to be uality the name of simply morali- is not immutable because traumatic —in ty' legal legitimation context, therapy of "unnatural” change behav- it. In that would be —over proscribed, criminally proscribed, ior indeed equivalent using "the rack and the throughout history. Putting American society aside the pun- screw”—torture cannot use even to criminals, therapy observation that the need for traumatic ish its worst consistent with the homosexuality to reverse Eighth California, indicate homo- Amendment. Rochin v. “unnatural,” sexuality 165, 172, necessarily 205, 209-10, is not I will U.S. 72 S.Ct. 96 L.Ed. is, simply say person's principle that one from an (such marriage) biological beginning, be rele- child can observe and to reflect a 50. These stud- eventually copy? choose to vant here. See note possibility public suggest ies at least prevent- This possible distinction between positively en- policies which can seen hand, orientation, homosexual on one homosexuality, poli- in contrast with dorsing recognizing place, it is once in immutable clearly forbidding simply cies limited more prevention/immuta- other —I’ll call it a
notes
I have found one
class,
pect or quasi-suspect
we would still
exception
jurisdiction,
in this
however.
have to remand for trial on whether
the Twenty years ago
Schlesinger,
in Waldie v.
“compelling,”
District can show a
or at least
U.S.App.D.C.
509 F.2d
(or
“important”), governmen-
“substantial”
Appeals
United
for the Dis-
States Court
denying
tal interest
marriages.
Circuit,
trict of Columbia
confronted
I, supra (sustaining grant
pre-
Evans
Cf.
challenge
only”
constitutional
to the “men
liminary injunction
remanding
for deter-
academies,
policies
admissions
of the service
mination whether voter-enacted constitution-
grant
reversed
District Court’s
of sum-
precluded
al amendment that
anti-discrimina- mary judgment
government
for the
and re-
legislation
“homosexual[s],
tion
protecting
manded the cases for a full trial on the
lesbian[s],
infringe
bisexual[s]”—held
merits, including
question
whether the
Equal
on fundamental
under
Protection
applied
rational basis test
to discrimination
participate equally
political pro-
Clause to
against women.
supported by compelling
cess—was
in-
state
nearly
are not
[W]e
as certain as the Dis-
narrowly
terest and
drawn to achieve that
trict
Court has
possible).
interest in least restrictive manner
“rationality”
settled on the
standard for
seen,
Interestingly, as
much of the
we
testing
equal protection
sex-based
“immutability”
claims.
germane
evidence
to deter-
Rather,
mining
we think this area of constitutional
comprise
whether homosexuals
a sus-
pect
quasi-suspect
evolving
highly
law is still
often
likely
class is
and is
be
resolving
govern-
dependent
relevant
whether the
on the facts of each case. Ac-
compelling
ment has a
cordingly,
development
or at least a substan-
a full
of the facts of
tial
in preventing
interest
same-sex mar-
any meaningful
these cases is essential to
II,
(in
riages. See Evans