The Question of Discrimination in Same-Sex Marriage

Posted: January 27, 2011
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On January 18th, the U.S. Supreme Court announced its decision not to hear a same-sex marriage case brought by traditional marriage supporters.   The case challenged the District of Columbia’s refusal to allow a voter referendum on the definition of marriage.  The Supreme Court's rejection of the case has closed the door of judicial appeal for D.C. traditional marriage supporters.  The debate will now shift to the legislative arena.  This essay summarizes the efforts made in the District of Columbia to protect the institution of marriage, and discusses the issue of discrimination in the same-sex marriage context.

 

In 2009, the D.C. Council enacted two same-sex marriage laws.  The first provided for the recognition of same-sex marriages performed outside of D.C., and the second allowed same-sex marriages to be performed in the District.  (Bills banning same-sex marriages in D.C. were introduced but failed to make it to the House floor.Before the two new laws went into effect, Bishop Harry Jackson, the leader of traditional marriage efforts in D.C., initiated a D.C. ballot measure defining marriage as between one man and one woman.  Later, an emergency appeal was made to the Supreme Court to delay the enforcement of the new same-sex marriage laws.  Chief Justice Roberts denied the emergency appeal because “it has been the practice of the Court to defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern.”

 

The District of Columbia Board of Elections and Ethics refused to put Bishop Jackson’s measure on the ballot, stating that a ban on same-sex marriage would violate the D.C. Human Rights Act prohibiting discrimination based on sexual orientation.  In response, Bishop Jackson and the National Organization for Marriage (NOM) led a lawsuit challenging the Board’s decision.  They argued that, according to the District of Columbia Charter, all legislative issues except appropriations may be voted on through public ballot initiatives.  However, the D.C. Court of Appeals ultimately upheld D.C. Board of Elections’ refusal to put the issue to a vote, stating that a voter-based gay marriage ban would “have the effect of authorizing” discrimination.  

 

Traditional marriage proponents appealed this decision to the Supreme Court, but on January 18, the Supreme Court declined to hear the case.  Although the Supreme Court provided no comment on its rejection of the case, we can assume that it was rejected because, as Chief Justice Roberts said, the Supreme Court’s policy is to defer to the decisions of local courts in matters of exclusively local concern. 

 

Importantly, the Supreme Court did not reject the same-sex marriage case based on its merits.  This leads us to question the constitutional merits of the case: Is a same-sex marriage ban discriminatory under the constitution?

 

The case of Loving v. Virginia (1967) is considered to be the most important marriage law case in American history. In that case, the Supreme Court held that laws prohibiting bi-racial marriages are discriminatory and violations of Equal Protection and Due Process under the U.S. Constitution.  The Court concluded that prohibiting the marriage of a man and a woman based solely on race constitutes discrimination and violates the right to marry.  This right to marry, the Court declared, “is fundamental to our very existence and survival.”  Here, the Supreme Court stated that marriage is between one man and one woman, and that the generation of children is inherent in the nature of marriage.  This corresponds with traditional Christian views on the definition and purpose of marriage.

 

In Loving, the Supreme Court drew a distinction between the substance of marriage and the accidental qualities of a marriage.  A marriage of a black man and a white woman, the Court declared, is a valid marriage because it has the substance of a marriage – a man and a woman.  The races of the spouses are accidental in quality, and therefore have no bearing on the validity of the marriage. 

 

This is why analogies between race and homosexuality in the marriage context do not work.  In a homosexual marriage, the substance of the marriage is changed, whereas in an interracial marriage, the substance of the marriage is still the same.  In short, the comparison between same-sex marriage and interracial marriage constitutes an erroneous analogy because a change of substance is fundamentally different from a change in accident.

 

An analogy to merit-based school scholarships is better.  If a qualified black student is denied a merit-based scholarship solely based on his or her race, the denial of the scholarship constitutes unjust discrimination.  But if an unqualified black student is denied a merit-based scholarship, the denial of the scholarship is valid.  Similarly, if a law does not allow homosexuals to marry based on the mere fact that they are homosexual, such a law would be unjustly discriminatory.  However, laws prohibiting same-sex marriage are not based solely on the fact that the parties seeking marriage are homosexual.  Rather, the law prohibits homosexuals couples from marrying because the union of homosexuals is not in fact a marriage.  Homosexual couples do not possess the necessary criteria for marriage, as they are incapable of doing what married couples do.

 

In addition, the Supreme Court held in Baker v. Nelson (1972) that laws defining marriage as between one man and one woman are constitutional and do not violate the Equal Protection Clause, Due Process Clause and the right to privacy under the 14th Amendment.  Unlike race or gender, sexual orientation is not a “suspect class” that “triggers” a constitutional discrimination analysis.  This ruling is binding on lower courts, and has been cited and followed by state and federal lawsuits brought by gays against marriage laws.(1)  In fact, the gay couple in Baker tried to file their case two additional times (in 1976 and 2006), but the courts declined to hear the case again because of the binding authority of the Supreme Court decision in Baker. 

 

Similar to the holdings of Loving v. Virginia, the Supreme Court precedent established in Baker corresponds with traditional Christian views on marriage.  Although lower courts have generally followed these Supreme Court precedents in the past, the continuing stability of these precedents is questionable.  For example, in August 2010, in the case Perry v. Schwarzenegger, the Ninth Circuit departed from the established Supreme Court precedent by ruling that California’s same-sex marriage ban, Proposition 8, is unconstitutional under the Equal Protection Clause and Due Process Clause.  As a major challenge to existing precedent, this case is anticipated to reach the Supreme Court in the near future. 

 

In short, the definition of marriage as between one man and one woman has, in the past, been generally held by the courts (with rare exceptions) as non-discriminatory towards homosexuals.  However, with the Perry case making its way to the Supreme Court and six U.S. jurisdictions recognizing same-sex marriages, this could change.  If Perry is upheld in the Supreme Court, it will overturn current Supreme Court precedent and completely change the constitutional landscape of legal marriage.  This possibility underscores the urgent need to continue to defend the legal and cultural definition of marriage as between one man and one woman.

 

 


[1] See, e.g., Citizens for Equal Protection v. Bruning (U.S. Court of Appeals, 8th Circuit, 2006), Wilson v. AkeMorrison v. Sandler (Indiana Court of Appeals, 2005), and Hernandez v. Robles (New York Court of Appeals, 2004). (U.S. District Court, 2005),

 

 

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