IN THE SUPREME COURT
STAN BAKER and PETER HARRIGAN
Supreme Court Docket No. 98-32
On Appeal from the Chittendon Superior Court
Docket No. S1009-97CnC
BRIEF AMICI CURIAE
TABLE OF CONTENTS
Brigham v. State, 692 A.2d 384 (Vt. 1997)
Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980)
Other State Cases
Anonymous v. Anonymous, 325 N.Y.S.2d 499 (Sup. Ct. 1971)
42 U.S.C. § 2000-e, et seq.
Larry Alexander, Sometimes Better Boring and Correct: Romer v. Evans as an Exercise of Ordinary Equal Protection Analysis, 68 U. Colo. L. Rev. 335 (1997)
Raffi S. Baroutjian, Note, The Advent of the Multifactor, Sliding-Scale Standard of Equal Protection Review: Out with the Traditional Three-Tier Method of Analysis, In with Romer v. Evans, 30 Loy., L.A. L. Rev. 1277 (1996)
John Daniel Dailey and Paul Farley, Colorados Amendment 2: A Result in Search of A Reason, 20 Harv. J. Law & Pub. Poly 215 (1997)
Daniel Farber and Suzanna Sherry, The Pariah Principle, 13 Const. Commentary 257 (1996)
David Frum, Suspect Jurisprudence, Wkly. Standard, June 3, 1996.
Lino A. Graglia, Romer v. Evans: The People Foiled Again by the Constitution, 68 Colo. L. Rev. 409 (1997)
Pamela S. Karlan, Five Not So Easy Pieces of the 1995 Term, 34 Hous. L. Rev. 294
Dr. Martin Luther King, Jr., Letters From A Birmingham Jail, in I Have A Dream, Writings and Speeches That Changed the World, at 89 (Harper Collins 1986, 1992)
Stuart Taylor, Jr., Twisting and Turning on Gay Rights: Admirable Decision in Landmark Case Marred by Superficial Reasoning, Fulton County Daily Rep., May 28, 1996
Stuart Taylor, Jr., Is Judicial Restraint Dead?, Legal Times, July 29, 1996
George Washington, Adress of George Washington, President of the United States--Preparatory to his Declination (Baltimore: George and Henry S. Keatinge, 1796)
The amici represented hereSpecialty Research Associates; Citizens for Community Values; Colorado for Family Values; Equal Rights Not Special Rights; Kerusso Ministries; National Campaign to Protect Marriage; WallBuilders; Free Congress Foundation; Coalitions for America; and Concerned Women for Americaare non-profit organizations, each with a strong interest in the issues presented in this case, and in matters of public policy, especially as they pertain to the family. Some of the amici listed are engaged in assistance ministries to homosexual individuals. Together, these organizations represent the interests of thousands of people across this nation, all of whom are potentially affected by the outcome of this case.
These parties therefore respectfully offer this brief in an effort to see that this Court has as much assistance as possible as it decides this case.
Amici represented herein adopt Appellees Statement of the Case.
This case may well prove to be a watershed case in the history of Vermont jurisprudence. Consequently, this Court must rule on the basis of legal principle only, and avoid the missteps of other courts that have considered this and similar issues, who have ruled not based on legal principle so much as emotive appeals, questionable science, and anecdotal evidence. There is an abundance of argument in this case, by various amici that consists less of legal argument and more of anecdotal evidence that, while enough to induce sympathy from the Court, is a distraction from what should be the Courts focus, that is, the legal issues. This Court has demonstrated a strong commitment to the exercise of "judicial responsibility" and such would be appropriate in this case.
Appellants and their amici have provided the Court with a great quantity of scientific information regarding homosexuality, but much of this science is more open to question and debate than it might appear. We therefore urge this Court to review all of the scientific data carefully, including that submitted by amici in support of the State of Vermont, so as to have a complete understanding of those issues.
The overwhelming majority of courts that have considered the issues presented in this case over the past few decades have ruled that there is a rational basis for laws that proscribe same-sex marriage, that there is no fundamental right to same-sex marriage, and that homosexuals are not a "suspect class" for purposes of equal protection analysis. This Court must rule in accordance with the weight of authority, and not be swayed by aberrant decisions recently handed down in the trial courts of Hawaii and Alaska.
The people also have a legitimate interest in expressing their moral views through the mechanism of the law. This case obviously has a moral dimension to it, and courts must be careful not to thwart the will of the people by rendering decisions that comport with the courts particular philosophy, but which have no support in history and traditions of the people, or in the text of the law.
A respect for democratic process, judicial restraint, and a recognition that the weight of authority favors the State in this case, will lead this Court to the conclusion that the laws governing marriage in Vermont are constitutionally sound, and that they must be allowed to stand.
This case calls for the interpretation and further development of constitutional doctrine under the Vermont Constitution in an area of the law rife with controversy. The principle that must guide this Court in making its decision has been stated in one of this Courts earlier cases: "[o]ur decisions must be principled and not result-oriented." State v. Jewett, 146 Vt. 221, 224 (1985). To proceed on any other basis will be to invite problems of a magnitude difficult to fully appreciate.
This Court has also recognized, in addition to the need for guiding principles, that an appeal to history is a legitimate means of interpreting the law, and that "[t]he development of state constitutional jurisprudence will call for the exercise of great judicial responsibility . . . ." Id. If ever a case required an exercise of "great judicial responsibility," this is that case. This Courts decision in this matter is sure to have serious implications "not only [for] this generation of Vermonters but those who will come . . . in the decades yet to be." Id. at 229. Judicial restraint is, in this case, "the better part of valor."
Unfortunately, some courts have lost sight of this important principle, and have decided cases similar to this one more on the basis of emotive appeals, questionable or one-sided science, and anecdotal evidence, than on the strength of time-honored legal principles, an approach this Court must avoid. Perhaps the most glaring and regrettable example of this is the Supreme Courts decision in Romer v. Evans, 116 S. Ct. 1620 (1996), also known as the Colorado "Amendment 2" case. The legal issue in the Romer case differs from the legal issue in this case, but both cases involve the controversial and emotional social issue of homosexuality.
Controversial cases are expected, of course, to produce controversy. The Romer opinion, however, has produced a firestorm among legal scholars. The opinion has come in for withering criticism, and not only from those who disliked the outcome. Indeed, one commentator who supported the outcome went so far as to say that "[t]heres a vacuum at the core of the Courts analysis that begs to be filled." Another supporter was even less forgiving, charging in one comment that "the majestic generalities of Justice Anthony Kennedys majority opinion are surrounded by . . . crude, superficial, and evasive legal reasoning . . . ." and, in another, that "Justice Kennedys majority opinion conspicuously failed to articulate a principled justification. His opinion was rooted neither in original meaning nor in precedent, and provided little guidance for future controversies." Other supporters of the outcome in Romer have also criticized it to a surprising extent. See Daniel Farber and Suzanna Sherry, The Pariah Principle, 13 Const. Commentary 257, 257-58, 278 (1996)(stating that "Romer means no more and no less than what it says (or at least tries to say)") (emphasis added); conceding that certain principles in that case were "imperfectly explained in the opinion;" Larry Alexander, Sometimes Better Boring and Correct: Romer v. Evans as an Exercise of Ordinary Equal Protection Analysis, 68 U. Colo. L. Rev. 335, 339, 347 (1997)(stating that in two critical points in the majoritys opinion "the dog . . . did not bark", meaning that important components of an "ordinary equal protection analysis" were left out).
In this regard, supporters and critics of Romer, along with those who may have been neutral on the social issue are in uncommon accord. Consider these further criticisms:
[W]hen the Court rendered its decision, the only clear aspect of its opinion was the conclusion that Amendment 2 violated the Equal Protection Clause of the Fourteenth Amendment. The Court's rationale and analytical approach were both unclear. While the Court claimed to apply the traditional framework of equal protection analysis, the result it reached was inconsistent with the method it purported to employ. This resulting inconsistency prompted some commentators to suggest that the Court was disingenuous or at least shallow in its legal reasoning. Despite the Court's problematic legal reasoning, Romer is a decision with precedential value that will inevitably affect future equal protection cases.
Another criticism is that "[i]n the end, Romer v. Evans is a bad judgment because it is a dishonest one." Many of the criticisms have been summarized this way: "Many commentators have labeled the Court's opinion conclusory, incoherent, and superficial."
One major fault of the Romer Court was its astonishing lack of fidelity to established precedent, some of which clearly dictated a contrary result in that case. The Court was well aware that in the case of Bowers v. Hardwick, 478 U.S. 186 (1986), it had upheld the right of a state to criminalize the act of sodomy, and had recognized as legitimate the communitys interest in expressing its moral standards through the mechanism of the law. The Court chose, however, to ignore Bowers altogether because in no other way could it have ruled that Colorado had no "rational basis" for denying special protections to homosexuals, having already held that Georgia could prosecute its citizens for engaging in homosexual conduct.
The Court also completely ignored established principles of equal protection analysis. With reference to "rational basis" analysis, two commentators have observed that "[t]he Court neither used any of these principles nor explained why they were inapplicable."
Another mistake was in "inventing" new legal principles in order to justify the result. For example, the Court held that the equal protection clause is violated when decision-making is limited to the state, as opposed to the local, level. In his dissent, however, Justice Scalia rightly pointed out that "[t]he world has never heard" of such a "principle". The Court also enunciated the "principle" that "government and each of its parts [must] remain open on impartial terms to all who seek its assistance." This is an idea without precedent in constitutional jurisprudence, and not at all in keeping with the manner in which our local, state and federal governments now operate.
Yet another major flaw in the Romer opinion was the Courts rather clumsy attempts to psychoanalyze the voters of Colorado whom, it divined, were motivated by bare "animus" toward homosexuals. All the rational bases offered for the legislation in that case, the Court rejected out of hand as mere pretext. The Court simply resorted, in the absence of facts, to empty tautologies, i.e., since the stated motives were mere pretext, voters were clearly motivated by "animus" and, since voters were clearly motivated by "animus", all the stated motives were, by definition, mere pretext. This is not only poor jurisprudence; Justice Scalia found it "nothing short of insulting." Id. at 1637.
The Courts most eloquent critic, however, came from its own ranks. In dissent, Justice Scalia rendered a scathing critique of the majority opinion, rightly pointing out its numerous faults. Justice Scalia argued that Amendment 2 was a perfectly legitimate means for the majority of Colorados citizens to express their viewsright or wrongon homosexual conduct. Id. at 1637. He stated that Amendment 2 was "unimpeachable under any constitutional doctrine hitherto pronounced" and opined that it was for this reason that the majoritys opinion showed such a "heavy reliance upon principles of righteousness rather than judicial holdings." Id. at 1629. He went on to point out that "no principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits what Colorado has done here." Id. at 1633. In light of the foregoing, he was perfectly justified in concluding that "[t]odays [majority] opinion has no foundation in American constitutional law and barely pretends to." Id. at 1637.
For these reasons some observers charge that Romer was a shamefully "result-oriented" decision, one which utterly ignored the will of Colorados citizens and compelling legal precedent. Indeed, as one critic put it: "[i]n truth, the Court invalidated Amendment 2 on no other ground than that homosexual rights are the current frontier of the civil rights movement . . . and that the Court is determined to remain on that frontier. Amendment 2 was simply too great an affront to advanced elite opinion to be tolerated."
Cases such as Romer and the present case have great precedential import, and much of our future constitutional analysis will be affected by their outcome. Amici respectfully request the Court to beware the missteps of the Romer Court, and to base its ruling on legal principle. The Court should not saddle the state of Vermont with a precedent that could send Equal Benefit Clause jurisprudence in a legal wilderness for decades.
A review of the briefs of the appellants and of their amici leads one almost inexorably to conclude that an attempt has been made to impact this Court with the emotion of this issue and with the idea that this Court should decide this case based on the latest trend in social mores and social science research. It is beyond the scope of this brief to point out all such non-legal appeals. However, some of the most glaring examples will prove illustrative. The examples below will also include some arguments that, while legal, have been rejected by many other courts and which should be rejected by this Court, as well. In context, they seem designed to further the cumulative emotional impact of the various other arguments.
Section I above has demonstrated that relying on non-legal, emotional arguments caused the United States Supreme Court to produce one of the most roundly criticized opinions in recent memory. Amici again respectfully request this Court to make its decision in this case based on principles of law and to reject various arguments put forth by appellants and their amici that, if adopted, would cause this Court to render a decision containing the same flaws as the Romer opinion.
Amici in support of the State are not, contrary to what some may believe, insensitive to the plight of homosexual individuals in our society who suffer from the sting of prejudice or the ravages of disease. Indeed, some of the amici writing in support of the State of Vermont represent organizations involved in full-time assistance ministries to homosexual individuals.
However, our purpose here is to engage in legal argument in order to interpret the laws of Vermont with some integrity. This Court should therefore look askance at the efforts of some on the Appellants side of the issue to inject an emotive element into this discussion, apparently in an effort to sway the Court on other than legal grounds. While some of the anecdotal evidence cited by amici for Appellants is truly heart-rending, the discussion here ought to remain within a legal context.
The Court should be wary of stories such as appear, for instance, in the amicus brief filed by the Vermont Coalition for Lesbian and Gay Rights, et al. (VCLGR), which threaten to distract from the legal aspects of this issue, to the detriment of all concerned. In the aforementioned brief, the assertion is made that denying the right to same-sex marriage will "wreak[ ] direct tangible and intangible harm on the couples and their children." (Brief of VCLGR, at 2). It states that the "exclusion from civil marriage is harsh, unfair, unjustified, and unconstitutional." The last adjective in that phrase, however, is the only one which bespeaks anything legal in nature. The others are calculated to play upon the Courts heartstrings, but are of no help in deciding this issue fairly.
The brief goes on to offer various anecdotes, taken from newspaper accounts and other sources, all of which should elicit sympathy from caring people, but none of which advances this discussion from a legal point of view. It tells of a father who lost two sons to AIDS, who talks of "the killing power of denigration . . . experienced by people who are demeaned, devalued and degraded, simply on the basis of who and what they are . . . ." and who goes on to say that "[T]he banning of same-gender marriage is a yes to continuing denigration of our gay and lesbian children." Id. at 8, n. 7.
This brief then offers an account of two heterosexual parents who now feel badly about coming too late to an appreciation of their children s homosexual orientation, and who offer inculpatory statements about their conduct as they "mimicked stereotypical gay mannerisms and laughed at anti-gay jokes, often in earshot of our sons." Id. at 8, 9, n. 7.
The brief states early on its ultimate message to the Court, charging that the "detrimental psychological impact" of denying same-sex marriage "is enormous". Id. It offers as "support" for this assertion, the two footnotes recounted above; not a study or a scholarly article, but two anecdotal accounts found in newspapers. This is not to minimize in any way the suffering these individuals claim to have experienced, nor to excuse prejudicial behavior by some in our society. It is to say, however, that this Court is the target of a strategy in this case, the chief weapon of which is the emotive appeal. Should this Court be unduly swayed by such appeals, especially to the neglect of the legal arguments put forward, none of the parties will be well served. Amici urge this Court to resist this sort of effort and to focus exclusively on the law.
For better or worse, we live in the age of "experts", and perhaps nowhere is this phenomenon more entrenched than in our court system. In the amicus brief of the Vermont Psychiatric Association, et al. (VSA), this Court was inundated with social science studies and data. In its brief VSA represented to this Court that all of the science supports its positions, including its position that allowing same-sex marriages would actually benefit children. (Brief of VSA, 13-43).
This blanket assertion almost begs to be contradicted. Despite VSA's eighty-article appendix, it would be a strange phenomenon indeed if all of the social science were to be on one side of an issue. And it turns out that all of the science is not on VSA's and the Appellant's side. Amici urge the Court to bear in mind several specific things that should raise questions regarding the scientific materials supplied by Appellants and their amici:
The foregoing is just a brief list of ways in which scientific data can be less than the objective information its proponents claim it to be. The scientific community is not as monolithic in its thinking on these issues as one might suppose from reading the information supplied by Appellants.
For further concerns about the misrepresentation of social scientific research, amici refer the Court to the Brief amicus curiae of the National Association for Research and Therapy of Homosexuality, et al., (NARTH) which demonstrates, among other things, that many of the articles supplied to the Court by VSA--when honestly read--actually stand for the proposition exactly opposite of that for which they are cited.
There are two sides to this debate, and we simply urge this Court to remember, as it reviews such complex and highly manipulable information, its rule stated in an earlier case: "The standard we have set is clear: what is adamantly asserted must be plausibly maintained." State v. Jewett, 146 Vt. 221, 222 (1985).
In its amicus brief, the National Organization for Women (NOW) urges this Court to abandon the trial Courts holding that Vermont's marriage statute does not unconstitutionally discriminate on the basis of sex. In support of this request the NOW brief cites Loving v. Virginia, 388 U.S. 1 (1967). It is true, as NOW points out in their brief, that the Supreme Court rejected "the notion that the mere equal application of a statute containing racial classifications is enough to remove the classifications from the guarantee of equal protection." (Brief of NOW, 19, quoting Loving 388 U.S. at 7) (emphasis added). NOW errs, however, when they suggest that the case at bar can be resolved simply by substituting the word "sex" for "race," wherever race is discussed in Loving.
Even the NOW brief explains that the restriction in Loving, was impermissible because it "treats the interracial couple made up of a white person and a Negro differently than it does any other couple." Id., (quoting McLaughlin v. Florida, 379 U.S. 184, 188 (1964)). In other words, similarly situated couples were treated in a disparate manner. The trial court was correct in stating that "Vermonts laws do not treat similarly situated males and females in a different manner; the statutes apply evenhandedly to both sexes." Opinion and Order, 13. NOW would have this Court believe that "traditional" marriage is nothing more than a malleable institution designed to perpetuate gender stereotypes and discrimination against women and other targeted classes of citizens. While it is true that at different times throughout our history various jurisdictions have added restrictions to the core definition of marriage; these restrictions were clearly wrong, and as in Loving, courts found them impermissible. But the trial court was correct in noting that throughout our history one thing has remained constant: "marriage is now, and has traditionally been, defined as a union between the sexes." Id.
Thus NOWs argument is an example of a flawed legal argument, rejected in other jurisdictions, but put before this Court to add an air of credibility to an emotionally charged appeal. NOWs attempt to undercut the "equal application" argument by analogizing to Loving has been either implicitly or explicitly addressed and rejected not only by the trial court below, but also in the following cases: Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971); Singer v. Hara, 552 P.2d 1187 (Wash. App. 1974). It is upon this rejected legal foundation that NOW seeks to build its argument that traditional marriage is nothing more than a tool "to limit women s opportunities and to keep women in their proper role." (Brief of NOW, 31). From this assertion NOW boldly concludes that since the suppression of women is the only "real" reason society defends traditional marriage, same-sex marriage must be allowed. Id., at 34.
However, the Supreme Court in Loving did nothing more than remove an impermissible restriction on the traditional definition of marriage. NOW, in the case at bar, is urging this Court, not to remove an impermissible restriction, but to completely redefine marriage. Loving did not change traditional marriage, it simply allowed all men and women to enter into this sacred, long-standing institution on equal footing--as long as they met the traditional marriage definition. Amici urge this Court not to redefine an institution so central to our society as marriage.
Another emotional avenue by which NOW seeks to sway this Court is their condemnation of stereotypes with which they disagree. NOW decries the use of stereotypes and point to the Supreme Courts rejection of "gender classifications that rest on impermissible stereotypes." (Brief of NOW, 22-25). Yet NOW repeatedly invokes stereotypes to support their claim. For example, they baldly assert that most states deny homosexuals the opportunity to marry because "lesbian and gay relationships threaten the traditional definition of men as naturally active and dominant, and of women as naturally passive, subordinate, and dependent on men." Id., at 31. Any recognition of same-sex marriage, NOW goes on to claim, would allow women to move "out of sexual/economic dependence on a male, and therefore pose a threat to male dominance and control." Id., at 31-32. NOW even uses a law review article entitled "Some Characteristics of Those Who Hold Positive and Negative Attitudes Toward Homosexuals," as an authoritative--and yet plainly stereotype-based--source. Id., at 32. Amici urge this Court to reject stereotypes, all stereotypes; and in so doing this Court will find little else remains of NOWs argumentation.
According to the Vermont Coalition for Lesbian and Gay Rights, et al. (VCLGR), this Court must permit same-sex marriage because the Court "cannot be limited by 18th century standards." (Brief of VCLGR, 13, quoting Brigham v. State 8 Vt. L. Wk. 41, 47 (1997)). Accord Brief of NOW, 13. Assuming arguendo that this Court would even embrace VCLGR's and NOW's argument in the same-sex context, that is not the end of the analysis. If this Court should not be bound by eighteenth-century mores, neither should it be bound by what may amount to nothing more than a quickly repudiated legal fad. As of now, the opinions of the court in Alaska and Hawaii, Baehr v. Miike, 910 P.2d 112 (Haw. 1996); Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super.) are anomalies.
Both VCLGR and NOW cite Perez v. Lippold, 198 P.2d 17 (Cal. 1948), and Loving v. Virginia, 388 U.S. 1 (1967) as cases that appear to represent the beginning of a "new era" in equal protection jurisprudence vis-à-vis marriage. (Brief of VCLGR, 4, 5, 7, 16, 24, 27, 28; Brief of NOW, 9, 16, 17). If we take the Perez-Loving era as the proper framework from which to examine "standards," that is, as a better frame than either eighteenth-century mores or the latest legal fad, we find that all of the same-sex marriage cases decided during that period have held same-sex marriages invalid. See Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for lack of a substantial federal question 409 U.S. 810 (1972); Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974), rehg denied; Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973).
VCLGR also asserts that "changes that occur after a statute's adoption must be considered if they erode the rationality of the original scheme." (Brief of VCLGR, 13). A reexamination of certain laws related to marriage has indeed occurred in recent years in this Court, and some doctrines once adhered to have been discarded as anachronisms. However, the cases cited by VCLGR, Id. are not same-sex marriage cases. So, while they may stand for the general proposition for which they are cited, an examination of pertinent changes (or lack thereof) in no way compels a decision by this Court to approve same-sex marriage.
One example of the periodic reexamination of marriage laws is seen in the case of Med. Ctr. Hosp. v. Lorrain, 165 Vt. 12 (1996). There the Court discarded the old common law doctrine under which husbands had to pay for the "necessities" purchased by their wives. While recognizing that there had been a valid rationale at the time it was created, the Court saw that circumstances had changed to the point where the doctrine violated equal protection principles. The Court stated two reasons for discarding the "necessities" doctrine: first, that women now have property and contractual rights, independent of their husbands that they did not have when the doctrine was originated, and secondly, that the doctrine never really accomplished its purpose, since the husbands liability under the doctrine always had "substantial limitations" anyway, i.e.: "(1) the items provided to the wife had to be necessities as defined by the familys social position; (2) the husband had to have the ability to pay for the items; (3) the wife had to be either living with her husband or living apart from him through no fault of her own; and (4) the creditor had to have relied upon the husbands, not the wifes, credit." Id. at 15.
While the changes noted in Lorrain were real, there has been no similar change with respect to prohibiting same-sex marriage. The rationality of that law is still very much alive. The Court below in this case found that the rational basis for the prohibition was the link between heterosexual marriage and the act of procreation. Opinion and Order, 16-17. And, whether VCLGR likes it or not, the anatomical symbiosis of male and female remains, and the ability to procreate unassisted is still unique to heterosexual couples. There simply are not the kinds of changes with respect to same-sex marriage that have occurred in other contexts. Thus, no change in the law is warranted on the basis of an erosion of rationality.
In the amicus brief filed by the Professors of Legislation and Statutory Interpretation, the argument is made that the "unitive commitment" of two people who have joined themselves emotionally and legally into a committed relationship is the "prevailing modern policy" giving marriage its favored status under our law. See Brief of Professors of Legislation and Statutory Interpretation, at 21.
The professors tell the Court that "contrary to the lower courts belief that the right to marry is tied to procreation, the state purpose underlying legal recognition of, and reward for, marriage is unitive commitment: to join two people . . . in a mutually committed family unit." Id. (Emphasis in the original). Herein lies the problem. They assert that the joining of "two people" in a unitive commitment is the policy underlying our laws toward marriage, and imply that homosexuals are, and should be, included within the ambit of that phrase. However, to give us this much and no more begs questions of crucial importance: exactly which "two people" are we talking about? Why, indeed, should we limit this to two people? And, what, if any, principle is there to guide this Court in drawing lines in this area, or are we not to draw any lines at all?
A literal reading of this portion of the brief leaves the door wide open to obliterating all the restrictions now placed on marriage in the State of Vermont. A brother and sister are "two people", as are a father and daughter. By what principle might a court deny them the right to marry, so long as they could "join . . . as a legal as well as emotional and mutually committed family unit"? It is no answer to say that a father and daughter cannot join together as a "legal" unit under current Vermont law because, currently, neither can homosexuals. By the same token, who is to say that it must be kept to "two people"? Were that limitation found to be purely arbitrary and capricious, it might well be discarded as a relic from the 18th century. To the polygamist, after all, the Professors rule may well be too narrow. The lack of a limiting principle is thus fatal to the unbridled "unitive purpose" argument and it should be rejected.
The real purpose of marriage is to unite certain types of people, namely, one man and one woman. In asserting this, Amici are not in turn simply begging the question to get the opposite answer. Rather, Amici are relying on the plain meaning of the statutes that the law professors try so hard to deny. Id., at 8-19. The discussion of the trial court is persuasive. Once again, we find amici for the appellants trotting out arguments that have been rejected by other courts. Dean v. District of Columbia, 653 A.2d 307, 315-316 (D.C. App. 1995); Baker v. Nelson, 191 NW 2d 185, 185-186 (Minn. 1971); Jones v. Hallahan, 501 SW 2d 588, 589 (Ky. 1993); Singer v. Hara, 522 P.2d 1187, 1191 (Wash. App. 1974) rehg denied. However, it is only by denying the plain meaning of numerous Vermont statutes that the law professors can even make their "unitive purpose" argument.
The argument by Vermont Organization for Weddings of the Same-Gender, et al., (VOWS) in their brief amicus curiae, appears to be yet another argument in which an often-rejected legal argument is surrounded by non-legal (and unhelpful) window dressing. VOWS's argument that "Many clergy and religious communities support the right of same sex couples to legally marry," (Brief of VOWS, 5) is nothing more than an attempt to decide the critical legal issue before this Court by public opinion survey--and a very selective, one-sided survey at that.
Following on the heels of this survey, VOWS makes the argument that because they support same-sex marriage and other religious groups oppose these marriages, Vermont has established religion by siding with one side in this debate. (Brief of VOWS, 13-14). Conspicuously absent from this argument is the fact that, by this logic, if Vermont sides with the other camp, i.e., adopts VOWS' position of allowing same-sex marriage, it will also violate Chapter I, Article 3 of the Vermont Constitution.
Indeed, under VOWS' logic, Vermont could not have any marriage law at all since it would be guilty of promoting one religion over another and simultaneously promoting religion over irreligion. This latter point is demonstrated by the statements of several religious groups--appended to VOWS' brief which support the marriage of "same gender couples", based on such normative injunctions as the need to uphold "justice and equality" and to "affirm the inherent worth and dignity of every person." (Brief of VOWS, Appendix).
Concepts such as "justice and equality" and the "inherent worth and dignity of every person" are either religious in origin or, at a minimum, utterly compatible with the tenets of all the major religious faiths. At least, one presumes they are viewed as such by religious groups which espouse them, and who seek to have them applied by a court to the question of same-sex marriage.
Fortunately, VOWS' view has never prevailed. To their credit, our state and federal governments have never understood the convergence of government action and religious belief to be a constitutional infirmity. Had the government done so, it would never have freed the slaves nor enacted into law the victories of the civil rights movement. Indeed, the "fairness ethic" embodied in the progressivity of the federal income tax, the protection from harassment offered by "Title VII" of the federal law, and Vermont s criminalizing of an adult having sexual relations with a person under the age of sixteen (16), are just a few of many other examples demonstrating to any reasonably minded person that nearly every law is undergirded with precepts either derived from, or harmonious with, some or all religions.
VOWS' argument has easily and often been answered. The argument is advanced in the present case with respect to the Vermont constitution, but the claim is essentially the same as is made in federal cases. Though rejected by the Supreme Court on several occasions, the argument persists, and a brief review of history and of pertinent cases is necessary.
There is little if any historical support for the idea that our legislative and judicial acts must be divorced from moral and religious influence. In fact, this nations greatest leaders have emphatically declared that religion, morality, and the law are inseparable. George Washington believed that "[o]f all the habits which lead to political prosperity, religion and morality are indispensable supports." Dr. Martin Luther King, Jr. said that he could "urge men to disobey segregation ordinances because they are morally wrong", and that "the sacred heritage of our nation and the eternal will of God are embodied in our echoing demands."
Fortunately, our courts have seen the fallacy in this rather odd notion that our constitution forbids that religious and legal precepts should ever intersect. Perhaps the most prominent example of this is the case of United States v. McGowan, 366 U.S. 420 (1961), in which the Supreme Court upheld the validity of "Sunday closing laws." The Court stated quite clearly that "the Establishment Clause does not ban federal or state regulation whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions." Id. at 442. The McGowan Court went on to say that "the fact that [the illegality of murder] agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation . . . [t]he same could be said of theft, fraud, etc., because those offenses were also proscribed in the Decalogue." Id. The Court took the same approach in the case of Harris v. McRae, 448 U.S. 297 (1980), where it upheld governmental restrictions on funding for abortion, despite the obvious consistency of its decision with the beliefs of certain church groups including the Roman Catholic church.
This Court must decide this issue in accordance with someone's beliefs. The argument that to do so will establish religion should be ignored.
When all the emotional appeals, one-sided social science, and questionable policy arguments are laid aside, this Court is left with a narrow and easily decided legal question: Is Vermont's opposite-sex only marriage law rationally related to a legitimate government interest?
Under the Common Benefits Clause, the test for the validity of laws is "whether the law is reasonably related to the promotion of a valid public purpose." Lorrain v. Ryan, 160 Vt. 202, 212, 628 A.2d 543 (1993); accord Hodgeman v. Jard Co., 157 Vt. 461, 464 (1991). This test is essentially the same as that used in the federal courts, since the state and federal constitutional provisions are similar. It is applied when the law in question involves neither a "fundamental right" nor a "suspect class". Id. In this case, the rational basis test is the appropriate test, as no fundamental right nor suspect class is involved.
The rational basis test is the most deferential of all tests for laws that distinguish among citizens, and it is used by this Court in considering a claim under either the Vermont Equal Benefits Clause or the federal Equal Protection Clause. See Brigham v. State, 692 A.2d at 395-96 (Vt. 1997).
Under this test, the challenged law enjoys "a strong presumption of validity" and those who would challenge it "have the burden to negative every conceivable basis which might support it." FCC v. Beach Communications, Inc. 508 U.S. 307, 314-15 (1993). Furthermore, there is no requirement of a precise "fit" between the states objectives and the law s purpose, but only a "rough accommodation" of the states interests is required. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 55 (1973).
In the overwhelming majority of cases where the issue has been confronted, courts have found one or more rational bases for the prohibition of same-sex marriage. Shahar v. Bowers, 70 F.3d 1218, 1222 (11th Cir. 1995)("almost unanimously American cases have held that same-sex couples are not constitutionally entitled to attain the legal and civil status of marriage . . . ."); See e.g., Singer v. Hara, 522 P.2d 1187, 1197 (Wash. Ct. App. 1974) (the court stating that "[t]here can be no doubt that there exists a rational basis for the state to limit the definition of marriage to exclude same-sex relationships."). See also Dean v. District of Columbia, 653 A.2d 307 (D.C. Ct. App. 1995); DeSanto v. Barnsley, 476 A.2d 952 (Pa. Sup. Ct. 1984). Decisions to the contrary from Hawaii and Alaska may well be more an anomaly than a trend. In any event, they are poorly reasoned decisions, and this Court should not follow their lead.
Perhaps the leading case rejecting a right to same-sex marriage is that of Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for lack of a substantial federal question, 409 U.S. 810 (1972). In that case, the Plaintiffs challenged a court clerks refusal to issue a marriage license and claimed a deprivation of their rights to due process and equal protection, arguing for recognition of a "fundamental right" to marry without regard to the sex of the parties. Id. at 186. That court, however, rejected such claims, and held that the law proscribing same-sex marriage was rationally related to legitimate government interests and was, therefore, perfectly constitutional.
One recognized rational basis for a prohibition of same-sex marriage is that of a communitys interest in protecting traditional morality and in expressing its moral judgments through its laws. The same principle underlies our laws against polygamy, incest, prostitution, sexual relations with minors, and a host of other conduct still frowned upon in the modern era. The Supreme Court specifically held this to be a legitimate and rational basis for laws making sodomy a criminal offense in this case. Bowers v. Hardwick, 478 U.S. 186 (1986).
Another recognized rational basis--and the one relied upon by the trial court-- is to give unique and unqualified support to heterosexual marriage, the relationship most conducive to procreation. The court in Baker, for instance, held that the necessary "rational basis" for this prohibition could be found in the need to give unique recognition to traditional marriage, for its essential contribution to procreation. Id. at 186 (quoting with approval from Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), where the Supreme Court noted that "[m]arriage and procreation are fundamental to the very existence and survival of the [human] race."). Baker, 191 N.W.2d at 186.
Therefore, to claim there is no rational basis for a prohibition on same-sex marriage is to disregard entirely a number of federal and state cases which actually dispose of the equal protection claims in this case.
In this case, Appellants and their amici rely heavily on two United States Supreme Court cases: Griswold v. Connecticut, 381 U.S. 479 (1965) for their "right to privacy" argument, and Loving v. Virginia, 388 U.S. 1 (1967) to argue that laws against same-sex marriage discriminate impermissibly upon the basis of sex. Their reading of these cases has been rejected by other courts, however, as being unjustifiably broad.
The Plaintiffs in Baker wanted the court to find in Griswold a rule that the government may not proscribe any private sexual conduct whatsoever, between consenting adults. That is not, however, what Griswold was intended to mean. That court read Griswold as holding only for the idea that "the state, having authorized marriage, was without power to intrude upon the right of privacy inherent in the marital relationship." Baker, 191 N.W.2d at 186 (emphasis added). The Griswold court believed it was sacrilege for the government to intrude uponand only uponthe intimacy of a husband and wife, not just any two or more people wishing to indulge one sexual proclivity or another.
The court in Baker also rejected the Plaintiff s expansive reading of the Loving case, a case in which the Supreme Court struck down prohibitions against interracial marriage. The Baker court read Loving as having invalidated miscegenation laws only because of what the Loving Court called their "patent racial discrimination". Baker, 191 N.W.2d at 187 (emphasis added).
As the Baker court observed, "not all state restrictions upon the right to marry are beyond the reach of the Fourteenth Amendment" and "in a common sense and constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex." Id. at 187.
Appellants and their supporters not only try to stretch those cases beyond recognition, they also largely ignore the cases such as Baker, which clearly hold that "[t]he equal protection clause . . . . like the due process clause, is not offended by the states classification of persons authorized to marry. There is no irrational or invidious discrimination." Id. at 187. To ignore these cases and to instead use Griswold and Loving for purposes never contemplated is Appellants tacit admission that established precedent provides them with scant support in this case.
A reading of the briefs submitted by Appellants and their supporters in this case might well give the impression that marriage is denied only to homosexuals. Nothing could be further from the truth. Persons related by certain degrees of consanguinity and affinity are also denied this right. However, the refusal to permit marriage to such persons is constitutional since neither persons closely related nor homosexuals, constitute a suspect class under this Court's equal protection analysis.
Moreover, both federal and state courts have steadfastly refused to give homosexuals a status that would merit heightened or strict scrutiny review. As one court has observed, the notion of giving homosexuals status as a "suspect class" has been "universally rejected by courts that have considered it." Shahar, 70 F.3d at 1227. See also, Equality Foundation of Greater Cincinnati v. City of Cincinnati, 54 F. 3d 261, 266 n.2 (6th Cir. 1995), and Jantz v. Muci, 976 F. 2d 623, 630 (10th Cir. 1992). "Accordingly, the courts have applied the rational basis test to such claims." Id.
Federal courts have developed a test to determine if a particular group qualifies as a "suspect class". In order to qualify, a group must: (1) prove that it has been historically discriminated against; (2) exhibit obvious, immutable, or distinguishing characteristics that define it as a unique group; and (3) demonstrate that it is a politically powerless minority. Lyng v. Castillo, 477 U.S. 635, 638 (1986).
Even assuming arguendo that homosexuals could meet the first and, perhaps the second, criteria, they cannot meet the third. They are anything but a "politically powerless minority" either nationally or in the State of Vermont. For instance, Vermont has a number of statutes, recently enacted, prohibiting discrimination on the basis of sexual orientation in housing, banking and employment. Thus, all efforts to have "suspect class" status conferred on homosexuals have--at least on the federal level--been emphatically rejected. See High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990), rehg denied 909 F.2d 375 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989); Rich v. Secy of the Army, 735 F.2d 1220 (10th Cir. 1984).
Homosexuals are simply not a "discreet and insular group in need of extraordinary protection from the majoritarian political process." Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976) (per curiam), quoting United States v. Carolene Products Co., 304 U.S. 144, 152-53 (1938). This Court should therefore not confer upon homosexuals the benefit of "suspect class" status.
This Court has expressly adopted the criteria first developed in federal cases which state that a right is not held to be fundamental unless it is a right "so rooted in the traditions and conscience of our people to be ranked as fundamental," Snyder v. Massachusetts, 291 U.S. 97, 105 (1934), and deemed to be "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937).
In order to determine whether a particular right meets these criteria, the Court may consider factors such as history, the text of a statute or constitutional provision, like provisions in other state constitutions, and sociological data. State v. Delabruere, 154 Vt. 237, 262-63 (1990). Under these criteria, the claim that there is a fundamental right to same-sex marriage is utterly without support in either federal or Vermont law.
For that precise reason, Appellants are attempting to re-frame the question in this case. For decades, the question has been posed as to whether there was a fundamental right under the constitution to same-sex marriage. See Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). That is still the proper question. Appellants, howeverrealizing that the law is squarely against them on that questionare suggesting that this Court should focus entirely on a similar but different question, i.e., whether, as a lone trial court in Alaska framed it, there is a fundamental right to "choose ones life partner." Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super.).
It is imperative to note that the vast majority of courts that have considered same-sex marriage have framed the question as mentioned above, i.e., whether there is a fundamental right to same-sex marriage. Only one court in the entire country has asked the more general, and yet improper, question as to whether the right to marry at all is infringed by laws such as those at issue in this case. See Brause v. Bureau of Vital Statistics, slip opinion, No. 3AN-95-6562 CI (Superior Court of Alaska, 3d Judicial District, February 27, 1998). The weight of authority is overwhelmingly against the re-framing of the question, and this Court should rule in accordance with cases from various jurisdictions, decided over decades, and not follow an aberrant opinion from one state court.
It is clear that not all government regulation "touching upon marriage implicates a fundamental right triggering the most exacting judicial scrutiny." Zablocki v. Redhail, 434 U.S. 397 (1977)(Powell, J., concurring). No fundamental right to same-sex marriage has ever been recognized. Thus, there is no justification for the use of heightened scrutiny in this case, but only for the use of rational basis review. Under that standard, Vermont s statutes regarding marriage are presumed constitutional and the laws must therefore stand.
In light of the foregoing, Amici respectfully urge this Court to avoid the errors of the Romer Court. This Court must not allow Appellants and their amici to cloud the real issue before this court with emotional appeals, one-sided social science and questionable assertions about public policy. Should this Court fall victim to such ploys, Vermont would be saddled with a precedent that could send Equal Benefit Clause jurisprudence in a legal wilderness for decades.
Therefore, Amici urge this Court to declare that rational basis is the proper level of scrutiny to apply to this case, and to affirm the order of the court below, upholding Vermonts opposite-sex only marriage.
Respectfully submitted this _____ day of May, 1998.
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