Earlier this year the California Supreme Court ruled that a state law defining marriage as a union between a man and woman violated various sections of the state constitution. This feature article will review the California ruling and assess its relevance to ministers in California and other states.
This issue of same-sex marriages became front-page news in May when the California Supreme Court ruled that a state law barring such marriages violated the state constitution. This case raises a number of important questions for pastors, including the following:
- Am I legally authorized to perform same-sex marriages in my state?
- If I am opposed to same-sex marriages based on my religious convictions, can I be liable for refusing to perform a same-sex marriage for a couple who asks me to do so?
- If I support same-sex marriages, can I be liable for performing such a marriage if my state prohibits them?
- Is my state legally required to recognize a same-sex marriage that was valid in the state where it was performed?
These and other questions will be addressed in this feature article following an analysis of the California Supreme Court’s recent ruling.
The California Supreme Court’s Ruling
The California legislature has enacted numerous laws, dating back to the earliest days of statehood, that define marriage as a union between a man and woman. To illustrate, section 300 of the California Family Code states: “Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.”
To reinforce the definition of marriage as being limited to opposite-sex couples, section 308.5 of the California Code was enacted through the initiative process. This entailed the submission of the following proposed statute to the citizens of California at the March 7, 2000 primary election as Proposition 22: “Only marriage between a man and a woman is valid or recognized in California.” This provision was approved by the electorate, and became part of the Family Code.
On February 10, 2004, the Mayor of the City of San Francisco sent a letter to the county clerk, directing that official to determine what changes should be made to the forms and documents used to apply for and issue marriage licenses, so that licenses could be provided to couples without regard to their gender or sexual orientation. In response, the county clerk designed revised forms for the marriage license application and for the license and certificate of marriage, and on February 12, 2004, the city began issuing marriage licenses to same-sex couples. The following day, two separate lawsuits were filed in San Francisco Superior Court in an effort to prohibit the city’s issuance of marriage licenses to same-sex couples. The superior court refused to halt the issuance of marriage licenses to same-sex couples, and the city continued to issue marriage licenses to, and solemnize and register marriages of, numerous same-sex couples.
The California Attorney General and a number of taxpayers asked the state supreme court to intervene and declare the city’s actions unlawful. On March 11, 2004, the state supreme court ruled that city officials had exceeded their authority in issuing marriage licenses to same-sex couples in the absence of a judicial determination that state laws limiting marriage to the union of a man and a woman are unconstitutional, and further concluding that the approximately 4,000 same-sex marriages performed in San Francisco prior to its March 11, 2004, ruling were void and of no legal effect. The court ordered city officials to comply with the requirements and limitations of the current marriage statutes in performing their duties under these statutes, and directing the officials to notify all same-sex couples to whom the officials had issued marriage licenses or registered marriage certificates that these same-sex marriages were void from their inception and a legal nullity. The court stressed that it was not addressing the question of the constitutionality of state laws limiting marriage to a man and a woman.
The supreme court’s ruling prompted the city, and several same-sex couples, to file a lawsuit in San Francisco Superior Court challenging the constitutionality of the state ban on same-sex marriages. In particular, the lawsuit alleged that the ban on same-sex marriages violated same-sex couples’ fundamental right to marry as guaranteed by the privacy, free speech, and due process clauses of the California Constitution and also violated the equal protection clause of the California Constitution.
On April 13, 2005, the court ruled that that California’s marriage statutes, which limited marriage to opposite-sex couples, violated the state constitution. Specifically, it found that the right to marry was a fundamental constitutional right that applied to all citizens regardless of sexual orientation. A state appeals court reversed this ruling. It disagreed that the constitutional right to marry applied to same-sex couples. This ruling was appealed to the state supreme court.
The Right to Marry
The California Supreme Court ruled that the right to marry was a fundamental right embodied in the state constitution, and that denying this right to same-sex couples violated various provisions in the state constitution including the guarantees of equal protection of the laws, due process of law, and privacy:
This contention is fundamentally fl awed for a number of reasons. To begin with, although the legal institution of civil marriage may well have originated in large part to promote a sTable relationship for the procreation and raising of children, and although the right to marry and to procreate often are treated as closely related aspects of the privacy and liberty interests protected by the state and federal Constitutions, the constitutional right to marry never has been viewed as the sole preserve of individuals who are physically capable of having children. Men and women who desire to raise children with a loved one in a recognized family but who are physically unable to conceive a child with their loved one never have been excluded from the right to marry …. There is … no authority whatsoever to support the proposition that an individual who is physically incapable of bearing children does not possess a fundamental constitutional right to marry. Such a proposition clearly is untenable. A person who is physically incapable of bearing children still has the potential to become a parent and raise a child through adoption or through means of assisted reproduction, and the constitutional right to marry ensures the individual the opportunity to raise children in an officially recognized family with the person with whom the individual has chosen to share his or her life. Thus, although an important purpose underlying marriage may be to channel procreation into a sTable family relationship, that purpose cannot be viewed as limiting the constitutional right to marry to couples who are capable of biologically producing a child together.
The court also rejected the following additional arguments asserted by opponents of same-sex marriage:
- The purpose of marriage is to promote responsible procreation and a restriction limiting this right exclusively to opposite-sex couples follows from this purpose.
- Promoting and facilitating a sTable environment for the procreation and raising of children is one of the vitally important purposes underlying the institution of marriage and the constitutional right to marry.
- The constitutional right to marry should be viewed as inapplicable to same-sex couples because a contrary interpretation would sever the link that marriage provides between procreation and child rearing and would send a message to the public that it is immaterial to the state whether children are raised by their biological mother and father.
“Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.”
The Relevance of Domestic Partner Legislation
In recent years the California legislature enacted comprehensive domestic partnership legislation that provides same-sex couples the opportunity, by entering into a domestic partnership, to obtain virtually all of the legal benefits, privileges, responsibilities, and duties that California law confers upon married couples. To illustrate, in 2003 the legislature enacted comprehensive domestic partnership legislation (the California Domestic Partner Rights and Responsibilities Act). This legislation added several new provisions to the Family Code, most significantly section 297.5, which provides: “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.”
The court noted that California law “generally affords same-sex couples the opportunity to enter into a domestic partnership and thereby obtain virtually all of the benefits and responsibilities afforded by California law to married opposite-sex couples.”
The California Attorney General, arguing against an extension of marriage to same-sex couples, argued that the current California marriage statutes do not violate the fundamental rights of same-sex couples “because all of the personal and dignity interests that have traditionally informed the right to marry have been given to same-sex couples through the Domestic Partner Act.”
The court responded to this argument as follows:
The current statutory assignment of different names for the official family relationships of opposite-sex couples on the one hand, and of same-sex couples on the other, raises constitutional concerns not only in the context of the state constitutional right to marry, but also under the state constitutional equal protection clause. Plaintiffs contend that by permitting only opposite- sex couples to enter into a relationship designated as a “marriage,” and by designating as a “domestic partnership” the parallel relationship into which same-sex couples may enter, the statutory scheme impermissibly denies same-sex couples the equal protection of the laws, guaranteed by article I, section 7, of the California Constitution. The relevant California statutes clearly treat opposite-sex and same-sex couples differently in this respect, and the initial question we must consider in addressing the equal protection issue is the standard of review that should be applied in evaluating this distinction.
A Suspect Class
The court noted that a state law that treats members of a “suspect class” less favorably than others, or that impinges upon a fundamental right, violates the California Constitution’s guaranty of the equal protection of the laws unless it has “a compelling interest which justifies the law [and] the distinctions drawn by the law are necessary to further its purpose.” The court concluded that California laws restricting marriage to opposite-sex couples adversely affected citizens based on sexual orientation; that sexual orientation was a “suspect class”; and that marriage was a fundamental right. As a result, the state of California had the burden of proving that a compelling interest justified this unequal treatment, and that the discriminatory treatment of same-sex couples was necessary to further that interest. The court observed:
In our view, the statutory provisions restricting marriage to a man and a woman cannot be understood as having merely a disparate impact on gay persons, but instead properly must be viewed as directly classifying and prescribing distinct treatment on the basis of sexual orientation. By limiting marriage to opposite-sex couples, the marriage statutes, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation. By definition, gay individuals are persons who are sexually attracted to persons of the same sex and thus, if inclined to enter into a marriage relationship, would choose to marry a person of their own sex or gender. A statute that limits marriage to a union of persons of opposite sexes, thereby placing marriage outside the reach of couples of the same sex, unquestionably imposes different treatment on the basis of sexual orientation.
The court acknowledged that “the great majority of out-of-state decisions” have concluded that sexual orientation is not a “suspect classification,” and therefore no “compelling interest” must be shown to justify laws treating gay persons less favorably than heterosexuals. The California court disagreed with these other courts: “We conclude that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution’s equal protection clause,” and therefore statutes that treat persons differently because of their sexual orientation will be unconstitutional unless the discriminatory treatment is (1) supported by a compelling state interest, and (2) is necessary to further that purpose. The court concluded that California marriage laws, by denying same-sex couples the right to marry, violated both conditions and therefore violated the equal protection guaranty of the state constitution.
The court ruled that laws adversely affecting a “suspect class” violate the equal protection guaranty of the California Constitution unless they are supported by a compelling state interest. The court defined a suspect class as one that meets three requirements: “(1) It is based upon an immuTable trait; (2) that bears no relation to a person’s ability to perform or contribute to society; and (3) is associated with a stigma of inferiority and second class citizenship manifested by the group’s history of legal and social disabilities.”
The opponents of same-sex marriage argued that the first of these conditions was not satisfied, and therefore the state marriage laws did not need to be based on a compelling state interest to be constitutional. The court disagreed: “Whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unaccepTable personal costs.”
The court noted that the compelling state interest requirement was triggered not only by the adverse impact the California marriage statutes imposed on same-sex couples, but also because those statutes adversely affected same-sex couples’ constitutional right to marry.
A Compelling State Interest
State laws adversely impacting a suspect classification, or the enjoyment of a fundamental right, violate the equal protection guaranty of the California Constitution unless based on a compelling state interest. Did California have such an interest in limiting the institution of marriage to opposite-sex couples? No, the court concluded: “We conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling … to justify withholding that status from same-sex couples. Accordingly, insofar as the provisions of [Family Code] sections 300 and 308.5 draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional.”
In reaching this conclusion the court observed:
To begin with, the limitation clearly is not necessary to preserve the rights and benefits of marriage currently enjoyed by opposite-sex couples. Extending access to the designation of marriage to same-sex couples will not deprive any opposite-sex couple or their children of any of the rights and benefits conferred by the marriage statutes, but simply will make the benefit of the marriage designation available to same-sex couples and their children. Further, permitting same-sex couples access to the designation of marriage will not alter the substantive nature of the legal institution of marriage; same-sex couples who choose to enter into the relationship with that designation will be subject to the same duties and obligations to each other, to their children, and to third parties that the law currently imposes upon opposite-sex couples who marry. Finally, affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. (Cal. Const., art. I, § 4.)
While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of the long and celebrated history of the term “marriage” and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples —while providing only a novel, alternative institution for same-sex couples—likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples. Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term “marriage” is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship. Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic partnerships, there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite- sex couples.
“There are enough marriage licenses to go around for everyone.” Chief Judge Kaye of the New York Court of Appeals in her dissenting opinion in Hernandez v. Robles, 821 N.Y.S.2d 770 (2006).
The Initiative Process
The opponents of same-sex marriage argued that the courts must defer to the definition of marriage contained in section 308.5 of the Family Code (“only marriage between a man and a woman is valid or recognized in California”) because that statute was enacted by the citizens of California through the initiative process, by a vote of 61.4 percent to 38.6 percent, and therefore represented the will of the people. The court disagreed:
This argument fails to take into account the very basic point that the provisions of the California Constitution itself constitute the ultimate expression of the people’s will, and that the fundamental rights embodied within that Constitution for the protection of all persons represent restraints that the people themselves have imposed upon the statutory enactments that may be adopted either by their elected representatives or by the voters through the initiative process. As the United States Supreme Court explained in [a prior case]: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
The Experience of Other States
In defending the state’s interest in retaining the traditional definition of marriage as limited to a union between a man and a woman, the California Attorney General and the Governor relied primarily on history and the fact that the institution of marriage continues to apply only to a relationship between opposite-sex couples in the overwhelming majority of jurisdictions in the United States and around the world. The court acknowledged that
Until recently, there has been widespread societal disapproval and disparagement of homosexuality in many cultures [so] it is hardly surprising that the institution of civil marriage generally has been limited to opposite-sex couples and that many persons have considered the designation of marriage to be appropriately applied only to a relationship of an opposite-sex couple.
However, the court noted:
Although the understanding of marriage as limited to a union of a man and a woman is undeniably the predominant one, if we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority races and toward women over the past half-century, it is that even the most familiar and generally accepted of social practices and traditions often mask an unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions. It is instructive to recall in this regard that the traditional, well-established legal rules and practices of our not-so-distant past (1) barred interracial marriage, (2) upheld the routine exclusion of women from many occupations and official duties, and (3) considered the relegation of racial minorities to separate and equivalent public facilities and institutions as constitutionally equal treatment. … For this reason, the interest in retaining a tradition that excludes an historically disfavored minority group from a status that is extended to all others—even when the tradition is long-standing and widely shared—does not necessarily represent a compelling state interest for purposes of equal protection analysis.
The court noted that only six jurisdictions (Massachusetts and five foreign nations—Canada, South Africa, the Netherlands, Belgium, and Spain) authorize same-sex couples to marry. Of these six jurisdictions, three (Massachusetts, Canada, and South Africa) arrived at that position through judicial decision, and three (the Netherlands, Belgium, and Spain) adopted that position legislatively, without involvement by the courts. The court added: “Although to date the Supreme Judicial Court of Massachusetts is the only state high court in this nation to have found a statute limiting marriage to opposite-sex couples violative of its state constitution, we note that in each of the other instances in which a state high court has addressed this issue in recent years, each decision rejecting the constitutional challenge was determined by a divided court, frequently by a one-vote margin.” The court referred to cases in Maryland (4-3 decision), New York (4-2 decision), Wisconsin (5-4 decision). It also referred to a New Jersey case in which the state supreme court unanimously concluded that same-sex couples are constitutionally entitled to the rights and benefits of marriage, and three of the seven justices further concluded that denying such couples the designation of marriage necessarily would violate the state constitution.
• Key point. A similar issue is pending before the Connecticut Supreme Court in the case of Kerrigan v. Commissioner of Public Health. In Kerrigan, the court is expected to determine whether a Connecticut statute that limits marriage to opposite-sex couples is unconstitutional under the Connecticut Constitution, notwithstanding the existence of a recently enacted Connecticut statute that permits same-sex couples to enter into a civil union, a status that, under the applicable legislation, affords same-sex couples the same legal benefits and obligations possessed by married couples under Connecticut law.
Are Ministers Required to Perform Same-Sex Marriages?
“[N]o religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.” From the majority opinion in the California Supreme Court’s ruling upholding the validity of same-sex marriages. In re Marriage Cases, 2008 WL 2051892 (Cal. 2008).
The court stressed that its ruling did not violate the religious beliefs of churches and other religious organizations that are doctrinally opposed to recognizing same-sex marriages, and that clergy cannot be compelled to perform same-sex marriages, or any other marriages that violate their religious beliefs:
Affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.
The Court cited Article I, Section 4, of the California Constitution as support for this conclusion. This section, which was added to the California Constitution in 1974, provides: “Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion. A person is not incompetent to be a witness or juror because of his or her opinions on religious beliefs.”
The court concluded that section 300 of the Family Code, by limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that “the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.” In addition, “because the limitation of marriage to opposite-sex couples imposed by section 308.5 can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand.”
A Constitutional Amendment?
California voters will decide in November whether to amend the state constitution to define marriage to apply only to opposite-sex couples. The proposed constitutional amendment reads: “This measure shall be known and may be cited as the California Marriage Protection Act. Article I Section 7.5 is added to the California Constitution to read: ‘Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.'”
Should the voters approve the amendment, this will have the effect of overturning the California Supreme Court’s recent ruling.
The Dissenting Opinion
A dissenting opinion disagreed with the court’s conclusion that the California Constitution gave same-sex couples a right to marry. The dissenting opinion explained: Only one other American state recognizes the right the majority announces today. So far, Congress, and virtually every court to consider the issue, has rejected it. Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage—an understanding recently confirmed by an initiative law—is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority ….
The question presented by this case is simple and stark. It comes down to this: Even though California’s progressive laws, recently adopted through the democratic process, have pioneered the rights of same-sex partners to enter legal unions with all the substantive benefits of opposite-sex legal unions, do those laws nonetheless violate the California Constitution because at present, in deference to long and universal tradition, by a convincing popular vote, and in accord with express national policy, they reserve the label “marriage” for opposite-sex legal unions? I must conclude that the answer is no.
The People, directly or through their elected representatives, have every right to adopt laws abrogating the historic understanding that civil marriage is between a man and a woman. The rapid growth in California of statutory protections for the rights of gays and lesbians, as individuals, as parents, and as committed partners, suggests a quickening evolution of community attitudes on these issues. Recent years have seen the development of an intense debate about same-sex marriage. Advocates of this cause have had real success in the marketplace of ideas, gaining attention and considerable public support. Left to its own devices, the ordinary democratic process might well produce, ere long, a consensus among most Californians that the term “marriage” should, in civil parlance, include the legal unions of same-sex partners.
But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves. Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will ….
Courts must use caution when exercising the potentially trans-formative authority to articulate constitutional rights. Otherwise, judges with limited accountability risk infringing upon our society’s most basic shared premise—the People’s general right, directly or through their chosen legislators, to decide fundamental issues of public policy for themselves. Judicial restraint is particularly appropriate where, as here, the claimed constitutional entitlement is of recent conception and challenges the most fundamental assumption about a basic social institution. The majority has violated these principles. It simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice.
The dissenting opinion stressed that “fundamental rights entitled to the Constitution’s protection are those which are deeply rooted in this society’s history and tradition,” and concluded that “it is beyond dispute … that there is no deeply rooted tradition of same-sex marriage, in the nation or in this state. Precisely the opposite is true. The concept of same-sex marriage was unknown in our distant past, and is novel in our recent history, because the universally understood definition of marriage has been the legal or religious union of a man and a woman …. California law has always assumed that marriage itself is between a man and a woman. In recent years, both the Legislature and the People themselves have enacted measures to make that assumption explicit. Under these circumstances, there is no basis for a conclusion that same-sex marriage is a deeply rooted California tradition.”
The Federal Defense of Marriage Act
Congress enacted the Defense of Marriage Act in 1996 in response to a case in Hawaii in which a state court seemed on the verge of requiring the state to issue marriage licenses to same-sex couples. If Hawaii (or some other state) recognized same-sex marriages, other states that do not permit homosexuals to marry would be confronted with the complicated issue of whether they are nonetheless obligated under the Full Faith and Credit Clause of the United States Constitution to give binding legal effect to such unions.
The Full Faith and Credit Clause requires each state to give the law of every other state the same “faith and credit” it gives its own law—to treat the law of sister states as equal in authority to its own. If Hawaii recognized same-sex marriages, then homosexuals who traveled to Hawaii to marry would return to their homes in other states expecting full legal recognition of their marriages. To illustrate, the Uniform Marriage and Divorce Act, which has been adopted by several states, provides that “all marriages contracted … outside this state, that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted … are valid in this state.”
Notwithstanding the seemingly mandatory terms of the Full Faith and Credit Clause, the U.S. Supreme Court has recognized a public policy exception that, in certain circumstances, would permit a state to decline to give effect to another state’s laws. To illustrate, in Nevada v. Hall, 440 U.S. 410 (1979) the Supreme Court observed that “the Full Faith and Credit Clause does not require a state to apply another state’s law in violation of its own legitimate public policy.” Nevertheless, a report of the Judiciary Committee of the House of Representatives, commenting on the proposed federal Defense of Marriage Act, noted that “there is a burgeoning body of legal scholarship … to the effect that the Full Faith and Credit Clause does mandate extraterritorial recognition of marriage licenses given to homosexual couples.” Congress enacted the Defense of Marriage Act to address such concerns. The Act has two primary provisions. Section 2 states:
No state, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other state, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state, territory, possession, or tribe, or a right or claim arising from such relationship.
The Judiciary Committee’s report stressed the narrowness of this provision:
Section 2 merely provides that, in the event Hawaii (or some other state) permits same-sex couples to marry, other states will not be obligated or required, by operation of the Full Faith and Credit Clause of the United States Constitution, to recognize that marriage, or any right or claim arising from it. It will not forestall or in any way affect developments in Hawaii, or, for that matter, in any other state. Indeed, nothing in this (or any other) section of the Act would either prevent a state on its own from recognizing same-sex marriages, or from choosing to give binding legal effect to same-sex marriage licenses issued by another state ….
Section 2 is intended to permit each state to decide this important policy issue for itself, free from any possible constitutional compulsion that might result from the Full Faith and Credit Clause. Thus, if a state were ever to choose (either through the legislative process or by popular vote) to permit homosexual couples to marry, Section 2 would have no effect on that decision in that state. Section 2 would simply mean that no other state would be required to give effect to the resulting same-sex marriage licenses. Likewise, if a state is forced by its own courts to issue marriage licenses to homosexual couples (as Hawaii’s courts are prepared to do), again, Section 2 in no way affects that development. Finally, if a state, applying its own choice of law or other principles, decides (legislatively or through the judicial process) to recognize as valid same-sex ‘marriages’ celebrated in a different state, in that situation too Section 2 has no effect ….
Instead, Section 2 is concerned exclusively with the potential interstate implications that might result from a decision by one state to issue marriage licenses to same-sex couples. The committee is concerned that, if Hawaii recognizes same-sex marriages, gay and lesbian couples will fly to Hawaii, get married, and return to their home state to seek full legal recognition of their new status ….
While the committee does not believe that the Full Faith and Credit Clause, properly interpreted and applied, would require sister states to give legal effect to same-sex marriages celebrated in other states, there is sufficient uncertainty that we believe congressional action is appropriate.
Section 3 of the Defense of Marriage Act states:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
According to the Congressional Research Service, section 3 of the Act has the effect of denying any benefits payable under federal law to same-sex couples even if legally married under state law. A CRS report concludes:
Under current law, same-sex spouses are not eligible for Social Security benefits because they are unable to meet the gender-based definitions of “wife” and “husband” in the Social Security Act and the gender-based definition of “marriage” established by the Defense of Marriage Act. Federal employee pensions and private-sector pensions regulated by the Employee Retirement Income Security Act (ERISA) are required to provide certain benefits to the spouse of a participant in the event of the participant’s death. Under the Defense of Marriage Act, both federal pensions and private-sector pensions regulated by ERISA are required to define a spouse only as “a person of the opposite sex who is a husband or a wife.” Congressional Research Service Report, The Effect of State-Legalized Same-Sex Marriage on Social Security benefits and Pensions (2004).
State “Defense Of Marriage” Laws
Most states have enacted statutes defining a marriage as a covenant or relationship between a man and woman. Many states have enacted constitutional amendments that achieve the same purpose. Examples of state laws defining marriage as a relationship between a man and a woman are summarized below:
- Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract. No marriage license shall be issued in the State of Alabama to parties of the same sex. The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued. Alabama Code § 30-1-19.
- Marriage between persons of the same sex is void and prohibited. Arizona Revised Statutes § 25-101.
- No county court judge or clerk of the circuit court in this state shall issue a license for the marriage of any person unless there shall be first presented and filed with him or her an affidavit in writing, signed by both parties to the marriage, providing the social security numbers or any other available identification numbers of each party, made and subscribed before some person authorized by law to administer an oath, reciting the true and correct ages of such parties; unless both such parties shall be over the age of 18 years, except as provided in section 741.0405; and unless one party is a male and the other party is a female. Florida Statutes § 741.04
- A marriage between a man and a woman licensed, solemnized and registered as provided in this Act is valid in this state. 750 Ill. Comp. Stat. § 5/201.
- Only a marriage between a man and a woman is valid in this state. Md. Family Code § 2-201.
- Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting that unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state. Mich. Comp. Laws § 551.1.
- Any marriage between persons of the same sex is against the strong public policy of this state. Any marriage between persons of the same sex shall have no legal force or effect in this state and, if attempted to be entered into in this state, is void ab initio and shall not be recognized by this state. Any marriage entered into by persons of the same sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state. Ohio Rev. Code § 3101.
- It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth. Pa. Stat. title 23 § 1704.
- A man and a woman desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk of any county of this state. A license may not be issued for the marriage of persons of the same sex. Tex. Family Code § 2.001.
California Supreme Court Recognizes Same- Sex Marriages
In 2008, the California Supreme Court ruled that same-sex couples have a fundamental right, based on the state constitution’s due process, equal protection, and privacy clauses, to marry, and therefore a state law (that was enacted by citizens through the petition process) defining marriage as a union between a man and woman was unconstitutional. The court concluded that “the right to marry, as embodied in … the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to … enter with [one’s chosen life partner] into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” The court acknowledged that marriage had always been limited in California to a union between a man and a woman, but it insisted that “tradition alone generally has not been viewed as a sufficient justification for perpetuating, without examination, the restriction or denial of a fundamental constitutional right.” In re Marriage Cases, 2008 WL 2051892 (Cal. 2008). In November of 2008 the citizens of California will decide on a constitutional amendment that would define marriage as a union “between a man and a woman.” If this amendment is enacted, it would overturn the state supreme court’s decision affirming the legal validity of same-sex marriages.
• Example. A Florida court ruled that a marriage between a female and a post-operative female-to-male transsexual person was void. Whether or not transsexuals can legally enter persons of the opposite sex is an important question for ministers who may be called upon to perform such a marriage. Every state imposes criminal penalties on ministers who solemnize marriages between persons who are not legally capable of marrying, and so it is important for ministers to understand the legal status of such marriages before performing them. A recent case in Florida provides some helpful guidance. A woman (Margo) changed her name to Michael, and underwent sex reassignment, which included hormonal treatments, a total hysterectomy, and a double mastectomy. Several months later, Michael met Linda, and Linda learned of Michael’s surgeries. Linda and Michael later applied for a marriage license with Michael representing that he was male. The two were married in Florida. Several years later, Michael filed a petition for dissolution of his marriage to Linda. He also requested joint custody of Linda’s two children (whom he had adopted). Linda claimed that the marriage was void from the beginning since it was between persons of the same sex, and therefore Michael should not be given joint custody. After a lengthy trial, the trial court entered an order finding that Michael was legally a male at the time of the marriage, and thus the marriage was valid. The court also concluded that Michael was entitled to primary residential custody of the two children. In explaining its reasons for determining that Michael was male at the time of the marriage, the court relied heavily on a 2001 decision by a court in Australia, and concluded:
Michael at the date of marriage was a male based on the persuasive weight of all the medical evidence and the testimony of lay witnesses in this case, including the following: (a) Prior to marriage he successfully completed the full process of transsexual reassignment, involving hormone treatment, irreversible medical surgery that removed all of his female organs inside of his body, including having a male reconstructed chest, a male voice, a male configured body and hair with beard and moustache. (b) At the time of the marriage Linda was fully informed about his sex reassignment status, she accepted that Michael in his appearance, characteristics and behavior was perceived as a man. At the time of the marriage he could not assume the role of a woman. (c) Before and after the marriage he has been accepted as a man in a variety of social and legal ways, such as having a male driving license; male passport; male name change; male modification of his birth certificate by legal ruling; male participation in legal adoption proceedings in court; and as a male in an artificial insemination program, and participating for years in school activities with the children of this marriage as their father. All of this, was no different than what Michael presented himself as at the date of marriage.
The court conceded that Michael would still have a chromosomal pattern of a woman but “that is a presumption” since no chromosomal tests were performed.” Further, “chromosomes are only one factor in the determination of sex and they do not overrule gender or self identity, which is the true test or identifying mark of sex.”
A state appeals court reversed the trial court’s decision and ruled that the marriage was void since it violated the Florida “Defense of Marriage Act,” which prohibits “marriage between persons of the same sex.” The Act further specifies that “the state … may not give effect to any public act, record, or judicial proceeding of any state … or of any other jurisdiction … respecting” a marriage between persons of the same sex.
The court noted that courts in Ohio, Kansas, Texas, and New York have addressed issues involving the marriage of a postoperative transsexual person, and in all cases the courts have invalidated or refused to allow the marriage on the grounds that it violated state statutes or public policy. However, the court conceded that a court in New Jersey had permitted transsexual marriage. After considering the medical evidence, the court held that when a transsexual person has successfully undergone sex-reassignment and can fully function sexually in the reassigned sex, then the person could marry legally as a member of the sex finally indicated. The court concluded:
The controlling issue in this case is whether, as a matter of law, the Florida statutes governing marriage authorize a postoperative transsexual to marry in the reassigned sex. We conclude they do not. We agree with the Kansas, Ohio, and Texas courts in their understanding of the common meaning of male and female, as those terms are used statutorily, to refer to immuTable traits determined at birth. Therefore, we also conclude that the trial court erred by declaring that Michael is male for the purpose of the marriage statutes. Whether advances in medical science support a change in the meaning commonly attributed to the terms male and female as they are used in the Florida marriage statutes is a question that raises issues of public policy that should be addressed by the legislature. Thus, the question of whether a postoperative transsexual is authorized to marry a member of their birth sex is a matter for the Florida legislature and not the Florida courts to decide. Until the Florida legislature recognizes sex-reassignment procedures and amends the marriage statutes to clarify the marital rights of a postoperative transsexual person, we must adhere to the common meaning of the statutory terms and invalidate any marriage that is not between persons of the opposite sex determined by their biological sex at birth. Therefore, we hold that the marriage in this case is void ab initio.
Several states have enacted defense of marriage laws restricting legal marriages to those between persons of the same sex. This case demonstrates that in some states these laws will be interpreted to prohibit marriages between a man or woman and another person who is of the opposite sex by virtue of a sex-change operation. As a result, such “marriages” are void and of no legal significance. This implies that ministers who “marry” such persons may be subject to criminal penalties under state law since they would be solemnizing a marriage between persons who are not legally capable of marrying. Kantaras v. Kantaras, 884 So.2d 155 (Fla. App. 2004).
We must adhere to the common meaning of the statutory terms and invalidate any marriage that is not between persons of the opposite sex …
State Laws Recognizing Same-Sex Marriages
Since the enactment of the Defense of Marriage Act, two state Supreme Courts (New Jersey and California) have ruled that limiting marriages to opposite-sex couples violates the state constitution. Other states may reach the same conclusion through legislation or court rulings. Such developments do not violate the Act. As noted above, a committee report accompanying the Act clarifies that “if a state were ever to choose … to permit homosexual couples to marry [the Act] would have no effect on that decision in that state.”
State Laws Recognizing Civil Unions Or Domestic Partnerships
Several states have enacted laws that grant certain legal rights to same-sex couples through civil unions or domestic partnerships. A Congressional Research Service report to Congress states:
Civil union and domestic partnership laws confer certain rights and benefits upon domestic partners which vary depending on the state law. Some of these rights and benefits include laws relating to title, tenure, descent and distribution, intestate succession; causes of action related to or dependent upon spousal status, including an action for wrongful death, emotional distress, or loss of consortium; probate law and procedure; adoption law and procedure; insurance benefits; workers’ compensation rights; laws relating to medical care and treatment, hospital visitation and notification; family leave benefits; public assistance benefits under state laws and laws relating to state taxes. For example, in Vermont, civil union status is available to two persons of the same sex who are unrelated and affords parties “the same benefits, protections and responsibilities under Vermont law, whether they derive from statute, policy, administrative or court rule, common law or any other source of civil law, as are granted to spouses in a marriage.” Domestic partnership laws also exist in California, Hawaii, and New Jersey and offer some marital benefits to same-sex couples although not as comprehensive as Vermont’s civil union. Congressional Research Service Report, Same-Sex Marriages: Legal Issues (2004).
State Court Rulings Recognizing Out-Of-State Marriages that Were Lawful Where Performed
A committee report accompanying the Defense of Marriage Act noted that “if a state, applying its own choice of law or other principles, decides (legislatively or through the judicial process) to recognize as valid same-sex “marriages” celebrated in a different state, in that situation [the Act] has no effect.”
• Example. In 2004 a female resident of New York (the plaintiff) married her female partner in Ontario, Canada, where the marriage was legally authorized. On the basis of this marriage, one of the women applied to her employer for spousal health care benefits for her partner. The employer provided health care benefits for the opposite-sex spouses of its employees, and when it refused to extend these benefits to a same-sex partner, the plaintiff asked a court to order the employer to recognize her marriage and her partner’s entitlement to spousal health benefits. A state appeals court ruled that the employer’s refusal to recognize the Canadian marriage between the plaintiff and her partner violated a provision in the New York Constitution guaranteeing the equal protection of the laws. The court noted that “for well over a century, New York has recognized marriages solemnized outside of New York,” unless they are prohibited by a New York statute or involve incest or polygamy. Since neither exception applied, the court applied the general rule of recognizing marriages that are valid where performed. The court stated that “it is worth noting that, unlike the overwhelming majority of states, New York has not chosen, pursuant to the federal Defense of Marriage Act, to enact legislation denying full faith and credit to same-sex marriages validly solemnized in another state.” It concluded, “The legislature may decide to prohibit the recognition of same-sex marriages solemnized abroad. Until it does so, however, such marriages are entitled to recognition in New York.” The court further ruled that by refusing to recognize plaintiff’s valid Canadian marriage, her employer violated Executive Law 296(1)(a), which forbids an employer from discriminating against an employee “in compensation or in terms, conditions or privileges of employment” because of the employee’s sexual orientation. Martinez v. County of Monroe, 850 N.Y.S.2d 740 (N.Y.A.D. 2008).
Civil Liability for Performing a Same-Sex Marriage
Ministers who marry two persons who are not legally authorized to marry face criminal liability (usually, a misdemeanor involving a small fine or brief term of imprisonment) for doing so in most states, and there is no reason to believe that such laws would not apply to ministers who attempt to solemnize a marriage between two persons of the same gender if such a marriage is barred by statute or a state’s constitution.
• Example. A New York court ruled that a state law barring same-sex couples from marrying was unconstitutional, and so two ministers who married 13 same-sex couples could not be charged with the crime of solemnizing marriages without a valid license. The New York Domestic Relations Law specifies that a person who performs a marriage without being presented with a marriage license is guilty of a misdemeanor. It makes no distinction between same-sex and heterosexual couples. Thirteen same-sex couples went to their local city clerk to obtain marriage licenses so that they could be married by two ordained ministers of the Unitarian Universalist Church. The clerk construed the law to allow marriage licenses only between a man and woman, and refused to issue marriages licenses to the same-sex couples. The two ministers went ahead and performed the marriages without being presented with valid marriage licenses, and they were charged with a crime for solemnizing marriages without licenses. Conviction could result in a maximum fine of $250 and incarceration for a maximum of one year. The ministers claimed that the charges against them were unconstitutional because the same-sex couples whose marriages they solemnized were unconstitutionally denied the ability to obtain marriage licenses. They also argued that criminalizing the solemnization of unlicensed same-sex marriages by ordained clergy unconstitutionally infringes on the exercise of their religion and their religious belief that marriage is a desirable and holy state for all couples, including gay and lesbian. The court noted that for a law that makes “classifications” among people to be constitutionally valid the state must prove that “the classification is rationally related to a legitimate state interest.” The prosecutor advanced two state interests for limiting marriage to opposite-sex couples: tradition and procreation. The court disagreed, noting that “tradition does not justify unconstitutional treatment. Slavery was also a traditional institution.” With regard to procreation, the court concluded: “The prosecution acknowledges that married couples are not required to have children, or even to engage in sexual relations. No inquiry is ever made into the sexual activities or sexual preferences of a prospective opposite-sex couple before a marriage license is issued. In fact, all sorts of people can marry and have children: convicted murderers, child abusers, pedophiles, racketeers, drug pushers … the sterile and the elderly.” The court concluded, “Samesex relationships are based on the same thing as heterosexual unions: intimacy, companionship, love, family. Prohibiting same-sex couples from marrying suggests that marriage is about nothing but sex. This is demeaning to all couples who seek to marry and to the institution of marriage.” People v. Greenleaf, 780 N.Y.S.2d 899 (N.Y. App. 2004).
Liability for Refusing to Perform a Same-Sex Marriage
Are ministers subject to civil liability for refusing to perform a same-sex marriage in Massachusetts, or in any other state that recognizes the validity of same-sex marriages? While such an outcome is possible, it is more likely that the civil courts would refuse to compel clergy to perform a fundamental religious ritual, such as marriage, in contravention of their sincerely held religious beliefs. Several decisions of the United States Supreme Court suggest such a result. In the landmark case of Watson v. Jones, 80 U.S. 679, 722 (1871), the United States Supreme Court observed:
But it is a very different thing where a subject matter of dispute, strictly and purely ecclesiastical in its character— a matter over which the civil courts exercise no jurisdiction, a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standards of morals required of them—becomes the subject of its action. It may be said here, also, that no jurisdiction has been conferred upon the tribunal to try the particular case before it, or that, in its judgment, it exceeds the powers conferred upon it, or that the laws of the church do not authorize the particular form of proceeding adopted; and, in a sense often used in the courts, all of those may be said to be questions of jurisdiction. But it is easy to see that if the civil courts are to inquire into all these matters, the whole subject of doctrinal theology, the usages and customs, the written laws, and fundamental organization of every religious denomination may, and must, be examined into with minuteness and care, for they would become, in almost every case, the criteria by which the validity of the ecclesiastical decree would be determined in the civil court. This principle would deprive these bodies of the right of construing their own church laws … and would, in effect, transfer to the civil courts where property rights were concerned the decision of all ecclesiastical questions.
In a 1928 case involving the authority of an ecclesiastical organization to discipline a minister, the United States Supreme Court observed:
Because the appointment is a canonical act, it is the function of the church authorities to determine what the essential qualifications of a [clergyman] are and whether the candidate possesses them. In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties … made them so by contract or otherwise. Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16- 17 (1928).
It is more likely that the civil courts would refuse to compel clergy to perform a fundamental religious ritual, such as marriage, in contravention of their sincerely held religious beliefs.
The Court’s ruling in Gonzalez is significant, for it is a specific prohibition of civil court interference in the determinations of ecclesiastical bodies regarding the qualifications of clergy—even if “civil rights” are involved—absent fraud, collusion, or arbitrariness.
In 1952, the Supreme Court in the Kedroff ruling reaffirmed its pronouncement in Watson that civil courts have no authority to resolve “questions of discipline, or of faith, or of ecclesiastical rule, custom, or law.” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952). The Court, referring to the Watson case, observed that “the opinion radiates, however, a spirit of freedom for religious organizations, and independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” The Court also observed that “[f]reedom to select clergy, where no improper methods of choice are proven, we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.” (emphasis added)
Cases such as these strongly suggest that the civil courts are barred by the First Amendment religion clauses from compelling ministers to perform marriages in violation of their religious beliefs, or to subject them to civil or criminal liability for refusing to do so.
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