Sunday, February 18, 2018
Opinion

Column: Same-sex marriage bans fail constitutional test

A few days ago, a federal court in Louisville, Ky., joined courts in Utah, Ohio and Oklahoma in striking down some portion of a state's ban on same-sex marriages. Following the U.S. Supreme Court decision in United States vs. Windsor in June, these courts ruled that traditional views of marriage cannot stand against the equal protection guarantee of the 14th Amendment to the U.S. Constitution — passed in 1868 after the Civil War.

Is this a runaway train driven by judges who have no respect for legislators and voters? If it is, why have the attorneys general of Virginia and Nevada, as well as the governors of New Jersey and Nevada, declined to defend their states' ban on same-sex marriage?

The decisions of these diverse courts and elected officials do not display a lack of respect for legislators and voters; instead, they show a profound respect for our constitutional system of government and a body of law that has developed since 1868. In particular, they reflect principles articulated in 1967 when the Supreme Court ruled that Virginia may not constitutionally prohibit interracial marriage.

At the heart of the 14th Amendment is a simple principle: A state law that treats one class of citizens differently from the rest must be rationally related to a legitimate purpose. In United States vs. Windsor, and each of the recent cases, the courts asked, What legitimate purpose is rationally related to a ban on same-sex marriage? One after another, they found none.

In the cases, state officials and outside parties claimed that interests in procreation justified a ban on same-sex marriage. Yet this reason is not rationally related to banning only same-sex marriage. After all, states neither bar couples who cannot have children from marriage, nor require married couples to have children. In fact, state marriage laws are not linked to procreation at all.

In none of the cases could supporters of the ban articulate a logical connection between, or produce evidence that, banning same-sex marriage somehow increased opposite-sex marriage. Likewise, proponents offered no evidence that same-sex couples are less capable of raising children.

In fact, the Florida attorney general attempted to prove exactly this point at trial in Miami-Dade County to uphold Florida's ban on adoption by lesbian and gay persons — and lost. When the Florida 3rd District Court of Appeal ruled in 2010 that the Miami-Dade court correctly weighed the overwhelming evidence in support of lesbian and gay parents' ability to raise children responsibly, the state declined to appeal further.

In every case, state officials have claimed their bans on same-sex marriage uphold the traditional view of marriage. There is no doubt that same-sex marriage bans uphold many people's traditional views of marriage, and this is where they collide directly with the Constitution. As eloquently stated by the Kentucky judge, "(t)hat Kentucky's laws are rooted in tradition, however, cannot alone justify their infringement on individual liberties. … Over the past 40 years, the Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties."

The Utah, Ohio and Oklahoma courts agreed, and the supporters of same-sex marriage bans cannot produce cases that allow some persons', even a majority's, view of "tradition" to violate a class of persons' constitutional rights.

Instead of increasing opposite-sex marriages or supporting responsible procreation and child rearing, these diverse courts unanimously found that bans on same-sex marriage demeaned gay and lesbian citizens, relegated them and their children to second-class status, and brought financial harm, instability, and humiliation to their families and children. These are not constitutionally permissible goals.

On Jan. 21, six same-sex couples filed suit in Miami-Dade Circuit Court to assert their constitutional right to a marriage license. The state is now required to show how Florida's ban on same-sex marriage is rationally related to a legitimate purpose. What reasons will Florida officials assert? Or will they, like officials in New Jersey, Virginia and Nevada, decline to defend a tradition that cannot stand alone against the Constitution?

Catherine E. Blackburn is a St. Petersburg lawyer who provides legal life planning services to Florida residents. She regularly prepares legal documents that carry out the wishes of lesbian, gay, bisexual, transgender and queer persons in a legal environment that limits the rights of LGBTQ people. She wrote this exclusively for the Tampa Bay Times.

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