Subject: LEGAL SUMMARY
From: [email-masked]
Date: Sun, 15 Dec 1996 14:15:23 -0500

Legal Summary
(revised 12/96)

Court Decisions Following Baehr v. Lewin (Baehr v. Miike )

 This handout is designed as a brief guide to how other state courts (and
possibly federal
courts) are likely to handle marriage cases following a likely Hawaii victory
in Baehr v. Lewin. 
We will focus on what will perhaps be the most common scenario; that same-sex
couples will
legally marry in Hawaii, and then seek to have those marriages recognized in
the other forty-
nine states (and the District of Columbia).    

 Marriage statutes are a matter of each state's law, all of which vary
somewhat.  As long
as federal constitutional issues are not at issue, same-sex marriage lawsuits
will, therefore,
not proceed beyond each state's highest court.  This is true of Baehr v.
Lewin.  Although federal
issues were raised here, the case was initially decided in favor of the
plaintiffs based on the fact
that the denial of marriage licenses to same-sex couples presumptively
violates Hawaii's state
constitutional prohibition of sex discrimination.  The Hawaii Supreme Court
ruled that because,
for example, a man was seeking to marry another man, rather than a woman
(which he would
have been permitted to do), the state was therefore discriminating based on
sex.  

 The Court did not, however, rule that such discrimination was actually
unlawful; merely
that it was presumptively so.  That is, unless the State of Hawaii can prove
a "compelling state
interest" {1} in discriminating against same-sex couples seeking marriage
licenses, it will have
to begin issuing such licenses to all who apply and are otherwise qualified
(i.e., they are not
closely related by blood, etc.).  Although we do not yet have a complete
victory in this case,  
because the state must meet this strictest of legal tests--a test which in
reality proves fatal to
the vast majority of all cases to which it is applied--it seems very likely
that final victory
isjust a matter of time.  (The case is due to be reheard on August 1st, 1996.
 A final ruling is
expected sometime in 1988.)    

 Dean v. D.C. , the Washington, D.C. lawsuit brought by a gay male couple,
Associate Judge
Ferren, dissenting in part, provides a useful analysis of precisely what
"compelling state
interests" would allow the state of Hawaii to prevail in Baehr v. Lewin.
 (This case is also
interesting because it is the only major same-sex marriage ruling to occur
after the May,
1993 initial Baehr decision.)  Ferren writes in part:  

". . .if the government cannot cite actual prejudice to
the public majority from a change in the law to allow
same-sex marriages, such as a predictable increase in
antisocial homosexual behavior, then the public
majority will not have a sound basis for claiming a
compelling, or even a substantial, state interest in
withholding the marriage statute from same-sex
couples; a mere feeling of distaste or even revulsion at
what someone else is or does, simply because it offends
majority values without causing concrete harm, cannot
justify inherently discriminatory legislation against
members of a constitutionally protected class--as the
history of constitutional rulings against racially
discriminatory legislation makes clear." [1]

(Please note that Ferren may be playing devil's advocate here.  Though some
of this may be
offensive to gay people, keep this in mind.)  Ferren is arguing that state
may attempt to argue
that allowing for gay marriage will increase the incidence of homosexuality,
and may also create
role models for gay children that could encourage "experimentation" that
otherwise might not
occur.  Ferren stresses, however, that the state would have the burden of
proving these to be
true.  This information is provided because of a need to anticipate what
arguments the state may
come up with, and how best we can respond to them.)  

 On the next page are the major statutes and points of law that are likely to
bear heavily
on future same-sex marriage judicial decisions.  In considering these various
factors, it must
be kept in mind that predicting precisely what will happen is by no means an
exact science.  By
legal tradition, these are the major factors that should be taken into
account.  However, the fact
remains that no matter how precisely a judge may seek to render his or her
decision with pure
objectivity, the fact remains that, because different aspects of the law may
point in very
different directions, ultimately judges will have to exercise some measure of
subjective choice
over what legal aspects are most important, a choice which will largely
determine the outcome
of each case.  

 One more caveat:  Although most judges claim that their decisions are merely
the result
of the principles and methods of adjudication applied, the reality is that
much of the time,
especially in highly-charged issues such as this, they simply decide what
result they wish to
achieve, and only then seek arguments to achieve it.  Of course, those of us
who are advocating
for same-sex marriage rights have a certain outcome in mind as well.
 However, it is also true
that many of us who have studied the law on this issue in some depth believe
that the law itself,
if properly, even "conservatively" applied, must inevitably lead to the
recognition of this
right.  

STATE ISSUES 
  
* Marriage Validation Statute

 These are statutes which, essentially, provide that a "forum" state (the
state where the
judicial recognition of a marriage performed elsewhere is being sought) will
recognize
marriages performed in a "marriage" state (the state where the marriage was
actually
performed), even if such a marriage could not have been legally performed in
the marriage
state.  This doesn't automatically mean that, for example, a same-sex
marriage performed in
Hawaii would automatically be recognized by a state with a validation
statute.  In some case there
are enumerated exceptions, and sometimes even unenumerated exceptions can and
will be made. 
But, it is nevertheless a very positive factor.  (Section 210 of the Uniform
Marriage and
Divorce Act, which is the basis of many states' validation statutes, seems to
indicate that all
marriages legally performed elsewhere will be validated in the forum state.
 This is true
because the drafters of this legislation pointedly declined to include a
"public policy exception"
provision.  This had been part of the Restatement (Second) of the Conflict of
Laws, a document
which otherwise formed the basis of the Uniform Marriage and Divorce Act.)   

* Marriage Evasion Statute

 These statutes say that if a couple goes to another state to get a legal
marriage that would
not have been legally obtainable in their home (evasion statute) state, that
marriage shall be
null and void.  This of course is a negative factor in our post-Baehr
scenario, but it also is not
"dispositive"; in other words, it does not completely answer (or "dispose
of") the question of
whether such a marriage will be validated in the forum state.  For example,
depending on the
precise language of the statute, a plaintiff could conceivably argue, and a
judge could conceivably
rule, that absent proof that our couple went to Hawaii specifically because
they knew they
couldn't have a marriage legally performed in their home state, the court
would have to consider
the marriage to be have performed in "good faith" and would err on the side
of recognition. 
Additionally, evasion statutes would almost certainly not apply to a couple
who had lived in
Hawaii for a long time, then come to, say, Massachusetts (which has an
evasion statute)
expecting their marriage to be validated.  Such a couple would not have
"evaded" Massachusetts
law at all, because they weren't originally subject to it.  The case for this
becomes even
stronger if the couple could show it had moved to Massachusetts out of
necessity--for example,
job reasons--and only then realized their marriage might not be recognized.
 This is probably
the best test case for a marriage with an evasion statute, or indeed for any
other state.  If same-
sex couples who moved from Hawaii were granted marriage licenses, it would
seem anomalous,
to say the least, to deny marriage licenses to native same-sex couples.     

* Anti-Gay Marriage Law

 A handful of states have language in their marriage law that specifically
states same-sex
marriages are invalid.  This is to be distinguished from states which merely
have language
indicating marriage as applying to a "man" and a "woman," but not
specifically stating it can
only apply to such couples.  And this, in turn, is to be distinguished from
states whose
marriages laws are essentially "gender-neutral."  But once more, the
existence of such a law is
not dispositive, for several reasons.  Depending on the precise language, a
judge could
conceivably rule that such a law applied only to marriages attempted in the
forum (statute)
state.  A judge could also rule that other factors outweigh the provisions of
this law.  (Some
states have one or more or even all of the following: a marriage validation,
a marriage evasion,
and an anti-gay marriage law.  In these cases, there would be an internal
state conflict of laws
that can be resolved no other way than by giving some more weight than
others.)    

* Equal Rights Amendment 

 Many states have a provision of their constitution which provides that their
shall be no
discrimination on the basis of gender.  As in Baehr, this provision may be
used to argue that
denial of marriage licenses to same-sex couples constitutes sex
discrimination.  Because state
ERAs are state constitutional provisions, as opposed to merely state laws,
they should be given
much more weight than, for example, anti-gay marriage laws or other
non-constitutional
factors arguing against same-sex marriage recognition.  If and when Baehr is
finally ruled in
our favor, it will create a strong precedent for states with ERAs to validate
same-sex marriages
on this basis.             

* Gay Rights Law

 Although a gay rights law will probably not be of direct help in a same-sex
marriage
case, at the very least it constitutes a progressive indication of public
policy that could be quite
helpful regarding any federal Constitutional issues that might be raised (see
below).  However,
if the state's gay rights law outlaws discrimination in "public
accommodations," as many do, it
could conceivably be argued and ruled that marriage licenses are a form of
"public
accommodation," and therefore cannot be denied on the basis of sexual
orientation.  (This was a
basis of the Dean v. Barry case brought in Washington, D.C.  This case was
lost, but perhaps due
primarily to a judge whose ruling was perhaps the most hostile in a marriage
case yet,
including those brought and lost in the early 1970s.)  This argument becomes
problematic,
however, in cases where the gay rights law has a provision (as Massachusetts
does) which
indicates that the gay rights law shall not be construed as providing for
same-sex marriage. 
However, these should not and probably will not be construed as a prohibition
on any
recognition of same-sex marriage; merely as an indication that if such
marriages are to be
validated, they may have to be validated on some basis other than this
"tainted" form of gay
rights law.   

From: [email-masked]
Date: Sun, 15 Dec 1996 14:16:35 -0500
Subject: LEGAL SUMMARY

* Sodomy Law

 Just as a gay rights law may not be directly helpful, a sodomy law may not
be directly
unhelpful; but unhelpful it is nevertheless.  However, the majority of states
still retaining a
gay rights law don't single out same-sex couples for prosecution.  In those
states, it could be
argued that the sodomy law should not be seen as an indication of the state's
public policy
regarding same-sex couples (see below).  Arguments in these states could be
tailored to
precisely how sodomy was defined; not to become too graphic, but in many
states only anal sex is
prohibited.  Therefore, it could be argued that only those gay male couples
that take part in this
activity could be denied a marriage license due to public policy reasons.
 Those who do not, and of
course assumably virtually all lesbian couples, could not be denied a license
on this basis.  It
could further be argued that allowing licenses on this basis would be
arbitrary and untenable,
and that licenses would therefore have to be issued irrespective of the
sodomy law.  Finally, it
could be argued that unless the state could prove gays committed sodomy at a
far greater
frequency than straights, the state would have to deny marriage licenses not
only to gay couples
who had committed or were "likely" to commit sodomy, but also to straight
couples who had or
would.  Again this would produce an unworkable situation.  For states which
specifically target
gay people, sodomy laws are a bigger problem.  However, even these, depending
on definition,
may be viewed as applying to some same-sex couples and not others, creating a
similar problem
of arbitrary denial.  Note:  Bowers v. Hardwick, the 1986 U.S. Supreme Court
case which ruled
state sodomy laws are constitutional, based its ruling on due process
analysis.  It specifically
declined to address equal protection issues.  Therefore, equal protection may
provide protection
not only against sodomy laws, but against efforts to stop same-sex marriage
as well.  Additional
note:  As one court has noted:  "If marriage can make behavior
acceptable--and constitutionally
protectable--that would otherwise be unacceptable and unprotectable, this
means that marriage
can legitimize behavior that may be contextually, but not inherently,
unacceptable." [2]

* Privacy

 Several state constitutions{2} have a privacy provision.  These are usually
quite strong;
stronger, in any case, than the "penumbral" right to privacy explicated in
several major U.S.
Supreme Court and other cases but nevertheless not an actual provision of the
U.S. Constitution. 
Again, because these are state constitutional provisions, they carry much
more weight than any
statutory or common law issues that might argue against recognizing same-sex
marriage.   

FEDERAL AND INTERSTATE ISSUES

* Full Faith and Credit Clause (U.S. Constitution)

 This clause states:  "Full Faith and Credit shall be given to each state to
the public Acts,
Records, and Judicial proceedings of every other state."  (U.S. Constitution,
Article IV, Section
1.)  However, there is generally considered to be a "public policy
exception."  If the state is
determined to have a strong public policy against the recognition of a
same-sex marriage--a
policy as enumerated in its laws, judicial decisions, state constitution, as
well as community
attitudes--it can decline to validate a same-sex marriage legally performed
in another state.  It
is in this area that gay rights and sodomy laws "go to inform" public policy
(see above). 
Whether public policy exceptions can be made, and which ones can be made,
depends largely on
whether the state's courts follow a "strong" or "weak" theory of Full Faith
and Credit Analysis. 
Not surprisingly, the "strong" theory would tend to validate marriages, while
the "weak"
would be less inclined to.  Courts tend to validate when two other factors
are present  as well: 
the couple have been married for a long time, and they are raising children.
 According to one
law review article, however:  ". . .no American court has invalidated a
marriage license which
was validly contracted in another American state by parties domiciled there."
[3]  This is a
crucial, extremely helpful point in establishing the validity of same-sex
marriages obtained in
Hawaii by Hawaiian citizens who later move to another state.           

* Right to Interstate Travel (U.S. Constitution--penumbral right)

 Due to this right, many courts will validate, even when evasion has taken
place and
validation would be contrary to community attitudes.  "Good faith" vs. "bad
faith" issues tend to
be important; i.e., if the couple sincerely expected and were counting on
their marriage to be
validated, and/or their move to a new state was necessitated by pressing,
personal factors such
as a new job, desire or need to be with other spouse or family, etc.  

* Marriage as a Fundamental Right Under the Due Process Clause 
(U.S. Constitution)

 A right is thought to be "fundamental" if liberty could not exist without
it.  Restrictions
on fundamental rights would have to pass the "strict scrutiny" test, meaning
the state had a
"compelling interest" in placing these restrictions, and that the state could
only achieve its
objectives through these restrictions, and not by some less restrictive tool
or method.  (The
objectives themselves must also be constitutionally permissible.) Due Process
Analysis looks at
what rights have traditionally been granted, and analyzes whether the
restriction of rights at
issue is or is not in keeping with traditional guarantees.  Opposite-sex
marriage has been ruled
to be a fundamental right under Due Process.  (It might be more accurate to
say that marriage
itself has been ruled to be a fundamental right, at least as applied to
heterosexuals.)  Sodomy
laws are a major obstacle to winning via this route because of the fact that
they have existed for
a very long time, and as recently as 1986, in Bowers v. Hardwick, were ruled
Constitutional by
the U.S. Supreme Court.   

*  Same-Sex Couples as a "Suspect" or "Quasi-Suspect" Class Under the Equal
Protection Clause (U.S. Constitution)

 Equal Protection Analysis is in a way the opposite approach to Due Process.
 It instead
looks at what classifications (such as race) have historically been employed
to unfairly deny
rights.  The Equal Protection clause requires that laws treat people
similarly situated in a
similar way; i.e., distinctions cannot be drawn that arbitrarily exclude or
restrict the rights of
only certain groups of people.  If restrictions are placed against a
"suspect" or "quasi-
suspect" class, {3} then that restriction requires strict scrutiny (or
intermediate scrutiny in the
case of a quasi-suspect class.  Gender is often considered a quasi-suspect
class.)  Strict scrutiny
requires not only that a statute have a legitimate goal, but that it be
structured as narrowly as
possible to achieve that goal without violating anyone's (usually defined as
a minority group)
right to equal protection of the laws.  (The core of the Baehr ruling was
that gender is a suspect
class, as per Hawaii's state constitution--see above.)  If the restrictions
are against some other
class, they must only meet the "rational basis" test; the state must prove a
rational
relationship exists between the restrictions and a legitimate state interest.
 Some courts have
attempted to deny same-sex marriage rights on the basis that marriage by
definition only
applies to opposite-sex couples.  Therefore, such courts argue, gay couples
are precluded from
marriage not by what the courts or any other government branch does, but by
the definition of
marriage itself.  However, the U.S. Supreme Court has warned:  "Care must be
taken in
ascertaining whether the statutory objective itself reflects archaic and
sterotypic notions." [4] 
(It is noteworthy that in Loving v. Virginia, the 1967 Supreme Court case
that struck down
inter-racial marriage proscriptions, was based on equal protection, not
fundamental rights
analysis. [5])

 NOTE: Romer v. Evans

 On May 20, 1996, the U.S. Supreme Court struck down Colorado Amendment 2, a
provision that would have voided all existing and future protections from
discrimination based
on sexual orientation.  In addition to being the most far-reaching legal
victory for gay rights to
date, the ruling will almost certainly impact positively any future Supreme
Court review of
marriage recognition as well as anti-gay marriage law cases.  In a 6-3
opinion, the court wrote
in part: 

". . .we cannot accept the view that Amendment 2's
prohibition on specific legal protections does no more
than deprive homosexuals of special rights. . .We find
nothing special in the protections Amendment 2
withholds. . .The resulting disqualification of the right
to seek specific protection from the law is
unprecedented in our jurisprudence. . .A law declaring
that in general it shall be more difficult for one group
of citizens than for all others to seek aid from the
government is itself a denial of equal protection of the
laws in the most literal sense." [6]  

 NOTE:  Anti-marriage amendments:

 Individual states and perhaps also the federal government may consider
constitutional
amendments to bar same-sex marriage.  Even if adopted, such amendments may
still be ruled
unconstitutional, under Romer and other precedent, because they deny the
federal constitutional
right to political participation. [7]   

 NOTE: "Defense of Marriage Act: (DOMA)

 On September 21st, 1996, President Clinton signed into law this legislation
purporting
to allow individual states the right to deny recongition of same-sex
marriages legally contracted
in another state.  It will also define marriage for federal purposes as a
union between one man
and one woman only.  DOMA is considered by many legal scholars to be
redundant,
unconstitutional, or both.  States may already have the right to deny
recognition of gay
marriages under the public policy exception to the Full Faith and Credit
Clause (see above). 
However, if such non-recognition is unconstitutional because of this same
clause, it remains
unconstitutional nothwithstanding DOMA's passage.  DOMA could, however, make
a difference in
some states.  Provisions related to federal recognition will certainly be
enforced, meaning that
any of the federal rights and benefits attending marriage will be denied to
gay couples unless and
until it is succesfully challenged in court, as it certainly will be.  

* Conflict of Law Analysis

 The typical conflict of laws we are likely to see here is that of the
marriage state (likely
Hawaii) versus the forum state (another state, where validation of the
marriage is sought). 
Once again, there is no automatic means to choose which law should take
precedence.  One might
think because the couple was no longer in Hawaii, Hawaiian law would no
longer apply; that of
the home state would.  But because of Full Faith and Credit and other issues
discussed above, this
is not quite true.  However, because of anti-gay marriage laws and other
issues also discussed
above, it is also not a foregone conclusion that Hawaiian law will win the
day.  How is this
seeming tug-of-war resolved?  There are various legal theories to approach
this problem, and
different states--and different courts--subscribe in greater or lesser degree
to one or more of
them.  The two major, discrete approaches are the First Restatement versus
the Second
Restatement of the Conflict of Laws.  These are legal treatises; the first
written in the 1930s,
and the second in the 1980s.  The Second Restatement makes the following very
important point:
"To date. . .A marriage has only been invalidated when it violated a strong
policy of a state where at least one of the spouses was domiciled at the time
of
the marriage and where both made their home immediately thereafter." [8] In
other
words, if a Hawaiian gay couple got married there and moved to another state,
and sought
recognition of their marriage there, that state would either have to
recognize the marriage, or
break with the entire legal tradition of marriage recognition cases.   

 States can be fairly definitely said to fall into one or the other of these
camps.  However, most
analysts agree that the differences between the two for the purposes of
same-sex marriage
recognition are negligible.  It is likely that judges' own personal
preferences will manifest
themselves to a far greater degree, regardless which Restatement they
subscribe to.  Another
approach is Interest Analysis, which urges courts to consider how the
interests of the forum
state would best be served.  (In practice, regardless of approach, it is well
understood that
judges are often far more likely to prefer the law of their own state over
that of another.)  Only
slightly different is the "Better Law" approach, which urges a rather
subjective appraisal of
how best to make law generally, with less parochial regard for home laws.
 Similar also is the
"Emerging Law" approach, which urges judges to favor the direction other
courts are heading
in, even if most courts still follow what might be called the "regressive"
approach.  

Note: Declaratory Judgments

 As same-sex marriages are contracted in states such as Hawaii, and the
question arises
as to their validity in another state (the "forum" state), couples may seek
to obtain a
declaratory judgment from a forum court that their marriage will in fact be
considered valid
for all purposes in the forum state.  

NOTES

FOOTNOTES********************************

{1}   It is noteworthy that in Holdman v. Olin (581 P. 2d 1164 (Hawaii
1978)), the
Hawaii Supreme Court--in the only such example we are aware of--found a
compelling state
interest in a gender case.  This case involved women prison guards being
forced to wear
brassieres, whereas men, of course, were not.  The court found that the
compelling state
interest here was prison security, which justified the differential
treatment.  ("Baehr v.
Lewin: Will Equal Protection Lead to the End of Prohibitions on Same-Sex
Marriages?," by Greg
Ladner, in National Journal of Sexual Orientation Law, Vol. 1 No. 1, January,
1996.) 
Preventing incest, child marriages, venereal disease, and bigamy have been
cited by the court as
potential compelling state interests. ("The Right to Say 'I Do':  The
Legality of Same-Sex
Marriage," by Pul RoyL, in Law &Psychology Review, Vol. 20: 249 (1996)).
 Hawaii  courts
have ruled that only sex discrimination based  differing "physical
characteristics" of the sexes
can be permissible.  Although a somewhat obvious and even humorous
distinction, Holdman is
nevertheless noteworthy as an example of an exception--in Hawaii--to the rule
thscrutiny is "strict in theory, fatal in fact." 

{2}  Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana,
Montana, South
Carolina, and Washington.

{3}  Suspect classes include distinctions based on race and national origin,
according to the
U.S. Supreme Court, the final authority on all U.S. Constitutional issues.
 Some lower federal
and state courts have indicated that other distinctions, such as gender and
sexual orientation,
may in some cases be suspect or "quasi-suspect."    

ENDNOTES********************************

[1]. Dean V. D.C., 653 A.2d 307 (D.C. App. 1995) at 355.

[2]. Ibid., at 344.  This is part of a dissenting opinion, and therefore, is
only "dicta," i.e., it
doesn't have the force of law.)  

[3]. "Sister-State Recognition of Valid Same-Sex Marriages:  Baehr v.
Lewin--How Will It Play
in Peoria?," by Candace Sage, in Indiana Law Review, Vol. 28: 115-134 (1994).

[4]. Mississippi University for Women, 458 U.S. at 725.

[5]. "Marriage, Equal Protection, and New Judicial Federalism:  A View from
the States," by Lisa
Farabee, in Yale Law and Policy Review (14: 237-286 (1996)), pg. 253. 

[6]. Romer v. Evans, 94 U.S. 1039 (1996).

[7]. "Marriage, Equal Protection, and New Judicial Federalism:  A View from
the States," by Lisa
Farabee, in Yale Law and Policy Review (14: 237-286 (1996)), pg. 251. 

[8]. Restatement (Second) of Conflict of Laws x 283 (1988) cmt. k.