July hasn’t been a good month for supporters of same-sex marriage. Despite heroic, persistent and wide-ranging legal efforts by these groups, three appellate courts have handed down rulings potentially devastating to their cause.
The rulings involve two red states (Nebraska and Georgia) and one very blue state (New York). The issues in the three cases differ slightly, but the rulings are notable not just for the result (gays and lesbians lost) but for the way the courts handled certain central legal questions.
In Georgia, a unanimous Supreme Court overturned a lower court decision that invalidated a ban on same-sex marriage. This measure also bars the state from recognizing same-sex marriages in any other state and prohibits the Georgia legislature from granting the benefits of marriage to any union between persons of the same sex.
The lower court had held the referred measure violated the single-subject rule of the state constitution. The higher court said there was no such violation and that the single objective of the act was to reserve the benefits of marriage exclusively to unions of a man and a woman.
The case is notable mostly because it defeats a major goal of gay and lesbian groups to preserve the option of domestic partnerships in those states that opt to ban same-sex marriage. The gay and lesbian groups have a particular interest in opposing those states that not only bar same-sex marriage but prohibit domestic partnerships as well.
Nebraska is such a state. In 2000, voters there passed a constitutional amendment that bans same-sex marriage and domestic partnership “or other similar same-sex relationship.”
Nebraska gays and lesbians filed a federal lawsuit claiming the 2000 amendment violated their 14th Amendment rights (equal protection under law) and managed to find a federal judge who agreed with them.
That district court judge not only found an equal protection violation, he held the act violated the First Amendment associational rights of the plaintiffs. He did the latter despite the fact that the plaintiffs hadn’t even made a First Amendment claim.
A unanimous three-judge panel of the 8th Circuit Court of Appeals disagreed and sharply lectured the lower court judge on a series of errors, including the one involving the First Amendment.
Importantly, the court held that there is a clear rational basis for the amendment. The court cited a U.S. Supreme Court decision of 1878 saying states have an absolute right to prescribe the conditions upon which the marriage relationship shall be created. It went on to cite a 1978 case in which the same court said states could bar marriage between siblings, those under the age of 14 and, of course, those who are already married.
The circuit court agreed that Nebraska had the right to define marriage in a way that “encouraged procreation to take place within the socially recognized unit that is best situated for raising children.”
Similar language and citations can be found in the July decision of the New York Court of Appeals, the state’s highest court. There, the majority (there were two dissents) found that New York did not have to grant a marriage license to gay and lesbian couples. In that case, as in the one in Nebraska, there was extensive discussion of whether there is a rational basis for restricting marriage to a union of a man and a woman.
The following words from the court decision cannot be of much comfort to supporters of same-sex marriage:
“The Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not.”
Up until now, gay and lesbian groups – sounding like states’ rights advocates from the segregation era – have said they want to leave the issue of same-sex marriage up to the individual states and out of the hands of the federal government. A few more decisions like the ones this month and they may want to rethink that approach.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His column appears on Wednesdays.
