Courts can meet gay marriage challenge

By D'Army Bailey

Bailey

The issues of same sex marriages and civil unions, which I will call "gay unions," will present American courts at all levels with one of the most important, vexing and contentious challenges since the Brown v. Board of Education case outlawing racial segregation 50 years ago. But now as then our courts are strong and resilient enough to meet the challenge.

The federal constitution and the constitutions of the 50 states provide more than sufficient legal foundation to address the issue of gay unions. The Equal Protection clause of the Fourteenth Amendment, State's Rights guarantees of the Tenth Amendment, and the Full Faith and Credit provisions of Article Four of the U.S. Constitution are all involved.

It is important to note that the conditions and regulations of marriages are fundamentally state matters. There is no federal law of domestic relations. The Tenth Amendment to the constitution, often referred to as the "state's rights amendment," leaves constitutional and judicial authority to the states on all matters not specifically addressed in the federal constitution.

President Bush's drive now for a constitutional amendment banning gay marriages implicitly acknowledges that there is no pre-emptive federal constitutional law to limit a state's recognition of gay unions. Conversely, while the Equal Protection clause would forbid a state from treating citizens including gays differently without strong and legally compelling reasons, it is very unlikely that the current U.S. Supreme Court would overturn a state's denial of gay marriages and civil unions.

As we have already seen in Massachusetts, what the several sate courts may decide in interpreting their own state constitutions is likely to vary. Most if not all state constitutions have some variation of the federal constitution's equal protection guarantees.

The high court of each of the states has the final authority to say what their constitutions require in domestic relations matters. This constitutional authority is superior even to acts of the several legislatures to prohibit or otherwise limit the domestic rights of gay partners. This judicial authority can only be limited if states amended their constitutions to curtail gay domestic rights. In those cases, only the U.S. Supreme Court could overturn such state restrictions.

The gay union legal controversies will most likely first arise in state trial courts. There are at least two possibilities. First is when one seeks to enforce a claimed right to gay union either on the basis of a state statute or a constitutional right of non-discrimination. This could happen, for example, if someone sues a local clerk for denial of a marriage license.

These challenges won't be a problem in most states since if the issue is constitutional, it will quickly be resolved by the state's highest court. And statutory claims will be limited to that handful of states allowing gay marriages or civil unions. So equal rights suits based on denial of a license don't present the difficult and complex considerations that may arise when a gay couple is already united.

The most sweeping, dramatic and immediate impact of the gay union controversy will come when a gay marriage or civil union decree from one state is sought to be enforced in another. The freedom to move from one state to another is a cherished American right and comes into play.

Suppose a couple from a marriage authorized in Massachusetts, or a civil union in Vermont has moved to Tennessee and one partner dies. Does the surviving partner get the deceased's estate or can a surviving child overturn the marriage or civil union rights and claim the estate? Should it matter if the couple had lived together several years in Massachusetts and accumulated and commingled their estate together?

Or what if, for example, instead of one of the partners dying, they moved to, say, Texas and then one filed for divorce or separation and sought alimony. Yet a different scenario might arise if the couple was divorced in the marriage or civil union state, moved, and sought to enforce a property distribution or alimony order in the new state.

The scope of issues state courts will face is vast and daunting, including pension laws, and survival rights and consortium claims in personal injury suits.

Article Four of the U.S. Constitution requires each state to give "full faith and credit" to the laws and judicial proceedings of every other state. The enforcement of that provision is a judicial duty, and neither actions of the Congress nor state legislatures in "defense of marriage" laws can limit the enforcement powers of our courts.

When a litigant correctly pursues rights arising under the laws or judicial decisions of another state, judges are constitutionally bound to recognize those rights. There is one major exception to this duty. Another state's judge may properly decline to enforce such rights where the enforcement would violate a basic public policy of that judge's own state.

However, this public policy exception must itself be consistent with the equal rights guarantees of both state and federal constitutions. This places the initial assessment of gay marriage and civil union claims squarely before trial judges across the country. They must evaluate whether there are legal and compelling interests of their own states which outweigh the legal rights and accrued benefits accompanying a gay union from another state.

Some courts may decide that a gay marriage causes such moral and social destabilization that it is against public policy. That assessment should be closely scrutinized for evidence of objective public harm as opposed to mere prejudice or religious and philosophical attitudes.

Even if a court might find persuasive public policy reasons to reject the marriage concept, it has the additional duty to evaluate whether enforcing some or all of the rights and responsibilities of a gay union will create substantial public harm. Here the court must do a searching analysis of the propriety and fairness of closing the door to substantive legal and procedural rights. In this regard, the relevant factors and discretion of local courts are practically limitless absent an abuse of discretion.

The practical result may be that even in those state courts which may reject gay marriages, they may find compelling reasons to enforce accrued rights and benefits of gay partners while disavowing "same sex marriages" or "civil unions."

Unfortunately, considerations of law will often not be the only factors influencing how state courts resolve these issues. In those states where Supreme Court members must face re-election, some judges may be wary of going against the public grain. Tennessee Supreme Court Justice Penny White was defeated in 1996 by a well-organized conservative campaign criticizing her vote to overturn a death penalty conviction. Memories of that experience remain fresh.

Nevertheless, there remains a strong judicial tradition of protecting individual rights even when doing so proves unpopular at the moment.

• D'Army Bailey is a Tennessee Circuit Judge in Memphis whose jurisdiction includes domestic relations matters. Judge Bailey is also a member of the State Bar of California and founder of the National Civil Rights Museum.