John Shields

The 14th Amendment and the Defense of Marriage Act

Filed By John Shields | July 09, 2009 2:30 PM | comments

Filed in: Marriage Equality, Politics, The Movement
Tags: 14th Amendment, DOMA, Massachusetts, same-sex marriage, united states of america

Today is the 141st anniversary of the 14th Amendment to the Constitution of the United States. Under the Equal Protection Clause of the amendment, it forbids states from denying any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of its laws."

According to the United States Government, the 14th Amendment "greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment."

And then along comes Congress, and in a fit of ignorance in 1994, enacts the Defense of Marriage Act. I'm no lawyer, but if I played one on television, it would seem to me that the 14th AMENDMENT trumps the Defense of Marriage ACT.

If I read the 14th Amendment correctly, the United States Congress is more than compelled to use its constitutional power to force states to recognize marriages performed in other states - same-sex or otherwise. But DOMA clearly states that no state has to recognize same-sex marriages performed legally in other states.

So, listen up Amendment 14~! Don't break out the champagne just yet. We have acts to consider. Or do we?

I guess a brief history lesson is necessary at this point. More, from the Library of Congress:

The 14th Amendment to the Constitution was ratified on July 9, 1868, and granted citizenship to "all persons born or naturalized in the United States," which included former slaves recently freed. In addition, it forbids states from denying any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of its laws.

By directly mentioning the role of the states, the 14th Amendment greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment.

Expanding on the information provided by the Library of Congress, and making it easier for the average citizen to read, there's this from Wikipedia:

The amendment provides a broad definition of citizenship, overruling Dred Scott v. Sandford (1857) which had excluded slaves, and their descendants, from possessing Constitutional rights and was used in the mid-20th century to dismantle racial segregation in the United States, as in Brown v. Board of Education (1954).

Its Due Process Clause has been used to apply most of the Bill of Rights to the states. This clause has also been used to recognize: (1) substantive due process rights, such as parental and marriage rights; and (2) procedural due process rights requiring that certain steps, such as a hearing, be followed before a person's "life, liberty, or property" can be taken away.

The amendment's Equal Protection Clause requires states to provide equal protection under the law to all people within their jurisdictions.

And this, specifically regarding the 14th Amendment to the United States Constitution, and the Defense of Marriage ACT.

The constitutional issues most relevant to DOMA are the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which is concerned with the definition section of DOMA and the Full Faith and Credit Clause, which is primarily concerned with the second section of DOMA.

A right to marriage -- at least "marriage" defined as one man and one woman -- overriding the provisions of state law, was found in Loving v. Virginia.

Seems to this television lawyer that Congress over-stepped its bounds on this one. DOMA appears to violate the 14th Amendment, violating the Equal Protection and Due Process Clauses of the Amendment.

But wait, it gets more interesting...

On Wednesday, Massachusetts filed a lawsuit challenging DOMA, titled Commonwealth v. United States Department of Health and Human Services. Here's a pdf copy of the complaint.

In the lawsuit, Massachusetts Attorney General Martha Coakley alleges DOMA violates the 10th Amendment to the United States Constitution, specifically the Spending Clause of that particular Amendment. The 10th Amendment, by the way, is the 12th article and the 10th and final amendment to the Bill of Rights.

Among several things, the lawsuit argues DOMA requires the state to violate the constitutional rights of its citizens by directly interfering with Massachusetts' longstanding sovereign authority to determine who it determines are "married" and places the state in the position of choosing whether to adapt its programs to fit federal law or limit the ability of the tax-paying residents of Massachusetts from having full equality, as enshrined in the Constitution of the United States of America.

It seems clear to this journalist (and television lawyer) that the United States Congress cannot compel the various states to violate their responsibilities to uphold the constitutional rights of their own citizens, in violation of both amendments.

Nor can they write an act that violates at least two amendments to the Constitution of the United States.


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Remember the days when the due process clause was used to strip away labor regulation anti-trust laws of corporations? It's maddening to note that corporations have more due process rights than sexual orientation does as a class.

There's a complicated history with the 14th amendment, and it's my layperson's understanding that we have to prove or be established as a suspect class or a quasi-suspect class before its protections apply. Courts have refused to grant us that status, and the lack of federal civil rights legislation concerning us will also make it easier for the Court to rule against us. It'll be funny when Scalia cites the lack of civil rights legislation as a reason we're not a suspect class in the Boies and Olson case, only two decades after he cited the presence of state-level civil rights legislation as a sign we weren't one back in his Roemer opinion.

In other words, it's my understanding that passing ENDA would help out in getting these cases through. While Scalia will remain unconvinceable since he's a partisan hack and a homophobe, it can't hurt for a coequal branch of government to officially recognize the need to fight against anti-gay discrimination

A. J. Lopp | July 9, 2009 3:06 PM

John, this post is wonderful if you are writing it somewhere in an isolated ivory tower at some prestigious law school. I expect your equally isolated law professor might give your essay an "A". But I fear that the reality of the political world might shoot your lofty academic arguments all to Hell.

Yes, John, you are probably correct, that DOMA is probably unconstitutional under the 14th Amendment, and possibly other constitutional clauses as well. In fact, it is conceivable that the SCOTUS might even make such a ruling --- as unlikely as finding five such votes within the current nine judges might be, it is at least conceivably possible.

However, such a ruling would be an instant recipe for the almost certain reactionary passage of the Federal Marriage Amendment (FMA). It would slide through Congress like Patton's proverbial crap through a goose, because no politician, GOP or Democrat, wants to lose his or her next election for "not protecting the sanctity of the family" ... the traditional, heterosexual family, that is. And I doubt that, under those circumstances, the GLBT activists among us could even organize a good rally against FMA before it got ratified by the required 38 states. Even as public opinion may slowly evolve toward favoring marriage equality, the "activist judges" argument still makes a lot of traction with an American public that does not want its rules dictated to them by an ultimate authority of non-elected non-representatives.

It is one thing to be on the side of justice, and entirely another to be able to make justice survive the political process. If this were not so, then the US would not have slavery and Jim Crow to disfigure its largely otherwise proud history.

We had better consider a SCOTUS challenge to be the "nuclear option". This strategy may work someday --- but we better be sure the time as right, because if such a challenge doesn't turn out well, it is likely to make things much, much worse for a very long time. Working for a legislative repeal is a much safer plan.

Now, stone me to death for pointing out the obvious.

I like your thinking. However, the difficulty with this is how the courts have previously interpreted the amendment. If a state has a rational basis for the distinction between two groups of people, then unequal laws are permitted. So, for example, a state may pass a law prohibiting opticians, but not optometrists, from selling glasses without a prescription. There is a rational basis for the state's judgment that optometrists are qualified but opticians are not. Courts generally don't look too closely when deciding whether there is such a rational basis.

When one of the groups is a "suspect" class, however, such as those based on race, or the law impinges on a fundamental right, such as those rights named in the Bill of Rights, then a rational basis isn't enough. Then, the state must show that its law is narrowly tailored to achieve a "compelling" state interest. The Supreme Court has suggested that a suspect class is a discrete and insular minority with immutable characteristics that is subjected to discrimination. The sticking point for us is the "immutable" part.

Whether or not the Supreme Court will decide that the restriction of traditional marriage to one man and one woman is a rational basis for distinguishing between straights and gays is anybody's guess. Same for whether, if gays are found to be a suspect class, or if the law is found to impinge on a fundamental right, the Court would find that the state has a compelling interest in preserving traditional marriage.

John Shields John Shields | July 9, 2009 3:21 PM

No, I don't live in an Ivory Tower, nor do I underestimate the illogical powers of Justice Scalia to wrap himself in his own robe.

I was, and am, merely pointing out the fact that Amendments - whether they be the 10th or the 14th - are ratified by the states, not enacted by congress and simply signed by the president.

And since it's the Anniversary of one of the Amendments to the United States Constitution, I thought it worthy of note.

Amendments, like battleships, are steered over time. This was my toast to Amendments, not simple acts of Congress.

It takes a quorum to build a village...

Thanks for having principles, John.

Everyone else seems much more content to stratigize and scheme instead of simply attempting to understand a principle and appreciating history.

It's nice to hear someone discuss principles instead of making noise about priorities and helping to draw conclusions about who is more deserving.

For the Federal Marriage Amendment (FMA) to become a constitutional amendment, it has to pass each house of Congress by a 2/3 vote and then be ratified by 38 states. I'm convinced that Congress could not get the 2/3 vote in each chamber to pass it.

The courts use 3 standards of review when looking at a fundamental right: "strict scrutiny", "heightened scrutiny" and "rational basis". There is also the issue of whether or not gays are entitled to more than a rational basis test. The 9th Circuit Court of Appeals held in Witt v. US Air Force (2-1) that gays are entitled to a "heightened scrutiny" test based on the Lawrence v. Texas Supreme Court case. The dissent held that gays were entitled to "strict scrutiny."

Intermediate scrutiny (heightened scrutiny) is met if a regulation involves important governmental interests that are furthered by substantially related means.

In the federal Prop 8 case (Perry v. Schwarzenegger) being brought by Olsen & Boies, it is being tried in the 9th Circuit. If "heightened scrutiny" applies, then the State must prove that Prop 8 was enacted to accomplish an important state interest and that Prop 8 is the substantially related means to accomplish this important state interest.

The intervenors in the Prop 8 case are arguing that the important state interests are (1)tradition, (2) procreation, and (3) that children are best raised in a male-female married environment. Both the California Supreme Court and the Iowa Supreme Court (unanimously) held that these are not important state interests.

Finally, Judge Vaughn, who is hearing the case, stated that the first question to decide is: What is the appropriate standard to use in deciding the case? So, in my opinion, it is likely that Prop 8 will be overturned, and the intervenors will have to appeal it to the liberal 9th Circuit Court of Appeals.

A. J. Lopp | July 10, 2009 6:05 PM

Prof. Gaudard, thank you for your learned remarks.

I am glad that you estimate that Congress could not get a two-thirds vote in favor of FMA in both chambers. Further, I acknowledge that you are far more an expert of law than I am, and I do not question any of the points of law and precedent that you so aptly explain. However, regarding the two-thirds vote, I respectfully point out that you are making this estimation under current political conditions and that if SCOTUS overturned DOMA, the unpopular ruling could very possibly and very quickly create a more heated and extreme political environment.

Again, my fear is that many of the members of Congress who now pledge to vote down FMA might change their vote if their constituencies were making a frenzied, riotous run on their offices, not unlike mad villagers waving torches and pitchforks storming Frankenstein's castle.

Again, I am talking politics more than law --- and the bottom line is that I don't estimate that we are as safe politically as you estimate --- and I don't particularly care to take the chance to find out that mine might be the estimation that turns out to be correct.

Robert Ganshorn Robert Ganshorn | July 10, 2009 6:07 AM

Yummy, I loved reading every scrap and comment while feeling like a happy glutton. Could it possibly be this simple (or simply complicated) I wonder. It seems to me that through the years we have so few "right times" to assert ourselves. My feeling is to keep the vinegar flowing toward the Democratic Party and work quickly. The times they are a changing and we are often behind them.

John, point us in a direction. Who needs our support?

How about taxation without representation...how about separation of church and state. Seems clear to me that we have the right of wrong on our side but no will of our community to stand up and be counted.

Thank you John for your article which is very informative and thought provoking while also thought clarifying. A thing few articles on these subjects seem to be able to accomplish. And comments have been great, especially from Prof Gaudard