Building Marriage Equality with Lawrence v. Texas
From Of Counsel, vol. 4, no 3
By David S. Buckel, Senior Counsel and Marriage Project Director
Published 05/29/08
Lambda Legal's victory in Lawrence v. Texas torpedoed what was long ago christened the "gay exception" to the law, when courts abdicate their judicial role and impose personal or popular ideas of morality against the communities we serve. Nowhere is Lawrence's recognition of the judiciary's appropriate role more apparent than in our cases seeking the freedom to marry. We saw it first surface in Massachusetts, and most recently in California (for the full landscape, see our Relationships Resources Page).
The Massachusetts Supreme Judicial Court struck down a ban on marriage for same-sex couples in a GLAD case, and relied on Lawrence to clarify the courts' important role in a democratic system of checks and balances among branches of government. First the court adopted Lawrence's principle of judicial duty: "[o]ur obligation is to define the liberty of all, not to mandate our own moral code." Then the court affirmed its solemn role to defend a minority against the use of government power to discriminate: "the United States Supreme Court [in Lawrence] has reaffirmed that the Constitution prohibits a State from wielding its formidable power to regulate conduct in a manner that demeans basic human dignity, even though that statutory discrimination may enjoy broad public support."
With the vibrations still in the air, the Supreme Court of California just struck down a ban on marriage in our case litigated with lead counsel NCLR and the ACLU. That court relied on Lawrence at two significant junctures to maintain clarity for its judicial role in a democratic system of checks and balances. First the court rejected the notion that courts define fundamental rights by virtue of who already enjoys the right. Second, quoting the axiom given life anew in Lawrence, the court rejected the notion that history and tradition can by themselves justify discrimination — "times can blind us to certain truths."
Similarly, in Lambda Legal's successful Varnum v. Brien case for marriage equality in Iowa, the trial judge struck down the state's marriage ban and in his opinion included several lengthy quotations from Lawrence on resisting the use of history and tradition to unhinge the court from its constitutional role. We're now on appeal working to preserve that solid opinion from the trial judge.
In declaring same-sex relationships entitled to respect, Lawrence also has advanced courts' views of the harms to couples denied the freedom to marry. In Massachusetts, the high court deployed Lawrence to explain that "[w]hether and whom to marry, how to express sexual intimacy, and whether and how to establish a family — these are among the most basic of every individual's liberty and due process rights." Notably, the Massachusetts court drew a more explicit link between Lawrence and the marriage bans in framing the proper constitutional analysis of those bans. The court observed that Lawrence, in striking down prohibitions on same-sex sexual intimacy, exposed the "punitive notions" of gay identity inherent in those prohibitions. Those punitive notions, along with other factors, "cemented the common and legal understanding of marriage as an unquestionably heterosexual institution." Thus Lawrence set the stage for the Massachusetts court's famous next line: "But it is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been."
We imported Lawrence to New Jersey as well. In Lambda Legal's successful Lewis v. Harris case, the New Jersey Supreme Court held that the legislature must, at minimum, provide the rights and responsibilities of marriage to same-sex couples (leaving for another day the question whether the powerful name of marriage is also required). Applying its unique balancing test, the court weighed the couples' interests against the state's interests and placed Lawrence itself on the scales. The court reasoned that along with other legal authority that raised expectations regarding gay people's interests in equality and liberty, Lawrence added concrete weight to same-sex couples' side of the scales.
Despite our victories, no civil rights movement is a story of victory piling on top of victory, so while we litigate to win, we also prepare the foundation to "draw a good dissent," should the courts not live up to their role. Lawrence demonstrates the importance of that effort, concluding after heavy reliance on Justice Stevens' dissent in Bowers v. Hardwick (the earlier opinion that upheld Georgia's criminalization of sexual intimacy) that "Justice Stevens analysis, in our view, should have been controlling in Bowers and should control here." Good dissents often become the law, as they have in other cases, including the dissents in cases like Plessy v. Ferguson, which preserved separate railroad coaches for African-Americans, Lochner v. New York, which overturned limits on workers' hours and Hammer v. Dagenhart, which struck down child labor laws. Well-reasoned dissents can shine a steady light on judicial failures to honor constitutional promises, a light not to be put out until the failure is put right.
Lawrence has bolstered significant dissents to opinions that let stand bans on marriage. Chief Judge Kaye of the New York Court of Appeals strongly dissented in that court's refusal to strike down a marriage ban. She observed that the Lawrence Court had warned against judicial reasoning that "misapprehends the nature of the liberty interest at stake." Then in the most forceful articulation yet of this point in case law, Chief Judge Kaye declared: "Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them." Relying on another of Chief Judge Kaye's crisp statements, the Supreme Court of California rejected the idea that any harm befalls different-sex couples by allowing same-sex couples to marry, with this quotation from Chief Judge Kaye: "There are enough marriage licenses to go around for everyone."
The Maryland Court of Appeals also refused to strike down a marriage ban, and one dissent quoted extensively from Chief Judge Kaye's analysis:
"Lawrence rejected the notion that fundamental rights it had already identified could be restricted based on traditional assumptions about who should be permitted their protection. As the [Lawrence] Court noted, 'times can blind us to certain truths and later generations can see that laws once thought necessary and proper only serve to oppress.' As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
That paragraph, which embodies thousands of hours of work by Lambda Legal and others, was written by a dissenting Maryland judge (in 2007) who was quoting Chief Judge Kaye (from 2006), who in turn was quoting Lawrence (2003) adopting Justice Stevens' dissent in Bowers (1986). Painful as the pace of change may be, this is often how our efforts as civil rights lawyers unfold, over time, ultimately fulfilling the promises of liberty and equality.
Another chief justice used Lawrence to moor her dissent in our New Jersey marriage case, agreeing with the majority's requirement that the legislature provide same-sex couples with all the rights and responsibilities of marriage, but declaring that the powerful word "marriage" was also necessary to honor the equality guarantee and that the court should not leave the matter for another day. Chief Justice Poritz cited the Lawrence Court's point about some laws serving only to oppress, and said the following of her court's refusal to carry out its constitutional duty in full: "Without analysis, our Court turns to history and tradition and finds that marriage has never been available to same-sex couples. That may be so — but the Court has not asked whether the limitation in our marriage laws, 'once thought necessary and proper in fact serve[s] only to oppress.'" Thus fortified by Lawrence, the Chief Justice addressed the possibility that the legislature might allow same-sex couples to marry one day, in a succinct statement later quoted by the Supreme Court of California: "That possibility does not relieve this Court of its responsibility to decide constitutional questions, no matter how difficult...The question of access to civil marriage by same-sex couples 'is not a matter of social policy but of constitutional interpretation.' It is a question for the Court to decide."
On the same theme of courts not abdicating their proper role, a dissenting intermediate appellate judge in the California marriage cases included an entire section in the opinion entitled "The Significance of Lawrence v. Texas." Ultimately, based on Lawrence, the dissent concluded that" [j]udicial deference to the importance the state or many of its citizens attach to a traditional bias against homosexuals is fundamentally at war with judicial responsibility to protect the constitutional rights of traditionally disfavored minorities." That dissent was vindicated by our success on appeal to the Supreme Court of California.
Justices in other states have dissented more bluntly from the judicial rubber stamp of marriage bans. A Washington State high court justice cited Lawrence to emphasize the need for judges to "learn from the embarrassments of history," lessons ignored when the "plurality instead repeats the same transgressions." A second justice joined in that dissent, leaving no cover left on the honest truth:
"Just as the United States Supreme Court majority did in Bowers v. Hardwick 20 years ago, [this Court] frame[s] the issue before us so as to ignore not only petitioners' fundamental right to privacy but also the legislature's blatant animosity toward gays and lesbians....The passage of time and prudent judgment revealed the folly of Bowers, a mistake born of bigotry and flawed legal reasoning....Alas, the same will be said of this court's decision today."
In defending the freedom to marry, as with our other important work, we will not relent in our use of Lawrence to educate courts about the embarrassments of legal history. Sometimes we win, sometimes we draw good dissents that later become law — that is the nature of civil rights work. But one day historians will trace the lines from Lambda Legal’s victory in Lawrence to our own version of Loving v. Virginia, when the U.S. Supreme Court struck down the last of the bans on interracial marriage. We will say to that court what the NAACP Legal Defense and Education Fund recently said in its amicus brief to the California Supreme Court in support of us: “There is no reason for this Court to treat marriage between persons of the same sex any differently than it treated interracial marriages.”
