CruzLines

Portugal's Marriage Exclusion Upheld

2009-07-31T17:04:20-08:00

In a closely divided decision, the Constitutional Court of Portugal voted 3 to 2 to uphold that country's restriction of marriage to male-female couples against a challenge based on a provision in the Portuguese Constitution forbidding sexual orientation discrimination, reports the Associated Press. I believe this is the statement from the Court's web site (but I do not read Portuguese). Unless the Court reverses course some time in the future or the European Court of Human rights accepts and agrees with the appeal of the lesbian couple denied a marriage license, marriage equality there will have to await the approval of Portugal's Parliament, which does not appear to be an imminent prospect.

Connecticut Constitution Protects Same-Sex Couples' Right to Marry

2008-10-10T12:08:00-08:00

The Connecticut Supreme Court held today that it violated the equal protection rights of gay and lesbian persons under the Connecticut constitution to deny them the freedom to marry civilly. The Court's opinion in Kerrigan v. Commissioner of Public Health rejected the state's argument that the marriage exclusion was constitutional because Connecticut offers same-sex couples "civil unions" with the same state-controlled legal incidents of marriage. At least when such an exclusion "singles out a group that has historically been the object of scorn, intolerance, ridicule or worse," even "symbolic or intangible" differential treatment is a constitutional harm Connecticut courts may address. And because marriage "is an institution of transcendent historical, cultural and social significance," whereas the new vintage status of civil unions (created by the Connecticut legislature during this lawsuit) most surely is not," the two legal regimes are not equal in a way insulating them from judicial review, the 4-3 majority ruled.

The Connecticut majority held that the marriage exclusion was a "quasi-suspect classification," which means that the state had to produce "an exceedingly persuasive justification" for its discrimination, not one that is barely rational. (This intermediate scrutiny standard is more deferential than the strict scrutiny used by the California Supreme Court in In Re Marriage Cases this past May.) The court rejected the state's claim that promoting uniformity and consistency with other states' and countries' marriage laws was a sufficiently important purpose to satisfy intermediate scrutiny. And it also rejected the argument that preserving the "traditional" definition of marriage as limited to relationships between one man and one woman could justify the statute.

And so the court ordered the case be sent back down to grant the plaintiffs a declaration that the exclusion of same-sex couples from civil marriage violated the Connecticut constitution and an injunction requiring state officials to let them marry.

Now, the question remains whether California will remain with Massachusetts and Connecticut as the only states in the union to allow same-sex couples to marry, or whether the voters will approve Proposition 8 on November 4 and eliminate the right of same-sex couples to marry in California.

Don't Ask, Perhaps Tell?

2008-05-24T12:59:17-08:00

The United States Court of Appeals for the Ninth Circuit revived a lawsuit brought by the ACLU of Washington (state) challenging the constitutionality of the “Don’t Ask, Don’t Tell” policy (DADT) excluding openly lesbian, gay, or bisexual (collectively, “lesbigay”) persons from the U.S. military. The district court had dismissed the suit by the much decorated Major Witt challenging the constitutionality of her suspension from duty as an Air Force reservist nurse because of her relationship with a civilian woman. In Margaret Witt v. Department of the Air Force (9th Cir. May 21, 2008) (opinion also here), a three-judge panel held that the Air Force should be required on remand to satisfy a heightened form of scrutiny under the Due Process Clause of the Fifth Amendment. A 2-1 majority regarded the panel as bound by earlier Ninth Circuit precedent holding that DADT does not violate the Equal Protection Clause under what the court held was the applicable rational basis review.

Witt is important because it concludes that an earlier Ninth Circuit decision upholding a precursor to the DADT policy under heightened scrutiny under the Due Process Clause was “no longer good law” in light of the Supreme Court’s decision in Lawrence v. Texas (2003). In particular, the Ninth Circuit panel majority held that “Lawrence applied something more than traditional rational basis review.” (It rejected the contrary interpretation adopted by Lofton v. Secretary of Department of Children & Family Services, 358 F.3rd 804 (11th Cir. 2004), concluding that “the Eleventh Circuit failed to appreciaate both the liberty interest recognized by Lawrence and the heightened-scrutiny balancing employed by Lawrence.”) As a consequence, Witt held, “when the government attempts to intrude upon the personal and private lives of homosexuals [sic], in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interests, the intrusion must significantly further that interest, and the intrusion must be necessary to further that int. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest.”

Unfortunately, the Ninth Circuit majority also held “that this heightened scrutiny analysis is as-applied rather than facial.” As a result, the trial court on remand could determine that application of DADT to Major Witt violated her substantive due process rights, but may not be free to hold the policy facially unconstitutional.

Judge Canby concurred in part and dissented part. In his view, the court did not go far enough. It should have held that Lawrence undermined both the Ninth Circuit’s due process cases and its equal protection cases upholding the military exclusion of lesbigay persons. After all, when the Ninth Circuit Court of Appeals originally held that rational basis review was the proper standard for challenges to the military exclusion, the court relied on the Supreme Court’s decision in Bowers v. Hardwick (1986) – which Lawrence v. Texas overruled in 1993! Moreover, Judge Canby argued, consistently with his longstanding view (see, e.g., High Tech Gays v. DISCO, 909 F.2d at 376-80 (9th Cir. 1990) (Canby, J., dissenting from denial of rehearing en banc), that strict scrutiny should be the governing standard both under the Fifth Amendment’s Due Process Clause and under the equal protection guarantee embodied in that clause.

Even though the Ninth Circuit panel did not embrace Judge Canby’s persuasive opinion, its recognition that DADT intrudes upon the constitutionally protected liberty of lesbigay persons in troublesome ways is encouraging, as is its holding that Major Witt should have her day in court to challenge her dismissal.