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Monday, January 30, 2012

Judicial Activism and the Recognition of Same-Sex Marriage
8:01 AM ET

JURIST Assistant Editor Kimberly Bennett, University of Pittsburgh School of Law Class of 2014, argues that although it will be described as judicial activism, same-sex couples must be granted the same rights as opposite-sex couples under the Equal Protection Clause of the Fourteenth Amendment... (Her opinions are not intended to represent those of JURIST)

The US Court of Appeals for the Ninth Circuit is currently deciding the constitutionality of Proposition 8, the 2008 initiative that amended the California Constitution to provide that only marriage between a man and a woman would be recognized by the state. Opponents of the amendment argue that it is unconstitutional based on the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. The US District Court for the Northern District of California determined that the right to marriage is a fundamental right, guaranteed by the Due Process Clause, by looking at 1) the history and tradition of marriage in the US, and 2) whether opponents seek to exercise this right or seek to exercise some other right. The district court ruled that although the history of marriage has never been between same-sex couples, the right to marry has, nevertheless, been the right to choose a consenting spouse to join a household and create a family. Additionally, same-sex couples do not seek a new right; rather, they only seek the right to have their marriages recognized as valid. The court also found that under the Equal Protection Clause Proposition 8 [PDF] is not rationally related to a legitimate governmental interest. If the US Supreme Court hears this case, it will likely have to decide whether same-sex couples should be granted the same rights as heterosexual couples under the Equal Protection Clause.

Historically, the Supreme Court has ruled that laws arbitrarily discriminating against a specific group are unconstitutional. In Loving v. Virginia, the Court established that state laws banning interracial marriage were unconstitutional, as they lacked a rational purpose, were racist and perpetuated white supremacy. Accordingly, the traditional norms for justifying state miscegenation laws were invalidated and these discriminatory laws were struck down. In Reed v. Reed, the Supreme Court ruled that laws preferring men to women, based on arbitrary legislative choice, were forbidden by both the Equal Protection Clause and the Due Processes Clause. Five years later, in Craig v. Boren, the Court established an "intermediate" or "heightened scrutiny" standard for cases involving discrimination against women. To pass scrutiny and be held constitutional under this standard, discriminatory laws and policies must be found to be supported by an "exceedingly persuasive justification" that is "substantially related to an important governmental objective," and it cannot be found to be based on stereotypes about gender. Originally excluded from equal protection, this case effectively extended the Equal Protection Clause to women.

Recently, US courts have made significant steps toward the protection of gays and lesbians, indicating that there has been a slow movement toward their inclusion as a protected class under the Equal Protection Clause. In Romer v. Evans, the Court ruled that an amendment to the Colorado Constitution [PDF], which stated that there was no protected status based on sexual orientation, was held to be unconstitutional because it violated the Equal Protection Clause for lack of a "legitimate legislative end." In Lawrence v. Texas, the Court stated that, "[m]oral disapproval of this group ... is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause." Based on these cases, the rule is clear: if a law is intended to infringe on the rights of a certain group, there must be a rational and legitimate governmental interest to justify it.

The Fourteenth Amendment does not specify any groups in particular that should be protected. Instead, the Constitution provides a framework to determine which rights are fundamental, and dictates that these rights shall not be denied to anyone within its jurisdiction. In Zablocki v. Redhail, the Supreme Court established marriage as a fundamental right recognized under the Equal Protection Clause. It further established that courts should apply a rigorous level of scrutiny in cases dealing with fundamental rights. Any scrutiny regarding the constitutionality of banning same-sex marriage reveals that the reasons for its ban are based on outmoded values that cannot be tied to a rational basis or legitimate governmental interest. It is the courts that must break with discriminatory views, as they have done in the past.

Although it is often described as judicial activism, it is essential that judges use their power to make decisions in spite of popular opinion or the approval of public officials. Following Marbury v. Madison, it has been the province of the courts to determine what the Constitution permits. This decision-making power is crucial to our democratic system, as a balance and division of powers is essential to its maintenance. It is the duty of the courts to protect the rights of the minority, and prevent the tyranny of the majority. Checks and balances created by the Constitution must function in the way they were intended. Courts should remain steadfast in their exercise of proper judicial discretion. Denying a fundamental right to a minority is not only contrary to our values and jurisprudence, it is a threat to our democratic system. Judicial discretion does not mean that courts can simply rule as they please. Rather, judicial discretion charges courts with the burden of making constitutionally appropriate decisions based on precedent.

In terms of equal protection, the Supreme Court has historically been at the forefront of progressing our laws to reflect and create necessary changes in societal values, with some of the most notable cases being Brown v. Board of Education and Roe v. Wade. As long as courts rule in accordance with the Constitution, popular opinion should have no impact on their decisions. Marbury v. Madison has provided the courts with the authority to interpret and apply the Constitution. Accordingly, the Ninth Circuit must adhere to its duty as a reviewer and protector of minority rights. A provision, like Proposition 8, cannot pass through the type of rigorous scrutiny that is required in a case where a fundamental right is at stake. If the courts are to uphold Proposition 8 as constitutional under the Fourteenth Amendment, they must provide a rational and legitimate reason for doing so, as decided in Romer, Reed, Loving and Lawrence. The Ninth Circuit must use its judicial discretion in the form of equal rights activism to provide same-sex couples the rights guaranteed to opposite-sex couples.

Kimberly Bennett is an Assistant Editor for JURIST's Social Media service. She holds a undergraduate degree in Spanish and Political Science, and a Certificate in Latin American Studies from the University of Pittsburgh. She is studying international human rights and civil rights law at the University of Pittsburgh School of Law.

The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.

Suggested citation: Kimberly Bennett, Judicial Activism and the Recognition of Same-Sex Marriage, JURIST - Dateline, Jan. 30, 2012,

This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any comments or questions to her at

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Thursday, December 29, 2011

Same-Sex Marriage and International Law in the Ninth Circuit
5:12 PM ET

JURIST Guest Columnist Nathan Crombie, Columbia Law School Class of 2012, is currently researching the influence of international human rights law on same-sex marriage. Here he argues that international law should influence the Ninth Circuit's ruling on same-sex marriage...

The US Court of Appeals for the Ninth Circuit is currently considering the constitutionality of Proposition 8, the 2008 initiative that amended the California Constitution to provide that only marriage between a man and a woman would be recognized by the state. In determining the initiative's constitutionality, the court will follow the approach of Judge Vaughn Walker of the US District Court for the Northern District of California, subjecting Proposition 8 to analysis under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the US Constitution. These clauses will invite scrutiny of the validity of asserted governmental interests in confining marriage to opposite-sex couples. However, traditional constitutional analysis does not involve examination of US obligations under international human rights law. Neglecting to analyze these obligations removes a valuable reference favoring same-sex marriage recognition, bucking an increasing trend among foreign courts.

The principal obligations relevant to the issue of same-sex marriage are contained in the International Covenant on Civil and Political Rights (ICCPR). The US signed the ICCPR in 1977 and ratified it in 1992, subject to a number of reservations, understandings and declarations. Article 26 of the ICCPR provides that all persons are equal before the law and entitled to equal protection under it. In this respect, state parties must guarantee equal and effective protection against discrimination on a number of grounds, including sex, race and "other status."

The Human Rights Committee is a body of independent experts charged with overseeing the implementation of the ICCPR by state parties, and it carries out this task in two ways. First, it periodically issues "general comments" that interpret the rights set out in the ICCPR. Second, it sits in a quasi-judicial capacity and makes non-binding recommendations in response to communications by nationals against those state parties that have acceded to the First Optional Protocol to the ICCPR.

The committee has provided significant guidance on how to interpret Article 26. In General Comment 18, the committee observed that Article 26 is a stand-alone right that prohibits discrimination in "any field" regulated and protected by public authorities. If a state party discriminated in a regulated field, it would need to advance "reasonable and objective" criteria for doing so. In the Toonen v. Australia communication of 1994, the committee held that prohibited discrimination on the grounds of "sex" in Article 26 included discrimination on the basis of sexual orientation. On its face, these two interpretations suggest that in regulating the institution of marriage the US would have to do so on a non-discriminatory basis that included same-sex couples.

However, Article 23(2) provides that "[t]he right of men and women of marriageable age to marry and to found a family shall be recognized." Taking into account the historical context of the ICCPR and its official negotiation records, this right is generally accepted as being limited in scope to opposite-sex marriage. This was confirmed in the Joslin v. New Zealand [PDF] communication of 2002. There, the committee dismissed arguments that Article 26 required New Zealand to provide same-sex marriage. It held that Article 26 must be read in light of the guarantee of heterosexual marriage in Article 23(2). The committee neglected to conduct a "reasonable and objective" inquiry into the denial of same-sex marriage because overwhelming state practice exhibited a "consistent and uniform" understanding that marriage was innately heterosexual. At this time, the Netherlands was the only country to have enacted same-sex marriage.

Since 2002, state practice in the area of same-sex marriage has changed significantly. There are currently 10 countries in the world that allow same-sex marriage, along with six states and the District of Columbia in the US itself. Proponents of same-sex marriage are making substantial gains in countries such as Australia and the UK, suggesting that the number of jurisdictions instituting marriage equality will continue to increase over time. With this increased recognition, the committee would have less room to circumvent a reasonable and objective inquiry on the basis of state practice if the issue of same-sex marriage came before it today. Recent communications holding that the denial of survivor pensions to those who had been in same-sex relationships violated Article 26 furthermore suggest that state parties would have difficulty persuading the committee that there were "reasonable and objective" bases for continuing to deny recognition of same-sex marriage.

Although the US is not a party to the First Optional Protocol to the ICCPR, it would be inadvisable for the Ninth Circuit to ignore the committee's "jurisprudential trend" towards finding that denial of same-sex marriage violates the equality guarantee in Article 26. This is because the "understandings" the US filed upon ratifying the ICCPR indicated that it would provide at least an equivalent, if not greater, guarantee of equality than provided for under the ICCPR. The first understanding asserted that the US Constitution provides "extensive protections against discrimination," and provided that distinctions drawn on a ground that invoked Article 26 would be permitted when they were, at minimum, related to a legitimate government objective. This is a clear reference to Equal Protection Clause jurisprudence under the Fourteenth Amendment. Given that the committee's "reasonable and objective criteria" inquiry raises substantially similar issues as an Equal Protection analysis, the Ninth Circuit should give weight to the committee's rejection of these justifications when it evaluates the state interests advanced in favor of upholding Proposition 8. Doing so will ensure harmonization between the levels of equal protection recognized by the US under the Equal Protection Clause, and by the committee under Article 26. The court will also ensure it fulfills its duty under the compliance with the fifth understanding, which provides that the ICCPR shall be implemented to the extent the federal government exercises judicial jurisdiction over issues raised under it.

Abandoning the traditionally myopic attitude towards international law in the context of same-sex marriage cases will also bring federal courts in line with trends in overseas jurisdictions. Courts in New Zealand and South Africa have specifically invoked Article 26 of the ICCPR when ruling on the constitutionality of same-sex marriage. In New Zealand, two Court of Appeal justices in the Quilter v. Attorney-General [PDF] decision, the precursor to the Joslin communication before the committee, discussed the state's obligation to comply with Article 26 of the ICCPR. Justice Keith concluded that Article 23(2), reflecting traditional heterosexual marriage, was the governing position when set against Article 26. In contrast, Justice Thomas cited the committee's test for compliance with Article 26 by concluding that the state had failed to advance sufficiently reasonable and objective criteria to justify limiting marriage to opposite-sex couples. Similarly, Justice Sachs on the Constitutional Court of South Africa referred to the state's obligations under Article 26 in ruling that denial of same-sex marriage was unconstitutional in Minister of Home Affairs v. Fourie. In the legislative context, advocates of same-sex marriage in recent Australian debates on marriage equality have relied extensively on the Article 26 equality guarantee when making submissions before the Senate Committee considering draft marriage equality legislation.

The invocation of Article 26 by national courts is just one example of a dyadic process between the international and domestic law strata in the development of new human rights norms. The committee is emboldened to give more robust interpretations to the Article 26 equality guarantee when it sees state practice moving more and more in the direction of marriage equality. Likewise, national courts can point to the increasingly progressive interpretations being given to Article 26 by the committee when seeking to insulate their decisions from charges of judicial activism, as occurred in response to the original 2008 Supreme Court of California decision holding that the state denial of same-sex marriage violated the equality guarantees of the California Constitution. More practically, committee communications on Article 26 in the context of sexual orientation discrimination canvass similar issues that arise when courts are faced with direct questions on the constitutionality of same-sex marriage. This is particularly the case in the US, where courts conduct Equal Protection analysis that parallels the "reasonable and objective" inquiry under Article 26. When additional consideration is given to US understandings to the ICCPR, there is a persuasive and sound basis for the Ninth Circuit to consider international human rights law when determining the constitutionality of Proposition 8.

Nathan Crombie is currently an LL.M. candidate at Columbia Law School. He earned his undergraduate law and arts degrees from Victoria University of Wellington in New Zealand before working as a solicitor in the private and governmental sectors. His primary areas of interest are public international law and human rights.

Suggested citation: Nathan Crombie, Same-Sex Marriage and International Law in the Ninth Circuit, JURIST - Dateline, Dec. 29, 2011,

This article was prepared for publication by Elizabeth Hand, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at

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Friday, April 15, 2011

Obama and Congress Should Work Together to Repeal DOMA
11:04 AM ET

David J. Brunell is a 3L at Stetson University College of Law and is president of the school's Lambda Legal Society and chair of the Student Bar Association Diversity Committee...

Recently the Department of Justice (DOJ) announced it would no longer defend in court Section 3 of the Defense of Marriage Act (DOMA), which says that for federal purposes marriage is only between one man and one woman. This would certainly seem to be great news for LGBT-rights supporters since the Obama Administration is taking a pro-LGBT stance on the issue. But I have to ask whether this action -- or more appropriately, inaction -- is constitutional.

What's the problem? Essentially, there are two issues with the DOJ not defending DOMA: first, whether it is failing to follow separation of powers mandates; and second, whether it is forsaking its duty to enforce federal law.

As Chief Justice Marshall famously wrote in Marbury v. Madison back in 1803, "it is emphatically the province of the Judicial [Branch] to say what the law is."

Not only is the DOJ failing to perform its duty to enforce federal law by not defending DOMA, by contending that DOMA is unconstitutional the DOJ is also trampling on the courts' responsibilities by attempting to speak for the courts. In short, the DOJ is acting unconstitutionally.

What's the solution? Let's rewind to a few years ago when the Obama Administration came under fire for enforcing "Don't Ask, Don't Tell," a law it inherited from the Clinton and Bush Administrations that requires that openly-LGBT people be barred from military service. At that time, the Administration asserted that because Congress had passed the law, it was Congress's job to repeal it. The Administration then constitutionally engaged with Congress in working toward repeal by proposing legislation for Congress to debate, pass and send to the President. Congress would write a new law to replace the old one and President Obama would sign it. And that's what happened. The Don't Ask, Don't Tell Repeal Act of 2010 is now law (and soon to be effective). Bottom line: the President didn't have to do anything unconstitutional in repealing "Don't Ask, Don't Tell." This is reason to celebrate.

So I wonder why the Obama Administration is taking a different approach with DOMA than with "Don't Ask, Don't Tell." The Administration, through the DOJ, is asserting that DOMA, which is now on appeal to the Second Circuit Court of Appeals, won't survive if the Court uses something that other courts haven't used when considering challenges to DOMA -- heightened scrutiny. When a court evaluates a law in this posture, which presumes that a law is unconstitutional because it is either restricting a fundamental right or burdening people based on suspect classifications (like race), most laws will fail. Therefore, if heightened scrutiny is used, which DOJ is advocating, DOMA could be ruled unconstitutional on one or both of the following grounds -- the court could find that DOMA violates fundamental rights, such as marriage, and/or discriminates against a suspect class, such as (possibly) sexually orientation a classification to which the Supreme Court has not yet applied heightened scrutiny in such cases as Lawrence v. Texas or Romer v. Evans.

One has to applaud this holding as it would mean that the federal government would end up recognizing same-sex marriages.

The real concern here is not what's being done, but rather who's doing it. There are two possible outcomes to the Administration's new approach to DOMA. The DOJ can do its job and defend DOMA. The second and better option, though, is for the Administration to work with Congress to repeal DOMA and advocate in favor of such bills as the Respect for Marriage Act, which follows the precedent set by "Don't Ask, Don't Tell" and does just that. Now, that would be cause for celebration.

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