ARE SAME-SEX MARRIAGE STATUTES THE NEW ANTI-GAY INITIATIVES?

Barbara J. Cox1

Introduction

My partner and I were at dinner with two lesbian friends the night we heard that Romer v. Evans2 had been decided. We rushed to the television trying to find out information about the case and whether the Court had struck down Colorado's Amendment 2 as unconstitutional.3 There was a collective sigh of relief when we heard that the Supreme Court had declared the Amendment to violate the Equal Protection Clause.4

My relief upon hearing the news was two-fold, besides the gratification from finally being recognized as someone to whom the Constitution does apply.5 First, as someone who lived in Wisconsin when the state-wide anti-discrimination statute was passed,6 I understood what Colorado gay men, lesbians, and bisexuals7 had lost by a constitutional amendment destroying the limited protections they had obtained in Aspen, Boulder, and the City and County of Denver prohibiting discrimination on the basis of sexual orientation.8 It is so difficult and time-consuming to get legislation passed, even at the local level, to protect people from sexual orientation discrimination.9 Our community spends incredible amounts of time, energy, political goodwill, and money simply seeking not to be fired, evicted, expelled, or denied benefits due to who we are and whom we choose to love. To have those efforts overturned by a constitutional amendment that, its proponents claimed, was focused on ending "special rights" for gay, lesbian, and bisexual people added insult to injury. Keeping a job, living in an apartment, attending a school, and

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receiving health or welfare benefits is not "special" for anyone, except members of our community.

Second, I was relieved that we would not have to repeat on a state-by-state basis the incredible efforts that had gone into fighting anti-gay initiatives.10 With the protection the Supreme Court gave us, our community was relieved of a continuing battle, election after election, state after state and city after city,11 to keep a purposely ill-informed electorate from voting "against" us. The Supreme Court striking down Amendment 2 made me feel confident that this tact by the religious right would no longer be a viable way for attacking our community.

Having spent the past three and 1/2 years working to help gay men and lesbians obtain the right to marry,12 I immediately began wondering whether Romer might also be used one day to strike down the new anti-recognition statutes as unconstitutional. If we have simply won the anti- gay initiative battle to find it replaced with a similar state-by-state showdown on refusing recognition of marriages by same-sex couples, I think we have won little indeed. This article begins by discussing the recently passed legislation intended to affect whether marriages by same- sex couples will be recognized outside the state where celebrated. This section considers the general choice-of-law rules and marriage validation statutes used by states in deciding whether to recognize out-of-state marriages and looks at the new statutes passed intending to deny recognition to those marriages entered into by same-sex couples, and those couples alone. The next section reviews the majority's reasoning in Romer and applies that reasoning to these new anti-recognition statutes. It concludes that these statutes, like Amendment 2 in Romer, should be held unconstitutional because they single out the marriages of same-sex couples for treatment different than those of other couples, in violation of the Equal Protection Clause.

Legislation To Deny Recognition to Marriages by Same-Sex Couples

Since I have written about the general choice-of-law rules concerning marriage and marriage validation statutes elsewhere,13 I will only briefly describe the issues here. The general rule, which exists with an "overwhelming tendency" in this country, is that a marriage that satisfies the local law where it was celebrated will be recognized as valid by all other states.14 This rule, which has become entrenched in the substantive law of all the states, confirms the parties' expectations, promotes stability, and "...avoids the potentially hideous problems that would arise if the legality of a marriage varied from state to state."15 In fact, almost half of the states have adopted marriage validation statutes similar to section 210 of the Uniform Marriage and Divorce Act.16 That section states:

All marriages contracted within this state prior to January 1, 1974, or outside this state that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties are valid in this state.17

Thus, in states with marriage validation statutes and even in those without them, by using prior case law, one would expect that the marriage of a same-sex couple entered into in Hawaii (once that state permits such marriages following completion of litigation in Baehr v. Miike18 ) would be recognized once the couple returns to their domiciliary state or relocates to a new state.

This expectation is strengthened by the fact that, until recently, very few states statutorily prohibited marriages by same-sex couples. Many state statutes are ambiguous about whether such marriages are prohibited since the marriage statutes contain no prohibitions against marriages by same-sex couples but do refer to the parties to be married as "a man and a woman," "any unmarried male ...and any unmarried female," or "a male and a female person."19 Those few states that do prohibit marriage are in contrast with the vast majority which do not explicitly exclude marriages by same-sex couples.20

The combination of the general rule validating out-of-state marriage, the existence of marriage validation statues, and the absence of statutory prohibitions against marriages by same- sex couples would lead one to believe that, following completion of the Baehr litigation, if Hawaii

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permits marriages by same-sex couples, then thousands of couples will get married in Hawaii, return home, and expect their marriages to be recognized by their domiciliary state. Uncoincidentally as Romer has meant the demise of anti-gay initiatives, there has been an upsurge in state legislatures reaching out for the first time to either prohibit same-sex marriage by statute or to amend their marriage validation statutes to recognize all marriages except those entered into by same-sex couples. According to a report issued by Lambda Legal Defense and Education Fund, as of September 4, 1996, fifteen states have passed anti-marriage bills.21 As with the anti- gay initiative battles, our community was able to prevent anti-marriage bills from advancing in twenty other states22 and two more states had bills pending at that time.23

The statutes in those fifteen states vary in focus and character but all aim at preventing marriage by same-sex couples within the state or refusing recognition of marriages by same-sex couples entered into out-of-state. For example, Tennessee's statute reads: (a) Tennessee's marriage licensing laws reinforce, carry forward, and make explicit the long-standing public policy of this state to recognize the family as essential to social and economic order and the common good and as the fundamental building block of our society. To that end, it is further the public policy of this state that the historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage.

(b) The legal union in matrimony of only one (1) man and one (1) woman shall be the only recognized marriage in this state.

(c ) Any policy, law or judicial interpretation that purports to define marriage as anything other than the historical institution and legal contract between one (1) man and one (1) woman is contrary to the public policy of Tennessee.

(d) If another state or jurisdiction issues a license for persons to marry which marriages are prohibited in this state, any such marriage shall be void and unenforceable in this state.24

Thus, not only did Tennessee explicitly declare the public policy of the state to be recognition of marriages by opposite-sex couples only, it also declared that no marriage by a same-sex couple is entitled to receive marital benefits. Further, it included a section which refuses recognition of a valid marriage entered into same-sex couples in another state or foreign country. This statute's clear intent to affect only marriages by same-sex couples and no others is evident from its exclusive focus on those couples.

Alaska's anti-marriage bill is slightly different but shows the same exclusive focus on same-sex couples. It states: Section 1. AS 25.05.011(a) is amended to read:

(A) Marriage is a civil contract entered into by one man and one woman that requires [REQUIRING] both a license and solemnization....

Sec. 2. AS 25.05 is amended by adding a new section to read:

Sec. 25.05.013. SAME-SEX MARRIAGES. (a) A marriage entered into by persons of the same sex, either under common law or under statute, that is recognized by another state or foreign jurisdiction is void in this state, and contractual rights granted by virtue of the marriage, including its termination, are unenforceable in this state.

(b) A same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage.25

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Similarly, Georgia's new statute states:

19-3-3.1(a) It is declared to be the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state.

(b) No marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage. Any marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction or otherwise shall be void in this state. Any contractual rights granted by virtue of such license shall be unenforceable in the courts of this states and the courts of this state shall have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties' respective rights arising as a result of or in connection with such marriage.26

States with similar legislation include Idaho,27 Kansas,28 Louisiana,29 Michigan,30 Missouri,31 and South Dakota.32 Some states

followed the lead of Utah and amended their validation statutes, withholding recognition to marriages entered into by same-s ex couples.33 Other states with statutes like Utah's include Arizona,34 Delaware,35 and Illinois.36

The rush to pass statutes such as these came with the national realization that, following the final decision in Baehr, same-sex couples may be able to marry in Hawaii. The statutes are attempts by legislatures to prevent those who marry in Hawaii from bringing their marriage licenses to other states and having those marriages recognized. The speed of passage and the breadth of the anti-recognition statutes illustrate how the possibility of marriages by same-sex couples was used as an opportunity, in this election year, to pass anti-gay legislation: legislation that in the form of anti-gay initiatives was no longer viable following Romer. What remains to be seen is whether these new statutes will also be declared to be unconstitutional. Using the analysis that the Romer court used, by placing gay men and lesbians in a class worse than all others and passing legislation based solely on anti-gay animus, it can be seen that these statutes, like the anti- gay initiatives before them, should also be found to violate equal protection.

Applying Romer to the Anti-Recognition Statutes

1. Gay Men and Lesbians Singled-out and Subject to Disadvantage Two portions of the short majority opinion have applicability to the new anti-recognition statutes. In part II of that decision, Justice Kennedy explores the State of Colorado's argument that Amendment 2 "puts gays and lesbians in the same position as all other persons" so the "measure does no more than deny homosexuals special rights."37 The majority's response to that argument is "[t]his reading of the amendment's language is implausible."38 The court goes on to say that:

Homosexuals, by operation of state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.39

The court continues, discussing how Amendment 2 not only bars gay men and lesbians from securing protection against the injuries caused by discrimination, but goes further by nullifying specific legal protections for them in all transactions in the areas of housing, sale of real estate, insurance, health and welfare services, private education and employment.40 Assuming that the amendment excludes them from "safe harbor in laws of general application,"41 the court concludes that: [W]e cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability on those persons alone.

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Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint....We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.42

Just like Amendment 2, many of these new statutes impose a special disability on marriages by same-sex couples. Unions by a man and a woman are given recognition; unions by a man and a man or a woman and a woman are not. Only opposite-sex couples are permitted to marry under many of the new statutes, although that prohibition had, in many of these states, never been statutorily declared before. While it is true that most states prohibit other marriages, such as those by under-age persons, those between persons within certain degrees of consanguinity, and those by persons with more than one spouse, none of those defects exist for most same-sex couples. Most same-sex couples are disabled from marriage simply because both persons are of the same sex.43 Additionally, many of the new statutes refuse recognition of marriages by same-sex couples when entered into out-of-state, even though the general rule, whether stated by marriage validation statute or case law, has been to recognize out-of-state marriages if they were valid where celebrated, even when they violate the state's domestic marriage statutes.44

In much the same way as Amendment 2, statutes which deny same-sex couples the right to marry withhold from us "protections taken for granted by most people" and withhold from us "an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society." The Baehr court listed over fourteen significant rights and benefits that are based on marital status, including tax advantages, property rights, custody and divorce rights at dissolution, spousal privilege and confidential communications, and the right to bring a wrongful death action.45 Additional rights include inheritance rights, inclusion in single-family zoned neighborhoods, health insurance benefits given to spouses of employees by employers, and family memberships in organizations.46 Finally, other benefits that would result from recognition of marriages by same-sex couples include public legitimation and community recognition of one's primary relationship, injunctive relief from prosecution for sodomy, and protection of relationships between the adults and children in a family.47

In addition to denial of these rights and benefits, statutes passed by Tennessee, Alaska, and Georgia, to name a few, impose a disability on the marriages by same-sex couples that is not found elsewhere in any other statutes or case law. Not only do these statutes declare that such marriages are void in the state in question but they also state that any contractual rights granted by virtue of the marriage license are unenforceable within the state. Although some states do refuse to recognize out-of-state marriages that would violate their domestic marriage laws,48 my research has not found a single other statute that imposes a disability with such a broad-sweep.49 In fact, even marriages that were prohibited by state statute as incestuous, adulterous, interracial, or polygamous have not generated such hostility.

When confronted with cases that violated such statutory prohibitions, many courts have been willing to validate the marriage or, at least, to consider the particular incident of marriage at issue in the case and whether the marriage should be recognized for that purpose alone.50 For example, in Ethridge v. Shaddock,51 the Arkansas court upheld an out-of-state marriage that violated the Arkansas statute prohibiting marriages by first cousins. Finding that such marriages do not create "much social alarm," it recognized the marriage since it was valid in the state in which it was celebrated.52 In In re Estate of Lenherr,53 the Court determined that violation of Pennsylvania's paramour statute which prohibited marriage of adulterous partners during the lifetime of the former spouse did not prevent recognition of the marriage for the limited purpose of receiving certain estate tax benefits. The strong public policy in favor of recognizing out-of- state marriages combined with the fact that denial of the tax exemption would not deter adulterous conduct or spare the aggrieved former spouse led the court to conclude that the

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marriage was valid for estate tax purposes.54 In Miller v. Lucks,55 the Court recognized an interracial couple's marriage for purposes of intestate succession, despite the presence of a provision in the Mississippi Constitution prohibiting interracial marriage, because the Court determined that the prohibition was intended to prevent interracial cohabitation in the state, not to void the marriage for all purposes.56 In In re Dalip Singh Bir's Estate,57 the Court determined that public policy would not be negatively affected by dividing property between two wives involved in a polygamous marriage validly entered into in India, although it would have been negatively affected had cohabitation in the state occurred.58

Each of these marriages was recognized, despite violating explicit state statutes against incest, adultery, interracial marriage, and polygamy. Thus, refusing to recognize marriages by same-sex couples for any reason, even the marriage's termination, goes beyond any refusal found in statutory or case law. The only conceivable reason for this difference in treatment is animus against marriages by same-sex couples that exceeds that against incestuous, adulterous, interracial, or polygamous marriages and which, under Romer, may be unconstitutional because it is directly at one group alone.

2. Statute violates Equal Protection

The court's second line of analysis applies traditional Equal Protection jurisprudence to Amendment 2. The court begins that section by noting that "[t]he Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons."59 Thus, in order to reconcile this tension, the court applies the standard "that if a law neither burdens a fundamental right nor targets a suspect class,60 we will uphold the legislative classification so long as it bears a rational relation to some legitimate end."61 The court rejects the existence of a rational relationship, using unmistakable language:

Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.62

Considering the first objection, the Court notes that Amendment 2 "identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence."63 Because the principle that government "remain open on impartial terms to all who seek its assistance"64 is at the heart of the equal protection clause, the court notes that "[a] law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense."65

Secondly, the Court finds that laws such as Amendment 2 "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."66

Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it....The breadth of the Amendment is so far removed from these particular justifications [such as respect for other citizens' freedom of association and the liberty of landlords or employers who have personal or religious objections to homosexuality] that we find it impossible to credit them....It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of

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persons undertaken for its own sake, something the Equal Protection Clause does not permit.67

In conclusion, the Court holds that "Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else."68 Saying that a state cannot deem "a class of persons a stranger to its laws,"69 the Court strikes down Amendment 2 as violating the Equal Protection Clause.

Anyone who practices anti-discrimination law knows proving animus is very difficult indeed.70 But, as the Court was able to do by looking at the breadth of the disability imposed by Amendment 2, so too it may be possible to establish anti-gay animus by the breadth of the disability imposed by the anti-marriage statutes recently passed. As noted above, many of those statutes refuse recognition of a marriage by a same-sex couple for any reason. Since some incestuous, adulterous, interracial, and polygamous marriages have been recognized generally or at least for receiving particular incidents of marriage, even though cohabitation within the state might have been rejected, there are no analogies in marriage law for the breadth of the disability imposed against marriages by same-sex couples. Withholding recognition of marriages of same- sex couples for any purpose speaks of the strong anti-gay animus behind these statutes.

Additionally, the statutes do not impose these disabilities only upon their own residents who, by marrying outside the state, seek to evade their domicile's domestic marriage statutes. Several states do have marriage evasion statutes that refuse recognition of marriages entered into by their domiciliaries in an attempt to evade their own marriage statutes.71 However, "the evasion statutes reflect a policy of declining strength,"72 and the modern trend has been away from prohibiting evasion of marriage statutes.73 Even so, these new statutes are not cast in terms of preventing domiciliaries from evading their own domestic marriage statutes. These statutes are across-the-board prohibitions against recognition of the marriages of any same-sex couple for any purpose.

Regardless of whether particular states recognize the marriages of their domiciliaries who go to Hawaii, get married, and then claim their marriages deserve recognition within their domicile, it can be expected that Hawaiian same-sex couples, whose local law permits them to marry, will leave that state and travel or move to other states, some of which have these prohibitory statutes. Their marriages, according to these statutes, will be given no effect, even though virtually any other marriage entered into outside the state by non-residents would be recognized by those states. Should one member of the couple become ill and need medical treatment, these statutes deny one spouse the right to determine medical care for the other as their next-of-kin and may deny that person the right to receive medical treatment as the spouse of a covered employee. Should one of the couple become arrested and tried for a criminal offense, these statutes deny the spouse the right to refuse to reveal confidential marital communications. Should one spouse incur debts, these statutes deny use of the other spouse's income to help repay those debts. The list of disabilities imposed is endless and is imposed only against same-sex couples.

Similar anti-gay animus can be seen by the passage of the "Defense of Marriage Act."74 For the first time, Congress has reached out to define marriage and has done so in a way that refuses recognition of only one type of marriage: those entered into by same-sex couples. Section 2 of DOMA says that one state will not be required by the Full Faith and Credit Clause of the U.S. Constitution75 to recognize a marriage that was valid under another state's law.76 Section 3 of DOMA defines marriage for federal purposes and that definition only includes marriages by opposite-sex couples.77 The clear intent of Congress is to declare that marriages by same-sex couples are not as good as marriages by opposite-sex couples, since only marriages by opposite- sex couples are entitled to recognition of federal purposes.78 Despite differences between the states on whether certain marriages should be prohibited as interracial, polygamous, bigamous, incestuous, adulterous, or underage, the federal government, before DOMA, has usually believed it unnecessary to define "marriage" or "spouse" for federal purposes. Courts have generally found that Congress intended such terms to be defined by reference to state law, despite the

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disparities in those definitions from state to state.79 For over one hundred years, the Supreme Court has recognized that the "whole subject of domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the law of the United States."80 If the Congress and the Supreme Court have previously felt comfortable leaving it to the states to define marriage for federal purposes, then it must be something specific to marriage by same-sex couples that leaves them no longer comfortable doing so. Since other disputes between the states concerning how marriage is defined have not led Congress to take the step it has just taken, then it must be something about marriage by same-sex couples that leads them there now.

Passage of DOMA and the other state statutes and the language used by their supporters leads one to the seemingly obvious conclusion that animus against the marriages of same-sex couples is the reason behind these statutes.81 Many of those supporters used the need to preserve "traditional marriage" as the basis for passing these statutes.82 Some states included this invocation of "tradition" in the text of the statutes. For example, Tennessee's statute states that "Any policy, law or judicial interpretation that purports to define marriage as anything other than the historical institution and legal contract between one (1) man and one (1) woman is contrary to the public policy of Tennessee."83 Invoking tradition to support the restriction of marriage to opposite-sex couples, when tradition has been recognized by one state Supreme Court to be grounded in unconstitutional discrimination, can be little other than animus.84 The Loving court found Virginia's use of tradition to argue against recognition of interracial marriage to be an attempt to camouflage beliefs of "White Supremacy" that lay beneath the prohibition;85 so too the use of tradition to support the state statutes and DOMA is simply an attempt to camouflage beliefs of "heterosexual supremacy" that lay beneath these prohibitions. If it is discrimination to restrict marriage to opposite-sex couples, then it is animus against same-sex couples to invoke tradition as the basis for such a restriction.

Another way to establish the anti-gay animus inherent in these new statutes is to consider the way in which these statutes would change current marriage validation statutes in the states. I am using California law in this example even though opponents of such legislation in California were able to prevent its passage. A.B. 1982 would have amended California's marriage validation statute to declare that "[a]ny marriage contracted outside this state by individuals of the same gender is not valid in this state."86 That change would have altered California statutory and case law in existence for over 120 years.87 Despite years of continuously recognizing out-of-state marriages as valid in California, the proposed statute would have amended the marriage validation statute for the first time to refuse recognition of only those marriages entered into by same-sex couples.

Since other marriages that were statutorily prohibited in California and were entered into out-of-state have been recognized under the state's validation statute, it seems likely that anti-gay animus prompted the Legislature to consider prohibiting similar recognition now that same-sex couples may soon be permitted to wed. In case after case, California has recognized the out-of- state marriages of its residents which would have been prohibited under its own domestic marriage statutes. For example, in Norman v. Norman,88 in addressing the marriage of an underage woman and a man while at sea off the California coast, the Court explained the rule:

If the marriage in question can find support by the laws of any country having jurisdiction of the parties at the place where the marriage ceremony was performed, we should feel constrained by our code rule and well-considered decisions to declare it valid here, even though the parties were here domiciled at the time and went to the place where they attempted to be married for the purpose of evading our laws which they believe forbade the bans.89

The court refused to recognize the marriage in this case, however, by finding that on the high seas no law existed for solemnizing the marriage and thus it was invalid.90 The California courts have recognized an interracial marriage entered into in Utah which would have been forbidden in California,91 an underage marriage in Nevada although it would have been subject to annulment if entered into in California for lacking parental consent,92 common law marriages entered into

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outside California although they would have been invalid within the state,93 a proxy marriage entered into in Nevada although California forbade them,94 and a polygamous marriage for property distribution purposes even though it would have been invalid if entered into in California.95 Despite statutes prohibiting each of these marriages, the California courts recognized the marriages and the California legislature never amended the marriage validation statute to refuse recognition of such marriages.

Only when faced with the possibility of having to recognize marriages by same-sex couples did the California legislature consider amending its validation statute to refuse recognition of those marriages. If such a statute had passed, it seems virtually impossible to argue that anti- gay animus, toward one group and one group alone, was not at work. If all other out-of-state marriages, even those prohibited in California, have been recognized for over 120 years without prompting the need for amending the state's marriage validation statute, then out-of-state marriages by same-sex couples, even though not explicitly prohibited in California,96 should also be recognized under the state's marriage validation statute. Given that conclusion, it is reasonable to believe that the bill's sponsors must have been showing anti-gay animus by trying to pass such an amendment at this time.

Other states with similar legislative and judicial history have passed antirecognition statutes. By comparing their previous statutory and case law to the changes now imposed against same-sex couples and their marriages alone, one can establish that anti-gay animus must be behind these statutory amendments. Anti-gay animus has no rational relationship to a legitimate state interest. The Supreme Court rejected animus as a constitutionally valid basis for Amendment 2 and may well reject it as a constitutionally valid basis for these new anti-same-sex marriage statutes. With no marriages by same-sex couples occurring in Hawaii until the Baehr litigation concludes, however, there is no practical basis for challenging these statutes as unconstitutional at this time. Once again, our community is being forced to fight a time-consuming, expensive, state- by-state battle against hatred and animus. Although Romer may ultimately lead to a declaration that these statutes are unconstitutional, like the statutes prohibiting interracial marriage in Loving v. Virginia,97 we will have once more had to fight opponents who use ignorance and fear to attack our community.

1 Professor of Law, California Western School of Law. I would like to thank Sheila Sullivan, my research assistant, for her help with this article and Peg Habetler, my partner, for her good humor and unending support.

2 116 S.Ct. 1620 (1996).

3 Amendment 2 states: No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the constitution shall be in all respects self-executing. Colo. Const., Art. II, 30b

4 116 S.Ct at 1622.

5 See infra for a discussion of the equal protection analysis used by the Court.

6 Wis. Stat. 234.29 (1994) requires housing to be open to all regardless of "...sexual orientation...." Wis. Stat. 111.321 forbids discrimination in employment on the basis of sexual orientation.

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7 Transgendered people were not included as protected by those statutes. For a discussion about the inclusion of transgendered persons in the "queer" community, see Elvia R. Arriola, Getting Possessive About the Term "Lesbian" (forthcoming).

8 116 S.Ct at 1623.

9 See generally Barbara J. Cox, Choosing One's Family: Can The Legal System Address the Breadth of Women's Choice of Intimate Relationship?, VIII St. Louis U. Pub. L. Rev. 299 (1989) (describing the efforts to pass a local alternative family rights ordina nce).

10 See William E. Adams Jr., Pre-Election Anti-Gay Ballot Initiative Challenges: Issues of Electoral Fairness, Majoritarian Tyranny, and Direct Democracy, 55 Ohio St. L.J. 583 (1994).

11 "Anti-Gay Initiatives Fall Short," St. Louis Post-Dispatch, July 12, 1994, at 1A; Michael Booth, "Gay Rights gain new momentum," Denver Post, October 12, 1994, at A-11; Linda Greenhouse, "The Gay Rights Ruling," New York Times, May 21, 1996, at A1. Cin cinnati, Ohio's successful anti-gay initiative was upheld as constitutionally valid in Equality Foundation of Greater Cincinnati, Inc., v. City of Cincinnati, 54 F.2d 261 (6th Cir. 1995). The validity of that decision is questionable given the Supreme C ourt's decision in Romer.

12 Articles that I have written in this area include Barbara J. Cox, Same-Sex Marriage and Choice of Law: If We Marry In Hawaii, Are We Still Married When We Return Home?, 1994 Wis. L. Rev. 1033 [hereinafter referred to as Cox, Choice-of-Law]; Cox, "Comin g Out": The Practical Battles of Being Visible As A Lesbian, 5 Rev. of L. & Wom. Stud. 89 (1995) and Cox, Same-Sex Marriage and the Public Policy Exception in Choice-of-Law: Does It Really Exist?, Quin. L. Rev. (forthcoming) [hereinafter referred to as C ox, Public Policy Exception]. I have also testified before the California Senate Judiciary Committee opposing A.B. 1982 which would have amended California's marriage validation statute to refuse recognition of out-of-state marriages by same-sex couples and am compiling an attorneys' ha ndbook, with Evan Wolfson of Lambda Legal Defense and Education Fund, including state-by-state research on each state's likely response to out-of-state marriages by same-sex couples.

13 See Cox, Choice-of-Law, supra note 12, at 1064-1066 and 1066-1074, respectively.

14 Id. at 1064.

15 Id. at 1065.

16 Id. at 1066-1069.

17 Id. at 1066.

18 As first decided by the Hawaii Supreme Court, the case was known as Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). That action was commenced against John C. Lewin, then State Director of Health. Following the 1994 general election, Governor Cayetano appoin ted Lawrence H. Miike to succeed Lewin as Director of Health and, pursuant to Appellate Procedure Rule 43(c)(1), Miike has been substituted for Lewin as a defendant in the case. Baehr v. Miike, 910 P.2d 112, 112 n.1 (1996). Trial in the case following t he Hawaii Supreme Court's remand began September 10, 1996 in front of Circuit Court Judge Kevin S.C. Chang. The trial ran about two weeks with a final decision from the trial judge expected near the end of November and decision from the Hawaii Supreme Co urt expected, following appeals, in early 1998. Cheryl Wetzstein, "Senate takes up gay 'marriage' as Hawaii court case resumes," Wash. Times, September 4, 1996, at A3.

19 Cox, Choice-of-Law, supra note 12, at 1070, n. 217.

20 Id. at 1070, n. 216.

21 Those states are Alaska, Arizona, Delaware, Georgia, Idaho, Illinois, Kansas, Michigan, Missouri, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, and Utah.

22 Those states are Alabama, California, Colorado, Florida, Hawaii, Iowa, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi, New Mexico, New York, Rhode Island, Virginia, Washington, West

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Virginia, Wisconsin, and Wyoming.

23 Those states are New Jersey and Pennsylvania.

24 Tennessee Code Ann. 36-3-113.

25 1996 Alaska Sess. Laws 21.

26 Georgia Code Ann. 19-3-3.1 which was enacted by 1996 Ga. Laws p. 1025, 1.

27 Idaho changed its marriage validation statute to prohibit recognition of marriages by same-sex couples only. The amended statute reads as follows: "Idaho Code 32-209. RECOGNITION OF FOREIGN OR OUT-OF-STATE MARRIAGES. All marriages contracted without

this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are

not limited to, same-sex marriages, and marriages entered into under the laws of another state or country with the intent to evade the prohibitions of the marriage laws of this state." This statute, which had been in effect since 1867, was amended by 19 96 Idaho Sess. Laws ch. 331, 1.

28 Kansas enacted a slightly different type of bill. Senate Bill 515 amended Kansas Stat. Ann. 23-101 (1996) to read: "The marriage contract is to be considered in law as a civil contract between two parties who are of the opposite sex. ALL OTHER MARRI AGES ARE DECLARED TO BE CONTRARY TO THE PUBLIC POLICY OF THIS STATE AND ARE VOID...." The same bill amended K.S.A. 23-115 to read: "All marriages contracted without this state, which would be valid by the laws of the country in which the same were contra cted, shall be valid in all courts and places in this state. IT IS THE STRONG PUBLIC POLICY OF THIS STATE ONLY TO RECOGNIZE AS VALID MARRIAGES FROM OTHER STATES THAT ARE BETWEEN A MAN AND A WOMAN." (Amended language is in capitals.)

29 Louisiana's statute states: "Persons of the same sex may not contract marriage with each other." La. Civ.Code Ann. art 89 (West 1996). The revision comments state: "(c) A purported marriage between persons of the same sex is not an impediment to eith er party's subsequent marriage to another person."

30 Michigan amended its marriage validation statute, Michigan Comp. Laws 551.271 (1996), which recognizes marriages contracted by "a man and a woman" who are Michigan residents outside the state as having the same effect as marriages contracted inside t he state, except that "(2) This section does not apply to a marriage contracted between individuals of the same sex, which marriage is invalid in this state...." Section 2 of the Bill adds "This state recognizes marriage as inherently a unique relationsh ip between a man and a woman,...and therefore a marriage that is not between a man and a woman is invalid in this state regardless

of whether the marriage is contracted according to the laws of another jurisdiction." These amendments were added by 1996 M ich. Pub. Acts 334.

31 Missouri had a difficult time passing an anti-same-sex marriage bill. Although 5 bills denying recognition were introduced into the Missouri General Assembly in 1996, none of them passed both houses. What was passed was an amendment to Senate Bill 76 8, which included "Section 6. It is the public policy of this state to recognize marriages only between a man and a woman."

33 1996 S.D. Laws. 161 amended S.D. Codified Laws Ann. 25-1-1 to read: "Marriage is a personal relation, BETWEEN A MAN AND A WOMAN, arising out of a civil contract to which the consent of parties capable of making it is necessary." (Changes are in capi tals).

34 Utah was the first state to pass an anti-recognition bill. It did so by amending its validation statute, Utah Code Ann. 30-1-4 (1995) to read: "Validity of foreign marriages - Exceptions. A marriage solemnized in any other country, state, or territ ory, if valid where solemnized, is valid here, unless it is a marriage that: (1) would be prohibited and declared void in this state, under Subsection 30-1-2(1), (3), or (5); or (2) would violate Section 30-1- because the parties are related to each other

within and including three degrees of consanguinity." Subsection 30-1-2(5) states a marriage is prohibited or void if "the parties are of the same sex." Senate Bill 1038 amended Arizona's statutes to add section C to Ariz. Rev. Stat. Ann. 25-101.

Void and prohibited marriages. C. MARRIAGE BETWEEN PERSONS OF THE SAME SEX IS PROHIBITED. It also amended Ariz. Rev. Stat. Ann 25-112. Marriages contracted in another state; validity and effect to read: "A. Marriages valid by the laws of the place where contracted are valid in this state, EXCEPT MARRIAGES WHICH ARE VOID OR PROHIBITED UNDER SECTION 25-101" and "B. Marriages solemnized in another state or country by parties intending at the time to reside in this state shall have the same legal cons equences and effect as if solemnized in this state, EXCEPT MARRIAGES WHICH ARE VOID OR PROHIBITED UNDER SECTION 25-101." (Amendments are in capitals.)

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35 Delaware made similar changes as Arizona. It amended Del. Code Ann. tit. 13, 101(a), which lists void and voidable marriages

as certain incestuous marriages, by adding "persons of the same gender" to the list of those that are void. Then it amended Del. Code Ann. tit. 13, 101 to add subsection (d) which reads: "(d) A marriage obtained or recognized outside the State of Delaware between persons prohibited by subsection (a) of this Section shall not constitute a legal or valid marriage within the S tate of Delaware."

36 Illinois also amended its section on prohibited marriages, Ill. Rev. Stat. ch. 750, para. 5/212, by adding a new subsection to the list of prohibited marriages: "(5) a marriage between 2 individuals of the same sex." 1996 Ill. Laws 89-459.

37 116 S.Ct. at 1624.

38 Id.

39 Id. at 1625.

40 Id. at 1626.

41 Id.

42 Id. at 1626-27.

43 Just recently, I was questioned at a presentation I gave about why, if marriages that are underage, incestuous, and bigamous or

polygamous/polyandrous are prohibited, marriages between same-sex couples could not also be prohibited constitutionally. Mu ch of the reason goes to the anti-gay animus discussed later in this essay. In contrast, underage marriages are prohibited because of the state's fear that consent to be married may be lacking if the persons are too young to understand the commitment and

relationship they are entering. Incestuous marriages are prohibited because of concerns about improper power relationships within families, concerns about consent, and concerns about the health of the children of such marriages. Bigamous, polygamous, a nd polyandrous marriages are prohibited because of concerns about limiting marriage to two-person couples, and for these purposes,

are the most susceptible to challenges similar to those by same-sex couples as having little basis except for claims of mora lity and tradition. For an excellent discussion of whether this disability should be imposed, see Mark Strasser, Domestic Relations, Jurisprudence, and the Great Slumbering Baehr: On Definitional Preclusion, Equal Protection, and Fundamental Interests, 6 4 Fordham L. Rev. 921 (1995). Regardless of this, same-sex couples are the only ones who are prevented from marrying when they meet all the other restrictions imposed by any state and the reasons given for prohibiting these marriages do not meet the "rati onal relationship to a legitimate state interest" standard discussed infra.

44 It is beyond the scope of this essay to document the overwhelming consistency with which states have recognized out-of-state marriages as valid, even when to do so would violate that state's domestic marriage statutes. For a full-ranging discussion of how courts have recognized those marriages and not used a public policy exception to avoid recognition,

see Cox, Public Policy Exception, supra note 12. Suffice it to say, that when combined with the previous non-prohibition of marriages by same-sex couples, the speed in passing anti-recognition statutes immediately once it became possible for those marri ages to exist, and the case law in most states recognizing marriages that would be invalid if entered into in-state as long as they were valid where celebrated, it becomes clear that these statutes likely have the same constitutional defect as Colorado's Amendment 2, due to their focus on one group, and one group alone.

45 852 P.2d at 59.

46 For a discussion of some of these "domestic partner benefits" denied to unmarried couples in long-term committed relationships, see Barbara J. Cox, Alternative Families: Obtaining Traditional Family Benefits Through Litigation, Legislation and Collective Bargaining, 2 Wis. Women's L.J. 1 (1986).

47 Cox, Choice-of-Law, supra note 12, at 1047-48.

48 Most, although not all, of those refusals involve marriages entered into by the forum state's domiciliaries out-of-state in an attempt to evade the domicile's statutes and usually in violation of that state's marriage evasion statutes. See e.g., Langh am v. Langham, 117 N.W. 787 (Wis. 1908)(Wisconsin couple who traveled to Michigan to avoid Wisconsin statutory prohibition of remarriage within one year of divorce not validly married); In re Canon's Estate, 266 N.W. 918 (Wis. 1936)(marriage void when ent ered into outside Wisconsin to avoid statutory prohibition against epileptics marrying); First National Bank in Grand Forks v. North Dakota ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 2 ------------ ---------------------------------END PAGE 205---------------------------------------

Workmen's Compensation Bureau, 68 N.W.2d 661 (N.D. 1955)(marriage invalid when entered into in Minnesota to avoid North Dakota statute barring marriage due to mental incompetence); Whelan v. Whelan, 105 N.E.2d 314 (Ill. App. 1952)(marriage of first cousin s valid in Indiana void in Illinois where such marriages are prohibited); Bucca v. State, 128 A.2d 508 (N.J. Ch. 1957)(uncle/niece

marriage valid in Italy void in New Jersey for violating statute prohibiting incestuous marriage); and Wilkins v. Zelichowsk i, 140 A.2d 65 (N.J. 1958)(underage marriage entered into in Indiana void for violating New Jersey consent statute).

49 See Cox, Choice-of-Law, supra note 12, at 1074-1078 and n. 262 discussing evasion statutes and listing evasion statutes, none of which include such broad negation of the marriage for any and all purposes.

50 For a discussion of determining one's marital status on an issue-by-issue basis, after considering the policies behind each particular incident of marriage, see id. at 1063 n.168.

51 706 S.W.2d 395 (Ark. 1986).

52 Id. at 396, citing Robert A. Leflar, American Conflicts Law 221 (3d ed. 1977). See also, Festerwald v. Burk, 98 A. 358 (Md. Ct. App. 1916), dismissed 248 U.S. 592 (1916)(upholding Rhode Island marriage between Jewish man and his niece); and Schofiel d v. Schofield, 51 Pa. Super. 564 1912)(upholding Delaware marriage between first cousins).

53 314 A.2d 255 (1974).

54 Id. at 257.

55 36 So.2d 140 (Miss. 1948).

56 Id. at 142.

57 188 P.2d 499 (Cal. Ct. App. 1948).

58 Id. at 502.

59 116 S.Ct at 1627.

60 A strong argument can be made that denying marriage to same-sex couples violates their fundamental right to marry, even though the Baehr court rejected that argument. See Cox, Choice-of-Law, supra note , at 1053-1062. Additionally, numerous commentat ors and cases have discussed whether gay men and lesbians should be recognized as falling within the "suspect" or "quasi-suspect" class branch of Equal Protection jurisprudence. See the discussion between members of the Ninth Circuit on this issue in Hig h Tech Gays v. Dense Industr. Sec. Clearance Office, 668 F. Supp. 1361, 1368-70 (N.D. Ca. 1987); 895 F.2d 563, 573-74 (9th Cir. 1990); and 909 F.2d 375, 376-78 (9th Cir. 1990)(dissent from denial of en banc petition); Cass R. Sunstein, Homosexuality and t he Constitution, 70 Ind. L.J. 1 (1994); Note, The Constitutional Status of Sexual Orientation: Homosexality as a Supsect Classification, 98 Harv. L. Rev. 1285 (1985).

61 116 S.Ct. at 1627.

62 Id.

63 Id. at 1628.

64 Id.

65 Id.

66 Id.

67 Id. at 1629.

68 Id.

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69 Id.

70 See Village of Arlington Heights v. Metropolitan Housing Dev't Corp., 429 U.S. 252, 264-66 (1977).

71 See Cox, Choice-of-Law, supra note 12, at 1074-1080.

72 Eugene F. Scoles and Peter F. Hay, Conflict of Laws 453 (2d ed. 1992).

73 Andrew Koppleman, Same-Sex Marriage, Choice of Law, and Public Policy (forthcoming in Quinnipiac Law Review).

74 Hereinafter referred to as DOMA.

75 "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial proceedings of every other State." U.S. Const. Art. IV, sec. 1.

76 Section 1738C states: "No state, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relatio nship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship." P.L. 104-199, 2(a), 110 Stat. 2419 (1996).

77 1 U.S.C. 1 was amended by adding "s. 7 Definition of 'marriage' and 'spouse.' In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States,

the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." P.L. 104-199, 3(a), 110 Stat. 2419 (1996).

78 For an excellent discussion of the ways in which DOMA is based on anti-gay animus, see Mark Straasser, Loving the Romer Out for

Baehr: On Acts in Defense of Marriage and the Constitution (forthcoming). 79 See, e.g., Ryan-Walsh Stevedoring Co., Inc. V. Trainer, 601 F.2d 1306, 1313 (9th Cir. 1964)(in deciding whether a claimant is decedent's "wife," state law is dispositive because the federal law does not define the term); Yarborough v. United States, 34 1 F.2d 621, 623 (Ct. Cl. 1965)(Congress left determination of whether an employee was married up to individual state law); Huff v.

Director, United States Office of Personnel Management, 40 F.3d 35, 36-7 (3rd Cir. 1994)(definition of "spouse" for Social S ecurity Act benefits determined by reference to state law); and Lembecke v. United States, 181 F.2d 703, 706 (2d Cir. 1950)(definition of "widow" for Federal employee life insurance statute determined by reference to state law).

80 Ex parte Burrus, 136 U.S. 586, 593-94 (1890).

81 See, Strasser, supra note 78,where he analyses the statements of some of the bill's supporters, including Senator Nickles (142 Cong. Rec. S4851-02, S4871); Senator Coats (142 Cong. Rec. S4947-03)(5/9/96); Representatives McInnis and Largent (142 Cong. Rec. H7270-4)(7/11/96).

82 For example, Senator Coats stated during Congressional debates on DOMA: "The definition of marriage is not created by politicians and judges, and it cannot be changed by them. It is rooted in our history, our laws, our deepest moral and religious conv ictions, and our nature as human being. It is the union of one man and one woman." 142 Cong. Rec. S4947-03 (5/9/96). This use of tradition to support DOMA was echoed by Representatives McInnis and Largent. 142 Cong. Rec. H7270-04 (7/11/96). See also,

Strasser, supra note 78. 83 Tennessee Code Ann. 36-3-113(c).

84 See Cox, Choice-of-Law, supra note 12, at 1050-1051, citing Baehr, 852 P.2d at 63.

85 388 U.S. at 11.

86 A.B. 1982 proposed this addition to Cal. Civ. Code 308.5.

87 Cal. Civ. Code 308 provides: "All marriages contracted without the state, which would have been valid by the laws of the coun

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try in which the same were contracted, are valid in this state." This statute was first passed in 1872 as Civ. Code 63 and has remained substantively the same to the present. Additionally, as early as 1875, California case law recognized out-of-state marriages that would have been invalid had they been entered into within the state. Pearson v. Pearson, 51 Cal. 120 (1875)(recognizing interracial marriage entered into in Utah despite California laws nullifying such marriages).

88 54 P.143 (CA 1898).

89 Id. at 144.

90 Id.

91 Pearson v. Pearson, 51 Cal. 120 (1875).

92 McDonald v. McDonald, 58 P.2d 163 (1936).

93 Tatum v. Tatum, 241 F.2d 401 (1957); and Colbert v. Colbert, 169 P.2d 633 (1946).

94 Barrons v. United States, 191 F.2d 92 (1951).

95 In re Estate of Dalip Singh Bir, 188 P.2d 499 (1948).

96 Family Code 300 does not prohibit marriages by same-sex couples, but does indicate that "Marriage is a personal relation arising out of a civil contract between a man and a woman,...." Whether this statute would be interpreted as prohibitory is unkn own.

97 388 U.S. 1 (1967).

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