Our constitution, July 2012: Judicial review of constitutionality of laws

“Judicial review of constitutionality of laws”

I am not a lawyer, and not an American, but there are a couple of areas of US law that I have looked at with queer intensity over many years: and in particular, two areas of the US Constitution and the actions of its judicial regulator the Supreme Court.

Article Four, Section One of the US Constitution says

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

Marriage and divorce have always been defined as included among the “public Acts, Records, and judicial Proceedings”: if you are married in the state of New York, so the original Drafters considered, you should not be able to move to Virginia and thereby make yourself unmarried.

After the US Civil War, many states passed legislation banning marriages which they considered to be unethical and unsuitable: cousin marriage. Even today, 30 US States have laws that make it illegal to marry your first cousin, or allow it only with specific exceptions (if one or both of you is sterile). Predictably enough, people who grow up in states where cousin marriage is banned, tend to think of it as some kind of weird icky relationship, bad for the children. (Where have I heard that before?)

First cousins marrying is culturally approved in some countries, culturally disapproved in others: first cousins can’t get married according to Catholic canon law (which is based on Roman law). But the US is the only country which, in the 19th century, up and passed laws against first cousins marrying – which are still in force in 30 states.

So what happens if you are first cousins who marry in a state where that’s legal and move to a state where it’s not?

You’d think that 4.1 would then come into play.

Not according to Professor Lea Brilmayer, Professor of International Law at Yale Law School, who argued in 2004:

The fly in the ointment was that nobody bothered to check whether the Full Faith and Credit Clause had actually ever been read to require one state to recognize another state’s marriages. It hasn’t. Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. The “public policy doctrine,” almost as old as this country’s legal system, has been applied to foreign marriages between first cousins, persons too recently divorced, persons of different races, and persons under the age of consent. The granting of a marriage license has always been treated differently than a court award, which is indeed entitled to full interstate recognition. Court judgments are entitled to full faith and credit but historically very little interstate recognition has been given to licenses.

Just to make life more fun, in some of the thirty states where first-cousin marriage is unlawful, it is perfectly legal providing at least one spouse can’t have children. In other words, if first cousins marry in New York and then move to Kentucky, not only is their marriage void, if they have sex in the state of Kentucky this is a criminal offense. But if you moved to Indiana, you might be OK, providing one or both of you were sterile.

US with cousin marriage laws state by state
Dark blue: First-cousin marriage is legal; Light blue: Allowed with requirements or exceptions; Pink: Banned with exceptions (for example, if a couple of cousins were married when residents of a state where first-cousin marriage is legal); Light red: Statute bans first-cousin marriage; Dark red: Criminal offense.

Has anyone ever actually been prosecuted for marrying their cousin?

Well… as far as I can tell, no. Many Americans are surprisingly squeamish about the idea of first cousins having sex / getting married, but I could find no reference to any case of a married couple being dragged out of their home and jailed for committing a criminal offense by getting married to a nearer relative that is allowed in that state. It would appear that when first cousins married, even in states where this was formally against the law, they didn’t bother to mention it and nobody bothered them.

Other couples married when the law said they shouldn’t were more conspicously illegal.

From the Supreme Court’s judgment on 12th June 1967:

In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment….

The Thirteenth, Fourteenth, and Fifteenth Amendments to the US Constitution were adopted in the five years after the US Civil War. The 14th Amendment was adopted on 9th July 1868. Section One says;

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The key quote by the 14th Chief Justice of the Supreme Court, Earl Warren (1891-1974) was:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.

In 1989, Denmark created registreret partnerskab, allowing same-sex couples to legally register their relationships and get most of the legal rights of marriage. In 1993, the Hawaii State Supreme Court found the state’s refusal to grant same-sex couples marriage licenses discriminatory. The case grumbled along for several years with the courts confirming at each stage that there was no valid reason to deny same-sex couples the freedom to marry, until the legal process was blocked constitutionally by referendum and legislation in 1998. (The referendum approved a constitutional amendment granting the Hawaii State Legislature the power to reserve marriage to mixed-sex couples: the legislature passed a law that banned same-sex marriage.) So in 2001, the Netherlands become the first country in the world to lift the ban on same-sex couples marrying – but if not for the horde of American anti-gay marriage campaigners, it might have been the US.

Because of the 1967 decision by the Supreme Court, all the laws against interracial marriages had been struck down at once (some remained on the books for decades afterwards, but they were void). There was not merely a general understanding that states recognise each others marriages, there was a Supreme Court decision hinting strongly that if a state seemed to be discriminating in recognition of marriage in other respects, this would be considered unConstitutional.

So in 1996 the US federal government passed a law, called the “Defense of Marriage Act” (DOMA), which had two significant sections:

Section 2. Powers reserved to the 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 relationship 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.
Section 3. Definition of marriage
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.

Section 2 allowed that no state would have to recognise a same-sex marriage, and Section 3 declared that the federal government would not recognise a same-sex marriage, evem if legally valid in the state in which it was performed.

At the time DOMA was passed, there wasn’t a country anywhere in the world where same-sex couples could marry. In countries where transgendered people could have their legally-recognised gender changed from their original birth certificate to that in which they are living, couples who would be same-sex married couples were required to divorce. In 1996, DOMA was a homophobic flourish which President Bill Clinton, who had claimed in 1993 that he would work for “lesbian and gay equality” was forced to sign by a Republican Congress who were out for his blood.

Since 2001, the ban has been lifted on same-sex marriage in 11 countries round the world – including the US’s neighbours to north and south, Canada and Mexico – and in the US in six states, the Coquille and Suquamish nations, and the District of Columbia.

The Supreme Court of the US, which hears only about 200 cases out of the thousands appealed to it each year, has never yet agreed to hear a case of discrimination by denial of recognition to same-sex marriage.

The constant refrain by supporters of the ban that same-sex couples do not need marriage because same-sex couples “can’t have children” – even though same-sex couples can and do have stepchildren, adopted children, and children via fertility treatment or surrogacy – is sourced not to any religious doctrine but to a legal hope; that a Supreme Court ruling on same-sex marriage will decide that Justice Warren, ruling that the Fourteenth Amendment applied to the Loving marriage, was directly concerned that invalidating their marriage would make Mildred and Richard’s children illegitimate. (A similiar hope, that if the fetus is declared to be a legal person this will overturn the 1973 Roe vs Wade case, causes pro-lifers to stringently uphold the nonsensical idea that a first-trimester fetus is really just the same as a baby.)

Can we trust Professor Lea Brilmayer’s assertion in 2004 that Article 4.1 of the Constitution does not apply to marriage licenses? I don’t know. Her article was undoubtedly inspired by a legal case in Massachusetts, when the Supreme Judicial Court ruled on 17th May that it was unconstitutional to ban same-sex couples from marriage. Although this was the first US state to legalise same-sex marriage, the Netherlands, Belgium, and most of Canada had already lifted the ban on same-sex marriage, and more countries (and US states) were creating legal almost-marriage civil unions for same-sex couples – and demonstrably, despite the wild Chicken-Licken fears that were being promoted then as now, the sky was not falling where same-sex couples could marry. In the eight years since 1996, the world had changed – even more, I think, than it has changed in the 8 years since.

Legal views on the constitutionality of DOMA were generally split on party lines; you might find Democrats supporting it, but never Republicans. If I knew how Professor Brilmayer voted, I would know better whether she was genuinely worried that there was no Constitutional right for marriages to be recognised from state to state – or whether she was promoting the idea that there was not, in the hope of providing a legal argument in defense of DOMA.

There is a current challenge in the Californian courts against the federal government, by Jane DeLeon, an immigrant from the Philippines, her son Martin Aranas, and Irma Rodriguez, a US citizen, arguing that DeLeon and her son would be legal residents if not for DOMA, which mandates that the federal government ignore for immigration purposes the legal marriage between DeLeon and Rodriguez.

In the eight years since Massachusetts became the first state in the US to lift the ban on same-sex marriage (California is still the only state that lifted the ban and then dropped it again six months later):

Several federal court rulings have called into question the constitutionality of DOMA. On May 31, a federal appeals court in Boston found DOMA unconstitutionally denied federal benefits to lawfully married same-sex couples. The ruling is expected to lead to a U.S. Supreme Court decision on DOMA.

But still, no power can force the Supreme Court to hear a case against DOMA unless they decide to do so.

It seems clear at this point (and I have been watching this unfold for over 16 years) that the Supreme Court do not intend to make a ruling on same-sex marriage until they feel confident that the judgement they make will be in line with popular opinion.

Not only is there no legal justification for a ban on same-sex marriage – homophobic bigotry does not stand up well in a witness box – there is no doubt in my mind that a judge accustomed to ruling in family law cases would hate legislation that allows for a couple to be legally married in one part of the US and then to have that marriage automagically disappear in another.

A man who marries another man in New York, and who travels to Virginia regularly on business, could – according to the laws of Virginia – legally marry a woman in Virginia, because the Virginian constitution has been amended (and legislation passed) to declare absolutely void any attempt by a same-sex couple to make any kind of legal relationship that even slightly resembles marriage. The couple in New York could have adopted children together: the couple in Virginia could adopt or have engendered children together: according to the state law of Virginia, the man married in two states is not a bigamist and the children of both marriages are his legitimate children.

Awkward, that.

An unscrupulous lawyer might see this situation only as financial fodder for lengthy court cases; a good judge will see it as a thoroughly messy waste of time when it ought to be simply resolved by saying “You married that one on such-and-such a date, years before you married the other one, so your first marriage is valid, your second marriage is void, and by the way you will now be prosecuted for bigamy, you cheating dickhead.” (Okay, judges don’t usually say the latter except maybe in Australia, but they should.)

Thanks to well-funded anti-marriage campaigns (being “against gay marriage” has become almost as much of a shibboleth for right-wing Christian Republicans as being pro-life) there are multiple states in the US which ban same-sex marriage by the campaign technique currently being attempted in Scotland: getting people to vote on “defending marriage as a lifelong relationship between a man and a woman”.

But, according to opinion polls, in the US as in Scotland, the majority of people across the country actually support the freedom of same-sex couples to marry – including, more and more, the younger generation of right-wing Christian Republicans.

I’ve outlined this in such detail (and do excuse me to any American lawyers reading this if I have got any part of the US law wrong) because we have not, as yet, in the UK, had any experience of a Constitution and a Supreme Court which provides judicial review of constitutional law. The nearest we have to this is the European Court of Human Rights and the European Convention, as discussed yesterday: and whether a country reacts swiftly or ignores the ruling is highly variable.

(Ireland, for example, has faced ECHR rulings against its policy of denying legal abortion to women under any circumstances if they are fit to travel to England, and the Irish government has ignored them all.)

We need judicial independence in the Constitution, and carefully and independently nominated judges to that court. The US system in which the President nominates judge (the executive brand of government, the American equivalent of the Crown powers) means that a Supreme Court justice who wants their replacement to fall Democrat or Republican, must retire when a President of the right party is in power: death of a justice gives a President the right the skew the court towards the decisions he wants it to make.

In principle, this seems simple enough.

In practice, as I’ve seen watching the attempts by LGBT citizens of the US since 1991 (when three same-sex couples sued the Hawaii Director of Health to force the state to issue them marriage licenses) to the present day, it’s taken 21 years and then some – an entire generation of legal striving, just to get nine judges to listen.

The decision in Loving vs Virginia went faster, in part because Justice Warren seems to have been a courageous judge with thorough integrity, but also because the Fourteenth Amendment explicitly prohibits discrimination on grounds of race: it leaves open to judicial interpretation whether it also prohibits discrimination on other grounds. The Loving couple were being discriminated against precisely because he had chosen a black woman and she had chosen a white man, and the Constitution explicitly and definitely was against that since 1868.

The US Constitution does not (just as the Universal Declaration of Human Rights does not) explicitly prohibit discrimination on grounds of sexual orientation or gender identity: the Massachusetts constitution explicitly prohibits discrimination by gender, and the court decision in 2004 ruled that the same-sex couples were being discriminated against because of the gender of the spouse each one had chosen to marry.

The Constitution of South Africa does prohibit discrimination on grounds of sexual orientation, and became the fifth nation in the world (and still the only nation in Africa) to lift the ban on same-sex marriage because the courts ruled the ban unconstitutional.

A Constitution must be a living document. The Scottish Constitution will be written by people of the 20th/21st Century: if we achieve indepdendence, the Constitution may still be law in a hundred years or more. Judicial review is a necessary part of this: but so is honouring the intent of the Constitution to provide equal rights to all – even those who would not have been considered equal at the time the Constitution was framed – and appointing judges with the integrity and courage to go against popular opinion – if necessary – in honouring that intent.

Index of all posts in the Scottish Constitution series
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More on same-sex marriage

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Filed under American, Elections, Scottish Constitution, Scottish Culture, Scottish Politics

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