ACLU Opens Up a New Front in the Battle for Equal Rights for Same-Sex Couples

Today the ACLU announced new test-case litigation in Montana, seeking a court order to the state to establish a domestic partnership system for same-sex couples.  This was the first affirmative test-case state constitutional litigation to be filed in a state that has an anti-gay marriage amendment in place specifically seeking an equal status to marriage for same-sex couples.  It marks a new approach that might be portable to some of the other states with anti-gay marriage amendments.

A successful effort on a smaller scale was tried in Alaska more than a decade ago in the wake of that state's passage of an anti-marriage amendment, but the litigation was focused narrowly on domestic partner employee benefits.  The Montana case seeks full state-law marriage rights, benefits, responsibility and status in the form of an equivalent legal status.  A similar effort will be initiated in Hawaii, in the wake of Governor Linda Lingle's veto of the civil union bill that the legislature recently approved.

The first wave of marriage cases, brought by private plaintiffs beginning in the 1970s, sought rulings that the federal constitution required states to open up their marriage laws for same-sex couples. All of these cases crashed and burned. 

The second wave, launched with the Hawaii case, used many of the same legal arguments (equal protection and due process) but were based solely on state constitutions.  This was necessary because the second wave post-dated Bowers v. Hardwick, the Supreme Court's Georgia sodomy law decision, which posed what appeared to be an insurmountable barrier to raising same-sex marriage claims under the federal constitution.  Successful litigation in Hawaii -- a trial judge ruled on remand from the state supreme court that same-sex couples were entitled to marry -- provoked a state constitutional amendment taking the issue away from the courts.  A similar trial-level success in Alaska also provoked a constitutional amendment, which embedded a different-sex definition of marriage in that state's constitution.

The second wave ultimately achieved more permanent success -- first in Vermont, with a ruling that the deprivation of rights involved in the exclusion from marriage violated state constitutional rights of same-sex couples, but that the remedy was up to the legislature - which opted for civil unions.  Just a few years later, however, spiritually bolstered by the recent Supreme Court ruling in Lawrence v. Texas that overruled Bowers v. Hardwick, the Massachusetts Supreme Judicial Court ruled that same-sex couples were entitled to be married under the Massachusetts constitution.  The marriage right was incomplete, of course, because the federal Defense of Marriage, enacted in 1996 in response to the Hawaii litigation, precluded federal recognition of same-sex marriages and purported to excuse states from any federal constitutional obligation to recognize same-sex marriages contracted outside their borders.

In the onslaught of state constitutional litigation that followed the Massachusetts victory, the results have been mixed.  Cases that were brought as carefully constructed test cases by the leading LGBT litigation groups were successful in New Jersey, Connecticut, and Iowa, resulting in civil unions in the first state and marriage in the other two -- with New England marriage fever extending legislatively to Vermont (upgrading from civil unions) and New Hampshire and Maine -- although Maine voters then repealed the legislature's action before it could go into effect with a repeal referendum (that did not enact a constitutional amendment).  Cases that were bought quickly in response to popular pressure were mainly unsuccessful, with narrow state high court losses (and passionate dissents) in New York, Oregon, Washington State and Maryland.  Although the California litigation resulted in a state high court victory, it was quickly overruled by a constitutional amendment, which is now under federal constitutional attack in the district court in San Francisco. 

Meanwhile, several jurisdictions, inspired by the spread of litigation, went part of the way by enacting some rights for same-sex couples legislatively, among them Colorado, Nevada, and Wisconsin.  Hawaii's legislature passed a civil union bill that was vetoed by the governor.  And some states where litigation did not prevail enacted domestic partnerships that came close to providing the state law rights of marriage: California, Oregon, Washington.

Opponents of same-sex marriage were quite busy opposing these lawsuits, but they were also busy pushing preemptive measures - state Defense of Marriage acts and state constitutional amendments.  Some of the state constitutional amendments were narrowly focused on marriage, reserving it for different-sex couples.  Others went further, outlawing any kind of marriage-like status for unmarried couples.

Thus, the situation we face now is that many states have constitutional amendments barring same-sex marriage, some of which go further and appear to ban civil unions or domestic partnerships also.  While state constitutional marriage litigation can still be attempted in states with mini-DOMAs that don't have constitutional amendments, what can be done for same-sex couples in states with the amendments?  (This is, of course, barring a federal constitutional breakthrough, which might come a few years down the line when appellate courts rule on the lawsuits challenging DOMA in Boston and California Proposition 8 in San Francisco.) 

The ACLU's latest answer, announced today, presages the third wave of litigation. In states where marriage is precluded by constitutional amendment, sue for equal status domestic partnerships or civil unions, resting on the proposition that the anti-gay marriage amendments did not otherwise affect the ability of gay couples in those states to demand equal protection and due process protections. On this view, the marriage amendments merely limits the remedy that might be judicially imposed for an equality violation.  In Montana, where today's suit is filed, the state constitution provides multiple theories of relief: equal protection, right to privacy, dignity, and the pursuit of life's basic necessities, and due process.

The ACLU has carefully put together a group of test case plaintiffs, seven long-term same-sex couples, some of whom have raised children together and are now grandparents, all of whom jointly own homes, many of whom have actually encountered problems due to the lack of state law recognition of their relationships, some of whom have had ceremonies to mark their relationship, and it has brought suit in a state where the supreme court has been notably progressive on some social issues.  Thus, the litigation has a good chance for success.  What would be gained?  While domestic partnership or civil unions fall short of the full equality provided by marriage, they are better than nothing and, in fact, provide substantial benefits for those who seek to register their unions.  And there is always the possibility that civil unions could lead to marriage, as has happened in Vermont and Connecticut and almost happened in California (where it might happen yet, depending on the outcome of the Perry v. Schwarzenegger lawsuit). (A motion is pending in the New Jersey Supreme Court seeking a judicial upgrade from civil unions in a state that has not adopted a marriage amendment.)

The ACLU is partnered in the suit with pro bono counsel from Morrison & Foerster's San Francisco office and local counsel from Goetz, Gallik & Baldwin in Bozeman, Montana.  The case is brought in Montana's First Judicial District, Lewis and Clark County.  It will be interesting to see how the state responds, inasmuch as attempts to enact domestic partnership laws have so far failed to get out of legislative committees.  Should this effort be successful, a road lies ahead for similar litigation in other states with narrow anti-marriage amendments, and perhaps even a foray into states with broader amendments.  The Hawaii litigation mentioned above should be filed shortly.

[Note: This post has been modified from its original form in response to a comment received concerning the Alaska case.]

Comments

[Nick]

A minor correction:

This is NOT the first case seeking rights to have been brought brought after the passage of an anti-gay marriage amendment.

Alaska CLU v. Alaska was successful using this strategy -- and, if you look at the opinion, was successful to some extent because of the existence of the constitutional amendment. Of course, Alaska CLU only asked for benefits for the domestic partners of public employees.

Similarly, the pending litigation that ACLU LGBT Project and Lambda Legal have promised in Hawai'i will take a similar approach.

Ultimately, this strategy, while sound, has only a limited application. There are few states with "marriage-only" amendments, and many of them (California, Nevada, Oregon) have already moved to provide relationship recognition in some form.

[Art Leonard]

You are absolutely correct, and I have modified my original post accordingly. This strategy of using a state constitution's equality requirements after the enactment of a marriage amendment was successfully used in Alaska to get domestic partnership benefits for same-sex partners of public employees. What I should have said was that this is the first suit on file seeking full legal equality to marriage under state law for same-sex couples, regardless whether they are state employees. I have amended my post accordingly.

As to Hawaii, my understanding is that the suit there is still under preparation, although the intent to file it was announced directly after the governor's veto of the civil union bill.