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Common Attacks Against Marriage Amendments
written by: admin

Date Written: 5/1/11 Last Updated: 3/2/15

Attacks on state marriage amendments seem to come in just a few different formats, but they are often, if not always, reported or presented as new.  "This marriage amendment has never been attacked this way before!"  If a marriage amendment is being attacked it might be informative to read some of the cases below to see what the likely outcome will be.

  1. Marriage Amendment improperly placed before voters.  Wisconsin, Louisiana, California
  2. Marriage Amendment violates equal protection (14th amendment) ref.  Nebraska, California, Texas
  3. Marriage Amendment violates first amendment and penalizes homosexuals.  Nebraska
  4. Marriage Amendment has no weight if unenforced.  California

(Equal Protection, Free Speech)
Citizens for Equal Protection v. Bruning

Federal judge Joseph Bataillon ruled on 5/12/05 that the state's constitutional amendment limiting marriage to one man and one woman and excluding anything similar to it was unconstitutional.

"However characterized, the court finds that the deprivation occasioned by the passage of Section 29 is the deprivation of the right to associational freedom protected by the First Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution and the right to petition the government for redress of grievances, which encompasses the right to participate in the political process, also protected by the First Amendment."

Joseph Bataillon
Citizens for Equal Protection v. Bruning

The equal protection clause is section 1 of the fourteenth amendment.  If you want to read more about the history of this case in detail go here.  It then went to the 8th circuit court of appeals where U.S. District Judge Joseph Bataillon's ruling was overturned.  

Chief Judge James Loken of the 8th Circuit court wrote

"the political harm to appellees' members is not punishment in the functional sense because it serves the nonpunitive purpose of steering heterosexual procreation into marriage, a purpose that negates any suspicion that the supporters of [the amendment] were motivated solely by a desire to punish disadvantaged groups.  While voting rights and apportionment cases establish the fundamental right to access the political process, it is not an absolute right.  In a multi–tiered democracy, it is inevitable that interest groups will strive to make it more difficult for competing interest groups to achieve contrary legislative objectives."

Chief Judge James Loken
Citizens for Equal Protection v. Bruning

In 2015 U.S. District Judge Joseph Bataillon redefines marriage again ref.  The 8th Circuit is currently hearing similar appeals from Missouri, South Dakota, and Arkansas where marriage amendments were overturned.

(Improperly placed before voters.)

The Louisiana marriage amendment was overturned on 10/5/04, just 2 weeks after it was approved by voters.  District Judge William Morvant claimed that it put two amendments to voters; one banning same sex marriage and another banning civil unions.  

The Louisiana state Supreme Court on 1/19/05 reversed Morvant's decisions stating
"each provision of the amendment is germane to the single object of defense of marriage and constitutes an element of the plan advanced to achieve this object."


(Same Sex Divorces)

District court judge Tena Callahan rules that the state's marriage amendment violates the equal protection clause of the 14th amendment.  This was appealed by the state attorney general to the 5th court of appeals of Texas where the "divorce" was overturned.  

In an opinion written by 5th court of appeals justice Kerry Fitzgerald on 8/31/10 he comments on the equal protection argument and more.  PDF ref

Like the Maryland court in Conaway,

"We are not persuaded that gay, lesbian, and bisexual persons are so politically powerless that they are entitled to extraordinary protection from the majoritarian political class."

In regards to Loving v. Virginia where the appellee equates the right to marry someone of his choosing
"The Loving opinion's discussion of the right to marry does not embrace the broad formulation proposed by the appellee." p.28

In regards to the motive of the marriage amendment by Texas voters
"Texas law recognizes that only opposite–sex couples are naturally capable of producing children, and it gives participants in that kind of relationship the option of legal formalization, with the legitimate, legislative goal of encouraging such formalization and thereby promoting the well–being of children." p.33

He goes on to say that in Lawrence v. Texas
But the Lawrence court expressly recognized that case did not involve "whether the government must give formal recognition to any relationship that homosexual persons seek to enter." p.37

response from homosexual activist community here

The Texas Supreme Court has since been petitioned to hear the case.

(What if the state refuses to defend the law?)
The arguments here are very similar to those in Texas above, but nearly all of the supporting cases typically used were thrown out.  What makes this case different is that the defendants have abandoned the case leaving the voters with apparently no one to defend the case.  This case is ongoing.  

See prop.8 timeline

Repeal DOMA?
DOMA –– Defence of Marriage Act This law states that the U.S. government recognizes marriage as the union of a man and a wife of the opposite sex.  No state shall be required to recognize a same sex marriage from another state.

Massachusetts was the first state to recognize same sex marriage.  The state has been attempting to force all other states to recognize same sex marriage as well, by repealing DOMA.  see Gill v. Office of Personnel Management.

Section 3 of DOMA was declared unconstitutional by the U.S. Supreme Court ref.

Commonly referenced U.S. Supreme Court court cases
Lawrence v. Texas (2003)
Baker v. Nelson (1972)
Loving v. Virginia (1967)
Romer v. Evans (1996)

Laws made to counter marriage amendment

Wisconsin and Ohio create marriage registries ref, ref2.  These states have marriage amendments that forbid the recognition of anything substantially similar to marriage.

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