by Peter Sprigg
August 5, 2010
There is much to be said about U.S. District Court Judge Vaughn R. Walkers ruling in favor of same-sex marriage on August 4, and we will have more analysis of the opinion in coming days and weeks.
However, some media outlets have been reporting that this ruling is unprecedented because it is the first time that a federal court has tried to strike down a state marriage amendment on federal constitutional grounds. This is completely untrue. On May 12, 2005, U.S. District Court Judge Joseph F. Bataillon issued a very similar ruling striking down Nebraskas marriage amendment. This ruling, however, did not standit was struck down, unanimously, by a three-judge panel of the Eighth Circuit on July 14, 2006.
The Eighth Circuit, like a majority of courts that have ruled on this issue (including the state Supreme Courts of New York, Washington, and Maryland), declared that the states interest in promoting responsible procreation provided a rational basis for distinguishing between opposite-sex and same-sex couples in the definition of marriage. Yet Judge Walkers decision dismissed this compelling argument with the casual observation, Never has the state inquired into procreative capacity or intent before issuing a marriage license.
The Eighth Circuits ruling explains why this is not a compelling argument for mandating same-sex marriage. Excerpts are below (citations omitted):
The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in steering procreation into marriage. By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws encourage procreation to take place within the socially recognized unit that is best situated for raising children. The State and its supporting amici cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children … . But it is also based on a responsible procreation theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. Whatever our personal views regarding this political and sociological debate, we cannot conclude that the States justification lacks a rational relationship to legitimate state interests.
Even if the classification … is to some extent both underinclusive and overinclusive, and hence the line drawn … imperfect, it is nevertheless the rule that … perfection is by no means required. Legislatures are permitted to use generalizations so long as the question is at least debatable. The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of other purposes. The legislature — or the people through the initiative process — may rationally choose not to expand in wholesale fashion the groups entitled to those benefits.
We hope that the Ninth Circuitand/or the Supreme Courtwill follow this reasonable precedent.