Vol. 10 No. 1 (January 2000) pp. 31-33.

THE CHALLENGE OF SAME-SEX MARRIAGE: FEDERALIST PRINCIPLES AND CONSTITUTIONAL PROTECTIONS by Mark Strasser. Westport, CT: Praeger Publishers, 1999. 272 pp. Cloth $59.95.

Reviewed by Staci L. Beavers, Department of Political Science, California State University San Marcos.

The day I sat down to read this book was the day Vermont's Supreme Court announced in BAKER v. STATE (1999) that the state's constitution guarantees to same-sex couples the same "benefits and protections" as married couples. The state's legislature must now decide if Vermont will be the first state to legalize same-sex marriages. I was already eager to read Mark Strasser's THE CHALLENGE OF SAME-SEX MARRIAGE: FEDERALIST PRINCIPLES AND
CONSTITUTIONAL PROTECTIONS. My timing simply brought home to me particularly forcefully the relevance of this work. What Strasser provides
here is an extensive critique of the constitutional legitimacy of policies restricting same-sex marriages. His argument is that such policies are fatally flawed in many respects. Although the book is aimed at those well versed in legal reasoning (some background in contracts and family law would even be helpful), it would be a good read for anyone interested in the issue of same-sex marriage as a new frontier of civil liberties and civil rights law as well as anyone interested in the implications of federalism for individual rights.

The campaign to legalize same-sex marriages scored its first victory with BAEHR v. LEWIN (1993), in which a plurality of Hawaii's highest court suggested that a STATE CONSTITUTION'S equal protection clause might protect the right of same-sex couples to marry. Although this decision was nullified by a 1998 constitutional amendment, it sparked a national debate. The BAEHR decision made many realize for the first time that, under the American federal system, once a single state validates same-sex unions and allows such marriages to be performed within its jurisdiction, each of the other states will be forced to determine whether it will honor these marriages. Congress weighed in with the Defense of Marriage Act in 1996. This legislation declared only opposite-sex marriages to be valid for
purposes of federal law and allowed states to refuse recognition to any same-sex marriage, "even if validly celebrated in another state" (p. 187). Numerous states now have policies restricting the rights of same-sex couples to marry. In 1998, for example, voters in both Hawaii and Alaska amended their respective constitutions specifically to override lower state court decisions definitively supporting the right of same-sex couples to marry under state constitutional law.

Strasser, of course, examines the Hawaii and Alaska constitutional decisions, but the focus of this book is on federal constitutional principles and arguments. For example, Chapters 2 and 3 argue that state policies restricting same-sex marriages (specifically the Hawaii and Alaska constitutional amendments) violate the Fourteenth Amendment's Equal Protection

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clause. Following the lead of the Hawaii and Alaska courts, Strasser views bans on same-sex marriage as a form of gender discrimination, in that an individual's choice of a marital partner will be restricted on the basis of his or her gender. He quotes the Alaska district court decision in BRAUSE v. BUREAU OF VITAL STATISTICS (1998): "'[I]f twins, one male and one female, both wished to marry a woman and otherwise met all of the [state] Code's requirements, only gender prevents the twin sister from marrying under the present law.'" If this premise is accepted, according to Strasser, such restrictions should be and likely would be struck down under a Fourteenth Amendment "heightened scrutiny" analysis.

As an apparent back-up position, Strasser goes on to argue that such laws should fall even under the more lenient "rational basis" test. Here Strasser relies heavily on ROMER v. EVANS (1996), in which a rational basis analysis was utilized by the Supreme Court to strike down Colorado's Amendment 2. This amendment denied all state civil rights protections to gays, lesbians, and bisexuals; the Court determined that the amendment was too broad and was the result only of sheer "animus" towards these groups. In Strasser's view, only animus stands behind bans restricting same-sex marriage, thus requiring their invalidation. Unfortunately, Strasser may be too quick to dismiss potential arguments a state could utilize in defending a same-sex marriage ban. In particular, the Supreme Court's reasoning in BOWERS v. HARDWICK (1986), in which the court upheld the application of sodomy laws specifically against homosexuals, should be addressed more thoroughly. Strasser appears to deliberately overlook, or at least minimize, the realm of discretion BOWERS may still allow to the states to make distinctions based on sexual orientation (pp. 17-18). Although the majority opinion in ROMER managed never even to mention the BOWERS precedent, the scope of BOWERS will no doubt come back to haunt the Court if the question of the legal sanctioning of same-sex relationships comes squarely before it, particularly if the Court continues to utilize the rational basis analysis for orientation discrimination that it put to use in ROMER.

The most enlightening and the most difficult chapters of the book are those focusing on the complexity of Full Faith and Credit issues (chapters 5 and 6). Article IV, Section 1 of the U.S. Constitution declares that, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other state." Yet states retain some discretion to deny recognition to marriages conducted elsewhere if such marriages breach their own "important public policies" (pp. 112-114). For example, a state of residence can deny recognition to an incestuous marriage, say, between two first cousins, even if it were legitimately
entered into in a second state under the second state's own laws. Interestingly, in spite of giving such careful attention to jurisdiction and "choice of law" issues, one potentially significant issue that Strasser never addresses head-on is that of commuter relationships, in which each partner may be a legal resident of a different state. In such a situation, which state's laws should apply to determining marital status?

However, the primary argument to which Strasser is leading with this discussion is his assertion that, at most, ONLY a couple's state of residence when a marriage is performed has the option of refusing recognition to a marriage breaching its own "important public policy." Later states of residence, he argues, are generally obligated to

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honor pre-existing marriages (p. 114). Although potential exceptions to this requirement exist for those pre-existing marriages contrary to the "law of nature," under current precedents these include only "polygamous and certain incestuous relationships" (p. 137). Thus, Chapters 6 and 7 give considerable attention to disputing claims that same-sex marriages should also fall under the law of nature exception by comparing them as closely as possible to interracial marriages, protected under the Fourteenth Amendment since LOVING v. VIRGINIA (1967), and distinguishing them as far as possible from polygamous and incestuous unions.

The final chapter of the book is devoted to arguing the constitutional infirmities of the Defense of Marriage Act (DOMA). The DOMA is argued to offend a variety of constitutional protections, including the Equal Protection, Due Process, Privileges and Immunities, and Bill of Attainder clauses. Perhaps the most convincing of his arguments is that federal the law denies Equal Protection, in that it denies federal recognition (and thus any potential federal benefits) only to those validly married couples (as defined by their own states' laws) that happen to be comprised of same-sex partners (pp. 199-201).

In sum, this is a work of complex and compelling arguments that deserves attention not only by scholars interested in sexual orientation as a new frontier of civil liberties and civil rights law, but also by anyone interested in the implications of federalism for family law and individual rights policies. It is indeed heavy reading, but it's worth the effort, since this issue is not likely to be settled anytime soon.

CASE REFERENCES:

BAEHR v. LEWIN, 852 P.2d 44 (Haw. 1993).

BAKER v. STATE, 1999 LEXIS 405 (Vt. 1999).

BRAUSE v. BUREAU OF VITAL STATISTICS, 1998 WL 88743 (Alas. Super. Ct.), at
*6 (1998).

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

LOVING v. VIRGINIA, 388 U.S. 1 (1967).

ROMER v. EVANS, 517 U.S. 620 (1996).