Defense of Marriage Act Unconstitutional
write with regard to Ohio House Bill 234, which will go to the floor
for a vote soon. This Bill purports to proscribe same-sex
marriages by declaring that they are against the strong
public policy of the state. This Bill evinces a strong animus
towards gays, lesbians and same-gender couples. It is precisely
this sort of animus which the Supreme Court condemned in Romer v.
Evans (1996). The court there considered Colorados Amendment
2, an initiative which sought to prohibit local governments
from granting protected status to homosexual or
bisexual persons. The Supreme Court held that Amendment 2s
status-based classification is unprecedented in our jurisprudence
and violative of equal protection. A law declaring that in
general it shall be more difficult for one group of citizens than
for all others to seek aid from the government is itself a denial
of equal protection of the laws in the most literal sense. The
guarantee of equal protection of the laws is a pledge of the protection
of equal laws.
[I]f the constitutional conception of equal protection
of the laws means anything, it must at the very least mean
that a bare . . . desire to harm a politically unpopular group cannot
constitute a legitimate governmental interest. House
Bill 234 is unconstitutional as it is not rationally related to
any legitimate governmental interest and simply reflects an intense
form of anti-gay animus. First, the Bill would deny gay and lesbian
relationships First Amendment protection. The legislature has no
power to regulate interpersonal associations such as same-gender
unions which fall within the right to privacy.
The right to privacy and to individual autonomy are the basis on
which our constitutional order is built. These rights were hard-won
in our struggle against England and indubitably apply to all citizens.
(U.S. Const., Amends. I and XIV.) Even if same-sex marriages are
without legal effect, same-gender relationships are entitled to
legal protection as private associations. (Eisentadt v. Baird).
The state cannot blithely invade or infringe upon these critical
avenues of individual self-expression and realization. Otherwise,
the state could dictate how we the people live our lives and prescribe
certain appropriate religious, political and social
beliefs. We value individual autonomy too much to grant that kind
of power to imperfect political insitutions.
Additionally, the Bill violates contemporary moral intuitions by
singling out gay/lesbian relationships. We have learned the hard
way that intolerance and bigotry lead to hate crimes, lynchings
and mass murder. The death of Matthew Shepard is only one in a long
line of politically motivated anti-gay crimes. Yet the Bill would
grant credence to and revive outdated social prejudices. These prejudices
were used by the Nazis during the Holocaust and continue to find
a home in far-right circles. Our society has come too far for us
to go back in the fight against fascist and anti-egalitarian ideologies.
Further, the Bill violates the Full Faith and Credit Clause by refusing
to recognize the laws of our sister states. (H.B. 234) (C)(4). Although
Ohios legislature may disagree with Vermonts law recognizing
civil unions, Ohio courts are required to grant full faith
and credit to Vermont law in instances where Vermont law supplies
the law of decision. Ohio courts cannot arbitrarily negate Vermont
law or pick and choose where it applies. That result would certainly
be inconsistent with our federal system and its inter-state compact.
Finally, there is no need for the Ohio legislature to declare that
same-sex marriages are invalid; they already are. Therefore, H.B.
234 is simply declarative and has no positive legal force. Accordingly,
H.B. 234 is not just unconstitutional but unnecessary. The legislature
should withdraw H.B. 234 and focus its efforts on more pressing
national problems such as terrorism.
University of Michigan