A South Carolina Same-Sex Marriage Challenge, and Predictions as to the Outcome of Future Litigation in This Area
At the end of August, two South Carolina women who were legally married in Washington, D.C., filed a lawsuit in the U.S. District Court for South Carolina asking the court to strike down that state’s laws and constitutional provisions banning the recognition of same-sex marriages. The lawsuit followed closely on the heels of the decision by the U.S. Supreme Court in United States v. Windsor, where that Court struck down part of the federal Defense of Marriage Act (DOMA) defining marriage, for federal purposes, as between a man and a woman.
In this column, I briefly describe the facts and arguments of the South Carolina case, Bradacs v. Haley, and I contrast it to a similar lawsuit in Ohio, Obergefell v. Kasich. I argue that while some of the arguments made in Bradacs are on tenuous legal ground, one of its arguments is ultimately likely to succeed: the argument based on an equal protection claim on the basis of sexual orientation. In conclusion, I look to other states’ domestic relations laws to predict other venues where legal challenges to same-sex marriage prohibitions will likely succeed.
The Facts and Arguments in Bradacs v. Haley
Plaintiffs Katherine Bradacs and Tracie Goodwin are both residents of South Carolina. In 2012, they traveled to Washington D.C. to get married, as same-sex marriages may be legally performed there. South Carolina’s laws and constitution (known colloquially as mini-DOMAs) prohibit the recognition of their marriage, and of all same-sex marriages. The state’s authority to do so ostensibly comes from Section 2 of DOMA, which permits states to decline to recognize same-sex marriages that are valid elsewhere. (I do not address here the argument that states would be permitted to do so even without the federal law basis articulated in DOMA Section 2, an argument some have made.)
Bradacs’s and Goodwin’s lawsuit relies heavily, though not entirely, on the U.S. Supreme Court’s decision in United States v. Windsor. Their arguments are that South Carolina’s law and its state constitutional provisions violate the following provisions of the federal Constitution:
- The Due Process Clause
- The Equal Protection Clause (on the basis of sexual orientation)
- The Equal Protection Clause (on the basis of sex)
- The Full Faith and Credit Clause
The equal protection claim on the basis of sexual orientation is their strongest of these arguments, as its basis is solidly within the holding in Windsor. That decision directly supports the plaintiffs’ arguments that South Carolina cannot constitutionally enact a law that “give[s] effect to private biases” and that there is no legitimate basis for discriminatory treatment of lesbians and gay men. Because these arguments nearly trace the logic and language of Windsor, they are the plaintiffs’ most persuasive ones here.
Although the due process claim may have merit, a district court is unlikely to rule in the couple’s favor on that basis, because relevant legal precedents are scarce. The landmark decision in Lawrence v. Texas was based on due process, but courts have consistently avoided holding that there is a due process right to same-sex marriage. Although the right to marriage is well-established, courts have avoided issuing rulings as to whether that right includes the right to same-sex marriage.
Likewise, as reasonable as it may sound, the equal protection claim of discrimination on the basis of sex is unlikely to persuade the district court in the South Carolina district court case. Undoubtedly, a law discriminates on the basis of sex if it treats a woman who marries a woman differently from a woman who marries a man, but courts have been loath to classify discrimination based on sexual orientation as a form of sex discrimination. Although it seems like a completely logical argument to me (and to many other advocates), the unwillingness of courts to embrace the argument indicates that this argument will likely not succeed in this case.
Similarly, the full faith and credit argument seems reasonable on its face, but I believe it, too, is unlikely to persuade the court. The Full Faith and Credit Clause provides as follows:
Full faith and credit ought to be given in each state to the public acts, records, and judicial proceedings, of every other state; and the legislature shall, by general laws, prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect which judgments, obtained in one state, shall have in another.
Supreme Court jurisprudence on the matter has established that a state may cite its own public policy as a valid reason not to afford full faith and credit to the acts or records of another state, but there is no public policy exception for judgments that have been properly rendered by a court of another state. Of course, a state’s unconstitutional public policy does not permit it to withhold the full faith and credit that is due to another state’s laws, but to date no state prohibition on same-sex marriage has been held explicitly to be unconstitutional. Nor has any court ever held that a state must recognize a marriage from another state. The Full Faith and Credit Clause argument is strongest when there is a judicial decision, such as with an adoption decree, but different courts have come to different conclusions in arguably comparable situations.
Because the law is so unsettled with regard to this issue, I find it unlikely that the district court will be persuaded by the full faith and credit argument.
Comparing Bradacs to Obergefell
Another recent lawsuit challenging a state law banning same-sex marriages has some similarities to, and differences from Bradacs. I described that case, Obergefell v. Kasich, in greater detail in a prior column, but the gist of the arguments there is that Ohio treats same-sex couples who were married outside the state differently from the way in which it treats different-sex couples who were married outside the state, in violation of equal protection.
Both Bradacs and Obergefell reference marriages between first cousins as one example of how their respective states treat out-of-state marriages differently based on the sex. The basic equal protection argument goes like this: If State X chooses to recognize certain out-of-state marriages that State X itself does not permit within its borders, then it cannot arbitrarily single out out-of-state same-sex marriages for different treatment under its laws. Following Windsor, to do so would violate the Constitution’s equal protection guarantee.
While the plaintiffs’ arguments in Obergefell focus on this disparate treatment to support its equal protection claim, the arguments in Bradacs seem to take a more “shotgun” approach.
Notably, Ohio law does not permit first cousins to marry, but it does not contain any prohibitions voiding such marriages if they were performed in another state. Nor does Ohio law contain a provision voiding marriages that were entered into in another state with the intent of evading Ohio marriage laws.
In contrast, South Carolina law does not prohibit first cousins from marrying, despite a claim in the complaint to the contrary. This difference is certainly not fatal to the plaintiffs’ claims, but it does make their argument more difficult to put forward.
Extrapolating From First Cousin Laws
Given that both Bradacs and Obergefell raise interesting questions about a state’s decision whether to grant or recognize marriages between first cousins, one may be able to predict other states where that argument may carry weight. The pattern to look for is states that prohibit first-cousin marriages within its borders, yet recognize those marriages if performed in a state where they are legal.
Of the twenty-six states that prohibit marriages between first cousins from being performed within the state, four permit such marriages to be recognized if the cousins were married in another state where their marriage was legal: Idaho, Ohio, Texas, and West Virginia. All of these states also explicitly prohibit the performance and recognition of same-sex marriages.
Idaho recognizes all of out-of-state marriages that do not violate the state’s public policy, as well as those that were entered into with the intent to evade the prohibitions of its marriage laws. Although it does not permit them, Idaho does not state that marriages between first cousins are contrary to its public policy. In Texas, marriages are presumed valid unless there is a strong policy reason for holding the marriage void or voidable. Although Texas does not permit marriages between first cousins, it does recognize such marriages if they were valid where they were performed. West Virginia recognizes valid out-of-state marriages between first cousins, so long as the marriage was not entered into with the intent to evade the state’s own prohibition on such marriages.
Given that the Obergefell decision challenges the Ohio marriage laws that match this pattern, we might anticipate similar challenges to be raised in the three other states with similarly structured laws. Although this analysis does not consider the laws surrounding marriageable age in each state, a similar analysis could yield additional states where this type of litigation is likely to arise and succeed.
Although predicting lawsuits is not a very productive pastime, state-law patterns can be helpful when equivalent state laws are successfully challenged elsewhere. With the Supreme Court’s decision in Windsor ostensibly having done the major lifting, we can only hope to see continual chipping away of discriminatory laws in states across the nation.