Yesterday, the same team of attorneys representing the plaintiffs in the Kentucky federal marriage equality cases of Bourke v. Beshear and Love v. Beshear filed a new suit against the governor of Indiana, challenging that state's laws which prohibit same-sex marriage. Though the allegations by the new group of Indiana plaintiffs is nearly the same as those of the Kentucky plaintiffs, the political and legal landscape of the two states is somewhat different. For example:
In Kentucky:
- The governor is a Democrat
- The attorney general is a Democrat
- Democrats control one of the two houses in the General Assembly
- Same-sex marriage is prohibited by both statute and constitutional amendment
In Indiana:
- The governor is a Republican
- The attorney general is a Republican
- Republicans control both houses in the General Assembly
- Same-sex marriage is prohibited by statute only
So what's the most important difference? For the purposes of federal litigation, there is no difference. Both states have laws which restrict marriage on the basis of the spouses' sex. Whether by statute and amendment or just by statute, the legal effect is the same: same-sex couples may not be married in either state and neither state recognizes valid same-sex marriages from other states or countries.
In recent months, a bitter political fight dominated media headlines in Indiana. State legislators were once again attempting to bring a discriminatory constitutional amendment to a statewide vote. Even though a state court case had upheld the existing, statutory same-sex marriage ban, a redundant constitutional amendment still seemed necessary to some. Just as Kentucky legislators did in 2004, Indiana legislators erroneously believed that if they could just enshrine discrimination in the state constitution, they would be insulated from future legal challenges.
Where this belief comes from, nobody seems to know. After all, state laws, whether statutory or constitutional, are never immune from federal legal challenges. The United States Constitution is the supreme law of the land. Article VI of the Constitution contains the Supremacy Clause:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
There is a lot of complicated, confusing, and dated language in the federal constitution. The Supremacy Clause, however, is not complicated or confusing. Where state laws or constitutional provisions run afoul of the U.S. Constitution, the U.S. Constitution wins.
In recent months, six federal courts have ruled that state marriage laws like the statute in Indiana do in fact run afoul of the U.S. Constitution - its Fourteenth Amendment, to be specific. That amendment prohibits any state from denying "to any person within its jurisdiction the equal protection of the laws." Federal judges in Utah, Oklahoma, Ohio, Kentucky, Virginia, and Texas have struck down all or part of those states' same-sex marriage bans because they violate the Fourteenth Amendment. They draw distinctions among citizens and deny legal benefits without any legitimate justification.
The U.S. Supreme Court has long embraced the Fourteenth Amendment's power to defeat even the most popular state laws which discriminate among state citizens. In 1923, the Court struck down a Nebraska law restricting foreign language education in a case called Meyer v. Nebraska. In a 1942 case called Skinner v. Oklahoma, Oklahoma statutes which allowed compulsory sterilization for certain crimes but not for others were similarly declared unconstitutional under the Fourteenth Amendment. It's important to note that the popularity of the statutes was not part of the Court's analysis at all: even the most widely supported law can still be quite unconstitutional.
Much money and political effort has been expended fighting the proposed amendment at the legislative level in Indiana. In the meantime, federal courts have been striking down similar, existing laws in fellow deeply "red" states like Utah, Oklahoma, and Texas. And at least some Indiana legislators admitted that the Bourke v. Beshear ruling in Kentucky put a chill on their plans to push forward with Indiana's proposed amendment. After all, if other state amendments can be defeated with the stroke of a federal judge's pen, so too could be Indiana's.
The simple legal lesson is this: the Indiana legislature can pass literally any state constitutional amendment they want to. And Indiana voters can approve literally any amendment they want to, by even the largest of possible majorities. But if they pass and approve a discriminatory amendment that runs afoul of the U.S Constitution, it will not survive a federal court challenge.
With the marriage equality tide having now fully turned in the federal courts, there is no longer any reason to waste millions of dollars on political fights against discriminatory statutes and amendments. Surely it would be ideal if states didn't pass bad laws in the first place, but there is a far cheaper, simpler way to defeat them than raising and spending millions of other people's dollars in short-sighted political fights. Advocacy and lobbying groups would do well to add constitutional lawyers to their payrolls.
Special thanks to my colleague and co-counsel, Dan Canon, for inspiring this post. He makes the same arguments on Twitter.
