2/27/22: The U S Supreme Court issued a unanimous decision that the 19th Amendment had been appropriately made part of the U S Constitution. Given how women had voted in 1920 as a result of the Amendment, this case might seem like no more than a footnote to history, perhaps worthy of mention in a comment on an open thread, not of an entire diary.
I am not a lawyer, merely a teacher of government to high school students. Thus what I am about to say should perhaps be regarded with some skepticism.
I will argue that part of the reasoning in the Court's UNANIMOUS opinion carries some interesting weight on the issue of gay marriage. The relevant material deals only with Constitutional amendments, but I perceive more than a glimmer of relevance. It may be also worthwhile seeing how far opponents of progress were willing to go.
I invite you to continue reading about this case, about which unless you are a legal specialist, an historian who specializes in the relevant material, or simply a Supreme Court junkie (I fall partially in the final category) you have prior to this diary never heard.
I will draw my material primarily from this link which provides the syllabus and the opinion (written by Justice Louis Brandeis, first Jewish member of SCOTUS).
The case came from Maryland. Quoting from the Syllabus,
A suit by qualified voters of Maryland to require the Maryland Board of Registry to strike the names of women from the register of voters upon the grounds that the state constitution limits the suffrage to men and that the Nineteenth Amendment to the federal Constitution was not validly adopted is maintainable under the Maryland law, and raises the question whether the Nineteenth Amendment has become part of the Constitution.
The petitioners had lost in trial court in the state of Maryland, whose constitution limited suffrage to men, and whose legislature had refused to ratify the 20th Amendment. Maryland's law allowed a suit against the Board of Registry, which had accepted the registration of the women. The state's Court of Appeals (highest court) had upheld the judgment of the trial court, and while SCOTUS rejected appeal on the basis of a writ of error, it agreed to take the case on a writ of certiorari.
Whether the Nineteenth Amendment has become part of the federal Constitution is the question presented for decision.
I am going to examine the issues addressed by the Court slightly out of order, leaving the first - the one I think most relevant for our attention - until last.
One contention raised by the petitioners was a states rights argument. In accepting the registration of the women, the Secretary of State of Maryland had noted that 36 states had duly ratified the Amendment. Petitioners argued that a number of those states had constitutional provisions which prevented their legislatures from being able to ratify the Amendment. While Brandeis' opinion does not list those provisions (which apparently were things like Maryland's limiting suffrage to men), Brandeis makes clear that the issue is irrelevant:
But the function of a state legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution, and it transcends any limitations sought to be imposed by the people of a state.
It would seem to me that any first year law student would have recognized the weakness of this line of argumentation because of the Supremacy Clause in Article VI:
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, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
In one of the cases Brandeis cites as precedent, Hawke v Smith, 253 US 221, the Court had ruled that the function of a state legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing such amendments, is a federal function, derived not from the people of that state, but from the Constitution.
Petitioners had further argued that two of the 36 states, TN and WV, had ratifying resolutions had been adopted in violation of the legislative procedures of the two states. Brandeis notes that this issue is moot, because two other states had subsequently ratified the Amendment, thereby guaranteeing the 36 necessary for the 3/4 approval. Nevertheless the Court chose to address this issue in order to prevent it from again being raised. The certification of the appropriate authorities that proper legislative procedures have been followed is a matter to which Courts give great deference. In this case, Brandeis wrote specifically
The proclamation by the Secretary certified that, from official documents on file in the Department of State, it appeared that the proposed amendment was ratified by the legislatures of 36 states, and that it "has become valid to all intents and purposes as a part of the Constitution of the United States." As the Legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so, was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts.
Petitioners primary argument was on the matter of the content of the Amendment, specifically the large expansion of the electorate by allowing women to vote. Let me offer how Brandeis addresses this:
The first contention is that the power of amendment conferred by the federal Constitution and sought to be exercise does not extend to this amendment because of its character. The argument is that so great an addition to the electorate, if made without the state's consent, destroys its autonomy as a political body. This amendment is in character and phraseology precisely similar to the Fifteenth. For each, the same method of adoption was pursued. One cannot be valid and the other invalid. That the Fifteenth is valid, although rejected by six states, including Maryland, has been recognized and acted on for half a century.
I will return to this point anon.
Petitioners tried to undercut the reliance upon the 15th Amendment, arguing that its adoption was under unusual circumstances not applicable to the 10th. Brandeis dismisses that with one sentence:
The suggestion that the Fifteenth was incorporated in the Constitution not in accordance with law, but practically as a war measure which has been validated by acquiescence, cannot be entertained.
Let's return to the key issue, that of the content of the Amendment. Brandeis and the Court are quite clear - the issue has already been addressed with the 15th Amendment, ratified in a similar fashion to the 19th, an Amendment that also massively changed the nature of the electorate. That Maryland and and five other states had rejected it did not make it any less a part of the US Constitution. Any constitutional issue had been resolved both in the ratification of the 15th and in its acceptance during a period of half a century.
How is this relevant to the issue of gay marriage? In Loving v Virginia, 388 US 1, the Supreme Court ruled that Virginia's statutory scheme to prevent marriages between persons solely on the basis of racial classifications held to violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Allow me to explore that decision just a bit.
The Supreme Court noted in Loving that while the state court is no doubt correct in asserting that "marriage is a social relation subject to the State's police power," Virginia did not - and could not - contend that "its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment." Instead the state attempted to argue there was no equal protection violation because whites and blacks were punished equally for violation of the anti-miscegenation laws. Chief Justice Warren, writing for a unanimous Court, rejected this arguments, writing
There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
By 1967 the Warren Court had a long record of stripping away long-standing legal justifications for racial discrimination of any kind. How then can I extend the arguments on gender in Leser and those on race in Loving to gay marriage?
Near the conclusion of the opinion, Warren wrote
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.
Now, those words are clarified with further references to matters of race, and one might further argue that the reference to existence and survival apply specifically to the production of children.
But then let us consider one additional case, LAWRENCE ET AL. v. TEXAS 539 U.S. 558, in which the Court, in an opinion by Anthony Kennedy, rules that same-sex consensual acts in private were constitutionally protected. In the decision Kennedy referenced Romer v. Evans, 517 U. S. 620, which struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Further, in his opinion Kennedy wrote
The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.
Here it is worth noting the increasing number of countries (and in the case of Mexico City, localities) which are now affirming full marriage equality, even in cases where the dominant religion of the nation is Catholic.
Let me return to Leser. To me the key part of the decision is that of the parallel to the 15th Amendment. The nature of the franchise was being fundamentally changed. Brandeis saw that parallel, and made reference to the precedent of the 15th in his ruling on the 19th. Granted, one could argue that the process of ratification of Amendments and the reach of ratified amendments is something very different than what might be confronted in addressing marriage equality.
And yet - despite the fact that Warrne's opinion in Loving does not specifically address it, when it comes to marriage there is the matter of the Full Faith and Credit clause. Marshall made clear in Marbury that an ordinary legislative act in conflict with a Constitutional provision could not stand, because that would mean the power of a constitution to limit legislative action was pointless. In that case Marshall noted the provision of the Judiciary Act which allowed Marbury to file his suit for a writ of mandamus in SCOTUS could not be sustained because as original jurisdiction that act was not included in the text of the Constitution. The Full Faith and Credit Clause is no where limited by a power of Congress - explicit or implicit - to limit its reach. I am of the opinion that precedents make it clear that the Defense of Marriage Act is constitutionally flawed and unsustainable.
And then we have the implication of Loving. The Lovings were legally married elsewhere in the United States. Marriages, divorces, and adoptions legally completed in one state have to be fully recognized in other states, otherwise some fundamental rights that should accompany us as we travel from one state to another, either temporarily or moving permanently, could be restricted. As far back as the Articles of Confederation we established the principle of free travel among the states, and that those from other states were entitled to the privileges of citizenship (except voting and holding public office) of whatever state in which they happened to be. One may need to establish residence to obtain a divorce, but one need not do so to marry - my wife and I were residents of Virginia when we were married in Maryland where we attended church.
Perhaps the Leser opinion is really unnecessary. Still, Brandeis saw parallels between expanding the franchise to Blacks and to Women. I would argue that the case can at least be referenced when we attempt to show in the case of marriage parallels between those of different racial classification and those of the same gender. As we have over time opened up our acceptance of same-sex sexual behavior, at least in part because of our understanding of how the Western world as a whole was moving, I find similar parallels on marriage equality.
In any case, relevant or not, the anniversary of this decision provided me an opportunity to explore a number of cases in a way I hope might be useful to some.
Do not be too harsh with weaknesses in my legal reasoning - I acknowledge that I am not a lawyer, the only bar of which I am a member is that of the National Democratic Club.
I hope this Saturday is, wherever you are, a day of rest and relaxation, or if you must work, at least productive.
Peace.