Leading in Unchartered Territory:Why Some Courts Can Make Countermajoritarian Decisions Before Others

On May 3, 1993, the Supreme Court of Hawaii ruled, in Baehr v. Lewin, that denying marriage licenses to same-sex couples was a violation of the state constitution’s Equal Protection Clause.[1] What followed in the two decades after this decision was not a peaceful, gradual recognition of this civil right throughout the United States, but instead a heated legislative and judicial battle between people on both sides of the same-sex marriage issue. It wasn’t until 22 years after Baehr that same-sex marriage became fully legalized in all fifty states, through the U.S. Supreme Court ruling in Obergefell v. Hodges (2015).[2] Today, same-sex marriage has successfully graduated from its status as a controversial social issue, but, at the time of Baehr, the idea of same-sex marriage was still deeply unnatural and unfathomable to most Americans. Given this history, one has to wonder: What allowed the Supreme Court of Hawaii to be so far ahead of its time in trying to protect the right of same-sex marriage? In this article, I argue that courts are more likely to rule in favor of minority rights when there is a stronger, more specific legal doctrine available to the judges. I make this argument using a comparative approach, by closely examining Baehr alongside three other early-stage same-sex marriage case:  Baker v. Nelson (Minnesota, 1971), Goodridge v. Department of Public Health (Massachusetts, 2003) and Hernandez v. Robles (New York, 2006).[3] In these cases, more specific documents of legal authority allowed judges to raise the standard of review for marriage statutes and influenced them to access precedent cases that were in favor of the plaintiffs.

Of the four cases, courts in Baehr and Goodridge ruled in favor of same-sex marriage rights, while those in Baker and Hernandez ruled against. To test whether the strength of legal doctrine is a significant factor in explaining this divergence, one must examine whether there were clearly superior legal arguments available to the judges in Baehr and Goodridge, compared to Baker and Hernandez. Specifically, this article investigates for noticeable distinctions between the court opinions in at least one of the following three categories: 1) facts of the case, 2) authoritative laws, or 3) applicable legal precedents.

 First, regarding the basic facts, this study finds no remarkable differences between the four cases, as is evident from the summary of each case (See Appendix). Each involved one or more same-sex couples as plaintiffs who were denied marriage licenses on the sole ground that they were of the same sex, following the relevant state statute. Looking at the broad legal questions that were set up by those facts, there seems to be no clear distinction that could have led the first two cases to be ruled in favor of the plaintiffs and the latter two to be ruled against. Perhaps Baehr and Goodridge differ from Baker in that the latter only involved a single couple, but this distinction is blurred by Hernandez, which was also involving many same-sex couples in the state. It is also worth noting that the decision in Baker affirmed the lower court’s decision, while the other three reversed, which again does not delineate between the two groups.

The next step is to check for distinctions in the plaintiffs’ legal challenges and the authoritative laws that were in question. Here, an interesting distinction starts to arise between the cases. To start, Baker clearly differed from Baehr and Goodridge in that the former dealt with challenges to the Due Process and Equal Protection Clauses of the U.S. Constitution, while the latter two dealt with the same clauses in their state constitutions. Table 1 presents the relevant Equal Protection Clauses in all four cases.

Table 1: Equal Protection Clauses Referenced in Each Case

While these clauses all encompass the same principle at their core, the U.S. Constitution is noticeably vague compared to the state constitutions. This distinction matters because it allowed the Baker court to dismiss the plaintiffs’ Equal Protection Clause challenge with relative ease by simply stating, “We are reminded, however, that ‘abstract symmetry’[4] is not demanded by the Fourteenth Amendment,”[5] without developing a detailed argument about why classification by sexual orientation did not amount to a constitutional violation.

Importantly, both of the opinions in Baehr and Goodridge explicitly acknowledged this difference in coverage of the Equal Protection Clauses. In Baehr, Judge Levinson wrote: “The equal protection clauses of the United States and Hawaii Constitutions are not mirror images of one another.”[6] In Goodridge also, Judge Marshall stated that “The Massachusetts Constitution protects matters of personal liberty against government incursion as zealously, and often more so, than does the Federal Constitution, even where both Constitutions employ essentially the same language.”[7] The two courts used these distinctions in constitutions to their advantage when arriving to the conclusion that denying marriage to same-sex couples amounted to an Equal Protection Clause violation. Thus, analyzing these three cases side-by-side provides support for the idea that the specificity in the wording of the state constitutions aided judges in protecting minority rights.

By now, one may have noticed that Hernandez might undermine this distinction since its decision pertained to the Equal Protection Clause of the New York State Constitution, which is also more elaborate compared to the federal one. The judges in Hernandez also recognized this by saying, “The governing principle is that our Constitution cannot afford less protection to our citizens than the Federal Constitution does, but it can give more”; but this time, the majority concluded that “by contrast, we have held that our Equal Protection Clause is no broader in coverage than the Federal provision.”[8] How did the court in Hernandez rule against minority rights even when dealing with a more elaborate state constitution?

A key insight from this comparative analysis is that the relevant constitutional clauses in Baehr and Goodridge also differ meaningfully from that in Hernandez, but that difference is more subtle – and it comes down to the inclusion of one word: sex. The Hawaii and Massachusetts constitutions ensure equal protection in face of discrimination by “race, religion, sex or ancestry,” and “sex, race, color, creed or national origin,” respectively. Meanwhile, the New York Constitution only covers discrimination by “race, color, creed or religion.” Even though this difference of one word may seem negligible, there is persuasive evidence to suggest that the absence of “sex” made it marginally easier for the judges to form legal arguments against the plaintiff. This marginal difference comes from the fact that when there is an alleged violation of equal protection, the court reviews the legislation in question under either “strict scrutiny” or a “rational basis test.”[9] The former standard is much higher, with the court presuming that the law is unconstitutional unless the state can show a compelling interest; the rational basis test, on the other hand, only requires that the statute rationally furthers a legitimate state interest.[10] In the case of Baehr, the inclusion of sex in the Hawaii Constitution led the majority to believe that sex was a “suspect category” which required strict scrutiny, citing the federal precedent set in Frontiero v. Richardson.[11] In contrast, the majority in Hernandez did not even consider if sex was a suspect category and proceeded to apply the rational basis test.[12] As a result, the inclusion of “sex” in the Equal Protection Clause allowed the Hawaii Supreme Court to set a lower bar for proving a constitutional violation. All in all, it is difficult to deny that the judges in Hernandez would have had a harder time ruling in favor of the respondents if the New York State Constitution was more specifically worded to protect sex-based discrimination.

Moving to the third aspect of legal doctrine, precedent, there is a lack of evidence that suggests the legal precedents available to the judges in each case had a significant impact on the final decision. Obviously, the court in Baker had the fewest precedents to work with because it was decided before the other three cases. However, Hernandez was decided last out of the four, meaning that it had access to the same set of major precedents that the courts used in Baehr and Goodridge. And although it is true that the opinions in Baehr and Goodridge reference many state-specific case precedents to bolster their points, the opinion in Hernandez does the same for the opposite argument. So, it is difficult to argue that the latter court ruled against the plaintiffs simply because it lacked favorable precedents on this issue.

There is one legal precedent that all four courts deal with extensively: Loving v. Virginia. In this landmark decision of 1967, the U.S. Supreme Court ruled that statutes preventing interracial marriages were in violation of the Equal Protection and Due Process clauses of the 14th Amendment.[13] But the different ways in which the four courts deal with Loving indicates that it was not a difference in the range of available precedents but instead a difference in their interpretations that led to the divergent outcomes. For instance, courts in Baehr and Goodridge believed the question of same-sex marriage to be an analogous question to one of interracial marriage, arguing that equal protection was still violated if the marriage statute applied equally to both sexes, just like how equal protection was violated even though miscegenation laws were applied to both races. Both of the courts that ruled against argued that the racial discrimination in Loving was not comparable to classifications based on sexual orientation.

Although there is no definite way to know why the judges interpreted Loving in these antithetical ways, this article argues that this was also due to the difference in the specificity of the relevant constitutions in each case. The inclusion of the term “sex” immediately beside the term “race” in the Equal Protection Clauses of the Hawaii and Massachusetts constitutions projects a strong implication that the two words have equal, comparable legal importance. This likely had the effect of making the issue in Loving appear much more analogous to that of same-sex marriage. The psychological association of these two terms was best expressed in Baehr, when Judge Levinson commented on the decision in Loving by saying, “Substitution of ‘sex’ for ‘race’ and article I, section 5 for the fourteenth amendment yields the precise case before us.”[14] It also appeared in Goodridge, when Judge Marshall claimed, “a statute deprives individuals of access to…the institution of marriage – because of a single trait: skin color in…Loving, sexual orientation here.”[15] Likewise, it is plausible to believe that this association was much less available to the judges in Baker and Hernandez because the terms “sex” and “race” were not as explicitly equated in the U.S. and New York constitutions.

After investigating the salience of legal doctrine in judicial decision-making in the four same-sex marriage cases, this article produces a couple of key insights. First, the contents of the constitutional document in question was a noticeable distinction between the two groups of cases, and it is reasonable to believe that the specificity and expansiveness of the state constitutions helped judges in Baehr and Goodridge build legal arguments in favor of the plaintiffs. In addition to raising the bar for compelling state interests, the specific wording of the relevant clauses allowed the judges to equate favorable past precedents, such as Loving, to the current situations. These findings are valuable on both academic and practical levels. Academically, this comparative analysis adds weight to the legal model in explaining judicial behavior, rather than the extralegal factors that may influence judicial decisions. On a practical level, these results indicate that civil rights activists should choose their legal battlegrounds strategically; states with a more expansive constitution and a history of adopting minority rights early are likely to have an increased ability to rule in favor of minority rights even when the issue is counter-majoritarian. 

Appendix

Baker v. Nelson was decided by the Minnesota Supreme Court in 1971 in a unanimous decision. The case involved two adult men, Richard Baker and James McConnell, who applied for a marriage license and were denied on the sole ground that both were of the same sex, pursuant to the state statute, Minn. St. c. 517.[16] Baker and McConnell filed suit and successfully brought an appeal to the Minnesota Supreme Court. In the majority opinion, Justice Peterson argued that the state’s classification of marriage as a heterosexual affair did not offend the Due Process Clause or the Equal Protection Clause of the U.S. Constitution.[17]

Baehr v. Lewin was decided by the Hawaii Supreme Court in 1993 on a 3-1 decision. The plaintiffs were three same-sex couples who were denied marriage licenses by the Hawaii Department of Health, following the Hawaii Revised Statues (HRS) 572-1.[18]  The couples filed for relief and permanent injunctions prohibiting further withholding of marriage licenses to same-sex couples. In reviewing the issue under the Due Process Clause and the Equal Protection Clause of the Hawaii State Constitution, the court found that, while same-sex marriage was not a fundamental right guaranteed under the Due Process Clause, denying same-sex marriages was a violation of the Equal Protection Clause.[19] In response, the Hawaii legislature passed a constitutional amendment in 1998 that banned same-sex marriages.[20]

Goodridge v. Department of Public Health was decided by the Massachusetts Supreme Judicial Court in 2003 on a 4-3 decision. The plaintiffs were fourteen individuals from five Massachusetts counties, all of whom were in committed relationships and most of whom were living with children.[21] They were denied marriage licenses by their respective town clerk who claimed that Massachusetts did not recognize same-sex marriage, per the marriage licensing statute General Laws (G.L.) c. 207. In response, the court ruled that denial of marriage rights to same-sex couples was a violation of the Massachusetts Constitution on both Equal Protection and Due Process grounds, and that the proposed compelling state interests were unpersuasive.[22] In effect, this ruling made Massachusetts the first U.S. state to legalize same-sex marriage.

Hernandez v. Robles was decided in 2006 by the New York Court of Appeals with a 4-2 majority. In this case, five lawsuits were rolled into one and 44 same-sex couples were involved. The plaintiffs were once again denied marriage licenses by the New York Marriage License Bureau on the ground that “New York State law does not authorize this office to grant marriage licenses to same-sex couples.”[23] The majority of judges decided against the plaintiffs because according to them, the state laws intended to limit marriage to be a heterosexual union and the state had a rational basis for keeping it that way – namely for procreation and the welfare of children.[24]

[1] Baehr v. Lewin, 74 Haw. 530 (Haw. 1993); Later known as Baher v. Miike.

[2] Obergefell v. Hodges, 576 U.S. 644 (2015).

[3] See Appendix for summary of the cases.

[4] This is a reference to Patsone v. Pennsylvania (232 U.S. 138 (1914)), where the court ruled that “the Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.”

[5] Baker v. Nelson, 191 N.W.2d 185 (1971).

[6] Baehr v. Lewin, 74 Haw. 530 (Haw. 1993).

[7] Goodridge v. Dept. of Public Health, 440 Mass. 309 (Mass. 2003).

[8] Hernandez v. Robles, 26 A.D.3d 98 (N.Y. App. Div. 2005).

[9] Nagle v. Board of Education, 63 Haw. 389 (Haw. 1981).

[10] Baehr v. Lewin, 74 Haw. 530 (Haw. 1993).

[11] Ibid.

[12] Hernandez v. Robles, 26 A.D.3d 98 (N.Y. App. Div. 2005).

[13] Loving v. Virginia, 388 U.S. 1 (1967).

[14] Baehr v. Lewin, 74 Haw. 530 (Haw. 1993).

[15] Goodridge v. Dept. of Public Health, 440 Mass. 309 (Mass. 2003).

[16] Baker v. Nelson, 191 N.W.2d 185 (1971).

[17] Ibid.

[18] Baehr v. Lewin, 74 Haw. 530 (Haw. 1993).

[19] Ibid.

[20] Andersen, Out of the Closets and Into the Courts, 189.

[21] Goodridge v. Dept. of Public Health, 440 Mass. 309 (Mass. 2003).

[22] Goodridge v. Dept. of Public Health, 440 Mass. 309 (Mass. 2003).

[23] Hernandez v. Robles, 26 A.D.3d 98 (N.Y. App. Div. 2005)

[24] Ibid.