An evaluation of South Carolina's marriage amendment

Currently, six states recognize same-sex marriage.  The vast majority of states do not, and most states have passed constitutional amendments banning same-sex marriage.  This seems simple enough.  However, the issues regarding these amendments are far more complex, and they are often overlooked in the heated, highly emotional debates on the controversial subject. 

A prime example is the recent attention given to California’s marriage amendment, passed by voters via Proposition 8.  Many who oppose Prop 8 were outraged and felt defeated when California’s Supreme Court upheld the amendment (after legalizing same-sex marriage last year), while supporters felt that traditional marriage had been saved.  I’d actually like to shift the focus away from the issues in California because I feel that people need to be more aware of amendments that are far more problematic from a legal standpoint than California’s- so I will evaluate South Carolina’s marriage amendment, which won an impressive 78% of the vote when it was passed in 2006.  For the reasons explained below, I have concluded that South Carolina’s marriage amendment is unconstitutional. 

Before I begin, I need to explain that I am analyzing the constitutional validity of South Carolina’s amendment under the Equal Protection Clause of the 14^th Amendment to the U.S. Constitution, which guarantees, “no state shall… deny to any person within its jurisdiction the equal protection of the laws.”  When a law is challenged as a violation of equal protection, the U.S. Supreme Court generally presumes the validity of the law as long as it is rationally related to serve a legitimate government interest.  Deferring to the legislature this way ensures the separation of powers that is vital to our government.  Only the legislature can make laws- courts, however, can determine whether those laws are constitutional.  

The Court will only use a higher standard of review, or examine the law more closely, if the law targets a suspect class or burdens a fundamental right.  One example of a suspect class is race- the Court uses strict scrutiny, the highest standard, if a law creates a classification based on race (ie. white children must go to school A; black children must go to school B).  Under strict scrutiny, the law must be necessary to serve a compelling state interest.  The Court uses the same standard if the law burdens a fundamental right, like freedom of speech or religion.

The Court use a third standard, intermediate scrutiny, if the class is somewhat suspect (or “quasi-suspect”) but does not have the same implications as a suspect class.  The law must be substantially related to serve an important state interest.  For example, gender/sex falls within this category because some laws based on the sex of an individual could be valid in some circumstances but not others.  Laws have been upheld because they were based on the biological differences between men and women (ie. women are not aloud to fight in combat in the military).  Laws based on race are almost never valid, however, and will rarely (if ever) be upheld.

Marriage amendments create a classification based on sexual orientation because they preclude same-sex couples, but not opposite-sex couples, from marrying.  The U.S. Supreme Court has not recognized sexual orientation as a suspect or even quasi-suspect class, and I will therefore use the rational basis standard to evaluate South Carolina’s marriage amendment under the federal Equal Protection Clause.

South Carolina’s amendment reads, in relevant part: 

“A marriage between one man and one woman is the only lawful domestic union that shall be valid or recognized in this State.  This State and its political subdivisions shall not create a legal status, right, or claim respecting any other domestic union, however denominated.  This State and its political subdivisions shall not recognize or give effect to a legal status, right, or claim created by another jurisdiction respecting any other domestic union, however denominated.  Nothing in this section shall impair any right or benefit extended by the State or its political subdivisions other than a right or benefit arising from a domestic union that is not valid or recognized in this State.“

In contrast, California’s amendment simply states: “Only marriage between a man and a woman is valid or recognized in California.”

At this point, I should list some governmental interests that have been asserted in support of these marriage amendments.  Some of the more successful governmental interests that have been put forth include: promoting procreation; providing the best environment for child rearing; and preserving the traditional definition and institution of marriage/ the sanctity of marriage.  I will not evaluate the legitimacy of these interests here, for that is another topic entirely.  Suffice it to say that these interests have been upheld as legitimate and will be treated as such in this analysis.

South Carolina’s amendment is unconstitutional because it is not rationally related to any legitimate governmental interest.  The amendment is so broad that it is not necessary to evaluate in detail any potential interest the state may have.  I will compare South Carolina’s amendment to California’s to better illustrate this point.

First, California’s amendment merely defines marriage as between a man and a woman.  California has created an extensive domestic partnership scheme that offers virtually the same benefits and obligations to same-sex couples as marriage.  This is impossible in South Carolina, for the very first sentence of the amendment proclaims that opposite-sex marriage is “the only lawful domestic union that shall be valid or recognized in this state.”  The second sentence fortifies this by asserting that “the state and its political subdivisions” cannot create a “legal status, right, or claim respecting any other domestic union.”  This precludes any level of government at the state or local level from establishing domestic partnerships, civil unions, or any other form of legally recognized relationship for same-sex couples.  

Additionally, no branch of government can recognize any other legal union from other jurisdictions- if domestic partners came to South Carolina from California, they would not be considered domestic partners and would not be entitled to any of the same legal protections.  

I should note here that, like the U.S. Constitution, state constitutions are the supreme law of the land in each state; amendments to state constitutions can only be changed by re-amending the constitution.  Consequently, any action of the state legislature, judiciary, or any action at the local level of government to create a legal union for same-sex couples would run contrary to the principles of South Carolina’s Constitution.   California’s amendment clearly does not restrict the political process at this level, which is why the controversy there is an entirely different issue.

The impact of this restriction is unquestionably broad, yet it may not be enough on its own to make the amendment unconstitutional.  Creating a union equivalent or substantially similar to marriage could arguably contradict the state’s interest in preserving the traditional institution of marriage- though preventing same-sex couples from receiving most of the benefits and obligations of marriage is, in my view, highly suspect (again- this is another topic to be discussed another day).

This brings me to my second point about SC’s amendment.  What defies rational relation to any legitimate governmental interest is the use of the term “right” in the second and third sentences and also the fourth sentence: “Nothing in this section shall impair any right or benefit extended by the State or its political subdivisions other than a right or benefit arising from a domestic union that is not valid or recognized in this State.”

So the only rights or benefits impaired are those offered by domestic unions other than marriage (domestic partnerships, civil unions, etc.), which are not recognized in South Carolina.  It is not difficult to decipher the message here, for “any right or benefit” that those alternative unions offer would be the same “right or benefit” offered by the only valid union in SC- marriage between a man and a woman.  This language means that, in addition to prohibiting any alternative domestic union, no branch of government at any level can offer any right or benefit of marriage to same-sex couples.

I have not done the research to compose a complete list of the rights and obligations given to spouses in South Carolina, but in many cases from other states I’ve read, there are anywhere from over 200- over 400 laws based on spousal status; there are over 1,000 on the federal level.  A few laws that most states generally have in some form include: health care benefits for employees’ spouses; the right to inherit a spouse’s property if the spouse dies without a will; the right to bring a wrongful death lawsuit if a spouse dies and someone else is at fault (ie. car accident); and the right to visit an ill spouse in a hospital room. 

It absolutely defies equal protection principles to justify prohibiting one’s partner from sitting by the hospital bed of his or her loved one, but that is precisely the effect of South Carolina’s amendment. The breadth of the amendment in this respect cannot possibly be rationally related to any governmental interest.   For instance, if Richland County wanted to offer that one right to same-sex couples at the local level, it would contradict the S.C. Constitution.  Prohibiting any right arising from marriage (or any other similar domestic union) does not preserve the traditional definition or institution of marriage.  It does not promote procreation or help create the “best” environment for child rearing.  An amendment of this breadth seems to indicate a sense of animosity towards same-sex couples.  Either that, or perhaps the drafters of the amendment oversimplified the issue and did not consider how broad the restrictions would be and how much harm it would cause same-sex couples.

Therefore, when people argue against the validity of Prop 8 in California, they are doing so from a position that is not even possible in South Carolina.  Domestic partners in California enjoy virtually all of the same benefits and obligations of marriage.  I am arguing that South Carolina’s amendment is unconstitutional because it prevents same-sex couples from becoming domestic partners and even receiving any benefits and obligations of marriage.  Even those who are completely against same-sex marriage cannot argue that that is justified.  If they tried, I would ask this question: how likely is it that heterosexual married couples would accept it if the tables were turned and they were denied all of the marital rights they currently enjoy?