Hernandez v. Robles and Goodridge v. Department of Public Health: the irrationality of the rational basis test.

I. INTRODUCTION: A DYNAMIC DEBATE

"Love is born into every human being; it calls back the halves of our original nature together; it tries to make one out of two and heal the wound of human nature." (1)

In Plato's Symposium, a company of great Greek philosophers and storytellers gathered to discuss the meaning and origins of Love. (2) When Aristophanes came forward, he told of a race of beings that were once whole, but then torn in two by the gods. (3) These individuals would spend their lives trying to find their other halves, who wandered the world searching for the being that would fit with them best on a physical and metaphysical level. (4) Before the gods intervened, these creatures existed as two men, two women, or a man and a woman sewn together. (5) Aristophanes then proclaimed that when the person finds his or her other half, be it a man or a woman, "then something wonderful happens: the two are struck from their senses by love, by a sense of belonging to one another, and by desire, and they don't want to be separated from one another, not even for a moment." (6)

The Symposium philosophers, who engaged in these discussions in the fourth century B.C., accepted that love exists between all types of people. (7) Nearly twenty-four hundred years later it is apparent from reading stories in the news, hearing the rhetoric of politicians, and even casually conversing with friends that not everyone is as accepting of this fact as were the ancient Greeks. (8)

The Williams Institute on Sexual Orientation and Public Policy at the UCLA College of Law performed a government-sponsored American Community Survey on the gay, lesbian, and bisexual population in the United States. (9) The results revealed that the number of same-sex couples in the United States increased from approximately 600,000 to 777,000 between 2000 and 2005. (10) The study found that the dramatic increase was likely due to rising acceptance of open homosexuality. (11) Since the 1970s, in the face of continued intolerance bred by state governments and many of their constituents, the gay and lesbian population has demanded the right to be recognized as legally married partners. (12) In all but one state, this goal has been thwarted. (13)

The subject of same-sex marriage is currently debated with unprecedented openness. (14) However, hyperbolic, theatrical, and evocative language used by opponents to same-sex marriage distorts the reality of who these couples really are: committed partners, parents, professionals, and political voices. (15) In spite of scientific evidence and government-sponsored statistical studies showing that homosexual couples go to church, adopt children, and commit to lifelong relationships, homophobia still dictates much of American law in respect to its gay and lesbian community. (16) Gays and lesbians are often characterized solely by their sexuality, which reduces the impact of their contributions to society and adversely affects how they are treated in social, political, legal, and religious spheres. (17)

Organizations that support homosexual men and women are not a collection of immoral radicals or political dissidents. Across the country there are a diverse number of social, religious, and political groups comprising and welcoming members of the gay community. (18) The Unitarian Universalist Association provides a supportive religious setting for transgender, bisexual, gay, and lesbian peoples and has passed fourteen resolutions in favor of nondiscrimination against them. (19) The American Civil Liberties Union (ACLU) assists homosexual men and women through the Lesbian Gay Bisexual Transgender & AIDS Project. (20) Leading medical organizations, such as the American Medical Association, the American Psychiatric Association, and the American Academy of Pediatrics advocate for non-discriminatory policies. (21) All of these institutions, home to experts in constitutional, scientific, cultural, spiritual, and political fields, call for an end to prejudice against homosexuals. (22) Along with thousands of others, like students, friends, and family members who advance this cause in small but significant ways, they all demand progress. These advocates call for a realization of a full spectrum of rights for the oppressed gay and lesbian communities. Understandably, legalizing marriage for same-sex couples is a high priority.

This Note will criticize how society and the courts have treated homosexual couples. It will argue that the right of marriage (and all its attendant benefits) has been wrongly denied to American gay and lesbian individuals. It will first discuss the constitutional approaches in cases involving marriage and homosexual relationships, and subsequently, federal and state laws affecting gay couples. As the Note progresses it presents statistics and trends as evidence to support that the laws embody an unfair and unreasonable hostility toward homosexual relationships. This Note in no way criticizes heterosexual marriage or any other type of heterosexual relationship, but instead attacks discrimination against homosexual couples in the distribution of socio-economic benefits through the American legal system.

Following those introductory discussions, this Note will contrast the constitutional analyses in two recent state same-sex marriage cases: Hernandez v. Robles and Goodridge v. Department of Public Health. It will evaluate the application of the rational basis test in each case and conclude that the Hernandez reasoning was seriously flawed in its failure to countenance scientific evidence, census information, and its own policies regarding adoption procedures and benefit structures. In contrast, this Note argues that the Goodridge decision correctly acknowledges and accommodates the diversity of the modern family instead of avoiding the realities of its own state population.

This Note argues that to pass the rational basis test, a law must advance a realistic and rational end by taking facts and current evidence into account. Rather than promoting good relations with the legislature by adhering to tradition and idealism, the courts should ensure that laws do not work to the detriment of a state by ignoring and disabling large sectors of the population that contribute to their communities and economy. Laws founded on outdated principles that cause such difficulties, such as the one at issue in Hernandez, are not reasonable, and thus should fail rational basis. Finally, this Note applauds the Goodridge decision and urges states to support all of their couples in the way that the Goodridge court advocated, with the understanding that such support fosters stability in society. (23)

II. BACKGROUND: SAME SEX MARRIAGES AND THE LAW

Though same-sex marriage is a relatively new controversy, state and federal legislatures and courts, including the U.S. Supreme Court, have had opportunities to address it. Historically, marriage, child rearing, and private conduct within relationships have warranted constitutional protection of the highest order. (24)

A. Constitutional Tests and Principles

Courts use different levels of review to determine whether a law is constitutional. (25) Strict scrutiny is the highest level. It requires that the law be necessary to achieve a compelling state interest and the least discriminatory alternative in achieving that interest. (26) Courts invoke strict scrutiny when the government interferes with fundamental rights or discriminates on the basis of race. (27) Under heightened or intermediate scrutiny, the law must further an important state interest and be substantially related to achieving the state objective. (28) The court applies intermediate scrutiny when the government discriminates on the basis of gender or restricts certain types of speech. (29) Rational basis scrutiny is the most deferential type of review; it only requires that the state prove that the law is reasonably related to furthering a legitimate government interest. (30) Though marriage is unquestionably a fundamental right, courts have consistently failed to admit an analogy between same-sex marriage and heterosexual marriage. (31) This destroys the possibility that same-sex marriage will be evaluated under strict scrutiny.

The argument that such a prohibition constitutes gender discrimination, and therefore requires heightened scrutiny, has enjoyed more progress than fundamental rights claims. However, this framework has not materialized into any measurable change in the constitutional approach. (32) Many courts hold that preventing same-sex couples from marrying furthers a legitimate state interest. (33) Many asserted interests that come before a court are quickly found to be "legitimate" with little exploration into the legislative motives, history, or reasoning behind the law. (34) In other words, these holdings permit courts to forego review on this controversial issue under the guise of maintaining respect for the legislature. (35) They also keep outdated laws intact even when they are motivated exclusively by animosity against gays and lesbians. (36) On many occasions the rational basis test has been criticized as too deferential to the legislature, and really a carte blanche for the legislature to make regulations with little forethought. (37) Thus, for many couples the rational basis test has been a barrier to same-sex marriage. (38)

B. Federal Law

Same-sex couples had little hope of attacking marriage discrimination on the federal front once President Clinton signed the Defense of Marriage Act (DOMA) in 1996. (39) The federal DOMA generates a wall around states that wish to discourage same-sex marriage by allowing states to not recognize same-sex marriages from other states. (40) The DOMA was an unprecedented move, as the states had been solely responsible for regulating family and marital matters for centuries. (41) In 1 U.S.C. [section] 7, the statute defining "marriage" and "spouse," it provides that "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." (42) To more fully constrain the power of federal courts to preside over same-sex marriage claims, the House of Representatives passed a bill that eliminated the federal courts' jurisdiction in matters pertaining to the interpretation or validity of the Defense of Marriage Act. (43) This law does not require states to forbid same-sex marriage but was designed to prohibit couples from traveling to one state to validly marry and returning to their own state where it was forbidden. (44) The statute provides:

 
  No State ... shall be required to give effect to any public act, 
  record, or judicial proceeding of any other State ... respecting a 
  relationship between persons of the same sex that is treated as a 
  marriage under the laws of such other State, territory, possession, or 
  tribe, or a right or claim arising from such relationship. (45) 

The fact that federal laws have taken such a stance reflects prejudice at a national level and in turn a much higher hurdle for same-sex marriage supporters to surmount. (46) This legislation reflects an ingrained national homophobia. (47) However, it is also important to recognize the role that local efforts play in rectifying the imbalance of justice.

C. State Law

The laws concerning same-sex marriage differ from state to state; the few legal and judicial successes for gay rights have mostly been short-lived. (48) The differences between state policies on same-sex marriage exacerbate the debate; each state may have a nuanced and unique state law differing from that of its neighbor. However, it has been argued that marriage is always for one purpose: raising children. (49) Many legislative, political, and religious arguments supporting the prohibition against same-sex marriage emphasize the role of children in married couples' lives as the principal justification for limiting marriage to opposite sex couples. (50)

In response to public pressure, some states have enacted measures to supplement legislation that define marriage as a union between a man and a woman. (51) Civil unions and domestic partnerships are two examples of such measures; they represent some sort of consolation for the state's failure to grant the same benefits that it does to heterosexual couples. (52) Unfortunately, far fewer rights and benefits accrue to these partnerships than to traditional marriages. (53)

For instance, Vermont has enacted a Civil Union Law applicable to same-sex couples that offers the same tax, estate, custody, and medical incentives it provides for opposite sex couples. (54) Other states may choose not to recognize these Vermont unions, however, and the benefits to opposite sex couples allowed to marry even in a progressive state such as Vermont far outnumber those joined in civil unions. (55) In Hawaii, unmarried couples may register as state beneficiaries, thereby allowing access to privileges like inheritance rights, visitation rights, and the ability to sue for wrongful death. (56)

Beneficiary status does not, however, grant access to family courts for divorce or child issues. (57) California's Registered Domestic Partner Rights and Responsibilities Act (RDPRRA) of 2003, which was enacted in 2005, dramatically expanded the rights and duties of registered same-sex partners within the state. (58) At the same time, RDPRRA barred the federal privileges extended to married couples. (59) The legislative note following the Act clearly stated that the Legislature

 
  [F]inds and declares that despite longstanding social and economic 
  discrimination, many lesbian, gay, and bisexual Californians have 
  formed lasting, committed, and caring relationships with persons of 
  the same sex. These couples share lives together, participate in their 
  communities together, and many raise children and care for other 
  dependent family members together. (60) 

Despite the purported mission of the State of California to quell discrimination against same-sex partners, the state forbids granting same-sex couples marriage licenses and does not recognize same-sex marriages from other states. (61) Thus, even states like California that have reformed their laws in favor of protecting the gay populace have reserved the full protection of marriage rights for heterosexuals. (62) This refusal to issue marriage licenses with the concurrent endorsement of civil unions illuminates the de facto discrimination that exists toward homosexual couples, regardless of the state's purported commitment to equality.

D. Cases

Two recent state decisions relied on the rational basis test-granting same-sex marriage in one case and denying it in another. (63) The cases have similar fact …