Going to the Chapel and We're Going to Get Married;1 but Will the State Recognize the Marriage?2 the Constitutionality of State Marriage Laws after Lawrence V. Texas3

I. LOVE AND MARRIAGE: INTRODUCTION In the summer of 2003, the U.S. Supreme Court handed down its long-awaited opinion in Lawrence v. Texas,4 which explicitly overruled Bowers v. Hardwick.5 In Lawrence, the Court announced that [t]he State cannot demean [homosexuals'] existence or control their destiny by making their private sexual conduct a crime. Their right to liberty . . . gives them the full right to engage in [a homosexual lifestyle] without intervention of the government.6 Although the Court's holding striking down the Texas statute was not unexpected, the broad and far-reaching rationale was.7 Justice Kennedy, writing for the majority, said that gays and lesbians are entitled to respect for their private lives.8 This simple statement may be the beginning of a seismic shift in the way the American legal system treats a class of citizens that traditionally has not received the full protection of the law. This Note will consider the constitutionality of marriage laws forbidding marriage for same-sex couples and will focus on the likely effect of Lawrence on those laws. Part II discusses same-sex marriage case history. It is subdivided into sections devoted to the early cases, the recent cases, and a brief review of the changing legal landscape that contributed to the differing results between the two. Part III examines the Lawrence opinion and the ways in which it contributes to the arguments of same-sex marriage proponents. Specifically, Part III discusses the substantive due process argument, the equal protection argument, and the Court's willingness to look to cases from foreign jurisdictions as persuasive authority. Part IV presents the holdings of the two same-sex marriage state cases decided after Lawrence and considers the way the two courts have interpreted Lawrence. Part V agrees with Justice Scalia's prediction in concluding that Lawrence dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.9 II. WHO WROTE THE BOOK OF LOVE? SAME-SEX MARRIAGE CASES BEFORE LA WRENCE This section examines state court responses (and in the case of one suit filed in the District of Columbia, the holding of a federal circuit court10) to the issue of same-sex marriage and how the analyses and opinions have changed over time. Section A describes the first round of cases decided in the 1970s, all of which resulted in a denial of the plaintiffs' claims. Section B provides a summary of some U.S. Supreme Court cases decided during the last part of the twentieth century that, while not directly addressing same-sex marriage, bear heavily on this issue. Section C discusses the burgeoning Fourteenth Amendment11 jurisprudence, which both reflected and contributed to changing societal mores and served as a foundation for the courts' decisions in the 1990s. A. THE EARLY CASES (FROM THE 1970s) Bolstered by the U.S. Supreme Court decision in Loving v. Virginia12 and the gay liberation movement born of the Stonewall riots13 in 1969, a number of gay and lesbian couples filed suits seeking the right to marry.14 All of the early cases were filed in jurisdictions where the marriage statutes did not expressly limit marriage to heterosexual couples.15 In each case, the plaintiff couples were denied the right to marry. Although the cases were decided in different states, the underlying reasoning relied on in the decisions was consistent.16 The courts relied on dictionaries defining marriage as the union of one man and one woman, and found that, by definition, same-sex marriage was a legal impossibility.17 Having so ruled, some courts found it unnecessary to reach the constitutional claims presented.18 Those that did reach the constitutional claims found them to be without merit.19 This section describes some of the early same-sex marriage cases. 1. ANONYMOUS V. …