DEAN v. DISTRICT OF COLUMBIA, No. 92-CV-737

Docket NºNo. 92-CV-737
Citation653 A.2d 307
Case DateJanuary 19, 1995
CourtCourt of Appeals of Columbia District
653 A.2d 307
Craig Robert DEAN and Patrick Gerard Gill, Appellants, v. DISTRICT OFCOLUMBIA, et al., Appellees.
No. 92-CV-737.
District of Columbia Court of Appeals.
Argued November 2, 1993.
Decided January 19, 1995.

APPEAL FROM THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, SHELLIE F. BOWERS, J.

William N. Eskridge, Jr., Georgetown University Law Center, with whom Craig Robert Dean, Washington, DC, was on the brief, for appellants.

James C. McKay, Jr., Asst. Corp. Counsel, with whom John Payton, Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, DC, were on the brief, for appellee.

Laura A. Foggan, with whom Richard A. Gross, Washington, DC, was on the brief, for amicae curiae Elizabeth A. Leader and Barbara R. Lewis.

Arthur B. Spitzer, W. Stephen Smith, and Micki M. Chen, Washington, DC, filed an amicus curiae brief for the American Civil Liberties Union of the Nat. Capital Area, on behalf of appellants.

Evan Wolfson and A. Christopher Wieber, New York City, filed an amicus curiae brief for Lambda Legal Defense and Educ. Fund, Inc., on behalf of appellants.

Before FERREN, TERRY, and STEADMAN, Associate Judges.

PER CURIAM:


The judgment of the trial court is affirmed pursuant to Parts I., II., III., and V. of Judge FERREN'S opinion and the concurring opinions of Judges TERRY and STEADMAN.

 TABLE OF CONTENTS FOR OPINION OF JUDGE FERREN
                 Page
                INTRODUCTION 309
                 I. PROCEEDINGS TO DATE 309
                 II. THE MARRIAGE STATUTE CLAIM 310
                 A. Legislative History of the Marriage Statute 310
                 B. Statutory Definition of "Marriage" 312
                 C. The Marriage Statute as Part of a Larger
                 Legislative Scheme, Including the Divorce
                 Statute 314
                 D. The Traditional Understanding of "Marriage" 315
                 E. Case Law from Other Jurisdictions 315
                 F. The Anti-Sex Discriminatory Language Act of 1976 316
                 G. The 1982 Gender Rule of Construction 317
                III. THE HUMAN RIGHTS ACT CLAIM 318
                 IV. THE CONSTITUTIONAL ISSUES: PROCEDURAL AND ANALYTICAL
                 PREREQUISITES 320
                 A. Whether Constitutional Issues Have Been
                 Properly Raised 320
                 B. Standard of Review 321
                 C. Relevance of the Distinction Between
                 "Adjudicative Facts" and "Legislative Facts" 322
                 1. In General 322
                 2. "Adjudicative" and "Legislative" Facts
                 Distinguished 323
                 3. Judicial Process of Legislative Fact-Finding 326
                 V. CONSTITUTIONAL DUE PROCESS: IS SAME-SEX MARRIAGE A
                 "FUNDAMENTAL RIGHT"? 331
                 A. Definition of "Fundamental Right" 331
                 B. Appellants' Due Process Claim 332
                 VI. EQUAL PROTECTION: ARE HOMOSEXUALS A "SUSPECT" OR
                 "QUASI-SUSPECT" CLASS? 333
                 A. The Trial Court's Ruling 333
                 B. Introduction: Discrimination and Equal
                 Protection of the Laws 334
                 C. The Attributes of Marriage Justifying an Equal
                 Protection Inquiry 335
                 D. Summary Judgment for Appellants Inappropriate
                 Assuming, for the Sake of Argument, That the
                 Rational Basis Test Applies 336
                 E. Summary Judgment for the District Inappropriate
                 Assuming, for the Sake of Argument, that Strict
                 Scrutiny Applies 337
                 F. Constitutionally Protected Classes: United
                 States v. Carolene Products Co.
                 337
                 G. Equal Protection After Carolene Products Co.:
                 "Suspect" and "Quasi-Suspect" Classes 338
                 H. The Implications, If Any, of Bowers v. Hardwick
                 for Equal Protection Analysis 340
                 I. The Factors Applicable to Determining "Suspect"
                 and "Quasi-Suspect" Class Status 344
                 1. History of Purposeful Discrimination 344
                 2. Deep-Seated Prejudice Causing Inaccurate
                 Stereotypes That Do Not Reflect Class
                 Members' Abilities 345
                 3. Immutability 346
                 4. Political Powerlessness 349
                 J. Whether Homosexuals Comprise a "Suspect" or
                 "Quasi-Suspect" Class 351
                 1. Three Easily Applied Factors 351
                 2. Immutability 351
                 3. The Prevention/Immutability Distinction 352
                 K. Whether the District Has a "Substantial" or
                 "Compelling" State Interest in Barring
                 Same-Sex Marriage 355
                 L. Proposed Disposition: Reversal and Remand for
                 Trial 356
                VII. POSTSCRIPT: RESPONSE TO MAJORITY ON EQUAL
                 PROTECTION 359
                

FERREN, Associate Judge, concurring in part and dissenting in part:

Plaintiff-appellants, two homosexual men, want to marry each other. They appeal from the trial court's order granting summary judgment for the District of Columbia, rejecting their complaint for an injunction to require the Clerk of the Superior Court to issue them a marriage license. Appellants contend the trial court erred in three respects: (1) ruling that the District of Columbia marriage statute, D.C.Code §§ 30-101 to -121 (1993), prohibits the Clerk from issuing marriage licenses to same-sex couples; (2) ruling that the Clerk did not unlawfully discriminate against appellants under the District of Columbia Human Rights Act, D.C.Code §§ 1-2501 to -2557 (1992), by refusing to issue them a marriage license; and (3) interpreting the marriage statute in a way that unconstitutionally deprives same-sex couples of the right to marry.

We find no statutory violation or denial of due process, but, unlike the majority, I believe there are genuine issues of material fact precluding summary judgment on appellants' constitutional claim that they have been denied equal protection of the laws. Specifically, I conclude that a trial is required to determine whether same-sex couples comprise a "suspect" or a "quasi-suspect" class entitled either to "strict" or to "intermediate" scrutiny of governmental discrimination against them — in this case denial of the right to marry. Furthermore, if, as a result of the trial, the court decides that same-sex couples do comprise such a protected class, the trial will also be needed to determine whether the District, despite such constitutionally protected status for same-sex couples, has a "compelling," or at least a "substantial," governmental interest in keeping the marriage limitation to heterosexual couples as is. If it does, the District would prevail, otherwise not.

Recognition that homosexuals — like racial minorities and women — are entitled to special constitutional protection, therefore, would not necessarily mean that homosexuals are constitutionally entitled to marry one another; not all governmental discrimination against constitutionally protected groups is forbidden. But I do not believe that this court can properly conclude at this point — as a matter of law without benefit of a trial — that appellants have failed to proffer an equal protection claim. Accordingly, unlike my colleagues, who dispose of the matter summarily, I would reverse and remand this case for trial on the equal protection issue.

I. PROCEEDINGS TO DATE

On November 13, 1990, appellants Craig Robert Dean and Robert Gerard Gill applied for a marriage license from the Clerk of the Superior Court, as required by D.C.Code § 30-110. The Clerk, acting as head of the Marriage License Bureau, denied their application, explaining his action in a memorandum to the Director of the court's Family Division:

Title 30-110 of the District of Columbia Code authorizes the Clerk of the Court to grant or deny applications for marriage licenses.

The sections of the District of Columbia Code governing marriages do not authorize marriage between persons of the same sex. Therefore the application for a marriage license in this case is respectfully denied.

Appellants filed an action in Superior Court seeking declaratory and injunctive relief requiring the Clerk to issue them a marriage license. In their amended complaint, appellants alleged that they qualified for the license because the marriage statute, D.C.Code §§ 30-101 to -121, is "gender-neutral" and, further, because the Clerk, by refusing to issue the license, had discriminated against them on grounds of sex or sexual orientation, in violation of the District of Columbia Human Rights Act, D.C.Code §§ 1-2501 to -2557.

The District moved to dismiss for failure to state a claim for relief. Judge Bowers granted summary judgment for the District. He explained that all definitional sources for "marriage" — the legislative history of the Marriage and Divorce Act, D.C.Law 1-107, 1977 D.C. Stat. 114; the various references togender in relevant provisions of the District of Columbia Code; the common law of the District of Columbia; decisions of appellate courts in other states; references to marriage in the Bible; and dictionary definitions of "marriage" — show that marriage inherently requires one male and one female participant. Furthermore, according to Judge Bowers, the "City Council consciously chose not to make the language of the Human Rights Act applicable to the regulation of the marital relationship." He drew that conclusion from the fact that, only a few months before the Council enacted the Human Rights Act, it had rejected a proposal expressly to permit same-sex marriages. Judge Bowers concluded:

[P]laintiffs were denied a marriage license because of the nature of marriage itself, requiring, as it does, that the parties thereto be a male and a female. What the plaintiffs herein sought a license to enter into, by definition, simply was not a "marriage." Any change in that definition must come from the legislature — not this Court.

Appellants moved for reconsideration. They asserted that, in ruling that same-sex couples did not have the right to marry, the trial court interpreted the marriage statute and the Human Rights Act in ways that violated appellants' constitutional rights to due process and equal protection of the laws under the Fifth Amendment, and violated the establishment of religion clause of the First Amendment as well. In an opinion issued on June 2, 1992, Judge Bowers granted the motion for reconsideration but rejected appellants' constitutional claims. Appellants filed a timely appeal on both statutory and constitutional grounds.1

II. THE MARRIAGE STATUTE CLAIM

Appellants contend that the Clerk should be required to issue them a marriage license because the marriage statute is gender-neutral and does not expressly prohibit same-sex marriages. We...

To continue reading

Request your trial
44 practice notes
  • Andersen v. King County, No. 75934-1.
    • United States
    • United States State Supreme Court of Washington
    • July 26, 2006
    ...no tradition of same-sex marriage and no fundamental right to marriage that includes same-sex marriage. E.g., Dean v. Dist. of Columbia, 653 A.2d 307 (D.C. 1995); In re Kandu, 315 B.R. 123, 140 (Bankr.W.D.Wash.2004); Standhardt v. Superior Court, 206 Ariz. 276, 284, 77 P.3d 451 (Ariz.Ct.App......
  • In re Kandu, No. 03-51312.
    • United States
    • United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — Western District of Washington
    • August 17, 2004
    ...the fundamental right to marry on anything other than a traditional, opposite-sex relationship. See Dean v. District of Columbia, 653 A.2d 307, 333 (1995). It is in this respect that this Court disagrees with the contrary conclusion recently reached by the Superior Court for King County, Wa......
  • IN RE M.M.D., No. 94-FS-620
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • June 30, 1995
    ...specific limitation to heterosexual couples, could not have intended to include same-sex couples. See Dean v. District of Columbia, 653 A.2d 307, 315 (D.C. 1995) (citations omitted). In contrast, the idea of "adoption" does not suggest an inherent, traditional limitation on who may adopt; w......
  • Jackson v. Dist. Of D.C. Bd. Of Elections And Ethics, No. 10-CV-20.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 15, 2010
    ...Initiative of 2009” does not run afoul of the restriction. They assert that this court's decision in Dean v. District of Columbia, 653 A.2d 307 (D.C.1995), establishes “conclusively” that the Human Rights Act “does not reach the marital relationship.” The Board urges us to uphold its determ......
  • Request a trial to view additional results
44 cases
  • Andersen v. King County, No. 75934-1.
    • United States
    • United States State Supreme Court of Washington
    • July 26, 2006
    ...no tradition of same-sex marriage and no fundamental right to marriage that includes same-sex marriage. E.g., Dean v. Dist. of Columbia, 653 A.2d 307 (D.C. 1995); In re Kandu, 315 B.R. 123, 140 (Bankr.W.D.Wash.2004); Standhardt v. Superior Court, 206 Ariz. 276, 284, 77 P.3d 451 (Ariz.Ct.App......
  • In re Kandu, No. 03-51312.
    • United States
    • United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — Western District of Washington
    • August 17, 2004
    ...the fundamental right to marry on anything other than a traditional, opposite-sex relationship. See Dean v. District of Columbia, 653 A.2d 307, 333 (1995). It is in this respect that this Court disagrees with the contrary conclusion recently reached by the Superior Court for King County, Wa......
  • IN RE M.M.D., No. 94-FS-620
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • June 30, 1995
    ...specific limitation to heterosexual couples, could not have intended to include same-sex couples. See Dean v. District of Columbia, 653 A.2d 307, 315 (D.C. 1995) (citations omitted). In contrast, the idea of "adoption" does not suggest an inherent, traditional limitation on who may adopt; w......
  • Jackson v. Dist. Of D.C. Bd. Of Elections And Ethics, No. 10-CV-20.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 15, 2010
    ...Initiative of 2009” does not run afoul of the restriction. They assert that this court's decision in Dean v. District of Columbia, 653 A.2d 307 (D.C.1995), establishes “conclusively” that the Human Rights Act “does not reach the marital relationship.” The Board urges us to uphold its determ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT