# Dean v. District of Columbia

> District of Columbia Court of Appeals · January 19, 1995 · 653 A.2d 307

URL: https://www.frixlaw.com/law-library/cases/2011334

## Case

- **Full name:** Craig Robert DEAN and Patrick Gerard Gill, Appellants, v. DISTRICT OF COLUMBIA, Et Al., Appellees
- **Court:** District of Columbia Court of Appeals
- **Decided:** January 19, 1995
- **Citations:** 653 A.2d 307; 1995 D.C. App. LEXIS 8; 1995 WL 21117
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Ferren, Terry, Steadman
- **Cited by:** 50 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2011334

## How later opinions describe it (automated extraction)

- finding marriage statute constitutional on ground, among others, that it is not a statute of exclusion, like the provision in Romer v. Evans, 517 U.S. 620 (1996), but “a statute of inclusion of opposite-sex couples who may wish to enter a particular legal status recognized by …
- finding that this “central purpose . . . provides the kind of rational basis . . . permitting limitation of marriage to heterosexual couples”
- observing Supreme Court has “ ‘never held that only classes with immutable traits can be deemed suspect’ ” (quoting Watkins v. U.S. Army, 875 F.2d 699, 725 (9th Cir. 1989) (Norris, J., concurring))
- holding that the right to marriage is deemed fundamental because of its link to procreation

## Opinion text

653 A.2d 307 (1995)
Craig Robert DEAN and Patrick Gerard Gill, Appellants,
v.
DISTRICT OF COLUMBIA, et al., Appellees.
No. 92-CV-737.
District of Columbia Court of Appeals.
Argued November 2, 1993.
Decided January 19, 1995.
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.
*308 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 "FUNDAMENT
RIGHT"? 331
A. Definition of "Fundamental Right" 331
B. Appellants' Due Process Claim 332
VI. EQUAL PROTECTION: ARE HOMOSEXUALS A "SUSPECT" OR " QUASI-SUSPE(
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
*309 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 to *310 gender 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 cannot agree. The language and legislative history of the marriage statute demonstrate that neither Congress nor the Council of the District of Columbia has ever intended to define "marriage" to include same-sex unions.
A. Legislative History of the Marriage Statute
On March 3, 1901, Congress enacted the first District of Columbia Code. See An Act to Establish a Code of Law for the District of Columbia, 31 Stat. 1189 , ch. 854 (1901). That Act read: "[A]ll acts of Congress by their terms applicable to the District of Columbia... in force at the date of the passage of this act shall remain in force except in so far as the same are inconsistent with, or are replaced by, some provision of this code." Id., ch. 1, § 1, at 1189. Chapter 43 of the Code addressed marriage; [2] Chapter 22 dealt with *311 divorce. [3] The current marriage provision, D.C.Code §§ 30-101 to -121 and, for the most part, the present divorce provisions, D.C.Code §§ 16-901 to -924 (1989 & Supp. 1993), are essentially the same as those enacted in 1901. [4]
The only significant changes in the marriage and divorce provisions since 1901 occurred in the Marriage and Divorce Act of 1977, D.C.Law 1-107, 1977 D.C.Stat. 114. See generally Samuel Green & John V. Long, The Real and Illusory Changes of the 1977 Marriage and Divorce Act, 27 CATH.U.L.REV. 469 (1978). [5] Before that Act was adopted, however, Councilmember Arrington Dixon had introduced substantially different legislation, Bill No. 1-89, the "District of Columbia Marriage and Divorce" bill, which would have completely repealed and redrafted D.C.Code §§ 30-101 to -121 (1973) (marriage) and §§ 16-901 to -924 (1973) (divorce). See The District of Columbia Marriage and Divorce Act, Bill 1-89 (May 6, 1975, with amendments proposed July 7, 1975) (hereafter Original Bill 1-89). In particular, Bill No. 1-89 would have changed § 30-101 to read: "A marriage between two persons which is licensed, solemnized and registered as provided in this Act is valid in the District of Columbia." (Emphasis added.) Id. During a public hearing on Bill 1-89, Councilmember Dixon explained that the bill would permit marriages between persons of the same sex. See Councilmember Arrington Dixon, Opening Statement at Public Hearings on Bill No. 1-89 2 (June 7-8, 1975). Although the language of the bill did not directly authorize same-sex marriages, proposed § 30-112 expressly referred to such unions and thus indirectly acknowledged their validity:
(a) The court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:
* * * * * *
(2) a party lacks the physical capacity to consummate the marriage by sexual intercourse, and at the time the marriage was solemnized the other party did not know of the incapacity; provided that *312 this clause shall not apply to married persons of the same sex.
Original Bill 1-89, § 30-112 (Emphasis added).
If Bill 1-89 had become law, same-sex marriages clearly would have been authorized in the District. Because of the fervent debate generated by Bill 1-89, [6] however, Councilmember Dixon moved to substitute for original Bill 1-89 another bill proposed by the bar associations. This substitute bill was the one Council enacted as the Marriage and Divorce Act of 1977. See 1977 D.C.Stat. 119. Rather than entirely repealing and redrafting D.C.Code §§ 30-101 to -121 (1973) (marriage) and §§ 16-901 to -924 (1973) (divorce), the 1977 Act merely amended existing code provisions. See COMM. ON THE JUDICIARY AND CRIM.LAW, REPORT ON BILL No. 1-89, THE DISTRICT OF COLUMBIA MARRIAGE AND DIVORCE ACT, at 1-5 (June 24, 1976). The 1977 Act contained no reference to same-sex marriage. In fact, it made only the following two changes in the long-standing marriage chapter:
Sec. 113. (a) Section 1291 of the Act of March 3, 1901 (D.C.Code, sec. 30-110) is amended by striking "names, ages and color" and inserting in lieu thereof "names and ages."[ [7] ]
(b) Section 1296 of the Act of March 3, 1901 (D.C.Code, sec. 30-116) is repealed.[ [8] ]
[O. 7] 1977 D.C.Stat. 119. In sum, the 1977 Act made no change germane to the issue before us; we are left to interpret "marriage" as understood by the Congress that enacted and codified the marriage statute in 1901 and, later, as understood by the Council that implicitly reconfirmed existing provisions of that statute while amending others through the 1977 Act.
B. Statutory Definition of "Marriage"
Because the present marriage statute is essentially the same as the 1901 statute, which was derived from even earlier legislation, see supra note 2, the initial question is: what did Congress intend by the word "marriage" when it enacted the marriage statute in 1901? [9]
Citing our well-known interpretive criteria, appellants stress that we should focus, first, on the plain words of the statute. See Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 753 (D.C.1983) (en banc). They contend that since its inception the marriage statute, standing alone, has been essentially gender-neutral and, for that reason, has always authorized same-sex marriages.
*313 One provision of the present marriage statute—and only one—has always used genderspecific language. [10] The so-called consanguinity provision, D.C.Code § 30-101, refers to marriages of a "man" with a "wife," and of a "woman" with a "husband." [11] Appellants maintain that the policy underlying this provision is the prevention of genetic birth defects and mental retardation, a policy that necessarily would not apply to same-sex couples because they cannot produce children together. From this policy premise, appellants argue that this one statutory exception to gender neutrality in the marriage statute actually substantiates their argument that the right to marry extends to same-sex couples. According to appellants, because the only gender references are contained in a public health provision, relevant only to opposite-sex couples, it follows, perforce, that the omission of gender references in all other provisions of the marriage statute necessarily implies that same-sex marriages are permitted. See McCray v. McGee, 504 A.2d 1128, 1130 (D.C.1986) (basic rule of statutory construction is "that when a legislature makes express mention of one thing, the exclusion of others is implied, because there is an inference that all omissions should be understood as exclusions").
Appellants' argument, by its own terms, only has force if the consanguinity provision is limited to prohibitions against biological inbreeding. It is not. While that concern is obvious in the prohibition of a man's marrying his sister or a woman's marrying her father, there is no genetic danger in other prohibited situations; for example, the prohibitions against a man's marrying his son's wife or a woman's marrying her stepfather. See D.C.Code § 30-101(1) and (2), supra note 11. The consanguinity provision, therefore, reflects taboos—indeed moral judgments about improper marriage relationships—that transcend genetic concerns.
The use of gender-based terminology in § 30-101 to prohibit certain marriages, therefore, reflects a legislative understanding that marriage, as understood by Congress at the time of original enactment and thereafter, is inherently a male-female relationship. If that were not so, some of the statutory prohibitions not based on genetic reproductive concerns either would not be there or, to be consistent, would have been extended, for example, to prohibit a man's marrying his stepfather (just as a man cannot lawfully marry his stepmother) or to prevent a woman's marrying her wife's father (just as a woman cannot lawfully marry her husband's father). See D.C.Code § 30-101, supra note 11.
If appellants were to prevail in their statutory interpretation, the law would permit same-sex couples to enter into some kinds of marriage relationships that the statute forbids for opposite-sex couples, even though *314 such relationships would not be genetically dangerous for any kind of marriage. Indeed, if men could marry men, § 30-101 would not preclude a bi-sexual man who may have had a biological son from marrying that son, or from marrying his own father or brother. We do not believe that Congress, almost a century ago, envisioned such possibilities, given the consanguinity prohibitions imposed on opposite sex couples. See supra note 11. Nor is there any indication that more recent Congresses, or the Council in amending the marriage statute, ever modified the fundamental legislative understanding that "marriage" is limited to opposite-sex couples. Appellants' argument that § 30-101 reflects merely public health limitations, leaving room for all genetically safe marriages regardless of gender, accordingly fails.
In sum, to conclude that Congress intended to permit same-sex marriages would mean that Congress in 1901 intended to permit various categories of genetically safe, same-sex marriages that were denied, though genetically safe, to opposite-sex couples. There is no evidence this was the case; the consanguinity provisions, far from supporting appellants' argument, actually reinforce the government's position that the legislature never had same-sex marriages in mind when adopting, codifying, or amending the marriage statute.
C. The Marriage Statute as Part of a Larger Legislative Scheme, Including the Divorce Statute
Our conclusion that the marriage statute does not authorize same-sex marriages is buttressed by looking at the larger statutory scheme of which it is a part. See Citizens Ass'n of Georgetown v. Zoning Comm'n, 392 A.2d 1027, 1033 (D.C.1978) (en banc) ("It is a canon of statutory interpretation that one looks at the particular statutory language within the context of the whole legislative scheme when legislative intent is to be determined."); see also 2A NORMAN J. SINGER, SUTHERLAND ON STATUTORY CONSTRUCTION § 46.05 (5th ed. 1992). As indicated earlier, see supra notes 2 and 3, the marriage and divorce statutes originally were enacted at different times, but the modern statutes were both enacted in 1901. See supra notes 2 and 9. Nonetheless, these statutes from the beginning have been placed in different chapters of the D.C.Code, perhaps suggesting that they are not part of the same legislative scheme. On the other hand, there is, necessarily, a logical relationship between the marriage and divorce statutes; if same-sex couples can marry then, presumably, they must be able to divorce. Thus, as elaborated below, we can look at the divorce statute for clues as to how Congress, as well as the Council, has understood "marriage."
The divorce statute, traceable to congressional legislation before codification in 1901, see supra note 3, is replete with gender-distinctive references. See D.C.Code §§ 16-901 to -924 (1989). More specifically, the following provisions contain the terms "husband" and "wife": D.C.Code's §§ 16-904(d)(1) (annulment granted if either party has a husband or wife living), -911 (husband or wife must pay alimony to other spouse pending divorce), -912 (husband or wife may retain right of dower in other's estate), -913 (husband or wife may be required to pay alimony when divorce is granted), -916 (court may decree permanent alimony if husband or wife fails to maintain needy spouse). [12] Accordingly, when the marriage statute is read in context with the broader legislative scheme that includes divorce, one cannot say that marriage is gender-neutral.
Although we attribute corroborative, not determinative, significance to the divorce statute's pervasive use of gender terminology, it is significant that Congress enacted and codified the divorce chapter at the same *315 time it enacted and codified the marriage chapter, in 1901, using gender-specific terminology in each. See District of Columbia v. Thompson, 593 A.2d 621, 630 (D.C.1991) (when legislature enacts two statutes at same time and the statutes have similar subject matter and purpose, principle of in pari materia dictates that the statutes should be read with reference to each other). That basic language has been carried forward ever since, both by Congress and by the Council of the District of Columbia. See supra note 3. This statutory evolution, therefore, strongly suggests a consistent legislative understanding and intent that "marriage" means—and thus is limited to—unions between persons of opposite sexes.
D. The Traditional Understanding of "Marriage"
Our statutory understanding is further confirmed by the ordinary sense and meaning traditionally attributed to the word "marriage" when used to indicate an intimate relationship. See Barbour v. District of Columbia Dep't of Employment Servs., 499 A.2d 122, 125 (D.C.1985) ("Words of a statute must be construed by their common meaning and their ordinary sense."); In re Estate of Shutack, 469 A.2d 427, 429 (D.C.1983) ("The words of the statute should be construed according to their ordinary sense and with the meaning commonly attributed to them."). Black's Law Dictionary defines marriage as the "[l]egal union of one man and one woman as husband and wife." BLACK'S LAW DICTIONARY 972 (6th ed. 1990) (emphasis added). The second edition of Black's Law Dictionary printed in 1910—presumably reflecting the common understanding at the time the marriage statute was enacted in 1901—defined marriage as "the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex." BLACK'S LAW DICTIONARY 762 (2d ed. 1910) (emphasis added). Similarly, Webster's Dictionary from 1902 defined "marry" as follows: "[t]o unite in wedlock or matrimony; to join, as a man and woman, for life; to make man and wife." WEBSTER'S MODERN DICTIONARY 281 (1902) (emphasis added). The same dictionary today defines marriage as "the state of being united to a person of the opposite sex as husband or wife." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1384 (1986) (emphasis added). Although this edition of Webster's, as a third definition, defines marriage as "an intimate or close union," see id., and commitment and union are undoubtedly fundamental elements of a marriage, we are satisfied that the ordinary understanding of the word "marriage"—both at the turn of the century when the marriage statute was enacted and in modern times when that statute was amended—means the union of two members of the opposite sex.
Of course, the meanings of words are continually evolving, and we do not overlook the fact that the terms "marriage" and "gay marriage" are used colloquially today to refer to long-term same-sex relationships between gays and between lesbians. See Cory & LeRoy, Homosexual Marriage, 29 SEXOLOGY 660 (1963). Our task, however, is to determine what the legislature intended "marriage" to mean when the marriage statute was enacted, codified, or amended. Given the statutory language used, buttressed by the usual definition of "marriage," we cannot conclude that any legislature for the District of Columbia that has addressed the marriage statute has ever intended to authorize same-sex unions.
E. Case Law from Other Jurisdictions
Although not at all dispositive here, we note that the cases from other jurisdictions with marriage statutes similar to the District's—neither expressly prohibiting nor expressly authorizing same-sex marriages— have uniformly interpreted "marriage," by definition, as requiring two members of opposite sexes. The Supreme Court of Minnesota, for example, explained:
Minn.St. c. 517, which governs "marriage," employs that term as one of common usage, meaning the state of union between persons of the opposite sex. It is unrealistic to think that the original draftsmen of our marriage statutes, which date from territorial days, would have used the term in any different sense. *316 Baker v. Nelson, 291 Minn. 310 , 191 N.W.2d 185, 185-86 (1971), appeal dismissed, 409 U.S. 810 , 93 S.Ct. 37 , 34 L.Ed.2d 65 (1972). See also Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky.1973) (same-sex couple incapable of entering into marriage as the term is defined); M.T. v. J.T., 140 N.J.Super. 77 , 355 A.2d 204, 208 (App.Div.1976) ("requirement that marriage must be between a man and a woman ... is so strongly and firmly implied from a full reading of the statutes that a different legislative intent, one which would sanction a marriage between persons of the same sex, cannot be fathomed"); Singer v. Hara, 11 Wash.App. 247 , 522 P.2d 1187, 1191 (1974) (marriage statute "clearly founded upon the presumption that marriage, as a legal relationship, may exist only between one man and one woman"); Peter G. Guthrie, Annotation, Marriage Between Persons of the Same Sex, 63 A.L.R.3d 1199 , 1199 (1975) ("In all cases so far discovered which have considered the question whether persons of the same sex may marry each other, the view has been taken that since the marriage relationship has always been the union of a man and a woman as husband and wife, there may be no valid contract entered into between persons of the same sex"). [13]
While these cases do not deal with our local statute, they at least reflect the interpretive approach we apply here and thus provide precedent in the sense of analytical support for the result we reach.
F. The Anti-Sex Discriminatory Language Act of 1976
Appellants do not rest on their own interpretation of the marriage statute. They argue that the Council itself, through two separate pieces of legislation, has indirectly confirmed (or reinterpreted) the statutory definition of marriage in ways that guarantee the right to same-sex marriages.
The first interpretive legislation was the Anti-Sex Discriminatory Language Act of 1976. See 1976 D.C.Stat. 194. [14] This Act, which among other things amended the 1901 marriage statute, sought "to achieve equality under the law for men and women by eliminating sex-based distinctions in the District of Columbia Code, so that the rights and responsibilities of persons under D.C. law will not be different solely on the basis of their sex." COMM. ON THE JUDICIARY AND CRIM.LAW, REPORT ON BILL No. 1-36, THE ANTI-SEX DISCRIMINATORY LANGUAGE ACT, at 2-3 (May 20, 1976) (hereafter COMM. REPORT ON BILL 1-36). The Anti-Sex Discriminatory Language Act made only one change in the marriage statute:
Sec. 32. Section 1292 of the Act of March 3, 1901 (D.C.Code, sec. 30-111), is amended by striking out "unless the father of such persons, or if there be no father, the mother," and inserting in lieu thereof "unless a parent."[ [15] ]
1976 D.C.Stat. 201.
Because Councilmember Dixon's Bill 1-89 recognizing same-sex marriages was pending at the time the Council was discussing Bill 1-36 to establish the Anti-Sex Discriminatory Language Act, the Committee on the Judiciary and Criminal Law clarified the relationship between the two bills:
It is true that Bill 1-36 makes substantive changes in the domestic relations law. However, every such change is designed to achieve only one result, i.e., to make the law equal in effect for males and females.... Comprehensive revision of the divorce and marriage laws is contemplated in another Council bill, Bill No. 1-89, the "District of Columbia Uniform Marriage and Divorce act." That bill would make major revisions to local domestic relations law and would do so in a non-sex-discriminatory *317 manner.... [T]he Council should promptly enact Bill 1-36 which would do only one thing—enact the principle of sex equality into the D.C.Code including the domestic relations law. Thereafter, the Council may proceed to consider a more comprehensive revision of the domestic relations law....
COMM. REPORT ON BILL 1-36, at 5-6. This comment clarifies that the Anti-Sex Discriminatory Language Act served a limited purpose: to make the law equal in effect for men and women vis-a-vis each other; for example, it gave mothers a right equal to that of fathers to consent to marriage by a child under 18. See supra note 15. There was not a hint that the legislation was intended to give one class of males, e.g., gay men, an equality with another class of males, e.g., heterosexual men. Thus, the 1976 Act did not revise the substance of the marriage statute to redefine the term "marriage."
G. The 1982 Gender Rule of Construction
Finally, in 1982, the Council adopted a new Gender Rule of Construction, D.C.Law 4-111, § 2(a), 29 D.C.Reg. 1684 (1982), now contained in D.C.Code § 49-203 (1990). Appellants say this Rule conclusively requires interpretation of the marriage statute to authorize same-sex marriages.
This 1982 legislation amended the language of former D.C.Code § 49-203, traceable to the 1901 Code, 31 Stat. 1189 , ch. 854, Preamble, § 2 (Second), which had provided: "Words importing the masculine gender shall include all genders, except where such construction would be absurd or unreasonable." The new Rule also amended the language of D.C.Code § 1-230, adopted in 1975, which had read: "For the purposes of any act or resolution of the Council of the District of Columbia, unless specifically provided otherwise—... (3) words importing one gender include and apply to the other gender as well." 22 D.C.Reg. 1990 (1975). In adopting the new Gender Rule of Construction in 1982, therefore, the Council amended two provisions of the D.C.Code (among others not relevant here). It amended § 49-203 to say: "Unless the Council of the District of Columbia specifically provides that this section shall be inapplicable to a particular act or section, all the words thereof importing 1 gender include and apply to the other gender as well." D.C.Code § 49-203 (1990). And it amended § 1-230(3) to read: "With regard to resolutions, words importing 1 gender include and apply to the other gender as well." D.C.Code § 1-230(3) (1992).
Appellants argue that, when the Council removed the words "except where such construction would be absurd or unreasonable" from the 1901 rule of construction in former § 49-203, without adding a disclaimer with respect to the marriage statute, the Council implicitly authorized same-sex marriages. We cannot agree.
The legislative history of the Gender Rule of Construction makes clear that the Council enacted the Rule in 1982 for one purpose: "to create a consistent gender rule of legislative construction throughout the D.C.Code." COMM. ON PUBLIC SERVICES & CONSUMER AFFAIRS, COMMENTS ON BILL 4-374, THE ANTI-SEX DISCRIMINATORY LANGUAGE ACT AMENDMENT ACT OF 1981, at 1 (Feb. 16, 1982). Wilhelmina J. Rolark, then Chair of the Committee on Public Services & Consumer Affairs, elaborated:
Presently, there are two separate, somewhat inconsistent rules for interpreting statutory words having a gender meaning. Section 49-203 of the Code ( 31 Stat. 1189 , enacted March 3, 1901) provides that "words importing the masculine gender shall be held to include all genders, except where such construction would be absurd or unreasonable." By contrast, Code section 1-230 (D.C.Law 1-17, 22 DCR 1990, effective September 23, 1975) provides that for the purposes of any act or resolution of the Council of the District of Columbia, unless specifically provided otherwise "words importing one gender include and apply to the other gender as well."
Id.
Not only was the original (1901) § 49-203 deficient because it did not apply to feminine gender words— e.g., the word "steward" in a statute would be construed to include a "stewardess," whereas the word "stewardess" in a statute would not be construed to apply to a "steward"—but also that former *318 § 49-203 had "different criteria" from those in former § 1-230 "for determining when the gender rule of construction [would] not apply." COMM. ON THE JUDICIARY, REPORT ON BILL No. 4-374, THE ANTI-SEX DISCRIMINATORY LANGUAGE ACT OF 1981, at 3 (Feb. 10, 1982). The Report to the Members of the Committee on the Judiciary explained:
The "absurd or unreasonable" criteria is found in sec. 49-203. In sec. 1-230, the gender rule of that section applies "unless specifically provided otherwise" by the legislature. Section 2(a) of Bill 4-374 [to adopt the gender Rule of Construction] would make the latter criteria the rule for all statutes in the Code.
Id. Thus, the Council merely intended to make D.C.Code § 49-203 (traceable to 1901) consistent with § 1-230 (adopted in 1975) when, in 1982, it adopted the Gender Rule of Construction to remove the words "except where such construction would be absurd or unreasonable" from former § 49-203.
Had the Council intended to enlarge the statutory definition of "marriage" to include same-sex unions, it surely would have mentioned such a significant intention in the legislative history of the statute implementing the new Gender Rule of Construction. See National Org. for Women v. Mutual of Omaha Ins. Co., 531 A.2d 274, 276 (D.C.1987) (if Council intended such a dramatic change in law, "it is reasonable to assume that there would have been at least some specific reference to it in the language of the Act or, at least, within its legislative history") (hereafter NOW ). The Council did not do so. The Council merely intended to resolve a conflict between two inconsistent rules of construction on the books. We conclude, accordingly, that the Gender Rule of Construction, D.C.Code § 49-203, § 1-230, does not require recognition of same-sex marriages in the District. See NOW, 531 A.2d at 276 .
* * *
The Marriage and Divorce Act of 1977 and the Anti-Sex Discriminatory Language Act of 1976, as well as the Gender Rule of Construction enacted in 1982, did not substantively change the central provisions of the marriage statute enacted and codified in 1901. The commonly understood meaning of "marriage" in those years was limited to a union between a man and a woman. Congress, in enacting and then codifying the marriage statute, used gender-specific language which no later Congress or the Council of the District of Columbia has ever changed. The logically related divorce statute, loaded with even more gender-specific language and codified at the same time as the marriage statute—without subsequent material change affecting the definition of "marriage"—reflects the contemporary, common legislative understanding that marriage requires a man and woman. Indeed, the common societal understanding of marriage, reflected in legal and ordinary dictionary definitions from the last century until today, presupposes a heterosexual union. The courts of other jurisdictions take this view as well.
All this convinces us that no legislature for the District of Columbia—Congress or Council—has ever intended to sanction same-sex marriages. The trial court, therefore, did not err in granting summary judgment for the District on appellants' claim under the marriage statute.
III. THE HUMAN RIGHTS ACT CLAIM
Appellants next contend that, by refusing to issue them a marriage license, the Clerk discriminated against them because of their sex or sexual orientation, in violation of the Human Rights Act, D.C.Code §§ 1-2501 to -2557 (1992). Specifically, appellants argue that when the Marriage License Bureau, a place of public accommodation under the Clerk of the Superior Court, refuses to issue marriage licenses to same-sex couples, gays and lesbians are unlawfully denied an "equal opportunity" to participate in marriage, an important "aspect of life." See D.C.Code §§ 1-2511, -2519, -2532.
Human Rights Act § 1-2519(a)(1) makes it "an unlawful discriminatory practice" for one to "deny, directly or indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations," if the denial is "wholly or partially for a discriminatory reason based *319 on the ... sex ... [or] sexual orientation ... of any individual." A "place of public accommodation" is defined in D.C.Code § 1-2502(24) to include "wholesale and retail stores, and establishments dealing with goods or services of any kind," as well as "public halls and public elevators of buildings and structures." Appellants contend that the Marriage License Bureau is a "place of public accommodation" because it is an "establishment dealing with goods or services of any kind" and is located in the Superior Court building—a "public hall."
On appeal, the government assumes for the sake of argument that the Marriage License Bureau is a place of public accommodation. Furthermore, Elizabeth A. Leader and Barbara R. Lewis, District Human Rights Commissioners who, in their individual capacities, filed an amicae curiae brief on behalf of appellants, argue that all District of Columbia agencies are places of public accommodation, within the meaning of the Human Rights Act, because they provide goods and services to District residents. See also In the Matter of Kevin S. Dickerson v. District of Columbia Department of Human Services, District of Columbia Commission on Human Rights, No. 89-465-PA(N), Final Decision and Order (May 23, 1991) (District of Columbia Department of Human Services is place of public accommodation under Human Rights Act because it provides services to District residents). We, too, assume, without formally deciding, that the Marriage License Bureau is a place of public accommodation for purposes of our analysis.
The Council of the District of Columbia enacted the Human Rights Act of 1977 to "underscore the Council's intent that the elimination of discrimination within the District of Columbia should have the highest priority and that the Human Rights Act should therefore be read in harmony with and as supplementing other laws of the District." COMM. ON PUBLIC SERVICES AND CONSUMER AFFAIRS, REPORT ON BILL No. 2-179, THE HUMAN RIGHTS ACT OF 1977, at 3 (July 5, 1977) (citations and internal quotation marks omitted) (hereafter COMM. REPORT ON BILL 2-179). The Council undoubtedly intended the Human Rights Act to be a powerful, flexible, and far-reaching prohibition against discrimination of many kinds, including sex and sexual orientation.
The Council, however, did not intend the Act to prohibit every discriminatory practice. For example, in NOW, 531 A.2d at 277-78 , we concluded that the Council did not intend the Human Rights Act to apply to the gender-discriminatory actuarial pricing practices of insurance companies. We explained:
It is true that it can be argued with some persuasion that the "plain language" of the Act prohibits discrimination based on gender in the services offered by insurance companies. See D.C.Code §§ 1-2502(24), -2519 (1987). Significantly, however, the statute contains no language purporting explicitly to regulate insurance premium practices. If the Council had intended to effect such a dramatic change in insurance rate-setting practices, it is reasonable to assume that there would have been at least some specific reference to it in the language of the Act or, at least, within its legislative history.
Id. at 276.
Our analysis in NOW, determining whether the Council intended the Human Rights Act to preclude gender-based rate differentials in the insurance statute, dealt with a much clearer case than the one currently before us. In NOW, although the Committee Report and other legislative history never specifically referred to actuarial rating practices, the Council clearly had heard testimony regarding legislation in other states prohibiting discrimination by insurance companies, when the Council considered the 1973 regulation Governing Human Rights, see 34 DCRR (1973) ("Title 34. Human Rights Law"), which is virtually identical to the present Human Rights Act. See NOW, 531 A.2d at 277 . Furthermore, we noted that, throughout the effective period of the Regulation and at the time the Human Rights Act was adopted, the insurance statute expressly allowed a three-year set-back [16] for calculating *320 life insurance premiums for women, but not for men. See id. Finally, we considered the fact that, soon after adopting the Human Rights Act, the Council requested an opinion from the Corporation Counsel as to whether the life insurance set-backs violated the Act. See id. at 278 . The Corporation Counsel issued an opinion saying such action would be lawful, and the Council accordingly increased the permissible set-back for women to six years. See id. Under these circumstances, we concluded that the Act did not preclude such differentials. We emphasized: "If the Council had intended to effect such a dramatic change ..., it is reasonable to assume that there would have been at least some specific reference to it in the language of the Act or, at least, within its legislative history." Id. at 276 .
Although the Council undoubtedly intended the Human Rights Act to be read broadly to eliminate the many proscribed forms of discrimination in the District, we cannot conclude that the Council ever intended to change the ordinary meaning of the word "marriage" simply by enacting the Human Rights Act. Had the Council intended to effect such a major definitional change, counter to common understanding, we would expect some mention of it in the Human Rights Act or at least in its legislative history. See NOW, 531 A.2d at 276 . There is none. See COMM. REPORT ON BILL 2-179. This is not surprising, however, for by legislative definition—as we have seen—"marriage" requires persons of opposite sexes; there cannot be discrimination against a same-sex marriage if, by independent statutory definition extended to the Human Rights Act, there can be no such thing. See Singer, 522 P.2d at 1190-95 (Washington's Equal Rights Amendment does not require the state to authorize same-sex marriage because such relationships are outside definition of marriage).
Furthermore, in 1977, the same Council was considering both the Human Rights Act and the Marriage and Divorce Act legislation. Council members were keenly aware of the gay marriage debate and presumably would have stated their intentions expressly if they had wanted the Human Rights Act, instead of the Marriage and Divorce Act, to expand the marriage statute to authorize same-sex unions. See NOW, 531 A.2d at 277 ("References to other statutes is particularly appropriate when the statutes were enacted by the same legislative body, at the same session."). We therefore cannot conclude that the Council intended the Human Rights Act to change the fundamental definition of marriage. The trial judge properly granted summary judgment for the District on appellants' Human Rights Act claim.
IV. THE CONSTITUTIONAL ISSUES: PROCEDURAL AND ANALYTICAL PREREQUISITES
A. Whether Constitutional Issues Have Been Properly Raised
Because of the way appellants presented their constitutional claims, there is a threshold question whether these claims are properly before this court. The amended complaint refers exclusively to statutory claims under the marriage law and under the Human Rights Act. In appellants' memorandum in support of their motion for summary judgment, however, they argued that the marriage statute "should be read, if it can be, so as to avoid difficult and sensitive constitutional questions." Gay Rights Coalition of Georgetown University Law Center v. Georgetown University, 536 A.2d 1, 16 (D.C. 1987) (en banc) (lead opinion). In other words, appellants argued as a fallback that, even if the trial court rejected their plain language and legislative history arguments, the statute could not survive a limitation to opposite-sex marriages unless that interpretation satisfied the Constitution. Specifically, appellants urged the court to use the approach we employed in Gay Rights Coalition: construe the statute in a way that "saves" its constitutionality—an analysis that inherently requires deciding whether a statute that bars same-sex marriages could withstand due process and equal protection challenges. See id., 536 A.2d at 49 (Ferren, J., concurring in the result in part and dissenting in part) (desire to save statute from constitutional infirmity means "constitutional *321 analysis determines statutory analysis," in contrast with "quite different ... doctrine favoring statutory over constitutional ground for decision when both are independently available").
In its first opinion granting summary judgment for the District, the trial court ignored the constitutional issues plaintiff-appellants had presented. Appellants moved for reconsideration on constitutional grounds, presenting comprehensive arguments, supported by case law and other authorities, explaining why the marriage statute, if upheld, would violate appellants' right to due process and equal protection of the laws. In response, the District contended that, "until the filing of their motion for reconsideration the plaintiffs consistently maintained that their case did not focus upon constitutional issues." The District accused appellants of an "eleventh hour attempt to recast themselves as victims of unconstitutional action." The trial court, however, granted appellants' motion for reconsideration and expressly ruled upon—and rejected—the constitutional claims. The District has not questioned on appeal the propriety of our reaching these issues; and, in any event, given appellants' and the trial court's presentation and resolution, respectively, of the constitutional claims, we conclude they are appropriately before us.
At this point in the constitutional analysis, I write only for myself until Part V., which Judge STEADMAN expressly joins. Neither Judge TERRY nor Judge STEADMAN, however, joins in Part VI.
B. Standard of Review
I turn to our standard of review. This case concerns cross-motions: the District moved to dismiss for failure to state a claim; plaintiff-appellants, presenting affidavits of compliance with all marriage statute application requirements and of rejection by the Clerk of the Superior Court, filed a motion for summary judgment. The trial court granted summary judgment for the District. See Bell v. Jones, 566 A.2d 1059, 1060 (D.C. 1989) (motion for judgment on pleadings requires treatment as motion for summary judgment "when it relies on matters outside the pleadings"); Clay v. Hanson, 536 A.2d 1097 , 1100 n. 3 (D.C.1988) (when judge considers materials beyond pleadings, motion to dismiss for failure to state claim is converted into motion for summary judgment).
"A motion for summary judgment shall be granted `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Kurth v. Dobricky, 487 A.2d 220, 224 (D.C. 1985) (quoting Super.Ct.Civ.R. 56(c)). Courts frequently have emphasized the importance of an adequate record in cases presenting complex constitutional issues, and accordingly they have stressed that, in such cases, summary judgment should be granted sparingly. See, e.g., Felix v. Young, 536 F.2d 1126, 1135 (6th Cir.1976) ("The adequacy of the record is particularly important where the court is called on to decide questions of constitutional law without benefit of a trial."); Waldie v. Schlesinger, 166 U.S.App.D.C. 175, 177 , 509 F.2d 508, 510 (1974) ("a full development of the facts of these [equal protection] cases is essential to any meaningful assessment of appellant's claim"); see generally 6 Part II JAMES WILLIAM MOORE, MOORE'S FEDERAL PRACTICE ¶ 56.1710 (1988); 10A CHARLES ALLEN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2732.2 (1983).
The parties here do not dispute the basic, historical facts giving rise to the claim: appellants applied for a marriage license; if they had been an opposite-sex couple they would have qualified under the marriage statute; the clerk denied their application because they both are men. [17] No party, *322 moreover, has asked for a trial. Thus, the only question the parties present is whether, on the undisputed facts of record, the District or the appellants should be "entitled to a judgment as a matter of law," Super.Ct.Civ.R. 56(c) (1993)— i.e., of constitutional law.
If, as it turns out, neither side is entitled to summary judgment, we must reverse the judgment for the District and remand the case for trial, even though no party has asked for one; each side's request for a summary remedy in its favor does not nullify the right to a trial if summary judgment is denied. See Super.Ct.Civ.R. 56(d) (elaborating procedure when summary judgment is "not rendered upon the whole case or for all the relief asked and a trial is necessary"); Estate of Wells v. Estate of Smith, 576 A.2d 707 , 709 & 709 n. 1 (D.C.1990) (ordinarily upon reversal of summary judgment, appellate court remands for trial unless "remand would be futile," e.g., if the "only persons with knowledge of the [relevant] historical facts ... are deceased") (citations omitted).
C. Relevance of the Distinction Between "Adjudicative Facts" and "Legislative Facts"
The fact that this case is presented on appeal purely as a question of law, based on undisputed facts, is troublesome, if not deceptive, because there are two kinds of fact at issue: "adjudicative facts" and "legislative facts."
1. In General
Courts use the term "adjudicative fact" to describe the events which have happened between the parties. See State v. Erickson, 574 P.2d 1, 4 (Alaska 1978) ("Adjudicative facts ... are those facts which explain who did what, when, where, how, and with what motive and intent.") (citation omitted); FED. R.EVID. 201 advisory committee's note (a) (1994) ("Adjudicative facts are simply the facts of the particular case"); see also Lewis v. United States, 408 A.2d 303 , 311 n. 11 (D.C.1979) (calling adjudicative facts "legal" facts); DONALD L. HOROWITZ, THE COURTS AND SOCIAL POLICY 45 & n. 58, 275 (1977) (calling adjudicative facts "historical facts").
"Legislative facts," in contrast, are patterns of social, economic, political, or scientific behavior or other data that a court inevitably uses to inform and shape the policy judgments it often has to make in deciding newly-presented questions of law. See Lewis, 408 A.2d at 311 n. 11; Erickson, 574 P.2d at 5 ; HOROWITZ, supra, at 45, 275; see generally JOHN MONAHAN & LAURENS WALKER. Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U.PA.L.REV. 477, 482-84 (1986). Courts, for example, may have to evaluate the impact of a proposed cross-racial adoption on a child's sense of identity, in order to decide the child's best interest, see In re R.M.G., 454 A.2d 776 (D.C.1982), or the court may have to ascertain the accuracy of a particular test for drugs, as it bears on guilt or innocence of a charged drug offense, see Jones v. United States, 548 A.2d 35 (D.C.1988). Such instances require the court to find social or scientific facts that transcend the individual case but determine, sometimes conclusively, how the case shall be decided. While deciding cases day-to-day, therefore, courts cannot help finding, and relying on, legislative facts; that process is inherent in the courts' answering questions of law and thus is not left exclusively to legislatures. See Erickson, 574 P.2d at 5-6 ; FED.R.EVID. 201 advisory committee's note (a). [18]
*323 As explained later, the question whether the state invidiously discriminates against homosexuals by withholding from same-sex couples the right to marry inevitably presents sub-questions about the nature and causes of homosexuality and, as a result, confronts this court with issues of legislative fact-finding. It is therefore necessary to explore in greater detail the judicial process of finding legislative facts. As discussed more fully below, courts traditionally answer questions of legislative fact, and thus questions of law, not only by referring to evidence of record but also by considering non-record sources such as scientific and social science studies found in law reviews and other journals. See generally Lewis, 408 A.2d at 311 n. 11; Erickson, 574 P.2d at 5 ; 2 MCCORMICK ON EVIDENCE § 331 (4th ed. 1992), at 398-402; HOROWITZ, supra, at 45, 275. The extent to which courts can properly use non-record sources in this way is a difficult and sometimes controversial subject, as we shall see.
In any event, as a prelude to discussion of the constitutional issues in this case, I believe I not only must elaborate the distinctions between adjudicative and legislative facts, but also must evaluate and apply the respective processes required for each kind of fact-finding—all in aid of deciding whether this case, factually, is ripe for summary judgment or requires a remand for trial.
2. "Adjudicative" and "Legislative" Facts Distinguished
In this case, all the undisputed facts plaintiff-appellants have supported by affidavits, see supra note 17, and presented for summary judgment as a matter of law are "adjudicative" facts: appellants are both men; they are residents of the District; they are not disqualified by any of the enumerated prohibitions under the marriage statute; they applied for a marriage license from the District's Marriage License Bureau, presenting valid blood tests and the name of an authorized person willing to perform the marriage ceremony; the Clerk of the Superior Court denied them a marriage license solely on the ground that the District of Columbia Code does not authorize marriage between persons of the same sex; they would have been issued a marriage license if they were a heterosexual couple; and the denial of a marriage license potentially denies them an extraordinary number of tangible benefits, based upon marital status, enumerated in the District of Columbia Code. [19]
*324 The first question, then, is whether these adjudicative facts are enough to resolve, through summary judgment, a same-sex couple's constitutional challenge to the marriage statute. The most useful way to answer this question is to focus, for purposes of illustration, on equal protection of the laws, for which the ultimate legal question in this case is whether the marriage statute discriminates, without sufficient justification, against members of a constitutionally protected class (allegedly, unrelated adult homosexual couples). Compare Plyler v. Doe, 457 U.S. 202, 223-24 , 102 S.Ct. 2382, 2397-98 , 72 L.Ed.2d 786 (1982) (children of illegal aliens comprise protected class) with Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312 , 96 S.Ct. 2562, 2566 , 49 L.Ed.2d 520 (1976) (police officers over age 50 do not comprise protected class).
This statement of the ultimate issue requires the court to frame questions of adjudicative fact in a particular way: Are the plaintiffs actually members of the allegedly protected class? (Yes; they are both homosexual men.) Have they been treated in a discriminatory manner? (Yes; they have been denied a marriage license that would have been issued to an adult heterosexual couple.) [20]
The questions continue: Are members of the allegedly protected class (homosexual couples) entitled to greater constitutional protection against discriminatory treatment than members of other groups? Depending on the level of protection required, has the law unfairly discriminated against members of the allegedly protected class (homosexual couples)? These formulations are, fundamentally, questions of law, not questions of fact, since they focus on legal determinations: "entitlement" to "greater protection," and on "fairness" or "unfairness" of discriminatory treatment. As I have indicated, however, the answers to these questions are determined, ultimately, not only by reference to the relevant adjudicative facts outlined above, but also by consideration of so-called "legislative facts." More specifically, the legal question whether the state, in withholding the marriage statute from same-sex couples, violates their constitutional right to equal protection of the laws may turn to an appreciable extent on whether homosexuality is, to take the extremes, a genetically determined *325 or a learned orientation. It is therefore critical to understand how such questions are, if at all, to be answered. This requires in-depth understanding of the court's legislative fact-finding process.
Legislative facts—for example, the sub-category "social facts"—often are the critical facts used for answering major questions of constitutional law. See, e.g., Brown v. Board of Education, 347 U.S. 483, 494 , 74 S.Ct. 686, 691-92 , 98 L.Ed. 873 (1954) (demonstrable social fact that racial segregation of public schools "generates a feeling of inferiority as to [Negro children's] status in the community that may affect their hearts and minds in a way unlikely ever to be undone"); In re R.M.G., 454 A.2d at 787-88 (in "significant number of instances" persons responsible for adoption decisions "will not be able to focus adequately on an adoptive child's sense of identity, and thus on the child's best interest, without considering race") (opinion of Ferren, J.); id., 454 A.2d at 802 (Newman, J., dissenting) ("A degree of race-consciousness is permissible to the achievement of [child's best] interest, because certain potential future hardships to the child arise when the parents are of a different race.").
Similarly, legislative facts can be outcome-determinative "political" or "economic" facts. See, e.g., Baker v. Carr, 369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962) (recognition, based on political facts, of political disincentives to legislative cure for malapportionment of legislative representation); SEC v. Capital Gains Research Bureau, Inc., 300 F.2d 745, 750-51 (2d Cir.1961) (judicial notice of economic facts tending to prove advice tendered by small advisory service could not influence stock market), rev'd, 375 U.S. 180 , 84 S.Ct. 275 , 11 L.Ed.2d 237 (1963) (judicial notice of economic facts tending to prove the contrary).
Legislative facts also include "scientific facts," providing answers, for example, to the question whether "`DNA' profiling evidence is admissible to corroborate the identification of a defendant in a criminal case," United States v. Porter, 618 A.2d 629, 630 (D.C. 1992), or to the question whether drug-testing with the so-called EMIT system has general acceptance in the scientific community, see Jones, 548 A.2d at 39-47 , or to the question whether cocaine could properly be characterized as a "narcotic" under a criminal statute, requiring inquiry into both pharma-cological properties and psychological impact, see Erickson, 574 P.2d at 4-10 .
The Supreme Court of Alaska has nicely summarized the uses courts make of legislative facts:
Legislative facts come into play when the court is faced with the task of deciding the constitutionality of a statute, statutory interpretation or the extension or restriction of a common law rule upon grounds of policy. These policy decisions, as in the case at hand, often hinge on social, political, economic, or scientific facts, most of which no longer fall within the classification of irrefutable. Cases involving such decisions cannot be decided adequately without some view by the court of the policy considerations and background upon which the validity of a particular statute or rule is grounded.
MCCORMICK ON EVIDENCE, § 334 (2d ed. 1972), alludes to the proposition that the topic of judicial notice, particularly as to legislative facts, does not conveniently fit within the structured confines of the law of evidence, but rather is more appropriately categorized in the more general area of judicial reasoning. A distinction must be made between evidence of the particular facts of a case, which can be accepted only through prescribed methods calculated to assure credibility, and those [legislative] facts which are of greater policy significance in that they describe aspects of our larger environment and form the basis upon which adjudicative facts are evaluated. It is a slippery distinction at best; but it is one that has been drawn by [Professor Kenneth Culp] Davis, incorporated into the federal rules, and at least implicitly recognized in nearly every situation where a court has been called upon to address a question of policy in evaluating the rationality or reason behind a statute or rule.
Erickson, 574 P.2d at 5-6 (footnotes omitted) (emphasis added).
The Federal Rules of Evidence also stress the distinction between adjudicative and legislative *326 facts. The Advisory Committee Note points out that FED.R.EVID. 201 is limited to "judicial notice of adjudicative facts," and that no federal rule of evidence "deals with judicial notice of legislative facts." FED. R.EVID. 201 advisory committee's note (a). Far from disparaging court involvement in legislative fact-finding, however, the Advisory Committee simply notes that only adjudicative facts can meet the "high degree of indisputability [that] is the essential prerequisite" to formally taking "judicial notice." The Committee then quotes from Professor Davis, see supra note 18, and others, who encourage judges to make their own findings of legislative fact, not only from the trial record but also from sources outside the record as needed, to inform their judicial reasoning—even though admittedly such facts, when found, will not be "indisputable." Under this view, legislative fact-finding is akin to legal research, except that the judge is free to consult non-legal sources as well (sometimes found in law reviews featuring interdisciplinary articles). Seen in this way, a judge who studies journals of social science, for example, in aid of constitutional rulings is, perhaps, better characterized as engaging in the process of answering questions of law than of taking judicial notice of legislative facts. See 2 MCCORMICK, supra, § 331.
It may appear that, through legislative fact-finding, the trial or appellate judge is on a personal frolic, divorced too much from the parties' presentations, but that is an incorrect perception, and it would be wrong to say the traditional approach to legislative fact-finding is inappropriate or altogether unsatisfactory. The real concern is not whether judges should engage in legislative fact-finding; they inevitably do. No one can persuasively argue that the courts have no business deciding, for example, whether a particular drug fits the statutory definition of a "narcotic," see Erickson, 574 P.2d at 18-23 , or whether race affects a child's sense of identity, for purposes of determining whether a cross-racial adoption will be in the child's best interest, see In re R.M.G., 454 A.2d at 791-94 . Courts rarely can avoid such issues. The concern, rather, is that certain kinds of legislative facts may be too difficult to ascertain, or simply may be too controversial, for a court—rather than the legislature itself—to decide. I will return to this "difficulty" or "controversy" theme later; the point here is to make clear that there is quite a difference between saying a court should not engage in any legislative fact-finding and saying a court should stay away from particular legislative fact-finding. The former would be ill-advised and often impossible; the latter, on occasion, may be prudent.
3. Judicial Process of Legislative Fact-Finding
Overt legislative fact-finding is traceable to Muller v. Oregon, 208 U.S. 412, 419-20 , 28 S.Ct. 324, 325-26 , 52 L.Ed. 551 (1908), where the Supreme Court upheld the constitutionality of an Oregon law limiting women's factory work to ten hours a day after relying on amicus attorney Louis D. Brandeis's brief, which had presented 90 reports of committees, bureaus of statistics, commissioners of hygiene, and inspectors of factories detailing how long working hours, under the circumstances, were dangerous to women. Justice Holmes later summarized the principle: "A judge sitting with a jury is not competent to decide issues of fact; but matters of fact that are merely premises to a rule of law he may decide." Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 227 , 29 S.Ct. 67, 70 , 53 L.Ed. 150 (1908). [21]
*327 Accordingly, whereas adjudicative facts are found exclusively on the basis of trial testimony by so-called fact witnesses and of properly verified documentary evidence, legislative facts are often found differently. The "process set up to establish the one is not necessarily adequate to ascertain the other." HOROWITZ, supra, at 45. Legislative facts commonly are found after hearing testimony, by qualified experts, but that testimony is usually buttressed by judicial attention not only to other court decisions but also to scientific or social science literature, including books, treatises, law reviews, and other journals containing useful information not of record. [22] Legislative facts also sometimes are found exclusively in non-record sources, [23] such as a party's "Brandeis brief" and the judge's own research, without help from expert testimony. See e.g., Brown, 347 U.S. at 489-94 , 74 S.Ct. at 688-91 ; McLean v. Arkansas, 211 U.S. 539, 549-50 , 29 S.Ct. 206, 208-09 , 53 L.Ed. 315 (1909); Muller, 208 U.S. at 419-20 , 28 S.Ct. at 325-26 ; Ribnik v. McBride, 277 U.S. 350, 363-72 , 48 S.Ct. 545, 548-52 , 72 L.Ed. 913 (1928) (Stone, J., dissenting).
The idea of gathering non-record information appears antithetical to the traditional understanding of sound judicial fact-finding; but, as we have seen with respect to legislative (though not adjudicative) facts, it is done every day as judges—especially appellate judges—search for authority to resolve difficult legal issues requiring policy resolution. Cross-examination of such non-record material, of course, is missing, except insofar as author contests author and the judge applies his or her own critical faculties to the debate. All the data is then tested against legal norms.
In short, the appellate judge tests the parties' proffers of legislative fact against reasoned, published authorities who have attempted to seek the truth through documented research, often critical of earlier efforts. This is the process that Justice Holmes called merely identifying premises for adopting a rule of law, see Prentis, 211 U.S. at 227 , 29 S.Ct. at 69-70 , and that Professors Morgan, Davis, and others have characterized as part of judicial reasoning and law-making rather than of traditional fact-finding. See, e.g., E.M. Morgan, Judicial Notice, 57 HARV. L.REV. 269, 270-71 (1944); K.C. Davis, An Approach to Problems of Evidence in the Administrative Process, 55 HARV.L.REV. 364, 403 (1942); J.B. THAYER, PRELIMINARY TREATISE ON EVIDENCE 279-80 (1898); Erickson, 574 P.2d at 5-6 .
How can legislative fact-finding best be conducted? Ideally, several qualified experts on all sides of a social or scientific issue would appear in the trial court, subject to cross-examination not only about their own views but also about the views of other testifying experts, as well as the views of non-testifying authors of seminal articles on the subject. Indeed, ideally the very authors of the most probative studies would be among the experts who testify. In this way, highly qualified expert testimony would serve at least three important functions: focus the court's attention on the most relevant concerns, present the range of informed opinion on the subject, and both identify and critique the most probative literature. The court, *328 therefore, would achieve a sharpened, presumably reliable insight into complicated matters that, without such help, would be much more difficult for the judge to understand.
The dollar costs and time required for the ideal approach may be prohibitive, however, with the result that a typical hearing will involve only a few experts, often extreme proponents for the parties' respective views, who are likely not to be particularly well qualified and may not provide sufficient, let alone trustworthy, data permitting the court to rule with confidence. This court accordingly has stressed—for example, in connection with expert testimony on the question whether there is a consensus in the scientific community on the accuracy of EMIT drug testing—that non-record sources of information may be crucial to sound legislative fact-finding; "reference to such outside sources may be useful in exposing a proffered expert's bias or incompetence." Jones, 548 A.2d at 42 .
Professor Donald L. Horowitz, who has substantial reservations about the capacity of courts to make social policy, is skeptical in part because he worries that the experts selected to testify as to legislative facts too often will lack sufficient qualifications, and that evidentiary rules—in particular FED. R.EVID. 803—will keep out of the trial record seminal studies the courts should know about. He therefore advocates rules changes
to admit books and articles on matters of social fact directly into evidence as exhibits, not require as a precondition that an expert refer to them in his [or her] testimony,[ [24] ] abolish the favored position of government reports,[ [25] ] and permit counsel to attack the reliability of the studies directly. This is no panacea, but it would bring the judge one step closer to the original materials, permit him [or her] more easily to check the statements of advocates and interpreters, and—since the studies will be more readily accessible to the judge—perhaps encourage expert witnesses to gear their presentations more closely to what the studies do and do not in fact show. So far, expert witnesses have had too much latitude to parade their own preferences as science.
HOROWITZ, supra, at 281. In short, Professor Horowitz has greater confidence in legislative fact-finding directly by judges than he does in building a trial record with expert testimony—unless, presumably, the judge can supplement the record by any means necessary to reach critical sources that will help the judge test the experts when counsel have not effectively completed the job. If, as others have said, trial and appellate judges, as fact-finders, are presently allowed unlimited access to non-record sources of legislative fact, then of course Professor Horowitz's concerns about the rules of evidence have become substantially moot.
Based on the foregoing considerations, it is questionable whether a hearing with expert testimony about issues of legislative fact "would reveal more reliable or higher quality information than is available by referring to authorities submitted in briefs by both sides, and, in appropriate cases, by additional research at the appellate level." Erickson, 574 P.2d at 6 . The advantage of such a costly exercise is likely, on too many occasions, to be marginal at best, and the further away the hearing is from the ideal model I have posited (using the most highly qualified experts), the more the judge will confront distorted, perhaps even biased, presentations and thus have to rely primarily on many non-record sources for critical scientific or social science information. See generally Erickson, 574 P.2d at 4-7 .
It is clear, of course, that a trial judge, or an appellate court reviewing a dismissal or summary judgment order, has discretion to order a hearing to help establish legislative facts. For example, in Chastelton Corp. v. *329 Sinclair, 264 U.S. 543 , 44 S.Ct. 405 , 68 L.Ed. 841 (1924), when a landlord claimed that an emergency justifying rent control was at an end and that continuing such regulation was unconstitutionally confiscatory, Justice Holmes opined:
It is conceivable that, as is shown in an affidavit attached to the bill, extensive activity in building has added to the ease of finding an abode. If about all that remains of war conditions is the increased cost of living, that is not in itself a justification of the act. Without going beyond the limits of judicial knowledge, we can say at least that the plaintiffs' allegations cannot be declared offhand to be unmaintainable, and that it is not impossible that a full development of the facts will show them to be true. In that case the operation of the statute would be at an end.
We need not enquire how far this Court might go in deciding the question for itself, on the principles explained in Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 227 [ 29 S.Ct. 67, 69-70 , 53 L.Ed. 150 ]. See Gardner v. Collector, 6 Wall. 499 [ 18 L.Ed. 890 ]. South Ottawa v. Perkins, 94 U.S. 260 [ 24 L.Ed. 154 ]. Jones v. United States, 137 U.S. 202 [ 11 S.Ct. 80 , 34 L.Ed. 691 ]. Travis v. Yale & Towne Manufacturing Co., 252 U.S. 60, 80 [ 40 S.Ct. 228, 232 , 64 L.Ed. 460 ]. These cases show that the Court may ascertain as it sees fit any fact that is merely a ground for laying down a rule of law, and if the question were only whether the statute is in force today, upon the facts that we judicially know we should be compelled to say that the law has ceased to operate. Here however it is material to know the condition of Washington at different dates in the past. Obviously the facts should be accurately ascertained and carefully weighed, and this can be done more conveniently in the Supreme Court of the District [a trial court] than here. The evidence should be preserved so that if necessary it can be considered by this Court.
Id. at 548-49, 44 S.Ct. at 406 (emphasis added). Justice Holmes, though mindful of the appellate court's authority to find its own legislative facts, concluded that, for the particular kind of facts at issue—conditions of the District of Columbia housing market over time—it would be more "convenient" for the trial court to do the work.
In every case, therefore, an appellate court has discretion, based on the nature of the inquiry and the trial court record, to determine how to decide questions of law when the record itself does not supply testimony or other documentation adequate for finding essential legislative facts. Certainly, the appellate court can remand for further proceedings as needed, see Chastelton Corp., 264 U.S. at 548-49 , 44 S.Ct. at 406-07 , but the court also can say, without fear of jurisprudential heresy, that the data proffered by the parties, as well as by the trial court, from non-record, uncross-examined sources, when supplemented by the appellate court's own like research, will suffice in a particular case for constitutional decision-making.
This prescribed free rein for judges to consult non-record sources for legislative facts to inform their policy judgments is not without limit, however.
While not necessarily undisputably true, it would appear that these legislative facts must at least appear to be more likely than not true if the opinion is going to have the requisite intellectual legitimacy upon which the authority of judge-made rules is ultimately founded.
2 MCCORMICK, supra, § 331, at 400 (emphasis added). Accordingly, despite the appropriateness, indeed the desirability if not necessity, of judges' conducting their own research in non-record, even non-proffered, sources, that exercise must reflect intellectual integrity such that the result, if not irrefutable, at least is unquestionably principled.
The point not to be forgotten, however, as Professor Horowitz has emphasized, is that the likelihood of expert testimony of record being superior to the court's own resourcefulness in finding legislative facts is often highly questionable. See HOROWITZ, supra, at 281. The quality of the paid experts too often will be limited to persons who have not done the most careful studies themselves and, in any event, may have an ax to grind that, absent very skillful cross-examination, can create a record that hides the real truth. See id. It *330 may be more "convenient" for an appellate court to remand for relatively easy legislative fact-finding, as in Chastelton Corp., where collection and presentation of historical economic data (housing market conditions) is likely to be straightforward, akin to adjudicative fact-finding. Arguably, the more complex the issue—for example, the nature and causes of homosexuality—the greater the risk that a hearing will yield no better, and perhaps less satisfactory, results than nonrecord sources, including a judge's own research into primary data, helped along, of course, by counsel's advocacy. See HOROWITZ, supra, at 281.
Whether the process I have been discussing is called legislative fact-finding or answering questions of law, the exercise is all the more difficult because legislative facts not only are rarely "indisputable" or "irrefutable" but also commonly change from time to time, whether they are "social," "political," "economic," or "scientific" facts. In contrast with adjudicative facts, which typically are static, see Lewis, 408 A.2d at 311 n. 11, legislative facts are "not necessarily immutable" because they typically involve patterns of behavior—or understandings of patterns of behavior—that can change over time. See HOROWITZ, supra, at 275.
Patterns can and sometimes do change, especially at the lower levels of analysis at which verifiable propositions are likely to be found. If law is to follow behavior, it must constantly monitor such changes—a most difficult undertaking.
Id. (quoted in Lewis, 408 A.2d at 311 n. 11).
The difficulties of legislative fact-finding— especially its differences from traditional, record-based adjudicative fact-finding—cause some lawyers and judges to say that, at least in difficult, controversial cases, legislative fact-finding should be left to the legislature. Perhaps they say this out of a belief that legislatures are better equipped to find such facts, since everyone even marginally interested in a matter has standing to be heard and, presumably, helps round out the record. But saying that proves too much, for the legislative process, virtually by definition, usually plays to majorities, and legislators can use any variety of protest or inconclusiveness of fact to ignore or defer attention to serious, often worthy claims of constitutional rights advanced by victimized minorities.
The truth is, a legislative hearing is not necessarily better suited than a court hearing is to making supportable findings, for example, about the nature and causes of homosexuality, including its degree of immutability. In fact, there is no guarantee that a legislature would ever find reason—or political courage—to schedule such a hearing. In contrast with legislatures, however, the courts are commissioned, among other things, to assure constitutional due process and equal protection of the laws for minorities, without fear of electoral consequences— especially in jurisdictions, such as ours, where judicial selection is immune from popular vote. Difficult as it may be to determine legislative facts for making social and legal judgments about the constitutional rights of homosexuals, the courts have been asked to do so, they are obligated to do so, and they are as equipped as any institution to do so.
* * * * * *
In sum, the question whether appellants' constitutional rights to due process and equal protection of the laws, while not presenting any genuine issue of material "adjudicative" fact in this case, requires "a most difficult undertaking," id.: ascertainment and application of "legislative" facts that include, as we shall see, some findings about the origins of homosexuality and the extent to which sexual orientation is immutable. For that fact-finding (or call it answering questions of law), both parties have relied exclusively on case law and on non-record sources: law reviews, scientific articles, social science compilations. No expert testimony has been proffered. Whether this particular invitation for judicial findings of legislative fact provides enough material, along with our own research, for this court to rule definitively here is a critical, very difficult question. I defer the answer until I explore the parties' presentations. In doing so, I will rely not only on case law but also on scientific and social science sources proffered by the parties—and found on my own—of the sort *331 judges traditionally rely on to decide constitutional questions of the magnitude presented.
V. CONSTITUTIONAL DUE PROCESS: IS SAME-SEX MARRIAGE A "FUNDAMENTAL RIGHT"?
Appellants contend that interpreting the marriage statute in a manner that denies same-sex couples the opportunity to marry violates their constitutional rights. Specifically, they argue, first, that even if marriage is traditionally understood and statutorily defined to include only opposite-sex couples, this limitation of the right to marry unconstitutionally burdens gays' and lesbians' "fundamental right" to marry as they choose—a right protected by the due process clause of the Fifth Amendment. I speak now for the division majority; we conclude that same-sex marriage is not a "fundamental right" protected by the due process clause, because that kind of relationship is not "deeply rooted in this Nation's history and tradition." Moore v. City of East Cleveland, 431 U.S. 494, 503 , 97 S.Ct. 1932, 1938 , 52 L.Ed.2d 531 (1977).
A. Definition of "Fundamental Right"
The Supreme Court initially characterized as fundamental rights, entitled to heightened judicial protection under the due process clause, those privileges and immunities that belong to someone as a citizen of the United States—and thus cannot be denied by the states—because they are "implicit in the concept of ordered liberty." Palco v. Connecticut, 302 U.S. 319, 325 , 58 S.Ct. 149, 152 , 82 L.Ed. 288 (1937) (Fifth Amendment double jeopardy clause did not bar state's appealing second degree murder conviction for alleged evidentiary and instructional errors and, upon obtaining reversal, retrying defendant for first degree murder) (emphasis added). In rejecting the argument that the Fourteenth Amendment incorporates and forbids whatever the Fifth Amendment forbids, Palko announced the so-called selective incorporation approach. The Court characterized the fundamental rights that are so incorporated, and thus binding on the states, as those having their "source in the belief that neither liberty nor justice would exist if they were sacrificed." Id. at 326 , 58 S.Ct. at 152 . [26]
Over thirty years later, the Court held that "the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court—would come within the Sixth Amendment's guarantee." Duncan v. Louisiana, 391 U.S. 145, 149 , 88 S.Ct. 1444, 1447 , 20 L.Ed.2d 491 (1968). The Court premised its ruling on a belief "that trial by jury in criminal cases is fundamental to the American scheme of justice," id. (emphasis added)—a fundamental-right formulation the Court expressly recognized as somewhat different from Palko 's. See Duncan, 391 U.S. at 149 n. 14, 88 S.Ct. at 1447 -48 n. 14. [27]
Finally, in Moore v. City of East Cleveland (plurality opinion), the Court overturned a conviction under a housing ordinance that denied certain family members the right to live together. The Court premised its decision on the due process clause, which "protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition." 431 U.S. at 503 , 97 S.Ct. at 1938 (footnote omitted) (emphasis added). [28]
*332 This brings us to Bowers v. Hardwick, 478 U.S. 186 , 106 S.Ct. 2841 , 92 L.Ed.2d 140 (1986), which presented the question "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in [consensual] sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." Id. at 190 , 106 S.Ct. at 2843 . The Court answered "No," expressly reserving the question whether the Georgia statute criminalizing sodomy is constitutional as applied to consensual heterosexual sodomy. See id. at 188 n. 2, 106 S.Ct. at 2842 n. 2 ("We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy."). Writing for the majority, Justice White quoted both Palko and Moore (reflecting the range of "fundamental right" formulations under the due process clause) and concluded that "neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy." Id. at 192, 106 S.Ct. at 2845 .
As in Hardwick , we need not resolve where, along the continuum between Palko and Moore , the correct formulation falls. As elaborated below, we conclude that even under Moore 's most inclusive definition of "fundamental right," appellants' due process claim fails.
B. Appellants' Due Process Claim
The "freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men [and women]." Loving v. Virginia, 388 U.S. 1, 12 , 87 S.Ct. 1817, 1824 , 18 L.Ed.2d 1010 (1967). More specifically, the Supreme Court has emphasized that "the right to marry is part of the fundamental `right of privacy' implicit in the Fourteenth Amendment's Due Process Clause." Zablocki v. Redhail, 434 U.S. 374, 384 , 98 S.Ct. 673, 680 , 54 L.Ed.2d 618 (1978). In addressing a Wisconsin law that prohibited a couple from marrying if one of them had an outstanding child support obligation, the Court in Zablocki explained: "When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." Id. at 388 , 98 S.Ct. at 682 . The Court then concluded that an unpaid child support obligation did not give the state a sufficiently compelling reason to deny the couple the fundamental right to marry, and thus the Court declared the law invalid as an unconstitutional denial of equal protection of the laws. See id. at 388-91 , 98 S.Ct. at 682-84 .
An historical survey of Supreme Court cases concerning the fundamental right to marry, however, demonstrates that the Court has called this right "fundamental" because of its link to procreation. See Baehr v. Lewin, 74 Haw. 530 , 852 P.2d 44, 55 (1993). The Court first discussed marriage as a fundamental right in Skinner v. Oklahoma, 316 U.S. 535 , 62 S.Ct. 1110 , 86 L.Ed. 1655 (1942), a case striking an Oklahoma statute that allowed the state to sterilize habitual criminals without their consent. In explicating *333 the rationale for decision, the Court stressed that "[m]arriage and procreation are fundamental to the very existence and survival of the race." Skinner, 316 U.S. at 541 , 62 S.Ct. at 1113 . In Zablocki , moreover, the Court explained:
It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.... [I]f appellee's right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.
434 U.S. at 386 , 98 S.Ct. at 681 (footnote omitted). See also Loving, 388 U.S. at 12 , 87 S.Ct. at 1824 ("Marriage is one of the `basic civil rights of man,' fundamental to our very existence and survival.") (quoting Skinner, 316 U.S. at 541 , 62 S.Ct. at 1113 ).
Although we recognize that gay and lesbian couples can and do have children through adoption, surrogacy, and artificial insemination, see Developments in the Law—Sexual Orientation and the Law, 102 HARV.L.REV. 1508, 1642-60 (1989) (hereafter Sexual Orientation and the Law ), and that not all heterosexual married couples are able, or choose, to procreate, we cannot overlook the fact that the Supreme Court has deemed marriage a fundamental right substantially because of its relationship to procreation. Thus, in recognizing a fundamental right to marry, the Court has only contemplated marriages between persons of opposite sexes— persons who had the possibility of having children with each other. See Baehr, 852 P.2d at 56 ; see generally Note, Homosexuals' Right to Marry: A Constitutional Test and a Legislative Solution, 128 U.PA.L.REV. 193, 200-02 (1979) (hereafter Homosexuals' Right to Marry ).
The question, then, is whether there is a constitutional basis under the due process clause for saying that this recognized, fundamental right of heterosexual couples to marry also extends to gay and lesbian couples. The answer, very simply, is "No." Even without reference to Hardwick 's constitutional approval of statutes criminalizing consensual sodomy, we cannot say that same-sex marriage "is deeply rooted in this Nation's history and tradition." Moore, 431 U.S. at 503 , 97 S.Ct. at 1938 . Indeed, the District of Columbia marriage statute reflects an altogether different tradition. Accordingly, same-sex marriage cannot be called a fundamental right protected by the due process clause.
VI. EQUAL PROTECTION: ARE HOMOSEXUALS A "SUSPECT" OR "QUASI-SUSPECT" CLASS?
A. The Trial Court's Ruling
I write, once again, only for myself, and thus, in the balance of this opinion, respectfully dissent from the judgment to affirm.
Appellants also maintain that the statute limiting marriage to opposite-sex couples unconstitutionally discriminates against them as a gay couple, in violation of their Fifth Amendment right to equal protection of the laws. [29] The trial court rejected this contention in a Supplemental Memorandum Opinion and Order of June 2, 1992. The court concluded that homosexuals comprise neither a "suspect" class mandating "strict scrutiny" of the statutory bar against same-sex marriage, nor a "quasi-suspect" class requiring "intermediate scrutiny" of the marriage barrier. See Plyler v. Doe, 457 U.S. at 216 & n. 14, 217-18, 102 S.Ct. at 2394 -95 & n. 14, 2395. The court accordingly held that the "rational basis" test applied and that the statute limiting marriage to heterosexuals is "rationally related" to three "legitimate state interest[s]":
*334 [1] fostering at a socially-approved point in time (i.e., during marriage), that which is essential to the very survival of the human race, namely, procreation.... [2] [prohibiting] ... the sexual conduct, to wit, sodomy, commonly associated with homosexual status—conduct deemed by society to be so morally reprehensible as to be a criminal offense in the District of Columbia and many other jurisdictions.[ [30] ] [3] Finally, the legislature could also rationally conclude that such authorization would constitute unprecedented and unwarranted "social tinkering" with one of the most sacred institutions known to mankind, namely, marriage.... [Footnotes omitted.]
The court then asserted in a footnote:
Indeed, the result would not be different even if plaintiffs were members of a "suspect" or "quasi-suspect" class. As previously noted, the state's interests and concerns are not only legitimate but compelling. And realistically there is no less restrictive means of adequately addressing them than by simply prohibiting the proposed union.
B. Introduction: Discrimination and Equal Protection of the Laws
The fact that same-sex marriage is not a fundamental right, entitled to due process protection, see supra Part V., does not end the constitutional inquiry; equal protection analysis is available to determine whether the classification at issue, unrelated adult homosexual couples, [31] can serve as a legitimate basis for excluding persons from a state benefit—in this case the right to marry— which is available virtually without limitation to unrelated adult heterosexual couples. The Supreme Court has explained that certain state-imposed limitations or exclusions can violate the equal protection guarantee either (1) by restricting the exercise of a fundamental right, see Skinner, 316 U.S. at 541 , 62 S.Ct. at 1113—not the case here [32] —or (2) by discriminating, without sufficient justification, against members of a constitutionally protected class. See Plyler, 457 U.S. at 216-18 , 102 S.Ct. at 2394-95 ; Massachusetts Bd. of Retirement v. Murgia, 427 U.S. at 312 , 96 S.Ct. at 2566 . This case concerns the latter, "discrimination" category.
It is important to say at the outset of this discussion what will become clearer as I proceed: the question I am addressing—whether homosexuals, see supra note 31, comprise a constitutionally protected class—must be answered for equal protection purposes generally, not just for a marriage case. That is to say, the answer to this "classification" question will be the same whether the issue in a particular case is alleged discrimination against homosexuals in employment, or in housing, or under the marriage statute; homosexuals either will, or will not, comprise a class entitled to special constitutional scrutiny of alleged discrimination against them.
What will not be the same from case to case, however, is the ultimate outcome resulting *335 from that classification. Suppose, for example, this court were to conclude here, or in another case, that homosexuals comprise a constitutionally protected class. This would do no more than shift to the government in a particular case the burden of proving that the alleged discrimination against homosexuals served a compelling, or at least an important, governmental interest. See Plyler, 457 U.S. at 216-18 , 102 S.Ct. at 2394-95 . Thus, classification of homosexuals as a constitutionally protected class would not grant them the right to marry one another. It is theoretically possible that the government would fail to carry its burden in a housing or employment, discrimination case but might succeed, nonetheless, in demonstrating why, in the public interest, only heterosexuals should be allowed to marry.
The point is: in the ensuing discussion of whether homosexuals comprise a constitutionally protected class—just as racial minorities and women are specially protected classes—I shall be dealing with a threshold inquiry that does not necessarily dictate the result of the case. Basically, I shall be dealing with the question (1) whether the plaintiffs-appellants should have the burden of showing why there is no rational basis for disallowing homosexuals to marry one another, or (2) whether instead the District should have the burden of showing a compelling, or at least substantial, governmental interest in preventing homosexuals from marrying one another.
It also is important to be clear from the beginning that, even though the state does not withhold a right deemed "fundamental" for constitutional purposes, a legislative classification that withholds other significant rights and benefits from a protected class of persons, while making those benefits available to others, can just as surely violate the equal protection clause. See, e.g., Plyler, 457 U.S. at 216-18 , 102 S.Ct. at 2394-95 (Texas statute withholding from local school districts state funds for educating children who were not "legally admitted" violates equal protection clause). Thus, even though only heterosexual couples have a fundamental right to marry, the aspect of marriage that elevates it to a "fundamental" right under the due process clause—the capacity to have children together—does not gainsay the fact that marriage has other important attributes which, as the Supreme Court itself has recognized, can be significant enough on occasion to outweigh various interests the state may have in withholding the right to marry from one group or another.
C. The Attributes of Marriage Justifying an Equal Protection Inquiry
In Turner v. Safley, 482 U.S. 78 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987), the Court held that a state law withholding from prisoners the right to marry violated due process because four "important attributes of marriage," id. at 95 , 107 S.Ct. at 2265 , outweighed any penological concern the state could articulate to support the marriage ban. In particular, the Court said:
The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. [1] First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. [2] In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. [3] Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. [4] Finally, marital status often is a precondition to the receipt of government benefits ( e.g., Social Security benefits), property rights ( e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits ( e.g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected *336 by the fact of confinement or the pursuit of legitimate corrections goals.
Id. at 95-96 , 107 S.Ct. at 2265 .
If these attributes of marriage are relevant to the needs and aspirations of gays and lesbians—as public education (not a fundamental right) was relevant to alien children (a quasi-suspect class) in Plyler, 457 U.S. at 217 -18 & n. 16, 223-24, 230, 102 S.Ct. at 2395 & n. 16, 2397-98, 2401-02—we have the basis for inquiring whether a marriage statute that excludes homosexuals from the right to marry one another meets equal protection requirements.
Appellants proffer that, given the nature of homosexuality, Turner 's attributes of marriage—emotional support, religious or spiritual significance, physical consummation, and government and other benefits—are as relevant and important to same-sex couples as to heterosexual couples. I perceive no basis for doubting that appellants can make such a showing. [33] Moreover, appellants buttress their argument by noting that many heterosexual couples are not able to have children, or may choose not to do so, whereas homosexual couples, absent state law or policy impediments, [34] can and do elect parenthood through adoption, surrogacy, or artificial insemination—the result being that parenthood, and even the benefits of procreation, are not necessarily limited to formally united heterosexual couples.
After considering pertinent legislative facts and applying relevant case law, I must conclude—as elaborated later—that the trial court erred in deciding, as a matter of law, that homosexuals do not comprise a "suspect" or "quasi-suspect" class, and thus the court erred in concluding as a matter of law that the rational basis test applies to this case under the equal protection clause. On the other hand, I am unable to ascertain to the required degree of certainty from the record, supplemented by my own study, the legislative facts necessary for deciding as a matter of law whether homosexuals are entitled under the equal protection clause to special scrutiny of their claimed right to marry. Thus, as explained below, I believe a trial will be required to decide the classification issue: whether the rational basis test, or a higher form of scrutiny, applies.
D. Summary Judgment for Appellants Inappropriate Assuming, for the Sake of Argument, That the Rational Basis Test Applies
I do not believe this court can resolve the matter in appellants' favor by assuming, for the sake of argument, that the rational basis test applies. Although I do not subscribe to the trial court's reasoning, see supra Part VI.A., I also cannot say as a matter of law that the limitation of marriage to heterosexual couples would not survive the traditional "rational basis" test under the equal protection clause.
Under that test, the government's action— in this case, the marriage statute limitation to heterosexual couples—
must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. "[A] legislative choice is not subject to courtroom factfinding *337 and may be based on rational speculation unsupported by evidence or empirical data."
Haller v. Doe, ___ U.S. ___, ___ _ ___, 113 S.Ct. 2637, 2642-43 , 125 L.Ed.2d 257 (1993) (citations omitted); see Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 442 , 105 S.Ct. 3249, 3255-56 , 87 L.Ed.2d 313 (1985); Graham v. Richardson, 403 U.S. 365, 371 , 91 S.Ct. 1848, 1851-52 , 29 L.Ed.2d 534 (1971); Backman v. United States, 516 A.2d 923, 927 (D.C.1986). Although this case raises serious questions about the legitimacy, under the equal protection clause, of limiting marriage to apposite-sex couples, it appears that the Supreme Court has seen marriage as having a traditional principal purpose: to regulate and legitimize the procreation of children. See Zoblocki, 434 U.S. at 385-86 , 98 S.Ct. at 680-81 ; Skinner, 316 U.S. at 541 , 62 S.Ct. at 1113 . Although the Court has also made clear that marriage embraces much more, see Turner, 482 U.S. at 95-96 , 107 S.Ct. at 2265 , I believe that this central purpose of the marriage statute—this emphasis on childbearing —provides the kind of rational basis defined in Heller, ___ U.S. at ___ _ ___, 113 S.Ct. at 2642-43 , permitting limitation of marriage to heterosexual couples. I therefore cannot conclude that appellants are entitled to prevail even if the rational basis standard applies.
E. Summary Judgment for the District Inappropriate Assuming, for the Sake of Argument, that Strict Scrutiny Applies
I also conclude that this court cannot resolve the matter in the District's favor by assuming, for the sake of argument, that discrimination against homosexuals is subject to strict scrutiny; for In cannot conclude, as a matter of law, that the District has a compelling or even a substantial interest in reserving marriage for heterosexual couples. The trial court did not explicate the reasons why it so concluded, other than referring to "previously noted' reasons. See supra Part VI.A. As I read the court's opinion, those reasons are the same as those cited under the court's "rational basis' analysis. They are simply too conclusory for equal protection analysis; summary judgment is inappropriate on this issues.
The question then remains; whether (1) the "rational basis" test under equal protection analysis applies, or whether instead (2) a more rigorous scrutiny of the District's policy excluding same-sex marriage is required because homosexuals comprise a scenically protected class. In either event, absent any basis for summary judgment, I conclude the judgment for the District should be reversed and the case remanded for trial.
F. Constitutionally Protected Classes: United States v. Carolene Products Co .
An historical approach will be useful to the classification analysis. The idea that the legislative treatment of particular classes of persons requires greater scrutiny under the equal protection clause than other persons receive is traceable to dictum in a footnote to the Supreme Court's opinion in United States v. Carolene Products Co., 304 U.S. 144 , 152 n. 4, 58 S.Ct. 778 , 783-84 n. 4, 82 L.Ed. 1234 (1938) (upholding federal statute prohibiting interstates shipment of filled milk under rational basis test). In that footnote, Justice Stone indicated that "prejudice against discrete and insular minorities may be a special condition ... curtail[ing] the operation of those political processes ordinarily to be relied upon to protect minorities, and [so] may call for a correspondingly more searching judicial inquiry." Id. (emphasis added).
Racial discrimination presents the paradigm case under Carolene Products. A particular racial minority, such as Africa-Americans, is "discrete" in the sense intended; they are visible in a way that makes them "relatively easy for other s to identify." Bruce A. Ackerman, Beyond Carolene Products, 98 HARV.L.REV. 713, 729 (1985). African-Americans also are "insular," meaning they tend to "interact" with each other "with great frequency in a variety of social contexts," such as neighborhoods, churches, clubs. See id. at 726. African-Americans, moreover, are nationally, if not always locally, in the "minority." Finally, the history of civil rights litigation and legislation reflects "prejudice" which has resulted in invidious *338 discrimination against African-Americans, requiring various court-ordered remedies.
The premise underlying Carolene Products' call for "more searching judicial inquiry" into allegedly prejudicial treatment of "discrete and insular minorities" is that such minorities lack sufficient political power to fend for themselves in a democratic process that should, but fails, to "generate[] outcomes systematically more favorable to minority interests." Ackerman, supra, 98 HARV.L.REV. at 716. There are problems with the Carolene Products formulation, however. It is underinclusive, as later Supreme Court decisions have made clear. Women, for example, are subject to prejudicial discrimination while comprising a diffuse, not insular group. And, of course, women are not a minority. Furthermore, discrete and insular minorities are not necessarily less able to effectuate their interests through the legislative process than other groups or even disorganized majorities. Racial minorities, in any event, appear to have greater political muscle in most instances than other disadvantaged groups, such as illegitimate children or homosexuals or the poor, all of which tend on the whole to be less identifiable and more diffuse than African-Americans, for example. See id. at 728-31.
Finally, the kind of prejudice reflected in the Carolene Products footnote is also under-inclusive. There are at least two kinds of prejudice the Supreme Court has recognized: (1) lack of effective participation in the political process, as emphasized in Carolene Products, and (2) stigma, i.e., a mark of shame that invites demeaning treatment regardless of one's strength at the polls. See, e.g., Plyler, 457 U.S. at 223 , 102 S.Ct. at 2398 ("stigma of illiteracy" affecting undocumented school-age children); Frontiero v. Richardson, 411 U.S. 677, 685 , 93 S.Ct. 1764, 1769 , 36 L.Ed.2d 583 (1973) (plurality opinion) ("gross, stereotypical distinctions between the sexes"). As explained below, equal protection analysis has evolved beyond Carolene Products to the point where courts intervene to remedy both kinds of prejudice.
This discussion of Carolene Products is intended as background for discussion of how the Supreme Court has developed and applied the idea of intensified scrutiny to a variety of groups not limited to "discrete and insular minorities," and how the Court has expanded protectable prejudice from lack of effective participation in the political process to prejudice from stigmatizing and stereotyping—from devaluing—particular groups of human beings.
G. Equal Protection After Carolene Products Co.: "Suspect" and "Quasi-Suspect" Classes
In the years since Carolene Products, the Supreme Court has identified two kinds of legislative classifications that require intensive equal protection analysis. These commonly have been called, respectively, "suspect" and "quasi-suspect" classes (meaning the legislative classifications, not the people in them, are "suspect"). The first, "suspect" classification—which the Supreme Court has used to resolve complaints alleging discrimination based on race, [35] alienage, [36] and national origin [37] —must receive "strict scrutiny" from the courts; i.e., for legislative use of the classification to survive, the state must "demonstrate that its classification has been precisely tailored to serve a compelling governmental interest." Plyler, 457 U.S. at 217 & n. 15, 102 S.Ct. at 2395 & n. 15; see Cleburne, 473 U.S. at 440 , 105 S.Ct. at 3254 (classifications based on "race, alienage, or natural origin . . . will be sustained only if they are suitably tailored to serve a compelling state interest").
The second, "quasi-suspect" classification—which the Court has used to decide cases alleging discrimination based on gender [38] *339 and illegitimacy [39] —requires "intermediate" or "heightened" scrutiny; i.e., the state must show that legislative use of "the classification reflects a reasoned judgment consistent with the ideal of equal protection" that "further[s] a substantial interest of the State." Plyler, 457 U.S. at 217 -18 & n. 16, 102 S.Ct. at 2395 & n. 16; see Cleburne, 473 U.S. at 441 , 105 S.Ct. at 3255 ("gender classification fails unless it is substantially related to a sufficiently important governmental interest"; classification based on illegitimacy will survive if "substantially related to a legitimate state interest").
The Supreme Court has not yet addressed whether homosexuals, let alone homosexual couples, constitute a "suspect" or "quasi-suspect" class. See Rowland v. Mad River Local School Dist., 470 U.S. 1009, 1014 , 105 S.Ct. 1373 , 1376-77, 84 L.Ed.2d 392 (1985) (Brennan, J. dissenting from denial of certiorari ). Nor has the Court clearly defined the differences between these two classifications requiring, respectively, "strict" and "intermediate" (or "heightened") scrutiny. [40] The Court, however, has focused from case to case on several factors to guide the analysis applied to either classification, although the Court has not addressed every factor in every case. As we shall see, these factors have one thing in common: they reflect various ways of evaluating whether intensive court scrutiny and, perhaps, intervention will be necessary, under the equal protection clause, to help substantially powerless classes of people maintain their dignity and receive important rights in the face of harmful, indeed invidious, discrimination by the state (meaning the popular majority). [41]
Specifically, the Court will ask: (1) Has the group suffered a history of purposeful discrimination? [42] (2) Is the class the object of such deep-seated prejudice that it is often subjected to disabilities based on inaccurate stereotypes that do not truly reflect the *340 members' abilities? [43] (3) Is the class defined by the presence of an immutable trait that is beyond a class member's control and yet bears no relation to the individual's ability to contribute to society? [44] (4) Is the group a politically powerless minority? [45]
Interestingly, the first two of these factors reflect a concern for stigma—for unfair stereotyping. The latter two focus on the ability of the group to avoid the claimed disadvantage through self-help—the classic Carolene Products concern.
H. The Implications, If Any, of Bowers v. Hardwick for Equal Protection Analysis
Before considering whether any combination of factors, if satisfied, would require intensive judicial scrutiny of the prohibition against homosexual marriage, it is necessary to note that four federal courts of appeals have ruled—primarily by reference to the Supreme Court's due process decision in Bowers v. Hardwick, supra —that homosexuals do not comprise a suspect or quasi-suspect class. See High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 , 570-73 (9th Cir.1990); Ben-Shalom v. Marsh, 881 F.2d 454, 564-66 (7th Cir. 1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed.Cir.1989); Padula v. Webster, 261 U.S.App.D.C. 365, 370-72 , 822 F.2d 97, 102-04 (1987).
In Padula , the United States Court of Appeals for the District of Columbia Circuit affirmed summary judgment for the government in appellant's suit claiming the FBI had violated the equal protection clause by refusing to hire appellant because she was a homosexual. The court concluded that homosexuals did not comprise a class deserving intensive scrutiny because the Supreme Court, in Hardwick , had approved state laws criminalizing homosexual conduct, and thereby implicitly had precluded any special protection of homosexuals.
If the Court [in Hardwick ] was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious.
Id. at 371, 822 F.2d at 103 (emphasis added); see Dronenburg v. Zech, 239 U.S.App.D.C. 229, 238-39 , 741 F.2d 1388, 1397-98 (1984) (private, consensual, homosexual conduct is not constitutionally protected).
Padula 's premise—that homosexual "behavior... defines the class," id. —appears facially overboard; homosexuals as a class are defined by reference to sexual orientation, which does not necessarily imply particular *341 conduct, even in marriage. See supra note 33; see generally Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U.CHI.L.REV. 1161, 1178 n. 85 (1988). As the D.C. Circuit itself had noted earlier, "[ Hardwick ] did not reach the difficult issue of whether an agency of the federal government can discriminate against individuals merely because of sexual orientation. " Doe v. Casey, 254 U.S.App. D.C. 282, 296, 796 F.2d 1508, 1522 (1986) (CIA employee alleged he was dismissed because of homosexual orientation, and court concluded that if, indeed, CIA action reflected policy of terminating employment of all homosexuals, CIA would have to justify why this policy was necessary in interests of United States). [46]
It is important to note, however, that in Padula itself, plaintiff-appellant herself rejected the "conduct"/"orientation" distinction, premising her constitutional argument on a definition of homosexuals "as persons who engage in homosexual conduct." 261 U.S.App.D.C. at 370 , 822 F.2d at 102 . The court accordingly balked at finding invidious discrimination against a class of persons who, by definition, engaged in conduct that, consistent with the Constitution, could be criminalized.
Three other federal circuits followed suit. In Woodward v. United States , the court sustained dismissal of a naval reserve officer from active duty on the ground that he was an admitted homosexual. In rejecting the claims that the Navy's action violated Woodward's constitutional right to privacy, as well as his right to equal protection of the laws, the court relied on Hardwick . In holding that homosexuals were not members of a suspect or quasi-suspect class, the court merely asserted the legislative fact—without citing any authority—that "[m]embers of recognized suspect or quasi-suspect classes, e.g., blacks or women, exhibit immutable characteristics whereas homosexuality is primarily behavioral in nature." Woodward, 871 F.2d at 1076 .
Similarly, in Ben-Shalom v. Marsh , the court of appeals, reversing the district court, upheld the Army's refusal to reenlist an admitted lesbian. Relying on Hardwick , the court concluded that, "[if] homosexual conduct may constitutionally be criminalized, then homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny for equal protection purposes." Ben-Shalom, 881 F.2d at 464 (footnote omitted). The court also appeared to be influenced by the fact that it had been asked to overturn an Army regulation, which the court believed would be an unjustified intrusion into military affairs. See id. at 465 . The court added that "homosexuals are proving that they are not without growing political power." Id. at 466 .
Finally, in High Tech Gays v. Defense Industrial Security Clearance Office , a class action brought by homosexual applicants for employment by the Defense Department, the court of appeals, reversing the district court, rejected plaintiffs' arguments that the Department's refusal to grant security clearances to known or suspected gay or lesbian *342 applicants violated the equal protection clause. The court relied on Hardwick, Ben-Shalom, and Padula and, in particular, asserted as legislative fact—without citing any authority—that "[h]omosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect classes." High Tech Gays, 895 F.2d at 573. The court also noted that "homosexuals are not without political power." Id. at 574.
It is critical to understanding the equal protection issue for us to recognize, very frankly, that even if homosexuals as a class could be defined, at least in part, by reference to homosexual conduct, the federal courts in Padula, Woodward, Ben-Shalom, and High Tech Gays —as elaborated below— all misapplied Hardwick , a due process case in which the Supreme Court expressly noted it was not addressing equal protection issues. See Hardwick, 478 U.S. at 196 n. 8, 106 S.Ct. at 2847 n. 8 ("Respondent does not defend the judgment below based on the Ninth Amendment, the Equal Protection Clauses or the Eighth Amendment."). Furthermore, two of these courts, in Woodward and High Tech Gays —apparently recognizing that Hardwick was not dispositive—applied equal protection analysis by merely asserting that homosexuality is not immutable, entirely ignoring a substantial body of scientific research to the contrary. See infra note 49. I have considerable respect for the federal courts that issued these decisions, but this court owes them no deference, and we would abandon our judicial review responsibility if we accepted what, in my view, is critically flawed reasoning.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2011334. Public record. Not legal advice.