Dean v. District of Columbia
D.C.
Craig Robert DEAN and Patrick Gerard Gill, Appellants, v. DISTRICT OF COLUMBIA, et al., Appellees.
Judges
- Before FERREN, TERRY, and STEADMAN, Associate Judges.
Attorneys
- 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.
majority
The judgment of the trial court is affirmed pursuant to Parts I., II., III., and Y. 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. Gase 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
Y. CONSTITUTIONAL DUE PROCESS: IS SAME-SEX MARRIAGE A “FÚNDAMEN1 RIGHT”? 331
A. Definition of “Fundamental Right” 331
B. Appellants’ Due Process Claim 332
VI. EQUAL PROTECTION: ARE HOMOSEXUALS A “SUSPECT” OR “QUASI-SUSPEC 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. Carotene Products Co. 337
G. Equal Protection After Carotene 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
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