Cities as Constitutional Actors: The Case of Same-Sex Marriage

In February 2004, the City of San Francisco began to issue marriage licenses to same-sex couples; eventually the City would issue over 3,500 same-sex licenses. Following San Francisco's lead, other municipalities in New York, New Jersey, Oregon, and elsewhere also began to issue marriage licenses to same-sex couples. These municipal actions fueled an already bitter national debate over the morality and legality of same-sex marriage. This Essay examines the legal and constitutional role of local governments in this debate. I make two claims. First, I argue that, despite the well-publicized actions of local officials in issuing same-sex marriage licenses, scholars have generally overlooked the possibility and desirability of local determinations of marriage eligibility. Conventional wisdom, based on long-standing tradition, has assumed that marital status (and domestic relations law in general) should remain the province of the states. But few have asked the functional question: At what level of government should marriage eligibility criteria be determined? I claim that there is no reason that local governments cannot be tasked with the power to make marriage eligibility determinations, and indeed, there are many good reasons for them to do so. Second, I argue, more provocatively, that the Court's equal protection doctrine might require that local governments be permitted to make marriage eligibility determinations, at least with regard to gays and lesbians. This argument is based on a "localist" reading of the Supreme Court's decision in Romer v. Evans. Romer, the Essay argues, may require that state same-sex marriage bans be struck down insofar as they preempt local decisions to recognize same-sex unions. The Essay then suggests the contours of an equal protection doctrine that provides a realm of "constitutional home rule" by protecting local governments from contrary state commands in the course of vindicating substantive constitutional rights. My account of "localist constitutionalism" asserts that local governments are importantly different from states in a number of ways that might be salient in determining the content of constitutional rights. This may mean that under some circumstances, localities should be permitted to regulate in areas that states cannot, free from state interference. In the context of same-sex marriage this "decentralized equal protection" jurisprudence would prevent states from interfering with a local government's decision to marry gay and lesbian couples.