Are State Marriage Amendments Bills of Attainder?: A Case Study of Utah's Amendment Three

I. INTRODUCTION On Election Day, November 2, 2004, Utah, along with ten other states,1 amended its state constitution in response to what many view as a concerted effort to redefine marriage.2 Although the debate over marriage tends to evoke strong feelings on all sides, every marriage amendment on the November ballots passed; in some states the marriage amendments passed by overwhelming margins.3 Opponents of these marriage amendments will likely challenge them as violating the Federal Constitution on the grounds of equal protection.4 Somewhat unexpectedly, the Federal Constitution's Bill of Attainder Clause5 is emerging as alternate grounds for challenging such amendments.6 While much recent legal commentary exists regarding the debate about same-sex marriage,7 few commentators have addressed the controversy using a bill of attainder analysis.8 The Bill of Attainder Clause is a relatively obscure constitutional provision, even among students of the Constitution.9 According to contemporary Supreme Court Attainder Clause jurisprudence, the clause protects both individuals and groups from legislative enactments that single out an affected person or class and impose punishments without allowing for judicial relief.10 The recent enactment of marriage amendments barring states from recognizing same-sex unions as marriages raises the question of whether states have singled out homosexuals for punishment without judicial relief in violation of the Attainder Clause. Although the ample commentary surrounding the broader, ongoing marriage debate does include some bill of attainder analysis in connection with gay rights,11 none of the existing commentary directly analyzes the question of whether state constitutional prohibitions of same-sex marriage constitute unlawful bills of attainder under the Federal Constitution. This Comment fills this gap in the Attainder Clause literature by analyzing Utah's Marriage Amendment on bill of attainder grounds, thereby providing a framework for analyzing similar enactments. The Attainder Clause analysis below reveals that Utah's Marriage Amendment ("Amendment Three") is not a bill of attainder because it does not single out a group or individual for punishment within the meaning of the Attainder Clause. Furthermore, because Amendment Three operates in a generally applicable, regulatory fashion, it falls well within the scope of proper legislative power. Therefore, invalidating a marriage amendment that operates in the same or similar fashion as Amendment Three under the Bill of Attainder Clause would seriously threaten the legislative and political process by allowing any group or individual who dislikes a particular political outcome to challenge it successfully as a bill of attainder. Part II provides a brief review of the case law under the Bill of Attainder Clause and outlines the current Supreme Court doctrine under the clause. Part III analyzes Amendment Three according to current Attainder Clause doctrine and concludes that the amendment does not constitute an unlawful bill of attainder. This Part also addresses additional doctrinal implications associated with this conclusion, namely, that in order to find that the amendment is a bill of attainder a court will have to adopt a constitutional test that has virtually no rational limitation. Part IV offers a brief conclusion. II. THE ATTAINDER CLAUSE: DEVELOPMENT AND CURRENT DOCTRINE A. The Historical Approach to Attainder Analysis Historically, a bill of attainder was a very specific device used in the sixteenth, seventeenth, and eighteenth centuries, whereby Parliament sentenced a person or a group of persons to death for attempting or threatening to attempt an overthrow of the government.12 Bills of pains and penalties functioned essentially the same as bills of attainder; however, the punishment inflicted on the offender was something short of death. Typical punishments under bills of pains and penalties included banishment, disenfranchisement, and exclusion of the offender's sons from serving in the Parliament. …