Balkinization  

Friday, July 07, 2006

The Future of Same Sex Marriage

JB

Although supporters of same-sex marriage are no doubt disappointed, the New York Court of Appeals decision refusing to require same-sex marriage is not a significant defeat for the same-sex marriage movement. Rather, it is a setback for the particular strategy of using law suits based on state constitutional law to achieve equality for same-sex couples.

Once a majority of the New York Court of Appeals stated that "our Equal Protection Clause `is no broader in coverage than the federal provision,'" the result was a foregone conclusion. (A foregone conclusion, that is, based on a prediction of what the U.S. Supreme Court and most federal courts would probably do today.) In both Massachusetts and Vermont, courts read their state Equal Protection Clause (or common benefits clause, the Vermont equivalent), in ways significantly different from the federal Equal Protection Clause. That gave these courts room for maneuver, and allowed them to conclude that denial of marriage rights to same sex couples violated basic principles of equality.

However, when the New York Court of Appeals began with the assumption that it must follow federal constitutional doctrine in its current form, the result was disappointing but not at all surprising. Supporters of same-sex marriage are well aware that the last place they want to litigate same-sex marriage claims right now is in the federal courts.

The court-based strategy has been premised on finding states whose courts do not regard their constitutional doctrines as mirror images of the current U.S. Supreme Court's but have a significantly more progressive cast. The idea is that litigators would raise state constitutional challenges in these courts, hoping to get judicial decrees either ordering same-sex marriage outright (as in Massachusetts) or sending the issue back to the state legislature with instructions to come up with an equitable alternative (as in Vermont). Then supporters of same-sex marriage would fight hard to prevent the inevitable backlash effects and hope that the public would get used to the idea, which, in Vermont and Massachusetts it mostly has. After a number of successful state court victories of this type, other states would eventually come around, and, after winning victories in a majority of states, litigators would finally be ready to approach the federal courts.

However, this court-based strategy cannot be the dominant strategy for success for two reasons. First, there are only a limited number of state courts that fit these characteristics. Second, the strategy is far too optimistic about backlash effects. People feel very differently about legislatures creating rights for same sex couples than they do about courts doing the same thing. Winning in the courts is fine, but unless there is already significant public support for what courts do, choosing a litigation strategy often leads to populist reprisals that combine opposition to change on the merits with opposition simply because a court ordered the reforms. Unless supporters of same-sex marriage can quickly mobilize to respond to the backlash, their victories may be short-lived.

The better strategy in many states, perhaps most, is to work for legislative reforms directly, pushing for same-sex marriage but settling for civil unions if that can be achieved. If people win in legislatures, the courts tend to follow; if lots of state legislatures recognize same-sex marriages, civil unions or other marriage equivalents, it will become much more obvious to courts that denying same-sex couples the right to legally sanctioned partnerships treats them unfairly. That is to say, courts tend to change their minds just about when legislatures do: sometimes a little before and sometimes a little after. It is a mistake to think that all or most state courts will be significantly ahead of their legislatures on this issue. The Vermont and Massachusetts courts were ahead of their legislatures, but they are not necessarily a good sample of state supreme courts, as the New York decision suggests.

Proponents of same-sex marriage already are working for legislative reform as well as in the courts. They recognize that the more avenues of reform you pursue, the more likely it is that you will make progress. The problem with a multipronged strategy, of course, is limited resources. But an even more important resource will be patience; this will be a long struggle for equality.

One effect of the loss in New York may be a renewed emphasis on going to legislatures for reform rather than constitutional challenges in the courts, especially, as the number of likely state court venues diminishes. If that leads to a series of legislatures making changes on their own, without being prodded by courts, it will greatly enhance the democratic legitimacy of the movement for same sex marriage. And if that happens, it may turn out that the loss in the New York Court of Appeals was not a serious setback for same-sex marriage at all, but a blessing in disguise.


Comments:

slightly off-topic, but is there a good on-line reference (eg, Scotus opinion) outlining what is required for a group to be considered a "suspect class" for EP purposes?

tnx.
 

Your entire analysis assumes that politicians are more enlightened and dedicated to the rule of law than judges are.

Enough said.
 

KipEsquire, Your comment assumes that judges aren't politicians, that public choice theory is false (a very interested popular minority can, of course, frequently get its way despite weak majority opposition) and that Prof. Balkin somewhere said or implied that the reason any legislator would vote for allowing same-sex marriage would be principled, when in fact it doesn't suggest that any legislator would do so for principled reasons.
 

CTW:
It seems that the SCOTUS has never actually laid out a test for determining whether a class qualifies as a suspect class.

I have come across some factors for making this determination, although not in anything remotely authoritative. These include:
-Immutable, distinguishing characteristic
-History of discrimination
-Discrimination not rationally related to the characteristic
-Lack of meaningful political power

Under these factors, there are two major sticking points for considering gays and lesbians to be a suspect class. The first is the lack of meaningful political power. Over the past 30 years, gay rights groups have been able to exercise a decent amount of political power, having gotten passed anti-discrimination statutes in several states. Additionally, there have been many successful gay and lesbian politicians (e.g. Barney Frank). Of course the same is true of many of the groups that are considered to be suspect classes and there is no question that gays and lesbians and their supporters still make up a significant minority in the nation and in most states.

The bigger problem is the immutability requirement. Unlike suspect classes such as race or nationality, where it is absolutely clear that a person is born and will always remain part of that class, there is substantial debate as to what extent sexual orientation is a choice. If you can't convince the Supreme Court that it is not a choice, it is highly unlikely that they will be considered to be a suspect class. I suspect that the problem here is how you define choice. If you are asking whether a person chooses to have a preference for relationships with members of the same sex, it seems hard to argue that there is any choice in the matter, people do not choose their preferences. If you are asking whether a person has chosen to actually engage in same sex relationships, it looks much more like a choice; as unpleasant as it may be to deny a particular aspect of yourself, especially sexuality, a person can certainly choose not to engage in a particular type of activity.
 

Could it be that Liberals will finally realize that the political process is where they can win their victories and not the Courts?

Just imagine if the Supreme Court had issued a similar ruling in Roe? Pre Viability abortion would be legal in the vast majority of states and to the vast majority of the population.

The Religious Right would never have gotten off the ground and the Democrats would most likely have been much more successful at the ballot box.

IE, they would not have failed to crack 50% of the vote since 1964 nor would they have a President who only was elected with a 43% plurality due to a 3rd party as their only President in the last 30 years.

This was a great decision.

The future of gay marriage is at the state legislative level, where it should be.
 

per a previous post, various opinions set forth the criteria suggested to define "suspect" classification. They are not totally consistent, but at least a few of them are fairly consistently referenced.

NY does not follow the federal courts as to due process. Thus, no, the fact they do on equality is not decisive.

In fact, since the federal courts never decided this issue (it was left open in Lawrence and state practice clearly is relevant in marriage cases as noted by the dissent), it doesn't even answer it on equal protection.

The courts should be used carefully, but it will continued to be used by disfavored groups. I do assume that hated speech, protection of hated defendants, and religious freedom (including in Texas football games, supported by I reckon 90% of the locals) will continue to be subject to court review.

One can say this bit off more than the courts can chew. But, in more narrow questions, gays very well might pragmatically use the courts. And, once a critical mass is reached, perhaps marriage equality will be recognized. First came grad schools ... interracial marriages took decades.

It also should be noted the NY Court used specious reasons to "rationally" defended the law. Again, federal doctrine has not conclusively required such inanity, fairly well dealt with by the dissent by the Chief Judge.

This subject appears to be clouded no matter where it is discussed.

btw Sarah does know many CONSERVATIVES support using the courts to support liberty, yes?
 

EDITORIAL
Letter from the Editor of RainbowWeddingNetwork Magazine
July 7, 2006
Marianne Puechl, senior editor & co-founder
RainbowWeddingNetwork Magazine

“The Passion of the Marriage Rights Issue”


I have quite a few favorite words, some less common than perhaps they should be in modern vocabulary: ‘Kaleidoscope,’ ‘Trailblazer,’ ‘Illumine,’ ‘Menagerie,’ ‘Jollification,’ ‘Imbroglio,’ ‘Gumption.’ ...The sound and the beat of them simply resonate.

Some of my favorites choreographed all together are the two hundred seventy-eight words that Abraham Lincoln wrote and delivered on that grey afternoon on November 19, 1863.

“...It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.”

Without a doubt, these words resonate as well.

I keep them close: on my office wall, in the corner of my mind, sometimes in my back pocket like a road map. In the business of life and living, they can come in handy. In the business of marriage equality, they become a necessity.

Obviously, there are days when this country does not feel like our own. Recent posturing in the U.S. Senate and the rulings in the New York and Georgia supreme courts have once again shown that to be the case. But, as our foreparents and mentors have courageously modeled so many times before, to give in to cynicism is never the most productive stance. -Never the most peaceable either, in our own hearts or in the hearts of those around us.

So often these days, when I am out at Pride Festivals or Expos, rallies, business meetings or even casual dinners with friends, I observe people arming themselves with compassionate wisdom. I see them taking responsibility for having thoughts at the ready to share with others who may be around us: others who speak of underlying hatred, speak of discrimination. I’ve noticed that, more and more in recent years, the words of bias are being stated with a firmer sense of entitlement... the trickle-down theory gone even more seriously sour.

But these advocates and allies around me, standing up courageously on behalf of equal rights for the GLBT community, so often enter into the banter with precision, substance, passion certainly, but the passion for justice and not so much the passion for blame.

I applaud these advocates. Without them and those like them who have come before, indeed, this would not be our country. Instead, it continues to be a young America growing, a young America challenging itself, and a body of people progressing -at times lethargically, at times clumsily, at times with utter perfection- into greater understanding.


Rainbow Wedding Network Magazine premiered April, 2006 as the nation's first quarterly publication devoted to GLBT Weddings & Families. Based on the successful website RainbowWeddingNetwork.com (launched in 2000), the magazine provides exclusive interviews, planning tips, current events and an extensive directory of screened GLBT-friendly businesses throughout North America.
 

That's a fine analysis if your non-queer. Disheartening if your queer.

How would YOU like to wait "just a few more years" for equal treatment under the law?

The older I get, the more I'm coming to the bitter realization that the US is hopeless.
 

Post a Comment

Older Posts
Newer Posts
Home