an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Windsor and the Constitutional Prohibition against Class Legislation
Justice Kennedy's opinion in Windsor (press coverage here and here) studiously avoids using the familiar concepts of levels of scrutiny and fundamental rights. Instead, he emphasizes that in enacting DOMA, Congress had reached out to stigmatize and impose special burdens on same-sex couples that states had recognized as married.
The ideas in his opinion may seem strange to people who grew up learning post-1970s equal protection and due process jurisprudence. But they would not be at all strange to people living in the nineteenth century, especially at the time the Reconstruction Amendments were adopted. (This is *not* a claim that people in the 19th century would have accepted the result in Windsor-- it is a point about the way they conceptualized constitutional claims of liberty and equality.)
A key idea in the nineteenth century was that of class legislation. Class legislation is legislation that picks out a group of people for special benefits or special burdens without adequate public justification. The idea was that laws should be general, not special, and serve a public purpose, not simply the interests of some powerful group in society. When Andrew Jackson first invokes the idea of equal protection in his 1832 bank veto message, his objection is that the law is unequal because Congress has given special privileges to wealthy financiers, creating a new kind of aristocracy of wealth and privilege. (The idea of class legislation had overtones of anti-republicanism). The flip side of the notion that legislatures could not great special benefits was that legislatures could not impose special burdens or unjustifiably single out people or groups for disapproval or harm. This idea was connected to, although not identical with, the idea of bills of attainder, and the creation of caste by law.
When the Reconstruction Congress confronted the Black Codes passed following the Thirteenth Amendment, they immediately thought of these laws in Jacksonian terms: they were class legislation-- and caste legislation to boot. That is true even though the Black Codes did not always make formal classifications based on race.
Thus, when Senator Jacob Howard explained the purposes of the new Fourteenth Amendment to the Senate in May of 1866, he explained *both* the Due Process and Equal Protection Clauses (which had been modeled after the antebellum understanding of the Fifth Amendment Due Process Clause) not in terms of suspect classifications or tiers of scrutiny but in terms of class and caste legislation: "The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another."
These ideas were completely familiar in the nineteenth century, and all but lost in the twentieth century. We now teach our students that the issue is suspect classifications and levels of scrutiny. But our modern doctrines are designed to articulate the basic principles against class and caste legislation, although they do so sometimes very awkwardly.
In a few cases, like Moreno, Cleburne, and, most recently, Romer v. Evans, that don't fit very well into the three tiered model of rational basis, intermediate scrutiny, and strict scrutiny, the old ideas reemerge from under the encrustations of twentieth century doctrine. Romer v. Evans is a classic case about class and caste legislation. Colorado's voters didn't want to accept gay people as having equal status in civil society, so they passed a constitutional amendment that said that no town or municipality could protect gay people from discrimination because they were gay--although they could protect straight people from discrimination because they were straight. Kennedy's opinion in Romer acknowledges that the case doesn't fit into the existing doctrinal structure; nevertheless he thinks it violates the clearest command of the Fourteenth Amendment. It is class legislation, pure and simple, and he even cites the Civil Rights Cases for the proposition that "[C]lass legislation . . . [is] obnoxious to the prohibitions of the
Fourteenth Amendment . . . ." Note that for the Reconstruction Republicans, these ideas came not from the Fourteenth Amendment, but from the Fifth Amendment, and from the idea of republican government.
Of course, the judgment that a law is class legislation is ultimately a normative judgment. All laws classify and have some kind of differential impact; whether a law singles out a group for special and unjustified burdens or stigma is an interpretive question and a question of values. But at oral argument, it was very difficult for the defenders of DOMA to assert a public-spirited purpose as of 2013. What the record seemed to show, symbolized by in a notable exchange between Paul Clement and Justice Kagan at oral argument (transcript at p. 74), was that the point of the statute was "to express moral disapproval of homosexuality." Whether the law looked reasonable in 1996, it looks mean-spirited in 2013. And that is when the Court considered the case.
Windsor is a reminder of the fact that the scrutiny rules we teach our students as gospel are a relatively recent invention--less than fifty years old. They were designed to make it easier to think about when laws are constitutionally unequal. But sometimes they don't really assist our understanding of the issues; they just get in the way. In fact, you actually can explain Windsor in terms of the existing structure-- it's a "rational basis with a bite" case, and that's how the casebooks (including the one I co-author) will probably classify it. But we should be able to look behind the doctrinal superstructure, which explains little, and see the deeper principles at stake, principles that have a long history in American constitutional thought. DOMA singled out gay people for special burdens in an important area of social life; it declared their marriages less valuable, and therefore, to that extent, it made them second-class citizens. Even if this wasn't obvious in 1996, it is increasingly obvious today.
The dissents try to inoculate themselves from what they see coming. They expect that soon gay marriage will be overwhelmingly supported by the public, and they want to head off the charge that they are being bigoted or mean spirited by deferring to Congress and its fact finding abilities (unlike in Shelby County, decided the previous day!). Don't you dare call us prejudiced or bigots, they explain. Because we are not. We are reasonable people who believe in the democratic process (except, of course, when we don't).
The problem is, no judge-- whether in the majority or the dissent-- will be able to avoid history's judgment.