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Wednesday, January 15, 2014

The End Game on Same-Sex Marriage

It doesn't take a seer to see that the Supreme Court will eventually hold that same-sex marriage is a constitutional right.  It won't happen this year, it might happen next year, and the odds get better from there.  The interesting question to my mind is how the Court (in other words, how Justice Kennedy) writes that opinion.

One rationale is that these statutes are irrational because they discriminate on the basis of sexual orientation. The Court could also say that distinctions based on sexual orientation should receive heightened scrutiny (and that same-sex marriage prohibitions flunk that test). Or the case could be resolved by saying (as Justice Kennedy suggested during the oral argument of Windsor) that these prohibitions constitute unlawful sex discrimination. (e.g., A man cannot marry a man in some states only because he is a man.)

There is one significant advantage to using sex discrimination as the ground for decision.  It might eliminate the need for a sexual orientation amendment to the Civil Rights Act of 1964.  Right now a statutory amendment is necessary at the federal level to protect gays and lesbians from employment (and other private) discrimination because the "sex" prong in the Civil Rights Act is read to exclude "sexual orientation." If the Court collapses those categories as a constitutional matter, however, one can easily see how courts could do the same for the statute and expand its scope.

The downside is that a sex discrimination opinion would obscure the nature of the harm and deny gays and lesbians a canonical opinion declaring discrimination against them as a wrong.  Maybe we want the Court (and Congress) to state this explicitly. Whether that is worth many more years of no protection for gays and lesbians under the Civil Rights Act of 1964 (if that is the result) is an issue that some attorneys and some of the Justices may soon have to consider.

70 comments:

  1. The NY Times has an article about the three arguments that Utah offered in federal district court in defense of its prohibition of same-sex marriage. Given the quality of those arguments, I think that Gerard is right about the future of the prohibition. My favorite was this:
    "drawing on Supreme Court decisions endorsing the value of diversity in deciding who may attend public universities, the state now said it was pursuing 'gender diversity' in marriages. 'Society has long recognized that diversity in education brings a host of benefits to students,' the brief said. 'If that is true in education, why not in parenting?'" Even on its own terms, this argument makes no sense, because, in education, the issue is whether discrimination for the sake of diversity is allowed, not whether it is required.

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  2. Sorry; according to the article in the Times, that argument I quoted was apparently from Utah's brief to the U.S. Supreme Court, not an argument it made in federal district court.

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  3. This raises an interesting question of legislative intent. Even if S/O discrimination is gender discrimination for 14th Amendment purposes, does that necessarily mean it is for Title VII purposes, as well? Or do we have to focus only on what Congress thought/wanted in 1964?

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  4. Or, Kennedy's rationale will once again (see Romer, Lawrence and Windsor) be unclear.

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  5. I continue not to be confused about the rationale of those rulings as much as some people seem to be.

    The sex discrimination argument to me appears logical but it just hasn't received much traction in court opinions. A few made some reference to it (including the Utah ruling), but continuing with the most recent one out of Oklahoma, it was generally rejected. A few times it was said to be "clearly" wrong.

    BTW, I think Kennedy referenced the sex discrimination argument during the Prop 8 case.

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  6. This judge-packing by those into fudge packing needs to stop. The law should not be treated like anal sex or fecal penetration.

    Btw, if 'marriage equality' is the thing, why not incest marriage or polygamy? Why should homos be the ONLY sexual deviants to be allowed the special privilege to change marriage laws as they please?

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  7. How about teach Creationism in schools in the name of 'science equality'?

    Why not recognize voodoo witch doctors as real doctors in the name of 'medical equality' and 'cultural equality'?

    Why not allow Asians to eat dogs and cats in the name of 'culinary equality'?

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  8. The best conclusion of SCOTUS would be that discrimination based on marital status violates the 5th and 14th Amendments.

    That would treat all married folks, whether hetero or homo, as singles, and remove the tremendous tax and other burdens born by singles in support of marrieds.

    That would leave any two persons, man-woman, man-man, brother-sister and aunt-nephew free to perform whatever religious or superstitious ceremonies to bless their union without involving the rest of us.

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  9. Joe,

    What did you take away as the rationale from Romer, Lawrence and Windsor?

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  10. Considering that 14 years separated Brown and Loving, during which time the Court punted on marriage, I expect the end game to on longer than Prof. Magliocca seems to anticipate.

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  11. Mark,

    We are closing in on 10 years from Lawrence.

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  12. Gerard:

    Why do you believe Kennedy is ready to override state definitions of civil marriage after his lengthy paean to that very state power in Part III of the Windsor opinion?

    Windsor sounded like a pretty clear proclamation that Kennedy was going to allow the states to hash this out.

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  13. Romer: A law that burdens a class has to be rationally related as to means/end. The law was deemed overbroad, an unconstitutional burden on equal protection grounds, nothing more than "animus toward the class." Past cases as to hippies, mentally retarded and others a similar test.

    Lawrence: A range of cases protects intimate conduct as a constitutional liberty. This law based on mere moral distaste singles out same sex couples to not be allowed to enjoy it. That isn't enough to override protected liberty interests. See, e.g., Casey.

    Windsor: The law was an unusual one that again was so badly fit that as a whole a legitimate purpose could not be found. It was again based on illegitimate animus. The unusual federal singling out of this group when traditionally states were broadly given power over marriage was a red flag for equal protection purposes (federal government/5A).

    Just a rough summary. Not trying to completely summarize three opinions in a few sentences. But, don't see it as that opaque.

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  15. "We are closing in on 10 years from Lawrence."

    A fair point, though not quite the same. The Court still hasn't done for gays what it did in Brown: create a suspect class.

    Of course, it doesn't have to play out the same way legally. There could be, and probably will be, political considerations as well. But miscegenation laws were disappearing after WWII and the Court waited until only -- what, 15 states? -- still had them before issuing the ruling in Loving. We're making good progress, but we're not to that stage yet.

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  16. Bart,

    I took Part III of Windsor to be limited to Kennedy's view that the federal government shouldn't be second guessing what the states have done. It doesn't strike me that it indicates what Kennedy's views on Equal Protection constraining the states is.

    As for why Part II supports Gerard, Scalia takes care of that.

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  17. Joe,

    What strikes me about Romer, Lawrence and Windsor is their disconnection from Equal Protection levels-of-scrutiny analysis. Instead we have some vague "animus" or "moral distaste" doctrine (that does not comport with deferential rational-basis review) buttressed by some wonderful prose on the dignity of gays and their relationships.

    Mark is concerned because sexual orientation is not a suspect class. But, I see no reason to be concerned. Kennedy will find some way given that prose.

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  18. I have to agree with Bart, after his opinion in Windsor if he were then to strike down state ssm bans I think it would be hard to match up the two.

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  19. Two thoughts. One is that it's possible that Kennedy won't be on the Court by the time this gets resolved. Second, if he is, he'll just say that things have evolved since Windsor (that would be my guess).

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  20. Gerard:

    Kennedy is more than welcome to retire in 2017 if the voters elect a libertarian conservative as the next president.

    Normally, I would not be surprised if Kennedy evolved again. His prior opinions in the area were nearly incoherent metaphysics rather than law. However, Kennedy pretty much lashed himself to the federalism mast in Windsor.

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  21. Bart,

    I'm stumped as to why you think the "federalism mast" would preclude Kennedy from applying the Equal Protection clause against state DOMAs.

    I always thought the Equal Protection clause applies to the states even when the federal government is otherwise precluded from interfering because it lacks an enumerated power to do so. Is there any reason to believe that Kennedy feels otherwise?

    If you are correct, wouldn't Kennedy have to reverse Loving and Zablocki?

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  22. Our TYRANNYSAURUS REX's:

    " ... if the voters elect a libertarian conservative as the next president."

    leaves us hanging as to who(m) that might be.

    By the Bybee [expletives deleted, but we must never forget], can one be a libertarian without being a conservative? Are there liberal or progressive libertarians?

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  23. just_looking said… I'm stumped as to why you think the "federalism mast" would preclude Kennedy from applying the Equal Protection clause against state DOMAs.

    Windsor invited the Court to do just that and Kennedy went the federalism route.

    If you are correct, wouldn't Kennedy have to reverse Loving and Zablocki?

    Not at all. Loving or Zablocki involved right to engage in marriage as a fundamental right. The SSM cases ask the Court to redefine marriage to include an expanded range of partners.

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  24. Shag from Brookline said...By the Bybee [expletives deleted, but we must never forget], can one be a libertarian without being a conservative? Are there liberal or progressive libertarians?

    Libertarians believe in economic and personal freedom, as well as an isolationist foreign policy.

    The beliefs of progressives and conservatives can overlap to some extent with libertarians.

    http://www.theadvocates.org/quiz/quiz.php

    When I use the term libertarian conservative, I am referring to conservatives whose beliefs overlap more often than not with libertarians.

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  25. And what actual persons overlap to be such a potential President in 2016?

    Our TYRANNYSAURUS REX's definition:

    "Libertarians believe in economic and personal freedom, as well as an isolationist foreign policy."

    may suggest that our TR was not a libertarian during most of the Bush/Cheney 8 years. If so, when did our TR get so randy?

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  26. may suggest that our TR was not a libertarian during most of the Bush/Cheney 8 years. If so, when did our TR get so randy?
    # posted by Blogger Shag from Brookline : 11:54 AM


    November 5, 2008

    However, I'm pretty sure that he was blaming Obama for the Cheney/Bush economic crash prior to that date.

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  27. Windsor invited the Court to do just that (rule based on EP) and Kennedy went the federalism route.

    That conclusion is debatable, but let's assume you are correct for the sake of argument. I don't see how Kennedy's reliance on federalism in Windsor is relevant to your claim that it would be logically inconsistent to rely on EP when judging a state DOMA.

    Loving or Zablocki involved right to engage in marriage as a fundamental right. The SSM cases ask the Court to redefine marriage to include an expanded range of partners.

    This argument explains why an EP analysis would support one outcome in Loving and Zablocki, but a different outcome for state DOMAs. But, if I understand your analysis of Windsor, you claim that Kennedy held that no EP analysis of state marriage regulations can ever take place because of federalism. If no EP analysis can ever take place, wouldn't it be the case that the fundamental rights analysis in Loving and Zablocki is invalid?

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  28. Shag from Brookline said… And what actual persons overlap to be such a potential President in 2016?

    Paul, Cruz, and multiple governors and representatives.

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  29. jl:

    There is nothing apart from the law prohibiting Kennedy from joining with the left wing of the Court to create a new constitutional "right" to SSM.

    The problem with using the EPC to find a right to SSM is that heterosexual, gay and lesbian parters are by definition not similarly situated.

    In order to make them similarly situated, the Court has to gut the definition of marriage to nothing more than a contract between two (or more) people for government benefits.

    Kennedy has avoided going that far to date and his paean to state power over marriage in Windsor leads me to believe that he will not do so in the future.

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  30. "One is that it's possible that Kennedy won't be on the Court by the time this gets resolved."

    By the actuarial charts, Kennedy and Scalia, the two oldest conservative Justices, have 10 years to go.

    Your second point is, of course, entirely possible.

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  31. Kennedy has avoided going that far (SSM is an EPC right) to date and his paean to state power over marriage in Windsor leads me to believe that he will not do so in the future

    You have stated this conclusion previously, but unless I missed it, you did not explain why Kennedy's paean to state power over marriage in Windsor has any logical relevance to whether he will conclude that SSM is an EPC right.

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  32. What strikes me about Romer, Lawrence and Windsor is their disconnection from Equal Protection levels-of-scrutiny analysis.

    Other than a few categories, rational basis review was at least announced -- Cleburne v. Cleburne Living Center, Inc is an example. It struck down a law based on "irrational prejudice against the mentally retarded" using rational basis.

    In effect, it seemed when such "irrational prejudice" language occurs or when certain minorities were at stake, a somewhat stronger level of rational basis review was involved. This is at times colloquially called "rational basis with bite" or "with teeth." Justice O'Connor's concurring opinion to Lawrence v. Texas cites additional cases.

    Furthermore, levels of scrutiny were not favored as applied to new situations in the Rehnquist/Roberts Courts. D.C. v. Heller, e.g., would logically apply strict scrutiny given a fundamental right was at stake. But, other than noting that rational basis was not enough, the Court did not apply a specific level. CJ Roberts in fact was annoyed when Paul Clement (then in the Bush Administration) offerred intermediate scrutiny as the test, suggesting some other rule was appropriate.

    Instead we have some vague "animus" or "moral distaste" doctrine (that does not comport with deferential rational-basis review) buttressed by some wonderful prose on the dignity of gays and their relationships.

    The courts did not invent that the "animus" rule and it has been used in other contexts. The opinions provide citations to some of them. As to "wonderful prose," I find that tedious -- what, do other justices in various contexts not use "prose" in some fashion? Why is it that continuously (sorry if you don't do this) Kennedy is singled out? How about cases when states have "dignity" that is being hurt? Written by people other than Kennedy.

    Mark is concerned because sexual orientation is not a suspect class. But, I see no reason to be concerned. Kennedy will find some way given that prose.

    Want me to find some "wonderful prose" by Ginsburg as to gender? Or some "wonderful prose" by some other justice as to another matter? Take out the "wonderful prose" and the reason is still there. Lower court opinions have managed things that way on this issue.

    The laws against gays struck down are so patently bad a mildly strong form of rational basis review is good enough to strike them down. Even the Prop 8 defender upon questioning from Sotomayor admitted that other than marriage he couldn't readily see a reason to treat gays and lesbians differently. State marriage laws is maybe the first time judges had to do some heavy lifting to any real degree.

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  33. In effect, it seemed when such "irrational prejudice" language occurs or when certain minorities were at stake, a somewhat stronger level of rational basis review was involved.

    To me, the "it seemed" portion of your observation is the problem.

    I predict Kennedy will invalidate state DOMAs while (once again) neither sharing what level of scrutiny applies nor establishing an alternate doctrine.

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  34. I decline to get in the argument/discussion of how the Court will rule on a matter. But I thought it might spark up the discussion by recommending Eric J. Segall's op-ed in the LATimes today "For Supreme Court, it's not the law, it's the power of five - Getting to a majority of five is the deciding factor at the nation's highest court." Segall jumps on this from Randy Barnett's new book on the conservative Obamacare strategy.

    I hope there is in the making a Broadway musical: "BOOK OF SCOTUS: 5-4" with words and music by Dolly Parton, who might also star in it as Chef Justice.

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