Remember all the assertions that same-sex marriage would be easily preserved as long as the rights were declared by legislatures rather than courts? Well, there was never any actual evidence for the theory, and New Hampshire provides us with yet another dis-confirming data point.
To state the obvious, opponents of same-sex marriage are outraged by decisions like Goodridge because they oppose same-sex marriage, not because they have some a priori commitment to Bradley Thayer‘s theory of judicial review.
I have a piece for the Prospect that, among other things, argues that making “immutability” a major factor in whether a classification should be subject to heightened scrutiny is anachronistic:
I don’t blame White for applying the existing legal standard, and also agree with him that if forced to choose from what is essentially a false dichotomy I would put sexual orientation into the “immutable” box rather than the “freely chosen” box. (In addition, White does acknowledge that sexual orientation may not be immutable for all individuals.) But, like Graff, I believe both that this is an oversimplification and that gay and lesbian equality does not depend on entirely removing agency from the equation. People who choose same-sex partners from a group of potential partners of both genders deserve the same right to marry as people who rate a “6″ on the Kinsey scale.
Fortunately, White’s compelling opinion should make it clear that the question of “immutability” should be considered superfluous. What really matters is the first category—whether people have been subject to “invidious discrimination.” As Judge White notes, there can “no dispute … that lesbians and gay men have experienced along history of discrimination.” Classifications that deny people rights based on sexual orientation act to stigmatize and subordinate, and this should be the crucial inquiry for equal protection law. Whether sexual orientation is entirely “immutable” is beside the point; based on an extensive history of oppression, sexual orientation clearly merits heightened scrutiny.
Another aspect of White’s opinion worth noting, as a commenter here also caught, is footnote 5:
The question of whether DOMA impacts a fundamental right is addressed briefly by the parties but it is not at issue here as it is undisputed that Ms. Golinski is already married under state law. The failure of the federal government to recognize Ms. Golinski’s marriage and to provide benefits does not alter the fact that she is married under state law.
While White doesn’t consider it applicable to this specific set of facts, he seems to be signalling that he would be open to the argument made persuasively by Evan Gerstmann that bans on same-sex marriage are constitutionally defective because marriage is a fundamental right. It’s a compelling argument that would help move us away from the “class based” equal protection models that aren’t really working.
Incidentally, I also agree with Gerstmann that the valiant attempts to claim that bans on same-sex marriage should be subject to strict scrutiny because they constitute gender discrimination won’t really fly. Bans on same-sex marriage treat people of both genders the same, and while this formal equality obviously entails subordination and stigmatization, the invidious discrimination is directed at people based on their sexual orientation, not their gender per se. To argue that bans on SSM are unconstitutional, you either have to argue that 1)sexual orientation should be subject to heightened scrutiny, or 2)same-sex marriage burdens the fundamental right of marriage and hence should be subject to heightened scrutiny. Fortunately, I think both of these alternatives are good arguments, one of which is likely to prevail eventually (although probably not as a result of this case.)
A good first step, anyway. More when I have a chance to read the opinion, although we can be confident that the George W. Bush appointee Jeffrey White is some sort of free-thinking anarchist.
The Obama administration has announced that it will not defend laws that prevent married same-sex couples from obtaining military benefits. In a letter to Congress today, Attorney General Eric Holder argued, “[t]he legislative record of these provisions contains no rationale for providing veterans’ benefits to opposite-sex couples of veterans but not to legally married same-sex spouses of veterans … Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that would warrant treating these provisions differently from Section 3 of DOMA.”
Glad that the administration is acting consistently with the values of the Constitution. Or, as Jeff Goldstein would call it since it’s not Reagan doing it, “tyranny.”
It’s official. Should the expected referendum ensure, hopefully this time the “put fundamental rights up for a plebiscite” strategy will fail as well.
Meanwhile, in the competition for the very dumbest SSM opponent in Washington, I think I have to vote for Hargrove.
With respect to how Kennedy is likely to rule on the Prop 8 case, a few additional points. First, in response to Murc here, I should make it clear what I’m not arguing, namely that Reinhardt’s opinion will somehow be able cleverly manipulate Kennedy into supporting a position he’s not otherwise inclined to go along with. As I said when similar claims were made during the Kagan nomination hearings, I regard arguments that Kennedy can be manipulated to support liberal positions as roughly on a par with arguments that Evan Bayh and Ben Nelson can be made to vote like Paul Wellstone based on arguments that rely on terms such as “bully pulpit” or “mandate.” Rather, my argument is simply that Reinhardt’s holding is one that, based on his past writings, Kennedy is likely to agree with, and hence less likely to vote to overturn and create a terrible precedent. “Manipulation” per se has nothing to do with it. Mazzone believes that this is about manipulation because he thinks that Reinhardt’s analogies to Romer are invalid, but I think he’s wrong about that. At any rate, Kennedy will make up his own mind, which is another reason why it made sense for Reinhardt not to go well beyond Romer and declare a broad right to same-sex marriage; if this is what Kennedy believes he’s free to do so anyway.
As for how much we can read into Lawrence and Romer, here’s another way of putting the argument I made here. Kennedy has demonstrated, in several cases, a willingness to vote to strike down the death penalty as applied in certain narrow ways: in cases of people under 18, people with severe mental disabilities, or in cases of sexual assault. It would be very foolish, however, for a litigator to assume that because he’s willing to strike down applications of the death penalty that are rare even in the minority of states that use the death penalty with any frequency he would therefore be willing to endorse the Marshall/Brennan theory that the death penalty is obviously unconstitutional. Kennedy is more likely to endorse a broad national right to same-sex marriage than is he is to rule that the Eighth Amendment makes any application of the death penalty unconstitutional. But, still, to be confident that he will do so based on Romer and Lawrence is deeply problematic. These cases, whose direct national impact was very modest, are a lot more like Roper v. Simmons than they are like Roe v. Wade (which would be the clearest equivalent to declaring a national right to same-sex marriage.)
There’s a final argument, made by Mazzone and also by the great Pam Karlan, that Kennedy is very concerned about his legacy and won’t want to be seen as being on the wrong side of history. Well, maybe. It’s certainly possible that Kennedy would like to see himself as being on the forefront of an important extension of civil rights that will broadly accepted very soon. It’s also possible that Kennedy has no interest in being a pariah among has valued conservative colleagues in support of social change he believes is inevitable anyway. And it’s possible that he’s aware of conservative complaints that he’s susceptible to the “Greenhouse Effect” and wants to show his backbone in a high-profile case. There are a million different essentially unfounded narratives one can create when one plays the armchair psychologist. What I do know is that his past decisions indicate that Kennedy is much more likely to uphold a narrow decision striking down Prop 8 than a broad one, and both 9CA was sensible to act accordingly. Particularly since that if Kennedy is in fact ready to go beyond a narrow ruling nothing in Reinhardt’s opinion can or would stop him.
A couple people in comments endorsed Jason Mazzone’s critique of the Ninth Circuit panel’s narrow opinion ruling Prop 8 unconstitutional and asked for my reaction. To paraphrase Byron White, I agree with Mazzone that the best outcome would be for the Supreme Court to declare a nation-wide right to same-sex marriage, but our agreement ends there. In short, I think Mazzone’s reading of Reinhardt’s opinion is uncharitable and erroneous, and more importantly I think he is far too optimistic about Kennedy’s willingness to make bans on same-sex marriage illegal in all 50 states.
Whenever the courts strike down a law that discriminates against a group conservatives don’t like, every reactionary think and group blog must draw straws to see who gets to throw out the stale, transparently unprincipled cliches about judicial restraint. At the Heritage Foundation, the assignment apparently went to vote suppression guru Hans A. von Spakovsky, who delivers the goods:
As the Ninth Circuit writes, the question of how to define marriage “is currently a matter of great debate in our nation.” Unfortunately, instead of permitting that debate to occur through the political process, decisions like the one issued today remove the question from voters in favor of judicially imposed social policy.
Let’s leave aside the fact that judicial review is, in fact, a long-established part of the American political process. Given von Spakovsky’s deeply principled commitment to deferring to the judgment of legislators on contested constitutional questions, I wonder how he feels about the litigation attempting to get the signature policy achievement of the Obama administration ruled unconstitutional based on constitutional arguments nobody had thought of before 2010 (even when the same people were arguing for federal mandates to buy privatized annuities?) I think you know the answer!
The Ninth Circuit has ruled that PropH8 is unconstitutional. I am very concerned that this will undermine Newt Gingrich’s commitment to the sacred institution of heterosexual marriage.
Obviously, good news, although the news will ultimately only be as good as Tony Kennedy decides it will. Much more when I’ve had a chance to read the opinion in full (see here).
Cynthia Nixon’s recent comments are very wise:
Regarding her late-in-life sexual orientation switch, the “Sex and the City” star said:
I gave a speech recently, an empowerment speech to a gay audience, and it included the line ‘I’ve been straight and I’ve been gay, and gay is better.’ And they tried to get me to change it, because they said it implies that homosexuality can be a choice. And for me, it is a choice. I understand that for many people it’s not, but for me it’s a choice, and you don’t get to define my gayness for me.
Writer Alex Witchel reports that “her face was red and her arms were waving” as she continued, “It seems we’re just ceding this point to bigots who are demanding it, and I don’t think that they should define the terms of the debate,” Nixon said. “I also feel like people think I was walking around in a cloud and didn’t realize I was gay, which I find really offensive.”
Nixon may think her comments are “politically incorrect,” but they also represent what should be the clear progressive position. Obviously, people’s attractions are driven to a greater or lesser extent by biological factors, and also obviously people have agency. The precise ratios, however, are completely irrelevant to political questions about LBGT rights. The issue is not just whether the means proponents of legally subordinating gay and lesbian use will “work”; it’s that the ends are reprehensible, because there is in fact nothing wrong with being gay or lesbian. It os a profound violation of human dignity for the state to police consensual behavior among results irrespective of to what extent one’s behavior is driven by biology or agency. It is fundamentally wrong and undemocratic for the state to prevent a same-sex couple from marrying on the same terms as an opposite-sex couple regardless of whether the couple is exclusively attracted to members of the same sex, chose their partner from a number of plausible same-sex or opposite-sex partners, or for that matter is asexual but wants to codify a long-term companionship. To put too much emphasis on the biological roots of sexuality, as Nixon says, concedes way too much.
Cardinal Francis George of Chicago makes a very serious argument in defense of traditional Catholic doctrine on marriage:
CARDINAL GEORGE: Well, I go with the pastor. I mean, he’s telling us that they won’t be able to have Church services on Sunday, if that’s the case. You don’t want the gay liberation movement to morph into something like the Ku Klux Klan, demonstrating in the streets against Catholicism. So, I think if that’s what’s happening, and I don’t know that it is, but I would respect the local pastor’s, you know, position on that. Then I think that’s a matter of concern for all of us.
This somewhat reminds me of the argument that Democrats are the party of racism because Robert Byrd was a KKK member in 1947. The Klan threatened Catholics with its intolerance and hate in 1923. Therefore, anyone who the Catholic Church opposes must also be a purveyor of hate, even though the Catholic Church is the institution attempting to repress the rights of others.
Cardinal George’s attempt to walk back his comments is also fantastic:
Obviously, it’s absurd to say the gay and lesbian community are the Ku Klux Klan, but if you organize a parade that looks like parades that we’ve had in our past because it stops us from worshipping God, well then that’s the comparison, but it’s not with people and people — it’s parade-parade.
The noted parade threat. It was indeed the parade itself and not the legislative action or acts of violence that was the real threat of the KKK. Evidently it doesn’t matter the reason, the act of organized walking in a street past a Catholic Church is the real threat!
It’s not surprising that it looks as if the 9th Circuit will reject the farcical argument that Judge Vaughn Walker (who ruled that the Proposition 8 violates the 14th Amendment) should recuse himself because he’s gay. But this line of argument concedes way too much:
But the 9th Circuit judges stressed there was no proof Walker had any intent to marry, with one, Judge Michael Daly Hawkins, noting that he did not marry in the window of time when same-sex marriage was legal in the state — before Proposition 8 was approved by the voters.
This may be true, but it’s beside the point. So what if Walker did intend to get married? Are homeowners disqualified from hearing 4th Amendment cases? Are only judges who pledge never to speak or write in public allowed to rule on 1st Amendment cases? Do judges have to pledge never to buy equities before they hear a securities litigation case? (And, of course, the assumption that only gays and lesbians are affected by same-sex marriage bans is to concede in advance that they’re irrational.) The argument that Walker has to recuse himself is profoundly foolish and profoundly offensive, and the fact that it’s being made in open court is in itself a good argument that classifications based on sexual orientation should be subject to strict scrutiny.