The Volokh Conspiracy

Today the President of the United States explicitly endorsed the idea that gay couples and their families should have the freedom to marry.  He had already done so as a practical matter by refusing to defend the constitutionality of what he carefully mislabelled the “Defense Against Marriage Act” and by publicly opposing state constitutional amendments against marriage.  But in the past he had said he personally opposed gay marriage because “God is in the mix.”  Jon Rauch has some thoughts about the Obama evolution toward support:

What happened? Harry Truman was fond of quoting Mark Twain: “When in doubt, do right. This will gratify some people and astonish the rest.” Now and then, politicians have a “goddammit” moment. Obama’s position had clearly shifted on the issue (who was he kidding with his talk of having “evolved” but being unwilling to make news?), and there was never going to be a better time to make the switch than now–at least not while he is certain to be a non-lame-duck president.

So Obama decided it’s worth a roll of the dice to make history. Which is what he has done.

As of his announcement, favoring gay marriage is now fully, indisputably, and permanently a mainstream political position. All hint of weirdness or stigma is gone. It is also now the stated position of one of the two major political parties (only 16 years after President Bill Clinton, a Democrat, signed the anti-gay-marriage Defense of Marriage Act). Precisely because the issue is unlikely to decide the election this year, November’s result will not revoke the issue’s promotion in status even if Obama loses. Though gay couples have not achieved full legal equality, gay marriage, as an issue, has achieved full political equality. That is a landmark in the ongoing marriage debate.

Rauch goes on to speculate that Obama’s statement might influence the Justices should the Prop 8 case or DOMA litigation reach them.  That’s possible, but I’m dubious. This Supreme Court has not been shy about disagreeing with the Executive Branch.  For goodness’ sake, Justice Alito delivered a visual advisory opinion to him during the State of the Union speech days after the Citizens United decision. I think they’ll decide the issue independently of what President Obama, or President Romney, personally thinks about it. The bigger constitutional landmark was the Obama Justice Department’s conclusion that DOMA is unconstitutional because it cannot meet the heightened scrutiny that the DOJ argued is applicable to discrimination based on sexual orientation.

The rest of what Rauch says, however, seems spot on to me.  It’s easy to be cynical about everything politicians do, and I yield to few people in my skepticism of officeholders.  I spoke to many Minnesota lawmakers last year who voted to place an anti-gay marriage limitation on the ballot, yet privately expressed their misgivings about it. President Obama himself has a tortured public history on the issue, moving from support when he ran for state office in 1996, to opposition when he ran for U.S. Senate in 2004 and president in 2008, to support now.  It’s obvious that he privately supported gay marriage for years, so his evolution was for public consumption.

Nevertheless, watching him closely on TV, I had a hard time mustering cynicism about the president’s words.  He must know his public support is not obviously a net political plus for him in November.  And his description today of his discussions with his family, his experience of talking to young adults (including young Republicans) for whom opposition to gay marriage is baffling, and his understanding of the hardships faced by gay families, including those headed by openly gay servicemembers, seemed genuine.  His words echoed the conclusions now reached by about half of the American people.  On this issue, as on others, the president may be leading from behind.  But it matters when presidents lead, as when Lyndon Johnson declared civil rights a “moral issue” and announced on national television, “We shall overcome.”  The president’s endorsement won’t matter to people who’ve made up their minds to oppose marriage for gay couples, but many others are listening.

I’ll be speaking about my new book, Flagrant Conduct: The Story of Lawrence v. Texas, this Thursday at 6 p.m. at the Commonwealth Club in San Francisco.  Registration is $20 for non-members, $8 for members, and $7 for students.  For more details and registration, see here.

This week I’ll be discussing my new book, Flagrant Conduct: The Story of Lawrence v. Texas, at two different venues. On Thursday, the Charles Hamilton Houston Institute for Race & Justice will sponsor a speech at Harvard Law School from 5:30-7:00 p.m. Details are available here. 

On Friday evening at 7:00 p.m., I’ll be speaking in Washington, D.C. at the bookstore Politics & Prose.  Andrew Sullivan will offer commentary.  Details about that event are available here.

In today’s Times Book Review section, Pulitzer-Prize-winning historian David Oshinsky reviews my new book, Flagrant Conduct: The Story of Lawrence v. Texas.  I promise not to make a habit of posting these notices, but I’m quite honored by his review, as I have been by several other recent reactions to the book.

Georgetown Law Professor David Cole has a terrific review of my new book, Flagrant Conduct: The Story of Lawrence v. Texas (Norton) in the April 5 issue of the NYRB. Cole presents the basic background, including what likely happened the night John Lawrence and Tyron Garner were arrested for the crime of “Homosexual Conduct,” a Texas law that forbade oral and anal sex for same-sex couples but not for opposite-sex couples. A similar Georgia law had been upheld in Bowers v. Hardwick (1986), which the Lawrence Court reversed.  Cole notes that it was unusual enough for the Court to recognize its own error:

But for it to happen in a mere seventeen years, the equivalent of a nanosecond in the “Jarndyce and Jarndyce” tempo of constitutional law, is nothing short of extraordinary. The story of how it happened is one of the great success stories of public interest law. It shows what a carefully orchestrated litigation campaign can do when supported by a passionate and growing social movement. At the same time, it offers a cautionary tale for the current controversy over the recognition of same-sex marriage, which may soon be headed, prematurely, to the Supreme Court.

The Supreme Court’s 2003 decision in Lawrence v. Texas devoted a scant paragraph to an anodyne description of the facts of the case, barely mentioned the defendants, and described their alleged conduct only as “a sexual act.” The Court was evidently more at ease with the nuances of constitutional jurisprudence than with the messy details of the case. Dale Carpenter’s Flagrant Conduct fills in the gaps, and provides a rich, meticulous, and fascinating account of the most important constitutional decision so far on the status of gays and lesbians in American society.

Unlike the Court, Carpenter revels in the factual details and the personalities involved in the struggle, as he takes us from the recesses of a private bedroom in a seedy condominium on the outskirts of Houston to the oral argument in the grand chamber of the United States Supreme Court. Along the way, he offers sharp insights into the politics, ironies, and strategies behind the Brown v. Board of Education of the gay rights movement.

Over the next couple of months I will be on an active speaking tour for my new book, Flagrant Conduct: The Story of Lawrence v. Texas, which has just been published by W.W. Norton & Co. 

Of perhaps greatest interest to readers of this blog are a couple of events coming up soon.  This Friday, March 16, I’ll be in Washington speaking at lunchtime at the Cato Institute, with commentary by Washington Post editor Charles Lane, and moderated by Cato’s David Boaz.   The following Thursday evening , March 22, I’ll be in New York speaking at the Institute for American Values, hosted by Elizabeth Marquardt, Director of the Center for Marriage and Families.

Both events are open to the public and free of charge, but require pre-registration at the links above.

You can watch the signing here.  The legislative success was the result, as in New York, of persuading a handful of Republicans and almost all Democratic state legislators to support marriage for same-sex couples.

It’s considered very likely that gay-marriage opponents will force a popular vote on this issue this November.  Same-sex couples won’t be able to marry until and unless that initiative is voted down.  Washington voters rejected an attempt to ban legal rights for gay families a couple of years ago, but “marriage” will be a tougher slog.

UPDATE: In case you missed it, you can watch the signing speech here.  It is powerful.

The Ninth Circuit’s opinion in Perry v. Brown pushes hard to apply Romer v. Evans to the Prop 8 litigation.  The panel noted that the grant of full marital and parental rights to same-sex couples, while simultaneously denying them the word “marriage,” excised gay couples and their children with “surgical precision.” But such narrowness was not the problem in Romer; it was the breadth of a law denying a single class all civil-rights protections proved troubling.  Narrowness is usually a virtue in rational-basis review.  How, then, does one explain why a very precise law is unconstitutional?

In an op-ed in today’s Los Angeles Times, I suggest a connection between Perry and Lawrence v. Texas, which struck down the Texas “Homosexual Counduct” law.  While Perry was as an equal protection case, the due process holding of Lawrence actually seems closer to the “surgical precision” concern than does the equal protection holding in Romer.  Here is an excerpt from the op-ed:

If Proposition 8 is ultimately declared constitutionally unacceptable by the Supreme Court, it might have to reach beyond Romer, to a decision mentioned only sparingly by the 9th Circuit. That is the Supreme Court’s decision in Lawrence vs. Texas, which struck down a law banning homosexual sex.

The sorry history of this country’s legalized discrimination against homosexuals is striking for the absence of reasoned justifications, for arbitrary lines between conduct allowed and conduct forbidden, and for a tendency to use the asserted immorality of homosexual acts to justify widespread opprobrium of homosexuals. History certainly suggests that an unreasoning prejudice or aversion motivated some laws shutting out gay people.

Texas, for example, prohibited gay sex in 1973 in a so-called homosexual conduct law, but in the very same year the state legalized consensual heterosexual sodomy, adultery and even bestiality. One Texas appeals court judge, a Republican and self-described “country lawyer” who had no schooling in gay rights causes, saw that contradiction as nonsense. In an interview about the Lawrence case, he told me that when it reached his court, he wondered how the state could justify a surgically precise ban on gay sex.

“I kept thinking that if they decriminalized all those things that one would normally say are immoral, then why did they leave this one in? There had to be a reason,” he recalled thinking, obviously still baffled. “And nobody could explain to me why.”

In Lawrence, the court ruled that the state could not impose the majority’s moral code on homosexuals. It could not “demean their existence or control their destiny” by driving them away from relationships. Homosexuals, the court observed, enter relationships for the same reasons heterosexuals do: to share intimacy with a partner, to show affection and obligation, to have and raise children, to establish a place they call home and to love people they call family. California recognized this reality through its broad domestic partnership law.

But just as Texas prosecutors could no longer explain in constitutionally acceptable terms why the law excluded homosexuals from an otherwise transformed codification of sexual morality, the proponents of Proposition 8 cannot explain the titular exclusion of gay couples from an otherwise transformed landscape of family law and marital practice. California has, for very good reasons, abandoned a seamless worldview of legally recognized relationships from which gay couples and their families must be absented. Proposition 8 in California, like the homosexual conduct law in Texas, is an anachronism.

I agree with some of what Ilya writes in response to my post on the Ninth Circuit’s Prop 8 decision and judicial minimalism.  As I noted in that post, the effect of striking down Prop 8 is certainly not small. California would be “by far the biggest prize” for same-sex marriage advocates.  Of course, it could have been written in a way calculated to produce an even larger effect, bringing same-sex marriage to every state with civil unions, or even to support a right to marriage for gay couples across the country. But requiring a state with 37 million people to accept gay marriage is pretty doggone big.

I also noted that it would be hard to draw the line, as the Ninth Circuit panel did in Perry v. Brown. The opinion explicitly limits its holding to California, where full rights and then marriage itself was given to same-sex couples but then marriage was retracted. I see no principled minimalist reason to justify this limitation. Perhaps there’s no rational-basis for granting full rights but not the dignitary status of marriage, because granting the full rights surrenders the core for refusing marriage (procreation and responsible child-rearing).  But it seems only judicial fiat further confines the decision only to states where the word marriage was given and then withdrawn. The effort to cabin the case to California, as opposed to the other civil-union states is the most unsatisfying part of the decision. That’s why I called it “judicial minisculism.”  I’ve also said repeatedly in these electrons that I think the Perry litigation is likely a loser that may set back the cause.  Reinhardt’s opinion seems to be an effort at harm reduction so that even a loss in the Supreme Court will be on narrow grounds.  We’ll see, alas.  On all of this, Ilya and I appear to agree.

We do disagree, however, on two things.  First, as I believe I’ve argued previously on this blog (I don’t have time now to chase it down), I don’t find the sex-discrimination argument terribly persuasive. It was popular among gay-legal academics in the 1980s and 1990s, and has been subject to extensive defense and critique (most notably in a fantastic exchange between Andrew Koppleman and Ed Stein), but it never caught on with courts and it’s mostly been dropped in gay-rights litigation.  It was hardly mentioned in the main attack on the same-sex-only sodomy law in Lawrence v. Texas.  Its main problems, very briefly, are that (1) it obscures the heart of the equal protection issue, continuing exclusion of gay men and lesbians, and (2) it isn’t sufficiently attuned to the Court’s sex-discrimination cases, which do suggest a lower level of scrutiny when legislation addresses ”real differences” between men and women (like the capacity to get pregnant or, one might say in the marriage context, the capacity to procreate as a couple).  To the extent courts care about sexist legislative purposes, it’s not obviously clear that the traditional definition of marriage is designed to reinforce the legal subordination of men to women. The law today makes spouses legally equal, regardless of sex.  It’s a debate that won’t end, and I recognize others may reasonably disagree.

My other disagreement with Ilya is less qualified.  He appears to believe that same-sex marriage advocates might be best advised to make maximalist arguments now, to go for broke, as long as they’re likely to lose anyway. A defeat, he writes, could “lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.”  Bowers marked progress in the sense that four justices did vote to overturn the Georgia sodomy law (and a fifth, Justice Powell, later said he’d probably made a mistake voting to uphold the law).  But Bowers itself was a calamity for the gay-rights movement, a 17-real-long plague that spread into every law at every level of government, state and federal. It was used by courts to deny gay-rights claims in the military, in housing, in public and private employment, in custody, in child visitation, and so on. Politically, the presumptive criminal status of homosexuals was used as a reason to resist every proposal for gay-rights legislation, from hate-crimes laws to marriage, even in states that had no sodomy law. Constitutionally, it was used to deny heightened scrutiny to classifications based on sexual orientation.  Its damage was so deep that many doubted the Court would even strike down Colorado’s Amendment 2. If you could jail homosexuals, Justice Scalia plausibly argued in dissent, why can’t you deny them protected status in civil-rights laws? Sure, the decision was reversed in Lawrence by a bare 5-vote majority, but Bowers so spooked the lawyers in that case that even they doubted the Court would reverse it. In my history book, Bowers “laid the groundwork” for Lawrence only in the sense that Pearl Harbor paved the way for VJ Day.  So, as a strategic matter, I’m very dubious about expansive claims for gay marriage in the federal courts. The risk of gay-marriage Pearl Harbor is too great, and the unpredictable damage done legally and politically could be profound and long-lasting.  Far better a shallow and narrow defeat under minimalism than a deep and wide defeat under maximalism.

UPDATE: Ilya has a nice response to this post here, and it’s well worth reading.  Many of the points I would make in further reply are made in the comments to his post, so I think I’ll leave it at that for now.

In the ongoing search for a constitutionally minimal justification for Prop 8, Orin proposes a creative one – repudiating activist judges independent of the substantive merits of the amendment:

One rational reason to support a symbolic law like Prop 8 would be to issue a rebuke to the California Supreme Court that issued that decision, with the hope that such a public rebuke might influence the Court’s decisions in the future.  Different people will disagree on whether this argument is persuasive, but I think it satisfies the rational basis test.

To the extent this argument rests on the idea that Prop 8 inflicted only “symbolic” harm on same-sex couples, and thus is not not of constitutional concern, it is supported in the opinions of courts in states where same-sex civil unions are recognized but the designation of marriage is withheld.  The New Jersey Supreme Court’s opinion from 2006 would be one example.  As I wrote at the time, I disagree that the difference between “civil union” and “marriage” is purely semantic and unimportant – though that doesn’t by itself mean courts should require the state to grant the designation to same-sex couples.  Indeed, the fact that the word “marriage” is important and in more than a symbolic sense may be the one thing that SSM advocates and opponents agree upon.  Judge Reinhardt addressed the question at length in his opinion and other judges have convincingly, in my view, done the same.  I don’t want to rehash that argument here. At any rate, I don’t think Orin’s point about the judicial-discipline rationale depends on the idea that Prop 8 was a harmless withdrawal of some symbolic affirmation.  Under the rational-basis test, I suppose he’d say that even if some limited harm were collaterally imposed on same-sex couples the judicial-discipline rationale still survives judicial scrutiny.

The rational-basis test in Equal Protection doctrine and in other constitutional fields requires that a law (including a classification) be rationally related to a legitimate state interest. (When a classification affects fundamental interests, like voting, or discriminates on a suspect basis, like race, heightened scrutiny applies.) This ordinarily allows a poor fit between means and ends and accepts almost any governmental purpose as “legitimate.”

Assuming rational-basis review applies to Prop 8, there are two potential difficulties with a judicial-discipline rationale for it:

(1)  When a classification affects what the Court sometimes calls “personal” or private interests, like sex and family-living arrangements, the Court has applied a more aggressive scrutiny while sometimes calling it rational-basis review.  Think of the denial of food-stamp assistance specifically to “hippie communes” even though food stamps are not required benefits (Moore v. City of East Cleveland).  Think of the decision in Lawrence v. Texas, which some people regard as a rational-basis case and which invalidated a state sodomy law although there were some really thin public-health justifications for such laws.  Also, when a classification targets a group that has been subjected to widespread unreasoning prejudice, but nevertheless has not been given the extraordinary judicial protection of suspect-class status, the Court has similarly applied a heightened form of rational-basis scrutiny. Think, for example, of a law that strips all specific civil rights protections from homosexuals in order, inter alia, to conserve state enforcement resources to end discrimination that matters more or to protect the associational liberty of landlords.  (Romer v. Evans)  Or consider a city zoning restriction that forbids facilities for the mentally retarded (while allowing fraternity houses in the same neighborhood) on the asserted rational grounds that the home sits on a 500-year flood plain and that once every 500 years it will be harder to remove the residents for their own safety.  (Cleburne v. Cleburne Living Center).

Based on the Court’s precedents, Prop 8 is a candidate for something more than ordinary rational-basis review both because it classifies in the personal area of family life and because it targets a class of people long subjected to unreasoning prejudice and opprobrium. If that’s right, a court might well reject a judicial-discipline rationale on the grounds that it is unusually likely to be a cover for animus against the group or because the fit between means and ends is almost arbitrary.  Why, we might ask, take out our generalized frustrations with judges on the families of gay couples rather than in any 100 other cases or ways we might express this frustration?  To say that their interests don’t carry much weight in a campaign against judges, that they are acceptable collateral casualties in a larger cause, feeds the conclusion that the political process is infected with at least a casual disregard of them.

(2)  Even if we applied the customarily weak form of rational-basis review there would still be room to reject a  generic judicial-discipline rationale.  In the field of economic regulation, for example, rational-basis scrutiny has been applied in about the most flaccid way imaginable. Indeed, it has been so forgiving — finding just about any objective “legitimate” and any means “rationally” related — that it’s a wonder we bother repeating the mantra. It would be more honest, perhaps, if courts simply said, “Once we determine that the state is regulating an economic matter, in the way we understand what counts as an economic matter, the law will be deemed constitutional.  Full stop.”

Using the version of rational basis that applies to economic regulations and classifications, suppose a state supreme court invalidated a state health-insurance mandate by finding some right (say, substantive liberty, property, or contract protection) in the state constitution that is infringed by a health-insurance mandate. Then suppose the people, using the initiative process, passed a constitutional amendment overruling the decision and imposing health-insurance mandates on consumers of health care.  What would be the rational basis for such an amendment?  Two candidates are offered: (1) Health-care rationale:  The amendment is constitutional under the federal constitution because health-insurance mandates are rationally related to the legitimate objectives of controlling health-care costs and providing universal coverage. (2) Judicial-discipline rationale: The amendment is constitutional because, no matter whether health-insurance mandates are rationally related to the interests in cutting costs and providing coverage (indeed, even if they aren’t), it is rationally related to the people’s interest in showing judges who’s the boss.

Then suppose a group of liberty-loving citizens sue in federal court to have the amendment invalidated because it violates fundamental liberty rights of the kind endorsed by the state supreme court and because it is not even rationally related to any legitimate objective.  Leave aside the fundamental-rights argument for our purposes. Under traditional rational-basis scrutiny applied to economic regulations, the constitutional challenge to the health-care rationale is surely a loser. It might be debatable whether insurance mandates are a good idea, but the whole thrust of rational-basis review is to leave rationally debatable propositions to the political process.

The challenge to the judicial-discipline rationale would be more interesting.  Even under the traditional application of the rational-basis test to economic regulations, the legitimate objective and the means used to achieve it cannot be a complete mismatch.  The relationship cannot be arbitrary.  A legislature presumably could not, consistent with this approach, determine that banning the consumption of orange juice is rationally related to the state’s legitimate interest in preventing lung cancer caused by smoking cigarettes.  It’s not that banning the consumption of orange juice is an irrational means to any conceivable legitimate state interest, like say, promoting the apple-juice industry. And it’s not that reducing the incidence of lung cancer caused by smoking is an illegitimate objective.  It’s that the one has no relationship to the other.

So how would the judicial-discipline rationale fare in an economic case, like the challenge to the amendment imposing a health-insurance mandate? It’s not that rebuking or restraining judges can never be a legitimate objective of the voters or the legislature. Voters could, for example, use what Orin calls a Rose Bird strategy: recalling the judge or refusing to retain her in an election. And it’s not that the means of reversing a judicial decision can’t be a rational way of imposing a preferred policy, like say, mandating that everyone carry health insurance. It’s that achieving the legitimate objective of restraining judges by means that have no independent rational basis looks like a mismatch between ends and means. It’s not quite as arbitrary as comparing apples and oranges, because the voters have chosen something as an expression of their anger.

But unless we believe that the health-insurance mandate has an independent rational basis on its own merits – say, the health-policy rationale — then we really are saying that the rational-basis test is nothing but a splendid bauble. Voters and legislatures would have an automatic rational basis for anything they do, regardless of whether the substance of what they do has any rational justification. It can always be said that the state has acted to rein in the judges for a decision they’ve already made. And under that view, why couldn’t the voters issue a preemptive rebuke to the judiciary, anticipating a possible judicial decision in the future, even though the policy codifying the rebuke is irrational on its own terms?  The judicial-discipline rationale is the justification that swallowed the analysis.  X can impose harm on Y, in symbolism or substance, simply to punish Z.  If that’s right, it would be more candid to give up the pretense and just say that in any case where rational-basis review applies, there will be no review at all.

There’s plenty to like about a strong presumption of constitutionality in most areas of public policy, and plenty of room for debate about what that “most” should and shouldn’t cover.  But I can’t see much to like about an irrebuttable presumption of constitutionality. And whatever the merits of eliminating even minimal judicial review of almost all public policy, it is not an inescapable conclusion from the rational-basis precedents.

UPDATE: It occurs to me that the judicial-discipline rational might be more defensible if it has a sharper focus: it could be said that, whatever their views on the merits of the issue (like same-sex marriage), voters and legislators have a particular concern about judicial activism on that issue.  In other words, they haven’t banned gay marriage because they have a generalized anger about judicial activism (which really does seem to pick on homosexuals in a random way), but because they have a particularized concern about judicial activism on this very question of same-sex marriage.  This seems to me a stronger form of the judicial-discipline rationale because it is more directly linked to the amendment.

I see three continuing problems, however. One is that this more particularized judicial-discipline rationale starts to bleed into a substantive, merits-based justification. Why do voters and legislators think judicial activism in the area of same-sex marriage as opposed to judicial activism in many other areas must be reversed by an extraordinary action? That must have something to do with the merits of the issue. That leads to a second concern, which is that in cases where souped-up rational-basis scrutiny applies (Moreno, Cleburne, Romer, Lawrence), there is greater concern that neutral-sounding justifications (like the 500-year flood plain or saving food-stamp money) are simply a pretext for constitutionally impermissible animus or unadorned ”moral disapproval.” Third, even under the most forgiving form of rational-basis review this more particularized judicial-discipline justification still provides an almost automatic and unreviewable self-justification for everything the legislature or voters do. Every reaction to a decision, or even preemptive action on the issue, could be said to reflect a particular popular concern with judicial activism on that very issue.  Who could say otherwise, unless the rational-basis standard really demands minimal reasons that go to the merits of the issue itself?

In contrast to Judge Walker’s maximalist opinion striking down Prop 8, it’s generally accepted that Judge Reinhardt’s opinion was minimalist.

There’s a commonsense way in which the opinion is not at all minimalist. It reverses the results of a plebiscite, which followed the expenditure of $80 million and the mobilization of millions of voters. It brings full same-sex marriage to a state whose cultural, political, and legal influence on the rest of the country outstrips even its massive population. It’s by far the biggest prize (sorry, New York) in the fight over gay marriage. Advocates on both sides know this. Winning California is not the beginning of the end, but it is at least the end of the beginning.

In legal terms, as well, minimalism may not precisely describe the opinion.  Reinhardt decided that Prop 8 was unconstitutional on Equal Protection grounds only in the specific and unusual circumstances of California, which are not likely to be repeated: full rights and non-marital status given to same-sex couples, followed by court-granted marital status, followed by actual marriages, followed by popular denial of marital status but leaving in place full rights. Whether the opinion can really be cabined to apply only to these unique circumstances is doubtful.  Can you really say, as a colleague of mine commented today, that the state must move you from the middle of the bus to the front, but not from the back of the bus to the front? But suppose the decision really is a constitutional ticket good-for-this-ride-only (like the Supreme Court’s decision in Bush v. Gore). Minimalism is not the narrowest possible ground on which a court can rule.  It’s the narrowest plausible grounds on which a court can rule, with at least some theoretical underpinning that helps us understand it as a principled decision, even if a badly principled decision, rather than as simply an order.  The panel’s decision is not so much under-theorized in the way minimalists love; it hardly has any theory.  It is so minimalist one might call it minisculist.

Here’s a way we might understand what the panel is doing with such a narrow and shallow opinion. For all the complaints about its activism, the Supreme Court usually moves incrementally. For all the complaints about its countermajoritarianism, it rarely resists a strong national consensus for very long. One very crude way to measure the degree of the Court’s activism and countermajoritarianism is to ask, in a given case, how many states have had their public policy thwarted by a Supreme Court decision holding a policy unconstitutional?  On the aggressive end of the spectrum we have Roe v. Wade, now regarded by many commentators on both sides of the issue as having been too aggressive and as unlikely to be repeated barring a radical change in the Court’s composition.  Roe effectively invalidated the abortion laws of all 50 states, none of which were sufficiently liberal for the Court. On the other end of the spectrum we have Griswold v. Connecticut, which invalidated only the novel Connecticut ban on the use of contraceptives — even by married couples.  In between Roe and Griswold on the spectrum, we have sodomy laws, decided against the constitutional claim when 24 states had such laws (Bowers v. Hardwick in 1986) but in favor of the claim when only 13 states had such laws (of which only four applied solely to homosexual sex and none of which were actively enforced) (Lawrence v. Texas in 2003); and we have anti-miscegenation laws, struck down when 16 states still had them (Loving v. Virginia in 1967).

Where does the Prop 8 litigation stand on this spectrum between invalidating 50 state laws and invalidating only one? Using Walker’s logic (including a fundamental right to marry) the Court would effectively invalidate the laws of, at present, 44 states that do not recognize same-sex marriage, thirty of which ban it in their state constitutions.  That puts it close to Roe territory, a land the Court has pretty much stopped inhabiting (see, e.g., Washington v. Glucksberg).

But using Reinhardt’s logic (again, taking it only on its explicit terms, not in terms of the way it might ultimately be used) a Court would strike down only the law in California.  That brings it, on the spectrum of judicial aggressiveness, closer to Griswold than to Roe.  This is one way to understand Reinhardt’s almost complete reliance on Romer v. Evans, which struck down the law of only one state.  In fact, moving the litigation toward the Griswold end of the spectrum makes it somewhat less likely that the Court will even hear the case, though I share the expectation of my co-Conspirators that the Court is likely to review the issue.  I don’t want to suggest that in its constitutional decisionmaking the Court simply tallies the number of states it has to take on and then decides to act based on the breadth and depth of the likely backlash. That would be reductive and unfair, when in fact I believe the Justices are thoughtful and try to be principled. But it’s hard to believe that considerations of backlash and a welcome humility in the face of a deep national consensus play no role in the Court’s decisionmaking.

Reinhardt’s way of deciding the case does mean that a win for same-sex marriage advocates (through a denial of cert or a Reinhardt-style Supreme Court opinion) is less complete, at least in the immediate future.  More litigation, and more appeals, testing the logic would follow for years, even if the end result is pretty clear.  But it also means that a loss in the Supreme Court could be much more narrow, potentially rejecting only what Jason Mazzone has quite persuasively argued is a strained reading of Romer. Other, more completely theorized, arguments for same-sex marriage based on sex discrimination (which Ilya prefers) or sexual orientation discrimination (which others find more persuasive) or the denial of a fundamental right (as Walker believed) would still be open.  In this way, Reinhardt’s opinion lowers the stakes for same-sex marriage advocates even as it hands them potentially the most important victory yet.

The Ninth Circuit’s opinion on the constitutionality of Prop 8 is expected tomorrow.  Chris Geidner summarizes the issues the panel may address:

The long anticipated appeals court ruling is expected to address three issues: (1) whether former U.S. District Court Judge Vaughn Walker should have recused himself from hearing the case because he is gay and had a long-time partner with whom he was not married; (2) whether the proponents of Proposition 8 have the right to appeal Walker’s decision striking down Proposition 8 as unconstitutional when none of the state defendants chose to do so; and (3) whether, if Walker did not need to recuse himself and the proponents do have the right to appeal, Walker was correct that Proposition 8 violates Californians’ due process and equal protection rights guaranteed in the U.S. Constitution.

John Corvino, a philosophy professor, notes a potential complication for Newt Gingrich’s claim that he has repented, namely, that he continues to commit adultery in the form of remarriage:

Gingrich speaks with a straight face about the sanctity of “one man, one woman” marriage. . .  His defenders from the religious right . . . claim that Jesus offers forgiveness and redemption to repentant sinners. Presumably, in their minds, anyone in a committed same-sex relationship counts as unrepentant. . . . 

Yes, the Bible speaks of forgiveness and redemption. But if marriage really is “until death do us part,” then Gingrich is still committing adultery with Callista. But don’t take my word for it, take Jesus’:

“Whoever divorces his wife and marries another commits adultery against her; and if she divorces her husband and marries another, she commits adultery.” (Mark 10: 11-12)

This double standard is worth pointing out, frequently, publicly and forcefully. 

Under the traditional natural-law and Catholic view, marriage is the union of one man and one woman for life. Nevertheless, those who commit adultery and get divorced are certainly not disqualified from the presidency. More to the point, under the civil law, we even permit them to marry. 

I assume Gingrich agrees that this latter violation of the natural law — divorce and remarriage — should be allowed under civil law.  (It would be interesting to know if he does not.)  Yet he has certainly not joined a crusade of constitutional amendment-making to prohibit divorce and remarriage, nor so much as uttered a word in support of such an effort. He wants his own preferred marriage practices to be free and legal, but wants to prohibit the marriages of same-sex couples.  I can imagine reasons for that distinction, but Gingrich has never explained them before the audiences that drown him in cheers. And I am at a loss to find a justification for supporting civil remarriage — while opposing civil gay marriage – in the religious and philosophical teachings he claims as his own.

Conor Friedersdorf has a pretty good take-down of Rick Santorum’s reasons for opposing same-sex marriage.  Friedersdorf evidently supports same-sex marriage for culturally conservative reasons (praising marriage and its value to families, wanting to preserve it).  Santorum’s argument against same-sex marriage, on the other hand, is little more than an assertion of authority and definition.  Santorum writes:

A husband is a man who commits to a woman, to her and any children she may give him. He commits to his wife without any reservations, to share with her all his worldly goods and to exclude all others from this intimate communion of life. From this vow of marriage comes a wonderful and unique good: any children their union creates will have a mom and a dad united in love, in one family.

Friedersdorf responds by pointing out the wide gap between these assertions about marriage and the actual practice and legal requirements of marriage:

That’s a vision of sacramental marriage, but it ain’t civil marriage in these United States. In civil marriage, prenuptial agreements are permitted, so the man hardly shares all his worldly goods, and plenty of people marry with reservations, and without violating the law when they do so. People write their own vows too. Sometimes they say them in Vulcan! Sometimes they don’t include sexual fidelity, and if they cheat or sleep around with or sans permission they are hardly compelled to divorce. The state keeps on viewing them as being married. Alternatively, it’ll permit them to divorce and marry other people, even if they have kids. So much for “one united family.”

“That’s the special work of marriage in law — to connect things that otherwise fray and fragment: love, life, money, moms, and dads,” Santorum says. Interestingly, gay people are sometimes moms and dads, and the ones who want to marry typically seek material and emotional security — just like straight people, they’re trying to prevent love and money from fraying.

Of natural causes. He was 68 years old.  R.I.P.

“For better treatment.“

This time we were debating a proposed amendment to the Minnesota state constitution banning same-sex marriages, although the focus was on the merits of same-sex marriage itself.  The debate was held at the University of St. Thomas Law School in Minneapolis and was hosted by the Terence J. Murphy Institute for Catholic Thought, Law and Public Policy.  You can view the video here.

Yesterday, in Doe v. Reed, Federal District Judge Benjamin Settle rejected an as-applied challenge on First Amendment grounds to a Washington state law requiring the public disclosure of the names of initiative signers.  The initiative in question would have blocked the legislatively approved recognition of domestic partnerships. (The initiative made it onto the state ballot but lost, the first time voters in a statewide ballot contest supported same-sex partnerships.) A year ago, the Supreme Court rejected, 8-1 (Thomas dissenting), a facial challenge to the same law. 

Judge Settle reviewed the evidence gathered over two-plus years supporting the argument that petition signers had been subjected to threats and harassment. The claims followed a theme developed by anti-SSM activists nationwide. Highlighting such incidents has been part of the ongoing effort to find some “harm” caused by the SSM movement. The evidence in Washington state comprised allegations by initiative supporters, including:

*one supporter received an angry text message from his brother; was “mooned” by someone in a passing car; and was “flipped off” by some people in passing cars;

*one preacher was told by someone that his church would be picketed in an “appropriate” way, although no picket occurred;

*while collecting initiative signatures in a public place, one was glared at by two women who told him, “we have feelings too”;

*several had their pictures taken while in public places;

*some were sent notes containing vulgar language;

*one claimed a death threat was made on a website, but could not identify any such threat on the site, and withdrew the claim.

Other claims involved “bothersome” phone calls, and name-calling using words like “homophobe” and “fascist.” A couple of claims involved alleged physical threats, which were reported to police. There were, however, apparently no prosecutions, much less convictions, for actual threats. There was no actual physical violence. Most of the alleged incidents could not be tied to the initiative, since they were not directed at mere petition signers but to leaders and spokespersons opposed to gay rights over several years.

In Washington, the evidence of intimidation and harassment was unimpressive. The plaintiffs’ attorneys had access to the names and addresses of all those who signed the petition, and all those who contributed funds to the drive, but produced no evidence beyond that pertaining to a few very high-profile individuals. This omission was itself significant, since it suggested the incidents, such as they were, and disputed as they were, were very episodic and isolated. It hardly amounted to a campaign of intimidation by gay-marriage supporters. The court concluded that “the evidence supplied by Doe purporting to be the best set of experiences of threats, harassment, or reprisals suffered or reasonably likely to be suffered by [petition] signers cannot be characterized as ‘serious and widespread.’”

Of course, as the district court noted, it is troubling any time a person is threatened with physical violence. Those cases can, and should, be prosecuted, and there is nothing in the First Amendment that prohibits such prosecution. But in Washington state, at least, there appears to have been little or no evidence of such threats. The rest of the evidence suggested only that some of the people who were about to have any recognition and legal protection of their relationships stripped away had strong feelings about that; that some of them confronted those who were sponsoring such efforts against their families in a public setting where signatures were being gathered; that some of that hostility was expressed strongly, and was experienced as hostile and unwelcome by those who were confronted; and that on a few occasions — out of countless public discussions of the issue – the feelings of gay-marriage supporters were indeed stated in an overbearing (though not illegal) way.

The law protects us from violence and threats of violence. But it does not protect us from criticism, even harsh criticism, when we take public positions on public matters. It does not protect us from having our feelings hurt or from having others think poorly of us. The point goes beyond the narrow First Amendment claim, however, and touches on a larger cultural and democratic interest in wide-open, robust, and sometimes even impolite debate. Justice Scalia said it best in a concurring opinion at an earlier stage of this very litigation:

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Frank Kameny, whose name was practically a synonym for pioneering gay civil-rights leadership, died today at his home in Washington, D.C., at the age of 86.  One news account summarized some of his work:

Kameny’s beginnings in advocacy work came after he was fired from his job as an astronomer for the Army Map Service in 1957. He challenged the firing, though, and took the case all the way to the U.S. Supreme Court. Although the court declined to hear the case, an activist was born.

Kameny went on to become one of the leading advocates for lesbian and gay equality in the years before — and since — Stonewall. In 1961, he co-founded the Mattachine Society of Washington. In 1965, he and others with the group famously picketed the White House in shirts and ties, sending a letter to the White House explaining their presence.

Kameny, along with Barbara Gittings, successfully worked with others to convince the American Psychiatric Association to remove homosexuality from its list of disorders in 1973. The next year, he and Gittings served as counsel to Otis Fancis Tabler, Jr., successfully keeping the Defense Department employee from having his security clearance revoked due to being gay.

He filed the first gay-rights brief in the Supreme Court, in his own federal discharge case, in 1961.  He lived to see not only the end of the ban on federal employment for gays and lesbians, but the decriminalization of private sexual acts between adults of the same sex, the demedicalization of homosexuality by the APA’s decision in 1973, the enactment of laws to protect people from discrimination in employment, housing, education, and medical care, the beginning of gay marriage, and recently the end of “Don’t Ask, Don’t Tell.”  (He served in World War II.) A slogan, coined by him in the 1960s, was “Gay is Good.” Not O.K. or tolerable, but good.  He once sent the police chief a letter inviting him to have sex with Frank at Frank’s home at a select hour. He hoped the police would come arrest him, permitting him to challenge the Virginia sodomy law.  They didn’t take that bait, but the few remaining sodomy laws were declared unconstitutional in 2003.  No small amount of each of these changes was directly attributable or traceable to Kameny. 

I had the honor to meet Frank on a couple of occasions over the past ten years.  He was cantankerous, had a mischevious smile, and was deliberately provocative.  He didn’t sugarcoat anything or consider the political effect of what he said or did  He lived his life openly and honestly, a heroic act for someone of his time.  He constantly reminded you not to direct your persuasion inward toward those who agree with you, but outward toward those who aren’t yet convinced.  His work showed that the greatest constitutional friend of gays and lesbians has been the First Amendment.

He was the last lion, a living link to an entire era of gay male activism that has now expired. But the effects of what he did — which can be seen in the happier and freer lives of millions of people — will be felt long after him.

On Tuesday I’ll be speaking to the student chapter of the Federalist Society at the University of Michigan Law School.  I’ll present the conservative case for same-sex marriage, during the lunch hour.  Visiting professor Steve Sanders will offer commentary after the speech.

On Thursday I’ll be debating Maggie Gallagher on the proposed amendment to ban same-sex marriages in Minnesota.  The debate will take place at the University of St. Thomas Law School in downtown Minneapolis.  It’ll start at 4:00 p.m. and run about 75 minutes.  It’s free and open to the public, although the law school wants people to register so it can gauge how many to expect.  You can get more details and register here.

This week I’ll be discussing same-sex marriage at two different student chapters of the Federalist Society. One is today at noon at the University of Missouri-Kansas City School of Law. Tomorrow is at 12:30 at the University of Kansas School of Law in Lawrence. In both places, my sparring partner will be Dale Schowengerdt of the Alliance Defense Fund.  The events are open to the public.

That’s how the North Carolina state senator who’s sponsoring the anti-SSM amendment began his speech today. Others are citing “statistics” that show a married mother and father provide the best structure for raising children — though the studies compare opposite-sex couples to single parents, not gay parents. You can watch the debate live here.

UPDATE: The amendment passed the state senate, 30-16.

You can watch it live here.  It’ll be interesting to see whether supporters of the amendment make substantive arguments in opposition to same-sex marriage.  Recently, they have emphasized only the desire to leave the issue to voters.

UPDATE: The amendment passed the state house, 75-42.  It moves to the state senate.

SECOND UPDATE:  A story with a link to the langage is available here, including a link to the amendment language (H/T: Rex Wockner)  The language is unusual, but it appears to be one of the broadest amendments that’s been proposed in any state, banning not just SSM but any “domestic legal union” other than an opposite-sex marriage.  That appears to target civil unions and domestic partnerships, for starters.  The other noteworthy fact about passage is that’s it’s proposed for the May 2012 primary rather than the 2012 general election.  That will maximize the chances of passage since turnout among Republicans may be especially high as compared to Democrats during the primary.

The “Today” show was on as I dressed, preparing to go teach a First Amendment class. Then Matt Lauer interrupted an interview to show a gash, black and smoking, in one of the World Trade Center buildings. It was thought to be an accidental Cessna crash — a horrible thing but nothing you imagined you’d be commemorating ten years later. Transfixed by this improbable image, I noticed an airplane coming from the right of the screen. I remember thinking at that moment, “I can’t believe they’re letting aircraft fly in that area.” Then, as the plane disappeared behind the buildings, a fireball erupted from the other side. Soon there was the sickening sight of the buildings’ collapse. The university sent an email announcing that all classes were canceled.  

We began remembering 9/11 on 9/11, with continual replays of the attacks. For weeks thereafter, we wondered what fresh hell might be brought by the overhead sound of a jet engine. That day is still a gash of its own in the memory of any American who lived through it.

There were many tributes in the days and weeks that followed, but I can think of none more painful and also uplifting than this one, which came four months later.

This week and next, SCOTUSblog is hosting an online symposium on various aspects of the litigation challenging California’s Proposition 8 and the Defense of Marriage Act.  The expected contributors are well-known combatants in the ongoing national debate over gay marriage:  Carlos Ball, Bob Barr, Thomas Berg, Erwin Chemerinsky, David Cruz, William C. Duncan, John Eastman, William Eskridge, Maggie Gallagher, Charles Fried, Andrew Koppelman, Pamela Karlan, Robert Levy, Laurence Tribe, Brian Raum, Ruthann Robson, Robin Wilson, Kenji Yoshino, and me.  My first contribution is here.  It should be an interesting couple of weeks.