The Volokh Conspiracy

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.

In a thoughtful recent post, co-blogger Dale Carpenter takes issue with my argument that bans on same-sex marriage are best attacked on the grounds that they are unconstitutional sex discrimination, and parts of my post suggesting that a minimalist strategy in the gay marriage litigation is not likely to work. Dale is one of the leading academic experts on the law of same-sex marriage, so I take his points very seriously. Nonetheless, I remain unrepentant.

Dale argues that the sex discrimination argument is flawed because “(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).” On the first point, I think this “obscurity” is part of the strength of the argument. The idea that discrimination on the basis of sexual orientation should be subject to strong judicial scrutiny has no roots in the original meaning of the Fourteenth Amendment and only a modest basis in recent precedent (Romer v. Evans). By contrast, sex discrimination has long been subject to heightened scrutiny, and, as I noted in my first post on the subject, there is growing recognition that this is consistent with the original meaning. Most important, as I explained in some detail in the earlier post, laws banning same-sex marriage do not in fact ban anyone from marrying anyone else because of their sexual orientation. Anne is free to marry Bob even if one of them is gay or lesbian. On the other hand, these laws do restrict marriage rights on the basis of gender. Bob cannot marry Colin solely because he is a man. The greatest strength of the sex discrimination argument is that it directly confronts what the anti-same sex marriage laws actually do: limit marriage rights on the basis of gender. Obviously, these laws may well be motivated in large part by hostility towards gays and lesbians. But it is generally easier to attack a law based on its actual text than on the possible motivations behind it.

On Dale’s second point, it is essential to recognize that bans on same-sex marriage do not actually “track ‘real differences’ between men and women.” Yes, only an opposite-sex couple can procreate by natural means. But traditional marriage laws do not deny the right to marry to couples where one partner is sterile, couples that are too old to conceive, and so on. These couples can, of course, acquire children by adoption. But the same goes for same-sex couples.

Dale also attacks my claim that gay rights advocates should make a full-blown argument for the unconstitutionality of same-sex marriage bans in this case because, as I put it, a defeat might “lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.” In his view, Bowers was an unmitigated “calamity” for gay rights because 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.” As I see it, however, all of this would have happened even in the absence of Bowers. Had there been no Bowers, some states would still have retained anti-sodomy laws, and most people would still have assumed that those laws are constitutional. Indeed, the absence of any strong legal challenge to them would have reinforced that assumption. With Bowers, by contrast, anti-sodomy laws were upheld by a shaky 5-4 Supreme Court majority. When the Court splits 5-4 on an important constitutional issue, everyone realizes that that question is far from settled and that the Court might well reverse itself in the future. That’s a net gain for the side that lost the case if that side was the one trying to change the status quo.

Dale ends by suggesting that “Bowers ‘laid the groundwork’ for Lawrence only in the sense that Pearl Harbor paved the way for VJ Day.” This is actually not a bad analogy. Pearl Harbor did in fact lay the groundwork for VJ day. It did so by mobilizing American public opinion against Japan, leading to a strong determination to pursue the war until total victory. In retrospect, launching a surprise attack on Pearl Harbor was a terrible mistake by the Japanese that sealed their doom. Similarly, Bowers outraged liberals and gay rights advocates, while at the same time the narrow margin of defeat led them to realize that they could prevail in the future. And win they did.

A similar happy outcome in Perry is far from certain. Perhaps gay rights advocates will suffer a more lopsided defeat in this case than in Bowers, and thereby become demoralized. As I noted earlier, this lawsuit is probably premature. That said, the tide of opinion is rapidly shifting in favor of gay marriage, and – over time – the balance of power between the two sides will shift as well, even if not as rapidly as the balance between the US and Japan shifted in 1942. It is therefore unlikely that a defeat in Perry v. Brown will set back the cause of gay rights for very long. Perry may indeed turn out to be like Pearl Harbor. But perhaps not in the way Dale supposes.

In a recent post, co-blogger David Bernstein partially rejects my argument that a ban on same-sex marriage qualifies as sex discrimination. As David puts it:

On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination. On the other hand, from opponents’ perspective, the point is that “marriage” has been defined for several thousand years in Judeo-Christian culture as between a man and a woman, and retaining that definition is not sex discrimination.

The opponents’ argument, however, in no way refutes mine. Many forms of sex discrimination have “several thousand years” of tradition behind them, often backed by religion. Consider such cases as the exclusion of women from many professions, unequal divorce laws, the treatment of wives and daughters as the property of their husbands and fathers, and so on. The fact that a form of sex discrimination has existed for a long time and enjoys religious backing does not make it any less discriminatory.

I am also unmoved by David’s analogy between a ban on same-sex marriage and a hypothetical Israeli law under which boys are entitled to a state-recognized “bar mitzvah,” while girls only get a “bat mitzvah,” which has the same legal status but is less prestigious. If the bar/bat mitvah were a government-endorsed legal status rather than a private cultural and religious tradition, it would still be sex discrimination for the state to allocate that status on the basis of gender – especially if one of the two labels were in fact more prestigious than the other. I would say much the same thing about David’s hypothetical of a female monarch who wishes to be labeled a “king” rather than a “queen.” These examples only have intuitive appeal because in modern liberal society, we generally regard bar and bat mitzvahs and kings and queens as essentially equal to each other (though I recognize that many Orthodox Jews disagree as to the bar and bat mitzvahs). It therefore seems pedantic to insist on one label or the other. By contrast, most people see “civil union” as a lower status than “marriage,” even if the legal rights are identical.

Consider a law under which men are classified as “first class citizens” and women as “second class citizens.” Although the distinction was originally enacted for the purpose of asserting male dominance, recent legislation has given second class citizens the same substantive legal rights as first class citizens. But first class status remains more prestigious than second class. Assume also that the idea that women cannot be first class citizens is endorsed by thousands of years of religious and secular tradition. If a woman files a lawsuit claiming that the denial of first class citizen status is sex discrimination, she should surely win – at least under a constitution that either bans sex discrimination outright or subjects it to some form of heightened scrutiny.

As I said in my original post on this subject, not all forms of sex discrimination are unconstitutional. Current Supreme Court jurisprudence subjects gender classifications to heightened “intermediate” scrutiny without banning them completely; and I think this is roughly the right approach. If, for example, opponents of same-sex marriage can prove that legalizing it would inflict serious harm on children, then laws such as California Proposition 8 should not be invalidated. But government-sponsored sex discrimination does not become constitutionally permissible merely because it is backed by religion or tradition or because the discriminatory law in question is mostly symbolic in nature.

UPDATE: I have modified this post slightly in order to eliminate a few stylistic problems.

UPDATE #2: David responds to this post in an update to his original one:

Ilya starts his response by misapprehending my point. It’s not that marriage is “traditionally” between a man and a woman, and therefore limiting marriage to such is not sex discrimination. It’s that the very definition of the word “marriage” has, for hundreds or even thousands of year, been limited to relationships between men and women. Therefore, the argument would be that it’s not sex discrimination to limit the scope of state-recognized marriage to what comes within that definition, just like, e.g., it’s not sex discrimination to limit the title of King to men.

I don’t see how calling this a “definition” adds anything to the debate. Once the “definition” becomes a legal status assigned by the state, there is still sex discrimination f the status is awarded on the basis of gender. If the definition of marriage had, for many years been that it is a relationship between members of the same race, a law embodying that definition would still be an example of racial discrimination.

David also writes that “I want to reiterate that I agree that limiting marriage to opposite sex couples can accurately be described as sex discrimination; the question is whether it can also be accurately described in a different way, and if so, whether courts should stick their collective noses in the controversy by choosing which description they prefer.” As I said in the original post, the “different” description in no way undercuts the fact that the state is engaging in sex discrimination. There is no contradiction between the statement that laws against same-sex marriage discriminate on the basis of gender and the statement that they embody a long-standing definition of marriage. These claims are not mutually exclusive in any way, and both are in fact true.

Finally, David states that “if I’m following Ilya’s logic correctly, it would have been sex discrimination to limit the title of King to men, say, fifty years ago, when the title of Queen may have been considered relatively less important, but it’s not sex discrimination today. I don’t buy it. It was, by the logic of Ilya’s original post, sex discrimination then and it is discrimination now to limit the title King to men, but it also was just what the word ‘King’ meant then and now, and therefore not sex discrimination.”

As in the case of marriage, once “king” becomes a legal status as opposed to a mere word, it is sex discrimination if the state restricts that status on the basis of gender. In a society where there is no meaningful difference between the status of “king” and that of “queen,” however, it would not be sex discrimination if one word describes men who hold the position of monarch and the other women. Whether or not such a difference exists depends on various factors, including social context. Therefore, it is perfectly possible that limiting the title of “king” to men was an example of sex discrimination 50 years ago, but not today. In any event, whatever might be said of kings and queens, few today believe that marriages and civil unions are essentially the same thing, except for quirks of linguistic usage. Certainly not the supporters of Proposition 8, who devoted an enormous of effort to trying to pass a law ensuring that same-sex relationships cannot be legally considered marriages.

UPDATE #3: David has another update to his original post where he states:

The underlying purpose and therefore definition of marriage from thousands of years had nothing to do with race. So I agree that if, say, in the 17th century, instead of simply banning interracial marriage, a statute had simply defined marriage as not including interracial pairings that would be clear racial discrimination, even if “traditional”. By contrast, marriage was an existing form of male-female relationship that the state came to recognize…. so it wasn’t the state creating a sex distinction, it was the state recognizing a preexisting institution.

The state did not merely “recognize” a preexisting institution. It enshrined that institution into law and attached various legal privileges to it. The fact that the state’s official definition of marriage codified a preexisting understanding does not make that definition any less discriminatory. Let’s say that the definition of marriage as confined to same-race relationships had also existed “for thousands of years,” and was just as well-established as the definition of marriage as confined to opposite-sex relationships. Would that mean that a statute incorporating that definition into law is not race-discriminatory? Clearly, such a law would qualify as race discrimination, no matter how much people previously thought that marriage is, by definition, intraracial, or how long such a belief had persisted. The same logic applies to legal definitions of marriage that discriminate on the basis of sex rather than race.

On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination.  On the other hand, from opponents’ perspective, the point is that “marriage” has been defined for several thousand years in Judeo-Christian culture as between a man and a woman, and retaining that definition is not sex discrimination.

Imagine, for example, that having a bar mitzvah in Israel provided boys with various and important rights and obligations.   [Let me tighten the hypothetical a bit.] Imagine that in Israel, any thirteen year old Jewish boy could go to city hall and get a certificate of bar mitzvah, regardless of whether he had a religious bar mitzvah ceremony, and imagine further that this certificate provides the boys who get it with various important rights and privileges. Israel, recognizing that girls should be entitled to analogous rights, offers girls a [certificate of] bat mitzvah instead.  The bat mitzvah gives girls the same legal rights and obligations as boys, but because it’s not called a bar mitzvah, it’s less culturally significant and, according to critics bespeaks inequality (and in fact, while bar and bat mitzvahs don’t confer legal rights and obligations in Israel, it’s an important religious and cultural tradition. Girls don’t always get a bat mitzvah, and when they do, it’s rarely celebrated with the same vigor or considered as significant as a bar mitzvah in the same family).

A girl sues, demanding that she be entitled to a legally recognized “bar mitzvah.”  On the one hand, Ilya could rightly claim that by definition, denying her access to the status of “bar mitzvah” is sex discrimination.  On the other hand, defenders of limiting legally recognized bar mitzvahs to boys would rejoin that bar mitzvahs by definition, backed by hundreds of years of tradition and culture, are solely for males.

It strikes me that both sides have a point, and most likely the best thing for courts to do under such circumstances, where they’d basically just have to take sides in a culture war pitting feminists against religious and cultural traditionalists, is to stay out of it–so long as analogous rights and obligations are available to the plaintiff through an analogous ceremony certificate, in this hypo the bat mitzvah.

Disclaimer: While I don’t think that courts should recognize a right to same sex marriage by finding that the absence of such a right is sex discrimination, nor do I think courts should even take the position that is must be analyzed as sex discrimination, I support legislation providing for same-sex marriage. I’ll also add the disclaimer that I’m not addressing any other constitutional arguments that states must expand their definition of marriage to include same-sex couples.

UPDATE: Let’s add an interesting hypo to the mix: what if California, instead of having a domestic partnership law, instead created a new legal category called “same sex marriage” that had exactly the same rights and privileges as “marriage”, but every relevant statute that applied to marriage now applies to “marriage and ‘same-sex’ marriage”, or perhaps “‘traditional marriage’” and “‘same sex marriage’”.  Still sex discrimination if same sex couples aren’t eligible for “traditional marriage”? Again, I think that by definition the answer is yes, and by definition the answer is no.

FURTHER UPDATE: New hypo: A small European nation has a constitution that bans any form of sex discrimination.  The King  (who has only ceremonial duties) dies.  His daughter is next in line for the throne.  Even though she’d have the same legal rights, duties, and privileges either way, she demands to be crowned King, not Queen.  She points out that it’s sex discrimination that only men can be called “King”, argues that she will likely get less respect from her subjects if she is called Queen instead of King, and that the distinctions between “King” and “Queen” are rooted ancient patriarchy.  Valid sex discrimination claim?  Once again, my instincts are that (a) this, by definition is sex discrimination [or, more precisely, a classification based on sex and therefore subject to intermediate scrutiny under American law]; and (b) this, by definition, is also NOT sex discrimination, and if I were a judge I’d stay out of it.

RESPONSE TO ILYA: Ilya starts his response by misapprehending my point. It’s not that marriage is “traditionally” between a man and a woman, and therefore limiting marriage to such is not sex discrimination.  It’s that the very definition of the word “marriage” has, for hundreds or even thousands of year, been limited to relationships between men and women.  Therefore, the argument would be that it’s not sex discrimination to limit the scope of state-recognized marriage to what comes within that definition, just like, e.g., it’s not sex discrimination to limit the title of King to men. [And I want to reiterate that I agree that limiting marriage to opposite sex couples can accurately be described as sex discrimination; the question is whether it can also be accurately described in a different way, and if so, whether courts should stick their collective noses in the controversy by choosing which description they prefer.]

And if I’m following Ilya’s logic correctly, it would have been sex discrimination to limit the title of King to men, say, fifty years ago, when the title of Queen may have been considered relatively less important, but it’s not sex discrimination today. I don’t buy it.  It was, by the logic of Ilya’s original post, sex discrimination then and it is discrimination now to limit the title King to men, but it also was just what the word “King”  meant then and now, and therefore not sex discrimination.

If indeed the problem, as Ilya suggests, is that “civil union” doesn’t have the same cultural heft as “marriage,” then I think the argument is that everyone has the fundamental right to get “married,” which is a different argument for constitutionalizing for same sex marriage, and one that I don’t address.

FINAL UPDATE: When I say that marriage “by definition” has been a relationship between a man and a woman, I don’t mean that the government defined it that way.  Rather, the institution evolved, largely outside formal government, to bind a man and woman together into a long-term procreative relationship.  The fact that marriage is often NOT procreative these days (older couples and so on), and the core societal idea of marriage has shifted from pragmatic concerns to “life partner” are good policy arguments in favor of allowing gay marriage.  I don’t think it’s a good argument for denying the fact that the history of marriage and its relationship to the definition makes the equal protection constitutional argument somewhat dubious, as the definition was a result of the core purpose of the institution.  This is quite distinct from the example Ilya gives: “if the definition of marriage had, for many years, been that it is a relationship between members of the same race, a law embodying that definition would still be an example of racial discrimination.”  The underlying purpose and therefore definition of marriage from thousands of years had nothing to do with race. So I agree that if, say, in the 17th century, instead of simply banning interracial marriage, a statute had simply defined marriage as not including interracial pairings that would be clear racial discrimination, even if “traditional”.  By contrast, marriage was an existing form of male-female relationship that the state came to recognize (concubinage was another that has since died out) so it wasn’t the state creating a sex distinction, it was the state recognizing a preexisting institution.

Co-blogger Dale Carpenter argues that Judge Stephen Reinhardt’s recent decision striking down the California gay marriage ban is an attempt at “judicial minimalism” intended to make the outcome acceptable to a Supreme Court that is unlikely to rule that the Constitution requires nation-wide recognition of same-sex marriage. By “lowering the stakes,” Dale argues, Reinhardt gives the Court a way to affirm his ruling.

This may well be Reinhardt’s intention. But I am skeptical that it will work. Whatever one thinks of judicial minimalism generally, there is no minimalist way to strike down Proposition 8. Even if the impact of such a decision were limited to California, that in itself is a huge step. California is a state with some 37 million people. Moreover, the logic of Reinhardt’s decision is that there is no “rational basis” for denying same-sex marriage in a state that already permits same-sex civil unions that give couples the same substantive rights as marriage would. In addition to California, there are seven other states that permit civil unions without legalizing same-sex marriage, including major states such as Hawaii, Illinois, and New Jersey. Many other states are likely to enact civil unions over the next few years, because the idea is very popular, with even a plurality of Republicans supporting it, as of 2010. If the Supreme Court embraces Reinhardt’s reasoning, a state that enacts a civil union law would have to embrace gay marriage as well. That’s not a minimalist result confined to one or a few states, and the Supreme Court justices are likely to realize that.

On the other hand, Dale is probably right to argue that the Supreme Court is not going to rule that the Constitution requires recognition of same-sex marriage at a time when 44 states still forbid it. This suggests that the anti-Prop 8 suit was premature. It would have stood a better chance a decade or two from now, since public and elite opinion are both moving strongly in favor of gay marriage. In the meantime, however, the current lawsuit is likely to fail.

Given this reality, gay marriage advocates might be best served by making the strongest possible constitutional argument for gay marriage rather than trying to engage in “minimalist” hair-splitting that makes them look as if they are trying to evade the real issue, and is unlikely to persuade anyone who isn’t already committed to the cause. The Court might well still uphold Proposition 8. But such a defeat could lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.

In my view, the strongest available argument is that a ban on same-sex marriage qualifies as sex discrimination. Obviously, others will disagree, preferring to base their case on privacy arguments or on claims that discrimination against gays is unconstitutional. Regardless, this is the kind of argument that gay marriage supporters will have to make.

UPDATE: I am, of course, well aware that the anti-Prop 8 plaintiffs have made a variety of broader arguments during the course of the litigation. I do not mean to suggest that they are relying solely on “minimalist” claims. I just wanted to explain why a minimalist victory in this case is unlikely.

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.

Today’s Ninth Circuit decision striking down California’s Proposition 8 banning same-sex marriage is unpersuasive because it claims that the law fails to meet even minimal “rational basis” scrutiny. Eugene Volokh does a good job of explaining why. But there is an alternative constitutional rationale for striking down same-sex marriage bans that avoids this problem. Proposition 8 is an example of sex discrimination, and must be evaluated under the higher standards of scrutiny applied to gender discrimination by the Supreme Court.

Although the sex discrimination argument has been advanced by several academic advocates of gay marriage, nonacademics tend to be skeptical because the same-sex marriage bans seem to be targeted against gays, not men or women. Hostility towards gays is certainly part of the motivation for bans on same-sex marriage. But that does not prevent these laws from qualifying as sex discrimination. In terms of the way the law is actually structured, a same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And it is perfectly possible to discriminate on the basis of sex even if the motivation for doing so is something other than sexism.

Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because he is a man. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination.

By contrast, sexual orientation actually has no effect on the way the law operates. Anne is still allowed to marry Colin, even if one of them happens to be gay or lesbian. Bob is denied that right regardless of his sexual orientation. There are actually lots of real world cases where gays or lesbians have entered into opposite-sex marriages, such as the famous example of former New Jersey Governor James McGreevey, a closeted gay man who was married to a woman for many years. McGreevey’s marriage was not illegal, even if his actions were morally dubious.

All of this simply underscores the reality that a ban on same-sex marriage discriminates on the basis of gender rather than orientation – even if the motivation for the discrimination is hostility towards gays and lesbians. Under the Supreme Court’s approach to sex discrimination, any “statutory classifications that distinguish between males and females” are subject to heightened judicial scrutiny. A ban on same-sex marriage pretty obviously “distinguish[es] between males and females.”

Although a ban on same-sex marriage qualifies as sex discrimination, it is not automatically unconstitutional. Since the 1970s, the Supreme Court has taken the view that laws that discriminate on the basis of sex do not violate the Constitution if they can pass “intermediate scrutiny,” which requires them to be “substantially related” to an “important state interest.” If opponents of same-sex marriage are right to claim that Western civilization will fall into deep decline if the practice is allowed, that would be enough to pass the test. Ditto if they can show that same-sex marriage somehow inflicts severe harm on children. But any such arguments would be subject to detailed judicial scrutiny. They would have to be backed by real evidence, and could not pass muster just by being minimally plausible, as under the “rational basis” test.

Some originalists might reject my argument on the grounds that sex discrimination itself is not really banned by the original meaning of the Fourteenth Amendment. I criticized such arguments in this post. For a much more comprehensive rebuttal, see this important recent article by Steven Calabresi and Julia Rickert.

A more moderate originalist critique of my position might hinge on the idea that the framers of the Amendment would not have thought of a same-sex marriage ban as sex discrimination. But it is not hard to figure out that a law under which a legal right is dependent on gender discriminates on the basis of sex. The Framers surely thought that this was justifiable sex discrimination. But that does not mean that it isn’t sex discrimination at all. If asked whether marriage laws circa 1868 limited the right to marry on the basis of gender, most people at the time would surely have said yes. And, as in the case of occupational discrimination against women, the Framers’ view that this form of sex discrimination is constitutionally permissible hinged on dubious factual assumptions that we are not bound by today.

In sum, a ban on same-sex marriage easily qualifies as sex discrimination and is therefore subject to heightened judicial scrutiny. Whether it could withstand such scrutiny is a question I leave to others, though I am skeptical about its chances.

UPDATE: Many commenters seem to be assuming that, in order for a law to qualify as sex discrimination, it has to be motivated by hostility to men or women. Not so. As the Supreme Court puts it, a law can qualify as unconstitutional sex discrimination so long as it is a”statutory classification… that distinguish between males and females.” Similarly, a racial classification counts as racial discrimination for constitutional purposes even if the motives behind it are benign.

It is also not true that a ban on same-sex marriage avoids qualifying as sex discrimination because it affects members of both genders. It still denies rights to both men and women solely on account of their sex. The fact that Bob cannot marry Colin solely on account of gender is not somehow “balanced” by the fact that Anne is similarly forbidden to marry Carol. Similarly, a law banning interracial marriage still qualifies as race discrimination even though both blacks and whites are barred from marrying members of the other racial group.

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.

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.

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.

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.

Last Friday, the Justice Department filed its merits brief in Golinski v. U.S. Office of Personnel Management, arguing against dismissal of the suit challenging the constitutionality of Section 3 of the Defense of Marriage Act. [A brief in defense of DOMA and urging dismissal was filed on behalf of the Bipartisan Legal Advisory Group of the U.S. House of Representatives.] This is the first such brief filed by DoJ since the President determined that Section 3 of DOMA was unconstitutional and would no longer be defended by DoJ. Marty Lederman provides some useful context and commentary on the brief here. See also this write-up by Chris Geidner.

They’re not quite registering June brides, but the joyous end of American civilization has legislatively spread to Cook County and the rest of the Land of Lincoln. Starting today, the state is granting all of the rights and privileges of marriage under state law to same-sex couples. 

With all the recent excitement in Minnesota over the effort to ban same-sex marriages in the state constitution, I neglected to mention that civil unions have also been legislatively approved in Delaware (effective January 1).  It’s the eighth state to provide comprehensive recognition to same-sex relationships under the title of civil union or domestic partnership. Five states recognize same-sex marriages. A few others provide a more limited set of legal protections.

Last night the Minnesota legislature capped a three-week end-of-session effort to ban same-sex marriage.  The state senate approved the amendment on May 11.  It then went to the state house of representatives. In the end, the vote was 70-62 in favor, two more than the 68 needed for passage onto the ballot.  Sixty-eight Republicans (the exact number needed) and two Democrats voted for it.  Four Republicans voted against it, putting their legislative careers on the line, as did 58 Democrats, some of whom represent socially conservative districts. 

The debate lasted more than five hours. You can watch it here, beginning at the 22:30 mark.  (In the background you can hear the chants and songs of hundreds of amendment opponents outside the chamber.)  But debate really isn’t the word for it. As happened in the committee hearings prior to the floor votes, no amendment supporters other than the sponsor spoke up in favor of it.  Even he offered no substantive defense of it, saying only that the people should be allowed to decide the issue.  They sat there, said nothing, and voted “yes.”  There was political calculation in that silence, to be sure, but having talked with many legislators I also know there was some shame in it. 

On the other side, there was a speech by first-term Rep. John Kriesel (R-Cottage Grove), a war hero, that should be remembered when the history of the same-sex marriage movement is finally written. It’s the “Hell No” speech, and can be found here.

During the debate, amendment opponents sang, chanted, and watched the proceedings on monitors.  They sang songs like Amazing Grace, This Land Is Your Land, the National Anthem, and most memorably for me, We Shall Overcome.  Below was the first rendition of many last night.  Forgive the shaky video, my hands were trembling as I tried to record the moment:

Eighteen months from now, on November 6, 2012, Minnesota will become the first state to reject one of these amendments.

Today there’s a reasonable chance the Minnesota House of Representatives will be debating a proposed constitutional amendment defining marriage as the union of one man and one woman.  Since the session ends Monday, such a debate would need to happen soon, if it is going to happen at all.  With Republicans holding a 72-62 edge in the house it had been thought by nearly everyone that passage was a foregone conclusion, but there has been a bump or two or three along the way, with two Republicans openly opposing the ban and others refusing to say how they will vote.   In committee hearings and in the senate floor debate last week, amendment supporters were almost silent — offering no substantive arguments against gay marriage — while opponents railed against the ban in speech after speech.  It will be interesting to see if pro-amendment lawmakers continue to sit on their hands today.

The amendment has already passed the state senate and if it passes with a majority in the house it will be placed on the ballot for voter approval in Nov. 2012.   The house is in recess until 12:00 Noon central time today.  After that you can watch the session live here.

UPDATE:  Expect debate on the amendment to begin no earlier than 6 p.m., assuming it comes to the floor tonight, which now seems likely.  This may be close.

On the floor of the state senate last week, the sponsor of an amendment defining marriage as the union of one man and one woman was asked by a colleague how the amendment would protect her marriage:

For the full context of the exchange between the senators, see here.  The state senate then voted to pass the amendment, 38-27.

The BLT Blog notes a story in The Daily Report (for subscribers only) that suggests the flap over King & Spalding’s on-and-off representation of the House of Representatives in DOMA litigation was due to a misunderstanding about the firm’s internal vetting process. The story quotes a statement from K&S partner J. Sedwick “Wick” Sellers, who heads the firm’s Washington, D.C. office. The statement is as follows:

Although our chairman Robert Hays has issued a short statement saying he assumed ultimate responsibility for any mistakes that were made, I want to make sure the record is clear that I was the member of firm management in primary contact with Paul Clement regarding this matter. As I have reflected on this, despite the fact that our standard client/matter review process was not followed, it was reasonable for him to believe that the firm would accept the matter. This was an unfortunate misunderstanding with a friend whom I personally recruited to the firm and strongly supported. I am deeply disappointed by Paul’s departure and regret the breakdown in communications.

According to the story, Clement signed the agreement with the House of Representatives under the apparently mistaken assumption that the firm would approve of the representation, but before it had been formally vetted and approved.

The GOP sweep in Minnesota last fall was a mile wide and an inch deep.  A switch of a few hundred votes in a few key districts would have left the house and senate in Democratic hands. Republicans won on promises to balance the budget, limit taxes and spending, and make the state more business-friendly. Social issues were almost totally absent from the campaign. Nevertheless, a constitutional amendment excluding gay couples and their families from marriage has been making its way quickly through the Minnesota legislature. If approved, it would go on the ballot in November 2012 in a popular referendum, where it would have to get a majority of all votes cast in a high turnout year. It had seemed the amendment would sail through the state legislature. But now it faces rising Republican opposition. 

The GOP objectors publicly known so far include a state senator who voted in committee to table the amendment on Friday.  Last year, she called an anti-gay marriage amendment “a sword to hurt people, to identify people as different and create disparities.”

Also opposed is a GOP house member, a veteran who lost his legs in Iraq. He has publicly said that he “learned the hard way” that you only live once and it’s important to find someone you love.  He called the proposed amendment ”just wrong,” and declared, “There is not anything that can move me on this.” Apparently, if you’ve faced death in combat, the prospect of a primary opponent doesn’t intimidate you.

Other Republican legislators have questioned the need to constitionalize the issue. At the very least, there is considerable doubt about pushing it right now in the middle of a budget battle with the Democratic governor — it’s a distraction from the party’s core message and agenda. The amendment could be taken up next year and still appear on the 2012 ballot.

In this morning’s Minneapolis Star-Tribune, former Bush White House Counsel and a colleague of mine, Richard Painter, makes the Republican case against a proposed amendment banning same-sex marriage.  Painter opposes the amendment as a matter of principle, good politics, and business:

Minnesota marriage laws have been well-settled for a long time. Marriages must be between a man and a woman. There is no indication that state courts will wade into this area and legislate from the bench, and there is very little chance that the Minnesota Supreme Court would allow them to do so. . . .

Furthermore, the proposed amendment would force Minnesotans to engage in a divisive debate over a ballot measure. That debate would be particularly damaging for Republicans, who are divided on this issue.

The debate would also be costly and might encourage outside organizations to pour money into Minnesota — not only to defeat the ballot measure but to defeat Republican candidates. . . . 

Yet another danger is the damage this ballot measure could inflict on our economy. At present, Minnesota does not stand out among states that do not allow same-sex marriage.

We are not viewed as “homophobic” because we refuse to change existing law. If, however, we ask all Minnesotans to vote on the definition of marriage in 2012, it is certain that one side or the other will be dissatisfied with the result.

Companies with employees who feel strongly on this issue will not want to locate here.

At a time when many Minnesotans are unemployed and business owners are struggling with lagging sales and rising costs, we do not need a ballot measure on a divisive social issue that drives people away from our state.

Minnesota should send the message that we are open for business — that we are open to all people — and that we are serious about promoting the interests of businesses and their employees. This ballot measure does exactly the opposite.

If the issue reaches the floor of either the house or senate it would likely happen this coming week.

According to some accounts, King & Spalding was persuaded to drop its representation of the House of Representatives in litigation over the Defense  of Marriage Act due to pressure from one of the Atlanta-based firm’s largest clients: Coca-Cola.  If this is true, it raises some interesting legal ethics questions that the good folks at the Legal Ethics Forum have been exploring, including Brad Wendel,  Rob Vischer, and Richard Painter.  One interesting point raised by Prof. Painter here is that any communications from Coca-Cola pressuring King & Spalding to drop the DOMA defense are unlikely to be privileged.  Indeed, under ABA Model Rule 1.4, King & Spalding could have to disclose such information to Congress.

It is gratifying to see that many of those who oppose DOMA have nonetheless praised Paul Clement’s willingness to defend the law, and his refusal to abandon the representation. From the Washingtonian :

Clement, who has now joined the boutique law firm Bancroft, has plenty of support among his peers in the Washington legal community. Theodore Olson, the prominent Republican attorney who made headlines when he agreed to challenge California’s same-sex marriage ban, praises Clement’s “abilities, integrity, and professionalism.” Olson, who like Clement was a solicitor general during the George W. Bush administration and is a star Supreme Court advocate, tells Washingtonian.com, “I think it’s important for lawyers to be willing to represent unpopular and controversial clients and causes, and that when Paul agreed to do that, he was acting in the best tradition of the legal profession.”

Seth Waxman, a partner at WilmerHale who served as solicitor general during the Bill Clinton administration, agrees. “I think it’s important for lawyers on the other side of the political divide from Paul, who’s a very fine lawyer, to reaffirm what Paul wrote. Paul is entirely correct that our adversary system depends on vigorous advocates being willing to take on even very unpopular positions. Having undertaken to defend DOMA, he’s acting in the highest professional and ethical traditions in continuing to represent a client to whom he had committed in this very charged matter.” Waxman’s firm is fighting against DOMA in one of the lawsuits challenging the statute.

Appellate litigator and University of Chicago adjunct law professor Steve Sanders has also written a comment on the UofC’s faculty blog:

For those of us who believe the law requires marriage equality for gays and lesbians, the firm’s decision to drop the DOMA matter is indeed, as Ben Smith of Politico writes, “a real victory for supporters of same-sex marriage — and mark[s] what seems like real marginalization for its foes.”  But as a lawyer who recently worked in the Supreme Court and appellate practice group of a major national law firm, I’ve found myself uncomfortable with the demonization of Clement and K&S and with the insistence by some gay-rights supporters that defending DOMA’s constitutionality is not only legally wrong but morally unconscionable.  Those who would label lawyers like Clement as (at best) amoral mercenaries do not understand how the world of public-law appellate litigation works. . . .

Clement is certainly a conservative, and he always seemed quite comfortable defending the Bush administration’s policies as SG. But I think it would be wrong and unfair to assume he must be some sort of anti-gay ideologue. I have no doubt that some of his clients in Congress might fairly be described that way. But every constitutional lawyer knows there is a basic difference between whether something is sound policy, and whether it violates the Constitution. Clement’s job in defending DOMA (he reportedly will continue the representation through another law firm) is about the latter question . . .

It’s worth remembering that until two months ago, the Obama administration’s lawyers also defended DOMA. DOMA may be an easy question as a matter of fairness and equality, but its status as a matter of constitutional law — particularly whether it should get heightened scrutiny — is not a slam dunk, and its opponents would be well advised not to confuse the two issues. DOMA is not yet before the Supreme Court, but Clement almost certainly calculated that it will get there eventually. . . .

I also think Clement was correct when he wrote in his resignation letter that his “thoughts about the merits of DOMA are as irrelevent as my views about the dozens of federal statutes that I defended as Solicitor General,” and that “[d]efending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”

Of note, Sanders is not only an opponent of DOMA. He was also Indiana state coordinator for the Human Rights Campaign from 1998–2002 and a member of the Obama campaign’s national LGBT steering and policy committee.

UPDATE: More from Benjamin Wittes, another DOMA opponent, here.

Here’s my take on the Clement kerfuffle Orin and Eugene blog about below.

After the Obama Administration announced it would no longer defend the constitutionality of the Defense of Marriage Act (DOMA), Congress opted to defend the law on its own. The Bipartisan Legal Advisory Group retained the services of King & Spalding’s Paul Clement, a former Solicitor General who is widely considered to be among the best (if not the best) appellate advocate of his generation.

Clement’s decision to represent Congress and defend DOMA was controversial in some circles, and understandably so. Although DOMA was enacted with broad bipartisan majorities and signed into law by President Clinton, it prevents federal recognition of same-sex marriages, even when sanctioned by state law. For supporters of same-sex marriage, that’s a tough pill to swallow.

Angered over Clement’s decision, the Human Rights Campaign launched a campaign against King & Spalding, seeking to punish the firm because one of its partners dared represent a controversial client. According to HRC, the representation was “a shameful stain on the firm’s reputation.” In reality, what’s really shameful is HRC’s McCarthyite attack on Clement and King & Spalding — particularly given the nation’s sorry history of efforts to prevent effective legal representation of marginalized groups and unpopular causes.

The Los Angeles Times, which supports same-sex marriage, explained the folly of the HRC campaign in an editorial last week.

It’s perhaps understandable that leaders of an advocacy group like the Human Rights Campaign would be outraged at the idea of anyone defending a law that they so strongly believe is discriminatory. But the suggestion that it’s shameful for Clement or his firm to do so misunderstands the adversarial process. For one thing, with sharp-witted counsel on both sides making the strongest possible arguments, it is more likely that justice will be done. For another, a lawyer who defends an individual or a law, no matter how unpopular or distasteful, helps ensure that the outcome is viewed as fair. If DOMA is struck down, the fact that it was defended effectively will make the victory for its opponents more credible. . . .

In criticizing Clement’s law firm for agreeing to defend DOMA, the Human Rights Campaign contrasted that decision with the firm’s admirable record in promoting equality for gay and lesbian employees. But there is no contradiction — unless one believes that DOMA doesn’t deserve a defense. We hope Clement loses, but we don’t begrudge him the assignment. Even a lawyer of his skills will find it hard to defend a discriminatory law like DOMA.

In the end, the criticism was too much for King & Spalding, and the once-proud firm asked to withdraw its representation, citing a failure of the vetting process. Clement, to his credit, found this unacceptable, and has resigned from the firm. This is a major loss for the firm, which had been building an appellate practice around Clement, as is the firm’s apparent willingness to discard its integrity when placed under fire. King & Spalding is willing to defend Guantanamo detainees, free of charge (and rightfully so), but it apparently lacks the courage to defend controversial legislation and honor commitments to clients once retained.

When some conservatives attacked private law firms and threatened retaliation for defending accused terrorists, the bar responded with outrage — and rightfully so. (My own posts on the subject can be found here and here.) At the time, we heard all the same arguments we are hearing now from HRC and its defenders — the right to legal representation does not entail the right to representation from any particular lawyer; attorneys should be held accountable for who they choose to represent; attorneys should be punished for defending the wrong side; and so on. Similar arguments have been made throughout history in efforts to discourage representation of unpopular clients and causes. (Indeed, I would not be at all surprised to learn that law firms and prominent were once discouraged from defending homosexuals who were persecuted for their sexuality.) Those arguments were wrong in the past, and they are wrong now.

Paul Clement is to be commended for his courage and honor — whether or not he wins his case against DOMA. Even those who support same-sex marriage (as I do) should be thankful for attorneys like him who are willing to defend unpopular laws and positions, and disappointed at a large law firm’s willingness to cave so quickly. Indeed, King & Spalding has given existing and prospective clients reason to wonder whether it will stand firm if asked to defend unpopular or potentially objectionable positions on their behalf. A law firm’s reputation, once diminished, is not so easily restored.

UPDATE: Some suggest that King & Spalding may have withdrawn its representation due to objections over certain particulars in the representation agreement that would have limited the outside activities of firm attorneys. If this, and not the HRC campaign, was the concern, it seems to me that King & Spalding had plenty of options short of terminating the representation. And even if it saw no other option, say because the client refused to budge, it could have made clear this was the reason.

SECOND UPDATE: Some commenters seem to misunderstand my position. No, I do not believe the U.S. Congress is a “marginalized” group, nor do I feel it is a victim here. My primary concern is that if it is appropriate to attack law firms and attorneys based upon the identities or positions of their clients, and if major law firms can be dissuaded from maintaining representation of unpopular clients or causes, then those groups which are truly “marginalized” have the most to fear. While there is little doubt the House could obtain capable representation without King & Spalding or Paul Clement, other groups might not be so fortunate. That is what is ultimately at stake here.

THIRD UPDATE: I heartily recommend this commentary by appellate litigator and University of Chicago adjunct professor Steve Sanders. Interestingly enough, Sanders was Indiana state coordinator for the Human Rights Campaign from 1998-2002 and a member of the Obama campaign’s national LGBT steering and policy committee.

This Thursday, I will be taking part in a Federalist Society panel on President Obama’s decision not to defend DOMA in Court. Edward Whelan, President of the Ethics and Public Policy Center and prominent legal blogger for National Review, will be on the panel with me, and my colleague Neomi Rao will moderate. The panel will be held from 12 to 1:30 PM at the Rayburn House Office Building on Capitol Hill, and free lunch will be served. Registration and other details available here.

I previously defended the president’s decision here.

Last week, I defended President Obama’s decision not to defend the constitutionality of the Defense of Marriage Act, on the grounds that the administration has concluded that it is unconstitutional. Although I disagree with some of the administration’s specific legal arguments in this case, I think the president’s duty to defend the Constitution supersedes his obligation to uphold federal statutes when the two conflict.

As I mentioned in the earlier post, this is not the first time that an administration has refused to defend a federal law on such grounds.
NPR recently published a helpful summary of similar decisions by previous administrations, including various Republican ones:

While the administration’s DOMA shift is unusual, it is not rare. It has happened more than a dozen times since 2004 and many more in the past 60 years, including in some very important cases.

During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals. The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court. The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote. It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court. The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive. The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote.

The fact that Republican administrations have done the same thing in the past doesn’t necessarily prove that Obama’s decision was justified. After all, as Obama himself would be quick to agree, Republican administrations make plenty of mistakes too.

The history does, however, support my point that presidential refusal to defend the constitutional of a statute doesn’t automatically lead to its defeat in Court. As NPR notes, the courts ended up upholding the challenged law in many of the cases where an administration chose not to defend it. More importantly, in all these cases the law was effectively defended by other parties, even if it was ultimately struck down.