The Volokh Conspiracy

The San Francisco Chronicle reports:

Congress violated constitutional standards on legalized bigotry when it denied federal benefits from same-sex spouses and excluded domestic partners of state employees from long-term health coverage, a federal judge ruled Thursday.

The decision by U.S. District Judge Claudia Wilken of Oakland was the second by a Bay Area judge this year to strike down the Defense of Marriage Act, the 1996 law withholding more than 1,000 federal benefits – such as joint tax filing, Social Security survivor payments and immigration sponsorship – from gays and lesbians legally married under state law.

Wilken also overturned another 1996 law that denied federal tax benefits to long-term health insurance plans for state employees if they included domestic partners.

Specifically, the court found that Section 3 of DOMA “violates the equal protection rights of . . . same-sex spouses.” The opinion is available here.

The Monkey Cage has an interesting guest post from Georgia State University’s Gregory Lewis examining why initiatives to prohibit same-sex marriage succeed at the polls when public opinion surveys suggest reasonably strong support for same-sex marriage. Among the key points is that support for same-sex marriage varies quite widely by state.

Yesterday the President told ABC News that he believes same-sex couples should be able to get married. So far so good. He further told ABC that he believes this is an issue that should be left to the states which are “arriving at different conclusions at different times.” I have nothing to complain about here, as this is my position as well. I believe in recognition of same-sex marriage, but also believe that this is the sort of question entrusted to state governments under our constitutional system, and that, as with many questions of social policy about which I have strong preferences, different states are and should be free to come to different conclusions on the matter. I also believe that as more states elect to recognize gay marriage (particularly insofar as this is done by legislatures and ballot initiatives, rather than by courts) many of those who are currently uneasy with the idea of gay marriage will learn they have nothing to fear and opposition to gay marriage will slowly melt away.

The problem with the President’s position is that it cannot be reconciled with the Administration’s stance on the constitutionality of the Defense of Marriage Act. According to Attorney General Eric Holder, he and the President concluded that the constitutionality of legal distinctions based upon sexual preference cannot be defended. In their view, because DOMA precludes federal recognition of same-sex marriages, it violates the constitutional guarantee of equal protection under the Fifth Amendment. Further, according to Holder’s statement, they concluded that no “reasonable” constitutional argument could be made in DOMA’s defense. Yet if DOMA is unconstitutional under equal protection, which applies to the state and federal governments equally, then how could any state law barring recognition of same-sex marriages survive constitutional scrutiny? In other words, while the President says he believes that states should be allowed to reach “different conclusions at different times” on the question of same-sex marriage, the administration’s legal position is that a state’s refusal to treat opposite-sex and same-sex couples alike is unconstitutional. So while the President may say he’d like to leave this question to the states, that’s an option his administration has already taken off the table.

[NOTE: Edited the post to make clear that equal protectioon is guaranteed as against the federal government through the Fifth Amendment and as against the states through the 14th Amendment, but the standard is the same.]

UPDATE: Here’s the full ABC transcript, in which the President suggests he was also influenced by a concern that DOMA federalizes a traditional state concern. Lyle Denniston comments here, suggesting the President’s legal position does not threaten state laws. Calvin Massey disagrees here. Massey is right.

The official statements from the Justice Department do not raise any federalism concerns and rest the conclusion that DOMA is unconstitutional (and that no reasonable arguments may be made in its defense) on the basis that distinctions based on sexual preference are subject to intermediate scrutiny, that there are no important government interests in maintaining a traditional definition of marriage, and that animus may have contributed to DOMA’s passage. While there are other arguments that could challenge DOMA without threatening state laws (such as those suggested by Will Baude), the Adminsitration’s arguments, were they to prevail against DOMA, would be the death knell for state laws as well. If a federal law supported by Senators Biden, Dodd, Reid and Wellstone — and signed into law by President Clinton — were impermissibly tainted by anti-gay animus, it’s hard to see how state laws barring same-sex marriage would not be as well.

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.

The opinion is today’s Golinski v. United States Office of Personnel Mgmt. (N.D. Cal. Feb. 22, 2012). The conclusion: “In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.”

Thanks to Chris Geidner (Metro Weekly) for the pointer.

The backers of California’s anti-same-sex-marriage Prop. 8 are apparently about to ask for en banc review by the Ninth Circuit. I had thought that they’d go straight to the Supreme Court, since (1) the chances of their getting en banc review in the Ninth Circuit, and then winning such review before a 11-judge panel that the Circuit selects for such purposes, would be pretty low, and (2) I would think that they would like to make same-sex marriage an issue at the federal election level this Fall, something that would be likelier if the Supreme Court decides before the election to hear the case. And I think that, if they just directly petitioned the Court, the Court would have indeed agreed to hear the case. But the Prop. 8 lawyers, who are very knowledgeable on such matters, have decided differently — it will be interesting to see how and how quickly the case progresses from here.

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.

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 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 if 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.

1. This is going up to the Supreme Court. I suspect that the backers of Prop. 8 won’t even ask for en banc review by the Ninth Circuit, since they’re unlikely to win there. Depending on how quickly they file their petition for certiorari, the Court will either decide in late September to hear the case, or will decide this late this Spring. Either way, the Court will hear the case next Term, though probably not before the election. Though, for reasons I describe below, the decision only applies to states, like California, that recognized civil unions but not same-sex marriages, it’s still a conclusion of national importance, one on which the Supreme Court is likely want to speak. And even if, as described below, the decision is limited just to California, I think the Court will still think it’s important for it to resolve the question.

2. The Ninth Circuit did not decide that all opposite-sex-only marriage recognition rules are unconstitutional. Rather, it concluded that when a state has already recognized same-sex civil unions that are functionally equivalent or nearly equivalent to marriage, denying the symbolic recognition provided by the label “marriage” is no longer rationally related to a legitimate government interest. The court did not decide whether the general constitutional right to marry that applies to same-sex couples, or whether opposite-sex-only recognition rules are generally unconstitutional on the grounds that discrimination based on sexual orientation requires “strict scrutiny” or “intermediate scrutiny” and fails that scrutiny. It only applied the rational basis test, and held that the regime of civil unions but not same-sex marriage lacks a rational basis.

Note that, if the decision is upheld, this means that the arguments that civil unions are a “slippery slope” to same-sex marriage were absolutely right: The recognition of civil unions changed the legal landscape in a way that made it more likely for courts to also conclude that same-sex marriage must be recognized, too.

3. The Ninth Circuit’s opinion also stresses that same-sex marriage was once recognized (by court decision) and then derecognized (by the voters). If the opinion is limited to such situations, this would mean that its logic would only be applicable to California, and possibly Hawaii.

But I don’t think that the opinion’s logic can be so limited. The court reasoned that same-sex couples can’t be denied the same right that opposite-sex couples have — the right to have their relations recognized as “marriage,” at least once they have the same tangible rights under state civil union law. But that denial would be present regardless of whether (1) the label “marriage” was once given and then taken away or (2) was never given in the first place. In either case, a benefit (the label “marriage”) is given to some but denied to others. Either way, opposite-sex couples would have a right (to the label “marriage”) that same-sex couples would not. Such a discrimination would have to be rationally related to a legitimate government interest. And under the Ninth Circuit’s reasoning, such a rational relationship is absent here, which would doom all state regimes that recognize civil unions but not same-sex relationships.

Moreover, if California had no obligation to provide equal treatment for same-sex marriages and opposite-sex marriages (at least when civil unions were recognized), then the sovereign rulers of California — the people, acting through the constitutional amendment process — are entitled to correct their employees’ (the California Supreme Court Justices’) conclusion to the contrary. The Ninth Circuit’s holding that the California voters are not entitled to correct their employees this way, because such correction is not “rational,” means that California and other states weren’t entitled to have this particular discrimination in the first place.

4. Now on to the question whether denying the label “marriage” to same-sex unions, once civil unions that provide all the tangible benefits of marriage are recognized, is rationally related to a legitimate government interest. Here, I think the Ninth Circuit majority erred.

a. First, note that this debate is just about the label “marriage,” and thus about the message that the label sends. The court concluded that Prop. 8 was unconstitutional because this symbolism mattered, and mattered a lot — the message is injurious to same-sex couples’ (and individuals’) dignity, and may lead to more societal discrimination against gays and lesbians. But if this symbolism of “disapproval of … [same-sex] relationships” (Op. 77) is so significant, then it may be plausibly believed to subtly push some people away from same-sex relationships to opposite-sex relationships. To so conclude, you don’t need to believe that gays and lesbians, in the sense of people who are solely attracted to people of the same sex, can be “cured” in the sense of being turned straight. You only need to focus on the substantial number of bisexuals, and assume that their behavior can be affected, in some instances and for some people, by the message of “disapproval of …. [same-sex] relationships.”

This is relevant because it bears on how the Ninth Circuit responded to the arguments that the desire to have a greater fraction of children be raised by opposite-sex biological parent couples forms a rational basis for the law:

We need not decide whether there is any merit to the sociological premise of [the Prop. 8 backers’] first argument — that families headed by two biological parents are the best environments in which to raise children — because even if [the backers] are correct, Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California” (pp. 56-57) is beside the point, when it comes to the rational basis test.

But family formation is not just driven on who has the legal “ability” to become parents. It is also driven by social attitudes. It is not irrational to conclude that, if the refusal to recognize same-sex marriage has powerful symbolic effect — which is what the Ninth Circuit argued in striking down this refusal — it may likewise have a powerful symbolic effect when it comes to people’s choices about whom to parent with. As it happens, I’m quite skeptical that this effect will be substantial enough to make a difference, and I on balance think that recognizing full same-sex marriage is good policy. But under the rational basis test that the Ninth Circuit is purporting to apply, a court must uphold a law so long as it rests on a plausible view of the facts, regardless of whether the judges agree with the lawmakers on those facts.

5. The court also rejects the argument that Prop. 8 is rationally related to a legitimate government interest in “‘proceed[ing] with caution’ when consider changes to the definition of marriage” (p. 64). The court suggests that some laws might have such a rational basis; and recall that the court is ostensibly applying the test that’s applicable to a vast range of economic regulation, which is often defended on bases no more scientifically provable than that. But the court said that the law isn’t rationally related to this interest:

Had Proposition 8 imposed not a total ban but a time-specific moratorium on same-sex marriage, during which the Legislature would have been authorized to consider the question in detail or at the end of which the People would have had to vote again to renew the ban, the amendment might plausibly have been designed to “proceed with caution.” In that case, we would have had to consider whether the objective of “proceed[ing] with caution” was a legitimate one. But that is not what Proposition 8 did. The amendment superseded the [California Supreme Court cases recognizing a right to same-sex marriage under the state constitution] and then went further, by prohibiting the Legislature or even the People (except by constitutional amendment) from choosing to make the designation of ‘marriage’ available to same-sex couples in the future. Such a permanent ban cannot be rationally related to an interest in proceeding with caution.

I don’t see how this so. The ban is of course not “permanent” — it can be repealed the same way that it was enacted, by a simple majority of California voters (coupled with either enough voter signatures or enough legislative votes to put it on the ballot). Indeed, changes in attitudes on same-sex marriage, especially among younger voters, suggest that soon, perhaps even in a few years, this amendment would indeed have been overturned. Those who want to “proceed with caution” in this field, especially by making sure that a major change to such an important societal institution is only made with the buy-in of the voting public and not just of judges or legislators, might find it perfectly rational to withdraw from California courts and legislatures (or even from the reach of the statutory ballot measure, as opposed to a constitutional ballot measure) the power to recognize same-sex marriages and to leave it to the California voters in their sovereign power to amend the constitution.

6. Of course, none of this deals with the arguments that same-sex marriage under a more demanding test than the rational basis test — for instance, “strict scrutiny,” which requires that classifications or restrictions be “narrowly tailored to a compelling government interest,” or “intermediate scrutiny,” which requires that they be “substantially related to an important government interest.” Among other things, both of these tests would require courts to look closely at the factual evidence for the claims of narrow tailoring and substantial relationship, rather than to defer to any plausible view of the facts, which is what the “rational basis” test requires. Such tests might be called for if a court concludes that the traditionally recognized constitutional right to marry should be understood as also covering same-sex couples, or that discrimination based on sexual orientation should be treated like sex or race discrimination, or that discrimination based on sexual orientation is a form of sex discrimination. I speak here only of the Ninth Circuit’s conclusion, which is that the California rule of recognizing same-sex civil unions but not same-sex marriages lacks any rational basis.

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.

Amidst all of my many posts about what federal courts should do if DOMA is struck down, I thought I should say a little bit about Congress.

First — and this may be obvious to some readers but perhaps not to all — Congress could of course fix the choice of law problem by providing a statutory rule. Indeed, one of the few virtues of DOMA is that it is just such a rule. And in one of the most recent proposed bills that would repeal DOMA, Congress has also proposed replacing it with a choice of law rule.

I think this is a great idea. If DOMA goes away, Congress should exercise its power to replace it with some legitimate choice of law rule (obviously, if DOMA is unconstitutional, the replacement rule couldn’t be identical to DOMA, but there are a lot of other possibilities).

A congressional choice of law solution would have more legitimacy than a common-law solution, and could be more far-reaching, considering a broader range of policy considerations. (It could even extend federal marital benefits to civil unions, as discussed in my exchange with JHW.) Indeed, the opportunity to provide a replacement rule is one reason that Congress ought to repeal DOMA rather than just waiting around for the courts to have their way with it.

As for what rule Congress should adopt, I think the rule proposed in S.598 is a pretty good one. That rule is:

For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

For domestic marriages, the bill makes the marriage valid if it was valid where the couple got married. (Note, by the way, that with very rare exception, a marriage is almost always valid where the couple got married, because the couple usually chooses to get married someplace where their marriage will be valid.) For international marriages, there is the extra requirement that it must be a marriage that is valid in at least one state — no polygamy, no brother-sister marriages, no marrying nine-year-olds.

This is something of a “maximalist” approach to the choice of law problem, because in practice it will make almost all same-sex marriages valid. (Or at least it is “maximalist” within the realm of the traditional choice of law options.) So I think it would be problematic for courts to impose a solution like this without Congressional authorization. But it would also maximize stability and predictability for same-sex couples, at least with respect to federal law. As with the common-law solution, there’s plenty of room for argument about what rule Congress should adopt, but it would be nice if it stepped in with a rule.

However, I am pessimistic about this actually happening. Scholars have been calling for Congress to fix various choice of law problems for decades, and it rarely happens. While the DOMA repeal bill is a sign that at least somebody in Congress has thought about this issue, I don’t think anybody should be holding their breath for that bill, or any other statutory solution. That’s why I spent so much time blogging about the courts.

So I’ve explained why I reject two of the three possible approaches that federal courts take to the marital choice of law problem. The one that’s left over is the so-called federal common law approach, where courts craft a common-law doctrine for deciding which state’s marriage law is relevant to a federal statute.

You might ask, wasn’t federal common law forbidden by the Court’s decision in Erie v. Tompkins? No, not really. Here is how the Court explained it just last term in AEP v. Connecticut:

“There is no federal general common law,” Erie R. Co. v. Tompkins famously recognized. In the wake of Erie, however, a keener understanding developed. See generally Friendly, In Praise of Erie — And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964). Erie “le[ft] to the states what ought be left to them,” id., at 405, and thus required “federal courts [to] follow state decisions on matters of substantive law appropriately cognizable by the states,” id., at 422. Erie also sparked “the emergence of a federal decisional law in areas of national concern.” Id., at 405. The “new” federal common law addresses “subjects within national legislative power where Congress has so directed” or where the basic scheme of the Constitution so demands.

I elaborate on this more in the paper, but basically it should be pretty clear that this kind of choice-of-law rule — choosing the state law on which a federal statute has chosen to rely — is the kind of “area of national concern” where a federal common law rule is okay.

That leaves us with the question: well, what rule? It may be a little anticlimactic to say so, but I don’t actually think it is that important what the rule is. The important thing is that there be a rule, so that federal law have a consistent test for deciding whether a couple is married. (As others have noted, whether a couple is married will still depend on state law, but at least the federal law will have a single approach for evaluating it.)

The rule I advocate in the paper is that the courts should look at the choice-of-law rules of the couple’s domicile. So, if a same-sex couple lives in Massachusetts or Maryland or New Mexico, they are married for purposes of federal law. If they live in Texas, they are not.

Basically, I think the federal government’s goal here should be to leave the smallest footprint possible, and I think the federal government does that best by treating couples the same way at home as their state does. (Obviously there are arguments that federal law should guarantee a constitutional right to same-sex marriage, but if so, that should be done directly, through interpretation of the 14th Amendment, not in a roundabout fashion by manipulating choice of law.)

Another important consideration is that there are at least a couple of statutes that do provide marital choice of law rules (for social security and for some veterans benefits) and they both look to the law of the domicile. These statutes were trumped, for same-sex marriages, by DOMA, but they will presumably spring back into effect if DOMA is gone. They affect just a tiny piece of the federal law of marriage recognition, but it would be best for a federal common law rule to be consistent with them, so that marriage can get a unified treatment throughout federal law.

So there you have it. My experience has been that a lot of people have different intuitions about what the right federal common law rule should be, and that those intuitions tie very closely to whether they like or don’t like the right to same-sex marriage. But if I’ve convinced you that there should be a rule, and that courts have the power to create a rule, that’s the important part.

I have a little bit more to say about this– about both Congress’s role, and about a few other areas of law. I’ll try to post about them tonight or this weekend, before my magic Volokh credentials turn back into a pumpkin, and I turn back into a regular, non-blogging fellow.

Before I get to the last phase of my stint here, I thought it would be helpful for me to address one recurring theme in the comments. John D’s comment this morning is representative: “how are opposite-sex married couples treated in conflict-of-laws situations? We’ll take that, then.”

The important thing to recognize is that there is no established answer for how opposite-sex married couples are treated! All of these posts about different approaches aren’t hypothetical, they’re all real doctrines already applied to the conflicts problem outside of the same-sex context.

I think this is non-intuitive for many people — lawyers and non-lawyers — because they have a sense that legal uncertainty is pretty commonplace, and people usually manage to just muddle through. Even if doctrine is uncertain on the margins or theoretically incoherent, most of the time it just doesn’t matter much. But choice-of-law doctrine is unusually uncertain, and unusually incoherent, even compared to other legal doctrines!

Also, there are two practical reasons that these uncertainties haven’t made much of a difference, most of the time, to straight couples.

First, the uncertainties really bubble to the surface only when some states so strongly oppose a type of marriage that they exercise their traditional prerogative to refuse to recognize that marriage when it is consummated out of state. That hasn’t happened very often.

Second, the times when it has happened have simply not featured the same numbers as same-sex marriages do. In the last census, more than 130,000 same-sex couples described themselves as married! (Interracial marriage might have featured sizable numbers, I’m not sure, and if so, I’m not sure why the problem didn’t come up as much as you would expect in that context. I wonder if it had to do with the smaller size and scope of federal regulation.)

Anyway, I agree that, without DOMA, the conflicts rules for opposite-sex marriage will be applicable to same-sex marriages. But the point is that there is no single conflicts rule for opposite-sex marriages, and the same-sex marriage controversy will probably force us to resolve the old conflicts problem at long last.

So earlier this morning (yesterday, Eastern Time, which apparently governs the Volokh Conspiracy), I explained why the federal government does indeed need to look in large part to state law when it tries to figure out whether a couple is married. In this post we’ll discuss another alternative solution with a goofy case name: “Klaxon.”

To recap, Klaxon is a general rule for solving choice of law problems in federal court when there is no federal law involved. And the solution Klaxon provides depends on the physical location of the federal trial court where the litigation takes place. It says that the federal trial court should imagine itself as a state court in the same state, and then do whatever that state’s courts would do.

Commenter “JHW” asked, in the previous post mentioning Klaxon:

Is there a practical difference, in the marriage recognition context, between the Klaxon rule and the “federal common law” rule that the law of the domicile is controlling?

There would be, presumably, in a diversity case, if for example the spouses lived in different states. But for a couple living in the same state seeking federal recognition, it seems that applying a state’s choice-of-law rules and applying a state’s marriage recognition rules amounts to applying precisely the same set of rules. Perhaps because I’m nearly totally ignorant of this area of law, the way you’ve framed this confuses me a bit.

There is a big difference: a Klaxon rule will often pick a very different state than the parties’ domicile, because Klaxon depends entirely on what state the lawsuit is in, and federal lawsuits can often be filed in one of several different districts. (There is a legal doctrine called venue that determines what district a lawsuit can be filed in.) So a couple might live in Texas, but wish to challenge an agency action in the District of Columbia or someplace totally different.

Now, as I noted earlier, this Klaxon rule controls in federal lawsuits that are brought in diversity jurisdiction, i.e. when no federal law is involved. And several courts (though not the Supreme Court) have suggested that the rule should be extended to federal cases too. I don’t think that makes much sense.

Here’s the most important reason why. Federal law is frequently enforced and administered by the executive branch. That’s a huge amount of what administrative agencies do all day, and we expect agencies to apply federal law in a huge range of cases that will never go to court, or will only go to court years later, after the agency has hopefully gotten things pretty much right.

But the Klaxon rule and the executive branch don’t mix very well. Under the Klaxon rule, you only know what law to apply once there has been a federal lawsuit, because only then will you know in what state the district court is located. So the executive branch just has to guess where the litigation will be brought. Moreover, since the plaintiff often has a choice of several different venues, he can strategically select a venue that will produce a choice of law rule that will contradict what the executive branch did.

This isn’t a problem in the diversity jurisdiction context, because the executive branch isn’t very involved in enforcing state law. But executive branch enforcement is a big part of federal law which results in federal question jurisdiction. The fact that Klaxon doesn’t mesh with executive branch enforcement is a very important reason not to extend Klaxon to federal question cases.

By process of elimination, that means that federal courts will have to craft their own choice of law rule as a matter of so-called federal common law. Tomorrow, we’ll talk about what that rule should be.

That’s what one Hamline University business school professor said, in opposing the hiring of another prospective business school professor, according to the St. Paul Pioneer Press:

A Hamline University professor said Wednesday that hiring [former Republican gubernatorial candidate] Tom Emmer would have been a bad business decision for the school, while Emmer said “political bigotry” in higher education is discriminating against people with conservative views like his….

Asked whether the decision not to hire Emmer had anything to do with faculty concerns about his political views, [Hamline spokeswoman JacQui] Getty said Hamline would have no comment beyond a statement … [that] said “there were conversations” about Emmer joining the faculty but “no finalized agreement.”

Jim Bonilla, an associate professor in Hamline’s business school, said he wrote to McCarthy with concerns about Emmer’s appointment and that he knows of two other professors, outside the business school, who raised concerns with Hanson.

He said he doesn’t know whether faculty concerns about Emmer factored in the administration’s decision not to hire him.

For Bonilla, listed on the school’s website as a consultant on diversity in higher education and the founding director of “Race, Gender & Beyond” program, there is a business case and a social justice case to be made against Emmer.

In terms of business, he pointed to fallout from gay-rights groups after Target Corp. donated $150,000 to a political fund that in turn supported Emmer.

And hiring someone stridently opposed to gay rights goes against the school’s ethic of nondiscrimination and works against training the staff does on creating safe spaces for gay and lesbian students, Bonilla said.

“That would be money wasted,” he said. Not hiring Emmer allows Hamline to make a decision “congruent with our values and a sound business decision,” Bonilla said….

Despite the school’s statement that there was no agreement to hire him, Emmer said “there is no question” he was hired for the teaching job and that there was an agreement in principle on the “executive in residence” position….

For an e-mail that apparently supports Emmer’s view that he had indeed been hired (“I am the new Department Chair under which Business law falls. For the spring we are offering a session during the day and Tom Emmer is going to teach it.”), see this Minnesota Public Radio site. There’s also more from the Hamline Oracle, the university student newspaper, here and here. The latter item notes that, “Business Professor David Schultz … said that after staff began hearing about the possibility of Emmer joining the Hamline faculty, e-mails were drafted by some staff members to be sent to administration outlining their concerns over the hiring of Emmer.

“Schultz said that the faculty was concerned for two major reasons, including whether the political positions Emmer holds were incompatible with the university’s mission, specifically his stance on same-sex marriage.

“The second concern stemmed from the way Emmer was possibly being hired. Staff were being told that he was simply selected by McCarthy, which goes against the faculty handbook, Schultz said. The procedures for new hires includes a hiring committee and faculty review, which was not happening at the time faculty heard the rumors that Emmer was being hired.”

If the university did indeed refuse to hire Emmer because of his views on same-sex marriage, that would be a very serious breach of traditional and sound academic freedom norms, and a sign that the Hamline business school is seeking to be an ideological cocoon — for its faculty and its students — rather than a place where debate and academic freedom are genuinely present and valued. Of course it would send a pretty poor message to its students, who would rightly wonder whether a faculty that does this to an appointments candidate would likewise retaliate against students who express unorthodox opinions. And naturally it would have an effect far beyond the question of same-sex marriage: Students and prospective family members who see an institution being willing to exclude someone who shares the same views as about half the country would likely worry even more that it would exclude or retaliate against people who have (certain kinds of) less popular views.

Of course, this is a big “if”: We know what Prof. Bonilla believes about how the university should deal with dissenting viewpoints on the subject, and we have heard from Prof. Schultz about what “some staff members” thought, but we don’t know whether this was indeed part of the business school’s decision. I would like to know more about whether the business school takes the same approach to academic freedom and diversity of views that Prof. Bonilla does.

Before we dive deeper into the federal cases I blogged about this morning, I thought it would be helpful to clarify a point featured in several comments. Namely, isn’t the Full Faith and Credit Clause involved here somewhere? The answer is: not very much, and certainly not enough to make the problem go away.

The Constitution provides that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” The clause has some application in this area, but it doesn’t force states to recognize marriages from other states for several reasons.

First of all, even though the Clause mentions “public acts,” it has not been interpreted to apply to statutes (like a law stating which marriages are valid) or marriage licenses with the same force it has for judicial proceedings. Relatedly, states have traditionally refused to give effect to another state’s statute if they think doing so is against their “public policy,” and this has been thought to be okay under the Full Faith and Credit Clause.

Moreover, even if the clause did normally require states to give effect to foreign legislation (or if the parties somehow get a judicial judgment based on their same-sex marriage), the clause delegates substantial power to Congress to decide what “effect” those acts, records, and proceedings have. And Congress has explicitly provided (in that other section of DOMA that I said wasn’t very important) that “No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . or a right or claim arising from such relationship.” (For lots of fascinating history demonstrating Congress’s power under the Full Faith and Credit Clause, I recommend Steve Sachs’s Full Faith and Credit in the Early Congress.)

Now, some of these points are controversial. There are scholars (like my own law school’s dean, Larry Kramer) who argue that Section 2 of DOMA is unconstitutional and that the Full Faith and Credit Clause requires greater interstate recognition of marriage. Steve Sanders has made a similar argument under the Due Process Clause. But that’s not the state of judicial doctrine today, so the interstate disagreement about same-sex marriage is still something that courts have to deal with unless and until that doctrine is radically changed.

To sum up: Yes, there are some federal rules about interstate recognition of marriages. But those rules give states enough leeway that there’s still a great deal of state disagreement, which is all that matters for purposes of my argument. If you want to know more about this, there is a ton of recent scholarship on Full Faith and Credit, some of it cited in the paper.