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The hardest day of the cruelest month:

For gay-marriage litigants, July has been the cruelest month. Prior to today's 5-4 Washington Supreme Court decision in Andersen v. King County, there were two substantive state marriage decisions against them (New York and Connecticut), one quasi-substantive federal decision against them (the 8th Circuit, whose broad dicta went beyond the state constitutional ban at issue), and three procedural decisions against them upholding the propriety of ballot initiatives (Massachusetts, Tennessee, and Georgia).

But this may turn out to be the hardest day of all. Andersen is the most careful, closely reasoned, and comprehensive judicial opinion to date rejecting constitutional claims to gay marriage. It is much better, as a matter of conventional legal analysis and craftsmanship, than the New York Court of Appeals decision in Hernandez v. Robles rejecting gay-marriage claims a couple of weeks ago. Since the principles and arguments on this issue from state-to-state, and even in the federal courts, are not that different, the Washington decision will deserve close attention from other courts. Among the courts next to consider claims for gay marriage, the New Jersey Supreme Court in particular should grapple with Andersen.

There is a bright spot in Andersen for gay couples. The court practically invites future litigation and legislation resulting in a Vermont-style civil unions resolution, granting the benefits and protections of marriage to gay couples without the status of "marriage." This seems the likely direction for future litigation and legislative action in Washington and elsewhere. I'll say more about this below.

Since I addressed many of the constitutional issues in earlier posts reacting to Hernandez v. Robles I won't go over all that territory again. Instead, I'll address here some of the distinctive features of the Andersen opinion.

(1) While there was some speculation about possible political motivations for the 17-month period to issue the opinion, it seems in retrospect that the justices were simply taking the time to be very careful on an opinion they knew history would judge them for: writing and re-writing sensitive passages, negotiating with each other, trading drafts among the chambers, waiting to see how other courts might come out. The close result, and the opening paragraphs in particular, chiding not just the dissents for the usual abandonment of legal principles but also the concurrence for needlessly extending the opinions, suggests a court that was sharply divided over how to proceed and struggling to reach broader consensus. Yes, judges can be political and Machiavellian; but sometimes they're just doing their job as conscientiously as they can. In general, I'd be wary of the conspiracy theories about courts that spring up from the populist resentment of judicial activism.

(2) Unlike the New York Court of Appeals, the Washington court dealt substantively with the question of suspect-class status for gays under equal protection principles. It also avoided the bizarre contextualized analysis of the issue the New York court gave us, and instead dealt with the question whether gays generally constitute a suspect class.

The Andersen court is more confident about the elements of the suspect-class analysis (history of discrimination, immutable and usually irrelevant trait, and political powerlessness) than I think is justified, but its rejection of heightened scrutiny is certainly defensible under the precedents. It acknowledges, as every court addressing the issue has, a history of discrimination against gays. But it says the trait defining the class is not immutable, and seems to hold that immutability is essential to heightened scrutiny. Both halves of this holding are questionable. The Andersen court isn't clear what it thinks the "defining trait" of this class is -- homosexual acts or homosexual orientation -- and this ambiguity muddies things a bit. If homosexuals acts are the "defining trait," it's not immutable; if homosexual orientation, the best evidence is that it is immutable or very close to immutable. It's also not clear that immutability is even required, as opposed to one factor among many to be weighed, in the analysis of which groups get heightened scrutiny.

The Andersen opinion also shows how legislative advances for gays are a double-edged sword in litigation over marriage. Some courts upholding gay-marriage or civil unions claims have cited legislative progress -- eliminating sodomy laws, making adoptions more widely available, passing employment non-discrimination laws -- as evidence that times and attitudes are changing and as support for the idea that the legislature has no very good reason to withhold this last bit of progress from them.

In Andersen, by contrast, the court cites legislative progress as a reason to deny gays suspect-class status, on the dubious theory that a truly powerless group wouldn't have made such democratic progress. This part of the analysis is questionable, since historical work by William Eskridge and others has shown that groups tend to get heightened scrutiny only after they've made legislative progress. And once they've gotten suspect class status, they don't lose it simply because the legislature begins to take their concerns seriously.

I have always thought there was room for a good suspect-classification argument, but there's no doubt the weight of precedent is on the side of the Andersen court.

(3) On whether the plaintiffs have a fundamental right to marry, the Andersen opinion is also better than Hernandez. It avoids directly resolving the level-of-generality problem, i.e., is the issue a "fundamental right to marry" or a "fundamental right to marry a person of the same sex"? Instead, it resolves the issue in good lawyerly fashion by looking closely at the Supreme Court's cases dealing with the fundamental right to marry, including cases the New York Court of Appeals ignored, like Turner v. Safley (involving marriage for prison inmates). Andersen reads these cases as linking marriage to procreation. That's not the only way to read the precedents and it doesn't make much sense of the modern conception of marriage, but as an interpretation of doctrine it's defensible and perhaps the best view.

(4) Once it rejected any reason to apply heightened scrutiny to the exclusion of gay couples from marriage, the Andersen court applies a standard rational-basis review. The court rightly describes this form of review as "extremely deferential" and granting the state "nearly limitless" power to make policy as it sees fit. Here, the court does a much better job than did Hernandez explaining why it's constitutionally rational for the state to create a special status for heterosexual couples. The underinclusiveness and overinclusiveness of the classification in relation to the claimed interests -- promoting procreation and child welfare -- are very poor policy reasons to exclude gay couples from marriage, and the court implicitly recognizes this at several points in the opinion. But they're sufficient for traditional rational basis review, absent some good indication of animus. The court explains -- unlike the New York court — that the issue is not whether excluding gay couples from marriage advances these interests in any way (the exclusion of gay couples does not plausibly advance them) but whether including straight couples in marriage advances these interests (it clearly does).

(5) Andersen quickly, and I think correctly, dismisses the claim that due process "privacy" interests command the inclusion of gay couples in marriage. Marriage is not a purely private matter, though important aspects of the marital relationship are private and it is an intensely personal experience for couples and families. Marriage is full of public benefits and privileges that make it a public investment and a matter of public concern.

(6) The Washington opinion also rejects the sex-discrimination argument much more convincingly than did the New York court. Andersen does as good a job as I've seen in a judicial opinion of refuting "the Loving analogy," which suggests that excluding same-sex couples from marriage is constitutionally analogous to excluding interracial couples from marriage. Moreover, the opinion deals not just with the formal aspects of the sex-discrimination argument (marriage laws classify on the basis of sex) but also with the sociological claim (that marriage laws have the impermissible purpose or effect of perpetuating gender stereotypes). The sociological claim about gender stereotypes seems a crabbed view of marriage, its public purposes and effects.

(7) Finally, there's a potentially significant passage in the middle of the opinion that might get overlooked on a first read:

We do not dispute that same-sex couples raise children or that the demographics of "family" have changed significantly over the past decades. We recognize that same-sex couples enter significant, committed relationships that include children, whether adopted, conceived through assisted reproduction, or brought within the family of the same-sex couple after the end of a heterosexual relationship. We do not doubt that times have changed and are changing, and that courts and legislatures are increasingly faced with the need to answer significant legal questions regarding the families and property of same-sex couples. (Citations omitted).

We are also acutely aware, from the records in these cases and the briefing by the plaintiffs and the amici supporting them, that many day-to- day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples. A married person may be entitled to health care and other benefits through a spouse. A married person's property may pass to the other upon death through intestacy laws or under community property laws or agreements. Married couples may execute community property agreements and durable powers of attorney for medical emergencies without fear they will not be honored on the basis the couple is of the same sex and unmarried. Unlike heterosexual couples who automatically have the advantages of such laws upon marriage, whether they have children or not, same-sex couples do not have the same rights with regard to their life partners that facilitate practical day-to-day living, involving such things as medical conditions and emergencies (which may become of more concern with aging), basic property transactions, and devolution of property upon death.

Lest you think these are just crocodile tears from a gutless court delivering gay families to the tender mercies of the heartless legislature, the court continued:

But plaintiffs have affirmatively asked that we not consider any claim regarding statutory benefits and obligations separate from the status of marriage. We thus have no cause for considering whether denial of statutory rights and obligations to same-sex couples, apart from the status of marriage, violates the state or federal constitution. (emphasis added)

This qualification is repeated at the end of the opinion, along with another recitation of the ways the denial of marriage harms gay families and with a strong suggestion that "the legislature may want to reexamine the impact of the marriage laws on all citizens of this state."

To the state legislature, the message seems to be this: "Get moving on addressing the hardships faced by gay couples and their children, some of which we've listed for you. You don't have to give them marriage and maybe not even all of the rights of marriage, but something needs to be done. If you don't act, we might."

To gay-marriage litigants, the message seems to be this: "Go to the legislature and see what can be done about the sorts of problems you've identified and that we agree exist. If the legislature is unresponsive, come back to us not with a claim for the status of marriage, but with a remedial claim for the benefits and protections of marriage for your families."

My guess is that this dual message was necessary to get the five votes needed to uphold the state's marriage laws.

I've said before that courts confronting gay-marriage claims may now see three choices: (1) ordering full marriage (Massachusetts); (2) denying the claims (New York); and (3) compromising on civil unions, with instructions to the legislature to decide on implementation (Vermont). Choice #3 involves many complications and permutations.

Though superficially opting for #2, the Washington court would like very much to give #3 a try. It's a sensible direction for litigants, legislatures, and courts.

Anderson (mail) (www):
Thanks very much for the detailed analysis, and for that catch on the civil-unions suggestion.
7.26.2006 7:04pm
guest:
How does restricting legal recognition of marriage to opposite-sex couples affect the transgendered population who have undergone a sex-change operation? Are they considered the sex they were born with, or their post-surgical sex?
7.26.2006 7:15pm
Kate1999 (mail):
Nice post.
7.26.2006 7:37pm
BobN (mail):

(1) ordering full marriage (Massachusetts)


And Hawaii and Alaska.
7.26.2006 7:57pm
alkali (mail) (www):
With regard to your point (4), I urge readers to consider Dahlia Lithwick's column in today's Slate, which highlights the weakness of this opinion very nicely.

Suppose, for sake of argument, the legislature passed a law that said, "Notwithstanding any provision of this state's criminal code to the contrary, it's OK to punch people named Frank(*) in the face." The rationale for the law is that it will encourage the public, by the example of all the poor bruised Franks out there, to remember to weave when someone tries to punch you in the face. Franks are not a suspect class, of course. Under the extremely deferential form of rational basis review adopted by the majority here, is there any reason this law violates equal protection?


(* Sorry to the Franks out there; I picked this name entirely arbitrarily.)
7.26.2006 7:57pm
Clayton E. Cramer (mail) (www):

Franks are not a suspect class, of course. Under the extremely deferential form of rational basis review adopted by the majority here, is there any reason this law violates equal protection?
At this point, the courts would pull out the "rational basis" argument, and I can't say that I would argue the point. So when a statute like this gets passed, you let me know!

In any case:

1. You can change your name from "Frank" if you want.

2. Your name isn't tattooed on your forehead.

3. Do you honestly think that sexual orientation is as irrelevant to behavior and public policy as a first name?
7.26.2006 8:10pm
BobN (mail):

(1) While there was some speculation about possible political motivations for the 17-month period to issue the opinion, it seems in retrospect that the justices were simply taking the time to be very careful on an opinion they knew history would judge them for: writing and re-writing sensitive passages, negotiating with each other, trading drafts among the chambers, waiting to see how other courts might come out.


What you really mean -- and what I really believe happened -- is that they were waiting for a negative result from another court. Four courts had found FOR same-sex marriage (activists all, no doubt). Only Arizona had disagreed and it didn't even hear arguments. The Washington court HAD TO wait for someone else to take the leaps of illogic that the NY court did. Up until two weeks ago, they were unwilling to do so, perhaps out of embarrassment.
7.26.2006 8:18pm
jrose:
Andersen reads these cases as linking marriage to procreation. That's not the only way to read the precedents and it doesn't make much sense of the modern conception of marriage, but as an interpretation of doctrine it's defensible and perhaps the best view.
Only if you accept that a law which forbade the infertile and elderly from marrying would also be found to be constitutional
7.26.2006 8:39pm
Daniel Chapman (mail):
I can't see why it wouldn't be, jrose. Age/fertility aren't suspect classes, and if the populace wanted to restrict the benefits of a state-recognized marriage to fertile couples, that would seem like a legitimate interest to me, wouldn't you say?

Of course, it would probably violate the free exercise clause for the state to REALLY ban someone from getting married... it can only choose to not recognize the marriage civilly. As Homer Simpson realized... anyone can get married if they can find a minister to do it.
7.26.2006 8:47pm
jrose:
Daniel,

IMO, today's ruling demands that a law denying marriage licenses to the elderly and infertile be found Constitutional. Yet, I find it hard to believe that courts would do so - and would instead be left to logical gymanstics to distinguish the two cases.
7.26.2006 8:56pm
Daniel Chapman (mail):
Oh I didn't think your question had anything to do with what courts would actually do. I thought we were talking about constitutionality. Two completely different things, really.

Do you really think the law would be UNconstitutional? If so, which provision?
7.26.2006 9:00pm
jrose:
I think such a law would be unconstitutional. IMO, the fundamental right to a marriage license is not tied exlcusively to procreation.
7.26.2006 9:17pm
Stephen Clark (mail):
Dale, very helpful analysis! I generally agree based on a cursory review of the opinions, and I emphasize my agreement with your point that Anderson is far better reasoned than that embarrassing contrivance issued by the New York Court of Appeals.

But I'd tweak your analysis in the following respects...

(2) Perhaps you give the justices too much credit by suggesting they are consciously navigating the orientation-conduct distinction. My hunch is that they are conflating orientation with conduct and are saying they can't decide whether orientation is immutable. If that's the correct reading, they deserve more criticism than you level at them because they are not only ignoring the best available scientific evidence but are also disregarding and thereby delegitimating the self-reported experiences of the vast majority of gays and lesbians.

(3) I wouldn't say Anderson has the better reading of Turner v. Safely. If a state legislature decided to take the procreation excuse seriously and banned marriages by couples over age 60, courts would fall all over themselves to find that ban on non-procreative marriage to be a prima facie infringement of the fundamental right to marry. (And courts would have to use a fundamental rights theory because age discrimination doesn't trigger heightened equal protection scrutiny.)

(4) First, I agree that true rational basis is very deferential, but neither Anderson nor Hernandez adequately confronted the reality that neither Romer nor Lawrence can be justified under standard rational basis review. (E.g. Protecting religious dissenters by banning gay-rights laws was obviously rational, if grossly overinclusive, in Romer.) Those precedents establish that the standard of review is a bit more probing than regular rational basis review, as Justice O'Connor correctly admitted in her Lawrence concurrence. That factor, though not mentioned by the Massachusetts court, makes its putative rational basis decision more defensible than it otherwise would be.

Second, the Anderson plurality is incorrect to say it must find only a rational basis for the marriage law. That ignores what the plaintiffs challenged. The court has to find a rational basis for the classification that the plaintiffs have challenged. That marriage helps procreating straight couples isn't enough because the court also has to identify the rational basis for the exclusion of same-sex couples. Otherwise, the court's opinion is simply non-responsive. Under deferential rational basis review, however, the justification is something like efficiency--i.e. preservation of state resources by targeting them toward the procreating couples. That step is missing from both Anderson and Hernandez. But, of course, efficiency may be insufficient under the more vigorous rational basis review that Romer and Lawrence require. (See above)

(6) My major disagreement, as always, is with your dismissal of the sex discrimination argument. Justice Bridge got that one right in her dissent. Counterarguments reject the sex argument only by reconstructing Loving v. Virginia into a group-based, Marxian extravaganza with no basis in either the Loving opinion itself or the broader body of our highly formalistic equal protection law. See, e.g., Adarand Constructors v. Pena, in which the Court required strict scrutiny of race classifications in affirmative action programs, even though they obviously designed to achieve group-based equivalance, not promote "[Black] supremacy."
7.26.2006 9:41pm
The Editors, American Federalist Journal (mail) (www):
"...the fundamental right to a marriage license..."

There is no such fundamental right. The state is not obligated to legally recognize any form of inter-personal relationship.

But the fact that we as a society choose to officially recognize and license one type of human relationship, the unique male-female intimate relationship, in no way obligates us to recognize other types of relationships, let alone equate other types by calling them the same word "marriage".
7.26.2006 9:53pm
jrose:
Stephen Clark,

If you are correct about sex discrimination, then both Lawrence and Limon were also examples of sex discrimination. Yet, neither SCOTUS nor the Kansas Supreme Court said so.
7.26.2006 10:01pm
jrose:
"...the fundamental right to a marriage license..."

There is no such fundamental right.
Zablocki says otherwise for opposite-sex couples. What I find unpersuasive is the court's reasoning on limiting the fundamental right to opposite-sex couples.
7.26.2006 10:03pm
Daniel Chapman (mail):
Zablocki also focuses rather heavily on the "right to procreate" because the two rights are intertwined.
7.26.2006 10:10pm
The Editors, American Federalist Journal (mail) (www):
Rights go to individuals, not couples. Each individual in the US has the same ability to marry as every other individual, subject to the same set of limitations (adult, opposite-sex, single, non-relative).

Opposite-sex relationships are fundamentally different from same-sex relationships; it is perfectly reasonable for our laws to recognize that fact.
7.26.2006 10:13pm
what's loving? (mail):
Rights go to individuals, not couples. Each individual in the US has the same ability to marry as every other individual, subject to the same set of limitations (adult, opposite-sex, single, non-relative, same-race).

Opposite-race relationships are fundamentally different from same-race relationships; it is perfectly reasonable for our laws to recognize that fact.
7.26.2006 10:16pm
Daniel Chapman (mail):
"Opposite-sex relationships are fundamentally different from same-sex relationships" != "Opposite-race relationships are fundamentally different from same-race relationships"

Sorry.
7.26.2006 10:18pm
jrose:
Zablocki also focuses rather heavily on the "right to procreate" because the two rights are intertwined.
And once again that demands that a law which prohibits the elderly from getting a marriage license would be Constitutional. I agree with Stephen Clark on this point
If a state legislature decided to take the procreation excuse seriously and banned marriages by couples over age 60, courts would fall all over themselves to find that ban on non-procreative marriage to be a prima facie infringement of the fundamental right to marry.
7.26.2006 10:22pm
The Editors, American Federalist Journal (mail) (www):
No reasonable human equates race and sex, especially as they relate to intimate human relationships.
7.26.2006 10:25pm
jrose:
Rights go to individuals, not couples. Each individual in the US has the same ability to marry as every other individual, subject to the same set of limitations (adult, opposite-sex, single, non-relative).
A gay person - unlike a straight person - is unable to civilly marry anyone from the pool of feasible lifemates. Thus as individuals, gay people are denied a fundamental right.
7.26.2006 10:27pm
The Editors, American Federalist Journal (mail) (www):
The distinction between age 59 and age 60 is entirely arbitrary. The distinction between male and female is not arbitrary at all.
7.26.2006 10:27pm
RBG (mail):
Slightly off topic, I suppose, but I'd be interested to know if anybody on this thread read this article in the latest issue of the Harvard Journal of Law and Public Policy. It raises an argument against same-sex marriage--or more precisely, against expanding the current institution of marriage to include same-sex couples, as opposed to the possibility of creating a different though functionally equivalent institution--that I had not previously considered.

In brief, the author argues from institutional economics that marriage, as an institution, has evolved a set of rules to accomodate the competing incentives of males and females in terms of both mutual interaction and procreation. As such, he argues, it may be unwise to expand the institution of marriage to cover same-sex couples who don't face the same set of incentives (see, e.g., the comments of Andrew Sullivan and other gay marriage advocates that gay men in committed relationships don't require the same levels of fidelity as opposite-sex couples often do); same-sex couples may not be well served by such rules. He further argues that expanding the current institution of marriage to include same-sex couples may weaken the rules designed for opposite-sex couples as same-sex couples seek legislative and/or judicial modifications of those rules to better fit their own needs.

Certainly, this argument would carry much greater weight in the pre-no-fault-divorce era, but it has at least the air of plausibility to it. Am I missing something? I'd be interested in hearing arguments on either side, and, no, by argument, I do not mean allegations that I or the author of this piece is a raging homophobe. Dale, I would appreciate your insight as well, should you be so inclined.
7.26.2006 10:31pm
jrose:
The distinction between age 59 and age 60 is entirely arbitrary. The distinction between male and female is not arbitrary at all.
The exact age of 60 is exemplary. The distinction between fertile and infertile is not arbitrary. Yet, if a state tried to deny marriage licenses to the infertile, they would be slapped down.
7.26.2006 10:32pm
The Editors, American Federalist Journal (mail) (www):
"A gay person - unlike a straight person - is unable to civilly marry anyone from the pool of feasible lifemates."

They are able to marry subject to the exact same limitations as everyone else.
7.26.2006 10:37pm
The Editors, American Federalist Journal (mail) (www):
An opposite-sex couple is presumptively able to procreate. There's nothing unreasonable about making that presumption without requiring a medical test of every couple. A same-sex couple is unable to procreate in all cases.

And of course, the ability to procreate is not the only distinction between same-sex and opposite-sex couples. There's nothing wrong with society's laws recognizing the fact two different things are different. We are under no obligation to pass laws stating that apples are oranges.
7.26.2006 10:47pm
jrose:
They are able to marry subject to the exact same limitations as everyone else.
That's not sufficient to establish gays are denied a fundamental right. When the result of the exact same limitations is that gays - unlike straights - are unable to civilly marry anyone from the pool of feasible lifemates, gays are denied a fundamental right.
7.26.2006 10:50pm
jrose:
An opposite-sex couple is presumptively able to procreate. There's nothing unreasonable about making that presumption without requiring a medical test of every couple.
Whether or not it is reasonable for a state to assume opposite-sex couples are presumptivley able to procreate is not salient. The question is whether or not a state can get away with not making that presumption and deny the infertile from marrying? No way! And if not, how can they also deny same-sex marriage?
7.26.2006 10:57pm
Redman:
As a response to Guest (first comment above) there is a Texas Court of Appeals (intermediate appellate court) decision that a person forever remains the sex they were at birth. Sorry, I dont have the cite (I'm on the road), but it should not be difficult to locate. It was from the San Antonio Court of Appeals, opinion by Justice Phil Hardberger (now Mayor of San Antonio).
7.26.2006 11:11pm
Stephen Clark (mail):
jrose:
If you are correct about sex discrimination, then both Lawrence and Limon were also examples of sex discrimination. Yet, neither SCOTUS nor the Kansas Supreme Court said so.

Lawrence wasn't an equal protection decision, so it says nothing about the nature of the discrimination one way or another. (Maybe you meant Romer?)
At any rate, if a court can invalidate a statute on (regular or intensified) rational basis grounds, it need not even reach the question whether the classification triggers intermediate or strict scrutiny. SCOTUS clearly doesn't want to openly embrace full heightened scrutiny for sexual orientation. But the Court has also never squarely said sexual orientation triggers only rational basis and, more importantly, has never offered any justification or even discussion of that question. As I read the cases, the question remains open.
Ultimately, I think sex works within existing equal protection principles, but sexual orientation doesn't, because of the orientation-conduct distinction.
7.27.2006 12:03am
Toby:
I blame it on the moment when people demanded "celebration" rather than "tolerance" of diversity. I am willing to tolerate just about anything. Don't expect me to celebrate your foibles (and I'm OK with you not celebrating mine).

Tolerance is a good libertarian virtue. Celebration is hive-think. Guess which one is over-playing ones hand?
7.27.2006 12:56am
Elais:
I have zero desire to have children, yet presumably the state doesn't care a whit if I want children or not and has no problem issuing me a license. They don't require a fecundity test on the marriage application.

Why am I permitted to marry, but my next door neighbor who is gay cannot if neither of us is willing or able to procreate?

The procreation arguemnt is bunkum.
7.27.2006 12:56am
Tinmanic (mail) (www):
Toby writes:
I blame it on the moment when people demanded "celebration" rather than "tolerance" of diversity.


Granting marriage rights to same-sex couples is not "celebration." The government need not applaud gay couples or even morally approve of them; it merely needs to grant them equal access to marriage.
7.27.2006 1:11am
Tinmanic (mail) (www):
Editors write:
They are able to marry subject to the exact same limitations as everyone else.


One thing that makes a person human is the ability to put oneself into someone else's shoes and see what the world is like from that person's point of view.

A gay man's right to marry a woman, or a gay woman's right to marry a man, is valueless. "Editors": if you were gay, what would you think of the right to marry someone whom there was no possibility you could love?

The law is nothing if it lacks empathy. I don't mean sympathy. I mean empathy.
7.27.2006 1:18am
Martin Grant (mail):
>"Opposite-sex relationships are fundamentally different from same-sex relationships" != "Opposite-race relationships are fundamentally different from same-race relationships"

They don't have to be the same thing. The underlying rationale (or in this case lack thereof) behind the two arguments works with equal weight.
7.27.2006 1:50am
BobN (mail):

They are able to marry subject to the exact same limitations as everyone else.


That construction only works in the abstract. In the flesh and blood world, I should have the exact same rights as my sister. If she can marry Fred, I should be able to do so, as well.
7.27.2006 2:42am
BobN (mail):

Rights go to individuals, not couples.


Apparently, not.
7.27.2006 2:43am
Mr L (mail):
Why am I permitted to marry, but my next door neighbor who is gay cannot if neither of us is willing or able to procreate?

The procreation arguement is bunkum.


If that's the case, then the most common expression of the 'equal protection' argument -- that gays cannot marry those they love, while straights can -- is also fundamentally invalid, since the state doesn't care if you love (or even like) the person you're marrying.

Or do these evasions only count when they're in favor of gay marriage?
7.27.2006 3:49am
David M. Nieporent (www):
Jrose:
The exact age of 60 is exemplary. The distinction between fertile and infertile is not arbitrary. Yet, if a state tried to deny marriage licenses to the infertile, they would be slapped down.
I suspect your prediction is correct. Nonetheless, I do not think a judge can (should) strike down a law based on his or her guess that the court would choose to rule differently in a situation which isn't before the court.

A court is not required to reconcile its decision with a contradictory decision that exists only in the hypothetical.


Tinmanic:
A gay man's right to marry a woman, or a gay woman's right to marry a man, is valueless. "Editors": if you were gay, what would you think of the right to marry someone whom there was no possibility you could love?
No possibility you could love, or no possibility you could have any sexual interest in?
7.27.2006 5:57am
Reader55:
They don't have to be the same thing. The underlying rationale (or in this case lack thereof) behind the two arguments works with equal weight.

The point is that there are different categories of discrimination, and accordingly there are different methods of acceptable redress. Gender discrimination, for example, is not directly comparable to racial discrimination. Racially segregated restrooms and locker rooms are an abomination. Do you really want to make the argument that therefore all public restrooms should be unisex? As a male I am skeptical that if I insist on showering in the women's locker room at my local health club that I will be hailed as a new Rosa Parks. Racially segregated athletic leagues were a travesty. Is that really a good reason to open up the WNBA to guys like Shaq?

Rather than make easy and facile comparisons ("Substitute 'woman' for 'black'", "Substitute 'gay' for 'black'", etc.) the energies of advocates of gay marriage would be better spent in explaining how exactly a decision like Loving v. Virginia is an analogue for gay rights.
7.27.2006 8:02am
PeterH:

If you are correct about sex discrimination, then both Lawrence and Limon were also examples of sex discrimination. Yet, neither SCOTUS nor the Kansas Supreme Court said so


This ignores a critical point. Both those cases were decided based in part on the Constitutions that applied to them. Neither of them were dealing with a Constitution that included the Equal Rights Amendment.

The dissent clearly ripped the plurality opinion for completely ignoring that. Federally, there is not the same level of sex-based protection. But in Washington State, they clearly have precedent that making sure that the genders are treated equally outweighs state interest in maintaining something that discriminates.

In Washington state, if not federally, the logic that if Adam can marry Eve, but Amy cannot, for the sole reason that Amy is a woman, with no other factor different, then it is unconstitutional sex discrimiation, has to be taken into account, and it was utterly ignored.

For the same reason that Loving, which applied marriage to the (essentially, newly) protected race class, shot down "everybody has the same restriction to a part of the pool", Anderson should have done the same given the heightened requirements of the Washington constitution.

So why didn't it?
7.27.2006 8:41am
Tinmanic (mail) (www):
David:
No possibility you could love, or no possibility you could have any sexual interest in?


I'll concede that it's possible to love someone - although not in the same way - regardless of that person's gender. But a vast majority of people will tell you that sexual attraction is a vital component of a happy marital relationship. And we should maximize people's happiness unless there's a good reason not to.
7.27.2006 9:07am
Martin Grant (mail):
>Do you really want to make the argument that therefore all public restrooms should be unisex?

Are you arguing for seperate but equal restrooms? Because I can tell you most men's rooms are anything but equal to women's restrooms. Nor is very fair for the women to wait in a large line, when the men's room is practically empty. Many universities have gone to unisex bathrooms without problems, so I'm not sure what value the current archaic system provides.
7.27.2006 9:32am
Reader55:
In Washington state, if not federally, the logic that if Adam can marry Eve, but Amy cannot, for the sole reason that Amy is a woman, with no other factor different, then it is unconstitutional sex discrimiation, has to be taken into account, and it was utterly ignored.

For the same reason that Loving, which applied marriage to the (essentially, newly) protected race class, shot down "everybody has the same restriction to a part of the pool", Anderson should have done the same given the heightened requirements of the Washington constitution.

So why didn't it?


Again, gender discrimination is not entirely comparable to racial discrimination. Banning restrooms or showers segregated by race does not require banning restrooms or showers segregated by gender.

Secondly, is the gay marriage issue really about gender discrimination or discrimination against sexual orientation?
7.27.2006 9:35am
Reader55:
Are you arguing for seperate but equal restrooms? Because I can tell you most men's rooms are anything but equal to women's restrooms. Nor is very fair for the women to wait in a large line, when the men's room is practically empty. Many universities have gone to unisex bathrooms without problems, so I'm not sure what value the current archaic system provides.

Why not allow men to use the women's restroom in that case when the men's is full? Why not allow men to use the women's shower facilities when theirs is full or out of commission? I feel pretty comfortable with legislation that outright bans racially segregated locker rooms. Do you feel comfortable banning health clubs from having locker rooms segregated by gender?

Why restrict men from entering into the WNBA or women's professional tennis? It's true that the end result be would be that the "women's" leagues would be filled with also-rans who couldn't cut in the NBA, PGA, men's tour, etc. but isn't that better than overt discrimination?
7.27.2006 9:40am
Nicholas Blesch (www):

Rights go to individuals, not couples. Each individual in the US has the same ability to marry as every other individual, subject to the same set of limitations (adult, opposite-sex, single, non-relative).


Issue: Many states allow non-adults to marry - perhaps subject to parental approval, although not always. One state allows same-sex people to marry; one allows them civil unions. Admittedly, no state allows polygamy. And to my knowledge, every state allows you to marry relatives if they're far enough removed (i.e., second cousins).

Simply put, people in every state have different rights than people in every other state. You cannot simplify things so much.
7.27.2006 10:51am
RBG (mail):
Well, since no one saw fit to take a break from the standard "if you oppose gay marriage, you're obviously a homophobic bigot" line to respond to what I thought was a challenging and intriguing question, I thought I'd get a cheap shot or two in as well; after all, I wouldn't want to be ostracized for trying to take this comment thread somewhere, you know, substantive or anything.


That construction only works in the abstract. In the flesh and blood world, I should have the exact same rights as my sister. If she can marry Fred, I should be able to do so, as well.


I agree. And if Fred can marry my sister, I should be able to do so as well.

Case closed, I guess . . . right?
7.27.2006 10:56am
RBG (mail):
And I hope no one here is bigoted enough to argue that I can't marry my sister because of genetic concerns for our offspring. After all, if Fred can marry his brother--and why not, as no such genetic concerns exist--why should the state have the power to bar somebody like me, who may be sterile or a very responsible user of birth control, from also marrying my sister. After all, based on the reasoning of several posters above, any rule that is at all overinclusive or underinclusive when it comes to individual couples in prima facie unconstitutional.

Wow--this is a lot of fun.
7.27.2006 11:11am
marghlar:
Well, RBG, one obvious distinction would be that there is far less evidence that incestual orientation is immutable, than there is evidence that sexual orientation towards a gender is immutable. So it is less obvious that incest-orientation (if there is such a thing, rather than just a preference) should be a suspect class.

As a policy matter, I don't have a huge problem with letting incestuous couples get married. I think it will have almost no effect on the rate of actual incest (social taboos will have a stronger effect here, anyway). I'd rather regulate consanguinity problems directly by outlawing procreation between very closely related people, than with such distant factors as a marriage exclusion. Also, keep in mind that the actual rate of birth defects is not that much higher than it is for many existing married couples with a heightened rate of genetic disease -- I think the increase in risk is on the order of 5-10%.

So I think your reductio is less absurd than you might wish. Nevertheless, I think there are valid constitutional reasons not to extend constitutional protection to incestuous couples (the immutability issue being key), but that is different from the policy issue.
7.27.2006 12:03pm
Stephen Clark (mail):
True, sex equality law is not quite as vigorous as race equality law, but it is nearly so. At any rate, that differential in the degree of scrutiny doesn't answer the structurally different question whether the equal application defense is available. JEB v. Alabama suggests the defense is not available at all, and VMI suggests that, at the very least, the law requires that the tangible and intangible opportunities given to men and women be substantially equal--a separate-but-equal test with sharp teeth. (See the VMI Court's incorporation of Sweatt v. Painter.)

Under the latter, less protective approach, the analogy to segregated restrooms still fails. Restrooms either are or can be made substantively fungible, with only de minimis differences, in the way that VMI and the new Virginia Women's Leadership Institute could not. Very few people--straight or gay--would say that the difference between marrying a man and marrying a woman is de minimis. Sexual attraction is too central to marriage for such a claim to succeed. Straight defenders of Anderson and Hernandez wouldn't make that argument if the roles were reversed, opposite-sex marrage was illegal, and they were told there was no sex discrimination because everyone was allowed to marry a homosexual lover. The sex of one's spouse isn't fungible as a toilet seat is. And because it isn't fungible, it is sex discrimination to permit men to marry only one sex and women to marry only the other, just as it was sex discrimination to steer men to one military school and women to the other. Again, JEB suggests not even this approach is available and that the equal application defense is simply not a part of sex equality law. (By invalidating the VMI/VWIL distinction, the Court did not have to decide the question whether separate and truly equal would be permissible in sex equality law.) See Stephen Clark, Same-Sex But Equal: Reformulating the Miscegenation Analogy, 34 Rutgers L.J. 107 (2002).

A more useful analogy is the rare attempt by a court to award custody of children, whenever possible, to a parent of the same sex as the child based on some role-modeling theory. When a mother is told she cannot have custody of her son because they are not the same sex or a father custody of his daughter, the correct answer is that the custody rule is a sex-based classification, subject to skeptical scrutiny (and is probably invalid as sex stereotyping). I'd be surprised to see a court trot out the equal application defense in that situation and uphold under rational basis review.

And, yes, courts do have an obligation to consider how the principles they adopt in one case would work when generalized to others. That is so because courts have an obligation to offer impartial, reasoned, and consistent decisions, not ad hoc judgments that are, however subconsciously, influenced by the personal political preferences of the judge. Applying general principles is one strategy for minimizing the influence of those preferences. If the "equal application" defense applies only to cases touching on sexuality, it is unprincipled and is inconsistent with the idea of the rule of law, to the extent we can still hope to achieve that.

In the New York Court of Appeals' decision, however, I'm willing to say that something worse was going on. Some of the legal propositions in the plurality opinion are so clearly incorrect--like the bizarre idea that suspect-class status is situational--that it is more than subconscious inconsistency or honest mistake about the law. I would literally give a third-year law student about a C- if she produced that opinion as a work product because some of the legal mistakes are so blatant. Coming from the Court of Appeals, however, I don't believe those are mistakes; I assume they are deliberate manipulations. And my objection is not principally to the result. There is a strong argument that the issue of same-sex marriage should be left to the democratic process. But however open I am to that result, I can't square it with generally applicable principles of equal protection law, whether one takes the sex view or possibly even a sexual orientation view. Nor did the New York plurality persuasively square it with equal protection law. As I see it, Judge Smith began with the result he wanted--deference to the political process--and worked backwards, producing an opinion that is transparently manipulative and result-oriented. That's called conservative judicial activism, and it undermines the rule of law just as much as liberal judicial activism can. It also means lesbian and gay New Yorkers have not yet had a fair day in court on this issue and have little obligation to accept Hernandez as a correct, legitimate, or final statement of law.
7.27.2006 12:27pm
JosephSlater (mail):
I think Stephen Clark has it exactly right.
7.27.2006 12:31pm
RBG (mail):
marghlar, certainly the scope of the institution of marriage is not reducible to questions of immutable traits, is it? If it were, then laws limiting individuals to marrying within their class or religious group would be perfectly valid, no? After all, my "Catholic-girls-are-better-than-Protestants" orientation is not, strictly speaking, immutable; nor is my adherence to the Catholic church.

In fact, it seems that the question of immutability in this context is a red herring. You're characterizing my hypothetical desire to marry my sister as incest-orientation, a characterization that strikes me as tendentious, value-laden language. Why is it not just a manifestation of my heterosexuality and of my desire to marry a person I love? Why do you have to bring your pre-conceived notions of sexual morality to bear on my choice of a partner?

As to the question of barring reproduction between incestuous couples, your proposal is nothing if not overinclusive and underinclusive: it ignores the far greater number (though lower percentage) of children with birth defects born to non-consanguinous couples and would prevent--as you suggest--the 90-95% of consanguinous couples who would not produce defective offspring from reproducing. How is that not unconstitutional? A more narrowly tailored approach would surely be to require all couples to undergo pre-natal testing and abort defective fetuses, no?

Your servant in the relentless subjection of human life to the rigors of logical reasoning.
7.27.2006 12:53pm
Stephen Clark (mail):
RGB, you raise an interesting hypo. What you'd be challenging is a classification based on kinship (here, the legal restriction on your marrying a person because she is your sibling). Although we know that classifications based on race, sex, and religion trigger a very high degree of scrutiny (religion, by the way, is non-volitional in that you can change your church affiliation but you can't will yourself into believing or not believing in God, Jesus, Mohammed, etc.--try "choosing" to believe that I am your god), the Court hasn't told us that kinship-based classifications trigger any heightened scrutiny.

Perhaps they should. The Constitution does, at the very least, outlaw criminal punishment based on "corruption of blood"--a kind of kinship-based discrimination. And I'd be willing to say kinship, like illegitimacy, is sufficiently non-volitional to satisfy any immutability-type requirement that may exist. (Dale is correct that the Anderson court overemphasized the existence of such a requirement.)

On the other hand, it may be that there is very little history of kinship-based discrimination (post the corruption-of-blood era) to justify strict scrutiny. One also would be hard-pressed to say--generally--that people with relatives face animus or prejudice that prevents their interests from being fairly addressed in the democratic process. (To ask whether would-be incestuous spouses would face animus, which they would, would commit the same mistake the New York Court of Appeals did--treating the suspect-class inquiry as contextual or situational.) Compare Massachusetts v. Murgia (age is not a suspect trait because people expect to pass through all stages of the life cycle and thus can be expected not to discriminate unfairly on the basis of age). Lots of people have relatives and even siblings, so why would they support a law that *unfairly* discriminates against people with relatives? And so far as I know, there is no public stigma attached to having a sibling. So probably "no" is the answer to whether kinship-based classifications trigger heightened equal protection scrutiny.

Of course, none of this has anything to do with sex, sexual orientation, or same-sex marriage, except for your hope to draw an analogy between same-sex marriage and incest as a scare tactic. The mistake is to take something that works as a TV sound bite for popular consumpation and to try to assert it as a credible equal protection argument. In other words, you should more wisely choose your forum for incest-baiting.

But I will give you this: things are different outside the equal protection context. Ironically, it would seem to me that the Anderson and Hernandez courts, if principled, would have to subject your ban on incestuous marriages to strict scrutiny under the fundamental right to marry, since those courts have said the critical question for applicability of that constitutional right is whether the relationship in question is procreative, as an opposite-sex, sibling marriage could be. (In my view, however, the fundamental rights argument fails here as well as in the case of same-sex marriage, but for completely different reasons.)
7.27.2006 1:48pm
jrose:
A court is not required to reconcile its decision with a contradictory decision that exists only in the hypothetical.
Maybe they are aren't required to. But, they should.
7.27.2006 2:18pm
David Goroff (mail) (www):
Dale, you congratulate the Washington court for at least citing Turner v. Safley but it hardly supports the conclusion that marriage can be limited to straight couples because of the possibility that many (although by no means all) straight couples may procreate. The Turner majority never mentions procreation as a basis for the fundamental right to marry. Instead, it notes four reasons why the basic right is so important that it cannot be taken away from convicted child murderers and their ilk. Each of these reasons seem equally applicable to gay couples. They are: 1) marriages "are expressions of emotional suppport and public commitment";2)"the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication"; 3) marriages are formed "in the expectation that they ultimately will be fully consummated"; and 4) "marital status often is a precondition to the receipt of government benefits (e.g Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g, legitimation of children born out of wedlock". 482 U.S. at 95-96. One could certainly posit a rational reason why society would not want hardened, incarcerated felons to marry (or to procreate, for that matter), but the restriciton was not looked at from that almost-anything-goes standard. Rather, the court took care to look at whether a complete ban was necessary to fulfill penological objectives and determined it was not. Id at 97-100. It is only when it comes to gay citizens that the courts are so quick to apply a ridiculously lax standard to justify the denial of basic civil and human rights.
7.27.2006 2:22pm
RBG (mail):
Stephen,

Thanks for your thoughtful reply to my hypothetical. It was not my intent to engage in "incest-baiting"; rather, I was simply highlighting the inanity of much of the thread that preceded my post. One would think that, after Eugene's thoughtful post a few days back about the problem with the "everyone should have the right to marry the person they love" argument, commenters would at least think twice about asserting positions that lead logically to results they might not endorse. But no, the general trend seems to run toward uttering inanities such as, "In the flesh and blood world, I should have the exact same rights as my sister. If she can marry Fred, I should be able to do so, as well," and thinking the issue has thus been settled.

My other goal was simply to highlight the absurdity of the relentless use of logic to evaluate the social mores and institutions that have developed over generations. If it can be applied ruthlessly to an institution such as traditional marriage, why on earth stop there? To your credit, you attempted to explain why the rule might plausibly be different in the hypo I set forth; unfortunately, your response appears to be quite unusual.

Finally, I thought it would be interesting to compare responses to my initial post, which I wrote in a genuine desire for substantive critique and comment, with a tongue-in-cheek post that engaged in the same type of casuistry most of the preceding commentors had exhibited. The results suggest one of the following: advocates of gay marriage (among the commenters here) are so blinded by their conviction that opponents are motivated by nothing more than bigotry, that they cannot (or will not bother to) respond to thoughtful, original arguments for why we should be cautious--it's so much easier to rant about how everybody should be able to marry Fred; or, blog comment threads reward, and therefore inexorably tend toward, the lowest, most inane, forms of argument.
7.27.2006 2:30pm
jrose:
Lawrence wasn't an equal protection decision, so it says nothing about the nature of the discrimination one way or another. (Maybe you meant Romer?)
I meant Lawrence and its application in Limon. You are correct that Lawrence was not decided on Equal Protection. But, O'Connor's concurrence was (sexuality discrimination, not gender discrimination). And The Court acknowledged her argument was tenable without saying one word about gender discrimination.

More importantly, the Court remanded Limon back to Kansas with instructions that it be decided not inconsistent with Lawrence. In response to Lawrence, the Kansas Supreme Court reversed itself and invalidated (actually re-wrote) the so-called Romeo-and-Juliet statutory rape law (which gave a much lesser punishment to opposite-sex statutory rape than same-sex statutory rape when the adult was 19 and the child 15) based on sexuality discrimination, not gender discrimination. Had there been gender discrimination, the Kansas court would have invalidated the law the first time around.
7.27.2006 2:40pm
jrose:
If you are correct about sex discrimination, then both Lawrence and Limon were also examples of sex discrimination. Yet, neither SCOTUS nor the Kansas Supreme Court said so

This ignores a critical point. Both those cases were decided based in part on the Constitutions that applied to them. Neither of them were dealing with a Constitution that included the Equal Rights Amendment.
An Equal Rights Amendment would only impact the analysis after a determination of sex discrimination. That determination is the same in Kansas, Washington and in federal court.
7.27.2006 2:44pm
jrose:
RGB,

If you can't marry your sister, there are plenty of other "fish in the sea" for you. In contrast for a gay person, they can't marry any of the fish in their sea.
7.27.2006 2:50pm
marghlar:
marghlar, certainly the scope of the institution of marriage is not reducible to questions of immutable traits, is it? If it were, then laws limiting individuals to marrying within their class or religious group would be perfectly valid, no? After all, my "Catholic-girls-are-better-than-Protestants" orientation is not, strictly speaking, immutable; nor is my adherence to the Catholic church.

No, of course the scope of marriage is not reducible in that way. But state definitions of marriage must comply with the equal protection clause, which I think should keep the state from discriminating on the basis of immutable traits without a very, very good reason. That's why immutability is important to the analysis.

I am far from certain about how the clause should apply to religious discrimination. Probably it should, since most people find it enormously difficult to just change their religion because the state tells them to, and there is a huge history of religious discrimination. On the other hand, the constitituon does already offer explicit protections of religious freedom, which might actually sort out your hypo without any resort to the EP clause.

Also, there is an argument to be made that, at this point in history, the right to get a civil marriage to any person of the opposite sex who is not a close relative has become so broadly recognized as to become an unenumerated right. Indeed, the Loving holding was alternatively grounded in the Due Process clause on a fundmantal rights rationale. I'm not a big fan of unenumerated rights generally, but I wouldn't be that startled if the courts used such an approach to protect against novel restrictions on the definition of marriage.

of the definition, by contrast, probably need to come from somewhere else. I still think the Equal Protection Clause is the most likely source.
7.27.2006 2:58pm
marghlar:
If you can't marry your sister, there are plenty of other "fish in the sea" for you. In contrast for a gay person, they can't marry any of the fish in their sea.

That is why I framed my response in terms of an "incest orientation" -- the only way to make the analogy work is to posit people who cannot be attracted to anyone other than their own siblings or other near relatives. Pretty far-fetched, if you ask me.
7.27.2006 3:00pm
Hans Gruber (www):
"Get moving on addressing the hardships faced by gay couples and their children, some of which we've listed for you. You don't have to give them marriage and maybe not even all of the rights of marriage, but something needs to be done. If you don't act, we might."

Why ONLY gay couples? A lot of alternative families don't receive the benefits of marriage. Two sisters raising a deceased brother's children, for example. Obviously single individuals are discrimated against, too. Should the legislature get started on relieving their plight?
7.27.2006 3:04pm
jrose:
Hans,

IMO, the state should have the power to define what the benefits of marriage are supposed to encourage. If it's to encourage single people to settle down with a lifemate, then gay couples are in and sisters are out. If it's to encourage the raising of kids by a man and a woman, then gay couples are out. But, then the state could also deny the infertile marriage benefits. There is no way that restriction would be upheld in court, so how can you justify leaving gay couples out?
7.27.2006 3:32pm
Elais:
Mr L


If that's the case, then the most common expression of the 'equal protection' argument -- that gays cannot marry those they love, while straights can -- is also fundamentally invalid, since the state doesn't care if you love (or even like) the person you're marrying.

Or do these evasions only count when they're in favor of gay marriage?


You've just proved my point. Currently, the state doesn't care one whit if a couple seeking to get married wants to procreate. They also don't care a whit if people love each other. So...why not allow two men and two women to marry? Without a valid procreation or love arguement, why prevent two people from the same gender to marry?
7.27.2006 3:36pm
Stephen Clark (mail):
I agree with David Goroff's analysis of Turner, although the inclusion of "expectation of consummation" gives me a little more pause, though not decisively so. And I do think it is fair to point out that with the notable exception of the Kansas Supreme Court in the Limon case, there is an illegitimate trend among lower courts of simply pretending that Romer and Lawrence do not exist and that Turner is consistent with the procreation mantra. See the 11th Circuit's decision upholding Florida's flat ban on adoption by gays (but not ex-felons).

That said, I don't think the fundamental rights theory works. First, it at least has to be recharacterized as an equal protection theory--fundamental interests equal protection (a nearly moribund constitutional doctrine). Otherwise, the claim has to be that the constitution affirmatively requires government to create civil marriage and attach benefits to it. That is inconsistent with a number of holdings rejecting the idea that the Court's fundamental rights jurisprudence places affirmative obligations on government to provide positive rights. See DeShaney v. Winnebago County (1989) (no constitutional obligation to remove an abused child from home); Harris v. McCrae (1980) (no constitutional obligation to fund even medically necessary abortions). States could constitutionally abolish civil marriage tomorrow, except perhaps for the *possibility* of some kind of takings claim by couples who are already married. If there is no constitutional obligation to provide opposite-sex marriage, there is no constitutional obligation to provide same-sex marriage. (Note Loving is different because it involved a criminal prosecution, not the mere denial of positive rights.)

As with voting, however, once the state offers the fundamental benefit to some, its refusal to offer it to others may trigger strict scrutiny under the equal protection clause. That may include marriage. (See Zablocki's references to equal protection and equal protection cases.) So the theory still may work as a matter of fundamental interests equal protection.

But there is at least one other problem. Simply citing Loving, Zablocki, and even Turner and applying strict scrutiny to same-sex marriage isn't completely satisfying to me. Everyone knows that the Court has its most difficult time when trying to figure out which unenumerated rights to constitutionalize. Just extrapolating from precedents and constitutionalizing same-sex marriage seems to me to do an end-run around other important inquiries in this area, such as whether same-sex marriage is supported by history and tradition or whether it is at least consistent with the contemporary conscience of the people. The answer to both inquiries is clearly "no" today. As a result, formalistic reliance on Loving, Zablocki, and Turner has the feel of boot-strapping to me. Such reliance is one way to guard against judge's relying on subjective political preference, but so are the tradition and contemporary conscience inquiries.

True, the Court didn't ask about either tradition or contemporary conscience as to the particular restrictions at issue in Loving, Zablocki, and Turner. Still, the fundamental rights part of Loving was just a one-paragraph afterthought with equal protection as the primary grounds for the decision. At any rate, by 1967, 2/3 of the states had authorized interracial marriage, which is good evidence of contemporary conscience or, in the words of Lawrence v. Texas, an "emerging awareness" of the unjustness of the ban at issue. Zablocki and Turner may be similar, but they also involved little more than petty administrative regulations at the margins of marriage law, not major public policy fights specifically about our understanding and definition of marriage itself.

While none of those explanations is completely satisfying, same-sex marriage does strike me as significantly different. There is no serious tradition of same-sex civil marriage, nor is recognition of same-sex marriage demanded by the contemporary conscience of the people--not yet, anyhow, but that "not yet" may be key. The restrictions are not low-profile, petty, marginal administrative regulations (Turner) or indirect attempts to enforce some unrelated public policy (Zablocki). Bans on same-sex marriage are the subject of widespread discussion and deliberation focused squarely on the issue, and the idea of same-sex marriage remains controversial and hotly contested. Those factors provide a very good basis, in my opinion, for concluding that, constitutionally speaking, same-sex marriage is different (right now) in a relevant way from Loving, Zablocki, and Turner, and is sipmly not yet ripe for constitutionalization and the Roe v. Wade-style preemption of the democratic process. Those factors have limited, if any, relevance in an equal protection inquiry, which may make this entire fundamental rights discussion academic. But when the question is whether a court should constitutionalize an unenumerated right as fundamental, I think those factors are relevant, and they explain why bans on neither polygamous nor consanguineous marriages trigger strict scrutiny under a fundamental rights approach.

Justice White got many things wrong in Bowers v. Hardwick, but he was right that the Court comes nearest to illegitimacy in discovering new unenumerated rights. His response was to stop identifying such rights at all. I wouldn't go that far, but I think courts must be extremely restrained in identifying unenumerated fundamental rights. Lawrence provides a nice model the gay-rights movement fighting from state to state to reform sodomy laws, creating a sufficient national consensus that the Court could constitutionalize the right with, actually, very little controversy over the specific right itself. (Where is the President's proposal for a Federal Sodomy Recriminalization Amendment?) It may be that the gay-rights movement must effectively "earn" recognition of same-sex marriage as a right, as with sexual privacy, by making far greater progress outside the courts in public opinion and state-level legal reform than it has so far done.

While those factors may be very relevant to the fundamental rights claim, they are not, to repeat, legally relevant to the equal protection claims. My suspicion, however, is that judges are willing to treat those factors as relevant to the equal protection claims. The result is a series of equal protection analyses that range from less than persuasive ("Golly, we just have no idea whether gay people can choose to stop being gay.") to legally indefensible ("Sexual orientation might be a suspect trait outside family law but not where family law is concerned."). When judges transfer the political arguments for leaving the question to the democratic process from the fundamental rights claim to equal protection claims, the decision becomes unjustifiably result-oriented and an affront to the rule of law.

It may even be the case that the Washington S. Ct. majority effectively saved the gay-rights movement from having yet another state constitutional amendment adopted. Had the court ruled the other way, we would certainly hear screams right now for a state amendment to overturn the decision, and I suspect an amendment would have made it to the ballot in Washington and been approved. (Massachusetts has a constitution that is much harder to amend.) I don't think that was the motive of the majority. But my point is that I could imagine these considerations being made by progressive judges and rejecting a challenge in order to paternalistically protect the gay-rights movement. Regardless, however, these political considerations are illegitimate in response to equal protection claims, even if they play some acknowledged role in an unenumerated rights claims.
7.27.2006 3:39pm
jrose:
RBG,

On your argument that gays ought to have a separate institution because it better suits their needs, it would likely have to be one institution for gay men and another for gay women. IMO, gay men and women should decide whether they prefer a separate institution after they hear the details - or whether they think the separate institution isn't a good enough fit and view it instead as a second-class status.
7.27.2006 3:39pm
Duncan Frissell (mail):
There is a fair amount of evidence that traditional sacramental marriage produces more children than modern civil marriage: See Russia, Europe, and the Blue States.

And there is a fair amount of evidence that traditional sacramental marriage produces "better" children than casual fornication: compare and contrast educational perfomance and economic success in Newark, NJ and Salt Lake City, Utah.

Combine these two factors and state discrimination in favor of sacramental marriage may be compelling.
7.27.2006 3:43pm
jrose:
Stephen,

Your 2:39 post is well thought out.

I will just add that the lack of "history and tradition" for same-sex marriage misses the right at stake in the same manner that the Bowers court was wrong. It wasn't about same-sex sodomy per se, but about sexual autonomy as one aspect of a personal relationship. It isn't about same-sex marriage per se, but access to benefits the state provdes to encourage single people to settle down with their lifemate. But, your point about the Court's willingness to reformulate the right at stake in Lawrence based on a growing consensus against sodomy laws is well taken. The Court isn't likely to reformulate the right at stake in the current case without a similar growing consensus (even though I still content that logic forces us to reformulate the right). There should be a new effort to pass civil union laws starting in the blue states.
7.27.2006 3:57pm
jrose:
Duncan,

Isn't there generally more economic success and greater educational performance in the Blue States than the Red States?

How would a state discriminate in favor of sacramental marriage and against modern civil marriage? Isn't modern civil marriage what the state offers?
7.27.2006 4:01pm
Stephen Clark (mail):
jrose

...O'Connor's concurrence was (sexuality discrimination, not gender discrimination). And The Court acknowledged her argument was tenable without saying one word about gender discrimination.

Technically, the majority acknowledged a Romer argument made by counsel and some amici, not as made by O'Connor, although the difference may not be significant. At any rate, you're correct that they said not a word about gender. That's a little suspicious since Justice Scalia felt compelled to devote several paragraph to rejecting the argument in his dissent. At any rate, the Court has not had to reach the question and has avoided saying a word about it, as with the argument that sexual orientation triggers strict or skeptical scrutiny. Negative inferences from mere silence are not a very firm foundation for a legal conclusion and are less reliable than dicta, which is at least an affirmative statement). This is particularly where, as here, the negative inference would be in tension with more general principles the Court has recognized in other cases, such as to sex discrimination as well as to why certain traits trigger strict scrutiny. Besides, pointing out that the Court is being inconsistent is a perfectly legitimate and sometimes highly effective form of legal criticism.


Had there been gender discrimination, the Kansas court would have invalidated the law the first time around.

The Kansas Supreme Court never heard Limon before; it denied review, which has no legal relevance. The U.S. Supreme Court took the case directly from the intermediate appellate court in Kansas. At any rate, I fail to see your point. Is it that everything any lower court says (or that you infer from its silence) is a correct and binding statement of law?

I think the most one can say is that the Court has expressed no opinion as to the sex discrimination theory or as to strict scrutiny for sexual orientation.
7.27.2006 4:15pm
marghlar:
Stephen: excellent comment -- I broadly agree with your concerns regarding a fundemental rights argument here.

Duncan: the "argument" you just set forth has causation/correlation problems so big that you could drive an ocean liner through it. It would be ludicrous to try and isolate the changes wrought by sacramental v. civil marriage out from the numerous other social and cultural changes that took place at the same time. How could you even go about making the argument in a credible way? There are just too many independent factors at play for you to credibly assert that the marriage issue is THE cause, or even a signficant contributing cause.

Also, state discrimination in favor of sacaramental marriage would probably violate the Establishment Clause.

Finally, I'd also note that I'm not sure I would agree that increasing the birthrate is yet a compelling interest in our society. We currently have no great problem of shortage of citizens. You'd need to come up with a convincing argument for why increasing the birthrate would tend to increase aggreggate social welfare for me to buy this claim.

Obviously, having better-raised children is a compelling state interest -- but I think that correlation is even less plausible than the birth-rate correlation, which has some intuitive persuasiveness to me, at least for certain religions, like Catholicism.
7.27.2006 4:38pm
Reader55:
Under the latter, less protective approach, the analogy to segregated restrooms still fails. Restrooms either are or can be made substantively fungible, with only de minimis differences, in the way that VMI and the new Virginia Women's Leadership Institute could not.

But that is precisely the point. Separate but equal facilities are absolutely verboten if they discriminate along racial lines, even if the facilities are in fact completely identical. Separate is inherently unequal. On the other hand separate but equal in terms of gender segregation is something that is widely tolerated. That is no small point.

Even if the gay marriage issue actually falls into the category of sex discrimination rather than discrimination targeted at sexual orientation there is no guarantee that the same protections accorded by decisions like Loving will automatically filter down to the gay marriage question. (I admit this is stating the obvious given the spate of recent court decisions.) Does anyone seriously believe I would be able to successfully sue my local health club and force them to consolidate shower facilities using Brown as a basis?
7.27.2006 4:38pm
jrose:
Stephen,

The actions of the Kansas Court and SCOTUS of course don't settle the issue. But IMO, they do weaken your argument. I don't believe any court would conclude the laws in question in Limon and Lawrence are examples of gender discrimination.
7.27.2006 4:39pm
Stephen Clark (mail):
jrose:

I will just add that the lack of "history and tradition" for same-sex marriage misses the right at stake in the same manner that the Bowers court was wrong. It wasn't about same-sex sodomy per se, but about sexual autonomy as one aspect of a personal relationship. It isn't about same-sex marriage per se, but access to benefits the state provdes to encourage single people to settle down with their lifemate.

That depends on what you think the right at stake is. You assume it is a general right to marry; others assume it is a right, according to the traditional legal definition of marriage, to a "voluntary union of one man and one woman for life to the exclusion of all others." Each sides posits as an unexamined premise the (probably outcome-determinative) characterization of the right. I don't think it's very productive for each side to just say the right simply is x or y. That kind of legal formalism isn't apt to persuade anyone who doesn't already agree. For the pro-gay side, that is a tough way to frame the argument anyhow, because there is an extensive recognition of the opposite-sex definition of marriage in Anglo-American law, and there are plenty of 19th-century and even 20th-century sources that discuss marriage in terms of procreation.

But you do offer Lawrence as something more than just formalistic arguing over what "marriage" means. It may be that the courts are committing exactly the same mistake the Court did in Lawrence of viewing the potential right in exclusively same-sex terms, when it should be viewed gender-neutrally. But that requires the further argument that the sodomy right at issue in Bowers and Lawrence is indistinguishable from the marriage right at issue in Anderson and Hernandez. While heterosexual oral or anal sex may literally be exactly the same act as homosexual oral or anal sex, opposite-sex marriage perhaps isn't exactly the same act as same-sex marriage. Drawing that analogy is the sticking point. Lawrence found little tradition of laws specifically prohibiting same-sex sodomy, suggesting the narrow same-sex characterization of the issue was itself ahistorical, and also found an "emerging awareness" today that these laws are unjust. (I tend to find the latter more persuasive than the former.) The problem is that you can't similarly appeal to either tradition or contemporary conscience in trying to characterize the marriage right gender-neutrally. There is a long tradition of an opposite-sex legal definition of marriage, and it remains the case that 49 states still define marriage that way--many reaffirming that definition through very recent enactments. That provides a way to distinguish Lawrence from Anderson on the basis of two factors that have long been recognized by the Court, even in Lawrence itself, as relevant in determining which unenumerated constitutional rights to recognize: tradition and conscience of the people.

As I said before, there is something too hasty to my mind about reading Loving, Zablocki, and Turner with historical blinders and extending the right to same-sex couples without considering either tradition or at least contemporary conscience. Those factors may not be determinative either, but they weigh against extension of the right to same-sex couples, at least today. The Court has also engaged in moral reasoning, most infamously in Roe and Casey in concluding that the abortion decision, as a matter of political philosophy, should be left to women. I say "infamous" because those decisions rested on little else and moral reasoning strikes me as the most problematic of the Court's factors because it takes the Court closest toward mere implementation of its members own personal political preferences. And while it might support same-sex couples, it is also quite malleable and could even be used by natural-law judges to discover a fundamental right of opposite-sex couples to have same-sex couples excluded from civil marriage, as some argue that fetuses should have a constitutionally enforceable right to life.
7.27.2006 4:58pm
jrose:
That depends on what you think the right at stake is. You assume it is a general right to marry; others assume it is a right, according to the traditional legal definition of marriage, to a "voluntary union of one man and one woman for life to the exclusion of all others. [...] I don't think it's very productive for each side to just say the right simply is x or y."
I do not assume there is a general right to marry and agree that an unsupported statement that the right is x or y is a weak argument. I instead empirically observe that the purpose of marriage is to encourage single people to settle down with their lifemate. Logic demands that once we have determined the purpose of civil marriage, we must apply Equal Protection fundamental rights analysis consistent with that purpose. There is no possible way that a law which forbade the infertile and elderly from marrying would be upheld in court under such an analysis. Given that result, I don't see how logic can lead you to any conclusion except same-sex marriage is also mandated.

Nonetheless, I agree the Court will not reach my conclusion given tradition and contemporary conscience. Tradition and contemporary conscience are illogical given the empirically observed purpose of civil marriage, but they will trump logic in this case.
7.27.2006 5:14pm
Stephen Clark (mail):
Reader55:

Does anyone seriously believe I would be able to successfully sue my local health club and force them to consolidate shower facilities using Brown as a basis?

No, but I do believe that if your local family court judge tried to deprive you of custody of your child solely because you and the child are not the same sex, you could successfully challenge that as sex discrimination, the policy would receive skeptical scrutiny, and you would probably win.

That seems far more on point than equating same-sex partners with toilet seats and shower stalls. I don't think I said Brown extends to sex; indeed, I have argued the opposite in print. But if separate-but-equal is acceptable in the sphere of sex, as I have argued it may be, then the separate opportunities afforded women and men must be substantially equal in all their tangibles and intangibles, or else they must be subjected to skeptical scrutiny. If your dress code requires men to wear business attire and women to wear breast-revealing burlap sacks, as in one notorious Title VII case, that is not a separate-but-equal dress code, and it is illegal. In contrast, if the facilities in the men's locker room and those in the women's locker room are fungible, the sex segregation doesn't trigger skeptical scrutiny, and custom provides a sufficient rational basis for the segregation.

But the abstract right to get custody of some same-sex child if you had been lucky enough to have one or the abstract right to marry some potential opposite-sex single are not fungible with the right get custody of your actual opposite-sex child or to marry your actual same-sex partner. Those opportunities are not substantially equal, particularly not when judged, as they must be, on the individual basis. As a result, those sex segregations trigger skeptical scrutiny, and the "potty analogy" fails--unless the women's shower has such a renown reputation for excellence in the community, such a wide network of alumni supporters, and such a large financial endowment that the newly constructed men's shower can't possibly compete with respect to all those intangibles. :)

What might survive separate-but-equal analysis is a system that allowed Grace to marry Peter but allowed Will to have a civil union with Peter. The question would be whether the legal opportunity afforded Grace and other women (to marry Peter) is substantially equal in all its tangibles and intangibles with the legal opportunity afforded Will and other men (to have a civil union with Peter). I think even that is a hard argument to make, given the reputational difference between marriage and civil union, but I could see a judge go either way.
7.27.2006 5:27pm
Stephen Clark (mail):
jrose

I do not assume there is a general right to marry and agree that an unsupported statement that the right is x or y is a weak argument. I instead empirically observe that the purpose of marriage is to encourage single people to settle down with their lifemate. Logic demands that once we have determined the purpose of civil marriage, we must apply Equal Protection fundamental rights analysis consistent with that purpose.

While I generally agree with that kind of purpose-based approach and it is certainly another factor here, I question your characterization of the purpose of marriage. I think it's more complicated than you're conceding. In what sense is this an empirical, as opposed to philosophical or normative, question? Do we survey married couples and ask their opinion, so that the purpose flows from contemporary social practice or understanding? Or do we seek to figure out what the legislators who enacted the nation's marriage laws understood the purpose of those civil marriage laws to be, in which you may find procreation to the be the correct answer in many states whose laws date back to the 19th-century? If the statutory purpose was originally understood to be procreation, can the social evolution of marriage and the subsequent commandeering (or, one might say, abuse) of the marriage law by opposite-sex couples (and Hollywood) for a companionship rather than procreative purpose change the legal purpose of a marriage statute without additional action by the legislature? Whose understanding of purpose counts when we're trying to define marriage as an unenumerated constitutional right, as opposed to trying to discern the purpose of a positive-law enactment? If the answer is contemporary social views (as opposed to legal tradition), does an existing marriage law enacted in 1896 with a procreative understanding (as is probably the case in New York) somehow violate the unenumerated right of even opposite-sex couples to have a civil marriage institution based on companionship? I think trying to define "marriage" in the unenumerated constitutional right in terms of the purpose of marriage is a very tricky endeavor. That's not to say it is an incorrect approach, just that the answer is not clear to me and is likely to be contestible. In that case, tradition and contemporary conscience may be entitled to decide the issue.

I agree, though, that courts would find a way to strike down a ban on opposite-sex marriage between people older than 60, even though those would be non-procreative, companionship marriages.
7.27.2006 5:47pm
Reader55:
No, but I do believe that if your local family court judge tried to deprive you of custody of your child solely because you and the child are not the same sex, you could successfully challenge that as sex discrimination, the policy would receive skeptical scrutiny, and you would probably win.

That seems far more on point than equating same-sex partners with toilet seats and shower stalls.


Which was never my intention. My original point dealt with Loving and the numerous posts which attempted to link that case with the recent decisions in Washington and New York, and the extent to which case law which deals with racial discrimination can be extended to cover sexual discrimination. I think my point that there are different categories of discrimination and consequently different categories of acceptable redress still stands. "Separate but equal" may well be an acceptable guiding principal for deciding cases based on sexual discrimination but it would be abhorrent to apply it to issues of racial discrimination.

As for gay marriage vis a vis the equal protection principal there is still a question in my mind, and I suspect in the minds of many others, as to whether or not banning gay marriage constitutes sex discrimination or rather discrimination based on sexual orientation. The group in question, as defined, isn't men or women in general. It's a classification that instead includes members of both sexes. Furthermore, if the defining characteristic in question is some immutable property, perhaps genetic, them it seems reasonable to me to point out that that excludes a majority of both sexes which lack that biological/genetic marker or characteristic.
7.27.2006 6:11pm
jrose:
Stephen,

I don't think determining the purpose of marriage is tricky at all. Your acknowledgement that the hypothetical ban on elderly marriage would be struck down is all you need to know.
7.27.2006 6:20pm
Reader55:
It seems unlikely that procreation is the only criteria--note the bans on polygamy and incestuous marriage.
7.27.2006 6:31pm
Stephen Clark (mail):
Reader55:
Sorry, I didn't mean to misread your earlier post.


As for gay marriage vis a vis the equal protection principal there is still a question in my mind, and I suspect in the minds of many others, as to whether or not banning gay marriage constitutes sex discrimination or rather discrimination based on sexual orientation. The group in question, as defined, isn't men or women in general. It's a classification that instead includes members of both sexes. Furthermore, if the defining characteristic in question is some immutable property, perhaps genetic, them it seems reasonable to me to point out that that excludes a majority of both sexes which lack that biological/genetic marker or characteristic.

Good question.

1. Same-sex couples are not allowed to marry, but opposite-sex couples are. So there must be a classification here based on something. The key question is whether it is a classification based on sex or on sexual orientation. The answer offered by the Hernandez concurrence--neither--cannot be correct.

2. My own view--and some disagree with me on this--is that the classification is not based on sexual orientation. Two straight men cannot marry. Two straight women cannot marry. But a gay man can marry a lesbian. Clerks do not ask marriage applicants if they are gay or straight and do not screen on that basis.

Overwhelmingly it is lesbian and gay men who want a same-sex marriage, but that proves only that excluding same-sex couples from marriage has a grossly disparate impact on the basis of sexual orientation. That doesn't make it a classification based on sexual orientation, neither facially nor as a matter of intent.

Establishing a sexual orientation classification here would require showing that the enacting legislature wasn't really motivated by opposition to same-sex conduct (which straight people may engage in, if even as an experiment), but that the enacting legislature was really trying to punish people for having a same-sex sexual orientation (i.e. the predominant inclination of one's sexual attractions toward members of one's own sex). But I find it unpersuasive to suppose that the target of the legislature was homosexual thoughts (sexual orientation), as opposed to homosexual conduct (holding hands, having sex, getting married, etc.).

Chief Judge Kaye in the New York case tried to get around this problem by simply merging orientation with conduct. Her view was that denying same-sex marriage punishes people who desire a same-sex marriage and that desiring a same-sex marriage is a component of sexual orientation. I disagree. Sexual orientation--which seems to have some sort of biological component--precedes social institutions, like marriage. Orientation refers to the direction of one's sexual attractions. It does not refer to some innate compulsion to enter into a civil marriage. Orientation is probably immutable or at least largely beyond one's volitional control. Saying "I do" is not. It is conduct, and that, not orientation, is the legislative target in banning same-sex marriage.

So the classification, in my view, is not based on sexual orientation. But there is a classification, and it must be based on something, which is where sex comes in.

3. At its most basic level, the classification is based on sex because when a couple applies for a marriage license, the government ascertains the sexes of the two applicants, and rejects the application only if the sex of one is different from the sex of the other. Sex is the sole, but-for cause of the denial of the marriage license and the exclusion from civil marriage. Gay or straight, people cannot get married if their sexes are the same. That is logically indistinguishable from the case of a family court denying a father custody of his daughter because their sexes are not the same. Will and Grace may both want to marry Peter, but the law doesn't allow Will to do so solely because Will and Peter are male.

In your question you do something that is very common but that leads to misunderstanding. You shift from a focus on the trait, sex, which is a but-for cause of the denial, to a focus on groups, men and women. Doing that leads you to question whether sex discrimination exists if you don't see that a law creates a simple male-female hierarchy. But that shift does nothing to change the fact that sex, the trait, remains the but-for cause of the denial of opportunity. But what's wrong with the group-based focus, is seems natural?

First, neither the equal protection clause nor disparate treatment doctrine under Title VII is group-based. The Court has said on a number of occasions that they are individual rights, which means they are trait-based. They prohibit discrimination based on x trait, not discrimination against an enumerated list of groups. (The same, group-based focus leads to the mistaken belief that Title VII doesn't prohibit reverse discrimination against white or men, when the Court has made clear that it applies to all race or sex discrimination.) Marxism-inspired scholarly theories that view discrimination in terms of groups and power differentials have not been embraced by the Court under equal protection. Our equal protection law is formalistic, trait-focused, and conventional. It is governmental classification based on a personal trait that one cannot change that triggers the need for heightened scrutiny. That's why, as I said earlier, the Court subjects affirmative action to strict scrutiny even though it is designed to achieve group-based parity, not subordination of any group. The Court asks only whether race is being used, not whether the policy is benign or oppressive. There's plenty of room to criticize that view, but that's how equal protection law is currently constructed.

Second, you make two characterizations in your question that I would challenge. Paraphrasing one of them, you say the exclusion of same-sex couples from civil marriage affects only a small minority of both sexes (presumably, you mean gay men and lesbian women). That's simply not true. No one--gay, straight, bisexual, asexual, or whatever--has the legal right to marry a person of the same-sex under these laws. Straight men and women may not want to exercise that right, but that's irrelevant. All men are denied the right to marry a man, and all women are denied the right to marry a woman. Viewing the classification as affecting on gay men and lesbians reflects the distracting influence of the sexual orientation worldview. The challenges are about the right of everyone to have the option to choose a same-sex marriage, whether a majority of women and men have any desire to exericse that option.

The second of your characterizations is that "[t]he group in question, as defined, isn't men or women in general. It's a classification that instead includes members of both sexes." Actually, there are two classifications, not one. Women are subjected to a gender-role mandate: they may not have a woman spouse and may only desire a husband. Men are subjected to a different, though parallel, gender-role mandate: they may not have a male spouse and may only desire a wife. If you separate these two, complementary gender-role mandates, the sex discrimination is obvious. Consider: women may be only nurses; men may be only doctors. Two gender-role mandates, vaguely parallel, and tied together. We can even try to make it sound like a single standard: No one may have a medical job traditionally held by people of the opposite sex. That construct is logically identical to saying no one may have a marry a person of the same sex, which also combines a male gender-role mandate with a female gender-role mandate. We rarely see this, but that doesn't negate the but-for nature of sex and the fact that gender-role mandates are being enforced.

Most of the Supreme Court's cases involve only enforcement of a gender-role mandate against one sex or the other, but not both simultaneously. The JEB and VMI cases come closest to a dual gender-role mandate. In JEB, striking down sex-based peremptory challenges of jurors, the Court noted that it would make no difference that the prosecution struck one sex and defense simultaneously struck the other, so that the end result would still be a gender-balanced jury. The stereotyping involving in strikes by both sides were impermissible, even if the overall result at the end of the day look like group-based gender equality. In VMI, the state proposal would have forbidden men from attending VWIL and continued to forbid women from attending VMI. Substitute "have a husband" for "attending VWIL" and substitute "have a wife" for "attending VMI" and you have exactly the issue in same-sex marriage challenges: the deliberate steering of women and men into separate and supposedly parallel opportunities. The Court found the proposal unconstitutional.

As I have said before, VMI leaves one route to upholding the exclusion of same-sex couples from marriage. If women get to marry men, then men have to be at least allowed to have civil unions with men, assuming civil unions would be substantially equal to marriage under the separate-but-equal doctrine. Saying women get to marry men, but men have no way to become the legal next-of-kin of men is logically equivalent to saying men get to go to VMI, but women have no state-supported opportunity for military-type education. And the inferior VWIL was not a sufficient remedy under separate but equal. Would civil unions be? Good question.

Lastly, none of this depends on any showing that same-sex attractions are genetic or biological. That's another way in which the sexual orientation worldview distracts. This is a sex discrimination theory. The courts have considered hundreds of sex discrimination theories. Nowhere is there any indication that a woman (or man) can be denied an opportunity because of sex unless she (or he) can show some genetic or biological basis for the desire to exercise the opportunity. Women, for example, do not have to show that their desire to be a doctor instead of a nurse is a result of some genetically caused "inversion" of their "occupational orientation." They are women; they want to be doctors; if the law says they can't because of sex, strict scrutiny applies, and the law is doubtless unconstitutional. Here, Mr. A (who for all we know is heterosexual) is male; he wants to marry Mr. B; the law says he can't because of sex, why does he need to show that his desire to marry Mr. B is genetically or biologically induced? This isn't based on the idea that sexual orientation is immutable. It rests on the idea that it is presumptively unconstitutional to deprive one of an opportunity solely because of one's sex.
7.27.2006 7:26pm
Zoe E Brain (mail) (www):
As a response to Guest (first comment above) there is a Texas Court of Appeals (intermediate appellate court) decision that a person forever remains the sex they were at birth.

Which is tricky for guys born with 5-alpha-reductase deficiency, who appear as normal females at birth, but whose testes descend at puberty under the influence of DHT.

It's also tricky for a lot of Intersexed people. The North American Intersex Society is able to prove that about 1% of the population is neither wholly male, nor wholly female. But only about 1 in 1000 have real problems from that.

As regards transsexualism, this is now commonly being referred to as CNI - Congenital Neurological Intersex, or Harry Benjamin's Syndrome.

From the Deakin Law Review :
Re Kevin -- Significant findings of Justice Richard Chisholm in respect of the expert medical evidence in that case as to the causation of transsexualism and as strongly affirmed by the Full Court on appeal

At paragraph [247]: 'In my view the expert evidence in this case affirms that brain development is (at least) an important determinant of a person's sense of being a man or a woman. No contrary opinion is expressed. All the experts are very well qualified. None was required for cross-examination, nor was any contrary evidence called'.

At paragraph [248]: 'In my view the evidence is, in essence, that the experts believe that the brain development view is likely to be true, and they explain the basis for their beliefs. In the circumstances, I see no reason why I should not accept the proposition, on the balance of probabilities, for the purpose of this case.'

At paragraph [252]: 'The traditional analysis that they are "psychologically" transsexual does not explain how this state came about. For example, there seems to be no suggestion in the evidence that their psychological state can be explained by reference to circumstances of their upbringing. In that sense, the brain sex theory does not seem to be competing with other explanations, but rather is providing a possible explanation of what is otherwise inexplicable'.

At paragraph [253]: 'In other words (as I understand it) the brain of an individual may in some sense be male, for example, though the rest of the person's body is female'.

At paragraph [265]: 'In my view the argument in favour of the "brain sex" view is also based on evidence about the development and experience of transsexuals and others with atypical sex-related characteristics. There is a vast literature on this, some of which is in evidence, and I can do no more than mention briefly some of the main points'.

At paragraph [268]: 'It seems quite wrong to think of these people as merely wishing or preferring to be of the opposite sex, or having the opinion that they are'.

At paragraph [270]: 'But I am satisfied that the evidence now is inconsistent with the distinction formerly drawn between biological factors, meaning genitals, chromosomes and gonads, and merely "psychological factors", and on this basis distinguishing between cases of inter-sex (incongruities among biological factors) and transsexualism (incongruities between biology and psychology)'.

At paragraph [272]: 'In my view the evidence demonstrates (at least on the balance of probabilities) that the characteristics of transsexuals are as much "biological" as those of people thought of as inter-sex'.

At paragraph [136]: 'I agree with Ms Wallbank that in the present context the word "man" should be given its ordinary contemporary meaning. In determining that meaning, it is relevant to have regard to many things that were the subject of evidence and submissions. They include the context of the legislation, the body of case law on the meaning of "man" and similar words, the purpose of the legislation, and the current legal, social and medical environment. These matters are considered in the course of the judgment. I believe that this approach is in accordance with common sense, principles of statutory interpretation, and with all or virtually all of the authorities in which the issue of sexual identity has arisen. As Professor Gooren and a colleague put it:-

"There should be no escape for medical and legal authorities that these definitions ought to be corrected and updated when new information becomes available, particularly when our outdated definitions bring suffering to some of our fellow human beings".'
Those of us who are Transsexual, Intersexed, or both, have immense problems in our daily lives. Often the problems are medical, but just as often they are legal.

No discussion of "same-sex" marriage can be complete without discussing the very definition of male and female. For those born "in between" that's difficult. For those who, like the men with 5-alpha-reductase-deficiency, start looking like one and through a natural process transition to the other, it's even more so.

For those who are forced to transition artificially via medical intervention, or have their minds slowly rot and the brains become more dysfunctional due to the brain-hormone mismatch, it's worse yet again.
7.28.2006 1:59am
Zoe E Brain (mail) (www):
Just to clarify : the above has no connection to sexual orientation. There are gay transmen, and lesbian transwomen. In Texas, a gay transman would be allowed to marry his gay male partner, as he'd be deemed female (despite his beard, bald patch etc)
Similarly a lesbian transwoman would be allowed to marry her lesbian girlfriend in Texas, as she'd be legally male.

This is no hypthetical, there have been several cases of exactly this happening.

But all this only applies to a tiny minority of people, right? Not as such. The INLA figure of 1% of people being intersexed is conservative : other figures say 1.7%.

As for transsexuals, according to evidence gathered by Professor Emerita Lynn Conway, the prevelance is about 1 in 2500 :
In this investigative report we calculate an approximate value of the lower bound of the prevalence of male-to-female (MtF) transsexualism in the United States, based on estimates of the numbers of sex reassignment surgeries performed on U.S. residents during the past four decades. We find that the prevalence of SRS is at least on the order of 1:2500, and may be twice that value.
That is, those who not only show symptoms but have actually had surgery to relieve them is 1 in 2500.

The trouble is, this is all so embarressing to everyone, and the medical evidence often so new, that no-one wants to know. Medical conditions get confused with moral issues, and people die as the result.

From Medical Therapy and Health Maintenance for Transgender Men: A Guide For Health Care Providers:
Untreated transsexual patients have suicide rates as high as 20% while treated transmen have suicide rates of less than 1%.89,90 Interestingly, while in the general population, cisgender females attempt suicide more than twice as frequently as cisgender males, studies of transsexual patients show a higher number of suicide attempts in transgender females rather than transmen.91 It appears that in this psychological variable, transsexual women more closely resemble cisgender women and transsexual men more closely resemble cisgender men.

89 Lundstrom B, et al. "Outcome of sex reassignment surgery." Acta Psychiat. Scandinavia. 70:289-294. 1984.
90 Kuiper, M and Cohen-Kettenis, P. "Sex reassignment surgery: A study of 141 Dutch transsexuals." Archives of Sexual Behavior. 17(5):439-457. 1988.
91. Lundstrom, B, et al. "Outcome of sex reassignment surgery." Acta Psychiat. Scandinavia. 70:289-294. 1984.
Sorry for the quotes, the references, the hyperlinks, but extraordinary claims require extraordinary evidence.
7.28.2006 2:13am
Chimaxx (mail):
RBG:

Slightly off topic, I suppose, but I'd be interested to know if anybody on this thread read this article in the latest issue of the Harvard Journal of Law and Public Policy. It raises an argument against same-sex marriage--or more precisely, against expanding the current institution of marriage to include same-sex couples, as opposed to the possibility of creating a different though functionally equivalent institution--that I had not previously considered.

In brief, the author argues from institutional economics that marriage, as an institution, has evolved a set of rules to accomodate the competing incentives of males and females in terms of both mutual interaction and procreation....

Certainly, this argument would carry much greater weight in the pre-no-fault-divorce era, but it has at least the air of plausibility to it. Am I missing something?


I took tthe time to read the articlee, and I see a lot of sleight-of-hand. It reads like the work of a writer who had the conclusion in mind and searched out the evidence to support it, because there's a lot of slippery changing of definitions and bold assertions that don't stand up to scrutiny.

For instance, early in the article in the article he writes "Same-sex relations are the same as heterosexual relations, the argument goes, and therefore should be regulated in the same way. In this context, "the same" usually means that both types of relationships are based on love." Now while "Love makes a family" makes a good poster and bumper sticker, I'm not sure anyone takes it as a serious argument. One can feel love for the anonymous stranger one has sex with once and never sees again--and certainly there is not intention of marriage, whether the coupling is heterosexual or homosexual. They are the same in that both are based on commitment.

In the section "Introducing Same Sex Marriage" he starts by trying to clarify the differences between the different sorts of couples. His initial observations come, as he puts it, from "an early study on
couples." But the age of the study (1983) makes any conclusions it makes questionable and problematic here--not because of any inherent bias in older studies, but because the times were so different. In 1983, no-fault divorce was still new, and not only did gay couples have no way of even conceiving of the possibility of state support or sanction of any sort for their relationships, their sex acts and relationships were still considered illegal in many states. In short, the economics of both heterosexual and homosexual relationships were so different at that time, that, if you are arguing from the standpoint of the economics of relationships, it is difficult or impossible to draw conclusions from the behavior of people in relationships then that have any validity to relationships now..

And then he turns to a more contemporary study, and I'll quote it at some length, because there are a number of issues that arise from it:
In a study on same-sex registered unions in Sweden and Norway, researchers found a number of differences between gay and lesbian unions. Surprisingly, gays were almost twice as likely as lesbians to be married. Gay men were much more likely to have wide age differences in the couple, while lesbians were most likely to be of the same age. Gay men were more educated, and more likely to not have been in a previous heterosexual marriage. Most significantly, they found that gay marriages had dissolution rates fifty percent higher than heterosexual couples, and lesbian marriages had dissolution rates three hundred percent higher. The lesbian rate of separation was twice that of gay couples.


Okay, first thing to note: If you look at the footnote, this is an unpublished study, so it is hard to evaluate some of its assertions. One thing I would want to know: When determining divorce rates, does he include the time that same-sex couples were together before same-sex registered partnerships were available to them? That is, Sweden has only offered registered partnerships since 1995. If a couple was together since 1983, registered their partnership in 1996, and split in 2003, would they count as having been together for 20 years or seven, when the author is establishing divorce rates? Since the paper he relies on is unpublished, we have no way of knowing, and this author doesn't tell us.

Another issue he notes here--"Gay men were much more likely to have wide age differences in the couple"--undercuts one of the assumptions he makes three pages later, when he asserts that divorce law is inadequate to deal with same-sex marriages: "Third, given that same-sex relationships are often composed of two financially independent individuals, there will be pressure for even easier divorce, as the problem of financial dependency will be reduced." But do we believe that if most gay male marriages show a wide disparity in age, are these really marriages in which there are two financially independent individuals? Isn't it more likely one financially independent partner and one financially dependent partner just starting his career? And how do divorce courts manage now with divorces of heeterosexual couples where both are financially independent? Do they go into a tizzy and break down like some computer faced with an illogical assertion on the original Star Trek series ("Abort! Abort!"), or do they apply the law as it stands to the individuals in court as best they can? Why would the relative financial dependence or independence of samer-sex couples change that?

Along those lines, he writes

There is another problem that arises in every same-sex marriage: children receive only one type of gender influence from their parents. In addition to the uncertain direct effects of same-sex parenting on children, this situation may give rise to difficult contractual issues. No doubt many of these families will seek out role models for their child from among the other sex, perhaps from the biological parent. These third parties are likely to play more important roles in the context of same-sex marriage, and with this increased importance may come increased legal rights of the third party.32 (And he snarks in the footnote: "Notice this issue does not arise with traditional adoption.")

He asserts that same-sex parenting is some sort of special case in this regard, but is it? Children raised by a single parent have only one type of gender influence from their parent. Do third parties they seek out have increased rights of parentage? So why would an issue arise here that does not arise in traditional adoption?

He picks up this tr=hread again two pages later:
Same-sex divorce will raise novel legal problems. For instance, if third parties do become more involved in parenting in same-sex marriages, will they face child support responsibilities upon divorce? Will sperm or egg donors to same-sex marriages acquire legal rights and responsibilities as parents? Did the non-biologically connected, but legally married, spouse consent to be a parent or just consent to have sex? What are the rights of a child with more than two parents? Which legal parent has the right to decide where to live? Do biological ties deny rights to legal parents?

These all sounds scary, but why are any of them novel? if a family friend or grandparent picks up parenting responsibilities for an absent (say, a soldier overseas) or lazy spouse now, does he or she face child support payments if the married couple divorces? Do sperm or egg donors to mixed-sex marriages acquire legal rights and responsibilities as parents currently? Does a step-parent consent to be a parent or just to have sex? If a couple marries and one adopts the other's children from before the marriage, do the non-biological parent's legal parentage rights evaporate should the couple divorce? What about the gender of the marriage partners makes ANY of these issues novel or unique?

In a long section, he details what he sees as having been the inintended consequences of no-fault divorce. But how many of those consequences were driven by no-fault divorce and how many by the concurrent pushes for feminism and women's legal and financial equality? Once married women were legal equals with their husbands rather than legal dependants who were barred even from owning property in some states and once they began having real earning power in the workplace, wasn't no-fault divorce inevitable?

Finally, in his conclusion, he calls for a separate institution for same-sex couples as a workable solution. but that brings us back to Sweden and Norway. In his earlier paragraphs, when he is holding these countries up as examples of the dangers of same-sex marriage, he glosses over the fact that same-sex couples have registered partnerships rather than marriage in these countries. But it becomes important here. Once you create this other institution, mixed-sex couples call for access to it too, and many choose it over marriage. I have trouble believing he never realized this, and thus I have trouble he is completely honest when he makes this suggestion.
7.28.2006 3:40am
logicnazi (mail) (www):

Andersen reads these cases [Turner v. Safley etc..] as linking marriage to procreation. That's not the only way to read the precedents and it doesn't make much sense of the modern conception of marriage, but as an interpretation of doctrine it's defensible and perhaps the best view.


Have you read Safley? This isn't even close to a defensible interpratation. The deciscion turns on the idea that marriage is a fundamental right even if it has no application to child-rearing, time with children or even the possibility for conjugal relations.

You might try and unconvincingly justify the result of Safley by saying that a prisoner may one day be released and thus the child rearing provisions apply. However, this would require accepting the absurd proposition that the Safley deciscion only applies to prisoners with a possibility of parole despite the absence of any discussion of this issue in the opinion. Besides, it ignores the clear text of the deciscion. Just go read the deciscion people . If you want to tie the right to marriage to reproduction or sex you simply must overturn this deciscion.

I find it truly amazing that courts can read Turner v. Safley as having nearly no implications beyond it's application when the prison context relevant to Safley should be where government power is at it's height.


The court explains -- unlike the New York court — that the issue is not whether excluding gay couples from marriage advances these interests in any way (the exclusion of gay couples does not plausibly advance them) but whether including straight couples in marriage advances these interests (it clearly does).



This conclusion flies squarely in the face of Turner v. Safely as well as Zeblocki v. Redhail. If this reasoning is valid any denial of marriage to anyone but traditional marriages between people who are able to procreate would be valid. Certainly banning prisoners from getting married (as in Safley) would be valid as the legislature has a rational interest in letting people who can reproduce and raise kids together get married. Similarly with denying deadbeat dad's the right to marry or hypothetically post-menapausal women.

Either this description is misleading or this deciscion is an obvious political dodge. It is a perfectly respectable position to think that the constitution doesn't guarantee a right to marriage or only guarantees one for procreative relationships. However, it is totally absurd to think you can hold this view without overturning Safley and other contrary cases.
7.28.2006 8:57am
jrose:
Saying "I do" ... is conduct, and that, not orientation, is the legislative target in banning same-sex marriage.
The need for a lifemate (saying "I do" with or without state recognition) is an innate part of the human condition - not just conduct. The legislation (denying state recognition of "I do") targets gays.
Gay or straight, people cannot get married if their sexes are the same. That is logically indistinguishable from the case of a family court denying a father custody of his daughter because their sexes are not the same.
Thought experiment for both custody and marriage. Assume a gay man (XY) is able to magically change to a woman (XX - not transgendered) but remains gay. Will she be able to marry her lifemate after the change? Will she able to adopt her daughter after the change? The answers are "No" (her lifemate would now be a woman because she is still gay) and "Yes" respectively.

If instead the man is able to change is sexuality, but not his gender, the answers become "Yes" and "No". For marriage, it is sexuality discrimination. For custody, it is sex disrimination.
Mr. A (who for all we know is heterosexual) is male; he wants to marry Mr. B; the law says he can't because of sex, why does he need to show that his desire to marry Mr. B is genetically or biologically induced
This example is at the heart of the disagreement. You think that marriage is separate from romantic, lifemate pairing. I think the two are inextricably linked. If anything, the case for sex discrimination in marriage is weaker than it is for sodomy or statutory rape (it is more likely that a straight man will have some sexual relations with another man), and yet I find it totally unpersuausive that any court would find gender discrimination in Lawrence or Limon.
7.28.2006 10:33am
anonyomousss (mail):
suppose people were forbidden from signing employment agreements with natural people unless the two natural signatories were of different sexes. this would obviously be blatant, unconstitutional sex discrimination, though it might also be unconstitutional for other reasons. it would plainly be no defense to say that men and women were being treated the same: each may only employ (or be employed by) a person of the opposite sex. the restriction of marriage to opposite-sex couples is exactly analogous.

perhaps we might say that it's different because the opportunities given to the two sexes are not substantially similar: the opportunity to be hired by (or hire) a man is not equal to the opportunity to hire (or be hired by) a woman, if only because there are more male employers. but that only strenghtens the pro-ssm argument here. nobody regards the option to marry a man as equivalent to the option to marry a woman.
7.28.2006 2:20pm
jrose:
anonyomouss,

Please read my "thought experiment" in the post (7/28, 9:33 am) that immediately precedes your post of 7/28 at 1:20 pm. That thought experiment demonstrates why your same-sex employment prohibition is gender discrimination, while a same-sex marriage prohibition is not.
7.28.2006 3:14pm
On Lawn (mail) (www):

Just some quick comments on some of the re-occuring themes here.

On Immutability:

Dale makes a distinction between the immutability of homosexual acts and orientation, and ponders if the court already recognizes such reasoning. I believe there is a component of immutability that the court understands that is vacant in application to homosexual orientation.

I believe Dale's distinction is inherently difficult to make. What about sexual orientation is discernable aside from someone's actions or re-actions to stimuli? If sexual orientation was identifiable by some physical characteristic, then such a distinction would be possible. However such a distinction is not available.

Just to show how the ability to make a distinction aside from observing behaviour I'll use the example of race. A person's race recognized as immutable. Not as a condition of skin color, or a condition of physical capacity. Skin color in and of itself might be changable based on choice or even lifestyle influences of how much sun or UV rays they recieve. In Loving, race was recognized as a heritage, and who are ancestors are is not changable or even choosable by ourselves. It may or may not be physically discerned but it cannot be faked by behaviour.

So I find it doubtful that the distinction offered by Dale is useful, rational, or follows precident of identity sub-classification.

On the elderly:

Lets take as a premise that marriage is about encouraging responsible procreation. Without the ability to procreate there is no need for marriage.

Lets then say that infertile couples, including the elderly, are allowed to get married. The question is, does this invalidate the premise?

There are two ways to reconcile the contradiction:

1) No other group of individuals that are unable to procreate are given the same exemption. So obviously there is some discrimination in favor of a selected group. Hopefully there is a reason for the preferential treatment.

2) The premise is false and there are reasons just as compelling as procreative capacity that others might qualify for.

From what I can surmise, it is either one of the two but not both. If it is the second, there is no reason for the first. Any exemption with reasoning sufficient for #1 would preclude the use of #2. The preference is rational and limited to those that qualify.

Its been clear to me from the begining of this debate that infirmity from age, and infertility are disabilities. Do we in this country find the disabled a class to discriminate in favor of? Things that are considered natural capacities are actively compensated for when people exist that do not have those capacities. We put brail on elevators so the unseeing can still read the sign. We build ramps to let those that cannot walk roll up in a wheelchair. And, we even set aside special and preferred parking spaces for people the handicapped.

If this qualifies as reasoning sufficient to show why the infertile are given opportunity for marriage, then for the same exemption to apply we must find homosexuality to be a handicap also. Either that or find some other reason to prefer homosexuality above other arrangements that are not allowed to marry. But that is discrimination in favor of homosexuality, not equality, that is being argued for.
7.28.2006 3:44pm
jrose:
On Lawn: Lets then say that infertile couples, including the elderly, are allowed to get married. The question is, does this invalidate the premise (marriage is only for procreation)?
I agree with you such a scenario does not invalidate the premise. However, consider a law where the infertile and elderly are not allowed to marry because the majority desires no exceptions to procreation. Would such a law be found Constitutional? Of course not (having nothing to do with the elderly and infertile being disabled). And thus, we must conclude the premsie is false.
7.28.2006 4:20pm
Stephen Clark (mail):
jrose:

Thought experiment for both custody and marriage. Assume a gay man (XY) is able to magically change to a woman (XX - not transgendered) but remains gay. Will she be able to marry her lifemate after the change? Will she able to adopt her daughter after the change? The answers are "No" (her lifemate would now be a woman because she is still gay) and "Yes" respectively.

I don't follow your reasoning, and (no offense) I think it is because you have a hidden flaw in your comparison. While you specify the sex of the child (daughter), you never specify the sex of the lifemate. Since you begin with a gay man who has a lifemate, I assume that lifemate is male (because your main character starts out gay). So when his sex is magically changed to female, the answer to whether he can marry his lifemate (a man) is "Yes," not "No." They are now an opposite-sex couple. And the scenario is indistinguishable from your custody example. It is confusing, however, for you to make the lifemate male and the daughter female. That makes the comparison harder to see.

Alternatively, and what I suspect you actually have in mind, is this: The gay man has a male lifemate and a daughter. He can't marry the lifemate (no same-sex marriage) and he can't get custody of the daughter (no opposite-sex custody). Then you change his sex to female. You correctly say he/she can now get custody of his daughter (same-sex custody). But if his lifemate is still the same man, your primary character--who is now a woman--can marry this man (opposite-sex marriage). I suspect what you're thinking, however, is that your primary character becomes a woman and she can't marry a female lifemate. But that destroys the thought experiment, because it involves you changing the sexes of both the primary character and the lifemate, while not similarly changing the daughter to a son in the custody hypo. By allowing the sexes of two people to change in the marriage portion, you invalidate the thought experiment because you are no longer holding everything but the sex of the primary character constant, as you do in the custody portion of the experiment. This all gets very tricky, but proper application of a "but-for" test of causation requires that you hold everything constant except the one factor that you're examining--here the sex of your primary character. Changing other things too, like the sex of the lifemate, invalidates the "but-for" test.

At any rate, all you're doing is replicating the equal application defense without saying so. That defense has been rejected in Loving and arguably in JEB. Your logic, however, would dictate that Loving also involved only sexuality discrimination, not race discrimination, and that a ban on interfaith marriages would involve only sexuality discrimination and not religious discrimination. The latter two can't be race and religious discrimination, respectively, and the former not be sex discrimination because all three are analytically identical, differing only in that the respective traits are race, religion, and sex.

What explains your struggle here with these hypos, I think, is that we don't have distracting constructs paralleling "sexual orientation" in the case of interracial and interfaith marriages, so we readily see the race and religious discrimination. We don't see the sex discrimination in the same-sex case because the "sexual orientation" construct distorts our perspective and makes us intuitively think that extension of the very same logic to sex is somehow faulty, when it isn't.

Of course, this applies to the marriage-custody comparison as well. The custody example is analytically identical to the marriage example--two people legally barred from associating based on a comparison of their respectives sexes. You can deploy the equal application defense in the custody example exactly the same way you deploy it in the marriage case: No one gets custody of a child of the opposite-sex. I don't believe a court would deploy the equal application defense there, which makes its deployment in the marriage situation illegitimate. But what is really behind the difference, in my view, is that there is no parallel "parental orientation" construct to keep us from seeing the sex discrimination in the custody situation. Or any "occupational orientation" construct in anonyomousss's employment contract example, or in any of a whole range of situations in which someone might try to restrict opportunities based on the sex of one person or thing being the same as or different from the sex of another person or thing. How about a ban on contracts for the sale of goods between parties of the same sex? Is that sex discrimination or "contractual orientation" discrimination? If a ban on same-sex sales contracts is sex discrimination, which I believe it to be, how exactly is a ban on same-sex marriage contracts not sex discrimination?

At base, what you're employing is a form of gay exceptionalism, which has historically harmed the gay-rights movement, although you use both pro-gay and anti-gay forms of it. By gay exceptionalism, I mean the widespread phenomenon, apparent even in the recent marriage cases, of courts failing to apply ordinary, generally applicable legal doctrines to cases involving gay-related subjects. First, you employ antigay exceptionalism through your willingness to subject sex discrimination claims in marriage cases to the equal application defense, even though you would not generally endorse that defense either with respect to other traits (i.e., you'd see discrimination against interracial, interfaith, different-age marriage as race, religion, and age discriminaton without any equal application defense) or with respect to other forms of sex discrimination (discrimination against same-sex parents in custody, same-sex job applicants, same-sex buyers or sellers, all of which you'd see as sex discrimination without any equal application defense). If you let the antigay exceptionalism go and give up the equal application defense along with it, discrimination against same-sex couples in marriage law is sex discrimination.

But you also engage in pro-gay exceptionalism, which I find intellectually objectionable even if it doesn't actually harm gay people. You do this, in my view, by insisting that the exclusion of same-sex couples from marriage is "sexual orientation" discrimination, while, again, you would not see things that way either with respect to other traits (discrimination against interracial, interfaith, or different-age couples would not be based on "racial orientation," "religous orientation," or "age orientation") or with respect to other forms of sex discrimination (discrimination in custody against parents of the same sex as their children, against same-sex job applicants, and against same-sex buyers or sellers would not be discrimination based on "parental orientation," "occupational orientation," or "commercial orientation"). Now, it is perfectly possible to say the exclusion of same-sex couples from marriage is both sex and sexual orientation discrimination. But, as I said, I don't find the pro-gay exceptionalism in viewing the discrimination as "sexual orientation" discrimination to be intellectually satisfying. I think it threatens to blur the logic and that can have the effect of harming gay people. The concurring judge in the New York case, for instance, saw that sexual orientation was not the but-for cause of the marriage discrimination and rejected the sexual orientation claim. But the distorting effect of the sexual orientation construct also kept her from seeing the sex discrimination, so she ended up taking the untenable position that it was neither sex nor sexual orientation discrimination. And she provided the critical, final vote for the majority holding.

And, yes, you are correct. I do not believe that we have any genetic or biological compulsion to participate in the particular socio-legal construct that happens to exist in 21st-century Western culture today. I stipulate, for arguments sake (because we lack sufficient data) that sexual attraction to a particular gender as well as the urge for pairing are genetic or biological. You're conflating that with the preference for expressing that pairing within an existing state-law construct. I fail to see how people are hard-wired to have some compulsion toward a state-law insitution that post-dates the vast majority of human evolution. (I reject utterly the natural law claim that marriage has always existed as part of the fabric of the universe or as a divine creation--because I reject natural law theory itself as without any legitimacy.) I think you're just doing what advocates must do when they insist on viewing all gay issues through a sexual orientation lens. They have to conflate or ignore the orientation-conduct distinction in order to make the sexual orientation regime work. I just don't buy it. Being gay and getting legally married are analytically distinct, and only the former has the likely genetic or biological foundation.
7.28.2006 4:25pm
BobN (mail):

RBG: One would think that, after Eugene's thoughtful post a few days back about the problem with the "everyone should have the right to marry the person they love" argument, commenters would at least think twice about asserting positions that lead logically to results they might not endorse. But no, the general trend seems to run toward uttering inanities such as, "In the flesh and blood world, I should have the exact same rights as my sister. If she can marry Fred, I should be able to do so, as well," and thinking the issue has thus been settled.


Sorry for my inane question. Can you explain what is inane about it? Neither my professional training nor my (sadly diminished) mental capacities grant me the ability to frame the arguments as elegantly as some other posters here without a great deal of effort (unwarranted, I think, given the transitory nature of web posts). What exactly is inane about a man (me) expecting the same right (I believe the WA constitution uses the term privilege) as every woman in the state?

And as for EV's "thoughtful post", I didn't find it particularly thoughtful at all. In common conversation, or in the case he cited, in political propaganda, the phrase "the right to marry the person you love" is broadly understood. When mom is lying on her deathbed and gazes into her son's eyes, saying, "You've been a good son. I hope you find someone to love who will love you as much as you deserve to be loved," the nurse doesn't pop her head around the corner and say "what if he loves his buick or a BEAGLE!??!" Only when the issue is same-sex marriage, do people pour forth a parade of stupidities and absurdities.

P.S. I only used the example of my sister because I hoped to avoid the "aha!! what if that anonymous woman wanted to marry Fred, your brother!??!" absurdity. My sister's range of marital possibilities excludes prospects tainted by consanquinity, no?
7.28.2006 4:35pm
BobN (mail):

Stephen Clark: At any rate, by 1967, 2/3 of the states had authorized interracial marriage, which is good evidence of contemporary conscience or, in the words of Lawrence v. Texas, an "emerging awareness" of the unjustness of the ban at issue.


First of all, thanks for your extensive and sensible posts.

Isn't it important to consider two points. One, you're comparing a SCOTUS decision to a state court decision. The position of the WA court (and every state court) is analagous to those of the various state courts which considered anti-miscegenation laws long before SCOTUS took up Loving. Second, that 2/3 authorization surely included MANY states wherein the courts struck down bans on interracial marriage, no (perhaps even most of them)? There was no societal consensus in favor of interracial marriage. Opposition to it was far higher than today's opposition to same-sex marriage.
7.28.2006 4:41pm
On Lawn (mail) (www):
Would such a law be found Constitutional? Of course not.

A constitutional challenge would be different than one of reason. I was speaking to the latter. I doubt that one need appeal to the constitution when our sensibilities are what seems to rule this matter. Convincing the populace to stick it to the handicapped because gays can't get married would be immediately percieved as vindictive. It would not fly.

Also, I don't believe you've worked through the constitutional challenge enough to provide that it does invalidate the premise. You'd have to present your constitutional case in order to discern such a matter.

For instance, above it was noted that age is not a predictor of infertility. Even if you wish to apply a criteria only to women (for which a constitutional challenge would be interesting to watch) some 40 year olds experience menopause, and others into their 50's. What basis, appealing to reason and not the constituion, could you make to enforce such a law? With what regulation based on public information would the government be able to determine infallibly that they are infertile? If it based on private, or prejudicial basis then the constitutional challenge would follow.

But that is helping you make your argument for you. I really shouldn't do that. It is up to you to make that case. As far as it looks from my angle, reason #1 holds, does not require constitutional recognition of priveledge of the handicapped, and explains the contradiction.
7.28.2006 4:44pm
Stephen Clark (mail):
BobN: You're welcome.

Isn't it important to consider two points. One, you're comparing a SCOTUS decision to a state court decision. The position of the WA court (and every state court) is analagous to those of the various state courts which considered anti-miscegenation laws long before SCOTUS took up Loving. Second, that 2/3 authorization surely included MANY states wherein the courts struck down bans on interracial marriage, no (perhaps even most of them)? There was no societal consensus in favor of interracial marriage. Opposition to it was far higher than today's opposition to same-sex marriage.

Great observations!

To take them in reverse, actually, no. I believe only one state court struck down an interracial marriage ban before Loving v. Virginia. That was the California Supreme Court in Perez v. Sharp (1948). All the other repeals of interracial marriage bans were enacted by legislatures. So, yes, I think it is fair to say a consensus emerged, at least outside the South. In a comparison that might soothe advocates for same-sex marriage, many state courts rejected constitutional challenges to interracial marriage bans before Loving.

The one lingering problem, from the perspective of a Court looking to identify the contemporary conscience of the people, is that the consensus against interracial marriage bans was not completely national. Every southern state still had a ban in 1967 and virtually no non-Southern state did. Is it legitimate to recognize a fundamental right when you have a clear regional disagreement? I don't know.

It is interesting to contrast sodomy laws at the time of Lawrence in 2003. While most remaining sodomy laws were concentrated in the South in 2003, several southern states had eliminated them (all through judicial invalidation) and several had also repealed bans on opposite-sex sodomy, meaning they had refocused not on sexual acts but on homosexuality. Both factors disrupted the tradition as to sodomy laws. At the same time, a few laws still existed outside the South, meaning the pattern of regionalism wasn't as stark as with interracial marriage bans in 1967. And the number of states retaining those laws in 1967 was about the same as the number retaining some form of sodomy law in 2003.

Of course, unlike with interracial marriage bans, the fact that some of those sodomy laws were eliminated by judicial invalidation might create a theoretical problem in using state laws to gauge contemporary conscience of the people. When the Court has surveyed laws for the purpose (particularly in the death penalty area), however, it hasn't drawn any such distinction, to the best of my recollection. Nor did it in Lawrence. I'm inclined to say that judicial invalidation, if not overturned by state constitutional amendment or overruled by a subsequently reconstituted state court, can be taken as evidence of popular sentiment. (Compare Hawaii and Alaska, where same-sex marriage rulings were quickly overturned by state constitutional amendment.) The ugly secret is that legislative enactments aren't likely to perfectly mirror popular opinion either, given the role o interest groups in the process, so no test if likely to be perfect. At the very least, it is the case that many--though not all--state supreme court judges have to run for election or at least stand for a retention vote, which makes their decisions perhaps more democratically reliable than those of a federal court might be. For the U.S. Supreme Court, anyhow, a trend of repeal by whatever means from one state to another so that we go from all or nearly all states having bans to something less than 20 states having bans has seemed to be a sufficient indicator to the Court of an "emerging awareness." (But invalidation of state laws by federal judges under the federal constitution, I concede, poses a difficult theoretical challenge in this respect.)

As to your first point, this is a tough issue, and I don't have a very good answer. The issue is how can a state court ascertain an emerging awareness among the people of the *state* for purposes of figuring out what unenumerated rights may be protected by the *state* constitution. While there are problems with the Supreme Court's method of counting states, a state court doesn't have even that option for objectively identifying a purely intrastate consensus.

A couple of less-than-satisfying responses. First, if the state court says the state constitution is to be read in lockstep with the federal constitution, the state court will only identify fundamental rights under the state constitution if those same rights would be recognized under the federal constitution. I personally find it appalling for a state supreme court to abdicate its responsibility to independently construe the state constitution and to feel compelled to telephone Washington, D.C. to get permission to interpret its own state constitution. But some state courts take that approach. In that case, they'd just look for national consensus, as the Supreme Court has.

Second, perhaps the state court can turn to other objective measures in attempting to discern an "emerging awareness" in the state. It might extrapolate from statutory reform on related matters. Most directly, I suppose, the court could consult public opinion polls, but I find that prospect daunting for a whole set of reasons. Perhaps the court could attempt to identify why reform legislation has failed to pass. Is it a matter of general opposition or merely disproportionate influence of a powerful minority interest group? That's obviously very tricky too.

Third, if the state does provide some democratic check on the court, as many do, it may be that we can relax the analytical distinction between judges gauging public opinion and judges engaging in moral philosophizing. Perhaps the latter is less illegitimate if the judges must stand for re-election or retention than in the federal system, where they have life-tenure. If the judges must face the electorate periodically, maybe we allow them to make the contemporary conscience call based on their own subjective assessment or maybe we allow them to engage in some policymaking as to what ought to be a fundmental right. The possibility of removal from the court might be a sufficient check on their discretion and the involvement of the electorate in retaining them may make their discretionary judging more democratically legitimate than it might otherwise be.

As I said, though, none of these responses is completely satisfactory.
7.28.2006 5:43pm
jrose:
Stephen,

I find the core of your reasoning - that sexual orientation no more (or less) exists than "racial orientation", "religious orientation", "occupational orientation", etc. - to be bizarre.

If I accept your view of orientation, then I concede all of your analysis follows and mine fails. But if you were to accept my view, then you should concede all of my analysis follows and yours fails.
7.28.2006 6:46pm
jrose:
A constitutional challenge would be different than one of reason. I was speaking to the latter.
The latter is not sufficient to analyze the premise (marriage is for procreation). We must also analyze the former.
reason #1 holds, does not require constitutional recognition of priveledge of the handicapped
There is no way any court would agree with your view that the Constitution does not require over-60 women the right of marriage. As such, your premise is wrong.
7.28.2006 7:00pm
BobN (mail):
I lost the first version of this, but...

The Editors: Opposite-sex relationships are fundamentally different from same-sex relationships; it is perfectly reasonable for our laws to recognize that fact.


Another poster or two expressed this same sentiment. For them, and for anyone else who wants to chime in, if the two relationships are truly different, then by what logic would being in one preclude forming another? Same goes for civil unions. If a man is married to a woman, what -- maintaining the view that they're fundamentally different relationships -- would keep him from same-sex-marrying another man?

This reminds me of a couple recent legal cases wherein a spouse sued for divorce (or defended against a suit), and the case focused on whether sex with a member of one's own sex is, in fact, adultery. I don't remember the outcomes. I think one went one way, one the other.
7.28.2006 7:23pm
Stephen Clark (mail):
jrose:

I find the core of your reasoning - that sexual orientation no more (or less) exists than "racial orientation", "religious orientation", "occupational orientation", etc. - to be bizarre.

You misread that passage. I wasn't making a claim about the existence (or lack of existence) of a biological or genetic foundation for same-sex orientation. In fact, I conceded its existence elsewhere.

My point is a simpler one. It is that you do not need any such construct to find that all the other examples are race, religious, or sex discrimination. Because the exclusion of same-sex couples from civil marriage is analytically indistinguishable from those other examples, you also don't need any sexual orientation construct to discern sex discrimination. Whether same-sex attractions have a genetic or biological foundation is no more relevant for the sex discrimination theory in a marriage challenge than whether a woman's desire to be a doctor has a genetic or biological foundation. My point is that the nature of sexual orientation is irrelevant (and also distracting), not that sexual orientation is a choice.

If I accept your view of orientation, then I concede all of your analysis follows and mine fails. But if you were to accept my view, then you should concede all of my analysis follows and yours fails.

None of this follows. The validity of the sex discrimination theory does not depend on having either a strong or weak conception of sexual orientation. The issues are wholly independent. Even if your sexual orientation theory works, it does not invalidate the sex discrimination theory, because the former is not a component of and has no bearing on the latter. A great benefit of the the sex discrimination theory is that it makes irrelevant questions about the origins of same-sex attractions and whether they are immutable. I don't happen to think the sexual orientation theory works, for reasons I've explained. Plenty of people disagree. But both can readily co-exist.

I sense that your strong opposition to the sex discrimination theory stems from other than a reasoned review of the case law. For whatever reason, you've aggressively sought to discredit it from the start. It might be more productive to make more overt the basis for your personal hostility to it. If general equal protection doctine were altered to permit disparte impact claims (as under Title VII), I would quickly agree that the sexual orientation theory works, and I'd be delighted to have an additional tool in these cases. Then, it would certainly be true that both the sex and sexual orientation theories were simultaneously viable, one as a theory of disparate treatment (sex) and the other as a theory of disparate impact (sexual orientation). But you seem to view this as a zero-sum fight between them or at the very least you find the sex theory personally threatening for some reason. I'm afraid I can't help you with that. My interest is the legal arguments.
7.28.2006 7:35pm
BobN (mail):
Stephen Clark,

Thanks for the infomation on the California precedent and the later Loving decision. I guess I had just assumed that other states had struck down their own laws in the courts.

As for the issue of consensus, I agree it's messy. The one thing that has struck me, especially about the NY decision, is the utter blindness to the "traditional consensus" on homosexuality itself. To say that there is no tradition of recognizing same-sex marriage while simultaneously failing to see the long tradition of deep, deep animus seems to be to be supremely (ahem) dishonest.
7.28.2006 7:36pm
Stephen Clark (mail):
BobN:

As for the issue of consensus, I agree it's messy. The one thing that has struck me, especially about the NY decision, is the utter blindness to the "traditional consensus" on homosexuality itself. To say that there is no tradition of recognizing same-sex marriage while simultaneously failing to see the long tradition of deep, deep animus seems to be to be supremely (ahem) dishonest.

I'm not sure I follow your point. Are you talking about the Hernandez marriage decision? The court didn't find a fundamental right to same-sex marriage there. (Or are you talking about the 1980 New York decision striking down the state's sodomy law?)

Maybe you're getting at the conflict between tradition and contemporary conscience. Which prevails when they point in different directions? The problem with relying on tradition of hostility to homosexuality more generally in New York (as opposed to same-sex marriage) is that the tradition conflicts with the contemporary conscience, if you're talking about attitudes toward homosexuality generally, as opposed to same-sex marriage. There are a number of concrete ways in which the New York legislature has expressed its opposition to discrimination on the basis of sexual orientation and even its willingness to bestow some degree of respect upon same-sex relationships. But I'm not sure if I've correctly understood your point.
7.28.2006 7:52pm
BobN (mail):

I'm not sure I follow your point.


I was unclear, and I'm rushing. What I was referring to was the extraordinary claim in Hernandez that the 1909 marriage code's provision for only heterosexual marriage did not constitute (or might not constitute) proof of animus against same-sex couples. That ignores what the same legislature had in mind for same-sex relationships and DID codify in parts of the law outside family law, in other words, in the criminal code.

I just can't justify looking at only one aspect of this country's "tradition" regarding romantic/sexual/familial relationships. And if you look at it as a whole, the animus which would trigger at least somewhat heightened scrutiny is undeniable. At least to me ;-)
7.28.2006 8:13pm
On Lawn (mail) (www):
The latter [reason] is not sufficient to analyze the premise (marriage is for procreation). We must also analyze the former [constitutionality].

You'll find that the constitutional case is not explicit, but implicitely references rights that are not enumerated. As such references the social understanding and reason on the issue. But if you are going to appeal to the constitutionality on its own, by all means make your case.

There is no way any court would agree with your view that the Constitution does not require over-60 women the right of marriage. As such, your premise is wrong.

Interesting. That isn't my view, nor is the premise wrong. And if it were, there would be no way to tell by your argument, frankly. Perhaps you could start by making a constitutional case for the right for the handicapped to marry. If the handicapped were denied marriage, what constitutional clause would be violated? I have my own ideas, but that would be wrong to assume they were your ideas. If you outlined your constitutional case before, please provide a link.
7.28.2006 8:20pm
jrose:
The validity of the sex discrimination theory does not depend on having either a strong or weak conception of sexual orientation.
I disagree. Go back to my thought experiments where you complained
But that destroys the thought experiment, because it involves you changing the sexes of both the primary character and the lifemate, while not similarly changing the daughter to a son in the custody hypo
Changing the sex of the lifemate is a direct result of a strong conception of sexual orientation, which includes the inextricable link to conduct (the woman must dump her prior, male lifemate in favor of a woman). Not changing the daughter to a son is a direct result of a weak (non-existent) conception of "parental orientation" (of course, the daughter remains a girl).
7.28.2006 9:01pm
jrose:
If the handicapped were denied marriage, what constitutional clause would be violated?
Equal Protection because they are denied a fundamental right (civil marriage) that others are not. The state argues the scope of the fundamental right is procreative. The Court rejects that argument. So, how do we then deny that right to same-sex couples.
7.28.2006 9:07pm
Jim Miller (mail) (www):
Interesting discussion -- and an interesting contrast to the discussions here in Washington state.

We elect judges here -- unlike Massachusetts. And many of us suspect that explains the decision, and, perhaps, the timing. Perhaps we are too cynical, but it is a fact that there are two well-financed challengers running.

And almost no one in the state thinks that our Supreme Court is serious about the letter of the law, or believes in judicial restraint. They have come up with just too many bizarre decisions for anyone to believe that.
7.29.2006 12:15am
jrose:
I sense that your strong opposition to the sex discrimination theory stems from other than a reasoned review of the case law.
IMO, the case law cuts more my way. All but one the marriage cases, covering many states and two federal appeals court rulings (Baehr being the exception), agree with me. The sexual orientation cases cut my way too (Limon explicitly, Lawerence implicitly). None of your counter examples are as directly relevant.

My thought experiment attempts to distinguish the cases that agree with me versus your counter examples. The common theme is a strong conception of sexual orientation that includes the inextricable link to conduct (romantic partnering). Maybe it is this inextricable link which is the dividing point bewteen our views (you have already rejected it). Are you persuaded by my argument if you were to accept the link? If not, how do you distinguish between the cases that support me and those that do not?
7.29.2006 10:15am
Stephen Clark (mail):
jrose:

Changing the sex of the lifemate is a direct result of a strong conception of sexual orientation....

If you want to do a but-for test on sexual orientation, you have to leave everything the same but change the sexual orientation of the primary character. Gay man has male lifemate, gay man is changed to straight man, straight man still can't marry male lifemate. Sexual orientation is not the but-for cause of the exclusion of same-sex couples from civil marriage. (Nor of the primary character's inability to obtain custody.)

If you want to say it is also discrimination based on same-sex conduct, I agree. Gay man with male lifemate, gay man takes woman as lifemate (change from same-sex to opposite-sex conduct), gay man can now marry lifemate (female). The same-sex nature of the conduct was a but-for cause. If discrimination based on same-sex conduct triggers heightened equal protection scrutiny, great.

The truth, however, is that this second thought experiment again just shows that sex is the but-for cause, because if you look closely all we have really changed is the sex of the lifemate. Changing the sex of either the primary character (as in an earlier post) or of the lifemate, while holding everything else constant, changes the outcome. That makes sex in either test the but-for cause.

We can do what you want: change the primary character's sexual orientation and simultaneously change the sex of the lifemate too. We have gay man with male lifemate. Can't marry. We change that to *straight* man with *female* lifemate. They can marry. Ok. The outcome changed, so something here is a but-for cause. Unfortunately, because we've allowed two variables to change, we have no way, though this thought experiment alone, to know which of the factors caused the change in outcome, or even if perhaps it took both simultaneously to change the outcome.

But you can compare it with other thought experiments to figure that out. Here's what we had: Gay man with male lifemate--no marriage. We changed both factors: *Straight* man with *female* lifemate--can marry. Now add two more variations. Let's change only sexual orientation of the primary character: *Gay* man with female lifemate--still allowed to marry, so no change in outcome and no but-for cause. Go back to straight man with female lifemate. Now let's change only the sex of the lifemate: Straight man with *male* lifemate: now the outcome changes to no marriage. We have found a but-for cause. Changing the sex of the lifemate, changed the outcome, making sex of the lifemate a but-for cause. But changing the sexual orietation of the primary actor from straight man to gay man did not alter the outcome, so sexual orientation of the primary actor was not a but-for cause.

Again, the fact is that changing the sex of either the primary character or of the lifemate exposes sex as a but-for cause. Changing no one's sexual orientation changes the outcome unless we also change someone's sex. Sexual orientation by itself is not a but-for cause. And we can do more experiments to figure out that it isn't a but-for cause at all, as we just did. All of this reflects the simple fact that a state that bans same-sex marriage doesn't give a flip whether the man and woman who get married are gay or straight. It is legally irrelevant. What the law cares about is ensuring that, whatever their sexual orientations are, their *sexes* must be different. If you present two different sexes, you get a marriage license. Period.

What you would like to do is conflate all this and say it's all sexual orientation. That would require you to analytically eliminate any slippage between same-sex conduct and sexual orientation. What you'd really be doing is defining a person's sexual orientation solely in terms of their conduct. Prison inmates who engage in same-sex activity for lack of any other sexual outlet automatically acquire a gay sexual orientation under your conflation. Gay men who are pressured into opposite-sex relationships and marriages are straight, by your definition, because you allow no inconsistency between one's sexual orientatoin and one's sexual conduct. In my own view, that is little different than when opponents of same-sex marriage try to ignore the slippage between opposite-sex couples and procreative couplings by erasing infertile couples. The two are analytically distinct, as so are sexual conduct and sexual orientation.

If equal protection law were reformulated to permit claims based on disparate impact or if equal protection law were reformulated along the lines advocated by many scholars to focus on group-based power differentials, I readily concede that a sexual orientation theory would work. (A sex discrimination would continue to work as well, so long as reformulated equal protection law continued to allow claims based on facial or formal discrimination, which it might not.)

But if you can get a court to conflate orientation with conduct in the way you want, so as to say this is more than a mere disparate impact, more power to you. I'll celebrate the victory. Judges, however, are becoming wise to that ploy. (See the Mass. dissenters and the New York concurrence.) And my own scholarly opinion is that it is a disparate impact under existing case law, and I would so hold as a judge. And as I've said before, conflating the two risks blurring the clarity of the but-for test and impairing legal analysis in this corner of the law. In the end, that doesn't help gay people, in my own assessment.

At any rate, it affects in no way the validity of the sex argument. Whether same-sex attactions or the desire to buy a good from a same-sex seller are innate or matters of simple choice makes no difference as to the validity of the sex discrimination argument. Indeed, showing that same-sex contractual preferences or a woman's desire to attend VMI are innate, biologically induced orientations would only make the ban on same-sex sales contracts and women admissions to VMI all the more unjust from a sex discrimination perspective, even if one could also call them "contractual orientation" discrimination and "educational orientation" discrimination.

Alas, I fear this is all becoming repetitive and marginally productive. As I said before,

It might be more productive to make more overt the basis for your personal hostility to [the sex discrimination argument]....
7.29.2006 10:16am
jrose:
Being gay and getting legally married are analytically distinct, and only the former has the likely genetic or biological foundation.
But, being gay and your choice of life partner are inextricably linked. And of course, you would only marry your life partner (except for the rare marriage of convenience).
7.29.2006 10:24am
Stephen Clark (mail):
jrose:

All but one the marriage cases, covering many states and two federal appeals court rulings (Baehr being the exception), agree with me.

In recently putting together a packet of supplemental readings, I scoured the world looking for a *good* example, for discussion purposes, of a court using the sexual orientation theory to invalidate a ban on same-sex marriage. There wasn't one that addressed this analytical issue.

There were two major, final victories using that theory. The Halpern case in Ontario and the Fourie case in South Africa, and the latter wasn't helpful on this point because South African equality law does not focus formalistically on classifications but more on groups. In the U.S., there was a smattering of lower court decisions and the Massachusetts case.

I may have overlooked something, but so far as I could tell only one decision, by the Oregon trial court (since overturned by state constitutional amendment), dealt in any real way with this question. Every other opinion, including Halpern and Goodridge, contained a flat assertion that the law classifies on the basis of sexual orientation with no analysis whatsoever. Moreover, the Oregon trial court--in the one opinion that did explore this issue--agreed that the exclusion of same-sex couples from civil marriage created only a disparate impact on the basis of sexual orientation but then went on to construe the Oregon equal priviliges clause as making disparate impacts actionable. I have no problem with that if it is a viable reading of the clause. But it isn't the prevailing interpretation of the federal equal protection clause or of virtually any other state constitution's equality provision. (On the other side, there is Baehr, which does a fair job of addressing this issue, and the Maryland trial court decision, which also find sex discrimination after an extensive analysis.)

Meanwhile, two of the 4 judges in the Massachusetts majority have made clear that they view the problem as one of sex discrimination. (See Justice Greaney concurring in Goodridge and Justice Ireland's separate opinion in the court's recent Cote-Whitacre case.) At least one or two of the dissenters in Goodridge also deny that the statute classifies on the basis of sexual orientation and, unlike the majority, actually gave some attention to the question.

So you can certainly string together a list a citations to cases in which the judges have made flat statements with no analysis to the effect that bans on same-sex marriage classify on the basis of sexual orientation. They represent precisely the conflation of orientation and conduct that you defend, though probably much less conscious than yours. But when judges focus squarely on the issue and engage in actual analysis, they often recognize the orientation-conduct distinction and reject the conclusion that the bans classify on the basis of sexual orientation. Judge Graffeo, the swing vote in New York, did that, while the plurality offered the standard conclusory statement of sexual orientation discrimination with no analysis. Since I believe (as I've said previously) that the plurality opinion in New York was pure result-oriented garbage, I would hardly expect its author, Judge Smith, to reject a sexual orientation theory (which he could claim triggers lower scrutiny) and go with sex (which would force him to overcome skeptical scrutiny). Interestingly, Judge Smith's questions during oral argument restated and clearly indicated that he understood the sex discrimination argument, yet that understanding was suspiciously absent from his plurality opinion.

Lawrence, once again, was not an equal protection decision. O'Connor's concurrence doesn't really make your point either, because she relied not solely on sexual orientation but also on some idea that classifications touching on intimate associations trigger more vigorous rational basis review. Romer was an equal protection decision, but the constitutional amendment in Romer actually discriminated on its face on the basis of sexual orientation as well as same-sex conduct. To the extent the Limon court conflated orientation and conduct, and I can't recall how much overt discussion they provided on this point, I simply disagree.
7.29.2006 10:51am
jrose:
If you want to do a but-for test on sexual orientation, you have to leave everything the same but change the sexual orientation of the primary character. [...] Unfortunately, because we've allowed two variables to change, we have no way, though this thought experiment alone, to know which of the factors caused the change in outcome, or even if perhaps it took both simultaneously to change the outcome.
It is my argument that the gender choice of life partner is a dependent function of orientation. When orientation changes, gender choice of life partner also changes. It thus makes no sense to treat them as independent variables as you do. The but-for test requires two things to change when one depends on the other. In contrast, all of the other thought experiments involve independent variables.

Again, I know you disagree. But, can you see your way to my conclusion if you were to accept the functional link between orientation and gender choice of life partner?
7.29.2006 10:56am
jrose:
In recently putting together a packet of supplemental readings, I scoured the world looking for a *good* example, for discussion purposes, of a court using the sexual orientation theory to invalidate a ban on same-sex marriage.
It's not my point that courts have used sexual orientation discrimination, but rather they have not used gender discrimination (except for Baehr) to trigger heightened scrutiny (in both victory and defeat for SSM proponents). Your complaints about how the concurrence or dissent presented better analyses does not make your case until courts start using those analyses in their majority opinions. And stop kidding yourself, no court would decide Limon or Lawrence on the basis of gender discrimination. And if not, your case falls apart.
7.29.2006 11:10am
Stephen Clark (mail):
jrose: Would I agree if I accepted your orientation-conduct conflation? Good question. I don't know. Not to be at all flippant, but I'd have to give it a lot more thought than, honestly, I'm willing to devote to it because I just don't accept the conflation. But here are some of the things I'd have to consider...

1. Are you actually making the sex of the partner dependent on sexual orientation, or vice versa? Aren't you actually making orientation identity dependent on sex of the partner? As I see it, the only way to make the "inextricable linkage" that you want is to view anyone engaged in same-sex conduct as "gay" and anyone engaged in opposite-sex conduct as "straight," so that sexual orientation and sex-of-conduct-partner always move together. (But see, e.g., prison sex.) That eliminates the analytical distinction but not in a way that I find very accurate. It gives too much determinative sway to conduct.

2. Aren't you oversimplifying sexual orientation? Is a ban on same-sex marriage discrimination against gay people, against bisexual people, against predominantly heterosexual people with slight homosexual inclinations (Kinsey 2's), or all of them? Why isn't it discrimination against people with exclusive heterosexual feelings too (Kinsey 1's)? After all, the state is formally denying even a Kinsey 1 the legal right to contract a same-sex marriage if for whatever reason the Kinsey 1 wanted to do that. Does the Kinsey 1 have to fictionally plead in the lawsuit that he or she is "gay" or "lesbian" in order to challenge the denial of same-sex marriage? (And it's risky to say no such person would ever want a same-sex marriage. In my view, lawyers should be reluctant to dismiss a possible hypo as impossible. Sure enough, someone out there will want exactly the thing you think no one would ever want! In this particular case, imagine a future society in which there was no stigma on being gay or having a same-sex relationship. You might find a few more same-sex marriages of convenience than you're currently envisioning.)

3. For that matter, do plaintiffs in same-sex marriage challenges even have to plead and prove that they are "gay" or "lesbian" in order to proceed and win? If the claim is sexual orientation discrimination, don't they have to actually prove that they are gay or at least bisexual in order to prevail? Do the complaints in these cases always include such allegations? (I don't think so, but I could be misremembering.) Can the state defend against the suit by introducing evidence that the plaintiff is not truly or consistently gay, like a prior history of opposite-sex dating and heterosexual self-identification? Do we need a trial on whether the plaintiff "really" is gay? Or do we just assume that the plaintiff is gay because he (or she) has filed a same-sex marriage challenge? If the latter, that means we are, in fact, making sexual orientation identity the dependent variable that is assigned based on same-sex conduct. Then are prison rapists "gay" and the Brokeback Mountain boys "bisexual" because they were married? (See #1).

3. If truly gay plaintiffs had won the New York or Washington challenges under your sexual orientation theory, could two truly heterosexual parties of the same sex get married in those states? (Again, never say never, because the bizarre case will eventually come along!) Or would only truly gay (or at least truly bisexual) people get access to same-sex marriage? Assuming no privacy issue, could those states amend their marriage laws to require clerks to ask about the sexual orientations of the two applicants and deny a same-sex marriage license to any applicant who is determined to be straight and deny an opposite-sex marriage license to an applicant who is determined to be gay? If you conflate conduct and orientation, how can the gay plaintiff complain that he's not allowed to have an opposite-sex marriage license? With the conflation, a gay plaintiff simply cannot want an opposite-sex marriage license.

4. Add to the mix criticisms that say sexual orientation is much more fluid, complex, and ambiguous than our (or Kinsey's) simple labels suggest. If we accept that sexual orientation is not so fixed, simple, or categorical, how does the inextricable linkage work?

5. Bans on same-sex marriage also often prevent at least post-operative transsexuals from marrying because, depending on how the state views their sex, the state decides that they are attempting to have a same-sex marriage. How is that sexual orientation discrimination? Trasngender people have been complaining for years about trans issues being incorrectly equated with and subsumed under the rubric of sexual orientation and not given adequate and independent consideration, when for them, the issue isn't about sexuality but about sex and gender identities. The transsexual's sexual desires do not change with the sex reassignment--i.e., he preferred women before; she stills prefers women after reassignment. Do we impose on that reality our social concepts of heterosexuality and homosexuality and insist that, although no actual feelings or relationships have changed, the post-op transsexual has gone from gay to straight or vice versa because he or she must be assigned one of these sexual orientation labels? Don't you have to do that in order to race to the defense of the post-op transsexual and characterize the marriage discrimination that he or she faces as "sexual orientation discrimination"? How on earth do you conceptualize the non-transsexual wife who remains in the marriage or committed relationship with the post-op male-to-female transsexual? By doing absolutely nothing and changing in absolutely no way, has the loyal wife gone from straight to lesbian when her husband has a sex reassignment and she stays with him? Is it discrimination against her on the basis of her sexual orientation (straight? lesbian? whatever.) if the enlightened state in which they live legally recognizes that her husband is now a woman but then seeks to have their marriage declared void as a same-sex marriage? That is sexual orientation discrimination because the loyal wife's conduct, staying with her MTF spouse, must be deemed inextricably linked with her sexual orientation (now lesbian?)? Why would we view these things as sexual orientation discrimination when the key issue is the fight over what the transsexual person's sex is and whether a person with that sex can marry a person with the same sex. The fight in these cases is not over how we should rather arbitrarily characterize the transgendered persons sexual orientation before and after sex reassignment, let alone how we should conceptualize the sexual orientation of his or her loyal spouse/partner.

The sexual orientation theory gets bogged down in all these difficulties, none of which are relevant to the sex discrimination theory. The only problem with the sex discrimination theory, frankly, is the inability of judges to grasp it intuitively and get past the "equal application" theory.
7.29.2006 12:10pm
Stephen Clark (mail):
jrose:

And stop kidding yourself, no court would decide Limon or Lawrence on the basis of gender discrimination. And if not, your case falls apart.

I see that after a momentary respite, you're back to simply disliking the sex discrimination argmuent for some personal reason that you decline to disclose. That's fine, but it isn't a argument.
7.29.2006 12:13pm
Jesurgislac (mail) (www):
What struck me most about the Washington majority opinion was the opening quote: "The legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race..."

There is no evidence that countries in which marriage is open to both same-sex and mixed-sex couples have a sudden drop in procreation. There are now four countries and the state of Massachusetts to look at, and there's been no sign in any of them that people stop having babies or are less likely to have babies because same-sex couples can get married. (Nor has anyone been able to come up with any argument why this should be so: why would someone who wanted children somehow stop wanting children because Bob and Ted (or Carol and Alice) are getting married?)

What is the point of procreation? The Washington decision answers that it's "essential to the survival of the human race" - in short, it's not just "making babies": it's about bringing up children. As at least one Washington judge noted, same-sex couples also have children - the same way infertile mixed-sex couples have children.

Marriage is not legally restricted to fertile couples only, yet the only arguments people who oppose marriage can come up with are based on the assumption that marriage ought to be restricted only and exclusively to fertile couples.

These court decisions to discriminate against lesbians and gays by legally marrying them from marriage are clutching at straws - trying to find an excuse for doing the wrong thing. There is no good reason why lesbians and gays should be banned from marriage (and the argument that a lesbian can always abandon her life partner and choose some man at random if she wants to get married is indicative of real cruelty, not mere callousness, towards lesbians and gays). The arguments against marriage that are produced with such solemnity would, if taken seriously, ban far more people from getting married than just lesbians and gay men: but not even the judges who make these arguments take them seriously, since none of them follow through by proposing that since (they claim) marriage is all about procreation, and not at all about child-rearing, it would follow that:
- no sterile person should be allowed to marry (or allowed to remain married: all women past the menopause must be divorced by this rule)
- as soon as a couple finish conceiving children, and intend to bear no more, they can and should divorce, since marriage is only for those who are conceiving children, not for those who are merely bringing up children - as hundreds of thousands of same-sex couples, legally barred from marriage in the state they live in, are bringing up children together: if the court's argument is that just bringing up children is no grounds for marriage, plainly once a couple stop conceiving children and are only bringing them up, they have no grounds for marriage.
7.29.2006 9:15pm
jrose:
Are you actually making the sex of the partner dependent on sexual orientation, or vice versa?
Only the former. The independent variable is orientation. The dependency is not 100%, but is very, very strong - more so for lifemate than casual sex partner.
Aren't you oversimplifying sexual orientation?
Yes. For people who are mostly gay or straight, there is still a very strong dependency. For bisexuals, your gender discrimination argument makes much more sense.
For that matter, do plaintiffs in same-sex marriage challenges even have to plead and prove that they are "gay" or "lesbian" in order to proceed and win?
IMO, sexual oirentation discrimination isn't a winning argument, at least not until orientation is declared as a suspect class. The winning argument ought to be Equal Protection fundamental rights analysis, in which case any classification would trigger strict scrutiny.
Add to the mix criticisms that say sexual orientation is much more fluid, complex, and ambiguous
If sexuality is mutable, my argument falls apart.
Bans on same-sex marriage also often prevent at least post-operative transsexuals from marrying
I believe all laws say your gender is based on your chromosomes. Transgendered people may have a claim of gender identity discrimination, but that would still not be gender discrimination.
you're back to simply disliking the sex discrimination argmuent for some personal reason
It's not supported by precedent in marriage or cases involving gay people (my comments on Lawrence and Limon are dead-on point) and it's unpersuasive in light of the very, very, strong dependency between oritentation and conduct.
7.30.2006 10:31am
Elais:

There is a fair amount of evidence that traditional sacramental marriage produces more children than modern civil marriage: See Russia, Europe, and the Blue States.

And there is a fair amount of evidence that traditional sacramental marriage produces "better" children than casual fornication: compare and contrast educational perfomance and economic success in Newark, NJ and Salt Lake City, Utah.

Combine these two factors and state discrimination in favor of sacramental marriage may be compelling.



So, wouldn't you expect that the government would have a Federal Sacramental Marriage Amendment? Those who are athiest or not of the 'correct' religion are not permitted to marry because 'traditional sacremental marriage' is best? That we need to protect 'traditional sacremental marriages' from non-traditional or godless people?

That certainly could go over well, given that people boast that this is a Christian Nation.

Tradition only works when people keep tradition. What happens if the tradition changes? It was traditional for women not to have the vote, now it is traditional that women vote. It was traditional to have slaves, now it isn't.

Claiming 'tradition' is a poor foundation for the Government and State to deny gays/lesbians equal access to marriage because tradition changes over time. It is certainly possible that 'traditional sacremental marriages' will include same-sex marriages.
7.30.2006 10:37pm
On Lawn (mail) (www):
jrose:

Equal Protection because they [the handicapped] are denied a fundamental right (civil marriage) that others are not.

I believe I understand the angle you are striking here. If so it would be more accurate to say that as a reason for being denied opportunity, being handicapped is not one.

Applying equal protection to the handicapped is rather asenine. Considering the preferential treatment they recieve because of their disability, "equal" protection is a misnomer. They are given preferential treatment in order to restore opportunity their disabilities prevent them from. And even then, not in all cases. But that preferential treatment is not guaranteed by the constitution, and preferential treatment under equal protection is a contradiction.

Such a contradiction shows me one thing. Your constitutional case is simply pouring your morality into the words "equal protection", and it doesn't seem (expecially in reviewing your discussions with others here) that you've really thought through this matter very thoroughly.
7.31.2006 2:06pm
jrose:
On Lawn,

Equal Protection strict scrutiny applies to any classifictaion of a fundamental right. My argument has nothing to do with whether the infertile and elderly are handicapped.

We already know for the classification of deadbeat dads, marriage is a fundamental right that triggers strict scrutiny. Those that argue classification by gender pairing (which is a proxy for sexuality) should not similarly trigger strict scrutiny claim the fundamental right is restricted to procreation. But if I am correct that SCOTUS would apply strict scrutiny to a classification by fertility or age (of course they would!), then the argument that the fundamental right is restricted to procreation falls apart. And so does the argument that classification by sexuality should not trigger strict scrutiny.
7.31.2006 2:35pm
On Lawn (mail) (www):
Equal Protection strict scrutiny applies to any classifictaion of a fundamental right.

Could you rephrase that a little more clearly? I'm not sure if you are saying that strict scrutiny applies to any classification involving a fundamental right, or if you are saying that it applies to every fundamental right that can be classified as such.

We already know for the classification of deadbeat dads, marriage is a fundamental right that triggers strict scrutiny.

And here did you just say deadbeat dads are a protected class?

Those that argue classification by gender pairing (which is a proxy for sexuality) should not similarly trigger strict scrutiny claim the fundamental right is restricted to procreation.

Arguing such as that was found in Goodridge, but doesn't seem to persist legal scrutiny. Sex as a casual pass-time is not the same as the terminology of sex used classically to describe reproduction. They may share some of the same parts and chemistry, but nothing of the same biological meaning. To equate one with the other as a proxy was foolhardy of the Goodridge decision. Its chief fallacy evident in how it painted the recognition of the unique bond parents share with the children as the moral equivelant of white supremacy. Thats right, the unique position they have in identifying with, protecting, and taking responsibility for those chidren they bear as the equivelant of white supremacy.

then the argument that the fundamental right is restricted to procreation falls apart.

You should read the decisions from New Jersey, New York and Washington, as this is layed out clearly. What is considered a rational basis for targeting the gender complete relationship is not "procreation" itself but ensuring before any procreation happens that the parents are commited to each other and the children. They make sure to treat procreation as a very important capacity, and not some cheap act ready to be made into commerce. It is deferance to our biology, and what impact that has on the next generation that makes marriage important and unique.

This isn't about Gays. It's about Marriage, Sex, and Responsible Fatherhood.
7.31.2006 3:57pm
jrose:
I'm not sure if you are saying that strict scrutiny applies to any classification involving a fundamental right, or if you are saying that it applies to every fundamental right that can be classified as such.
The former.
And here did you just say deadbeat dads are a protected class?
No. When a fundamental right is burdened any classification is subject to strict scrutiny. It does not matter whether the class is protected or not (of course, deadbeat dads are not protected - nonetheless strict scrutiny applied when Wisconsin did not allow them to get a marriage license).The rest of your reply has no relevance to my argument. Once again, a state hypothetically forbids the elderly from marrying. An eldery woman sues for her right to marry. I claim SCOTUS would rule in her favor because the state has created a classification which burdens a fundamental right. Such a ruling necessarily would imply that the fundamental right to marry is not (only) because of procreation. Forbidding same-sex marriage would then also create a classification which burdens a fundamental right, it would trigger strict scrutiny, and be struck down.
7.31.2006 5:20pm
On Lawn (mail) (www):

Forbidding same-sex marriage would then also create a classification which burdens a fundamental right, it would trigger strict scrutiny, and be struck down.

I believe you are mistaken.

The rest of your reply has no relevance to my argument.

I see. Well, even if you don't.

I claim SCOTUS would rule in her favor because the state has created a classification which burdens a fundamental right.

I know that is your position. Its just untennible for the reasons explained.

An example exists in California. There the elderly are allowed to form DP's but no other gender-complete couple. Yet those who are have one member not on social security may not, and all are eligable for marriage. cf: Domestic Partnership Act of 2003. Tell me how that is violating equal protection. Perhaps with a real world example you might be able to bring your conversation more down to earth.

When a fundamental right is burdened any classification is subject to strict scrutiny.

Not even that is true.

Have a nice day.
7.31.2006 6:45pm