While the politics are complicated and uncertain five months out, a thrilling but narrow win for gay marriage in the California Supreme Court last week could become a narrow and heartbreaking loss at the polls in November. But the court’s equal protection holding will outlast a state constitutional amendment banning gay marriage and will have potential to challenge anti-gay discrimination well beyond the issue of marriage. If gay marriage loses in California in November, the equal-protection holding will be the lasting legacy of the opinion.
For the first time in the nation’s history, an appeals court of last resort has held that discrimination on the basis of sexual orientation, like discrimination based on race, should be subjected to strict judicial scrutiny under equal protection principles. Under this scrutiny, the discrimination is almost always unconstitutional, requiring the government to show that its classification is necessarily related (or narrowly tailored) to a compelling interest. While this part of the California Supreme Court holding may have little practical effect in a state like California, where it seems almost all public and much private discrimination has already been eliminated by the state legislature, the court’s reasoning may influence other courts at the state and federal levels that have been very reluctant to go down this road.
For decades, legal scholars have been urging courts to treat sexual-orientation discrimination as suspect under equal-protection principles. In fact, it’s difficult to find law review articles that offer extended analysis of why such discrimination should not be subject to some heightened scrutiny. (Whether some anti-gay discrimination could be subject to strict or intermediate scrutiny because it impinges on a fundamental right guaranteed by the due process clause, as the Ninth Circuit held yesterday in a case involving “Don’t Ask, Don’t Tell,” is a different doctrinal question.)
Despite the academic consensus, and aside from some notable exceptions, like a vacated Ninth Circuit opinion more than a decade ago and a dissent from denial of certiorari by Justice Brennan in a case from the mid-1980s, federal and state judges have uniformly rejected heightened scrutiny for sexual orientation discrimination under equal protection principles. They have offered various reasons for this, discussed more below, but the unarticulated fear may be that strict scrutiny would call into question lots of state and federal laws that discriminate against gays. Courts overturning anti-gay discrimination have found other ways to do so by, for example, saying that sodomy laws violate substantive due process (e.g., Lawrence v. Texas) or by holding that some forms of anti-gay discrimination are simply irrational because based on “animus” (e.g., Romer v. Evans). Even courts finding constitutional protection for gay marriage or civil unions have avoided heightened scrutiny (e.g., the high courts in New Jersey, Vermont, and Massachusetts)
The California court’s discussion of heightened scrutiny is at pp. 93-100 of the opinion. It will be required reading in courses on sexual-orientation law.
I. Is the limitation of marriage to one man and one woman "sexual orientation" discrimination?
The first step in the argument is to show that limiting marriage to one man and one woman is a form of sexual-orientation discrimination. Some opponents have argued that this is not sexual-orientation discrimination because such laws do not forbid “homosexuals” from marrying. Homosexuals can marry persons of the opposite sex. At most, they say, prohibiting same-sex marriages has a disparate impact on gays and thus does not constitute objectionable discrimination unless the purpose of the law is to discriminate against gays.
But this argument elevates form over substance, understating the special way in which foreclosing marriage to another person based on the sex of that other person (whether same- or opposite-sex) strikes at an individual's sexual orientation. It’s akin to saying that a ban on the wearing of yarmulkes isn’t anti-Jewish discrimination because Jews and non-Jews alike are forbidden to wear them.
The argument probably has some traction among a few gay-rights opponents who doubt there really is such a thing as homosexual orientation and thus imagine that requiring gay persons to marry members of the opposite sex is no big imposition on them. But I think even most opponents of gay marriage would recognize that there is sexual orientation discrimination, albeit justified discrimination, in forbidding a gay person to marry another person of the same sex. The court quickly dispensed with the argument: “In our view, it is sophistic to suggest that this conclusion [that limiting marriage to one man and one woman is sexual orientation discrimination] is avoidable by reason of the circumstance that the marriage statutes permit a gay man or a lesbian to marry someone of the opposite sex, because making such a choice would require the negation of the person’s sexual orientation.” Op. at 94. Unlike race, sexual orientation is closely linked to a behavior, in this case the intimate relationships that a person forms with others, just as the behavior of yarmulke-wearing is closely linked to Jewish identity for many observant Jews.
This is not to say that marriage as it exists in most places today is just another form of bigotry, like separate water fountains for blacks and whites in the pre-civil-rights era. That would be a reductionist and just dumb way to describe marriage. Marriage has many noble purposes and effects, quite aside from the way in which it excludes one or another group of people. An institution like marriage or the military can be important and indeed essential to a society and at the same time operate in discrete ways that invidiously discriminate. The California Supreme Court did not say that marriage as a whole is bigotry, as some critics of the decision have charged; it said that one limitation in the state's marriage law could not be justified.
II. Should sexual-orientation discrimination be subjected to heightened judicial scrutiny?
The more important and far more controversial step in the court’s equal-protection holding is the second one, applying strict scrutiny to sexual-orientation discrimination. As a matter of federal constitutional law, which often influences state constitutional law in this area, the U.S. Supreme Court has never explicitly required any particular test for suspect-class status. It has only suggested some relevant considerations in a few scattered opinions.
In last week’s marriage case, the California Supreme Court reviewed four factors most often considered in deciding that discrimination aimed at a class of persons is constitutionally suspect and thus places a heavy burden of persuasion on the government to justify it. They are:
(1) Whether the characteristic has subjected the group to a history of social and legal discrimination;
(2) Whether the characteristic of the group is generally related to the person’s ability to perform or contribute to society;
(3) Whether the characteristic of the group is immutable; and
(4) Whether the group is so politically weak that it needs the protection of courts from overweening legislative majorities.
The California Attorney General did not contest the first three factors.
The first two factors are uncontroversially met; indeed, I can think of no court that has rejected suspect-class designation for gays on the ground that these conditions were absent. The U.S. Supreme Court once used the second factor – ability to perform – as a reason to deny suspect-class status to the mentally retarded. No such performance limitation is present for gays. And there is no doubt that there has been long history of social stigma and legal discrimination against homosexuals.
The third factor has long been a sticking point, with courts usually concluding that there is insufficient scientific proof that homosexual orientation is immutable. The California Supreme Court sidestepped the scientific dispute about sexual orientation by noting that strict immutability is not invariably required for suspect-class status. First, discrimination based on religion is subject to strict scrutiny under equal protection principles, even though people freely change religious views and affiliations. Similarly, alienage is often treated under federal constitutional law as a suspect classification even though a foreigner can become a citizen. Id. at 97-98. Second, immutability does not mean absolute immutability; it includes any characteristic that is “an integral aspect of one’s identity.” Sexual orientation is “either unchangeable or changeable only at unacceptable personal costs.’” Id. at 98. Asking a gay person to change his sexual orientation to avoid discrimination would be like asking a heterosexual to become a homosexual to avoid that cost. Perhaps it could be done, perhaps not, but even the effort would come at a very high personal cost.
The fourth factor – whether the group is so politically powerless that it needs special judicial protection – was the only one contested by the California AG, who pointed to the many ways in which the state legislature has protected gays from public and private discrimination. The state’s broad domestic partnership law and the legislature’s passage of a gay-marriage law themselves are examples of gays’ ability to score successes and gain allies in the state’s political process. Leaving aside the observation that gays are still subject to much homophobia even in otherwise friendly states like California, despite the existence of some anti-discrimination protection, why do they need the special protection of courts?
The court answered this very good question by saying that suspect-class status obviously can’t be limited to groups that currently lack political power. Otherwise, there would be no heightened scrutiny for classifications based on race, sex, or religion. These classifications are no longer acceptable in the political process and much has been done to advance the interests of blacks, women, and religious minorities. According to the California Supreme Court, the only things that matter are whether the group has historically been subject to invidious discrimination and whether society now recognizes the group’s trait is unrelated to merit.
Purely as a way to read the state of current equal-protection doctrine, the court’s conclusion seems right. The U.S. Supreme Court is not about to end heightened scrutiny for race- and sex-based classifications just because blacks and women are no longer subject to state-sponsored discrimination.
Justice Baxter’s dissent agrees that special judicial scrutiny for race and sex classifications should not be eliminated. So why deny gays alone special judicial protection on the grounds that they’ve made considerable political progress? Justice Baxter answers this by arguing that it’s one thing to extend such protection when a group actually needs it but then with draw it when they longer do, but quite another to extend such protection as a matter of first impression at a time when they do not need it. Baxter dissent at pp. 24-25.
But there’s a problem with Baxter’s response. Is he saying that he would have voted for heightened scrutiny of sexual orientation discrimination in 1970, when gays really, really needed it but when it would have been unthinkable to give them special judicial protection? Is he, at the same time, saying that if a claim for heightened scrutiny for race were to come before the court as a matter of first impression now he would reject it because racism is currently disfavored in the legislature? Both of these conclusions seem very unlikely, but they are an implication of his logic. So the California Supreme Court’s conclusion that current widespread discrimination against a group is not invariably required for heightened scrutiny seems justified under equal-protection doctrine.
But what this conclusion effectively means is that the fourth factor has been collapsed into the first and second factors. If a group can fend for itself tolerably well in the political process because society now sees the trait as irrelevant to merit, why not wait as the political process continues to purge itself of any lingering discrimination? That is what California was doing on the question of marriage itself, with the legislature having twice passed gay-marriage bills. The next governor might well have signed such a law, which (as we now know from the court’s decision) would then have had to go to the voters for approval.
The truth is that the “political powerlessness” prong of equal-protection doctrine is more decorative than substantive. It has never had much independent force. As William Eskridge has argued, heightened judicial scrutiny of a classification usually comes only after the suspect class has organized itself as a political and judicial force and after its equality claims have gained a measure of social acceptance. That was true of the civil rights movements for blacks and women; judicial victories often followed political and social successes for the struggles of these groups. After these successes, judges stepped in tentatively, at first, to hasten further progress and finally to eliminate the remaining vestiges of discrimination.
So courts have usually been far more cautious about protecting minority rights than those who continually complain about judicial “activism” and “tyranny” suppose. There’s a good reason we won’t see heightened protection for gays in the state court systems in places like Mississippi or Texas, where there’s truly a practical current need for it. Courts, and especially elected courts, wait until it’s safe to be brave.
Something like that is what happened in California, and may happen elsewhere in the nation in the coming decades. Long before the California Supreme Court issued its bold opinion last Thursday, gay Californians organized themselves into a political movement, got openly gay officials elected, rid the state of sodomy laws, passed civil-rights protections, worked tirelessly but incrementally for recognition of their relationships, and pressed for judicial solicitude. The judicial declaration they got last week that discrimination against them is no longer tolerable was not the beginning of something new so much as it was the recognition of something already achieved.
Related Posts (on one page):
- Sexual orientation and heightened scrutiny in the California marriage decision:
- Secondary sources in the California marriage decision:
- The (limited?) potential of the California marriage decision:
For the first time in my life, I'd actually be curious to hear what a "queer theory" professor has to say. Identifying them as a class would seem to throw out everything the left has written on the matter from Sartres to Foucault. But I suppose academia would just bite its tongue and stand mute to get a desirable result.
Except for the fact that there is a first amendment that specifically protects religious expression.
They aren't akin at all.
DC: State constitutional protection does not necessarily rest on explicit protection for religious freedom. Besides, the point here is that yarmulke wearing is so close to Jewish identity that banning it is equivalent to anti-Semitism, even though there is no formal religious classification in the ban.
So is sexual orientation more deserving than discrimination on the basis of sex (intermediate scrutiny)? Or have courts been getting that one wrong too by only applying intermediate scrutiny?
DC: Intermediate scrutiny might be appropriate. I take no view here on the particular level of heightened scrutiny that should be applied. The California court applied strict scrutiny just as it does to sex-based classifications. That's different than the federal practice.
Prof. Carpenter, you do a good job in arguing against a number of the reasons for the above-quoted argument, but you seem to leave a large one unanswered.
Put simply, some social conservatives may use the above argument even realizing that it may be quite difficult for a gay person to "become straight" (even if he or she wants to). The point is not to ignorantly say "snap out of it," but rather to reject a redefinition of the term "marriage" by using the traditional one-man, one-woman definition at all times.
This behavior is obstinate and annoying, certainly, but that's somewhat the point. The language used is a large factor in any debate, particularly a long-running wide-scale debate. (One need only think of the abortion debate for examples--"baby" vs. "fetus", the appellation "anti-choice" instead of "pro-life", etc.) Thus, some social conservatives may be willing to talk about benefits, civil unions, etc. for gay couples, but reject outright the concept of "gay marriage" (as meant by its advocates) as an oxymoron. Similarly, some who support the institution refuse to stop at anything less than a full, complete marriage, termed as such.
Thus, the sort of comment you highlight and I quoted could be a disagreement about the fundamental definition of marriage, combined with a refusal to let the other side choose the language of the debate. Thus, they would reject your (and the CA court's) assertion that the one-man, one-woman definition is simply "one limitation in the state's marriage law," and state that is in fact part of the fundamental definition, and any court or legislative decision that removes this limit constitutes a redefinition of the institution rather than the simple removal of "one limitation...[that] could not be justified." Certainly some people who raise this point do so because of the reasons you argue against in your post, but I'm interested in hearing what you think about this theory.
DC: I think you're right that there would be rhetorical battle about whether some or another part of the current understanding of marriage is "fundamental." I think the disagreement comes in whether we can shed what some regard as fundamental and still have a functional and valuable institution called marriage.
On another thread, I posed the question but didn't really get any answers. If the word "marriage" really is the issue, and not the rights therewith connected, would those who oppose same sex marriage support civil unions that are TRULY identical with regard to all rights, responsibilities, and privileges? If not, what aspects of marriage do you think should be granted to Brittney but excluded from Ellen and why?
As far as fundamental definitions go, I think one could make a very good argument that Ellen and Portia are going to be a lot more like a "fundamental" marriage than Brittney and her Las Vegas buddy...
So homosexuality cannot be considered as a suspect.
What Dale wants to do is graft another group onto equal protection because he thinks they should be protected as a policy matter. The factors cited by the California Supreme Court is simply designed to capture those groups social liberals wish to protect. It ignores, of course, that the equal protection clause was never conceived of as being a catch-all for any identifiable group that judges, as a policy matter, believe are worthy of additional legal protection.
But here's a good question -- if not the original understanding of the equal protection clause, where is the legitimacy? I can make credible arguments that race and ethnicity should be protected, as was originally understood under the equal protection clause, but that homosexuality should not be. There are significant differences that are being discussed in the public sphere. None of the framers of the 14th ever conceived that they were voting on gay rights. So now, we're supposed to use that amendment to provide those protections, without ever having a legitimate vote on the subject?
That sounds anti-democratic and tyrannical to me, even if you agree with the policy.
DC: Very little of our equal protection jurisprudence, including the decisions on race that people regard as canonical, like Brown v. Board, can be explained fully in originalist terms. Unless we're prepared to say that much race-based segregation is constitutional, and that the Constitution provides no special protection against excluding women from things like the legal profession, we are left to argue largely by analogy about what is protected. The text of the equla protection clause is spacious, and is certainly not limited to race, but applies to all "persons." Gays are persons. So the question is not simply whether some Nineteenth Century legislator might have objected to a particular form of discrimination. It's much more complicated than that.
I should point out that similar argument could be made about a law that prevent interrace marriages. It doesn't forbid you from marrying, it just forbids you from marrying a person of a different race.
So that's the obstinate and annoying behavior -- using a word as it's always been used! Don't worry, we're well on the way to redefinition. Look at all the headlines about a gay marriage ban. There never was a ban. I often have the feeling that Humpty Dumpty controls the media.
Dale fairly complains that this position "elevates form over substance." I agree. But for better or worse, that is a defining and much-criticized feature of equal protection jurisprudence in general. Traditional equal protection jurisprudence revolves around the identification of formal or intentional classifications based on particular traits. So while I am sympathetic to Dale's criticism, he is tacitly challenging the traditional structure of equal protection jurisprudence itself -- a much larger task than just critique the California decision. To assess the that decision itself, I would start by accepting the general structure of equal protection jurisprudence, which focuses on classifications, not group-based subordination or power theories.
When we turn to the marriage exclusion and search for a classification, we simply do not find one based on sexual orientation, if we take sexual orientation to mean an inclination to experience sexual attraction to people or one or the other sex. The problem is that the exclusion formally forbids two straight men from marrying just as much as it forbids two gay men or two bisexual men from marrying. That few straight men want this opportunity is irrelevant for formal classification purposes. (That's relevant to a disparate impact inquiry.) Marriage forms do not inquire into anyone's sexual orientation, nor are two straight men allowed to marry by rebutting some presumption that same-sex applicants are gay. Gay, straight, bisexual, asexual - it makes no difference. The rule is no same-sex marriages. To borrow from Title VII law, sexual orientation and celebrating a same-sex marriage, though highly correlated, are "analytically distinct." One may choose not to act on a same-sex attraction, and one may even choose to marry a person of the opposite-sex despite having a same-sex attraction. I don't celebrate either option. Indeed, either is tragically dysfunctional. But my narrow point is that they are analytically distinct, so far as formal equality jurisprudence is concerned.
Nor can one succeed in establishing a covert classification based on sexual orientation by proving that the exclusion of same-sex couples from marriage rests on an intent to discriminate on the basis of sexual orientation. It does not. This theory would require a challenger to prove that it really isn't the same-sex marriage or same-sex conduct that the legislature finds objectionable; rather, it is the homosexual orientation itself that is objectionable. The theory requires a challenger to show that the legislature excluded same-sex couples from marriage because the legislature wanted to injure people for having a homosexual orientation -- that their same-sex relationship was targeted merely as a proxy for getting at each individual's psychosexual inclination toward members of the same sex. But it is simply not credible to believe that the legislature was indirectly targeting homosexual orientation rather than directly targeting same-sex relationships.
And that is where I disagree with Dale's yarmulke analogy, provocative and insightful as it may be. What possible reason, other than something related to Jews, would the government have for prohibiting everyone, Jewish or not, from wearing Jewish religious accoutrement? While such a ban may not formally classify on the basis of religion, the absence of any other credible purpose for such a law would allow a challenger to establish anti-Jewish intent. But although the government probably has animus against same-sex relationships when it excludes same-sex couples from marriage, it is much harder to argue that the government has animus against people with a homosexual orientation, which this theory would require. This is particularly true when one realizes that many opponents of same-sex marriage deny the existence of any such orientation. It is hard to prove intent to discriminate on the basis of a trait that the alleged discriminator doesn't believe to exist.
And the linkage to homosexual orientation is crucial, for it is the quasi-immutability of the orientation that provides part of the basis for strict scrutiny.
The formal nature of equal protection jurisprudence, on the other hand, should expoose the exclusion of same-sex couples from marriage as a sex-based classification. Again, whether it subordinates women as a class is a Marxian-type inquiry not traditionally part of equal protection jurisprudence. Very simply, the exclusion turns on identifying the sexes of the applicants and excluding applicants whose sexes match. That's why the government inquires about sex and why transgender applicants have to be wedged into one sex or the other -- to know whether their marriage would be same-sex or opposite-sex. Gay, straight, bi makes no difference. The critical element of the exclusion is sex: Are you a man, and is your co-applicant also a man? Sex is the but-for cause. The exclusion of same-sex couples from marriage is completely analogous to a judge refusing to award custody to a parent who is the opposite sex from his child -- the inquiry is whether the sexes match or not. That kind of sex-based custody rule would undoubtedly be treated as a sex-based classification, and should.
We already have a standard of review for sex-based classifications. Under federal law, it is skeptical scrutiny, and under California law, it is strict scrutiny. And the immutability argument works here too. A is denied the right to marry B because both are male, yet A cannot (easily) change his sex to female in order to take advantage of the opportunity to marry B. True, he doesn't have to marry B, but that isn't the point. The point is his sex has precluded him from the opportunity. Imagine a court saying "C can't change her sex to male in order to apply for a male-only job, but doesn't have to apply that job; she can go apply for a female job, one that is 'appropriate' for someone of her sex." What triggers heightened scrutiny for sex-based classifications is not that subordination of women or men is evil; it is that restricting individual opportunity on the basis of a trait over which one has little control is unfair.
The standard response to the sex-discrimination argument is a pathetic equal-application excuse, one thoroughly repudiated in the interracial context. The principal problem with the equal application excuse is that the opportunity to marry a man is simply not the same as the opportunity to marry a woman. I defy any heterosexual to claim that allowing only same-sex marriage would be just fine because, really, the sexes are perfectly fungible so having a wife or having husband, well, a heterosexual is just indifferent as between those two opportunities.
DC: Thanks, Steve, for typically thoughtful, deep, and engaging post. I don't have time to respond in detail, but it does seem to me that once you concede that the yarmulke ban could constitute "religious" discrimination, as I think you must, a lot of the bite has been taken out of the rigidly formalist view of equal protection. I also think that sexual orientation may be sui generis for equal protection purposes, making reliance on formalism especially inappropriate. Unlike race and sex, there is no visible, physical characteristic for sexual orientation. There is no genetic test. It is manifest only by word ("I am gay") or deed (sexual acts or, in this instance, forming an intimate bond with another person). That ties it, and the discrimination aimed at it, more closely to acts than exists in the case of race and sex. That's why, to me, the closer and more interesting analogy is to religious discrimination, where the trait and the discrimination aimed at it is necessarily based on word ("I am Jewish") or deed (Yarmulke-wearing), rather than to some characteristic that's either visible in itself or rooted in biology.
On the sex discrimination argument, about which you know I have more doubts than you, I'll have more to say in a coming post.
To put it more crudely, isn't there is difference in sexual preference between the "leg man" and the "breast man"? If that's the case, isn't each man his own class (or doesn't he at least have his own sexual orientation)? And isn't it sexual-preference discrimination to prohibit sex with minors or sex with dogs?
Re: whether gay people are an identifiable class. I'm no Queer Theory professor, but I did study in college! I think pressing this question is a bit obtuse. Yes, sexual orientation is not totally binary. Similar things could be said regarding race - defining what race someone "really" was was a major obsession in Nineteenth Century America, precisely because racial categories are not truly discrete. Some people are bisexual; some people are also biracial or multiracial. As a practical matter, however, it's generally easy to identify and discriminate against members of racial minorities. And as a practical matter, it's generally easy to identify and discriminate against gay people. In either context, discrimination usually follows from the fact that one is not squarely and completely situated within the dominant group; racist employers will generally discriminate against Black and biracial workers alike, and homophobic employers will generally fire gay and bisexual workers alike.
Angelsong - the answer is conception rights. All marriages should have them, but no same-sex couples should.
Great. So the text doesn't mean what it says. Instead, when one puts on their secret originalist decoder ring, they learn that it *really* means what someone thinks the drafters thought it meant. Nothing at all troubling about that.
Very little of our equal protection jurisprudence, including the decisions on race that people regard as canonical, like Brown v. Board, can be explained fully in originalist terms. Unless we're prepared to say that much race-based segregation is constitutional, and that the Constitution provides no special protection against excluding women from things like the legal profession, we are left to argue largely by analogy about what is protected. The text of the equla protection clause is spacious, and is certainly not limited to race, but applies to all "persons." Gays are persons. So the question is not simply whether some Nineteenth Century legislator might have objected to a particular form of discrimination. It's much more complicated than that.
I strongly disagree. Although the equal protection clause may have been expanded in many ways, that doesn't make those expansions legitimate and certainly doesn't justify further expansions. Everyone with a political beef should not be able to chime in and say "my group deserves special protection" just because an equal protection clause exists. If there's no baseline for judges to use except tests they themselves create from whole cloth, then the people frankly never had a say to begin with, and the whole basis of the Constitution is subverted. There's no source of legitimacy; it's just one group using the Supreme Court to win a policy victory.
Moreover, I would probably disagree with you with respect to Brown v. Board of Education being unjustifiable by purely originalist means. The original understanding of the equal protection clause was to protect certain basic categories, particularly race and ethnicity, from unequal treatment under the law. Segregation was acceptable with the tacit assumption that it was truly equal. Decades of experience showed that to be a lie, and the justices concluded that segregation could never guarantee equal treatment. Given that Brown comported with the original understanding and was merely informed by the facts on the ground, I would argue that it is still an originalist decision.
As for applying the equal protection clause to gender, I don't believe that is legitimate because the equal protection clause was never intended nor understood to concern gender equality. We even had an opportunity to have a gender equality amendment (the equal rights amendment) but it failed to be ratified. As much as I dislike the notion of certain types of gender discrimination, I don't believe the equal protection clause is a legitimate solution.
I understand that the equal protection clause applies to "persons." However, it doesn't apply to every particular attribute a person has. Saying that the courts can protect sexual orientation by analogizing it to race is just another way of saying that the courts can protect any group they *want* to protect by analogizing it to race. It's judicial fiat with respect to a policy issue. Much of this country doesn't buy the analogy, including myself.
This clearly cuts against strict scrutiny and suspect classification.
True. But we can analytically distinguish good analogies from bad ones (e.g., "Unlike race and sex, there is no visible, physical characteristic for sexual orientation. There is no genetic test.").
Likewise, we can call foul when analogies are skewed in relevant ways. Let me give an example involving Brown. One defense of this decision is "it was counter-majoritarian, just like Brown." That's a problem for two reasons:
1. Brown was not counter-majoritarian. According to Gallup, at the time it came down, 55% of the American public agreed with it.
2. There is no contemporaneous public polling on Plessy v. Ferguson. But Justice Harlan expressly dissented in Plessy on republican grounds, suggesting he thought the majority was acting in a counter-majoritarian fashion:
Even if the California Supreme Court in the Marriage Cases was counter-majoritarian, like Plessy and unlike Brown, that doesn't justify it; comparison to Brown is just a bad analogy.
That's problematic. You're safe because it's California state practice rather than federal practice, but unsafe because of the lack of a justification for racheting up the level of review. The decision could have been decided on rational-basis with a short opinion that said "equal rights, but different terms is arbitrary". That it wasn't decided on those grounds makes the opinion look result-oriented, rather than an honest assement of social reality and the precise application of prevailing precedent.
First of all, some varieties of originalism would regard as salient only what the text of the Fourteenth Amendment meant when it was ratified. See generally United States v. X-Citement Video, Inc. (Scalia,J., dissenting). On that theory, efforts like Prof. McConnell's to show what the Republican Congress thought it meant aren't dispositive.
But more to the point, it's apparent from the debates that surrounded the passage of the amendment that it was understood to only apply to civil rights, rather than political or social rights. (Justice Harlan's dissent in Plessy also refers to the distinction repeatedly). As Prof. McConnell has pointed out, things like being able to serve on juries and being able to marry people of other races weren't "civil rights." That's also why the Fifteenth Amendment was passed to guarantee blacks the franchise.
Under that scheme—which probably forms the original understanding of the Fourteenth Amendment—much of our basic equal protection jurisprudence would be wrongly decided. Brown would be shaky, and Loving v. Virginia (and presumably Perez v. Sharpe) would almost certainly be wrongly decided. Maybe you'd be okay with that, but it probably wouldn't go over well with most people.
Perez v Sharpe's arguments seem applicable:
Telling a member of a gay couple that they should just replace the irreplaceable love of their life with someone of the opposite sex has the same feel.
(As does, considering medical technologies available now and not in 1948, the odd suggestion seen (somewhere on the net, recently) that a gay couple could just have one person undergo a sex-change operation.)
First of all, some varieties of originalism would regard as salient only what the text of the Fourteenth Amendment meant when it was ratified.
Well, when the text is this vague you can't simply apply it literally as written. You need to at least know exactly how the amendment was understood.
Under that scheme—which probably forms the original understanding of the Fourteenth Amendment—much of our basic equal protection jurisprudence would be wrongly decided. Brown would be shaky, and Loving v. Virginia (and presumably Perez v. Sharpe) would almost certainly be wrongly decided. Maybe you'd be okay with that, but it probably wouldn't go over well with most people.
Certainly, but that's a consequentialist argument. I could respond by saying that those decisions were great on policy and should stand, but we shouldn't be deciding policy issues in the same manner today because we just got lucky then -- if we don't restrain ourselves, there's no limit to the instrusion on the democratic branches.
I could also refer to other examples of judicial overreach made in the same manner to show that we shouldn't allow a few good results to cloud the fact that judicial overreach just as often garners bad results, and it does so without democratic legitimacy.
Right. The argument is not that those past decisions are bad, but rather that going forward, this is a bad thing to do, including in this bad California case.
Doesn't work that way. Once you acknowledge that it is the consequences that truely matter in those cases and not the originalism, you have to argue against making gay marriage legal through the court system leads to bad consequences in it of itself. This is because you say orginalism doesn't matter when it leads to consequences you don't like.
Doesn't work that way. Once you acknowledge that it is the consequences that truely matter in those cases and not the originalism, you have to argue against making gay marriage legal through the court system leads to bad consequences in it of itself.
Well, I never "acknoweldge[d] that it is the consequences that truly matter in those cases and not the originalism[.]" I simply said that having good results from bad jurisprudence in the past doesn't justify doing it now. I might be glad when a policeman does an illegal search and, in so doing, captures a serial killer. However, I'm glad only because the killer was caught; I deplore the method and would prefer it hadn't been done that way, because it's the wrong way. What the 9th Circuit did is the wrong way.
But laws that discriminate against gays discriminate against a group, not a person, either.
What did the 9th Circuit do? I thought this ruling was reached by the California Supreme Court, 6/7ths of which was appointed by Republican governers, and 7/7ths of which was re-confirmed at the ballot box by the California voting populace.
Patrick Meighan
Culver City, CA
"...Moreover, given the lack of meaningful, scientifically valid studies on how children raised by gay couples turn out, reasonable people can disagree on this second factor. Still, to call it "uncontroversially met" is a real stretch."
In light of the second bolded clause, on what legitimate, recognizable basis would conservatives stake the argument made in the first bolded clause? And more importantly, why should we care enough to elevate the claim to the point of controversy?
I may argue that Santa brings me presents each Christmas, but given the lack of meaningful, scientifically valid studies demonstrating that Santa brings me presents each Christmas, there's no particular reason to consider my argument legitimate, or to consider the claim that there is no Santa anything other than non-controversial.
Patrick Meighan
Culver City, CA
What did the 9th Circuit do?
Sorry, I forgot that this post was still on the California Supreme Court's decision in the marriage case. The 9th Circuit did, however, recently apply intermediate scrutiny to "don't ask don't tell," so the same logic applies.
I thought this ruling was reached by the California Supreme Court, 6/7ths of which was appointed by Republican governers, and 7/7ths of which was re-confirmed at the ballot box by the California voting populace.
The Republican governor part is a red herring; Republican-appointed justices routinely wind up being social liberals, often to the chagrin of Republican executives (i.e. Eisenhower and Warren). Moreover, Republican governors in California have frequently been socially liberal anyway, including the current governor. Your point is not well-taken.
It does soften the blow that the voters have re-confirmed these justices, but bear in mind that the voters aren't supposed to be electing legislators, but judges, which raises a different set of priorities. It would be more helpful if everyone minded their own spheres.
What should count in terms of rights though is the imprinting. People with male imprinting can conceive with unmodified gametes with a typical female. And people should not have a right to conceive with modified gametes, in order to preserve equal rights to conceive with ones own gametes and prevent a Brave New World of coercive eugenic genetic engineering and the government regulation and industry that would accompany it.
Legally sex is at first assigned based on that guess, usually by visual guessing or sometimes genetic testing, but it can be wrong and it can be changed to be contrary to that biological guess. So a person's legal sex would determine their public conception rights, while their genetic imprinting would effect their private ability. If we had that law I am pushing for regarding conception rights that restricted people to using unmodified gametes, the lab would at first be restricted by legal sex, forced to turn away couples of the same public legal sex who would be publicly prohibited from procreating. But some couples that would be publicly allowed to procreate (and therefore marry) would ultimately (and privately) be restricted by the couple's genetic imprinting, and the lab would have to tell them privately that it was not allowed to help them conceive, because that would require modifying their gametes. In other words, legally changing sex or having a legal sex that doesn't match the imprinting should not open a loophole to allow use of modified gametes, even though the couple is legally married and publicly allowed to conceive together.
Thanks for the intriguing reply, Dale. I agree up to a point. I've always thought religion was a closer analogy to sexual orientation than race. But using that analogy introduces a problem. The principal constitutional protection for religious conduct is the First Amendment, which explicitly protects free exercise of religion, which seems clearly to encompass conduct. (Similarly, Title VII had to be amended in 1972 to add express protection for religious conduct.) So the lesson may be that to cover sexual orientation as conduct, we need constitutional rights aimed at conduct. But that, unfortunately, may get us back into the substantive due process, fundamental right to marry quagmire. (In California, however, the state constitution's explicit "right to privacy" provision makes that kind of analysis less controversial than at the federal level, a point that has not been adequately addressed by those criticizing the California decision as activist. Hello? There is a "privacy" clause in that constitution!)
Maybe the conduct aspects can somehow be incorporated into equal protection. But when the focus shifts to volitional conduct (as opposed to non-volitional feelings), I worry that the foundation for strict scrutiny no longer exists - the unfairness of burdening someone for something over which he has little effective control. More generally, I suppose I also get nervous if we have to resort to the proposition that sexual orientation is sui generis.
In contrast, a person's medical records, their fertility, their and their genome are private, so there can't be any discrimination regarding their public rights on those things, everyone has to be treated as equally fertile, healthy, and genetically fit and have the same rights regardless of their private situation.
More to the point, your focus on reproduction is off-base. It is true that people often speak of procreation as one of the reasons for having civil marriage. But that point doesn't work the other way around - that only people who are married have the right to procreate. The right to have children is not a right bestowed by marriage. Unmarried people have the same constitutional right to reproductive freedom as married couples do. See Eisenstadt v. Baird. In other words, excluding same-sex couples from civil marriage does not have the effect of denying them the right to have children because that right doesn't flow from marriage.
Right, not these days, anyway, but I've been trying to get people to see that if we excluded same-sex couples from the right to conceive children (which we should do to prevent unethical genetic engineering and preserve everyone's conception rights), that has the effect of denying same-sex couples one of the intrinsic rights of marriage. Allowing them to marry if same-sex conception were prohibited would radically change marriage. So far, every marriage has had the right to conceive children together, since the beginnings of marriage in every culture and era, confirmed most recently in Lawrence.
The things I say about privacy are right. What specifically do you disagree with?
I don't think privacy came up in Loving at all, and that Moore case seems to be a Due Process case, it doesn't imply that privacy allows someone to pretend who someone's parents are, in fact it says that the fact that they are grandchildren means they should qualify as family, which seems to be the opposite conclusion from the claim that their relationship should be protected by privacy, since it didn't strike down the "family" requirement entirely and distinguished this case from a case limiting dwellings to people related by "blood, adoption, or marriage". This case just said they had to include grandchildren in their definition of family, implying that relatedness is a public fact, not private at all.
And Eisenstadt did not give single people the right to conceive together, only the right to make decisions whether or not to bear or beget children, and therefore to try to prevent conception while single. But it doesn't follow that if someone decides to bear or beget children that they don't have to marry first, that is a "warranted" government intrusion. It's like an unlicensed driver can make a decision whether or not to drive, but can't just go ahead and drive without gettig a license first. There is a big difference between a right to prevent pregnancy and a right to have sex. It didn't strike down fornication laws, it left Massachusetts fornication law and just said this law wasn't related to that. The court even relied on Wisconsin's fornication law five years later in deciding Zablocki.
None of the decisions literally addressed criminal fornication laws, but there is broad agreement that those laws are unconstitutional under this doctrine since Lawrence v. Texas.
Lawrence didn't have anything to do with sex, which is public behavior because it can't be kept private. It applied only to stuff two people do in the privacy of their home, the physical privacy of their home, where no one else sees them. That was central to the case, they mention that like a hundred times. It in no way said they can now go outside and announce what they had just done, that would be a whole different set of circumstances and presumably a different outcome.
What specifically do I say is private or is public that you disagree with? What about the right to conceive with someone of the same sex, do you think that is a liberty or would a ban on using modified gametes and a ban on creating people except by combining the egg of a woman and the sperm of a man be constitutional?
What about same-sex couple who want to marry, and one of them has children (let's say that their spouse died, to remove questions of custody. 25% of married same-sex folks in the US have kids.)
Can they get married to raise the children? Genetically, any new spouse--same sex or not--will be unrelated to the child.
How about an older lesbian who had children and now has gone through menopause--can she get married to another older lesbian?
Equal Protections, No Conceptions www.eggandsperm.org