A number of thoughts regarding the oral argument in the
same-sex marriage case this week. Before I begin, please note that for
reasons of time, this posting is directed more towards lawyers or others with
some legal training. I am in the middle of final exams and so I do not
have time to lay everything out in full.
First, among the commentary I have reviewed, I found this
posting at the Originalism Blog to be quite interesting.
Equal Protection versus Due Process in Obergefell v. Hodges
Michael Ramsey
This is my favorite part of the oral argument in the
same-sex marriage cases (from Lyle Denniston's analysis at SCOTUSblog):
The federal
government’s view is that the Court should rule in favor of same-sex marriage,
based upon the Fourteenth Amendment’s guarantee of legal equality.
He [Solicitor General Verrilli] had no answer when Justice Kennedy asked him
for the government’s views on whether gays should have a right to enter
marriage, under the Fourteenth Amendment’s Due Process Clause, because marriage
is a fundamental right. The government was not prepared to opine on
that issue, Verrilli told Kennedy.
I like the subtle
message sent here.
Among other reasons, there's a practical (though
originalist-based) argument for preferring the equal protection clause over the
due process clause. A problem with finding a fundamental right to
marriage unmoored from the traditional understanding of marriage is that there
is no obvious stopping point. If same-sex couples have a fundamental
right to marriage, why not polygamists? Or indeed people who want to marry
their brother, or their dog, or their piano? At some point the Court would
have to say what is "really" a marriage and (critically) what is not.
There is simply no way to do this on the basis of anything other than the
judge's moral intuition. Like other arguments from moral intuition
purporting to rest on the due process clause, the whole enterprise is corrosive
of the rule of law. No one will think of it as anything but the Court
making it up. (This concern has been raised by commentators generally
sympathetic to same-sex marriage, for example here by
Elizabeth Price Foley and here by Josh Blackman.)
But this concern has force only if one thinks of the
case as being about marriage (the due process perspective) instead of being
about discrimination (the equal protection perspective). Equal protection
offers a more defensible grounding, and a more defensible stopping point. As
I've argued, the key is describing sexual orientation
discrimination as a form of caste legislation. (In modern doctrinal
terms, to think of laws discriminating against people of same-sex sexual
orientation as targeting a "suspect class" and thus requiring a
"compelling" justification.) It seems fairly straightforward to
say that sexual orientation -- but not a preference for polygamy, or for other
nontraditional versions of "marriage" -- constitutes such a suspect
class. Put another way, sexual orientation discrimination can be
analogized to race discrimination (clearly proscribed by the Fourteenth Amendment)
in a way that laws against other kinds of non-traditional marriage cannot.
And that provides a stopping point that can be explained on legal grounds
connected to the Amendment's original meaning.
Let me begin by saying that I actually disagree that there
is no obvious stopping point under the due process analysis. When
addressing individual rights issues under the Constitution, the Court has
generally balanced the importance of the right against the importance of the
state’s regulatory interest. On the state interest side of the balance, I
think it is actually rather easy to show a rational basis (the lowest level of
protection for individual rights), an important interest (for intermediate
scrutiny, the middle level of protection for individual rights), and even a
compelling state interest (for strict scrutiny, the highest level of protection
for individual rights) when it comes to polygamy. Research shows, for
example, that polygamy raises consent issues far more often than two-person marriage.
And, more importantly, polygamy has clear impacts on third parties since the
research shows that men of privilege tend to take extra wives, depriving other
men of the opportunity to marry. In addition, I think there are at least
important interests and often compelling state interests with respect to the
other hypothetical extensions of marriage rights. On the rights side of
the balance, I think there are historical, doctrinal, and conceptual bases that
can be used to draw a line short of polygamy and the other hypotheticals Ramsey
offered. Thus, I’m not concerned with most slippery slope arguments
here. With that said, I think the equal protection argument is more
straightforward and works better for the general reasons Ramsey articulates.
Even if the due process/fundamental rights analysis is not as problematic as
Ramsey contends, he is right that it is more troublesome than the equal
protection analysis, where slippery slope arguments are of virtually no concern.
Second, I was somewhat disappointed by the oral advocacy of
the four lawyers who argued the case. In particular, I was hoping that
respondents’ counsel, John Bursch, the former solicitor general of Michigan,
would do a better job. He was outstanding in the affirmative action case
out of Michigan last year. Thus, I had
very high expectations for him. While
his performance in the marriage case was the best of the four advocates by a
good margin, I thought he was considerably below the standard he set last year
when his argument was one of the best I’ve heard in some time. In
fairness, perhaps part of the drop off is because his legal arguments are much weaker
this time—in the affirmative action suit, his position was close to a slam
dunk. Bursch’s principal argument here was that (1) same-sex marriage
will cause heterosexuals to value marriage less; (2) that will decrease
opposite sex marriage, which will decrease the number of children raised in the
state-preferred manner; and (3) even if you don’t believe these points, the
state rationally could believe it. Thus, since rational basis applies
here (again, the lowest standard of individual rights protection), the same-sex
marriage bans are constitutional. It took him until near the end of his
argument to finally get this point out, though he tried to state it multiple
times before then. Part of the problem was that he kept getting
interrupted by the justices, but part of it was that he kept going back to the
beginning and did not follow through until near the end of his time. In
sum, given the importance of the issue, I wish the advocates on both sides had
been more effective.
Third, I found it interesting that Chief Justice Roberts was
the one who brought up the sex discrimination argument. Sex
discrimination is governed by intermediate scrutiny. And if intermediate
scrutiny (or something higher) is the appropriate standard, there is no way the
same-sex marriage bans cans survive. Assuming the traditional doctrinal
structure applies here, the defenders of the bans must establish two points in
order to win: (1) rational basis governs the constitutionality of the same-sex
marriage bans; and (2) there is in fact a rational basis for the bans. I
think the defenders have strong legal arguments on both of these issues (for an
example on the latter point, see Bursch’s argument discussed in the previous
paragraph). But I think that the correct legal result is the defenders of
the bans lose on both points (though not by a large margin). Thus, I
would strike down the bans on same-sex marriage under the equal protection
clause of the Fourteenth Amendment. My
reasoning is as follows: (1) Roberts is right; this is sex discrimination, so
intermediate scrutiny applies. (2)
Sexual orientation should at least be a quasi-suspect class given the history
of discrimination against gays, lesbians, and bisexuals. Once again, intermediate scrutiny
applies. (3) Even if the proper standard
is rational basis, the argument that same-sex marriage will harm children is
just too attenuated to meet even that extremely deferential standard. And none of the other rational basis
arguments work at all. Note that because I am an exceptionally strong
supporter of same sex marriage on moral grounds (indeed, I think it is arguably
the last major example of formal inequality in American law), I must
acknowledge that my legal analysis here could be biased by my moral
views. However, please also note that I believed that same-sex marriage
bans were constitutional from Goodrich (the Mass. case from 2003—the first time
I really thought this issue through legally) until Windsor (in 2013).
Windsor pushed me over me over the edge—as it seemed to do for the vast
majority of both Liberal and Conservative federal and state judges who have
considered same-sex marriage over the the last two years. With all of
this said, Justice Kennedy has been willing to jettison the traditional
doctrinal framework (i.e., the tiers of scrutiny) in past sexual orientation
cases. In fact, he did so in both Lawrence v. Texas (in 2003, the case
that upheld the right to engage in sodomy) and in Windsor. Given this,
and given the willingness of the other justices to go along with Kennedy’s
alternative modes of constitutional analysis, my discussion in this paragraph
might all end up being entirely besides the point.
Fourth, oral argument is seldom a sure sign of things to
come, and thus I remain largely agnostic on what is going to happen. I
lean slightly towards it being 5-4 striking down the bans, but I will not be
surprised at all if Kennedy joins the Conservatives and it is 5-4 in favor of
the bans. I also won’t be surprised if both Kennedy and Roberts join the
Liberals, making it 6-3. Anything other than those three options would
surprise me. This has been my view since
shortly after Windsor and the oral argument this week did nothing to change my
very modest prediction. (Note that I have no predictions re. the full
faith and credit analysis, just the 14th Amendment).
Thanks for reading. As always, all comments are
welcome.
