Tuesday, July 2, 2013

State Gay Marriage Bans and the Equal Protection Clause

Part I: Hollingsworth v. Perry and the Buildup to a Showdown

In this week’s second major Supreme Court decision, the Court dismissed the case of Hollingsworth vs. Perry, which had challenged a lower court’s decision to overrule Proposition 8. Proposition 8 was a law passed in California by referendum in 2008, with 52% of the statewide vote, that banned gay marriage. A lower court had ruled Proposition 8 unconstitutional, and state officials had declined to defend the law in the higher court. Private parties then stepped up to defend the law before the Supreme Court, setting up a showdown on the constitutionality of banning gay marriage even at the state level.

Ambitious gay marriage advocates had hoped the court would overturn not only proposition 8, but would declare any state prohibition of gay marriage to be unconstitutional. Their argument was that affording straight couples benefits which gay couples were not afforded violated the equal protection clause of the 14th amendment, which reads “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”

Instead, the Court dismissed the case, ruling that those who brought the suit had no standing. Standing is essentially the legal term for having some stake in the game; in order to file suit against a certain law or policy in court, you must demonstrate that you yourself were actually harmed by that law or policy, and thus have a personal connection to the outcome of that case. Since California state officials had refused to defend Proposition 8 in court, the Court ruled that none of the private parties bringing the case to their attention had any personal connection to the issue, and so refused to give any ruling whatsoever.

In practice, this means that Proposition 8 will be overturned, in accordance with the decision of the lower federal court. Governor Jerry Brown has ordered state officials to renew the issuance of homosexual marriage licenses as soon as the lower court’s “stay” on the matter is lifted, which by law must happen within a matter of weeks. For all intents and purposes, gay marriage is once again legal in the state of California. And thanks to the Court’s other ruling on DOMA, married same-sex couples in California will receive equal benefits with heterosexual couples in all federal programs.

From one perspective, attaining marriage equality in America’s most populated state is a tremendous thing that’s worthy of celebration. Coupled with the DOMA decision, this made for a day of fantastic news for most gay-rights supporters. Nevertheless, gay couples in the 37 states in which gay marriage remains illegal could be forgiven for feeling unsatisfied by the day’s events. For the first time in our nation’s history, it had seemed plausible that the Supreme Court might deem any gay-marriage ban, at the state or federal level, to be unconstitutional, which would have instantaneously mandated the legalization of gay marriage across all 50 states. Losing that opportunity, not because the court disagreed but because of a relative technicality such as standing, must be frustrating to those whose lives are most impacted by these decisions.

However, most suspect that the Perry decision will only delay an eventual ruling on this matter. Additional challenges will be filed to gay marriage bans in much more conservative states than California. Lawmakers in those states will presumably want to keep gay marriage illegal, and will presumably be willing to defend its illegality in court. In the very near future, somebody with unquestioned standing will ask the Supreme Court to decide if a state law which recognizes heterosexual marriages only violates the constitution. How will the court rule when that day comes?

Two weeks ago, nobody had any true inkling of how the court may rule. But if the majority opinion in this week’s DOMA decision is any indication, the votes should be there to legalize gay marriage across the entire country. Had the majority struck down DOMA on the basis of federalism, their opinions on state-level marriage laws would have remained a mystery. But as I described here, the majority did not use federalism as the primary justification for the Windsor decision. Instead, they implied that the practical injustice and sheer mean-spiritedness of DOMA was enough to violate the Due Process clause of the 5th amendment. Since meanness and injustice transcend the boundaries of federalism, it’s easy to imagine a similar standard being applied to the states through the 14th amendment. Certainly, conservative Justice Antonin Scalia believes the five-justice majority intends to eventually invalidate state-level gay marriage bans as well, writing as much in his dissenting opinion:

 “As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

But how the court will rule is one question; how they should rule is another. And while the first question cannot yet be answered with anything more than conjecture, the second question is rife for debate.

Part II: Why Homosexuals do get Equal Protection

The case against state-level gay marriage bans relies primarily upon the 14th amendment, which reads in part:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Many argue that recognizing heterosexual marriage without recognizing homosexual marriage denies homosexuals the equal protection of the laws, and should therefore be ruled unconstitutional. This is the argument the opponents of proposition 8 sought to advance in Hollingsworth v. Perry.

However, I disagree with these people. As unfair as laws like Proposition 8 are, they do apply evenly to people of all sexualities. Even in states which prohibit gay marriage, a gay man and a straight man can marry the exact same set of people, and are granted the exact same benefits should they do so. People of different sexualities may choose to behave in different ways, but the ways in which they are permitted to behave are identical. No privileges or immunities granted to straight citizens are being abridged for gay citizens. No gay person is being deprived of their life, liberty, or property. And no gay person is denied the equal protection of the laws, because the laws protect their right to traditional marriages the same as they do for straight people. From a legal perspective, homosexuals have the same rights as anyone else.

Of course, homosexuals do have different preferences, and in practice those preferences yield unequal benefits. The specific privileges which lawmakers bestowed equally upon everyone may be more compatible with the preferences and tendencies of one group than they were with those of another. The law may therefore disadvantage people with alternative preferences or tendencies. If so, the law is unfair – but it still treats everyone equally. And the reason it’s unfair is not because it discriminates against gay people in favor of straight people; more accurately, the injustice is caused when the law refuses to discriminate between the two.

Asserting that traditional marriage denies homosexuals the equal protection of the laws requires one to adopt an extraordinarily expansive view of what the laws are designed to protect. Such a standard would require not only that the law treats everyone equally, but that it affects everyone equally. If applied, such a standard would indeed render gay-marriage bans unconstitutional; to borrow the language of the Civil Rights Act, marriage definitions that exclude same-sex marriage carry a “disparate impact” on the lives of homosexuals* (see footnote in comments). But even a precursory review of this standard reveals that its implementation across all laws would be impossible and undesirable. Practically everything the government does affects some people differently than others. Black people are more likely to have low incomes than whites, and so laws on the minimum wage, or taxes, or any other economic decision may impact them disproportionately.

Ultimately, this viewpoint would require the Court to ignore the law’s direct treatment of individuals, and instead analyze its indirect impact on broad swaths of society. But weighing the pros and cons of a law on society at large is Congress’ job; the Supreme Court is merely here to defend our constitutional rights. Those rights apply not to broad demographics, but to individuals – which is why the 14th amendment reads “no person”, rather than “no group of people.” In order to convince my libertarian mind that the 14th amendment has been violated, we’ll need to identify two individuals who are granted different legal privileges as a sole consequence of their distinct personal characteristics.

Part III: Why banning same-sex marriage is unconstitutional anyway

Luckily for the gay marriage cause, such individuals do exist: they’re called women, and men. Earlier, I observed that a gay man is allowed to marry the same set of people as a straight man, and this is true. That set of people is women. But not everybody is allowed to marry that set of people; specifically, other women are prohibited from doing so. This means that a woman and a man, regardless of their respective sexualities, do not have the same legal privileges. They do not have equal rights. In fact, there is a double inequality of rights, in that both women and men are permitted to do something the other is not. Therefore, both women and men are denied the equal protection of the laws. Both women and men – literally all of us! – are the victims of unconstitutional state-sponsored discrimination.

This may seem counter-intuitive, because traditional marriage is not intended to harm either men or women as a class of people. Understandably, this leads many to feel it can’t really be discriminatory. When we hear the word discrimination, it conjures images of prejudice, bigotry, and even hatred towards a specific segment of the population. We like to label that segment as the one which is “discriminated against”. But the literal definition of the verb “discriminate” is simply to distinguish between different groups, which does not necessarily require a desire to harm either of those groups. Differentiation does not imply hostility. It is possible to discriminate without discriminating against anything.

The beauty of this argument is that according to the Supreme Court, hostility is not required. In the 1976 case of Craig v. Boren, the court ruled that any “statutory classifications that distinguish between males and females” count as gender discrimination, whether or not they were motivated by a desire to harm one or the other. It is true that in cases where the challenged government action does not mention race or gender outright, and thus appears to be neutral on such matters, discriminatory intent must be proven* (see footnote in comments). But since defining traditional marriage requires the law to explicitly distinguish between men and women, such laws automatically classify as gender discrimination, even if they weren’t motivated by animus towards either gender.

This brings me to the niftiest feature of the gender discrimination argument: gender has been granted “suspect-class status” by Supreme Court precedent, but sexual orientation has not. What this means is that laws which categorize people on the bases of their gender – as all traditional marriage definitions must – are automatically subject to “intermediate scrutiny” to determine if they are “substantially related” to an “important” state function (thanks again to the 1976 case of Craig v. Boren). Sexual orientation, by contrast, is not yet a protected category, which means laws which categorize homosexuals as a separate class would only need to pass a “rational basis” level of scrutiny, to determine if they might plausibly serve some “legitimate” state function.

This is a significant boon to the gay marriage cause because it increases the burden on our opponents. Presenting the case from the perspective of gender discrimination would require the state to provide a good reason why same-sex marriage ought to be banned – and there exists no such reason! What important state function is served by preventing same-gendered people from marrying one another? As any advocate of gay marriage should agree, the arguments against it are laughably weak. If the court were feeling sympathetic, it’s at least conceivable that the state could bullshit its way to a “rational basis” justification. But getting five of the most educated legal minds on the planet to agree that banning gay marriage is substantially related to serving an important state function seems much more far-fetched.

Taken in conjunction, these facts mean the gender-discrimination case is stronger than the homosexual-discrimination case for two reasons. First, it would be easier for a challenger to demonstrate that traditional marriage definitions discriminate on the basis of gender than it would be to demonstrate that they discriminate on the basis of sexual orientation. Second, once it has been demonstrated that some discrimination is taking place, under the gender approach it would be harder for the state to justify that discrimination in a way the court deemed satisfactory.

Part IV: Final Remarks

As encouraging as the recent repeal of DOMA was, it is clear that work remains to be done. Gay marriage should be legal in all 50 states, inequality anywhere is an injustice. In the hopes for a more expeditious remedy than state-by-state legalization, many gay marriage advocates have turned to the courts. But so far, their efforts have been frustrated by the inability to align that injustice with the violation of an explicit constitutional right.

There are four potential solutions to this problem. The first is to give up on the courts and work towards legislative solutions at the state level. The second is to amend the constitution to add the rights we wish it already included. The third is to broaden our interpretation of the constitution such that it grants the rights we desire anyway. The fourth is the argument I have laid out above.

Options one and two may work, but they won’t work soon. Each requires great patience, something unaffected heterosexuals like myself have little right to ask from the victims of current policy. Option three is dangerous and wrong, because it makes a mockery of constitutional law opens the door to similar abuses in the future. But option four is an effective, ideologically consistent, libertarian friendly, individual-rights based solution for the short and long-term. It attains marriage equality now, without pretending the constitution reads differently than it does.

Perhaps there are some who dislike this approach because it separates the legal fight from the social fight. In theory, this case would not even need to be filed by a homosexual, and the court’s ruling would not need to reference homosexuality at all. Some say this conflates the victim. The desire to ban gay marriage is not caused by discrimination against straight men or straight women. Neither straight men nor straight women are victimized by homophobia. Homosexuals have been fighting that oppression for centuries; just when society seems ready to embrace them fully, my approach appears to rob them of their day in the sun. Those who have worked so tirelessly for the gay rights cause may feel the Court owes them an official, emphatic pronouncement that they were right, and the bigots were wrong. That ruling has never seemed more within reach than it does today, because the majority rhetoric in the Windsor opinion suggested that the old arguments may work after all. Even if the gender approach achieves the same practical effect, it lacks the therapeutic value of another liberal justice penning another eloquent smack down of our opponents. Both approaches may yield victory, but making the case about gay rights specifically yields vindication.

Nevertheless, I ask these people to recognize that theirs is not the only issue that will be settled by how the Court rules. Whatever the verdict, the precedent set by so landmark a case will undoubtedly shape future debates as well. It matters not only how the Court rules, but why it rules as it does. Basing the case on gender discrimination is gives the Court solid footing to mandate marriage equality across the nation, without deviating from current precedent at all. By contrast, the case purporting sexual-identity discrimination is, at best, a stretch, require the creation of flimsy rights under a “disparate impact” standard. Stretching the constitution such that it means whatever we want it to mean is extremely dangerous, and there may come a day when that same logic is used to justify something far less noble.

Whichever argument we choose, the arguments against gay marriage are irrational, uninformed, bigoted nonsense. But just because antiquated moral imperialism is wrong does not mean it is unconstitutional. To make it unconstitutional, gay rights advocates must convince the Supreme Court that selectively withholding marriage benefits from same-sex couples denies some citizens the equal protection of the laws. Luckily for us, it does; it’s just that those citizens may not be the ones which initially come to mind.


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  2. *Footnote: The precedent supports my view that disparate impact is not a violation of the equal protection clause. In the 1977 case of Arlington Heights vs. Metropolitan Housing Corp., Justice Lewis Powell wrote in the majority opinion that “Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Disparate impact may be used as evidence of that intent, but it is not “determinative” on its own. Now, many will undoubtedly argue that state-level definitions of marriage which exclude homosexual marriage do indeed have the intent and purpose of harming homosexual people – Justice Kennedy certainly seemed to think so in his majority opinion for this week’s Windsor case. But that may be difficult to prove in court, especially since the state would only need to meet the standard of "rational basis" scrutiny to justify their law.

  3. President Obama is firmly committed to the homosexual agenda and recent promises made to the LBGT and others have caused some in the conservative movement and the evangelical and Pentecostal churches to shudder. It is also clear that the church's concerns have little bearing on the President's position to throw the doors open for the "gay agenda by closing the steel doors around those who make so much as a whimper against the gays. Signing the untested and highly suspect Matthew Shepard act is the latest evidence of that.

  4. There is a fifth solution, which is to end government involvement in marriage altogether. Marriage would then be only a religious ceremony. This would give everybody equal rights, while also protecting the sanctity of marriage. Everybody wins, or maybe everybody loses.

    1. I wholeheartedly support this solution, and have said so on this blog. But advocating the policy that state governments abandon marriage licenses altogether is different from asserting that marriage licenses are unconstitutional at the state level, and I don't think they are. At least, not so long as they afford equal legal opportunities to everybody, regardless of gender.

  5. Andrew, I have what may be a stupid or overly simplistic question about this: at a very basic level, doesn't a law-maker have to have a reason to declare something illegal? Shouldn't the state law-makers be required to have some specific, legitimate reason to ban gay marriage, besides "Leviticus says they're going to hell"?

    1. Excellent question: it's not simplistic at all.

      I think the answer is yes - politicians should have to have a reason to do anything, and they should have to cite that reason publicly and include it in the text of the law. Furthermore, it can't just be any reason; it must be one of the specific purposes for which the people created a government in the first place. A well-written constitution would list these purposes, thereby limiting not only the powers or means by which the government may act, but also the ends towards which it may wield those powers.

      The good news is, our constitution does this: it lists the purposes for which the government is being created in its preamble. The bad news is, some of the purposes it listed are extremely vague ("establish justice"..."promote the general welfare"). Because they're so vague, practically any law can be argued to support one of those purposes. Social conservatives argue that homosexual marriage harms the country, so banning it "promotes the general welfare." Unfortunately, this is not the sort of meaning the framers originally meant. I describe this problem in detail in this post: http://the-thought-that-counts.blogspot.com/2012/08/evaluating-american-constitution_27.html

      If you are frustrated by the vagueness of these phrases and the ease with which they're dismissed, and wish lawmakers would cite more substantial legal justification for wielding the powers they do, you're well on your way to becoming a libertarian. The force is strong in this one, Dan.