I've been blogging about gay marriage legal cases for a long time, and there is very little I can say about individual cases anymore, since a) gay rights plaintiffs are presenting roughly the same arguments, b) courts are, by and large rejecting them for roughly the same (bogus) reasons, and c) "I have long since stopped believing that (absent the political charge surrounding the issue) marriage discrimination presented even a moderately difficult question of law."
Nonetheless, there are a few bits of particular intrigue surrounding the Maryland opinion. The plaintiffs sued under two distinct portions of Maryland constitutional law. The first is Maryland's equal rights amendment, prohibiting discrimination on basis of sex (Article 46, "Equality of rights under the law shall not be abridged or denied because of sex."), and the second is Article 24 of Maryland's Declaration of Rights, which essentially mirrors the U.S. Constitution's 14th amendment equal protection/due process guarantees.
A bunch of commenters have chided me by arguing that the Maryland Court was merely interpreting the relevant Maryland clauses and precedents as they were literally written, not as I wish they had be written. Needless to say, I disagree, but more interestingly, the majority seems to disagree too. Right at the outset of their opinion, in discussing the Article 46 claim, the majority admits that plaintiffs "point to several Maryland precedents that, if viewed literally, appear to support the proposition that a statute receives strict scrutiny analysis under Article 46 if sex is at all a factor in determining whether certain individuals are entitled to the benefits provided by the particular legislative enactment under review" (slip op. at 10-11, emphasis added). Apparently, however, reading precedents literally is "beguiling" (10), and the majority engages in all manner of contortions to dodge out of the clear language of Article 46 and replace it with a more restrictive definition that only burdens the state when it subordinates men or women "as a class" (a term they rely on heavily but don't really explain). I offer the above language, not because I believe the courts can't take more incisive and critical views of precedent that are somewhat extra-textual, because I do, but rather to point out that in this case, the majority is admitting that it is taking the more winding, subjective, interventionist judicial road, and that taking the "conservative" literal reading of Maryland state precedents would almost certainly have given a victory for the plaintiffs. Tragically, this result did not cohere to what my conservative friends wished our constitution to mean, so they jettisoned it.
But, as I indicated, it would be hypocritical of me to say the a court can't examine the "context" of particular precedents to see if they truly are applicable to the case at hand, for I believe in expansive judicial powers and am not generally a strict textualist. So the question for me is whether the distinctions the court draws between its past precedents is persuasive or not. The argument that ERA language requires allowing same-sex marriage has been around for awhile, and it basically goes like this: "Jane marries Bob, legal. Will marries Bob, illegal. The only thing that changed is the sex of Party A, hence, the law is sex discrimination." But the majority argues that the ERA should only be understood to prohibit subordination of a sex "as a class." I gather that the claim they are trying to make is that since both men and women are hit by this sex-based burden equally, neither sex is being treated worse "as a class" and thus Article 46 does not apply. As I noted, this is not explicit or implicit within the language of Article 46, so they are forced to rely on readings of precedent.
Some of the cases they cite work well for their proposition, others, less so, but the one that really kills them (to the point where I think they're treating it disingenuously) is Giffin v. Crane, 351 Md. 133, 148, 716 A.2d 1029, 1037 (19 98) ("[S]ex is not, and can not be, a factor in the enjoyment or the determination of legal rights."). Giffin dealt with a ruling in a custody decision awarding custody to the mother of her two female daughters on the grounds that the young girls needed a female role model in their life (the court decided that both parents were qualified to have custody, and used sex as the determinative factor). Objectively, this is an precise example of a case where a sex-distinction was held to be invalid despite not being premised on subordination "as a class." Mothers were held to be presumptively better parents of daughters, and presumably a man would have been held to be presumptively better parents of sons. Neither one is being subordinated "as a class", like with gay marriage, the sex-based burden falls on both sexes equally and reciprocally (Even though men can't marry men, they can still marry women; even though women can't marry women, they can still marry men. Even though men are burdened from having custody over daughters, they have an advantage for sons; even though women are burdened from having custody over sons, they have an advantage for daughters). As the majority is defining it, there is no way to justify the Court's statement that "in its context," Giffin's rhetoric about sex discrimination is solely "related to distinctions drawn between men and women as classes." (slip. op at 27).
The second interesting development was in the Court's discussion of the Article 26 claims, and specifically whether the Court should apply strict, heightened, or rational basis scrutiny to gay plaintiffs. Though the Court seems to recognize that the plaintiffs have at least a plausible claim here, the Court ultimately holds that:
While there is a history of purposeful unequal treatment of gay and lesbian persons, and homosexual persons are subject to unique disabilities not truly indicative of their abilities to contribute to society, we shall not hold that gay and lesbian persons are so politically powerless that they constitute a suspect class. (55)
For some reason, the grammatical structure here, "we shall not hold that", strikes me as odd. It's not, "we can't" or "they aren't", rather, it seems to admit that this is purely an exercise of judicial discretion -- "While we could very easily hold that gays deserve heightened scrutiny due to the 'history of purposeful unequal treatment' and 'unique disabilities', we won't. Why? Because we're the BAMF's with the gavels, that's why, and we don't have to."
Anyway. Two years ago, I noted the Catch-22 law was placing gay Americans in, by placing way too much emphasis on "political power" as a determinative factor in whether or not to raise the level of scrutiny their cases should undergo. Historically, the only way minority groups could get judicial relief from discrimination was by displaying enough political clout to get them to pay attention. Jack Balkin explains:
In general, courts will protect minorities only after minorities have shown a fair degree of clout in the political process. If they are truly politically powerless, courts may not even recognize their grievances; and if they have just enough influence to get on the political radar screen, courts will usually dismiss their claims with a wave of the hand. Conversely, as a reform movement for minority rights gains prominence through political protest and legislative lobbying, courts will increasingly pay attention to minority rights and take their claims more seriously." [Jack Balkin, What Brown Teaches us about Constitutional Theory, 90 Va. L. Rev. 1531, 1552 (2004)]
However, while that's still true, today minorities are being squeezed from the other side -- if they start to flex any political muscle at all, this is used as proof positive that they no longer need judicial protection. As I wrote:
The problem is getting worse, not better. Because contemporary rhetoric from the far right equates even modest victories by gay rights activists (AKA "the homosexual lobby") as proof of their political potency, homosexuals have almost zero space to operate in modern law and politics. If they win, they will no longer be seen as needing protection from the Courts and will see their victories stripped away by a hostile legislature. If they lose, then they won't be seen as an important problem and the Court will just ignore them. Either way, homosexuals will remain in roughly the same position--mostly powerless, mostly ignored, and mostly reviled.
The Maryland Court's justification for denying either strict or heightened scrutiny fits this to a T and showcases the problem in all its cruelty (and ridiculousness).
The Court identifies three rough factors which may indicate that a group deserves some form of heightened scrutiny:
(1) whether the group of people disadvantaged by a statute display a readily recognizable, "obvious, immutable, or distinguishing characteristics . . ." that define the group as a “discrete and insular minorit[y];” (2) whether the impacted group is “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process;” and (3) whether the class of people singled out is “subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities [to contribute meaningfully to society].”
Of these, you'll note that "political powerlessness" is but one factor of three, within one factor of three -- that is, it is one of three things that may convince the court that gays fall within one prong of heightened scrutiny analysis, of which there are two others which gays could also conceivably have claim to. Of these, the Court refused to rule on whether or not homosexuality was "immutable", thus kicking out prong one entirely. Prong three it essentially conceded to exist, which is good because its undeniably true. Prong two I think is true even without the "political powerlessness" portion (gays have been "saddled with ... disabilities" and "subjected to ... a history of purposeful unequal treatment"), and I think that gays are sufficiently politically disadvantaged so as to fall under that burden too. This is more than enough to establish at least heightened scrutiny, but the Court decided to let barely a sixth of the test (the political powerlessness test) swallow up the rest of the analysis whole-sale.
Perhaps mindful of its weak position, the Court simply starts rattling off precedents where gays were not accorded any sort of raised review. What's interesting is how these cases so perfectly demonstrate the catch-22 dynamic Balkin and I allude to. The early ones came when nobody cared about gay people at all (but, in theory, when their claim to heightened status should have been strongest, because they had absolutely zero political power or influence). Later, citations start appearing to cases like Romer and Lawrence, where the Court didn't raise scrutiny because it didn't need to to strike down the laws in question (they failed under rational basis). By now, we have a mountain of cases which for one reason or another don't raise scrutiny levels, so now we start to see courts refraining from doing it because of all the "precedent" and not wanting to be the one that jumps the gun, and Maryland joins this ranks. What's amazing is that nowhere in this array of cases does anyone give anything approaching a colorable reason as to why denying heightened scrutiny is appropriate. The precedents managed to pile on without what would seem to be an obvious and necessary step.
The other half of the paradox is that as political power grows, courts start withdrawing their protection. I don't doubt that at some level of political inclusion a group starts to need reduced judicial protection, but we're seeing it withdrawn way too soon. The Maryland Court cites the various pro-gay rights legislation that has been passed as evidence that they are doing a-okay in the political arena. Had this logic been applied to Blacks during the Loving case in 1967, there is no way strict scrutiny could have been applied, as no less than six "Civil Rights Acts" had been passed by Congress prior to that time. Courts were intelligent enough then to know that, this not withstanding, the massive history and continuance of anti-Black prejudice and discrimination was more than enough to justify strict scrutiny. To argue that Maryland's passage of an anti-discrimination act means they are now political equals, unhindered by massive residual societal prejudice, is unbelievably naive. More importantly, it provides a perverse disincentive to avoid advocating for one's rights, lest one get caught in a right-less netherworld -- too "powerful" for judicial protection, yet not powerful enough to garner true legislative equality. For gays, at the precise moment where they gained the visibility to exert some legal leverage on the courts, courts said that very visibility prevents them from intervening. This reasoning can only be described as mean-spirited.
So, to sum up, the Maryland case is not all that different from the anti-gay marriage decisions that came before it. But it does illustrate two interesting developments in the doctrine. The first is that the court essentially admitted here that were it to take a strict textualist view of Article 46 and its elaborating precedents (if they read it "literally"), the plaintiffs would have won. I look forward to all the folks who pride themselves on demanding constitutional decisions being about what the text says, not what they want it to say, thus condemning the court's manipulations. Second, the Court's reasoning behind the denial of heightened scrutiny has managed to proceed both with a) no legally legitimate reasoning behind it and b) has created a disincentive for minority groups to try and advocate for their own rights, trapping them in a cycle of marginalization. This is a dangerous development and one that needs further study.