Wednesday, September 16, 2009

Where's the Line?

Orin Kerr has a novel proposal justifying heterosexist marriage laws under the "rational basis" test:
I was thinking about this in the context of the same-sex marriage debate because state recognition of marriage seems to require a lot of linedrawing. It is widely agreed that the state has to impose limits on the number of people who can get married (2? 3? more?), the age of the couples (with or without parental consent), consanguinity (whether cousins can marry), etc. It can be hard to justify the exact lines that get drawn. For example, in many states, couples can get married at 18 without their parents' consent but 16 with their parents' consent. The exact line here seems pretty arbitrary. Why 18 years, and not 17 years and 323 days? Why 16 years if a parent consents, and not 16 years, 4 months, and 19.5 seconds? No matter who draws the lines required to define marriage, some parts of the definition are going to be rather arbitrary.

My claim — albeit only a very tentative claim, as this isn't my area and I haven't looked closely at the cases — is that the fact that some line needs to be drawn, and the legislature unimaginatively drew it in some relatively traditional way, itself helps provide a rational basis for the legislature's approach. It seems sensible for a state legislature tasked with all the line-drawing of defining marriage to stick with the common answers to the problem. Put another way, deference to preexisting practices in areas that require complicated line-drawing is a sensible default even if we lack a clear argument for why those preexisting practices are normatively preferable to other ways of drawing the lines.

Weak tea, I say. The slick move here is to compare a "line drawing" problem with respect to age (where the range of lines that could be drawn is literally infinite), to that of gender, which is a binary problem and isn't really a "line drawing" problem to begin with so much as it is a yes or no question. In situations like age of consent or even number of partners one can simultaneously marry, the broad range of potential solutions may counsel judicial deference to the seemingly arbitrary line the legislature has picked. It does not follow that this extends to "problems" where a legislature is debating between essentially two choices: allowing same-sex couples to marry, or forbidding it.

One could argue, of course, that the relevant basis for comparison is that we're changing the "definition" of marriage, and the line drawing problem is where we draw the line for subsequent changes. The problem is that if this rationale suffices for rational basis inquiry, it becomes limitless -- any change in law or policy could conceivably raise the question of "how else could we have to change it", and that simply can't be enough to uphold the legislation if the rational basis test is to retain any sort of critical bite.

11 comments:

Orin Kerr said...

David, "slick" suggests some intent to trick: there is no such intent here, as you might guess with a post that invites critical comments.

More broadly, the fact that gender is understood as binary is clearly one way of saying it is different, but I'm not sure why you would choose that level of generality: Why focus specifally on gender as the relevant choice, as compared to the problem of marriage definition as a whole? Your choice of level of generality does provide a good way to distinguish the case of age, but I am not sure of a doctrinal or logical reason to choose that level of generality for the purposes of rational basis scrutiny. Perhaps you could elaborate?

Kim Smith said...

Kerr has a good point, which highlights the basic difficulty of analyzing the restriction on gay marriage as being about gender. Better, I think, to stay focused on the underlying substantive distinction: the line drawn by the legislatures discriminates against gays. That's why it needs more than a rational basis.

PG said...

As a matter of doctrine, surely unchangeable qualities like race, sex* and national origin are treated differently than inherently-changing qualities like age.

* Admittedly, Iran has demonstrated that one way to get around a criminalization of homosexuality is to provide sex changes for gay people, but (a) most conservatives I know will not acknowledge a trans woman to be a woman, but instead describe her as "a dude in a dress"; (b) surgery should not be a prerequisite to equality.

David Schraub said...

Prof. Kerr: I didn't mean "slick" as a sign of ill intent, I meant that the "slick" location is where I think the logic gets a bit slippery from the warrant (there are lots of line drawing problems in marriage legislation) to the impact (it's reasonable to defer to this legislative definition, even though I don't think it is really a line drawing problem at all). I apologize for the inference.

That being said, I'm not sure I understand your objection. The "binary" point is less about gender being a binary than it is the gay marriage decision as being one -- either we allow it, or we don't. Yes or no. That's distinct from the line drawing issues you raise (like age of consent), which are not yes or no questions but 18, 17, 16, 16 and a half, etc.. Should we have an age of consent, is of course, a yes or no question, but the problem is that answering it yes necessarily requires the next set of line drawing questions of what age; there is no parallel line to draw once we answer "yes, we should have gay marriage".

The other reason we can't use "marriage as a whole" as our metric is that it would render rational basis review effectively toothless, because any change in legislation could invite the question of "where else might we have to change it?" Any change in a bill or policy can be said to pose a line drawing problem if the relevant basis of comparison is "are there any other plausible locations to change the policy" (the answer of course always being yes). For example, if we were in a world where race had rational basis review, and we had a law prohibiting Blacks from going to school (essentially a yes or no question), I don't see why it makes sense to import in the many other school-policy contexts that are real line drawing problems (district borders, funding, busing schemes, etc.).

Rebecca said...

The other thing with age of consent is, of course, that people who have not attained the age of consent will eventually do so; the same is not true for same-sex couples seeking marriage.

Orin Kerr said...

Dave, thanks for your clarification.

If I understand your response correctly, it seems your objection to a higher level of generality is that "it would render rational basis review effectively toothless." But I'm not sure I understand that objection: As you know, rational basis review is very frequently criticized as being toothless. My proposal takes rational review as it is; it's not a normative argument for what rational basis should be.

As for your hypo in which you imagine a world in which racial distinctions receive rational basis review; such a world would be so obviously intolerable not because of my argument about line-drawing, but rather because it is inconceivable to apply rational basis review to racial distinctions.

Rebecca said...

such a world would be so obviously intolerable not because of my argument about line-drawing, but rather because it is inconceivable to apply rational basis review to racial distinctions.

But not sex?

David Schraub said...

Prof. Kerr: The problem with your theory isn't that it means almost any law will pass rational basis review -- it's that it means even theoretically speaking rational basis review is effectively meaningless, because by definition every single bill or policy, viewed at the level of generality you're positing, has the sort of line drawing problems that we should defer to. It may be that rational basis review is the inversion of strict scrutiny (weak in theory, non-existent in fact), but we should still resist moving the non-existence over to the theory side of the ledger.

As for the problem with using racial distinctions, I did that advisedly -- your hypothetical (fairly) asked that we push aside whether homosexuality ought to be considered a suspect class (I think it pretty clearly should be). I don't see why it is unfair to analogize to another suspect class which we'll play make believe shouldn't be treated as such. Still, I don't the hypothetical changes all that much if the law prohibited kids with brown hair from attending school -- the point is whether a categorical exclusion of a class of people from a benefit can be justified because other administrative aspects of that benefit (but not the specific one at issue) involve line drawing problems. I don't think that's tenable.

PG said...

because it is inconceivable to apply rational basis review to racial distinctions.

I do not think it means what you think it means.

And sex is a suspect classification too. If you base your decision about who can marry whom on the sex of the parties, you are classifying people based on sex, and you need more than a rational basis to do so.

Joe said...

PG has pointed out the dirty little secret of most every court decision that just assumes the class gays/lesbians. They could easily sidestep and get to heightened scrutiny on gender, but apparently find that reasoning too formalistic (or have no interest in expanding the number of cases where a real degree of scrutiny is applied, or have other political motivations).

And that touches on why I can't find energy to care about this debate. Rational basis is where claims go to die. If one basis is less-than-rational, find another.

PG said...

Joe,

They could easily sidestep and get to heightened scrutiny on gender, but apparently find that reasoning too formalistic (or have no interest in expanding the number of cases where a real degree of scrutiny is applied, or have other political motivations).

Although this is my own reasoning on the issue of sexual orientation discrimination, in fairness to those who don't use the gender analysis, they're generally stuck on the concept of suspect classes, in which discrimination to constitute discrimination is discrimination against a specific group, rather than discriminating on the basis of a classification. Because sexual orientation discrimination works against both gays and lesbians, in this framing there is no sex discrimination because systemically both men and women are discriminated against (even though in each individual circumstance, a lesbian couple is losing out because one of them isn't a man, and a gay couple is losing out because one of them isn't a woman). It is separate-but-equal ideology in truth: so long as men and women are treated the same, the fact that the law keeps distinguishing between them is OK.