Tuesday, May 17, 2011

Making it Worse on Yourself

Wisconsin Scott Walker (R), showing that his astounding lack of empathy does not extend only to the working class, is attempting to withdraw his defense of a state law permitting same-sex couples hospital visitation rights, on the grounds that it contravenes a state constitutional ordinance barring same-sex marriage, as well as "legal status[es] identical or substantially similar to that of marriage for unmarried individuals."

Obviously, there is a parallel to the federal Department of Justice declining to defend the Defense of Marriage Act on their belief that it violates the federal constitution. Procedurally speaking, I don't have strong thoughts on when, if ever, it is appropriate for the executive to not defend a duly-enacted law. But that debate does not obviate the substantive difference between seeking to affirm the equal human rights of all Americans, and trying to denigrate and destroy those families Scott Walker thinks are comprised of second-class citizens. I also find it notable the way conservatives seamlessly pivot between noting that marriage isn't a prerequisite for such things as hospital visitation rights (to demonstrate that there is no rights-violation from the marriage proscription), while simultaneously fighting tooth-and-nail to prevent gay couples from enjoying those privileges. It's rather dizzying.

In any event, if I were a judge hearing this argument, I'd be sorely tempted to invoke the doctrine of constitutional avoidance to reject Governor Walker's position. The doctrine of constitutional avoidance basically counsels courts to interpret ambiguous statutory (or here, state constitutional) provisions in ways that "avoid" causing constitutional problems (notably, this doctrine does not require that the Court affirmatively state that the "problematic" interpretation necessarily would be unconstitutional, only that it raises a significant specter of constitutional controversy). The more bans on gay marriage impinge on specified, concrete rights and privileges of gay couples, the harder it is to maintain that they don't constitute a prima facia equal protection violation. I think that the text of the Wisconsin amendment is, at best, ambiguous as applied to hospital visitation privileges, so it seems like a prime candidate for avoidance. And, of course, phrasing the ruling as an exercise in avoidance helps build precedent for what should be clear -- the linkage between bans on gay marriage, and restrictions of the rights of homosexual couples, raises real equal protection concerns.


Nick said...

He's a jerk.

Luckily good forces (not that I'm unbiased in that assessment) have already intervened to ensure that all sorts of arguments--including your constitutional avoidance argument but also a more subtle one that you and I should actually discuss because it's interesting--so I don't think it will make much of a difference.

Nick said...

*all sorts of arguments are raised

PG said...

The substantive difference actually links to a procedural difference: in cases like DOMA or Prop.8, the government's refusal to defend the law leaves the law potentially with no defenders, because of the difficulty of finding a private person with standing to support the law. In contrast, if the government of Wisconsin refuses to defend same-sex couples' right to hospital visitation, those couples obviously have standing to defend their rights.