Thursday, November 06, 2014

Two Thoughts on the Sixth Circuit Gay Marriage Decision

As you may have noticed, the Sixth Circuit snapped the streak of gay marriage appellate court victories by a 2-1 vote in DeBoer v. Snyder. Reading Judge Sutton's I felt like he was doing his best John Marshall impersonation, but my descriptor was immediately upstaged by Judge Daughtrey's dissent: "The author of the majority opinion has drafted what would make an engrossing make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy." In any event, given the direction the modern GOP is heading I don't think the Party will view this opinion as adequate penance for the Obamacare apostasy.

Others will have more substantive commentary I this opinion and its implications (the most obvious one being the creation of a circuit split, which means the Supreme Court likely will be forced to step in). I did have two thoughts I felt worth sharing:

* Probably the primary arrow in the conservative judicial quiver regarding gay marriage bans is the appeal to let the democratic process take its course. Judge Sutton leans into this theme hard -- his opinion comes close to treating gay marriage as a democratic inevitability. And maybe he's right, though I'm skeptical -- at least as a nationwide matter. But I've yet to see a conservative opinion on this subject address the heads-I-win-tails-you-lose logic at work here. In the early 1970s, Baker v. Nelson era, gay rights claims could be brushed aside because the LGBT movement was barely a blip on the political radar. Nowadays, they start doing much better in the political game, and suddenly that new-found political clout is the reason for continued judicial restraint. Now one could argue that its the older, dismiss-the-marginal court that's the real villain here. But the fact remains that, under this line of argument, equal protection doctrine is making a promise it cannot keep. It is distressing how easily these opinions slide between older precedents which justified themselves on the marginal status of gays and lesbians (nobody supports gay marriage! Sodomy can be criminalized!) and newer ones which rely on their (sort of) successful integration.

* I've become more intrigued about the expressive meanings communicated by rational basis versus heightened scrutiny review, and how they impact judicial willingness to invalidate legislation. We often think of tiered-scrutiny equal protection doctrine as expressing a continuum of social concern and condemnation: problems we think are relatively minor and unimportant get rational basis review, while those that are more severe and threatening deviations from our collective national charter get strict scrutiny. This, in any event, characterizes a lot of the rhetoric that goes into how we decide whether a given classification will receive heightened scrutiny. Yet there is a sense in which the opposite is true. A law which fails strict scrutiny may be a perfectly good law, all things considered. By definition, it may well be "substantially related" to an "important governmental interest" -- and hey, that probably puts it above median as legislation goes. So there's no shame in failing strict scrutiny. Rational basis invalidation, by contrast, seems to involve a much harsher moral judgment -- anybody who supports this law is irrational, a loony, a nutjob. So in that sense, losing on rational basis represents a much more significant judicial benchslap than strict scrutiny review could ever deliver. Of course, the problem is that courts will be quite reticent to actually make such declarations if doing so means contending that large swaths of Americans hold irrationally prejudiced political beliefs. Going back to Judge Sutton: "A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States." And ultimately, this results in a similar paradox as above: the courts are reluctant to elevate all that many classifications to the ranks of "suspect"; they argue that such a decision must be restricted to only the most extreme instances of wrong. And courts are reluctant to strike laws down under rational basis for the same reason, as Judge Sutton alludes to. Together, the real principle here is simply that equality breaches by definition must be rare.

6 comments:

PG said...

'Rational basis invalidation, by contrast, seems to involve a much harsher moral judgment -- anybody who supports this law is irrational, a loony, a nutjob. So in that sense, losing on rational basis represents a much more significant judicial benchslap than strict scrutiny review could ever deliver. Of course, the problem is that courts will be quite reticent to actually make such declarations if doing so means contending that large swaths of Americans hold irrationally prejudiced political beliefs. Going back to Judge Sutton: "A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States." And ultimately, this results in a similar paradox as above: the courts are reluctant to elevate all that many classifications to the ranks of "suspect"; they argue that such a decision must be restricted to only the most extreme instances of wrong. And courts are reluctant to strike laws down under rational basis for the same reason, as Judge Sutton alludes to. Together, the real principle here is simply that equality breaches by definition must be rare.'

Yes, I think those of us who support SSM sometimes neglect what "rational basis" sounds like to those who oppose or are on the fence about it. However, I don't think it's quite right to say finding a law fails rational basis means that its promulgators (whether legislators or voters) must be *irrational*.

Instead, the question is whether “there is some rational relationship between disparity of treatment and some legitimate governmental purpose.” Central State University v. American Assoc. of University Professors, 526 U.S. 124, 128 (1999), citing Heller v. Doe, 509 U.S. 312, 319-321 (1993).

This is where the animus aspect comes in. In Romer, Colorado voters had a very strong rational relationship between the disparity of treatment they wished to enact into law and the purpose they wished to serve. As Scalia said, they wanted to express their disapproval of same-sex sexual conduct. In this sense, I don't think people who voted for the SSM bans were acting irrationally at all -- they wanted to put into their constitutions the inferiority of same-sex relationships to hetero ones. And they found a pretty good way to do it, judging by the California SSM plaintiffs' rhetoric about how the law made their relationships unequal even though the state's civil union law was nearly identical to the marriage law, with the exception of not being recognized by the federal government (and DOMA at the time blocked that anyway).

In some ways, lots of prejudices are rational because they are intellectual short-cuts and allow the prejudiced person to maintain a desired place in hierarchy. It may well be in some straight people's self-interest to hold animus toward same-sex relationships. The problem is that this kind of self interest is not a legitimate governmental purpose, and for that reason fails the rational basis test.

I don't like ceding to Judge Sutton et al the ground that by overturning such laws, judges are calling voters or legislators irrational loony nutjobs. Instead, I think the judges who follow Romer are saying that the desire of straight people to maintain a superior position to gay people is not a legitimate government purpose, no matter how well it may serve the majority's self interest.

David Schraub said...

I'm not sure "either looney nutjobs or hideous moral ogres" really will assuage Judge Sutton's plea for humility.

David Schraub said...

I'm not sure "either looney nutjobs or hideous moral ogres" really will assuage Judge Sutton's plea for humility.

Ben Faber said...

I had a different thought about rational analysis, although I don't know if it has any support in case law.
In my usage, rational is always thoroughly distinct from sensible or other synonyms, because rationality deals specifically with responsiveness to data. It seems that, in effect, this has recently been the approach of trial courts on the SSM question. They have engaged in fact-finding, and the scientific data are pretty conclusive that SSM doesn't hurt anyone. Therefore, there has been no rational relationship to legitimate purposes, because all the purported motives are factually incorrect.
Clearly the 6th circuit took a different approach to the meaning of rationality.

Also, Sutton and the dissent had some back-and-forth on the "original intent" of the equal protection clause. To what degree is a distinction between original meaning and expected implication recognized/developed in the case law? Clearly the adoption of the 14th amendment did not foresee those words being used to justify Brown v Board nor any ruling in the LGBT equality movement. But meeting new applications is the purpose of our system to begin with. The intended meaning is clear - all citizens get treated the same, the government doesn't get to play favorites between different 'types' of people. To apply original meaning to this unexpected circumstance should not be a departure from the text.

How off-base am I in these thoughts?

David Schraub said...

"Rational basis" has worn many hats, but at its broadest (as expressed in Williamson v. Lee Optical, is that it "is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it." "Might be thought" generally has been taken to mean both that the law need not actually correct the evil (the legislature could be wrong in its assessment) and that the legislature's actual motivations for passing the law are generally irrelevant (absent an animus motive, which is given special treatment) -- it only matters that one can conceive of a legitimate motive. So it is a very loose -- basically, "everything wins" -- standard.

On originalism, this debate sounds in the larger problem of what some have called originalism's "ladder of abstraction." You can think about what was "originally meant" by a constitutional clause in very specific terms (did this mean school desegregation) or very abstract terms (did it mean "equal treatment"), and pretty much justify whatever result you want by going up or down the ladder.

Nobody can do a pure "expected applications" approach -- it makes a case like Kyllo v. United States (does the use of a heat-sensing scanners on a house constitute a "search" under the 4th Amendment?) incomprehensible. Jack Balkin's idea of "original semantic meaning", by contrast, is relatively abstract -- its "originalist" only in the sense that the semantic meaning constitutional text is taken from the time it was adopted, but doesn't give much deference to how the principle was applied in practice.

I will say that the equal protection clause absolutely cannot mean that "all citizens get treated the same, the government doesn't get to play favorites between different 'types' of people." Every law treats different citizens differently -- dairy farmers from non-dairy farmers, murderers from non-murderers, etc.. All laws classify in some respect, the critical questions are either (1) are certain types of classifications inherently problematic and/or (2) are there particular circumstances whereby classifications become problematic. I don't think originalism has a ton to say about either question.

PG said...

'I'm not sure "either looney nutjobs or hideous moral ogres" really will assuage Judge Sutton's plea for humility.'

But "hideous moral ogres" as a term for straight people who wish to maintain a superior position to gay people pre-supposes that heterosexuality *isn't* superior to homosexuality. I doubt even all the people who think SSM should be legal actually think it is the moral equal of opposite-sex marriage. The move toward acceptance of SSM, whether in court decisions, legislation, referenda or just social metrics, has been mostly about tolerance and removing obstacles for families that are going to exist whether they have equal rights or not. Among mainstream heteros, the movement has not been notable for celebrating SSM as being just as desirable for society as OSM.

"Irrational" and "loony nutjob" implies someone cannot see the objective facts. "Moral ogre" is intrinsically a subjective insult.