Friday, September 02, 2005

Rational Basis and Gay Rights

So, the California State Senate has just passed a bill legalizing gay marriage. And if it passes the State Assembly, it appears Gov. Schwarzenegger will veto it. Why? Because according to a spokesperson, he prefer[s] to let judges sort out the legality of gay marriage (link: Kevin Drum). Oh, irony is SO sweet.

Dafydd at Patterico's Pontifications actually has some legitimate beefs with what the legislature did. Essentially, he makes two claims. The first is that under the California Constitution, referendums passed by the people need the people's approval to be overturned. As this bill conflicts with the 2000 Proposition 22, it should therefore get voter approval before it becomes law. I don't know if the authors are planning to do just that--but if they aren't (and assuming there isn't something more to it that I don't know about), then that's bad. However, assuming that Prop. 22 is overturned by the Courts, then he moves to problem number two, which is regarding the opinion of a California Superior Court Judge who struck it down. In California, this is rather meaningless--the law won't be officially struck down until it is heard by an Appellate Court either this year or next. But Dafydd thinks the Court completely overstepped its bounds by ruling the ban on same-sex marriages fails the "rational basis" test.

First, I've noted before my confusion as to why homosexual rights cases are adjudicated under the "rational basis" test. It seems somewhat clear that laws discriminating against homosexuals, at the very least, meet the guidelines for applying "heightened scrutiny." Heightened Scrutiny is applied when the group in question has:
"experienced a 'history of purposeful unequal treatment' or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities." [Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313 (1976), quoting San Antonio School District v. Rodriguez, 411 U.S. 1, 28 (1973)]

It is beyond question that homosexuals meet both these tests--being historically reviled and imputed to have disabilities and character flaws based solely on that irrational prejudice. Hence, in my view, the proper standard of review is not rational basis but heightened scrutiny.

The problem is that our legal system creates a perverse catch-22 when adjudicating minority rights claims. Yale Law Professor 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)]

This explains that--lofty claims about protecting "discrete and insular minorities" notwithstanding--the Court affords higher protection to the elderly and disabled than it does to homosexuals, despite the fact that homosexuals are far more clearly disadvantaged in the political process.

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.

But I digress. Even under the "rational basis" test, I think that homosexual marriage bans fail. Dafydd gives several "rational" reasons for the ban:
It is in society's interest that children be raised with both a (male) father and a (female) mother; therefore, we encourage anything that tends to lead in that direction, such as traditional marriage, and discourage that which denies it, such as same-sex marriage.

We believe that traditional marriage empowers women and civilizes men.

If laws against two men marrying are held to be unconstitutional, and there is thus a "constitutional right" for any two adults to marry, then what is the argument against allowing any three adults to marry?

Cultures have the right to define themselves by enacting values into law, so long as there is some secular reason for such values; one such secular reason for rejecting same-sex marriage is that...a union between a man and a woman is required to propagate the species...thus, such unions should be encouraged in the law and alternatives that do not serve to propagate the species (and civilize the young; see first argument supra) should be discouraged in the law.

We might abbreviate these arguments as the "interest of children" argument, the "interest of partners" argument, the "polygamy" argument, and the "democratic" argument.

The case that best explicates the Rational Basis test is Cleburne v. Cleburne Living Center [473 U.S. 432 (1985), because it gives us an example of what type of arguments don't satisfy rational basis. The two arguments rejecting in Cleburne were laws that rest on "irrational prejudice" and ones which weren't applied to similarly situated people. The latter test can be articulated in two ways, either a) that the minority group doesn't have the "different" trait ascribed to it, or b) it does have the difference, but so does another group that is treated in the way the minority group wishes to be (or has the right the minority argues it should have). In addition, I think it is somewhat self-evident that the argument has to be related to the proposal in question--"the sky is blue" is a rational argument, but it has no bearing on homosexual marriage. I also have my own standard I think is a rational supplement:
When seeking to achieve a legitimate political end, the state cannot adopt a more exclusive policy in cases where it could just as easily adopt a more inclusive one without substantially changing the nature of the objective.
But let's apply just those first three tests to Dafydd's justifications.

The first basis is by far the most common one argued--that since heterosexual couplings are better for children, they should be encouraged to the exclusion of homosexual ones.

This fails tests one and two. It fails the second because California is perfectly willing to allow homosexual couples and single parents to adopt children, as well as allowing both to artificially conceive them if they wish. Since the state allows a similarly situated person (IE, a not heterosexual couple) is allowed by California to take care of children and is not discriminated against for doing so, there is no rational basis absent some method of distinguishing single parents and homosexuals. This brings us to why it fails test one--the claim that children fare better raised by heterosexual parents is supported by no evidence whatsoever--indeed, the scientific evidence runs nearly uniformly in the other direction. Dr. Michael Lamb of the National Institute of Child Health and Human Development, testifying in Howard v. Arkansas, summarized the body of literature analyzing homosexual parenting and concluded that it
(i) does not increase the risk of problems of adjustment for children; (ii) does not increase the risk of psychological problems for children; (iii) does not increase the risk of behavioral problems; (iv) does not prevent children from forming healthy relationships with their peers and others; (v) does not cause academic problems; (vi) does not cause gender identity problems; and (vii) does not cause any adjustment problems at all.

No mainstream medial or psychological organization has concluded otherwise. I think when the state makes a claim that is buttressed by naught but stereotype discredited by numerous scientific studies, it's safe to label it an "irrational prejudice."

Moving to number two, the "good for the partners" argument. I'll try not to giggle too much about traditional marriage "empowering" women (see, e.g., Fronteiro v. Richardson, 411 US 677, 684 (1973) "[traditional notions of sex roles] in practical effect, put women, not on a pedestal, but in a cage."). This one fails tests two and three. Homosexual marriage does nothing to stop marriages between heterosexuals--so the empowering/civilizing effect remains the same. Meanwhile, as far as I can gather men are "civilized" by marriage because it provides someone who depends on them and needs their love and care, and woman are "empowered" because there is a primary earner leaving them free to care for children and the household. Both of these are sex-neutral--a man can as easily serve as the dependent partner, a woman can be the primary earner (of course, some men won't be dependent partners. But the neither will some women. These type of sex-based differentiations DO fall under Heightened Scrutiny and are unlikely to survive constitutional scrutiny. See Craig v. Boren, 429 U.S. 190 (1976)). Hence, the civilizing effect has zero bearing on homosexual marriage--the standard isn't applied to heterosexual couplings where it is deemed unlikely that either the man will be civilized and/or the woman will be empowered, and as far as the logic goes it applies to homosexual couples as well.

The "polygamy" argument is slightly different. First of all, asking it violates longstanding legal norms of deciding cases before they're ripe--we shouldn't decide whether polygamy is legitimate before we actually have a case relating to polygamy (in fact, we've already had one: Reynolds v. United States, 98 U.S 145 (1878), and it's already been distinguished from homosexuality, Lawrence and Garner v. Texas, 539 US 558 (2003).). Taking it at face value, though, we note that it fails test two in the opposite direction, that is, polygamous couples ARE differently situated than homosexuals. Specifically, someone who would like to be polygamous is not forced to marry someone they're not attracted to in order to become an equal citizen under law. They may not be able to marry as MANY people as they'd like, but the rights themselves are still open to them where they are not for homosexuals. Hence, the analogy doesn't hold. Furthermore, the slippery slope doesn't hold (see Part IV) on its own any way.

After dealing with the preceding three, the final "democratic" argument becomes irrelevant. Yes, democracies can generally legislate their own existence, but only within the bounds prescribed by constitutional law (which imposes requirements beyond that the laws be "secular"), boundaries that have so far held against the "rational reasons" given by Dafydd. The weak independent reason given in reason four--that heterosexual couples can reproduce the species doesn't fly. Aside from the fact that our species doesn't seem to be at any imminent risk of population collapse, it fails test three (as many babies will still be made because heterosexuals can still marry) and test two (homosexuals are similarly situated because thanks to modern tech, they too can have babies!).

For those reasons, even under the Rational Basis test, bans against homosexual marriages are unconstitutional.


The probligo said...

Whichever way you argue it, and it has taken a while and three to wend my way through this, but I think I get the gist, there are two words that are incompatible in this debate -

"homosexuality" and "rational"

NZ took the (rational in my view) approach of the "Civil Unions Act" giving a general option other than religious marriage to everybody and not just single sex partners.

Now with the elections upon us, and the "rational right" (oxymoron I know) to be wooed for votes we have the "we will repeal the Civil Unions Act" pledge. Why? Because it has been used by some 85 couples since its coming into law. Apparently that is not enough to justify the distinction between religious and non-religious options.

Anonymous said...

Brilliant piece Dave. The only think I'm not sure about is why polygamy is materially different from homosexual civil unions. I completely agree that it isn't a particularly good argument against gay marriage. But what happens when three people love each other and want to get married- some one is left out and prevented from accessing equal citizenship on the basis of, concievably, their identity. There is a third conclusion here of course... even if we grant the polygamy arument- agree that declaring gay marriage a constitutional right also prevents us from arguing against polygamy- then Dafydd still hasn't provided any reason here for rejecting homosexual civil unions.

At the turn of the 18th century renowned philosopher Thomas Taylor published A Vindication of the Rights of Brutes, a parody of Wollstonecraft's manifesto on women's rights. Taylor simply took Wollstonecraft's arguments and replaces "women" with "brute". As it turns out this satire provides most of the arguments later taken up by the animal rights movement.

Saying, "well that justifies Polygamy" doesn't disprove the legal neccesity for recognition of homosexual rights but well...justifies Polygamy.


On Lawn said...

First, Anonymous...

Saying, "well that justifies Polygamy" doesn't disprove the legal neccesity for recognition of homosexual rights but well...justifies Polygamy.

And that is the argument here, its a reductio-ad-absurdum. When you take the argumentative justifications for recognizing same-sex unions as marriage and extend them you should get the same results. But as Dan Savage and others have noted, same-sex marriage does not apply to polygamy, and that becomes a contradiction.

The contradiction does two things, it makes us question the validity of the argument, or it makes us question the intentions of the arguer.

Should a real distinction be made between same-sex "marriage" and polygamy, and that distinction be valid in extending marriage regognition to one set and not the other then of course no contradiction exists. But as of this writing I've not seen it.


First, I've noted before my confusion as to why homosexual rights cases are adjudicated under the "rational basis" test. It seems somewhat clear that laws discriminating against homosexuals, at the very least, meet the guidelines for applying "heightened scrutiny.

With either level of scrutiny, I don't think you will find that the equal gender representation requirement of marriage violates the civil rights of people to practice homosexuality. I've said this previously...

"Applying the standard of equal representation to the debate about marriage one will note that any person no matter their gender preference has the right to marry. The only way marriage disadvantages those with same-gender preferences is how it violates their sexual preference -- which by any other name is still gender discrimination. In other words, same-sex marriage advocates do have access to marriage, what they are seeking after is the right to a marriage consisting of only one gender. And that is not equal gender participation.

"The attempt to set up marriage in the image of sexual preference will create three separate and not-equal classes of unions, man-man, woman-woman, and man-woman. Each with different capabilities, goals and needs. In order to try to make man-man or woman-woman as advantaged as a man-woman relationship the state will be unequally burdened in providing third party assistance for child bearing, and various social enforcement. And since the social norm of raising your own children is at odds with a marriage of sexual preference, it too will have to be marginalized actively by government social programs.

"Hence those that want sex marriage as a conduit to government privileges without the requirement of equal gender participation wish to have extra entitlement to the state's resources. Extra entitlement since that would be the requirement to be fully homogenized with traditional marriages. Some look at this and see attack on the civil rights movement, but it is not. In fact, equalizing the entitlement from government to blacks and whites so there was no privileged advantage to race was and is the very goal of civil rights."

Professor J David Velleman notes how equal protection, when applied to children's rights, precludes the ability of the state to fully equalize homosexuality with heterosexuality...

"The problem that prevents me from supporting same-sex marriage has now broken into the American press. As reported here and discussed here, a gay-rights organization in Massachusetts has argued that, with the legalization of same-sex marriage in that state, Massachusetts birth certificates should replace the labels "Mother" and "Father" with "Parent A" and "Parent B": [...]

"As the Canadian bioethicists Margaret Somerville has pointed out, the right to marry is enshrined in the UN's Universal Declaration of Human Rights as "the right to marry and found a family". Marital rights generally go hand-in-hand with parental rights. Any legal acknowledgement that the children of same-sex marriages have a third, biological parent would stigmatize those marriages, as leading to less than full-fledged parenthood. Equality between homosexual and heterosexual marriages may therefore require us to deny that donor-conceived children have both a mother and a father, thereby expunging the children's connection to half of their biological past. Such an arrangement violates a right enshrined in the UN Convention on the Rights of the Child, which states: “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents”. (The Implementation Handbook for the Convention makes clear that the word 'parents' in this statement refers in the first instance to biological parents.) I have argued for this right in several previous posts. [...]

"It would affect only a small percentage of heterosexual marriages, and it would be no more prejudicial to their parental rights than openness in adoption, which is now widespread. But a requirement of openness in donor conception would affect all homosexual marriages as a class. Homosexual marriage would be, by its very nature, marriage that can lead only to qualified parenthood -- qualified, that is, by the legally recognized parenthood of donors or birth parents. Maytbe same-sex couples would be willing to accept a form of marriage that is second-class in this respect -- but I doubt it.

It should be noted that same-sex marriage is not about equal protection as much as it is equalization, which is a status granted to very few groups, the handicapped for instance. Such equalization means that they are given more protection than others, and such status is up to those arguing for the equalization to prove. In other words, whether rational or strict scrutiny, it is up to those seeking the extra resources from the government (unequal protection) in this case the homosexual community to provide a rational or better reason.

One that justifies the taking away of rights from children.

David Schraub said...

On Lawn:

I wrote a response in your comments.