Friday, September 5, 2014

Judge Posner Calls Bullshit on State Marriage Bans

“You asked for the truth and I told you
Through their own words
They will be exposed”

A day after a federal trial judge upheld Louisiana’s law denying marriage and marriage recognition to same-sex couples (discussed here), a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit affirmed decisions striking down Indiana’s and Wisconsin’s marriage exclusions, laws barring same-sex couples from marrying and denying recognition to those who married elsewhere.  Judge Posner’s September 4 opinion for the court in Baskin v. Bogan (opinion here) makes the Seventh Circuit the third consecutive federal appeals court to rule for marriage equality.  The pithy opinion in Baskin (for example, in explaining the background of Indiana’s 1997 reenactment of its ban on same-sex couples marrying: “The legislature was fearful that Hoosier homosexuals would flock to Hawaii to get married”) suffers from little constitutional jargon and boasts much common sense, in plain language devastating the ridiculous arguments that those defending marriage have been making that only more recently have begun to meet with the scorn they warrant.

Although recognizing that the cases before the court “formally” were about anti-gay and ‑lesbian discrimination, Posner maintained that “at a deeper level” they were “about the welfare of American children.”  This focus on children could be slightly off-putting to lesbigay persons with no children nor desire therefor.  After all, it is those adults who wish to marry a partner of the same sex against whom state marriage exclusions directly discriminate.  Nevertheless, as a gay man childless by choice, I for one am not too proud to accept marriage equality even if it rides in on a parenting bandwagon.  This lens on state marriage exclusions has significantly been foisted on courts by states, whose defenses of their discriminatory laws now largely boil down to claims of protecting children. 

Moreover, Posner does such a thorough job demonstrating just how unrelated or indeed counterproductive laws limiting marriage to different-sex couples really are to children’s welfare that his opinion could prove influential with Justice Anthony Kennedy when the Court takes up the constitutionality of state’s denying marriage to same-sex couples.  After all, Justice Kennedy expressed great concern for the plight of the children of same-sex couples at oral argument in United States v. Windsor, and his opinion for the Supreme Court in that case striking down the federal statute refusing to recognize valid marriages of same-sex couples prominently included that concern.  (Posner’s emphasis on (some of) the real underlying equality concerns in Baskin over formal constitutional doctrine could also resonate with Justice Kennedy, whose majority opinions in several “gay rights” cases are widely regarded as not closely tracking conventional doctrine.)

The court’s opinion treats the “irresponsible procreation” defense of the states’ marriage exclusions with perhaps more seriousness than it deserves; even Judge Posner’s rendering of the basis premise – the states’ “assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage” – gives it a measure of undue respect.  But don’t be fooled into thinking the court has been fooled by this risible defense; it is not.  And the opinion makes clear how laughable the court would find the argument (were the stakes not so real for all those harmed by the marriage exclusions, children and adults alike).

The opinion’s calling out of the states’ arguments in defense of discrimination range from the sublimely subtle to the unmistakably obvious.  At the former end of the spectrum, consider Judge Posner’s use of the word “brace”:  It appears twice in the opinion.  A brace is a pair, and the opinion uses the word twice, thus linking the referents.  The first time, it refers to “our brace of cases,” one appeal by Indiana and one by Wisconsin, with both states objecting to federal trial court decisions holding their marriage exclusion laws unconstitutional.  The second time the opinion uses the term, in illustrating the lack of moral weight carried by traditions just because they are traditions, it refers to presidential pardons of “a brace of turkeys” at Thanksgiving.  Thus, the opinion links the states’ defenses of their marriage laws with turkeys – which is what those defenses are, as the court’s opinion makes quite clear.

On the less subtle side:  “The only rationale  that the states put forth with any conviction – that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended,” Judge Posner writes, “is so full of holes that it cannot be taken seriously.”  The court pointedly asks why then clearly infertile heterosexually identified persons are allowed to marry when same-sex couples are categorically banned?  The state’s “involuted” (complicated, abstruse) arguments don’t work.  The suggestion that “non-procreating opposite-sex couples who marry model the optimal, socially expected behavior for opposite-sex ccouples whose sexual intercourse may well produce children” he rightly deems “a strange argument; fertile couples don’t learn about child-rearing from infertile couples.”  And the state’s retreat to privacy doesn’t save the argument particularly since Indiana chose to let first cousins marry but only at an age when women clearly were not fertile.  As Posner sums it up:  “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry.  Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry.  Go figure.”

As for the states’ “argument from the wonders of tradition” (snark!), the court dispatched it mercilessly, concluding part of its analysis:  “If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause, as in Loving.”

Technically, the opinion concludes that laws excluding same-sex couples from marriage should be subject to heightened judicial scrutiny, not deferential rational basis review.  It settles on that level or “tier” of scrutiny only after carefully going through factors that the Supreme Court has said are relevant to the determination (such as general irrelevance to the trait on which the discrimination was based, the trait’s immutability, a history of discrimination against the group at issue).  Would that the federal trial judge who the day before upheld Louisiana’s marriage exclusions nominally under rational basis review – though he failed to complete even that deferential scrutiny – would have done the same before rejecting heightened scrutiny.

At the end of the day, or almost the end of the opinion, the court concludes, as more and more people are realizing, "the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.  May (at least five Justices on) the Supreme Court say the same when they choose and resolve one or more marriage lawsuits, as Justice Ginsburg expects will happen by the end of June 2016, or perhaps even by the end of June 2015.

Thursday, September 4, 2014

The Louisiana Marriage Inequality Decision and the Missing Link


“It’s here the family’s broken
And it’s here the lonely say
That the heart has got to open
In a fundamental way
Democracy is coming to the U.S.A.”

On September 3, 2014, Judge Martin Feldman became the first judge since the Supreme Court’s 2013 decision in United States v. Windsor to hold against the constitutional claims of same-sex couples seeking the right to marry.  In Robicheaux v. Caldwell (opinion here), Judge Feldman upheld Louisiana’s statutory and state constitutional provisions barring same-sex couples from marrying and refusing recognition to the lawful marriages they enter in other jurisdictions.  Breaking with a staggering string of decisions unanimously affirming that the Constitution guarantees same-sex couples marriage equality, the Robicheaux decision is rife with heterocentric prejudice, disparagement of the numerous judges who have ruled otherwise, democracy fetishization at the expense of the judiciary’s rights-protecting role, and logical gaps.  Sadly for the people of Louisiana, whose rights are being denied daily, it may be some time before this ruling is corrected on appeal; with the Fifth Circuit stocked with right-leaning judges, waiting for a Supreme Court decision may prove necessary.

The opinion’s heterosexist perspective is most clearly on display when Judge Feldman characterizes the plaintiffs’ interests as “personal, genuine, and sincere lifestyle choices.”  The notion that for lesbigay people marrying is merely a “lifestyle choice,” whereas marriage is some central, “fundamental” right and institution for heterosexually identified persons, is deeply offensive.   This language resonates with the unfortunate trope, oft applied to lesbigay people, of what legal scholar Marc Fajer has called the “sex-as-lifestyle” presumption.  As one lesbian comic quipped years ago, why is it that straight people get lives but gay people only get lifestyles?

The judge’s opinion also displays its bias in depicting a dystopian future that may follow if the Pelican State allows same-sex couples to marry.  “Perhaps, in the wake of today’s blurry notion of evolving understanding, the result is ordained.  Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage.” (emphasis added)  Seemingly, then, he thinks same-sex couples devalue marriage.

Judge Feldman’s opinion sets himself up as the voice of reason in the face of “this passionately charged national issue,” as his opening paragraph characterizes it.  This is in contrast to the many, many state and federal judges who have held discriminatory marriage laws unconstitutional, apparently not in good faith.  He impugns either their intellect or their integrity:  “That federal courts thus far have joined in the hopeful chorus that the tide is turning seems ardent and is arguably popular, indeed, poignant, outcome (whether or not credibly constitutionally driven).” [sic, sic, sic] Perhaps the judge thinks that these courts are in cahoots with advocacy organizations like Lambda Legal, the ACLU, and the National Center for Lesbian Rights, for he informs us (emphasis added) that he “has arduously studied the volley of nationally orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue of same-sex marriage.”

That is just one example of Judge Kelly’s fetishization of democracy at the expense of the intended independent role of the federal judiciary.  (His solicitude for democracy is inconsistent, for he excoriates the Defense of Marriage Act for its effect on New York’s “democratically debated and then adopted” law allowing same-sex couples to marry but does not note that DOMA itself was “democratically debated and then adopted.”)  At the outset his opinion sets up the “lifestyle choices” of lesbigay persons – or so I assume, since “lesbian,” “gay,” and “bisexual” appear nowhere in the opinion, and even “homosexual” appears only once in a direct quotation, perhaps reflecting discomfort in even acknowledging lesbigay people as a group of people –as clashing with “convictions regarding the value of the democratic process.”  He refuses to apply any heightened scrutiny to sexual orientation discrimination because the Supreme Court has never held that to be required – true enough, but neither has the Court held such scrutiny forbidden – and because, he says, doing so would “demean the democratic process.”  He repeatedly quotes the late Justice Lewis Powell’s dissent in a death penalty case, touting Powell’s “emphatic trust in deference for free and open debate in a democracy” [sic].

 “Same-sex marriage is not recognized in Louisiana,” Judge Feldman writes, “and is reasonably linked to the democratic process.”  The state’s discriminatory marriage laws, its “regime,” he says, “pays respect to the democratic process; to vigorous debate.”  He credits Louisiana’s assertion that it has “a legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through the democratic process” [sic].  But as a matter of constitutional doctrine, that cannot be right.  Most government discrimination challenged under the Equal Protection Clause is subject only to a deferential form of judicial scrutiny, “rational basis review,” which requires only that the government action have a loose connection (be “rationally related”) to a “legitimate governmental interest.”  If a preference for proceeding via the democratic process counted as a legitimate governmental interest (which he seems to say, since “fundamental social change” is offered as an example, not a limit to his reasoning), then no statute or initiative or referendum would fail rational basis review, for a state could always claim that its democratically adopted law forbidding X or requiring Y is a rational way of preferring that policy on X or Y be set democratically.

The judge protests that it is not his place “to resolve the wisdom of same-sex marriage.”  But no one was asking him to.  He was asked only to rule on the plaintiffs’ claimed constitutional rights.  It is therefore somewhat baffling that one of Justice Powell’s dissenting pronouncements Feldman thinks pertinent is the Justice’s claim that “[i]n a democracy the first indicator of the public’s attitude must always be found in the legislative judgments of the people’s chosen representatives.”  Public attitudes are not generally relevant to constitutional rights.  As U.S. Court of Appeals judge Richard Posner explained the next day in an opinion holding Indiana’s and Wisconsin’s marriage bans unconstitutional, “[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”

Judge Feldman either does not agree, or is inept insofar as equal protection law goes, or let his own “passions” lead him doctrinally astray.  For his opinion failed to apply the doctrine he announces.  Even if sexual orientation discrimination did not deserve heightened judicial scrutiny, as Feldman rules, it would still be subject to rational basis review, as Feldman also says.  But as I already noted, this means that the refusal to let same-sex couples marry or recognize same-sex couples’ marriages from other jurisdictions must bear a rational relationship to a legitimate governmental interest.  Even if one granted, as Feldman holds (and falsely attributes to Justice Kennedy’s opinion for the Supreme Court in Windsor) that Louisiana has a “legitimate interest in linking children with intact families formed by their biological parents,” the exclusion of same-sex couples must still somehow rationally relate to that interest.  Yet Feldman’s opinion nowhere ever even tries to provide any link between excluding same-sex couples from civil marriage and (somehow) linking children to intact bio families.

I’m not saying Judge Feldman is a Neanderthal, but his opinion upholding Louisiana’s marriage discrimination has a missing link, one that in combination with its other deficiencies should earn it a failing grade, or at best an Incomplete. 

Wednesday, September 3, 2014

The Baker v. Nelson Argument Against Marriage Equality Litigation

“It’s such a shame
It’s such a crime
To be so close
And yet so far
So overdue
Yet underpar
So out of time
It’s too sublime”


I've posted a draft of my article “Baker v. Nelson: Flotsam on the Tidal Wave of Windsor’s Wake” on the Social Science Research Network (linked here).  The article is forthcoming in the Indiana Journal of Law and Social Equality.  The federal courts that have considered whether the Supreme Court’s summary rejection (without opinion) of a same-sex couple’s constitutional challenges to Minnesota's exclusionary marriage laws in Baker v. Nelson in 1972 has been superseded by subsequent developments in constitutional doctrine have agreed that Baker is no longer dispositive.  Yet defenders of mixed-sex marriage laws continue to invoke Baker in desperate bids to keep lower courts from addressing same-sex couples’ constitutional justice claims.   These marriage exclusionists are wrong to rely on Baker, and the courts that have seen Baker swept to the side in the wake of the Supreme Court’s historic decision in United States v. Windsor in 2013 have done so properly.  Or so I argue in “Windsor’s Wake.”

Wednesday, May 21, 2014

Federal Courts Hold Oregon & Pennsylvania Marriage Exclusions Unconstitutional

 “Cause a double-rainbow is hard to find”

On two consecutive days, federal trial courts held unconstitutional state laws that excluded same-sex couples from marriage and refused to recognize lawful marriages of such couples from other jurisdictions.  On Monday, May 19, in Geiger v. Kitzhaber (opinion here), U.S. District Judge Michael J. McShane held that Oregon’s statutory and state constitutional marriage exclusions violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.  Judge McShane’s order in the case permanently enjoined the state and county defendants from enforcing the laws, effective immediately.  (He declined to “stay” his judgment to put it on hold and keep same-sex couples from marrying, though the U.S. Court of Appeals for the Ninth Circuit could impose a stay, as could the U.S. Supreme Court.)  On Tuesday, May 20, in Whitewood v. Wolf (opinion here), U.S. District Judge John E. Jones III held that Pennsylvania’s statutes denying marriage to same-sex couples and denying recognition of same-sex couples’ valid marriages from other jurisdictions violated same-sex couples’ equal protection rights and their fundamental right to marry under the Fourteenth Amendment’s Due Process Clause.  Judge Jones likewise permanently enjoined the state and county defendants from enforcing those laws.  Following last week’s decision holding Idaho’s marriage exclusion unconstitutional, and the prior week’s ruling against Arkansas’s marriage ban, these Oregon and Pennsylvania rulings heighten the momentum of the national campaign for marriage equality and underscore the vacuity of the arguments for the continued denial of civil marriage to same-sex couples.

Some Geiger plaintiffs, from left, Lisa Chickadonz, Christine Tanner, Ben West and Paul Rummell.  Photo: Don Ryan/AP

In Geiger, the Oregon case, the state had refused to defend the state’s discriminatory marriage laws, concluding they were unconstitutional and joining the plaintiffs in asking the court to hold them unconstitutional.  The arguments against it were presented by amici curiae (“friends of the courts,” or interested persons or groups who are formally plaintiffs or defendants in the case) and were the same sorts of claims that are by now well familiar.  Like many other judges since the Supreme Court’s decision holding part of the Defense of Marriage Act unconstitutional law summer in U.S. v. Windsor, the Geiger judge concluded that the potential justifications did not even satisfy “rational basis review,” the most deferential form of scrutiny.  (The judge in dicta rejected the plaintiffs’ argument that the marriage laws classified on the basis of sex, which would subject them to a less forgiving “intermediate” or “heightened” form of scrutiny.  But his reasoning on this point, illogically trying to distinguish Loving v. Virginia, was neither persuasive nor necessary to his ruling, since he held that the laws fail even rational basis review.  Thus, this opinion should not even be persuasive precedent for the counter-intuitive proposition that laws that keep same-sex couples from marrying do not classify on the basis of sex.)

Applying rational basis review, the judge ruled, as have many others, that tradition arguments and moral disapproval were legally insufficient to uphold laws challenged as denying people equal protection on the basis of sexual orientation.  He also concluded that “[t]here is simply no rational argument connecting” a potential state interest in “natural” procreation or other child-welfare-focused interests to the state’s marriage bans, which undermine rather than advance the state’s interests in the wellbeing of all its children.  “The marriage laws place the plaintiffs and other gay and lesbian couples seeking to marry in Oregon at a disadvantage, and the laws do so without any rationally related government purpose.”  Thus, they violate the Constitution’s guarantee of equal protection, were unconstitutional, and were enjoined.

Two of the Whitewood plaintiffs, Angela Gillem and Gail Lloyd  Photo: ACLU

In the Whitewood case, Judge Jones applied “intermediate scrutiny” to the plaintiffs’ equal protection claim, a form of judicial review less deferential to the government; instead of asking whether the plaintiff had proven that the statute was not rationally related to a legitimate state purpose, intermediate scrutiny places the burden on the government to prove that a discriminatory law furthers not merely a legitimate purpose but one that counts as “important,” and that the law is not merely rationally but substantially related to such important purposes.  Because the proper level of scrutiny in the Third Circuit was not settled, the judge examined the various factors the Supreme Court had deemed relevant, such as a history of discrimination, the irrelevance of sexual orientation to people’s ability to contribute to society, and a relative lack of political power.  Interpreting the plaintiffs’ arguments not to be pressing for full “strict scrutiny” (as would be applied to racial discrimination), the court concluded that intermediate scrutiny was appropriate.  Applying that scrutiny, Judge Jones held that the state’s asserted interests in “the promotion of procreation, child-rearing and the well-being of children, tradition, and economic protection of Pennsylvania businesses” may or may not satisfy rational basis review but were not sufficient to provide the “exceedingly persuasive justification” needed to uphold discriminatory laws reviewed under equal protection.  Thus the marriage laws were unconstitutional.

In his fundamental right analysis, Judge Jones first concluded, like most other courts since the Windsor decision, that the Supreme Court’s 1972 ruling in Baker v. Nelson rejecting a challenge to Minnesota’s mixed-sex requirement for civil marriage was dispositive; the Court’s case law had evolved too much since then for that decision to answer the constitutional issues.  He rejected the claim that the constitutional right to marry (protected by the Due Process Clause of the Fourteenth Amendment) was only a right to marry a person of a different sex, but rather followed Loving v. Virginia and joined the many courts concluding that it was improper to build in the identities of the plaintiffs into the description of the right, which should be seen instead as the right to marry the person of one’s choice.  Pennsylvania’s law excluding same-sex couples from marriage infringed that rights and thus was unconstitutional for this reason as well, as was the state’s refusal to recognize marriages of same-sex couples validly entered in other jurisdictions.  And, like Judge McShane in the Geiger case, Judge Jones let his ruling go into effect already, so same-sex couples in Pennsylvania will be able to marry, as Oregon couples already are, as soon as a three-day waiting period between receiving a marriage license and being able to “solemnize” and thus legally enter a marriage.

With this pair of rulings, we have now seen nineteen court rulings in a row since the Supreme Court’s decision in U.S. v. Windsor last June holding in favor of marriage equality, and eight states have had their exclusionary marriage laws held unconstitutional in that time.  This unanimity of judicial opinion that the constitutional logic of equal protection, including in decisions like Windsor, establishes the unconstitutionality of bans on same-sex couples marrying bodes well for the chances of equality ultimately prevailing  when the Supreme Court next revisits the issue.