Eugene Volokh's Blog, page 2617
February 11, 2012
More on Minimalism and Maximilism in the Prop 8 Case
I agree with some of what Ilya writes in response to my post on the Ninth Circuit's Prop 8 decision and judicial minimalism. As I noted in that post, the effect of striking down Prop 8 is certainly not small. California would be "by far the biggest prize" for same-sex marriage advocates. Of course, it could have been written in a way calculated to produce an even larger effect, bringing same-sex marriage to every state with civil unions, or even to support a right to marriage for gay couples across the country. But requiring a state with 37 million people to accept gay marriage is pretty doggone big.
I also noted that it would be hard to draw the line, as the Ninth Circuit panel did in Perry v. Brown. The opinion explicitly limits its holding to California, where full rights and then marriage itself was given to same-sex couples but then marriage was retracted. I see no principled minimalist reason to justify this limitation. Perhaps there's no rational-basis for granting full rights but not the dignitary status of marriage, because granting the full rights surrenders the core for refusing marriage (procreation and responsible child-rearing). But it seems only judicial fiat further confines the decision only to states where the word marriage was given and then withdrawn. The effort to cabin the case to California, as opposed to the other civil-union states is the most unsatisfying part of the decision. That's why I called it "judicial minisculism." I've also said repeatedly in these electrons that I think the Perry litigation is likely a loser that may set back the cause. Reinhardt's opinion seems to be an effort at harm reduction so that even a loss in the Supreme Court will be on narrow grounds. We'll see, alas. On all of this, Ilya and I appear to agree.
We do disagree, however, on two things. First, as I believe I've argued previously on this blog (I don't have time now to chase it down), I don't find the sex-discrimination argument terribly persuasive. It was popular among gay-legal academics in the 1980s and 1990s, and has been subject to extensive defense and critique (most notably in a fantastic exchange between Andrew Koppleman and Ed Stein), but it never caught on with courts and it's mostly been dropped in gay-rights litigation. It was hardly mentioned in the main attack on the same-sex-only sodomy law in Lawrence v. Texas. Its main problems, very briefly, are that (1) it obscures the heart of the equal protection issue, continuing exclusion of gay men and lesbians, and (2) it isn't sufficiently attuned to the Court's sex-discrimination cases, which do suggest a lower level of scrutiny when legislation addresses "real differences" between men and women (like the capacity to get pregnant or, one might say in the marriage context, the capacity to procreate as a couple). To the extent courts care about sexist legislative purposes, it's not obviously clear that the traditional definition of marriage is designed to reinforce the legal subordination of men to women. The law today makes spouses legally equal, regardless of sex. It's a debate that won't end, and I recognize others may reasonably disagree.
My other disagreement with Ilya is less qualified. He appears to believe that same-sex marriage advocates might be best advised to make maximalist arguments now, to go for broke, as long as they're likely to lose anyway. A defeat, he writes, could "lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas." Bowers marked progress in the sense that four justices did vote to overturn the Georgia sodomy law (and a fifth, Justice Powell, later said he'd probably made a mistake voting to uphold the law). But Bowers itself was a calamity for the gay-rights movement, a 17-real-long plague that spread into every law at every level of government, state and federal. It was used by courts to deny gay-rights claims in the military, in housing, in public and private employment, in custody, in child visitation, and so on. Politically, the presumptive criminal status of homosexuals was used as a reason to resist every proposal for gay-rights legislation, from hate-crimes laws to marriage, even in states that had no sodomy law. Constitutionally, it was used to deny heightened scrutiny to classifications based on sexual orientation. Its damage was so deep that many doubted the Court would even strike down Colorado's Amendment 2. If you could jail homosexuals, Justice Scalia plausibly argued in dissent, why can't you deny them protected status in civil-rights laws? Sure, the decision was reversed in Lawrence by a bare 5-vote majority, but Bowers so spooked the lawyers in that case that even they doubted the Court would reverse it. In my history book, Bowers "laid the groundwork" for Lawrence only in the sense that Pearl Harbor paved the way for VJ Day. So, as a strategic matter, I'm very dubious about expansive claims for gay marriage in the federal courts. The risk of gay-marriage Pearl Harbor is too great, and the unpredictable damage done legally and politically could be profound and long-lasting. Far better a shallow and narrow defeat under minimalism than a deep and wide defeat under maximalism.
State Department Legal Adviser Harold Koh's Remarks at University of Virginia Law School
The Legal Adviser to the Department of State, Harold Koh, delivered the keynote address at a UVA Law School conference on issues of conflicts over sovereign equality on Friday morning. Notre Dame professor Roger Alford (who delivered a paper on the Lago Agrio Ecuador dispute at the conference) comments on Dean Koh's speech at Opinio Juris.
Perhaps the most interesting aspect of his discussion was his spirited defense against accusations of hypocrisy. To the question "Why do you say things you don't really believe?" he offered several replies.
First, he does no such thing. As he has said elsewhere, "I never say anything I don't believe…. [I]f you hear me say something you can be absolutely sure that I believe it."
Second, take what he says in context. He is not speaking as an academic. When he speaks as a Legal Adviser he does so as an advocate. The United States government is the client and he is speaking on behalf of that client. Just as a criminal lawyer will often change roles and serve as a prosecutor, defense counsel, judge, or academic, so too must an international lawyer recognize the different roles that he plays and speak accordingly. Moreover, a U.S. government lawyer must speak with due consideration of what has been said in the past and with due regard for the legal opinions of other lawyers in other U.S. agencies.
Third, sometimes his views have changed. "If there is anything inconsistent between what I said in a footnote when I was 29 and what I said now, then believe me now." The specific example he gave was about congressional legislation. He said that in the past he often wrote with the assumption that Congress could pass statutes. But having served in Washington long enough he has come to accept that often legislation is simply not an option.
He did not contextualize that comment, so for now one can only speculate as to what he meant. My best guess—and it is only a guess—would be that many of his views about congressional acquiescence to the executive branch articulated in his well-known book The National Security Constitution (published in 1985 when he was 31) are no longer his current views. I say that because the sharpest divergence between Koh the academic and Koh the Legal Adviser comes in the Libya context with respect to the definition of "hostilities" in the War Powers Resolution.
You can judge for yourself whether those replies are persuasive. I personally am sympathetic to all three. I have no way to judge the first, but I have no reason to doubt it either.
Like Alford, I am sympathetic to all three and have no reason to doubt the first; his blog post goes on to other important observations. But I want to add a comment on the question of where this notion that one speaks differently when one is in government than when one is purely an academic arises. In Dean' Koh's speech, and in Professor Alford's comment, the locus is the lawyer-client relationship. Harold Koh is an advocate and, as he said in his UVA remarks (I was also in attendance), that distinct role sometimes means that he must accept that his clients will go for the "lawful but awful" alternative. Moreover, there is a complicated question as to the hierarchy of legal advice – again, as he stressed, he is the Legal Adviser to DOS, but that makes him a very important lawyer amidst a group of also very important lawyers, including the DOD general counsel, the CIA general counsel, and many others – just in the national security field.
I am, as I indicated, very sympathetic to the position of the government lawyer or, really, policy-maker who must work to a position that is not entirely one's own and must reflect other people's views – and yet in the end be supported as the "position" of the administration. That is hard for academics to swallow, as reactions to Harold Koh's positions have sometimes shown; but, at the end of day, we academics live in David Lodge novels and have all the authority of the kibitzer. I of course include myself in that assessment.
One reason that the sense of betrayal and hypocrisy over positions that Harold Koh has taken as Legal Adviser has been so acute in some quarters, I believe, is that the academics indeed think of it as being a function of the lawyer-client relationship. It's a relationship that academics embrace, in one sense, but in another do not respect it – precisely because at bottom it seems somehow dishonest, insincere, and hypocritical even if a crucial aspect of an adversarial system. In the context of "legal policy-making" in some loose sense rather than strictly part of the litigation system, it seems to be a bit of a dodge to reach conclusions at odds with one's professorial declarations by reaching to advocacy for the client.
I don't think this is the whole story, however. The obligations at issue are more than just those of the attorney-client. It is much more profoundly the obligations of a fiduciary – and those fiduciary obligations encompass policy makers in government who have no duties as attorneys. One enters government at the senior policy-making role (including legal-policy of the kind that inevitably attaches to the general counsel positions, the senior DOJ and OLC positions, and others) as fiduciaries with a public trust. It is democratically and constitutionally established by the election of the administration to which one belongs – and one is no longer a free agent, intellectually or politically.
One has to operate within the overall policies of this administration – and very often within the traditions, customary interpretations, formal and informal procedures, precedents, and prior decisions and understandings of the department and office. This is not because it is legally binding strictly, because it might have nothing to do with "law" as such or "legal advice," but because one is stepping into the shoes of, as Harold Koh once put it in remarking on his own office, a long line of predecessors upon whom others have relied. The importance of fitting one's own work within the long-run of the agency or department's practices and judgments increases the legitimacy and trust that the public has in government; there are exceptions that require sharp breaks from the past, but the default position is that one operates as a fiduciary that looks to the past, sometimes long past, to the present administration and its decision-making, and to the preservation of the legitimacy of the office to the future and future administrations.
That is the obligation of a fiduciary – and it is far beyond the often merely instrumental obligations of the attorney-client relationship to advocate on a client's behalf. I have been impressed with Harold Koh's concern to express that understanding of the role of senior government policy makers and lawyers. I think he's right about that, and right to emphasize it as a matter of good faith. I hope that this understanding will carry over to future administrations, as well, of either party: it is part of the essential long-term coherence and legitimacy that makes democratic governance possible. But it is far beyond the attorney-client relationship alone. It is a special form of agency, the agency of a fiduciary in a position of political authority.
February 10, 2012
Spanking Judges as a Rational Basis for Prop 8
In the ongoing search for a constitutionally minimal justification for Prop 8, Orin proposes a creative one – repudiating activist judges independent of the substantive merits of the amendment:
One rational reason to support a symbolic law like Prop 8 would be to issue a rebuke to the California Supreme Court that issued that decision, with the hope that such a public rebuke might influence the Court's decisions in the future. Different people will disagree on whether this argument is persuasive, but I think it satisfies the rational basis test.
To the extent this argument rests on the idea that Prop 8 inflicted only "symbolic" harm on same-sex couples, and thus is not not of constitutional concern, it is supported in the opinions of courts in states where same-sex civil unions are recognized but the designation of marriage is withheld. The New Jersey Supreme Court's opinion from 2006 would be one example. As I wrote at the time, I disagree that the difference between "civil union" and "marriage" is purely semantic and unimportant – though that doesn't by itself mean courts should require the state to grant the designation to same-sex couples. Indeed, the fact that the word "marriage" is important and in more than a symbolic sense may be the one thing that SSM advocates and opponents agree upon. Judge Reinhardt addressed the question at length in his opinion and other judges have convincingly, in my view, done the same. I don't want to rehash that argument here. At any rate, I don't think Orin's point about the judicial-discipline rationale depends on the idea that Prop 8 was a harmless withdrawal of some symbolic affirmation. Under the rational-basis test, I suppose he'd say that even if some limited harm were collaterally imposed on same-sex couples the judicial-discipline rationale still survives judicial scrutiny.
The rational-basis test in Equal Protection doctrine and in other constitutional fields requires that a law (including a classification) be rationally related to a legitimate state interest. (When a classification affects fundamental interests, like voting, or discriminates on a suspect basis, like race, heightened scrutiny applies.) This ordinarily allows a poor fit between means and ends and accepts almost any governmental purpose as "legitimate."
Assuming rational-basis review applies to Prop 8, there are two potential difficulties with a judicial-discipline rationale for it:
(1) When a classification affects what the Court sometimes calls "personal" or private interests, like sex and family-living arrangements, the Court has applied a more aggressive scrutiny while sometimes calling it rational-basis review. Think of the denial of food-stamp assistance specifically to "hippie communes" even though food stamps are not required benefits (Moore v. City of East Cleveland). Think of the decision in Lawrence v. Texas, which some people regard as a rational-basis case and which invalidated a state sodomy law although there were some really thin public-health justifications for such laws. Also, when a classification targets a group that has been subjected to widespread unreasoning prejudice, but nevertheless has not been given the extraordinary judicial protection of suspect-class status, the Court has similarly applied a heightened form of rational-basis scrutiny. Think, for example, of a law that strips all specific civil rights protections from homosexuals in order, inter alia, to conserve state enforcement resources to end discriminatioon that matters more or to protect the associational liberty of landlords. (Romer v. Evans) Or consider a city zoning restriction that forbids facilities for the mentally retarded (while allowing fraternity houses in the same neighborhood) on the asserted rational grounds that the home sits on a 500-year flood plain and that once every 500 years it will be harder to remove the residents for their own safety. (Cleburne v. Cleburne Living Center).
Based on the Court's precedents, Prop 8 is a candidate for something more than ordinary rational-basis review both because it classifies in the personal area of family life and because it targets a class of people long subjected to unreasoning prejudice and opprobrium. If that's right, a court might well reject a judicial-discipline rationale on the grounds that it is unusualy likely to be a cover for animus against the group or because the fit between means and ends is almost arbitrary. Why, we might ask, take out our generalized frustrations with judges on the families of gay couples rather than in any 100 other cases or ways we might express this frustration? To say that their interests don't carry much weight in a campaign against judges, that they are acceptable collateral casualties in a larger cause, feeds the conclusion that the political process is infected with at least a casual disregard of them.
(2) Even if we applied the customarily weak form of rational-basis review there would still be room to reject a generic judicial-discipline rationale. In the field of economic regulation, for example, rational-basis scrutiny has been applied in about the most flaccid way imaginable. Indeed, it has been so forgiving — finding just about any objective "legitimate" and any means "rationally" related — that it's a wonder we bother repeating the mantra. It would be more honest, perhaps, if courts simply said, "Once we determine that the state is regulating an economic matter, in the way we understand what counts as an economic matter, the law will be deemed constitutional. Full stop."
Using the version of rational basis that applies to economic regulations and classifications, suppose a state supreme court invalidated a state health-insurance mandate by finding some right (say, substantive liberty, property, or contract protection) in the state constitution that is infringed by a health-insurance mandate. Then suppose the people, using the initiative process, passed a constitutional amendment overruling the decision and imposing health-insurance mandates on consumers of health care. What would be the rational basis for such an amendment? Two candidates are offered: (1) Health-care rationale: The amendment is constitutional under the federal constitution because health-insurance mandates are rationally related to the legitimate objectives of controlling health-care costs and providing universal coverage. (2) Judicial-discipline rationale: The amendment is constitutional because, no matter whether health-insurance mandates are rationally related to the interests in cutting costs and providing coverage (indeed, even if they aren't), it is rationally related to the people's interest in showing judges who's the boss.
Then suppose a group of liberty-loving citizens sue in federal court to have the amendment invalidated because it violates fundamental liberty rights of the kind endorsed by the state supreme court and because it is not even rationally related to any legitimate objective. Leave aside the fundamental-rights argument for our purposes. Under traditional rational-basis scrutiny applied to economic regulations, the constitutional challenge to the health-care rationale is surely a loser. It might be debatable whether insurance mandates are a good idea, but the whole thrust of rational-basis review is to leave rationally debatable propositions to the political process.
The challenge to the judicial-discipline rationale would be more interesting. Even under the traditional application of the rational-basis test to economic regulations, the legitimate objective and the means used to achieve it cannot be a complete mismatch. The relationship cannot be arbitrary. A legislature presumably could not, consistent with this approach, determine that banning the consumption of orange juice is rationally related to the state's legitimate interest in preventing lung cancer caused by smoking cigarettes. It's not that banning the consumption of orange juice is an irrational means to any conceivable legitimate state interest, like say, promoting the apple-juice industry. And it's not that reducing the incidence of lung cancer caused by smoking is an illegitimate objective. It's that the one has no relationship to the other.
So how would the judicial-discipline rationale fare in an economic case, like the challenge to the amendment imposing a health-insurance mandate? It's not that rebuking or restraining judges can never be a legitimate objective of the voters or the legislature. Voters could, for example, use what Orin calls a Rose Bird strategy: recalling the judge or refusing to retain her in an election. And it's not that the means of reversing a judicial decision can't be a rational way of imposing a preferred policy, like say, mandating that everyone carry health insurance. It's that achieving the legitimate objective of restraining judges by means that have no independent rational basis looks like a mismatch between ends and means. It's not quite as arbitrary as comparing apples and oranges, because the voters have chosen something as an expression of their anger.
But unless we believe that the health-insurance mandate has an independent rational basis on its own merits – say, the health-policy rationale — then we really are saying that the rational-basis test is nothing but a splendid bauble. Voters and legislatures would have an automatic rational basis for anything they do, regardless of whether the substance of what they do has any rational justification. It can always be said that the state has acted to rein in the judges for a decision they've already made. And under that view, why couldn't the voters issue a preemptive rebuke to the judiciary, anticipating a possible judicial decision in the future, even though the policy codifying the rebuke is irrational on its own terms? The judicial-discipline rationale is the justification that swallowed the analysis. X can impose harm on Y, in symbolism or substance, simply to punish Z. If that's right, it would be more candid to give up the pretense and just say that in any case where rational-basis review applies, there will be no review at all.
There's plenty to like about a strong presumption of constitutionality in most areas of public policy, and plenty of room for debate about what that "most" should and shouldn't cover. But I can't see much to like about an irrebutable presumption of constitutionality. And whatever the merits of eliminating even minimal judicial review of almost all public policy, it is not an inescapable conclusion from the rational-basis precedents.
Constitutional Right to Moderately Corporally Punish One's Child
So held the Hawaii Supreme Court, in Hamilton ex rel. Lethem v. Lethem (Haw. Feb. 7, 2012), interpreting the Hawaii Constitution, though in reasoning that could be seen as applicable to the federal Constitution and to other state constitutions. And the court concluded that even a noncustodial parent retains this right "with respect to that child's conduct during the visitation period."
Based on this constitutional right, the court concluded that, to warrant the issuance of a domestic restraining order based on alleged child abuse, there must be (1) a finding that "the parent's discipline is [not] reasonably related to the purpose of safeguarding or promoting the welfare of the minor," (2) taking into account "factors such as [a] the nature of the misbehavior, [b] the child's age and size, and [c] the nature and propriety of the force used."
The court left it for a lower court to apply this standard to the facts of the case. Here, though, are the facts as alleged by the child (a 15-year-old girl), which led to the issuance of a restraining order against the father:
Minor alleged three incidents of abuse. The first allegedly occurred on August 12, 2005. The day before, August 11, 2005, Minor was scheduled to have visitation with Petitioner after school. Minor called Petitioner and told him that she did not need a ride from school because Mother was going to pick her up. This turned out to be a fabrication. Instead, Minor, another teenage girl, and two teenage boys drove to a store to pick up the "morning after pill" for the other girl. That evening, Petitioner called Mother in an attempt to locate Minor, but Mother had not heard from Minor. Petitioner eventually decided to drive to Mother's house. When Petitioner reached Mother's house at around 10:00 p.m., Minor had arrived and Petitioner took Minor back to his home.
The next day, August 12, 2005, Petitioner and Minor spoke. When Petitioner learned what Minor had done, he became very angry. Petitioner informed Minor that he felt she should have told the other girl's parents that their daughter was sexually active and should have allowed them to deal with the situation. Minor testified that she felt she did not have to talk with Petitioner because she had already spoken to Mother about the situation. Minor related that both she and Petitioner were yelling. Petitioner claimed that Minor was "just ranting and raving," and "screaming" at her younger sister. Minor testified that, at some point, Petitioner hit her. Minor claimed that Petitioner struck her "a couple of times" and that Petitioner was attempting to slap her on the face but that she blocked his blows. Petitioner claimed that he only tried to hit Minor on the shoulder because Minor had tried to leave and Petitioner wanted her to stay and talk to him.
Mother was told that Minor and Petitioner were having an argument and called the police. When the police arrived, Minor told them that she was fine and the police left. Minor had no bruises as a result of the incident.
The second incident of alleged abuse took place on August 25, 2005. Minor claimed that she and Petitioner "got into a power struggle." Minor had gone to Petitioner's house that day early in the evening. Petitioner wanted to speak to Minor, but she did not want to talk because she "had to call other friends to get [her] homework and [was] busy." According to Minor, Petitioner wanted to discuss "how [her] day went." [Footnote: This incident, thus, was apparently not related to the August 12 "birth control" incident.] Minor acknowledged that Petitioner waited several hours to speak with her. At around 11:00 p.m., Petitioner again attempted to speak with Minor. Minor did not want to converse and said, "Dad, I have school tomorrow. I'd really like to go to bed." Petitioner allegedly said, "No, we talk now." The two then began to argue. Minor claimed that Petitioner then hit her. She stated, "[A]s I was covering my head, like, he hit me on my arms." Petitioner also allegedly told Minor, "Don't make me do that again." Minor then called her Mother and told her that she was uncomfortable staying with Petitioner.
The last incident of abuse allegedly took place on September 16, 2005. According to Minor, Petitioner visited her school unannounced. The principal went to Minor's classroom and said that he needed to speak to her. Once outside the classroom, the principal told Minor, "Your father is downstairs. We need to handle this now." Minor claimed that Petitioner had been threatening to take her out of private school to discipline her. According to Minor, Petitioner began to say "how everything had been [her] fault," "how [Petitioner's] financial problems were [her] fault," and how Minor's younger sister was "better than" Minor in various ways. Minor testified that she felt Petitioner was "bringing [her] down."
Petitioner claimed that he was simply attempting to discipline Minor. Petitioner stated that Minor was difficult at times, would lie to him, and refused to follow reasonable rules, such as not riding in a car with anyone under the age of twenty-one. He claimed, however, that he never attempted to hit [Minor's] face, that he only visited her at school twice to talk to her, and that he never blamed his financial problems on her.
Sex Discrimination and Tradition
In a recent post, co-blogger David Bernstein partially rejects my argument that a ban on same-sex marriage qualifies as sex discrimination. As David puts it:
On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination. On the other hand, from opponents' perspective, the point is that "marriage" has been defined for several thousand years in Judeo-Christian culture as between a man and a woman, and retaining that definition is not sex discrimination.
The opponents' argument, however, in no way refutes mine. Many forms of sex discrimination have "several thousand years" of tradition behind them, often backed by religion. Consider such cases as the exclusion of women from many professions, unequal divorce laws, the treatment of wives and daughters as the property of their husbands and fathers, and so on. The fact that a form of sex discrimination has existed for a long time and enjoys religious backing does not make it any less discriminatory.
I am also unmoved by David's analogy between a ban on same-sex marriage and a hypothetical Israeli law under which boys are entitled to a state-recognized "bar mitzvah," while girls only get a "bat mitzvah," which has the same legal status but is less prestigious. If the bar/bat mitvah were a government-endorsed legal status rather than a private cultural and religious tradition, it would still be sex discrimination for the state to allocate that status on the basis of gender – especially if one of the two labels were in fact more prestigious than the other. I would say much the same thing about David's hypothetical of a female monarch who wishes to be labeled a "king" rather than a "queen." These examples only have intuitive appeal because in modern liberal society, we generally regard bar and bat mitzvahs and kings and queens as essentially equal to each other (though I recognize that many Orthodox Jews disagree as to the bar and bat mitzvahs). It therefore seems pedantic to insist on one label or the other. By contrast, most people see "civil union" as a lower status than "marriage," even if the legal rights are identical.
Consider a law under which men are classified as "first class citizens" and women as "second class citizens." Although the distinction was originally enacted for the purpose of asserting male dominance, recent legislation has given second class citizens the same substantive legal rights as first class citizens. But first class status remains more prestigious than second class. Assume also that the idea that women cannot be first class citizens is endorsed by thousands of years of religious and secular tradition. If a woman files a lawsuit claiming that the denial of first class citizen status is sex discrimination, she should surely win – at least under a constitution that either bans sex discrimination outright or subjects it to some form of heightened scrutiny.
As I said in my original post on this subject, not all forms of sex discrimination are unconstitutional. Current Supreme Court jurisprudence subjects gender classifications to heightened "intermediate" scrutiny without banning them completely, and I think this is roughly the right approach. If, for example, opponents of same-sex marriage can prove that legalizing it would inflict serious harm on children, then laws such as California Proposition 8 should not be invalidated. But government-sponsored sex discrimination does not become constitutionally permissible merely because it is backed by religion or tradition or because the discriminatory law in question is mostly symbolic in nature.
UPDATE: I have modified this post slightly in order to eliminate a few stylistic problems.
On Same Sex Marriage and "Sex Discrimination"
On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination. On the other hand, from opponents' perspective, the point is that "marriage" has been defined for several thousand years in Judeo-Christian culture as between a man and a woman, and retaining that definition is not sex discrimination.
Imagine, for example, that having a bar mitzvah in Israel provided boys with various and important rights and obligations. [Let me tighten the hypothetical a bit.] Imagine that in Israel, any thirteen year old Jewish boy could go to city hall and get a certificate of bar mitzvah, regardless of whether he had a religious bar mitzvah ceremony, and imagine further that this certificate provides the boys who get it with various important rights and privileges. Israel, recognizing that girls should be entitled to analogous rights, offers girls a [certificate of] bat mitzvah instead. The bat mitzvah gives girls the same legal rights and obligations as boys, but because it's not called a bar mitzvah, it's less culturally significant and, according to critics bespeaks inequality (and in fact, while bar and bat mitzvahs don't confer legal rights and obligations in Israel, it's an important religious and cultural tradition. Girls don't always get a bat mitzvah, and when they do, it's rarely celebrated with the same vigor or considered as significant as a bar mitzvah in the same family).
A girl sues, demanding that she be entitled to a legally recognized "bar mitzvah." On the one hand, Ilya could rightly claim that by definition, denying her access to the status of "bar mitzvah" is sex discrimination. On the other hand, defenders of limiting legally recognized bar mitzvahs to boys would rejoin that bar mitzvahs by definition, backed by hundreds of years of tradition and culture, are solely for males.
It strikes me that both sides have a point, and most likely the best thing for courts to do under such circumstances, where they'd basically just have to take sides in a culture war pitting feminists against religious and cultural traditionalists, is to stay out of it–so long as analogous rights and obligations are available to the plaintiff through an analogous ceremony certificate, in this hypo the bat mitzvah.
Disclaimer: While I don't think that courts should recognize a right to same sex marriage by finding that the absence of such a right is sex discrimination, nor do I think courts should even take the position that is must be analyzed as sex discrimination, I support legislation providing for same-sex marriage. I'll also add the disclaimer that I'm not addressing any other constitutional arguments that states must expand their definition of marriage to include same-sex couples.
UPDATE: Let's add an interesting hypo to the mix: what if California, instead of having a domestic partnership law, instead created a new legal category called "same sex marriage" that had exactly the same rights and privileges as "marriage", but every relevant statute that applied to marriage now applies to "marriage and 'same-sex' marriage", or perhaps "'traditional marriage'" and "'same sex marriage'". Still sex discrimination if same sex couples aren't eligible for "traditional marriage"? Again, I think that by definition the answer is yes, and by definition the answer is no.
FURTHER UPDATE: New hypo: A small European nation has a constitution that bans any form of sex discrimination. The King (who has only ceremonial duties) dies. His daughter is next in line for the throne. Even though she'd have the same legal rights, duties, and privileges either way, she demands to be crowned King, not Queen. She points out that it's sex discrimination that only men can be called "King", argues that she will likely get less respect from her subjects if she is called Queen instead of King, and that the distinctions between "King" and "Queen" are rooted ancient patriarchy. Valid sex discrimination claim? Once again, my instincts are that (a) this, by definition is sex discrimination [or, more precisely, a classification based on sex and therefore subject to intermediate scrutiny under American law]; and (b) this, by definition, is also NOT sex discrimination, and if I were a judge I'd stay out of it.
RESPONSE TO ILYA: Ilya starts his response by misapprehending my point. It's not that marriage is "traditionally" between a man and a woman, and therefore limiting marriage to such is not sex discrimination. It's that the very definition of the word "marriage" has, for hundreds or even thousands of year, been limited to relationships between men and women. Therefore, the argument would be that it's not sex discrimination to limit the scope of state-recognized marriage to what comes within that definition, just like, e.g., it's not sex discrimination to limit the title of King to men.
And if I'm following Ilya's logic correctly, it would have been sex discrimination to limit the title of King to men, say, fifty years ago, when the title of Queen may have been considered relatively less important, but it's not sex discrimination today. I don't buy it. It was, by the logic of Ilya's original post, sex discrimination then and it is discrimination now to limit the title King to men, but it also was just what the word "King" meant then and now, and therefore not sex discrimination.
If indeed the problem, as Ilya suggests, is that "civil union" doesn't have the same cultural heft as "marriage," then I think the argument is that everyone has the fundamental right to get "married," which is a different argument for constitutionalizing for same sex marriage, and one that I don't address.
February 9, 2012
Judicial Minimalism and Same-Sex Marriage
Co-blogger Dale Carpenter argues that Judge Stephen Reinhardt's recent decision striking down the California gay marriage ban is an attempt at "judicial minimalism" intended to make the outcome acceptable to a Supreme Court that is unlikely to rule that the Constitution requires nation-wide recognition of same-sex marriage. By "lowering the stakes," Dale argues, Reinhardt gives the Court a way to affirm his ruling.
This may well be Reinhardt's intention. But I am skeptical that it will work. Whatever one thinks of judicial minimalism generally, there is no minimalist way to strike down Proposition 8. Even if the impact of such a decision were limited to California, that in itself is a huge step. California is a state with some 37 million people. Moreover, the logic of Reinhardt's decision is that there is no "rational basis" for denying same-sex marriage in a state that already permits same-sex civil unions that give couples the same substantive rights as marriage would. In addition to California, there are seven other states that permit civil unions without legalizing same-sex marriage, including major states such as Hawaii, Illinois, and New Jersey. Many other states are likely to enact civil unions over the next few years, because the idea is very popular, with even a plurality of Republicans supporting it, as of 2010. If the Supreme Court embraces Reinhardt's reasoning, a state that enacts a civil union law would have to embrace gay marriage as well. That's not a minimalist result confined to one or a few states, and the Supreme Court justices are likely to realize that.
On the other hand, Dale is probably right to argue that the Supreme Court is not going to rule that the Constitution requires recognition of same-sex marriage at a time when 44 states still forbid it. This suggests that the anti-Prop 8 suit was premature. It would have stood a better chance a decade or two from now, since public and elite opinion are both moving strongly in favor of gay marriage. In the meantime, however, the current lawsuit is likely to fail.
Given this reality, gay marriage advocates might be best served by making the strongest possible constitutional argument for gay marriage rather than trying to engage in "minimalist" hair-splitting that makes them look as if they are trying to evade the real issue, and is unlikely to persuade anyone who isn't already committed to the cause. The Court might well still uphold Proposition 8. But such a defeat could lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.
In my view, the strongest available argument is that a ban on same-sex marriage qualifies as sex discrimination. Obviously, others will disagree, preferring to base their case on privacy arguments or on claims that discrimination against gays is unconstitutional. Regardless, this is the kind of argument that gay marriage supporters will have to make.
UPDATE: I am, of course, well aware that the anti-Prop 8 plaintiffs have made a variety of broader arguments during the course of the litigation. I do not mean to suggest that they are relying solely on "minimalist" claims. I just wanted to explain why a minimalist victory in this case is unlikely.
Eric Alterman on Sheldon Adelson
Eric Alterman has a bizarre column in The Nation on billionaire Gingrich-backer Sheldon Adelson. The column purports to be a celebration of the fact that "no one" is using a combination of Adelson's Jewishness, money, somewhat shady reputation, and hawkishly pro-Israel views for anti-Semitic purposes. The column, however, really seems to be a passive-aggressive attempt by Alterman to goad his readers into loathing Adelson precisely for being a rich, somewhat shady, Jewish businessman with hawkishly pro-Israel views.
The disingenuousness of the column became obvious when I reached this line: "Nobody has noted—at least not in public—that [Adelson's] agenda happens to be the one to which Jews accused of 'dual loyalty' or of being 'Israel-firsters' are alleged to have dedicated themselves."
Even though I (unlike, I think it's safe too assume, Alterman) don't regularly frequent websites that traffic in attacking people for being hawkishly pro-Israel (much less for being rich or Jewish), I've seen plenty of attacks on Adelson on precisely the grounds that Alterman claims "nobody" is mentioning. As confirmation, a Google search for Adelson Gingrich Israel-firster brings up 527 pages [and checking the first dozen-plus, it's all attacks on Adelson of the sort "nobody" is making]; assumedly there are a lot more of a similar ilk that don't use the relatively obscure "Israel-firster" language.
UPDATE: Alterman is not, of course, making the blatantly anti-Semitic suggestion that Nation readers should loathe Adelson because he's a Jew. Rather, he's suggesting that Adelson is the kind of Jew Nation readers should loathe. It's perhaps akin to when Clarence Thomas's critics accuse him of being an "Uncle Tom" or use similar race-tinged insults; they're not arguing that one should loathe Thomas because he's Black, but because of the kind of Black he is. It's certainly not KKK-style racism, and indeed those who engage in such slurs typically think of themselves as champions of anti-racism (as I'm sure Alterman, as an observant Jew, does with regard to anti-Semitism) but it's ugly nevertheless.
FURTHER UPDATE: I'm not completely content with the "Uncle Tom" analogy, which is more like a Jew calling a fellow Jew "self-hating" (which is also ugly rhetoric). A more precise analogy is provided by a commentor: A conservative black columnist writes a column about a shady, black hip-hop artist/producer giving tons of money to a liberal presidential candidate to promote an agenda of affirmative action. The columnist suggest that the rapper was the type of black person that a racist would love to invent, and that he disagreed with the rapper's political agenda, but go on to note that he was "thrilled" that the criticism of the rapper generally did not invoke racist themes, and suggests that maybe racism wasn't such a big deal.
What's Distinctive About America
For readers who may be interested, Immigration Daily recently reprinted my November post about "What's Distinctive About America.":
Can Obscene Materials Be Copyrighted?
No, claims the plaintiff in Wong v. Hard Drive Productions, in the Northern District of California. Here's what Judge Young of the District of Massacusetts had to say about the issue recently:
[T]t is a matter of first impression in the First Circuit, and indeed is unsettled in many circuits, whether pornography is in fact entitled to protection against copyright infringement. Copyright protection in the United States was "effectively unavailable for pornography" until the landmark decision by the Fifth Circuit in Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 854–55, 858 (5th Cir.1979) (holding that the Copyright Act neither explicitly nor implicitly prohibits protection of "obscene materials," such as the films at issue there, and rejecting the defendant's affirmative defense of "unclean hands"). See also Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir.1982) (stating, in the context of copyright infringement of a pornographic film, that "[p]ragmatism further compels a rejection of an obscenity defense" because "obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether"). Compare Devils Films, Inc. v. Nectar Video, 29 F.Supp.2d 174, 175–77 (S.D.N.Y.1998) (refusing to exercise its equitable powers to issue a preliminary injunction against infringement of pornographic films and "commit the resources of the United States Marshal's Service to support the operation of plaintiff's pornography business," holding that the films were "obscene" and illegally distributed through interstate commerce), with Nova Prods., Inc. v. Kisma Video, Inc., Nos. 02 Civ. 3850(HB), 02 Civ. 6277(HB), 03 Civ. 3379(HB), 2004 WL 2754685, at *3 (S.D.N.Y. Dec. 1, 2004) (holding that the question of whether particular pornographic films are "obscene" is one of fact for the jury, and that, even were the films deemed to be obscene, it would not prevent their protection under a valid copyright) (citing Jartech, Inc., 666 F.2d 403; Mitchell Bros., 604 F.2d 852). Congress has never addressed the issue by amendment to the Copyright Act. See Ann Bartow, Pornography, Coercion, and Copyright Law 2.0, 10 Vand. J. Ent. & Tech. L 799, 833 (2008).
Liberty Media Holdings, LLC v. Swarm Sharing Hash File AE340D0560129AFEE8D78CE07F2394C7 B5BC9C05, — F.Supp.2d —-, 2011 WL 5161453 (D.Mass. 2011) (Young, J.).
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