Gay marriage: Part 2

This is my second of three promised posts on gay marriage, examining whether or not the judicial precedent I called on in the first post is itself valid. I started to write a post about the validity of a penumbra of privacy versus substantive due process and whatever. Then I realized that this is boring. And that it’s been a long time since I’ve taken a constitutional law class, so I probably shouldn’t pretend that I’m making sophisticated legal arguments. In brief, I think that the latter is a more valid justification for all of the decisions in the last half century about contraception, abortion, sodomy, etc than the former, but that both of them are pretty tenuous.

Here’s what it boils down to. There are two possible ways to view the Constitution/Bill of Rights as a guarantor of freedoms, and consequently the role of the Supreme Court in interpreting those guarantees. One is as the direct guarantor of life, liberty, and the pursuit of happiness for all citizens. The other is the guarantor of political rights as essential instruments by which the people can protect an arena in which to carry out said pursuit.

If you take the former view, then the intuition that it makes no sense for the Bill of Rights to protect us from troops being quartered in our homes but not from serious infringements on the ability to make decisions about sex and childbearing is reasonable. The Court has a responsibility to defend not only enumerated rights, but also those "implicit in the concept of ordered liberty" -- liberties so fundamental as to make Constitutional citizenship meaningless without them.

However, I think there is a strong argument to be made for the second view. The Constitution doesn’t read like a treatise on the rights of man. It makes no attempt to specify the range of freedoms necessary to the pursuit of happiness. Precisely the intuition that leads people with the first view of the Constitution to find a right to privacy in family matters is in itself an argument against that view. Why would we choose to interpret the Constitution in a way that makes it nonsensical as written?

In this latter view, the Constitution is meant to outline the powers of government, and provide a strong guarantee of the political rights that make full civic participation possible. The authors therefore listed protections against the specific tyrannies which were used in their experience to deny political representation. And, recognizing that their list was based on limited experience, they allowed for new provisions to be added as needed. And, just to be clear, they noted that the list was not meant to be exhaustive of all important individual liberties, just a list of those things which were beyond the pale of majority decision-making. In sum, the Constitution is meant to define and defend the parameters of a valid democratic process, so that everything else can then be decided through that process under the guarantee of its legitimacy.

I don’t think that taking this view requires a literal or ‘dead’ interpretation of the Constitution. Interpreting the spirit of the enumerated provisions can and should involve allowing the scope of applications to change along with society and technology. The protections of the 2nd Amendment should not cover nuclear weapons. The power of Congress to regulate interstate commerce, on the other hand, should expand to deal with any genuine coordination problems or externalities involving commerce between states. So, interstate highways and environmental regulations, yes, handguns in schools, no.

I have two major concerns with the political rights view. The first is that there are probably issues beyond the obvious scope of the enumerated protections which genuinely affect the functioning of the democratic process, such as significant educational or economic barriers. I think, although I am not sure, that this problem can be largely solved through a robust understanding of enumerated protections. Here is where the concept of substantive due process has a role to play, albeit a rather different one than that which is currently implied by the term. To the extent that substantive due process means that political rights are meaningless if not accompanied by fundamental but unrelated personal freedoms such as the ability to marry a person of one’s choosing, I disagree that it can be found in the Constitution. If, however, it means that political rights are meaningless without the conditions which enable one to actually exercise that right, I think it is a powerful concept. In this line of reasoning, I would probably go further than current case law has in some areas, and say, for instance, that some version of universal free primary education should be a constitutional guarantee, as well as public holidays for federal and state elections. I suspect that this sort of interpretation would be sufficient to get us most of the non-privacy related civil rights decisions. It’s also possible that some of the privacy cases could arrive at a similar conclusion through an expansive understanding of equal protection of the laws under the 14th Amendment, although I won’t go into that here.

Let me clarify that given current jurisprudence, I think the Supreme Court ought to strike down both federal and state DOMAs as unconstitutional. To not do so is simply an unfair and inconsistent application of stated principles. Had the Court taken an interpretive approach like the one I describe above for the past 70 years, or were it to choose to do so now, however, I have to admit that state DOMAs would probably stand up to scrutiny. Please understand: under such circumstances I would feel compelled to spend a significant portion of my life working to change the laws, state by state. But I would not feel that they were unconstitutional. This sort of federalism would create space for productive cultural pluralism on the state level. (More on this soon.) Given the ease of moving from state to state in this country – even for the poor – I am not terribly sympathetic to someone who says that the abridgment of a right so fundamental as to negate the exercise of due process is not worth moving to another state to rectify. If certain states are willing to accept an exodus of anyone who wants to use birth control, have an abortion, marry someone of the same gender, or have sex without the moral input of the rest of the citizenry in order to maintain their cultural standards, so be it. We’ll see how that works out for them.

My remaining, and more serious concern is what happens to small, permanent minorities under the political rights view. I am not so concerned about the results of such an interpretation for transitory minority status (e.g. age) or large groups mostly held back by historical oppression rather than minority status (e.g. women, blacks) – these people have a rather good chance to protect their interests through the political process by dint of their numbers or intimate connections to non-minority groups. Groups that are never likely to be large enough to impact political interests, nor integrated enough with majority interests to achieve results through coalition building (e.g. gays, disabled people, possibly Native Americans) don’t really have a fighting chance under a system that protects their ability to participate but not to be free from majority rule in all other areas of life. I don’t know what to do about this.

Unhelpful thoughts on abortion

Approach to abortion #1: Human life begins at conception, therefore abortion is murder.
Problem: How can you allow any exceptions, even for rape or mother’s health? If there is really mass murder going on, why aren’t you out citizen’s arresting doctors who perform abortions?
Solution: Yes.
(Okay, fine – some argue that even if they feel this way they recognize that compromising politically to prevent as many deaths as possible is better than letting the perfect be the enemy of the good.)

Approach to abortion #2: Human life begins at birth, therefore any decisions about abortion should be left in the mother’s hands.
Problem: Why do we feel sad about abortion, as if it’s something acceptable but better to avoid if possible?
Solution: We feel regret about plenty of things with never-to-be-realized potential that have nothing to do with taking human life. Like, novels we never wrote and vacations we should have taken.

Approach to abortion #3: Human life begins somewhere between conception and birth, therefore we should legalize abortions performed before that point and criminalize those performed after it.
Problem: How can we know when life begins?
Solution: We should take our best guess now based on scientific evidence, and refine our laws as medical science improves.

Really unhelpful alternative I am proposing: Human life begins between conception and birth. But not only can we not know when it happens, there is no ‘point’ when it ‘happens’. There is a spectrum which we can only classify at either end – everything between is just a matter of more and less. Any attempts to draw a line through it are not just uncertain, but arbitrary and invalid by the nature of the thing. And the health and happiness of the mother and other people are relevant as an also-impossible-to-classify-spectrum of more and less bad outcomes that have to get weighed against the more and less of the life. Abortion is therefore neither flat out murder, nor a-okay, but always something morally grey, uncomfortable, and squishy.
Problem: So, uh, what are the policy implications of this?
Non-solution: I have no effing idea.

As a general point, I have noticed that people are very uncomfortable with the idea that pretty much everything is morally grey. (Please overlook my assertion of a few days ago that gay marriage is a black and white issue…) The fact that something is the least-bad option does not make it ‘good’. Conversely, the fact that all of your choices are morally unpalatable – or possibly even unforgivable – does not obviate your responsibility to choose between them as best you can. It’s called tragedy, folks, and it’s awesome.

People want to have a list of things they should do or refrain from doing as they go about their daily lives, and to feel that if they can check off everything on that list, they are good, and if they can't, they are bad. Everyday life is about choosing from among less-than-good options, by virtue of the fact that there is always more good one could have done. You can never relax and say “I have been good today”. You haven’t. You’ve been bad. And good. And tomorrow you should be more good and less bad. I say this as someone who bought a latte today instead of sending my two bucks to Medecins Sans Frontieres.

Gay marriage: Part 1

I know that I’m preaching to the choir, here, but I want to write about gay marriage while CA Proposition 8 is still fresh in our minds. It’s something that I have long felt very, very strongly about, and which I believe is the only morally black and white question facing my generation. That said, I have spent a lot of time discussing it with well-intentioned and definitely non-evil people who hold opposite views, and I think I have come out with a somewhat unusual set of thoughts on the topic.

My intention is to make a few posts:

1. There is a strong case for striking down both the federal Defense of Marriage Acts (DOMA) and discriminatory state marriage laws through the courts
2. Some of the legal precedent supporting the judicial case is itself of questionable merit
3. Everyone should support legal change through the legislative process, regardless of judicial outcomes

*******

First things first. The federal DOMA says that marriage is between one man and one woman, and in essence, that no state will be obliged to recognize a marriage conferred by any state that says otherwise. This seems to me to be an obvious and blatant contradiction of the “full faith and credit” clause of the Constitution, which says that states must recognize the public acts of another state, even when such an act would not occur under its own laws. This rule has been upheld in the case of common law marriage, which is legalized only in a minority of states, although not by the Supreme Court. It is my understanding that this point has been made before, but that the Supreme Court has not yet chosen to hear any of the relevant cases. This seems so obvious to me that I don’t even know what to say about the fact that nothing has been done about it. Maybe I’m missing something? Maybe the Supreme Court knows that if they had to actually hear this case they would set off a firestorm of the sort not seen since Roe?


Next, the more complicated question: Is there a federal case for overruling state marriage laws?

The popular argument about the judicial case for legalizing gay marriage often boils down to this:
Pro – “It’s just like Loving v. Virginia [the case that struck down anti-miscegenation laws]”
Con – “No, that was about race”
Pro – “It’s the same thing”
Con – “No, it’s not”

They are both right, and it’s more complicated than that. Loving v. Virginia provides the bedrock of the case, but you need two more past judicial decisions to bring it home. To make a successful Supreme Court case, you would need to show four things:

1. There exists a ‘right to marry’.
2. If a state wishes to nonetheless deny access to marriage, it must give reasons that meet a standard of strict scrutiny (the high bar that is needed to validate laws that distinguish on the basis of protected classes [e.g. race] or fundamental rights) rather than the usual ‘rational basis’ required for courts to defer to legislatures.
3. A union between two people of the same gender could theoretically meet the legal definition of marriage.
4. DOMAs do not meet the requirements of strict scrutiny.

Right to Marry
The first is provided by Loving. The Court found that anti-miscegenation laws violated not only the Equal Protection clause of the Constitution, but also the Due Process clause. They could have decided the case on Equal Protection alone: “[I]t is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.” But they didn’t. They went out of their way to say the following: “[T]he freedom to marry [is] one of the vital personal rights essential to the pursuit of happiness by free men.”

Strict scrutiny
Arguments against Loving as sufficient precedent often point out that since gays are not a ‘protected class’ and DOMAs are not created with the intent to do harm to people of one gender, they need only meet the requirements of a ‘rational basis’ for discrimination. If the defenders of DOMAs can come up with any rational basis (like protecting the traditional values of the state), then the Court must defer to the legislature. However, the decision in the 1978 case Zablocki v. Redhail says, “Since our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that "critical examination" of the state interests advanced in support of the classification is required.” Strict scrutiny should be applied, not because gays are a protected class, but because marriage is a fundamental right.

Same-sex marriage is marriage
There is a fundamental right to marry, but does same-sex marriage actually describe something which fits the parameters of this right? In Turner v. Safley, the Court considered a law enabling prison authorities to restrict the right of prisoners to marry, and concluded that such a statute did not even meet the low standard of being “reasonably related to legitimate penological interests” that pertains in a prison setting. Four important attributes of marriage were laid out as “sufficient to form a constitutionally protected marital relationship.”

1. Marriages are “expressions of emotional support and public commitment.”
2. Marriage is an “expression of personal dedication” and for some couples may involve an “exercise of religious faith.”
3. Most marriages are formed “in the expectation that they ultimately will be fully consummated.”
4. Marital status is often “a precondition to the receipt of government benefits, property rights, and other, less tangible benefits.”

The only possible argument that same-sex marriage could not meet this definition lies in the definition of “ultimately[…] consummated”. I will skip a lot of reasoning on this subject, but in essence, it is unlikely that ‘consummated’ equals ‘procreation’ since no state attempts to prevent infertile couples from marrying or asks people to declare their intention to have children upon marriage, and because we have Court cases that explicitly say that contraceptive use in married couples is a-okay because choices about childbearing in married relationships are none of the state’s business.

DOMAs don’t meet strict scrutiny
None of the areas of state interest that are commonly proposed as reasons to restrict the right of marriage to opposite-sex couples can overcome the demands of strict scrutiny set by Zablocki, which require that laws that “interfere directly and substantially” with the right to marry must be supported by “sufficiently important state interests” and be “closely tailored to effectuate only those interests.” For instance, let’s discuss the three areas of state interest proposed in the case that legalized gay marriage in MA, Goodridge v. Massachussets:

1. Connecting marriage to procreation -- Going beyond the case law regarding married couples being allowed to use contraception, there is no evidence that allowing same-sex couples to marry would decrease the likelihood of opposite-sex couples to procreate, whereas the ability to bring children into a family supported by marriage might very well increase the likelihood that same-sex couples would choose to pursue alternative methods of reproduction or adoption.
2. Preserving the optimal setting for child-rearing -- The generalization that homes with two parents of opposite sexes are preferable to same-sex households is too broad to meet strict scrutiny, especially given the lack of respectable social scientific evidence about impact of a same-sex household on children. The Court would never accept restrictions on marriage for people with demographic traits with a better documented correlation with negative parenting outcomes, even though such laws might serve the interest of protecting children’s welfare far better than a ban on same-sex marriage. Social welfare policies more narrowly designed to benefit children or families with children would be more closely tailored to serve the state’s interest in child welfare.
3. Preserving scarce state resources -- Where the state contends that same-sex couples are less financially dependent on each other than opposite-sex couples, MA Chief Justice Marshall responds that, “Massachusetts marriage laws do not condition receipt of public and private financial benefits to married individuals on a demonstration of financial dependence on each other.” A law granting benefits only to individuals or couples with demonstrated need would be a far more obvious and closely tailored method of preserving state resources.

If you need further proof, see what Justice Scalia had to say in his dissenting opinion in the case Lawrence v. Texas, which struck down anti-sodomy laws:

Today's opinion dismantles the structure of constitutional the law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Zing. What a lovely fellow. I had dinner with him once. A poor befuddled Yale Law student made the mistake of beginning a question critical of one of Scalia’s decisions with “My girlfriend says…” Scalia’s response? “Get a new girlfriend.” Period.