Reflections on the Walker decision

by John Holbo on August 7, 2010

I just read the Walker decision. Let me pick on something Orin Kerr has written which seems to me confused, or at least problematic. I’m going to get all philosophy about ‘rational basis’, and Kerr will really just be an occasion for discussion … but first the law background.

The ‘rational basis’ standard, as you may know, is the lowest hurdle a piece of legislation may be called upon to clear, to pass 14th Amendment muster. Short version: if the state wants to pass a law making it mandatory for everyone who was born on July 15 to wear clown shoes on alternating Tuesdays, the state needs to make a minimal showing that imposing this differential burden on the July 15thers is ‘rationally related’ to some ‘legitimate state interest’. If the state can’t say what it thinks it’s on about, eh? it violates equal protection. Generally this is an easy hurdle to clear, because the court is very deferential; if it weren’t for bad ideas about what they want to do, and how they want to do it, many legislators wouldn’t have any ideas at all. The court understands and sympathizes. The hurdle can, in effect, be treated as trivially low. But in some cases the court may apply somewhat heightened scrutiny that is still highly deferential. How does this go? [UPDATE: the silly example is confusing, because it maybe wouldn’t be a case to which heightened scrutiny applied. But the gay marriage case is such a case, so the point I’m making seems ok.]

A ‘state interest’ can be bad enough that it is illegitimate. From the final pages of Walker’s opinion (I skipped to the end to see how it turned out): “Moral disapproval, without any other asserted state interest” doesn’t cut it. That’s not Walker but a quote from the Lawrence decision. [UPDATE: oops, it’s from O’Connor’s concurrence in that case.] If the interest just is in regarding people unequally, in effect, that can’t trump equal protection. This makes sense. If the law can treat a certain class of people unequally – but only so long as the legislature clears the hurdle of wanting to … you see the problem.

Moving past the issue of illegitimate alleged state interests: some ways of pursuing otherwise acceptable interests could be bad enough that they, too, violate equal protection. The likeliest difficulty, I guess (I actually don’t know much about precedent in this area) would be burdening some class unduly, when it would be easy – maybe easier – to achieve the goal in more equitable fashion. (Note how this probably throws us back on the first problem of illegitimate interests: the way you’ve done this shows that you are messing with these people for the sake of messing with them; that is not a permitted goal.) But we want a slightly different case: a plan so bad it is no plan at all. Is it possible to have a plan that bad? So Underpants Gnomic?

Opponents of gay marriage allege that gay marriage will cause harms, beyond just upsetting people who didn’t want to allow it. The judge rests a lot of weight on the factual wrongness of these predictions of bad effects on straight marriages, on the children, etc. Here Kerr raises doubts.

Several of the key factual findings in Judge Walker’s opinion are in the form of predictions, not facts. For example, Judge Walker finds that “permitting same-sex couples to marry will not . . . otherwise affect the stability of opposite-sex marriages.” But real predictions have confidence levels. You might think you’re going to get an “A” on an exam next week, but that’s not a fact. It’s just a prediction, and there’s a hidden confidence level: Maybe there’s an 80% chance you’ll get that grade, or a 60% chance. Judge Walker’s prediction-facts have no confidence levels, however. He doesn’t say that there is an 87% chance that permitting same-sex marriage will not affect the stability of opposite-sex marriages. He says that it is now a fact — with 100% certainty — that that will happen.

I don’t think this makes sense. Oh, we could get all fatalistic about it. If I’m going to get an A next week, it’s already a fact that I’m going to get an A next week. But setting that aside that metaphysical imponderable: all statements have confidence levels, and some predictions are a lot more certain than many statements of current observation. ‘The sun will rise tomorrow’ has a higher confidence level than many a routine ‘that’s him’ identification, in a court room. So we have two questions: are the judge’s factual determinations certain enough for legal purposes (on pain of this whole law business devolving into hyperbolic ‘how do I know I’m not dreaming?’ skepticism)? Two: even if these alleged facts do look pretty damn factual, does it follow that the state isn’t trying to do what it says it’s doing (however stupidly and perversely and badly)? Is it even possible to be trying so badly that you aren’t even trying?

Let me construct a silly hypothetical. Suppose the state’s ‘rational basis’ – let this be the only ‘interest’ proffered – is that gay marriage will increase rates of cancer in children within 5 miles of anyone who gets gay married. (Bear with me. The point is to consider something absolutely maximally stupid and see what it says about ‘rational basis’ as a standard.) The ‘experts’ called to testify about the gay cancer cluster effect are as credible as you might expect, etc. etc. And the judge writes a decision to the effect that there is no ‘rational basis’. And now the state objects that it is doing it ‘for the children’. This is a legitimate state interest, and the legislature is allowed to pursue any legitimate state interest, even in idiotic, ineffective – nay, perverse! – ways.

If opponents of gay marriage declare this terrible thing will, literally, cause the sun not to rise … And here’s this judge saying it’s nonsense and, factually, the sun will rise one way or the other … I think we can see that there is a slightly weird issue here about ‘rational basis’ that, contra Kerr, doesn’t hinge on consideration that all predictions have confidence levels.

What is the issue? I think it has to do with why this urban myth about gay marriage cancer clusters took root. If the explanation is that lots of people despise gays, or even just think being gay is clearly morally worse than being straight, and if this sentiment works itself out, expresses itself, through readiness to confabulate and credit empirically nonsensical harm claims, then, really, this is not a case of the state even pursuing legitimate interests in preventing harms. It’s effectively just a case of moral disapproval.

Now, while I expect you can see the logic of this, there is also the fear that it is, basically, a ‘false consciousness’ theory of what’s going on. Attributing false consciousness doesn’t seem very deferential. Also, it seems fraught to make judges generally responsible for saying what people really think, even though the silly things themselves think they think something else. In a ballot measure case in which, in effect, the judge might be second-guessing the whole electorate, not even just the legislature, it seems pretty high handed. (It’s not rocket science, maybe; more like brain surgery.)

But let’s consider another extreme case, which will make my point more intuitive: suppose the issue is treating Jews unequally in some way and the state says it isn’t imposing special restrictions out of anti-semitism but out of ‘blood libel’ concerns (no doubt the state would not use that term itself). There are concerns that Jews kill Christian babies, so we’re not doing it because we think badly of Jews – perish the thought! – but ‘for the children’. Of course we don’t know Jews kill Christian babies, but we ‘rationally speculate’ they have, or might, or could in the future. Who knows? A judge should defer to the legislature.

I think we can agree that this shouldn’t fly. It wouldn’t do to let it fly by saying that the judge who sought to strike the inequality down has to prove, with perfect confidence, that in the future Jews won’t take advantage of equality to kill Christian babies. Proving a negative like that just isn’t possible. (I can’t prove daisies won’t turn into dinosaurs tomorrow, not strictly. I can hardly hope to prove the blood libel won’t turn true tomorrow.)

A better standard may end up looking (may indeed be) harder to apply, but it still ought to run more like this: if it is impermissible to legislate that ‘these people are worse, and should be regarded as such’, then it ought to be impermissible to legislate on the basis of false beliefs held only because of such flat moral disapproval. More weakly: even if it’s hubristic to go around sorting true from false, with supreme confidence, and second-guessing why it is that the plain people really hold their nutty beliefs, if a judge is really very certain that she confronts a particular, extreme case in which it is impossible to believe the belief in question is really anything more than a symptom of moral disapproval, then it makes sense to let the judge make the call that it’s an equal protection violation.

One more really silly case. Suppose the legislature passes the Dinosaur Prevention Act, as a result of which those people with daisies in their yards suffer under a disproportionate burden. The police keep giving them tickets, declaring their gardens a ‘dinosaur hazard’. It all goes back to that one legislator who had a dream about daisies turning into dinosaurs. He woke up in a cold sweat, and he told two people, and they told two people …

Is this an equal protection violation of the rights of the class of people with daisies growing in their yards? I think not, unless we think that legislator, and those he influenced, have some animus (conscious or unconscious) towards the class of people with daisies in their yards. If it is, on the other hand, pure pseudo-scientific mania about daisies, untainted by ill-feeling towards daisy owners, then it’s just a really, really stupid law. But not unconstitutional. Because the state does have an legitimate interest in preventing dinosaur attacks, and no obligation to pursue that interest in remotely sane fashion. So long as there is method in your madness, and no malice, you are good to go. (There might be suspicion that we have, in effect, a new religion, whose tenets it might be unconstitutional to foist on others. But set that aside.)

I said above that the reasoning for ruling against the anti-semitic-style case is sort of a false consciousness argument: you are really thinking something different from what you think you are thinking. But we can be a bit less crypto about it. If the only mechanism by which a class of persons, A, will cause alleged harms B, C and D, is through a sort of inherent low badness, i.e. a quality that can’t be explicated except in terms of ‘these people are just worse than you or I’, then you shouldn’t be allowed to legislate against A to prevent harms B, C and D. ‘I’m not anti-semitic, I don’t think Jews are worse than anyone else, I just believe that Jews cause moral harm and misfortune wherever they go’ is a bit of a bad joke. Because, after all, if you really believed that, you should be anti-semitic. To be anything else would be irrational. So the only rational basis for your desired legislation is one that it is not permissible to legislate on the basis of.

To conclude my point about Kerr’s post: I have no idea what the courts are likely or unlikely to do, on appeal. But it seems to me that these factual findings are inherently constitutionally relevant, not the sort of thing one could set to one side while considering the merits of the decision. The standard for judging this aspect of the case is not whether Walker is capable of proving a negative about the future: ‘there will be no harm, though proponents of pro 8 say there will be’. Rather: whether the expert testimony presented on the anti-gay marriage side at trial had substantial, positive merits Walker missed.

The reason why this is the issue is that if the expert testimony was truly as bad as this judge clearly thinks, then structurally this case is like the anti-semitism case. Namely, it would be irrational to believe in these alleged harms except on the theory that somehow the inherent badness of gayness just somehow must lead to them, and there really isn’t anything else to say except that it’s intuitive that this will be so. It’s permissible believe this, of course, but not to make this the basis for establishing a state interest. The legislature is, of course, allowed to conclude that some citizens are bad and shall be treated unequally because of their harmfulness – murderers, for example. But that requires argument to badness from harmfulness, not argument from badness to harmfulness. Very different sort of case than the gay marriage case, if there is, in the latter, no harm story told that doesn’t take the badness of gayness as a major premise. The badness of being murdered can be sufficiently elucidated without reference to the badness of being a murderer. That makes it unlike the badness of gay marriage, which apparently cannot be elucidated without reference to the badness of being gay.

At this point the Prop 8 defenders have a couple options. (Overall, they have lots of options that go beyond anything in this post. But the following is the best way to argue against what I just said.) They can argue that really we can’t be sure the people of the great state of California aren’t just being dummies (granting, for the sake of argument, that the expert testimony on the Prop 8 side is uncompelling). For all we know, anti-gay marriage sentiment might be like the daisies and the dinosaurs – a silly notion, but well-intentioned – certainly not something like the anti-semitism case. Here we might even get a variant of the ‘wisdom of tradition’-type argument against gay marriage. People disapprove of gay marriage because it’s untraditional. If that tradition turns out to be wise, there is a good reason not to have gay marriage. If that tradition turns out to be foolish, then at least it’s an innocent mistake. In my argument above, I sort of assume that if you don’t believe something because you have reasons, you probably believe it because you want to. But you might just believe it because you have been told it, and never thought about it much.

But if there is anything that people have been told, and believed just because they were told it a lot, it isn’t that gay marriage causes harms, it’s that there’s something bad about being gay. It’s worse to be gay than straight. There isn’t a long tradition of thinking gay marriage causes harm, so it can’t count as a ‘traditional’ belief. And the plausibly traditional belief is exactly the sort of bald moral disapproval that isn’t permissible as a basis for establishing a state interest

Sometimes gay marriage opponents (or conceptual defenders of Prop 8, or opponents of Lawrence style reasoning) try to do a judo number on this last point, using its strength against it. It makes no sense to try to rule out moral disapproval, as a legitimate basis for our judgments and legislative acts. Because it always comes to that: murder = wrong because death = bad. You must start with some value judgments, not just with ‘the facts’. This misses the point. Constitutionally, you’re not permitted to take, as one of these admittedly necessary starting points, the separation of citizens into first and second class compartments. You can assume that life is good and death is bad and the greatest good for the greatest number is to be preferred to a sharp stick in the eye. Lots of stuff is still fair game for assumption, value-wise.

(Admittedly, there may be equality issues implicated even by ‘life is good’. Issues of warranted Schopenhauerian pessimism, to say nothing of issues of posthumous harm and possibly discounted interests of future generations. Zombie economics issues having to do with the presently unalive! Who’s to say that living people should be regarded as ‘better’ than dead ones? Says who? The living, that’s who! Appalling zoonormative thanophobia!)

Where was I? Oh, yes!

Here is one last major objection to what I am proposing. It will be objected that my approach – which I take to be Walker’s, in his decision – encourages judges to play the Platonic Philosopher King, concluding that the wretched masses are deluded and don’t even think what they think they think. And when you finally figure out what they think, underneath all the dirt, it’s wrong. False consciousness stuff. Seems quite un-American to regard the electorate in such a disdainful light. But it’s worth remembering how this Constitution thing is supposed to work. From a certain perspective, you might think the American people would be repeatedly insulted by their own Constitution. Who do these framers think I am? Some jerk who doesn’t respect free speech, such that other people need to be protected from me? Or – maybe worse – I’m some idiot who thinks he favors free speech but is too dumb to know what free speech really means? These amendments do betray a surprising degree of bigotry of low expectations, as expressions of lofty ideals go. We evidently anticipate that large numbers of citizens – majorities, probably – are going to try, from time to time, to do the wrong thing, in a very basic way. Americans will be stupid or evil, or both, where values like equality and freedom and rights are concerned. (Otherwise we wouldn’t need to bother with this Bill of Rights.) That’s insulting!

And so it comes to pass that the Walker decision is insulting to the electorate of California. Quite so. Walker basically tells a majority of the voters on Prop 8 to sit and spin on their failure to grasp their own cherished values. I think it’s only natural for a lot of people to feel something between aggravation and red hot rage, in the aftermath of any such decision, by any court, to strike down any legislative or ballot measure as unconstitutional. It’s just not pleasant to be lectured about how you are a bad idiot. It’s very hard for any proponent of Prop 8 to read this decision as anything but that.

So I tend not to be offended by a lot of ‘this isn’t America any more!’ venting. It’s hard to swallow an insult-and-injury sandwich. But at the same time: it’s the whole point of the Bill of Rights to induce judges to do this sort of thing. So, strictly, we ought always to remember that the consideration that this sort of thing looks like the most un-American thing in the world is also evidence that it is the most American thing in the world. Assuming, that is, that Marbury v. Madison was rightly decided.

Full disclosure: I’m in favor of permitting gay marriage.

{ 72 comments }

1

blah 08.07.10 at 8:44 am

Short version: if the state wants to pass a law making it mandatory for everyone who was born on July 15 to wear clown shoes on alternating Tuesdays, the state needs to make a minimal showing that imposing this differential burden on the July 15thers is ‘rationally related’ to some ‘legitimate state interest’. If the state can’t say what it thinks it’s on about, eh? it violates equal protection.

This is not quite accurate. In Equal Proctection challanges subject to rational basis review, the plaintiff has the burden of proving that the challenged classification is not rationally related to a legitimate state interest. Here is how the Supreme Court described the standard:

A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. A statute is presumed constitutional, and the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record.

Heller v. Doe, 509 U.S. 312 (1993) (internal quotations and citations omitted).

A ‘state interest’ can be bad enough that it is illegitimate. From the final pages of Walker’s opinion (I skipped to the end to see how it turned out): “Moral disapproval, without any other asserted state interest” doesn’t cut it. That’s not Walker but a quote from the Lawrence decision.

Again, not quite accurate. The quote is from O’Connor’s lone concurrence in Lawrence. Unlike the majority’s decision, which relied on the Due Process Clause, O’Connor would have relied on the Equal Protection Clause to strike down the law. It is not clear how much weight O’Connor’s concurrence will carry with the current court.

2

John Holbo 08.07.10 at 8:56 am

Yeah, you are sort of right, blah. But partly I was being unclear. We have to be assuming we are dealing with a case of rational basis with somewhat heightened scrutiny. And I say so near the beginning My example was probably bad, because it’s not clear that silly case would be an example of such a case, although pretty clearly gay marriage is such a case.

Re: the O’Connor quote. Oh, OK, I was confused about that. I stand corrected.

3

John Quiggin 08.07.10 at 11:23 am

I read Orin Kerr as saying that, in this kind of case, the Supremes (and intermediate courts) aren’t going to let a decision by a District Court judge influence them much one way or the other. That seems pretty obviously correct.

But, there’s a doctrine that says that the District Court judge gets to rule on facts, and the appellate courts only correct errors in law. So, if they want to override, the Supremes have to say that the “facts” found in this case aren’t facts or at least are some different kind of fact, not subject to this doctrine. And since questions like “what kinds of facts do District Court judges get to rule on” are the kinds of things the Supremes get to decide, this requirement poses no real problem for them.

I don’t think Kerr feels it necessary to make the obvious point that, since the Republicans have a 5-4 majority on the court, the decision probably will be overturned, barring a sudden shift in the Republican party position, or (less likely) a defection by Kennedy.

4

Brett Bellmore 08.07.10 at 11:39 am

“But it’s worth remembering how this Constitution thing is supposed to work. “

Indeed, it would be. As *I* understand the way this Constitution thing is supposed to work, the motives for passing a piece of legislation ought not to matter at all. Legislation either is within the powers of the government, in which case nasty motives are a matter for the electorate to sort out, (Whether motives are nasty or not is somewhat subjective, as witness victimless crime laws.) or it’s outside the powers of the government, in which case the best motives imaginable wouldn’t make it constitutional.

IOW, I think Walker’s analysis would be on solider ground if he’d kept out of motive entirely, and just analyzed whether this was the sort of law the state government was, as a constitutional matter, empowered to enact.

The motive for passing a law is a political matter, not a constitutional matter.

5

roac 08.07.10 at 12:04 pm

I don’t think Kerr feels it necessary to make the obvious point that, since the Republicans have a 5-4 majority on the court, the decision probably will be overturned, barring a sudden shift in the Republican party position, or (less likely) a defection by Kennedy.

It’s not actually that simple, as the Republican Party, as distinguished from its manifestation in Congress, is not actually a unitary organization, and the plutocratic wing, to which Roberts belongs doesn’t give a damn about gay marriage. After all, Olson, who litigated for the plaintiffs, is a paid-up member. (I don’t know about Alito, not do I know if Roberts has a track record on this issue; I’m not a hobbyist.)

And from an utterly cynical point of view, the Republicans in Congress might feel it to their benefit to have a court decision to run against, given how much mileage they have gotten out of Roe.

6

BenK 08.07.10 at 12:51 pm

There’s a deeper problem at work here; which is, the original section of the constitution is focused often more at protecting the rights of communities – the states were the largest emergent expression of local communities – than the individuals within. Looking at issues like Jim Crow, we can see how this wasn’t good for some people in some communities. The answer seems to have been to strip communities of all protections and engage the federal government and the naked individual, which actually creates even bigger problems than it solved, hard to believe – it tried to solve pretty big problems. Unfortunately, now, to solve them, the nation will have to probably pull down a huge portion of its jurisprudence and start again.

7

Bruce Baugh 08.07.10 at 1:12 pm

Some years ago, Teresa Nielsen Hayden commented that the real Republican leadership view on homosexuality is “Much too good for the common folk.” The aristos among them may or may not have any problem with it among their peers, but they seem pretty united in opposing it for the masses just as they oppose any other source of joy they can’t manage.

8

John Holbo 08.07.10 at 1:40 pm

Brett Bellmore: “and just analyzed whether this was the sort of law the state government was, as a constitutional matter, empowered to enact.”

We can all agree that this is what the judge should do. But there is some dispute about what such analysis ideally involves, Brett. I can see why you might think that my approach gets too psychological. Ultimately the argument for that is that the other approaches are more problematic in other ways. How do you apply ‘somewhat heightened scrutiny’ in a ‘rational basis’ test while steering clear of mucking around in what people think and intend? Not clear.

9

Russell Arben Fox 08.07.10 at 3:17 pm

[I]t’s the whole point of the Bill of Rights to induce judges to do this sort of thing. So, strictly, we ought always to remember that the consideration that this sort of thing looks like the most un-American thing in the world is also evidence that it is the most American thing in the world. Assuming, that is, that Marbury v. Madison was rightly decided.

I tend to be with Jeremy Waldron on this point.

10

LizardBreath 08.07.10 at 3:19 pm

Huh. I have to say that on this my sense as a lawyer is that Kerr is just right and you’re wrong, but I’m not sure I can turn that into an argument. I think it comes down to what John Quiggin said “So, if they want to override, the Supremes have to say that the “facts” found in this case aren’t facts or at least are some different kind of fact, not subject to this doctrine.”

While any belief has a confidence value, it seems to me that predictions like “Gay marriage won’t affect straight marriage” are legitimately distinguishable from fact-finding about currently existing facts. Imagine a macroeconomic prediction that somehow implicated equal protection: “The legislature wants to pursue policy X because we think it will have macroeconomic effect Y despite the fact that it will unequally affect some group.” A court saying “No, you don’t have a rational basis for that because the economists I found credible says X won’t work to produce effect Y,” would, I think, be doing something illegitimate under rational basis scrutiny — everyone knows that macroeconomics isn’t the kind of thing where you can be certain about that kind of tight prediction.

Similarly with sociology — while Judge Walker could comfortably say that there isn’t any reason the experts he found credible can see that gay marriage would do anyone a lick of harm, it doesn’t seem like the sort of thing that’s amenable to legal factfinding. While I’m hoping the 9th Circuit and the Supreme Court follow his decision, if either reverses it and ignores his findings of fact, I don’t think they’d be doing anything particularly wrong by not deferring.

11

jeer9 08.07.10 at 3:41 pm

I have a 90% hidden confidence factor in my prediction that Professor Kerr will not admit that he’s wrong.

12

Tim O'Keefe 08.07.10 at 4:07 pm

Two: even if these alleged facts do look pretty damn factual, does it follow that the state isn’t trying to do what it says it’s doing (however stupidly and perversely and badly)? Is it even possible to be trying so badly that you aren’t even trying?

Huh? If it can be established with great confidence (via expert testimony) that means M does not at all promote end E, why isn’t that enough for saying that M isn’t ‘rationally related’ to achieving E? It’s neither here nor there whether or not the state is really trying to achieve E via M. (NB that there is a huge difference here between establishing that M doesn’t promote E, vs. not establishing that M does promote E. I’m discussing the former sort of case.)

13

Brett Bellmore 08.07.10 at 4:16 pm

Mind you, I wouldn’t be adverse to having a principle that judges could rule exercises of delegated powers unconstitutional based on malignant motivations and a lack of credible evidence that they’d do anything useful; Most of the nation’s gun laws would never survive such a standard. But that’s not how ‘rational basis’ generally works. Laws motivated by irrational hatred of this or that routinely pass rational basis scrutiny based on counter-factual ‘findings”.

14

Jacob T. Levy 08.07.10 at 4:18 pm

” As I understand the way this Constitution thing is supposed to work, the motives for passing a piece of legislation ought not to matter at all.”

That’s not how the Constitution thing in fact works, across a whole range of domains.

Whether a statute survives free exercise scrutiny under Smith depends on whether the religious practice is being targeted, as opposed to being unintentionally caught up in some other rule. And the court pays attention to surrounding evidence of intent, not just what the government says it’s doing: Your animal sacrifice statute says it’s about health and safety, but it specifically exempts so many other apparently-similar things that we’re left with the unavoidable conclusion that you were motivated by a desire to stamp out this one religion’s animal sacrifices.

The Lemon test in establishment clause jurisprudence similarly asks whether a state action has a legitimate state purpose, that is, it asks a motive question that’s not just about what the legislation does.

And the irrational animus test is now pretty firmly established in the way John describes and Walker uses.

I’m inclined to doubt that judicial review using a partly-moralized Bill of Rights could proceed entirely without reference to the motives of state actors, any more than normal law can do without the intentions of private actors. (If you can’t identify intentional actions, the law of torts/ delicts doesn’t get off the ground.)

15

Tom T. 08.07.10 at 4:24 pm

I don’t think Kerr feels it necessary to make the obvious point that, since the Republicans have a 5-4 majority on the court, the decision probably will be overturned, barring a sudden shift in the Republican party position, or (less likely) a defection by Kennedy.

Kennedy wrote the majority opinion in Romer that Walker relied on, finding that laws that burden gays as a class cannot pass rational basis review.

16

LFC 08.07.10 at 4:25 pm

O’Connor’s view in her Lawrence concurrence about the insufficiency of “moral disapproval” is, arguably, also implicit in Kennedy’s opinion for the Court in Lawrence: see M. Sandel’s “Epilogue” to his piece “Moral Argument and Liberal Toleration,” in Public Philosophy: Essays on Morality in Politics (2005).

17

Brett Bellmore 08.07.10 at 4:26 pm

“” As I understand the way this Constitution thing is supposed to work, the motives for passing a piece of legislation ought not to matter at all.”

That’s not how the Constitution thing in fact works, across a whole range of domains.”

Um, that would by why I said, “supposed to work”. I’m well aware that’s not the way it works in practice. Practice is, after all, mostly dedicated to making sure “this Constitution thing” doesn’t actually get in the way of the government doing whatever it feels like.

It’s just kind of funky seeing this work backwards; This ruling was not “rational basis” as I’ve come to know and loath it.

Of course, in this case it wasn’t really the government trying to do something, was it? It was the people, and the courts aren’t typically deferential to the people.

18

The Raven 08.07.10 at 4:34 pm

Well, the real problem, of course, is that this may go to the Roberts Court, which seems determined to go down in history beside the Taney Court.

Brrr.

19

parse 08.07.10 at 4:42 pm

Doesn’t marriage itself impose a differential burden on single people, who are not entitled to a range of tax benefits afforded to married couples? What is the legitimate state interest to which the creation of the marriage privilege for anyone, gay or straight, is rationally related?

20

JanieM 08.07.10 at 5:16 pm

parse: What is the legitimate state interest to which the creation of the marriage privilege for anyone, gay or straight, is rationally related?

From Walker’s decision:

35. The state has many purposes in licensing and fostering marriage. Some of the state’s purposes benefit the persons married while some benefit the state:

a. Facilitating governance and public order by organizing individuals into cohesive family units. Tr 222:13-17 (Cott: “[T]he purpose of the state in licensing and incentivizing marriage is to create stable households in which the adults who reside there and are committed to one another by their own consents will support one another as well as their dependents.”);

b. Developing a realm of liberty, intimacy and free decision-making by spouses, Tr 189:7-15 (Cott: “[T]he realm created by marriage, that private realm has been repeatedly reiterated as a —— as a realm of liberty for intimacy and free decision making by the parties[.]”);

c. Creating stable households. Tr 226:8-15 (Cott: The government’s aim is “to create stable and enduring unions between couples.);

d. Legitimating children. Tr 225:16-227:4 (Cott: Historically, legitimating children was a very important function of marriage, especially among propertied families. Today, legitimation is less important, although unmarried couples’ children still have to show “that they deserve these inheritance rights and other benefits of their parents.”);

e. Assigning individuals to care for one another and thus limiting the public’s liability to care for the vulnerable. Tr 226:8-227:4 (Cott: Marriage gives private actors responsibility over dependents.); Tr 222:18-20 (“The institution of marriage has always been at least as much about supporting adults as it has been about supporting minors.”);

f. Facilitating property ownership. Tr 188:20-22 (Marriage is “the foundation of the private realm of * * * property transmission.”). (pp. 67-68)

Memories get fuzzy, but I believe it was George Leonard I once read quoting Kurt Vonnegut saying, as perhaps the all-time truest truism: “People will f*ck.” They will also glom onto each other in households, generate offspring, own property, and then, often, fight over the households, the offspring, and the property, ad infinitum. Walker’s summary would seem to say: people are going to do all this stuff no matter what. The state (or the community) has an interest in creating an orderly structure in which they can do it.

Whether that should include e.g. tax benefits that disadvantage single people, I don’t know. When I got divorced, I resented the fact that getting married in the first place had invited the state into my private business, but I also realized that by having children (which I had done before actually getting married) I had invited the state into my private business even prior to the marrying part (the state, or the community more generally, having an interest in the welfare of children).

In working for same-sex marriage and talking (and “talking” on blogs) to people about it at great length for the past few years, I have also come to realize that marriage at the very least a kind of shorthand for all the things that either couples want understood about their relationships (rights of survivorship, hospital visitation, the list is endless) or the state wants understood or ensured about their relationships (rights of survivorship, pension benefits, property issues, etc.).

21

JanieM 08.07.10 at 5:17 pm

[Expletives deleted.] I don’t comment here oftenenough to know that I have to put blockquote tags around each paragraph. The quote ends just before “Memories get fuzzy.” As if that wasn’t already obvious.

22

parse 08.07.10 at 5:40 pm

Thanks, JanieM, that was helpful. Do you have any idea what the following mens? I understand the other points, but not this one.

b. Developing a realm of liberty, intimacy and free decision-making by spouses, Tr 189:7-15 (Cott: “[T]he realm created by marriage, that private realm has been repeatedly reiterated as a —— as a realm of liberty for intimacy and free decision making by the parties[.]”);

23

JanieM 08.07.10 at 5:45 pm

parse, I’m not sure, this is not an area I’m expert in, and I’m not a lawyer. But I would think that it is about things like leaving spouses alone to make their own private decisions about stuff like contraception, whether to have children, what kinds of sex they like, etc.

24

parse 08.07.10 at 6:36 pm

parse, I’m not sure, this is not an area I’m expert in, and I’m not a lawyer. But I would think that it is about things like leaving spouses alone to make their own private decisions about stuff like contraception, whether to have children, what kinds of sex they like, etc.

That’s interesting, JanieM, because it would suggest that the government could legitimately make a law restricting the use of contraceptives to married couples. Or to forbid unmarried couples from having children which, if the restriction of contraceptives was in force might logically mean that the state could enforce celibacy until marriage. Scary. It might be better to have the government out of the marriage business.

25

JanieM 08.07.10 at 6:51 pm

That’s interesting, JanieM, because it would suggest that the government could legitimately make a law restricting the use of contraceptives to married couples.

Not really. Just as a matter of logic, to say that married couples have a right to privacy is not to say that other people don’t also have a right to privacy.

As a matter of actual practice, it depends which government you’re talking about. If you’re talking about any random government, that’s a theoretical discussion that’s beyond my competency (though of course not beyond the competency of the CT commentariat in general). If you’re talking about the US government, then no, actually not. See e.g. this, in particular the “Subsequent Jurisprudence” section.

26

piglet 08.07.10 at 7:44 pm

“That’s interesting, JanieM, because it would suggest that the government could legitimately make a law restricting the use of contraceptives to married couples.”

Restrictions like that used to exist not long ago. Scalia, in his dissenting opinion to Lawrence, made it clear that in his opinion, the state should be free to regulate people’s sexual behaviors in almost any arbitrary way it wished. Thankfully he was overturned and remember that was only in 2003.

27

Doctor Science 08.07.10 at 8:14 pm

IANAL nor a philosopher, and I’m not sure I’ve followed all the turns of anyone’s thoughts here, but I was under the impression that one of Judge Walker’s issues with the Prop8 side was that they did not in fact advance *any* coherent theory, much less evidence, as to how SSM undermines heterosexual marriage.

There is in fact such a theory, but Prop8 suppor ters do not acknowledge it outright, and they may even not be consciously aware that they are working from it. I’m not even sure that Walker is aware of the theory — at least he did not phrase it in blunt and unambiguous terms.

Traditional (pre-20th century) marriage was legally between one person with full access to all human legal rights — to vote, to own property, to sign contracts, etc. — and one person without a full set of all rights, a kind of legal half-human. To put it mathematically, 1 marriage = 1.5 Real People, “Man” (a human) plus “Wife” (a partial human, an accessory).

If two men (known to be Real People) can get married, then 1 marriage = 2 Real People. And since things that are equal to the same thing are equal to each other, that implies that conventional heterosexual marriages also involve 2 Real People, and that women are actually, really truly we mean it, equal to men.

*That*, IMHO, is how SSM undermines traditional marriage: because it undermines patriarchy, because it implies that women are equal to men. For real. The danger SSM poses to people in traditional marriages is that it makes marriage as an institution less comfortingly hierarchical, and male supremacy less obvious and natural.

28

Plinthy The Middling 08.07.10 at 8:15 pm

This all gets too convoluted for my poor little ape brain. The analysis must be simpler.

We, as a nation, have expressed, or inherited as expressed for us, a number of overriding moral choices. Among those are equal treatment under law, and no deviation from equal treatment under law without due process. Neither we nor our elected representatives can frame laws that aim solely at violating those moral choices.

Lawmakers are allowed to frame, for a potentially enumerable list of non-morality-based reasons, laws, even those based on flawed conceptions and rickety platforms of faulty assumptions, that aim to achieve some goal or ameliorate some condition that is neutral as to morality — without regard to the fact that it may work, or even actually works, incidental inequality.

Due process allows those who might challenge a particular law to assert that it aims at inequality, not at some goal which, by striving to achieve it, actually or possibly creates inequality as an incident of its operation. Inevitably, the process of challenged requires determination of which type the particular law is — one that aims at making inequality, or one that makes inequality incidentally. As a necessary extension of due process, the principles judicial review requires articulation of the aim of the law under challenge.

Optimally, the aim of the law is detectable on its face, say by a combination of a recitation of the conditions sought to be ameliorated, and the laying out of provisions which are rationally connected to that aim. One can detect a clear aim elsewhere in the first, yet see through the second that the recital is a mere disguise. If there is no detectable acceptable aim, or if the aim is ambiguous, then where a body of the elected representatives has made a law that on its face aims at imposing unequal treatment, and that law is challenged for violating one or more of the existing overriding moral choices, its defenders can also choose to point to the record of what the proponents of the law said on its aims in the process of bringing the proposed law to a vote, or can point to rationally foreseeable effects of the law, or both.

Where that body has deferred the law-making function to a popular vote (whether by choice or operation of some other law does not matter), defenders of the challenged law — that is, a law that on its face aims at making inequality — can point to their own aims in promoting the law, or to rationally foreseeable effects, or both.

As to the first, the defendants in the Prop 8 trial sought cover behind the ballot process. Right from the pre-hearing deposition stage, they asserted themselves as purely nominal defendants, their individual motivations being irrelevant, and any efforts to determine the motivations of individual voters as illusory. This was a strategem within their larger strategy: deny that the law necessarily aims to make inequality merely because it does so on its face; deny their own aims are relevant to discerning the aims of millions of voters at ballot boxes; and maintain that we must allow for the possibility that the law aimed at something other than making inequality because some, maybe one, maybe only a theoretical one, of the voter lawmakers may conceivably have aimed his or her vote at achieving something other than inequality. This despite the inability, or refusal, or both, on the part the defendants, to come up with what that achievement was or even might be, and that all articulations of such by their lawyers were not merely theoretical but were shown to rely on superstition and mythology.

As to the second, the defendants did nothing (See superstition and mythology, ibid).

The proposition appears to be this: Since there is latitude for a duly elected body of representative lawmakers to maintain laws that make inequality even on inane reasoning, so long as they clearly aim at some goal other than making inequality, then voters should be able to maintain such laws on the existence of an infinite number of reasons, some of which theoretically might aim at some goal other than making inequality, even though they are not actually articulable.

29

Mark Field 08.07.10 at 9:04 pm

Similarly with sociology—while Judge Walker could comfortably say that there isn’t any reason the experts he found credible can see that gay marriage would do anyone a lick of harm, it doesn’t seem like the sort of thing that’s amenable to legal factfinding. While I’m hoping the 9th Circuit and the Supreme Court follow his decision, if either reverses it and ignores his findings of fact, I don’t think they’d be doing anything particularly wrong by not deferring.

I agree with this, but I think the findings serve a purpose nevertheless. What the Court generally does is (to use the technical legal term) make shit up. That is, the justices will say something like “the legislature could rationally believe that gay marriage will harm other marriages”. Note that it does this (a) with no supporting evidence in the record; and (b) despite there being a clear rule against factual determinations by appellate courts (except for judicial notice, which this is not).

What Walker’s opinion does, IMO, is constrain the ability of the Supremes to make shit up. If some justice wants to say that gay marriage will harm other marriages, he (and it will be a he) will have to explain why he’s saying this despite the express factual finding to the contrary. That’s a little hard to do while maintaining a straight face. OTOH, if a justice rejects the finding as not “factual”, it’s then hard to make similar assertions while pretending that they are “factual”.

So no, Walker’s findings won’t bind the Court, but they may limit its maneuvering room.

30

LizardBreath 08.07.10 at 9:10 pm

That’s true, and pins down something I agree with but hadn’t managed to articulate — that the expansive findings of fact do serve a legitimate purpose, rather than just asserting a claim to deference that they’re not entitled to.

31

Bruce Baugh 08.07.10 at 9:41 pm

I agree with those saying that things like “same-sex marriage will/won’t do X” are not what I think of as findings of fact. But there’s a ton of data in Judge Walker’s decision about what same-sex marriage has done, and about what those in same-sex marriages are doing, and those strike me as really solid suitable findings of fact.

32

Patrick 08.07.10 at 10:10 pm

Regarding Brett Bellmore’s point about motives and how the constitution should or should not work:

That’s a hotly contested issue in the legal community. My personal take on it is that if the legislature says that its motives are discriminatory, or gives reasons that are plainly discriminatory, its disrespectful to the legislature’s role as a fact finder to say that the bill resulting from said discriminatory motives is anything but discriminatory. I can’t see why this wouldn’t apply to the ballot initiative process as well.

Regarding Kerr’s point about percentages of certainty: No one uses those, ever. Nor is there a firm answer on how certain your certainty has to be in order for it to count as a valid factual finding. Nor do confidence levels apply only to predictions about the future. So while the higher level courts could maneuver their way around the fact findings, that doesn’t speak to a weakness of the opinion but to a fundamental feature of our legal system.

Finally, I wouldn’t underestimate the ability of the court to just plain lie in order to reach the legal conclusion that they want. Look at your typical case about religious idolatry in government facilities- the typical dodge to get around having to throw out the idol is to conclude that a piece of religious paraphernalia placed for religious reasons and defended by religious people on religious grounds is not, in fact, religious. This typically involves making some big, bold, lies. But that doesn’t stop anyone who’s really out to reach a particular conclusion.

33

sanbikinoraion 08.07.10 at 10:13 pm

b. Developing a realm of liberty, intimacy and free decision-making by spouses, Tr 189:7-15 (Cott: “[T]he realm created by marriage, that private realm has been repeatedly reiterated as a —— as a realm of liberty for intimacy and free decision making by the parties[.]”);

IANAL but I have read a few Richard North Patterson novels; isn’t it the case that speech between spouses is considered private in US law such that if called as a witness spouse A can refuse to answer questions that rely on spouse B having incriminated themselves to spouse A? Something [very vaguely!] like that.

34

nick 08.07.10 at 10:35 pm

Dr. Science, was there some reason your summary did not take into account the simpler version of the argument, the fact that a gay marriage might plausibly involve TWO WOMEN?

35

John Holbo 08.08.10 at 12:48 am

“So no, Walker’s findings won’t bind the Court, but they may limit its maneuvering room.”

I agree with that. Of course, in a sense it’s trivial. You could say the same about any decision that’s up for review. But it does seem that that Walker did an unusually thorough job of covering factual bases in ways that will be hard, convincingly, to dismiss as nonfactual or legally irrelevant.

36

John Holbo 08.08.10 at 1:06 am

As to the hotly contested status of ‘motives’, as interpretive fair game: it’s worth noting that there is at least one strand of interpretive originalism that says, not only that they are fair game, but that really nothing else is. The way to interpret the constitution is to figure out what the framer’s intended purposes were (other strands of originalism: figure out what the meanings of these words were originally; figure out what the framers meant by these words originally). What were they aiming to do? All kidding aside, this rather extreme view has to be melded with some others to become remotely plausible as a general theory of interpretation. But it certainly isn’t crazy to make it a part of some larger view.

37

nnyhav 08.08.10 at 2:36 am

puts a new twist on

If the law supposes that … the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.

38

Brett Bellmore 08.08.10 at 2:05 pm

“That’s a hotly contested issue in the legal community. My personal take on it is that if the legislature says that its motives are discriminatory, or gives reasons that are plainly discriminatory, its disrespectful to the legislature’s role as a fact finder to say that the bill resulting from said discriminatory motives is anything but discriminatory. I can’t see why this wouldn’t apply to the ballot initiative process as well.”

But, that a law results from discriminatory motives doesn’t mean that it’s unconstitutional. Not all forms of discrimination are unconstitutional. I’d say the problem here is that the courts have decided that a particular category is “suspect”, on their own, without any actual societal consensus that it should be suspect, or, (Given this proposal passed.) contrary to a societal consensus. They’re not responding to social evolution, they’re attempting to force it.

39

Patrick 08.08.10 at 5:21 pm

Your response doesn’t make any sense. No one believes that discrimination analysis to a categorization of people should only be applied if there’s a social consensus that it should be applied… except possibly you? Just reason that one through for a moment and you’ll see why that doesn’t work, its basically self evident.

If you’re not talking about that, then I don’t know what you’re talking about.

As for my own point, I was making a simple argument:

It is a basic principle of conservative legal reasoning that courts should be highly deferential to a legislature’s determinations of the purposes and effects of their legislation. It is but a simple step from that proposition to the conclusion that a stated illegitimate discriminatory purpose and stated desire for illegitimate discriminatory effect can be deferred to, resulting in a conclusion that the law in question is in fact illegitimately discriminatory.

40

CJColucci 08.08.10 at 9:22 pm

Although I favor same-sex marriage, because gays should have the right to be as miserable as straights, and it creates more work for divorce lawyers, I think there is a better argument than California put up. Granting, as just about any reasonable person must, that the “same-sex marriage will harm opposite-sex marriage” argument is nonsense, one staple of rational-basis review is that the state doesn’t have to solve all related problems at once. Opposite-sex marriage creates an off-the-shelf legal status that allows society to address a number of problems like channeling the sexual urge, creating a structure of responsibility for raising offspring, regularizing the transmission of property, setting up default options for substituted medical decision-making and the like. These are all legitimate state interests, and opposite-sex marriage is a rational method of dealing with them. Perhaps as a matter of policy, it would be wise to allow same-sex marriage so similar problems could be dealt with in a similar way, but the legislature could reasonably have thought the problems more pressing in the context of opposite-sex relationships (which are more numerous and more likely to involve procreation) and rationally left the job half-done. Leaving the job half-done may not be the smartest thing, but it isn’t stupid enough to be irrational.
So, at least, the better argument would go. And because this better argument is available, Judge Walker’s fact-finding won’t carry the day. The factual record may be enough to prevent the Supremes from saying all sorts of stupid shit, and that will be a useful service in itself, but there will be a way for the Supremes to do what they want.

41

Francis 08.09.10 at 12:40 am

#33 — what you’re looking for is “spousal privilege”, the scope of which varies from state to state. The general idea is that the usual rule of “tell the truth” is waived for spouses. Under questioning, a spouse can simply refuse to say what the other spouse did or said.

#40 — a) the State of California refused to defend. The proponents of the proposition needed to intervene to defend their prop. b) We’ve tried separate-but-equal, as the opinion notes. It doesn’t work — things are never actually equal. For example, “civil unions” do not qualify for the same benefits under federal law as “marriages” do. For another, this kind of “half-done” job is precisely what the equal protection clause was designed to protect against. Otherwise, miscegenation statutes would be perfectly constitutional.

42

John Holbo 08.09.10 at 12:52 am

“But, that a law results from discriminatory motives doesn’t mean that it’s unconstitutional. “

That’s not the point. The point is: that the law is nominally not an equal protection violation does not absolutely ensure that it is actually no violation.

Suppose a state decided to re-legislate Jim Crow in various ways – lunch counters, drinking fountains, schools – but it does so on the grounds that blacks are ‘dirty’, hence there are real health concerns, i.e. a legitimate state interest in separate but equal ‘quarantine’ measures. The state assures the court that this is not just an attempt to treat blacks unequally. They call various medical witnesses, testifying to the inherently ‘dirty’ quality of black skin, in a medical sense. This is all deemed to be medical nonsense by the judge, but the state is allowed to do nonsensical stuff if it wants! Either this transparent dodge gets a pass, in which case the 14th Amendment takes a real hit, or it doesn’t. If it doesn’t, the reasoning is unavoidably going to touch on motive and intent. So the question for you is: if you are willing to rule out consideration of motive, per se, are you willing to accept that the 14th amendment is, in certain respects at least, a dead letter?

43

CJColucci 08.09.10 at 12:55 am

Francis, I am not defending the “half-done” argument, but the miscegenation analogy doesn’t work all that well. First, racial classifications get “strict scrutiny” rather than “rational basis” treatment. Second, given the interests that opposite-sex marriage can plausibly be claimed to advance, the rationality of leaving same-sex marriage out of the system is easier to defend than leaving out inter-racial opposite-sex marriage. Inter-racial opposite-sex marriages raise exactly the same issues concerning procreation and chikld care as intra-racial opposite-sex marriages; same-sex marriages, generally, don’t. I’m not suggesting that this is all that convincing, but rational basis scrutiny allows for a good deal of stupidity.

44

PHB 08.09.10 at 4:32 am

The ruling was that the correct standard was strict scrutiny. As courts usually do, he also considered the case under the weakest possible standard that might apply and in this case concluded that the case falls even on that basis.

I don’t think it very likely that the SCOTUS will divide on Dem/Republican lines because Kennedy has already voted against the bigots to overturn Bower in Lawrence v Hardwick. And the fact is that it is pretty obvious that the social trends are swinging heavily against the bigots here.

Scalia and Thomas don’t mind voting for bigotry, they know that their legacy will be as the party hacks who voted to suborn democracy in Bush v. Gore whatever they do. But Roberts and Alito may not want to put themselves in the same basket. And Kennedy is looking towards his place in history and scarcely wants one of his last cases to be a Bowers.

As for the normal deference to the legislative branch. This case is being brought over a plebiscite that over-rules the legislative branch. The whole point of the proposition was to circumvent the democratic process by getting bigotry entrenched in the state constitution in a manner that would be difficult to overturn. The state is refusing to defend the case and so I can’t really see why the usual deference would be paid in any case.

So all in all, I don’t think its a bad gamble to take this case to the SCOTUS. If it fails it is unlikely to be more than a temporary set back. Kennedy and Scalia are both getting on.

45

Sebastian 08.09.10 at 8:13 am

“As for the normal deference to the legislative branch. This case is being brought over a plebiscite that over-rules the legislative branch. The whole point of the proposition was to circumvent the democratic process by getting bigotry entrenched in the state constitution in a manner that would be difficult to overturn. The state is refusing to defend the case and so I can’t really see why the usual deference would be paid in any case.”

Whatever else you think of the merits of gay marriage (I like it as a policy), this is a very backward way of looking at it. This has at least as much democratic legitimacy as your run of the mill legislative branch law. You are really stretching the definition of “democratic process” beyond the breaking point to suggest that a vote of the electorate is a tricky way of circumventing the democratic process. And you aren’t stating the history correctly either. The California Supreme Court allowed gay marriage. In order to overturn the ruling, the California Constitution had to be amended. Thanks to previous progressive action in California, the California Constitution could be amended by ballot proposition (hooray progressives, I guess). The electorate did so. Amending the Constitution is pretty much the only way to overturn Supreme Court rulings on Constitutional issues. So not only isn’t anything illegitimate about it, it is pretty much mandated if the populace disagrees with the court. This isn’t some end run around the Constitution, this *is the California Constitutional process*.

46

Tim Wilkinson 08.09.10 at 12:36 pm

Either this transparent dodge gets a pass, in which case the 14th Amendment takes a real hit, or it doesn’t. If it doesn’t, the reasoning is unavoidably going to touch on motive and intent.

That doesn’t sound right. If the dodge doesn’t get a pass, it’s because it’s an inadequate dodge (or rather whatever argument is presented in court is inadequate), not because it’s a dodge. Motive and intent aren’t relevant to the issues of justifying the effect of the legislation.

47

chris 08.09.10 at 2:11 pm

This is all deemed to be medical nonsense by the judge, but the state is allowed to do nonsensical stuff if it wants!

No, it isn’t. A rational basis has to be *rational*. It doesn’t have to be conclusively proved, but it can’t be complete nonsense.

Suppose some state passes a law requiring people over 6 feet tall to wear clown shoes at all times, in order to prevent the sun from falling out of the sky and destroying all life on Earth. That’s certainly a compelling interest, *but the means adopted are not rationally related to it* and therefore it would fail even though height isn’t a suspect class and shoe choice isn’t a fundamental right (AFAIK).

P.S. Marriage *is* a fundamental right and it’s unsettled whether or not sexual orientation is a suspect classification — the California Supreme Court in _Marriage Cases_ looked at the characteristics of suspect classifications such as history of enmity and political marginalization and decided that it ought to be, but that decision, while well reasoned, is not binding on any federal court.

48

PHB 08.09.10 at 4:18 pm

@Sebastian 45

Prop 8 does not simply restore the ability of the legislature to pass law. It over-rides their law making powers for all circumstances and for all time (unless repealed). As such it is a far weaker representation of democracy as it is a one-time decision. It is no more democratic than electing a king for life, less so in fact as kings die.

The legislative process gets deference, not the legislature itself. The courts are generally reluctant to over-rule a deliberative process that has taken several years. Here they are examining an outcome that has been achieved through blatant falsehoods on the part of the Prop-8 proponents, falsehoods that they were unable to support in court. Of course an outcome that is achieved through fraud does not get the same weight as one that is the result of a deliberative process.

49

PHB 08.09.10 at 4:38 pm

@Patrick 39

It is a basic principle of conservative legal reasoning that courts should be highly deferential to a legislature’s determinations of the purposes and effects of their legislation. It is but a simple step from that proposition to the conclusion that a stated illegitimate discriminatory purpose and stated desire for illegitimate discriminatory effect can be deferred to, resulting in a conclusion that the law in question is in fact illegitimately discriminatory.

Actually this is not the case at all. There are no principles in Conservative jurisprudence. They make it up as they go along and then squawk ‘activism!’ when they don’t get their way.

Thomas is actually the judge most like to vote to override a legislative decision. Its just that he votes to overturn liberal legislation so this is not considered ‘activist’. Scalia and Thomas are also the judges most willing to overturn precedent.

One of the more puke-inducing aspects of the Kagan nomination hearings was the parade of Senators demanding that the principle of stare decis be applied to recent decisions such as Citizens United that had just overturned what had been settled law for 80+ years.

These people do not have principles. They are corrupt party hacks. Fortunately, there are now only two of them left. It is far from clear that Roberts and Alito are going to join them on movement conservative ‘social’ issues.

In this particular case there is no legislative determination of the purpose of the legislation. But the idea of deference was invented in the days when Renquist and fellow racists were looking for a pretext to uphold the attempts of the Southern states to work around the civil rights legislation. As is often the case in US politics, racism was the underlying motivation. And yes, Uncle Clarence Thomas got where he is by agreeing to play the same game. Just like Michael Steele, he has made a career from selling out.

I don’t see why Alito and Roberts would want to fall in line with a principle that is a mere pretext for a racist system that is now long since dead. Sure they may have toyed with the ideas in their college days, but they haven’t built their career since on internalizing the notions of movement conservatism.

50

Sebastian 08.09.10 at 6:13 pm

“Prop 8 does not simply restore the ability of the legislature to pass law. It over-rides their law making powers for all circumstances and for all time (unless repealed). As such it is a far weaker representation of democracy as it is a one-time decision. It is no more democratic than electing a king for life, less so in fact as kings die.”

So are you arguing against Constitutions in general here because they bind legislatures over time?

Or are you unaware of the fact that Prop 8 was a change to the California Constitution?

Or are you arguing that if Prop 8 had merely restored it to the legislature and the legislature chose not to institute gay marriage that you would be ok with it?

51

Sebastian 08.09.10 at 6:16 pm

“But the idea of deference was invented in the days when Renquist and fellow racists were looking for a pretext to uphold the attempts of the Southern states to work around the civil rights legislation. As is often the case in US politics, racism was the underlying motivation.”

You’re sounding unhinged. Legislative deference existed long before Renquist, or Marshall, or Brennan, or Learned Hand (which is still a great name for a judge).

52

Doctor Science 08.09.10 at 8:19 pm

nick @34 asked:

Dr. Science, was there some reason your summary did not take into account the simpler version of the argument, the fact that a gay marriage might plausibly involve TWO WOMEN?

I have at various times used both m/m and f/f marriages as my example, but I don’t think either is necessarily “simpler”.

What I have observed is that the fuss over SSM seems to be focussed on m/m marriages — they seem to arouse more ire than f/f marriages. f/f marriages seem to be felt as less threatening: “oh look, they think they’re people!” Just as women in trousers are less upsetting than men in dresses: for the lower orders to aspire to be higher doesn’t subvert the whole idea of a hierarchy.

But when *men*, real people with real Very Important Penises, do something, then it counts.

53

PHB 08.09.10 at 11:18 pm

@Sebastian.

Or are you arguing that if Prop 8 had merely restored it to the legislature and the legislature chose not to institute gay marriage that you would be ok with it?

If that had happened there would be a legislative deliberation to defer to. No legislation, no legislation to defer to.

Deference does not mean what you think it does in any case. The Warren court overturned plenty of legislation. Had it not there would still be separate drinking fountains down in what are now the Red states.

The difference between the legislation that Conservatives want to overturn and the legislation that they want deference for is bigotry. If there is a bigoted faction whose votes can be pandered to they will demand the courts rule whichever way that requires. When states have actually passed legislation permitting gay marriage, the same bigots who are whining about respecting the democratic process now were off to court to get the legislation annulled.

There are no conservative principles left, only hatred and bigotry.

54

John Holbo 08.10.10 at 1:15 am

“If the dodge doesn’t get a pass, it’s because it’s an inadequate dodge (or rather whatever argument is presented in court is inadequate), not because it’s a dodge. Motive and intent aren’t relevant to the issues of justifying the effect of the legislation.”

Motive and intent have to be a bit relevant, if you want to be able to stop a transparent dodge, because ‘dodge’ IS a motive-and-intent concept. I agree that it’s obviously problematic to get the judiciary in the business of assessing motive, let alone second-guessing motive. But what we want the judiciary to be able to say is: this law is just an attempt to get around the letter of the 14th Amendment, while violating its spirit. That’s an assessment of motive. Brett Bellmore’s suggestion that the motives for political actions ought to be separated from Constitutional considerations of permissibility seems sound. The court ought to worry about the latter. It is a good rule of thumb. But when the motive for political action is, precisely, to get around Constitutional constraints, then the division has broken down and there is no way for the court to maintain the distinction.

55

Bruce Baugh 08.10.10 at 1:25 am

PHB beat me to the crucial point: there was precisely zero groundswell of conservatives saying, anywhere legislation recognizing marriage equality passed, “I think this sucks, but it’s clearly the will of the people.” Legislative action gets challenged; executive action gets challenged; judicial action gets challenged. There is no path to marriage equality that conservatives have shown themselves, as a group, willing to respect, and no reason to grant credence to all the cries about “if only X” when it’s Y this time, and “if only Y” when it’s X, and so on.

56

PHB 08.10.10 at 2:21 am

@Bruce Baugh 55

The right certainly has no qualms when it comes to overturning democratically legislated control of guns.

And it is not as if they even care in the slightest about the outcome. These hate planks they adopt are purely a means of getting rubes to cough up money and turn out to the polls.

Take their latest pet hate, Latino-bashing. Or ‘illegals’ as they call them. The obvious way to enforce immigration controls is to come down like a ton of bricks on the employers who are hiring illegal immigrants. Which is precisely what the Obama administration has done, enforcement actions against employers are sharply up after they were ignored under Bush.

One might think this makes the GOP happy. But it doesn’t of course because thats the exact opposite of the enforcement they want which is to harass the workers so that the Republicans illegally employing them are assured of the maximally compliant workforce.

So lets recap on this little GOP shell game. Employers hire immigrants workers in place of US workers. GOP administration gives a pass on prosecuting the employers but does its best to harass the workers, thus ensuring that the employers have maximal leverage and can drive wages as low as possible, thus maximizing the attractiveness of hiring illegal immigrants. GOP then tells displaced workers that the illegal immigrants are to blame for their circumstances (omitting their own enabling role). GOP whips workers they have helped displace up into a lather and get them to donate cash.

As with the taxes scam, there is no way that anyone could run a scam like this without having utter and total contempt for the rubes they get to support them.

57

Tim Wilkinson 08.10.10 at 1:37 pm

Motive and intent have to be a bit relevant, if you want to be able to stop a transparent dodge

But you don’t want-to-stop-a-dodge. You want-to-stop-discrimination – and that’s a matter of the legal effect of the legislation. You (the courts) don’t, for example, want to stop a failed attempt at a dodge – one which accidentally produces a non-discriminatory law.

If a law is successfully argued not to be unjustifiably discriminatory in its legal effect, then what room is there to consider it a dodge? There just isn’t any space for intentions or motives not embodied in the legislation to be taken into account.

Even in civilian systems, when travaux préparatoires and the content treated as legal materials, rather than evidence of the intentions or motives of human beings.

The more general point is that trying to stop dodges and technicalities always leads away from the rule of law – since the very idea of such ‘cheating’ implies that the law itself is incapable of ‘getting the right result’. It’s possible to identify loopholes in an informal way, but you can’t legally stop them from being exploited without closing them – by changing the law.

58

Tim Wilkinson 08.10.10 at 1:45 pm

shorter:

either
1 any law that transparently circumvents constitutional provisions is unconstitutional, so the courts can and should reject the supposed justification as inadequate.

or

2. a law can transparently circumvent const provs without being unconstitutional. In such a case, there’s nothing the courts can do about it (or rather, the courts aren’t in a position to strike it down as unconstitutional).

There is no third possibility.

59

Tim Wilkinson 08.10.10 at 1:47 pm

“Even in civilian systems, when travaux préparatoires and the content treated as legal materials, rather than evidence of the intentions or motives of human beings.”

s/b

Even in civilian systems, when travaux préparatoires and the content of legislative debates are taken into account in applying laws, they are treated as legal materials, rather than evidence of the intentions or motives of human beings.

60

John Holbo 08.10.10 at 1:57 pm

“If a law is successfully argued not to be unjustifiably discriminatory in its legal effect, then what room is there to consider it a dodge?”

Well, that’s sort of the question, isn’t it: when should a law be considered to have been successfully argued not to be unjustifiably discriminatory?

What do you make of the hypothetical I offered above: ‘we aren’t discriminating against blacks, it’s just we believe they all have dirty skin and we’ve passed this public hygiene law relating to drinking fountains and restaurant seats and etc., and even if all our medical experts are found to be quacks, the court should still defer to reasonable speculation that all blacks might have unhygienic skin – but again, it’s not that we want to discriminate against them!’ It seems that you would have to say the ‘it’s really just about hygiene’ dodge is ok, because the only way to treat it otherwise is to touch on motive. But that seems absurd. Do you accept that you have to bite this bullet, Tim? If not, why not?

61

Tim O'Keefe 08.10.10 at 2:18 pm

even if all our medical experts are found to be quacks, the court should still defer to reasonable speculation that all blacks might have unhygienic skin

Uh, why should any court defer to such ‘reasonable speculation,’ especially if the other side actually has solid expert testimony that establishes (quite solidly, for legal purposes) that there is no such connection? Such a proposed law could be found not to be ‘rationally related’ to its purported public-health ends, apart from a determination of the motives of the law’s proponents. So the court can reject the ‘dodge’ without needing to touch on motive. Tim need not bite any bullets.

62

Tim Wilkinson 08.10.10 at 2:37 pm

Yes, what the other Tim said.

63

chris 08.10.10 at 3:02 pm

I agree with the Tims: rational basis is not a completely toothless standard and that’s why findings of fact matter. If the legislature supposedly believed that blacks had unhygienic skin *but in fact they don’t*, then the legislature’s basis is not rational and the law is unconstitutional, with no need to get into whether the legislature *really* believed that or it was just a pretext.

If the legislature believed that blacks have unhygienic skin and there is a genuine scientific controversy about whether or not that is actually true, then the court has to defer to the legislature’s decision as to which side of that debate to base the law on, I think. (Although in the specific case of race, it’s well established as a suspect classification, so the analysis wouldn’t end there.)

Distinguishing between these two cases can be difficult, but it’s the judge’s responsibility to do so anyway. Facts matter. And I think that is why the factual findings in _Perry_ matter — facts found by a trial court cannot lightly be set aside by appellate courts, since that would violate literally centuries of legal tradition.

64

Tim O'Keefe 08.10.10 at 3:36 pm

And to return to the actual case at hand from the hypothetical ‘unhygenic skin’ example:

When proponents of Prop 8 assert that their interest is in defending children and existing marriages from the harm that they’d endure if we permit same-sex couples to be married, is this merely a ‘dodge,’ in the sense Holbo is using the term? Is the purported justification merely a smokescreen to hide the real anti-gay animus motivating the proponents, or are they sincerely concerned about how children and opposite-sex marriages will be harmed by SSM?

Hell if I know–but I’d say that there is no determinate answers, as proponents have diverse motives, with some sincerely concerned about The Children and others merely pushing the proposal because of their hatred of gays. And the two options aren’t mutually exclusive–a proponent could be animated by anti-gay animus and also sincerely believe that SSM would have bad effects. (Often anti-gay animus and various anti-gay stereotypes contribute to the sincere beliefs about how SSM will wreak havoc in our society.)

But for Prop 8 to have a rational basis, it’s not sufficient for (many) Prop 8 proponents to believe sincerely that banning SSM will help prevent harm to children and existing marriages. I’m willing to grant that, and still say that there isn’t a ‘rational relation’ (as established by the court testimony) between banning SSM and protecting children and existing marriages from harm.

65

bianca steele 08.10.10 at 4:11 pm

John H @ 54

IANAL but I don’t think “gets around the letter of the law” has anything to do with intention–unless you are thinking of a law that intends to violate the Constitution but actually does not. Say, a law that gave a certain class of persons the ability to file lawsuits without a requirement for a finding of standing, but the class is undefined and legislators’ intent shows what they had in mind was little green men from Alpha Centauri. Would a law like that be unconstitutional? It seems like it would be nuts but totally ineffectual.

It isn’t unimaginable that ineffectual bits of law that survived challenge would continue to exist kind of like junk DNA.

66

piglet 08.10.10 at 5:16 pm

Tim 64: I think you hit the nail on the head. The Nazis genuinely believed that Jews were threatening the German-Aryan nation. It’s pretty well established that they, most of them, really believed their anti-jewish propaganda – it wasn’t just an excuse they made up to engage in discrimination. Whether or not somebody *believes* that their discriminatory bias has a rational basis is really beside the point – bigots do usually believe in what they are doing.

67

Jim Johnson 08.11.10 at 1:04 am

John, this is a terrific thoughtful post. Thanks.

A couple of reactions:

(1) “The motive for passing a law is a political matter, not a constitutional matter.

So says Brett Bellmore (way back) – as though the line between law and politics is clear and bright. Can you hear the chorus howling? (They are also howling, by the way, at John’s parting remark on whether Marbury was rightly decided – the whole structure of judicial review, like our other political-economic is an artifact of bargaining among asymmetrically situated political actors.)

It is hard to see how virtually any ‘equality before the law’ ruling can be made absent some consideration of motives. (Hence I agree with Jacob Levy – not quite so far back) I suppose there are the sort of cases where someone just forgot to consider this or that group. But that would have to be established not assumed. and, of course, entire structures of law (John already has referred to the Jim Crow South) were set up – quite intentionally – to discriminate against blacks. I am sure you could think of other instances.

I actually tend to think of things like this in consequentialist terms. But among the consequences of allowing bigotry (otherwise known as bad motives) to be written into law – whether via referendum or legislative action – is precisely that we might allow prejudice to rule our official (hence coercive) practices.

(2) @ PHB – My understanding of the social science research is that the right wing activists on the Supreme Court are much more likely to overturn Congressional legislation and less likely to overturn State actions.

(3) piglet … is pretty much right on the mark about bigots and what they believe. the problem is that more often than not they are wholly sincere in hating who they hate.

68

John Holbo 08.11.10 at 1:11 am

“Such a proposed law could be found not to be ‘rationally related’ to its purported public-health ends, apart from a determination of the motives of the law’s proponents. So the court can reject the ‘dodge’ without needing to touch on motive.”

Ah, this is a fair answer. But it requires courts to be more mentally meddlesome, in the lives of legislators, rather than less. The principle you are proposing basically comes to: if something is really stupid, and has an unequal impact on groups that merit heightened scrutiny, then it’s unconstitutional. But getting the courts in the business of deciding what is really stupid in this way seems to me worse than getting them involved in the occasional judgment of motive. You turn the courts into overseers of legislative technical competence.

69

Tim Wilkinson 08.11.10 at 12:37 pm

Ah, this is a fair answer
Then we’re all agreed?

Ah, no: The principle you are proposing basically comes to: if something is really stupid, and has an unequal impact on groups that merit heightened scrutiny, then it’s unconstitutional.

Nearly – it’s if a law’s has discriminatory effect, it is unconstitutional unless that effect is (shown to be) justified by some legitimate interest.

Say a law mandating minimum upper body strength for firefighters were challenged on the grounds that it has the effect of tending to discriminate against women. The challenge might be headed off by pointing out that this is unavoidable given that upper body strength is a legitimate requirement. Or the courts might decide that the upper body strength is not in fact a legitimate concern such that the discriminatory effect is justifiable. It’s not a question of the motive, it’s the reasons canvassed in court and whether they are good enough.

The courts are arbiters of fact and reason in many other circumstances, too, and required to assess laws against the standards of the constitution. If their conclusions happens to imply that the legislators are a bunch of nutters, incompetent or what-have-you, so be it. That is a side-effect, and not something they should either be aiming to achieve or avoid.

70

Tim O'Keefe 08.11.10 at 12:49 pm

Hi John.

I don’t see offhand how this requires courts to be “more mentally meddlesome.” 3 points:

(1) The determination is whether the statute in question is rationally related to a legitimate state interest. The court need not look into whether the proponents of the statute are stupid. That’s irrelevant.

(2) Re: “turn[ing] the courts into overseers of legislative technical competence,” I don’t see how empirical questions of the actual impact of legislation can be avoided, in any case, whether or not courts also look into motives. If you think they can be avoided, I’d like to hear how so.

(3) I’m not proposing that courts should be able to overturn all misguided laws. See Chris @63–‘rational basis’ can be a deferential and low standard without being totally toothless.

71

Sock Puppet of the Great Satan 08.11.10 at 2:38 pm

“What Walker’s opinion does, IMO, is constrain the ability of the Supremes to make shit up. “

I think you’re underestimating the shit-making-up powers of Scalia and Thomas. And the go-along-with-this-shit abilities of Alito, Roberts and Kennedy.

72

Randy E King 08.22.10 at 6:02 am

The Eighth circuit court of appeals ruled in 2006 that there is no constitutional right to same sex marriage; that procreation is a rational basis. Yet your activist pervert judge ruled all of history and precedence irrelevant – in addition to the laws of nature.

Same sex enthusiasts need to pervert the world around them in order to make their depravity appear acceptable.

One question:

Why do same sex activists crave children when the very nature of their perversion does not provide for them?

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