Same-Sex Marriage: The Fight to Shape “the Next Shoe”

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Same-Sex Marriage: The Fight to Shape “the Next Shoe”

Published in the Maryland Daily Record September 15, 2014

When the Supreme Court decided United States v. Windsor last year and invalidated DOMA, the federal Defense of Marriage Act (which denied same-sex marriages federal recognition), it was clearly taking an interim step. There were three important constitutional doctrines involved: federalism, equal protection, and due process. Windsor muddied the water in all three pools. After Windsor, these doctrines needed to be clarified, and the urgent remaining question whether states could constitutionally forbid same-sex marriage remained to be resolved. Since Windsor, the fight has been on to frame the debate that will come to a head when “the next shoe,” the state law case, inevitably drops.

Muddy Water

Let’s consider the muddied water briefly. In Windsor, the lead plaintiff, a widow seeking federal benefits, contended that DOMA should be stricken because it denied equal protection. The majority opinion, written by Justice Kennedy and joined in by the four liberal members of the Court, after genuflecting in the direction of federalism (respect for the rights of the states that recognized same-sex marriages), stated it was deciding the case on due process grounds (protecting the liberty interest in marriage), but confusingly used language and cited case law redolent of an equal protection analysis rather than a due process one. The explanation: the federal government is not subject to the 14th Amendment (which contains an equal protection clause), but is subject to the 5th Amendment (which does not); decisionally, the Court has interpreted the 5th as having an equal protection guarantee implicit in its due process guarantee.[1] (It’s still confusingly-worded.) One or another of the dissents: a) hoped that federalism would aid rather than hinder states in defending their own “mini-DOMAs,” b) berated the Court for not doing a more robust equal protection analysis, and/or c) disputed the claim that there was a liberty interest in same-sex marriage.[2]

This mess left a wide-open field for the cases over state “mini-DOMAs.” In approximately 15 straight decisions, up until September 3 of this year, federal judges have stricken them. And since states are subject to an explicit equal protection requirement, most of the post-Windsor decisions have relied on at least equal protection grounds, though they have also often invoked due process too.[3] Until September 3, none had been dissuaded by federalism concerns.

Into this developing consensus stepped Judge Martin Feldman of the Eastern District of Louisiana, who on September 3 produced in Robicheaux v. Caldwell the first post-Windsor federal ruling affirming a state law not recognizing same-sex marriage.[4] Despite some comments calling it a serious stab at a constitutional vindication of a mini-DOMA, it isn’t serious. To the contrary, it’s judicial amateur hour.

As fate would have it, a model of judicial craftsmanship on the subject showed up the very next day, in Baskin v. Bogan, Judge Richard Posner’s magisterial affirmance for the Seventh Circuit of district court rulings striking Indiana’s and Wisconsin’s mini-DOMAs.

What’s Suspect, What’s Heightened

Let’s talk about where and how Feldman got the jurisprudence wrong and Posner got it right. Both keep their analysis on the equal protection side of the ledger, rather than due process, which is fine, because the equal protection problem seems more pressing than the due process one. Equal protection is, as Feldman calls it, “the most hefty problem.” And, as both judges acknowledge, the threshold issue in equal protection analysis is the standard of scrutiny. Both agree that heightened scrutiny is required under some circumstances, and that in others, legislative classifications will be upheld so long as they have some discernable rational basis. And that is where they go their separate ways.

Feldman says that thus far the Supreme Court has not labeled homosexuals a “suspect class,” and that hence laws against same-sex marriage are not subject to heightened scrutiny. The premise is only technically correct; Windsor treated homosexuals as a suspect class in all but name. Windsor called homosexuals “a politically unpopular group,” and dubbed DOMA a “discrimination of an unusual character” which called for “careful consideration.” As Justice Scalia noted (albeit with dismay), the analysis works the same when the subject changes from DOMA to state law. And “careful consideration” clearly does equate to heightened scrutiny. Judge Feldman tried to draw comfort from the fact that Windsor did not employ the magic phrases “intermediate scrutiny” or “heightened scrutiny.” I would liken that comfort to saying that it’s anybody’s game with two out at the bottom of the ninth inning when the score is 20-0.

By contrast, Judge Posner refused to be trapped by the “suspect class” verbiage, noting that the Supreme Court will employ heightened scrutiny in some cases where the class discriminated against is not suspect. But he went on to point out that minorities whose distinguishing characteristics are immutable when there is a “historical background” of discrimination against them exemplify the very definition of a suspect class, and that homosexuals clearly fit within that definition. And he took apart the level-of-scrutiny shibboleth, brilliantly analyzing it as a cost/benefit analysis. In the end, Posner said, the alleged benefit to society (the raising of children in intact homes headed by two biological parents) does not outweigh the harm to homosexuals or the children in their families, and in any case the laws are not even rational ways of attaining the supposedly desired benefit.[5] Posner noted that Indiana conceded that children of married parents, gay or straight, do better than children of unmarried parents. Why not let their parents marry, then?

For those who insist on scientific proof, it exists. After Perry v. Schwartzenegger, the case that overturned the California law,[6] it has been clear there is real science, and it is unanimous.[7] Feldman sniffily refused in a footnote, however, to come to grips with “the ‘science’ [Feldman’s oh-so-arch quotation marks] on this issue.”

The Only End

In short, the only end to which the laws rationally relate is demeaning and disadvantaging[8] gays and lesbians and their families. Neither logic nor science supports any other reading. The states with these laws disclaim that objective, of course, as did Judge Feldman. “Louisiana’s laws … are directly related to achieving marriage’s historically preeminent pupose of linking children to their biological parents,” he wrote, continuing to whistle past the graveyard.

Feldman likewise said: “The Court also hesitates with the notion that this state’s choice could only be inspired by hate and intolerance.” To which a Sherlock Holmes apothegm is a fit response: “When you have eliminated the impossible, whatever remains, however improbable, must be the truth.” The obvious-in-advance bad fit between means and stated end makes it impossible to believe a single legislator honestly thought he or she was furthering the stated end. And after eliminating that, only one explanation remains. That one explanation was well-conveyed in a recently-viral video of a boy coming out to his hateful family. The video reminds anyone who might forget of the huge reservoir of intolerance that still exists. That is the one and only dark place all these laws do or could really come from. And Feldman’s condescending putdown of the many federal judges who disagree with him as “empathetic” showed where he comes from. It’s not a good place.[9]

Feldman’s willful misreading of precedent notwithstanding, the Windsor majority has not gone away, and the other shoe will drop soon. When it does Posner is far more likely to influence the outcome than Feldman.[10]


[1]. In Windsor, the Court cited as precedents Bolling v. Sharpe, 347 U.S. 497, 498-99, 74 S. Ct. 693, 694, 98 L. Ed. 884 (1954) (a companion-case to Brown v. Board of Education, making the holding in Brown applicable to the D.C. public schools; D.C. not being a state, it was not subject to the Fourteenth Amendment but only to the Fifth, which did not contain an equal protection clause); and Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217-18, 115 S. Ct. 2097, 2107-08, 132 L. Ed. 2d 158 (1995). These cases make it clear that Fifth Amendment due process where applied to the federal government includes an equal protection guarantee.

[2]. Chief Justice Roberts’ dissent focused on federalism, clearly inviting the Court to say that the respect for state powers limned if not really relied upon by the majority, should in future spare state prohibitions of same-sex marriage from DOMA’s fate. (Hoping the same rationale would lead to an opposite result on different facts, as it were.) Justice Scalia’s dissent disingenuously spoke as if the majority’s failure to address equal protection robustly were an unwillingness to engage with the demands of showing an equal protection violation rather than a bow to the structure of the 5th Amendment, and he laid down an impassioned argument that equal protection is not offended by laws that allow straight people to marry each other but forbids gay ones to do the same. Justice Alito, joined by Justice Thomas, addressed due process briefly (there is no fundamental right to same-sex marriage, said Alito), and the equal protection issue at length (if not very profoundly), and echoed the Chief Justice’s hopes that the next case would be decided on federalism grounds.

[3]. See, e.g., Bostic v. Schaefer, 14-1167, 2014 WL 3702493 (4th Cir. July 28, 2014) (both); Bishop v. Smith, 14-5003, 2014 WL 3537847 (10th Cir. July 18, 2014) (both); Love v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky. 2014) (equal protection only).

[4]. More accurately, the first published one. As Robicheaux notes, there was an unpublished magistrate judge’s ruling in the Middle District of Louisiana adopted by a district judge, Merritt v. Attorney Gen., CIV.A. 13-00215-BAJ, 2013 WL 6044329 (M.D. La. Nov. 14, 2013) which blandly upheld the challenged law against a pro se constitutional challenge but took no account of Windsor (issued five months earlier) or anything else of significance.

[5]. A portion of Posner’s analysis will give you the flavor:

At oral argument the state’s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents – model citizens really – so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.

 Or this:

 Indiana permits joint adoption by homosexuals (Wisconsin does not). But an unmarried homosexual couple is less stable than a married one, or so at least the state’s insistence that marriage is better for children implies. If marriage is better for children who are being brought up by their biological parents, it must be better for children who are being brought up by their adoptive parents. The state should want homosexual couples who adopt children – as, to repeat, they are permitted to do – to be married, if it is serious in arguing that the only governmental interest in marriage derives from the problem of accidental births. (We doubt that it is serious.)

 Or this:

Wisconsin’s brief in defense of its prohibition of same-sex marriage adopts Indiana’s ground (“accidental births”) but does not amplify it. Its “accidental births” rationale for prohibiting same-sex marriage is, like Indiana’s, undermined by a “first cousin” exemption—but, as a statutory matter at least, an even broader one: “No marriage shall be contracted … between persons who are nearer of kin than 2nd cousins except that marriage may be contracted between first cousins where the female has attained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile.” Wis. Stat. § 65.03(1). Indiana’s marriage law, as we know, authorizes first-cousin marriages if both cousins are at least 65 years old. But—and here’s the kicker—Indiana apparently will as a matter of comity recognize any marriage lawful where contracted, including therefore (as an Indiana court has held) marriages of first cousins contracted in Tennessee, a state that places no restrictions on such marriages. See Tenn.Code Ann. § 36–3–101; Mason v. Mason, 775 N.E.2d 706, 709 (Ind.App.2002). Indiana has not tried to explain to us the logic of recognizing marriages of fertile first cousins (prohibited in Indiana) that happen to be contracted in states that permit such marriages, but of refusing, by virtue of the 1997 amendment, to recognize same-sex marriages (also prohibited in Indiana) contracted in states that permit them. This suggests animus against same-sex marriage, as is further suggested by the state’s inability to make a plausible argument for its refusal to recognize same-sex marriage.

[6]. On certiorari in the Supreme Court, this became Perry v. Hollinsgsworth, which ended without review on the merits.

[7]. The critical passage from Judge Vaughn Walker’s ruling about the status of the expert testimony during the trial:

Psychologist Michael Lamb testified that all available evidence shows that children raised by gay or lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents and that the gender of a parent is immaterial to whether an adult is a good parent. When proponents challenged Lamb with studies purporting to show that married parents provide the ideal child-rearing environment, Lamb countered that studies on child-rearing typically compare married opposite-sex parents to single parents or step-families and have no bearing on families headed by same-sex couples. Lamb testified that the relevant comparison is between families headed by same-sex couples and families headed by opposite-sex couples and that studies comparing these two family types show conclusively that having parents of different genders is irrelevant to child outcomes.Lamb and Blankenhorn disagreed on the importance of a biological link between parents and children. Blankenhorn emphasized the importance of biological parents, relying on studies comparing children raised by married, biological parents with children raised by single parents, unmarried mothers, step families and cohabiting parents. Tr. 2769:14-24 (referring to DIX0026 Kristin Anderson Moore, Susan M Jekielek, and Carol Emig, Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can We Do about It, Child Trends (June 2002)); Tr. 2771:1-13 (referring to DIX0124 Sara McLanahan and Gary Sandefur, Growing Up with a Single Parent: What Hurts, What Helps (Harvard 1994)). As explained in the credibility determinations, section I below, none of the studies Blankenhorn relied on isolates the genetic relationship between a parent and a child as a variable to be tested. Lamb testified about studies showing that adopted children or children conceived using sperm or egg donors are just as likely to be well-adjusted as children raised by their biological parents. Tr. 1041:8-17. Blankenhorn agreed with Lamb that adoptive parents “actually on some outcomes outstrip biological parents in terms of providing protective care for their children.” Tr. 2795:3-5.

 Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 935 (N.D. Cal. 2010) aff’d sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) vacated and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652, 186 L. Ed. 2d 768 (U.S. 2013). In fact David Blankenhorn, the only expert witness the defenders of California’s law could bring in their defense, has since changed his mind. Even Blankenhorn now acknowledges same-sex marriage does not hurt children. This is well-documented in the HBO documentary on the Perry case, entitled The Case Against 8.

[8]. The cases are stuffed with instances of the kinds of financial benefits that only become available to parents, spouses, or children, if the union which triggers them is recognized as a “marriage” for state law purposes.

[9]. Quoth Feldman:

This Court has arduously studied the volley of nationally orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue on same-sex marriage. The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos.

“Empathy” is what political junkies call a “dog-whistle,” fighting language whose significance may be lost on those who do not already agree with the speaker. President Obama has repeatedly throughout his career emphasized the importance of empathy, and has drawn significant conservative criticism for saying he feels judges should have this quality. See Thomas Colby, In Defense of Judicial Empathy, 96 Minn. L. Rev. 1944 (2012). In sneering at the supposed “empathy” of the many other judges who disagree with him, Judge Feldman is therefore announcing his scorn not only for those judges, but implicitly for President Obama (who may have drawn Judge Feldman’s ire by advocating judicial empathy, by supporting same-sex marriage, or maybe just by being a Democrat). In any case, it is unbecoming for a judge to flaunt his politics in what should be an apolitical forum. (As a point of interest, both Judge Feldman and Judge Posner were Reagan appointees.)

In any case, it is hard to discern where the alleged empathy comes in. Apparently, affording weight to the bad impact on LGBT folk and their families, much of it reducible to hard, cold dollars and cents, though called for by any kind of equal protection analysis and probably by due process analysis as well, constitutes a bleeding heart. (Whereas, of course, concern for the fragile sensibilities of allegedly God-fearing gay-haters is no such thing.)

[10]. Space would not permit me to comment in the main piece on three other aspects of the Feldman ruling. Judge Feldman did also reach the due process point. His argument, like that of Justices Alito and Thomas in their dissent in Windsor, wonders how there can be a fundamental right to anything as novel in our society and indeed the world as same-sex marriage. That argument would have a lot more resonance with me were I wedded, as today’s conservative jurists are, to the notion that the meaning of the Constitution is bounded by the original intent of its framers. Nonetheless, like Judge Posner, I believe that an equal protection analysis is all that is required to overturn mini-DOMAs.

I also mentioned above that Justice Roberts “helpfully” hinted in Windsor that if federalism served to overturn help DOMA, perhaps it would come to the rescue of mini-DOMAs. (If Windsor bowed to state laws permitting same-sex marriage, perhaps the “other shoe” case would bow to state laws forbidding it.) Judge Feldman seized upon this hint and tried to expand it. But federalism, properly applied won’t ever save a state law that is otherwise unconstitutional.

And there is another and somewhat interlocked line of defense that advocates for the mini-DOMAs always push: that policy decisions should be made by democratically-elected legislatures. Justice Scalia banged this drum in his dissent, and Judge Feldman picked up the theme. The problem with this argument is the same as with the federalism argument: legislatures don’t get to pass unconstitutional laws even in their mission of setting public policy.

Copyright (c) Jack L. B. Gohn

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