Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to email@example.com; please put "blog comments" in the subject line.
I briefly mentioned it, but SCOTUSBlog now has a link to the text of the attorney general’s new Justice Department policy directive on the recognition of same-sex marriages. [See here for an analysis suggesting how far reaching though arguably -- I'm somewhat dubious as noted in a comment -- not far enough!] Some of this is just a basic following of the Windsor ruling though even there litigants have been known to not overly enthusiastically followed such directives.
Here, however, the Administration led the way. The memorandum noted, e.g., that the administration on its own (before Windsor) put in place a policy of not using sexual orientation as grounds for peremptory challenges pursuant to its judgement that sexual orientation classifications warrant heightened scrutiny. J.E.B. v. Alabama (gender) held that classifications warranting rational basis review are not subject to the stricter test applied to race/ethnicity. The 9th Cir. recently determined heightened scrutiny is warranted in this context though the case is still pending (en banc review would not be surprising).
A word on this matter. There are a small bunch of Supreme Court cases by this point involving sexual orientation, including allowance to block gays from parades and associations or require an "all comers" rule that includes them as applied to official college associations. Still, the issue of heightened scrutiny has been somewhat creatively avoided. Romer and Windsor both in effect noted the laws in question were so blatantly discriminatory (the difference as compared to normal practice was a red flag in both cases) that rational basis was not met. And, in the latter case it is specifically noted careful scrutiny is warranted when that occurs.*
Lawrence v. Texas held that even rational basis review doesn't warrant denying intimate association liberties to them. The case noted it did not apply to various things, including marriage, but since marriage is itself a liberty that is part of the class covered, the official sanction required to me does not seem to warrant a special rule. And, some federal courts (as did Massachusetts, leading them all) have begun to agree. Also, that ruling concerned matters like privacy that past cases held to be fundamental rights. This led various people to determine that some sort of heightened review was warranted, at least intermediate scrutiny.
The ruling rested on substantive due process though it had a section that discussed how equality interlocked with that in various ways:
Equality of treatment and the due process right to demand respect for
conduct protected by the substantive guarantee of liberty are linked in
important respects, and a decision on the latter point advances both
interests. If protected conduct is made criminal and the law which does
so remains unexamined for its substantive validity, its stigma might
remain even if it were not enforceable as drawn for equal protection
Such is clearly apparent in Windsor, which uses the Due Process Clause (the federal government involved, the Equal Protection Clause doesn't do it, so the equal protection component of due process was applied). As noted in the footnote, this was also noted in CLS v. Martinez:
LS contends that it does not exclude individuals because of sexual
orientation, but rather “on the basis of a conjunction of conduct and
the belief that the conduct is not wrong.” Our decisions have declined to distinguish between
status and conduct in this context. See
539 U. S. 558,
is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual
to discrimination.” (emphasis added));
at 583 (O’Connor, J., concurring in judgment) (“While it is true
that the law applies only to conduct, the conduct targeted by this law
is conduct that is closely correlated with being homosexual. Under such
circumstances, [the] law is targeted at more than conduct. It is
instead directed toward gay persons as a class.”); cf.
Alexandria Women’s Health Clinic
506 U. S. 263,
(“A tax on wearing yarmulkes is a tax on Jews.”). [a couple citations omitted]
The 9th Cir. in the case cited used Windsor as the basic grounds to hold that sexual orientation warranted heightened scrutiny, but that is a bit dubious -- the ruling used rational basis plus because the law was blatantly discriminatory (a paraphrase, but to me a reasonable one). Are peremptory challenges applied to gays such a law or to cite O'Connor's rule, "a desire to harm" a group? Except for a race, ethnicity and gender, both sides are generally allowed such challenges for a range of personal characteristics (religion is an interesting case -- at times, this is treated as ethnicity, at least Jews and Muslims were in past cases). Marriage is a fundamental right, but I take being married can be grounds for a challenge. Personal characteristics like mental illness or retardation also can be grounds for challenge. J.E.B. v. Alabama says as much.
The Administration and others have argued that sexual orientation warrants heightened scrutiny. I firmly agree. Various cases have been easy. Rational basis, perhaps with a bit of teeth, was enough. Peremptory challenges to me might be a good case to move the law in this area. Sexual orientation fits the rules for heightened scrutiny. The 9th Cir. is right that the language in various decisions sends such a message even though the rulings rely on somewhat narrower grounds. And, given action here is so closely tied to orientation, heightened scrutiny in one area (as the 9th Cir. did for "don't ask, don't tell" on substantive liberty grounds) should apply to the other. Challenges by orientation is likely to be based on various protection actions (if not in every case).
Until then, the Administration works with what is available. For years, it has worked within the rules to give benefits to same sex couples, such as hospital visitation rules and so forth. These are not trivial matters -- they are basic everyday things that are quite important to those involved. Now, it can work with marriage rights. As I noted the last time, these repeatedly involve things that cannot simply be handled by private agreement. The "solution" to take the government out of the marriage business won't solve everything, since the new rules still would have to deal with allotment of government benefits. Some don't want them applied to same sex couples, even under "civil unions" or whatever. Some examples include bankruptcy, prisons, health benefits, survivor benefits, spousal privilege and protections from harm to spouses pursuant criminal law.
The Administration has decided that these rules don't apply to marriage-like unions like civil unions or domestic partnerships. This was a subject to various posts at Volokh Conspiracy. I think this a reasonable move because these unions are not quite marriage, even if they technically apply the same government privileges and immunities (which they don't in all cases). This makes them unconstitutional alternatives to marriage and for similar reasons treating them like it under current federal law (though we can change the statutory law) is questionable.
They have determined what matters is "where the marriage is celebrated." IOW, if a same sex couple gets married in N.Y. but moves to a state that itself does not recognize marriage, in effect, their federal marriage rights are vested and retained. A conservative was on the t.v. yesterday complaining at this, citing the federalism language in Windsor, though the ruling is based on equal protection principles. And, regardless, the state is still able to deny marriage rights under a strict reading of its tenets (its spirit plus other cases ... something else), since for the time being, giving that N.Y. couple federal rights when they move to Alabama allows Alabama still to deny them state rights. NY doesn't allow the death penalty, but federal crimes committed here can and have been subject to federal capital punishment rules. A two tier approach is possible.
The conservative was correct to note the soft power of administrative regulations being applied here. This underlines if matters who holds executive power, including in the middle tier of the Jackson Youngstown grouping (executive has discretion, legislature does not clearly set rules). It also shows how court rulings can push but other actors have an important role in determining how far. (This factors into the "living constitution" book by David Strauss as well.) The courts have a special power to say what the law is, but they aren't the only one. As Justice Kennedy noted in a somewhat different context:
It must be remembered that, even where parties have no standing to
sue, members of the Legislative and Executive Branches are not excused
from making constitutional determinations in the regular course of their
duties. Government officials must make a conscious decision to obey
the Constitution whether or not their acts can be challenged in a court
of law and then must conform their actions to these principled
I will end with a probably largely off topic tidbit that is weakly connected since I think constitutional (and other legal) principles also often should in some fashion honored by the general public (comment). Rule by "we the people" warrants some degree of that. This also might touch a bit upon something referenced yesterday about personal faith and belief in what is behind the law, not merely following it in some fashion when you need to do so. Eh -- suffice to say, I know someone who is breaking the law for a tax break while benefiting specifically from the community whose taxes are being avoid. I won't say more, but this upset me more than a few other people I discussed it with. Not being high and mighty here, and the person is not some sort of moral reprobate for doing it, but it's a problem.
* There continues to be to me tiresome complaints that Kennedy's reasoning is so hard to explain, other than flowery language (do these critics say the same thing when "state dignity" is referenced or when Scalia doesn't tell us what level of scrutiny is warranted in Heller? from experience, the answer is continuously, "no"), but the basic "rational basis plus" principle has been apparent for years.
Breyer cited it during the Windsor oral argument though Clement (this not being one of the times he is concerned about federal power) was annoyed at another level of review. Justice O'Connor, voicing something that clearly has five votes at this point (in CLS v. Martinez, the majority cited another part of her concurrence), noted separately in Lawrence:
When a law exhibits such a desire to harm a politically unpopular group,
we have applied a more searching form of rational basis review to
strike down such laws under the Equal Protection Clause.
What does "more searching" mean? Yes (he says a bit tiredly) that is somewhat vague. This makes it novel as to constitutional tests, how? What are "reasonable" searches? What is an "exceedingly persuasive justification" (the rule as applied to sex/gender)? Since even race classifications are allowed in a few cases (e.g., affirmative action), what are the contours there? What is "actual" malice? One can go on. Somehow, we manage, but here, it's a big problem? Why exactly?