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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, March 22, 2014

Michigan same-sex marriage ban falls

Update: Temporary stay by the 6th Cir., but not before a few hundred people got licenses, around fifty got married.
Indianapolis’ classification involves neither a “fundamental right” nor a “suspect” classification. Its subject matter is local, economic, social, and commercial. It is a tax classification. And no one here claims that Indianapolis has discriminated against out-of-state commerce or new residents. Hence, this case falls directly within the scope of our precedents holding such a law constitutionally valid if “there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” And it falls within the scope of our precedents holding that there is such a plausible reason if “there is any reasonably conceivable state of facts that could provide a rational basis for the classification."
Justice Breyer wrote this (citations omitted) a few years ago for the Court, and for such regulations, "plausible" is a pretty low bar. It is true that "rational" should have some content and as applied to many barriers applied to same sex individuals and couples, it would be a bit "generous" to say it was met.  But, as various people (including a few justices) have noted, the test is not applied equally in all cases.  As Justice O'Connor noted in her concurring opinion in Lawrence v. Texas:
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. We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships.
Windsor also spoke of a more strict degree of scrutiny in this area when there is clear evidence of such a desire to harm such a group, particularly when the regulation is of an irregular character.  There might not be a clear doctrinal statement on the point, but the standard applied in the first case is not likely to be applied the exact same way when personal characteristics and fundamental rights (even if strict scrutiny is not applied, as has been when they arise -- see, e.g., Lawrence v. Texas) are involved.  Again, failure to be totally upfront about this shouldn't lead to some feigned "confusion" on the point.  Nor some "shock" that the courts are not fully aboveboard.  Please.

I think there is some value in being upfront about this in the area of sexual orientation, especially with district court after district court rather passionately (maybe not all, but quite a few) stating how SSM is constitutionally protected, even if using somewhat restrained language for the holding given current appellate doctrine.  This case, which is particularly notable for having a full fledged trial and not (yet) granting a stay to its pro-SSM ruling, is a case in point.  The rational basis test ("any conceivable legitimate interest") is used, not "animus" or heightened scrutiny (e.g., as applied to the right to marry), but the "personal sacrifice" of the litigants are noted and "fervent hope" that their children will enjoy equal rights in the future.  And, the "wait and see" rationale is rejected particularly when "constitutional rights are implicated."  Well, such "rights" are "implicated" even in tax cases.

The use of the rational basis test provides the simplest approach in certain respects, including for a lower court judge who has to follow precedent.  Sexual orientation is not given heightened review generally speaking (some states do as did the 9th Cir. and the 2nd Cir. in Windsor) though some limitations here (the seminal case here being Romer v. Evans) are so blatant that "animus" can be shown.  Windsor suggests other concerns can also factor in, there federalism.  The opening case points to others of constitutional dimension that goes beyond run of the mill legislation where much teeth at all will lead to suspect intrusion by the federal courts  -- "discriminated against out-of-state commerce or new residents."  To quote from that Romer:
First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.
Marriage is not as "undifferentiated," but still covers a lot of ground, plus it has its own independent constitutional importance.  Fully resting on it is a big step for the courts to take, raising questions as to "what is marriage" and so forth. Nonetheless, like O'Connor, its importance is used by the judge here as an important factor in the analysis, even if mere rational basis review is applied.  The "sheer breadth" of the barrier to marriage here also "seems inexplicable" except as "animus" to same sex groups. An honest accounting shows this, I think, but courts often try not to be um so "blunt" about things.  So, the opinion here holds there are no state interests with a constitutional "rational relationship" to "legitimate state interests."  The actual reason "why" is left to implication.

To be fair, "animus" is a strong term that suggests a certain strong intentional motivation, and "no legitimate" purpose provides an alternative that addresses a broad range of cases that are not as strongly problematic as some instances in this area. A federal law, e.g., that singles out a certain kind of marriage for federal benefits even when it was not deemed necessary to "defend" marriage or marriage when interracial couples were involved at the height of Jim Crow is different from a state that has historically and continues to do so not authorize SSM. Or, a state that singles out same sex marriage so that even normal legislative process cannot authorize it (cf. Prop 8 with what Hawaii did). As Justice Kennedy noted in respect to physical and mental impairment:
Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.
A special "malicious ill will" with a certain degree of "purposeful and intentional action" is the sort of thing the USSC was concerned about in various cases where burdens on groups not otherwise enjoying "heightened scrutiny" were at issue. I think there might be some "plausibility" to the rationales given if the test applied is the same used for some run of the mill local business regulation or something.  As shown here and other cases, the arguments are rather weak, yes, but "plausible" is a low bar. I might be being a bit generous here, to be sure, especially in respect to certain arguments that are just plain stupid. The "wait and see" argument, however, a sort of Burkean approach, might be the strongest, again if nothing else but some simple tax law was at issue or something. And, even that, at this point, all things considered, is about run its course.

But, such bare bones rational basis review is not actually applied in cases of this nature, and any teeth will defeat the barriers to same sex marriage found here.  A simple acknowledgement of what is going on would be appreciated, but might not be Justice Kennedy's way.  And, on some level, it might be a good idea, a reflection on the changing mores of the population as applied to federal constitutional action. IOW, a certain higher degree of "blatant" is necessary there before something is deemed not "legitimate" for constitutional purposes. The nuances might be inexact. Maybe, a good concurring opinion. This is only more so if the fundamental right to marry is factored in, the clear animus apparent particularly as applied to some recent regulations (e.g., where even marriage-lite benefits are blocked by state constitutional amendment).  And, though some might not be convinced, gender equality too.

Anyway, yet another ruling on the irrationality of denial of SSM benefits.