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 firstname.lastname@example.org; please put "blog comments" in the subject line.
Update: I inserted a brief comment on the 7CA opinion -- which at the end of the day is likely much more important than this thing -- in the text.
So, other than an obscure state district court judge who didn't want to deal with recognizing the right for same sex couples to marry and basically punted with a seven page opinion (footnote link not provided), it finally happened -- a post-Windsor (federal district court) ruling rejecting such a claim. It is by a Reagan appointee though I'd note Ted Olson was too (if not a judge) as is Posner et. al. Might be useful to look at it.
These consolidated cases challenge the constitutionality of Louisiana's ban on same-sex marriage and its choice not to recognize same-sex marriages that are lawful in other states.
So, you have a double claim, one broader than the other. Likewise, this is not a simple law (see, e.g., Hawaii or previously NY), but a state constitutional amendment. One that reaches a "legal status identical to or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized," which -- and this should really be underlined -- makes this more than a same sex marriage case. Going by Wikipedia, only New Orleans provides extended health benefits to partners. So, we have an extended barrier on same sex couples placed in the state constitution.
The judge goes on and frames things in a way minimizing the problem: we are here dealing with a dispute "regarding the value of state decisions reached by way of the democratic process as contrasted with personal, genuine, and sincere lifestyle choices recognition" and the immediate dispute regards those "who vigorously submit if two people wish to enter into a bond of commitment and care and have that bond recognized by law as a marriage, they should be free to do so." This is "society's latest short fuse." Wikipedia has the bans here going back to the 1980s.
Note, again, however, that if the two people -- and to ff, that already is too broad -- want a civil union akin to marriage ("substantially similar"), that too is blocked. Some who are religiously or otherwise against "marriage" support civil unions. That is blocked -- by constitutional amendment. I would argue that the coverage of this case, including the very url to the case, somewhat significantly papers over this very important matter. This becomes about "same sex marriage," when it is more. The "plus" to me might even be a way for someone like CJ Roberts to concur in part when the fait accompli of protecting same sex marriage comes to past. I have been talking about this issue for a few years now.
The ruling here non-controversially applies rational basis review as to sexual orientation, which if nothing else is loyal to circuit precedent. Other courts held that even that would be violated and one news report noted Judge Posner didn't care about the whole heightened scrutiny thing -- the bans he was trying failed rational basis. The judge then notes Windsor isn't as determinative as other courts held -- it was concerned about the federal government in a special way interfered with state control over marriage (though it had "alluring" dicta for both sides). Perhaps, showing the truth to the last part, the opinion does not focus upon the parts of Windsor where the harms to children etc. from not protecting same sex couples are raised.
We are told that democratic processes should be relied upon now, helped by a dissenting opinion of Justice Powell (who also concurred only in the marriage case Zablocki in part because its broad language seemed to be so open-ended as to override such things as bans on homosexuality -- telling point!). But, special scrutiny is warranted here because the democratic processes alone as noted back in the 1930s:
prejudice against discrete and insular minorities may be a special
condition, which tends seriously to curtail the operation of those
political processes ordinarily to be relied upon to protect minorities.
Likewise, certain criteria is not an appropriate guide for legislation like political faith or sexual orientation as a general matter. Finally, there is the matter of fundamental rights such as marriage. Certain things aren't left to the democratic process in our constitutional republic. Precedent or no, and the Obama Administration logically holds current guidelines rightly applied would merit heightened scrutiny in this area (the USSC has in effect left the question open), Lawrence v. Texas was a seminal case in this area and it's time to be consistent.
Intimate association, a right held as fundamental in a range of cases, was applied to same sex couples. This was not said to make incest statutes or something irrational. A slew of cases of late showed it is irrational as a legal matter not apply the same equality to marriage rights (or civil unions). Even though historically, like sexual relations, the right was not applied to same sex couples. It was not seen as a "new" right unworthy of protection. In Reed v. Reed, tradition wasn't enough to uphold something not that long before would widely protected -- favoring the husband over the wife. Developments showed this was legally irrational. Even if "thousands of years" of history could be shown to justify it.
The judge also uses some standard tropes to reject the Loving v. Virginia comparisons. We have this whopper:
Heightened scrutiny was warranted in Loving because the [14A] expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race.
Where? I don't see this "express" condemnation in my version of the Equal Protection Clause. The opinion expressly deals with race, but the Constitution itself here is more universal -- persons. There are various places where subsets (e.g., women) are specifically addressed. Shouldn't the text matter? To address another point raised, Loving rejected the "evenhanded" ban when the classification itself was deemed arbitrary. It is overly generous to say that is in place in these laws.
The theme of the opinion is respect for "democratic process," a drinking game can be set up to determine how many times it comes up, but if not as broadly as Romer, it is a special form that goes beyond simple legislative action to put in place constitutional barriers for certain groups. And, what is the rational basis? Fairly typically, if without much discusion we are told that the "preeminent purpose of linking children to their biological parents." By denying some the right to marry (or even civil union) a person of the same sex (as noted in passing, this would include transsexuals), including those with children. The state allows same sex persons to adopt. What is the "rational" ground to not even provide civil unions, which -- as Windsor notes -- protect in part children? Of course, marriage is in place for a slew of reasons. It is fakery to rely on this at the end of the day.
Update: As the around a week after oral argument 7CA opinion notes, the rationale is "so full of holes that it cannot be taken seriously," partially since it is in fact counterproductive to the children it is meant to protect. It cites something called "constitutional law" as requiring simple democratic process (the same process somewhat indirectly brought the Constitution and the judges here who interpret it) to be overridden at times.
It also noted even the "skim milk" (or second class) marriages struck down by Windsor would be better than the barrier even to marriage-lite. Finally, turns out they did apply heightened scrutiny. The case rested on equal protection alone, but its focus on harm to children is perhaps the key value to the cause here. The scorn of the makeweight rationale in support of the ban is appreciated though two things: (1) the discussion basically seems to ignores bisexual, which makes the "accidental birth" concern even weaker (2) the focus on EP alone gives the state a bit of a break since the stream of reasons (not just children -- see, e.g., Turner v. Safley) for marriage are not dwelt upon. The attempt to make marriage small makes me a mixture of disdainful and depressed. Avoiding the whole "meaning of marriage" thing does make the opinion fwiw somewhat less "activist."
The judge is loathe to accept that the constitutional barriers of the breadth here "could only be inspired by hate and intolerance" though honesty (and the history behind the laws at issue, probably covered by the couples in their brief while ignored by the opinion) might hold otherwise. The breadth of the barrier and the bad fit, especially if we honor -- as Lawrence v. Texas counsels we must -- equal rights to basic rights here. But, animus is not even necessary. An "improper" purpose is enough. Perhaps, the lack of discussion in the opinion and desire to address social science data is helpful here, since a seriously examination would show how the bans rest on sand. The detailed opinion of Judge Walker was useful here over appeals to history that would uphold lots of aspects of marriage now deemed not only wrong but unconstitutional.
The marriage section provides a certain disdain for the claims (the couples "fervently insist" while the state "counters"; couples "envision" apparently that marriage is a right for "everyone without limitation"). A limited view of "marriage" is argued for, one that in the 1970s would have led to the upholding of sex specific laws and later bans on sex before marriage. But, that isn't how the right was applied. The usage of Glucksberg to provide a narrow reading of rights has not been applied to those long existing such as speech or marriage as compared to things like assisted suicide.
Since marriage is in no way solely about linking children to their biological parents (and same sex marriage to some extent even furthers that), it warrants, especially after Lawrence v. Texas provide protections to same sex couples as to intimate association, some discussion why the other courts were wrong here. The ruling overrides mere reliance on history or appeals to democratic process. It also did not merely rest on "the privacy model" but "liberty" and somehow didn't get in trouble dealing with incest (though some bans here apply in states that allow first cousin marriages). Some in fact appreciated just that differential. Anyway, marriage repeatedly has been included in the collection of liberties at issue here.
True enough that this is a step beyond Lawrence, but it is loyal to its ultimate logic and the same applies to Windsor and Romer v. Evans. Scalia is correct there though it is not absurd to find some ground between the cases here -- this is a somewhat harder case. But, reasoned judgment here, not mere "a pageant of empathy; decisions impelled by a response of innate pathos" (singular dissent is acceptable, but really, perhaps a bit of caution is warranted?) shows same sex marriage (or at least some form of marriage-lite) is constitutionally warranted. This might require a bit more work in way of examining just what "marriage" and "civil unions" amount to these days than provided here, but that is what law clerks are for.
Like a house made of various parts, at this point it is irrational not to provide marriage rights to same sex couples while protecting a range of other things that make up that structure. Same sex couples can associate in bars, have sex, cohabit, adopt etc. Why not marry? The opinion here at least didn't have to pretend Baker v. Nelson means anything any more since the state accepted it no longer had bite. It was bound to be the case that some federal judge wrote an opinion rejecting the claims here (there have been dissents in appellate rulings) and the democratic process focus is pretty unsurprising. I guess, especially a Reagan appointee, the claim that the stream of judges (appointed by a range of presidents) are because of "empathy" or the like wrongly protecting the "new right" here.
Hard pressed to imagine an overall well-written opinion in this area rejecting the claims ... still waiting in this range of cases.