Thursday, February 24, 2011
DOMA and beyond . . .
I cannot quite tell what the implications will be of the Obama administration's decision not to defend the Defense of Marriage Act in court. My understanding is that the administration didn't simply decide that DOMA is a bad law so it shouldn't be defended; the administration decided that discrimination against gays and lesbians should be subject to a heightened standard of scrutiny (rather than rational basis) under the Constitution, and that the traditional definition of marriage qualifies as such discrimination. It remains to be seen, though, whether this decision by the administration is primarily one of inaction (not going to defend a discriminatory law) or action (advocating for a heightened standard of scrutiny in challenging discriminatory laws). If the latter course is the strategy, that has some pretty significant implications far beyond DOMA. Does anyone have a clearer understanding of (or at least some speculation regarding) the way forward from here? Has this move increased the likelihood that state laws banning same-sex marriage will be found unconstitutional?
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/02/doma-and-beyond-.html
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Hi, Rob -- I'm just learning about and thinking through this too. I guess (but am not sure) that the technical answer to your last question is no, not necessarily. The opinion of the federal executive on these matters has no authority. But the practical consequence of the decision may be something like a chain reaction: federal courts more likely to hold DOMA unconstitutional, Supreme Court more likely to follow suit, state courts bound by Supreme Court as to a ban. It might also be that because there was fairly heated "animus" in evidence in the DOMA legislation, a comparable state ban evincing no, or less, such animus would get a different result. But that seems a stretch to me.
One interesting feature of the President's decision is that he has voiced opposition to same sex marriage in the past, and there seems to be at least some tension between that view and his current view of the constitutional standard. But he has also said that his views on gay marraige are "evolving" so perhaps there is no tension any longer.
Another interesting issue in some of the con law listservs I've seen is the distinction between a refusal to enforce and a refusal to defend. The latter is rightly (in my view) seen as less extreme than the former, but it remains to be seen what the executive will do here.
Posted by: Marc DeGirolami | Feb 24, 2011 11:25:17 AM
By itself, the executive espousing the intermediate scrutiny standard wouldn't have much effect. However, the U.S. Court of Appeals for the Ninth Circuit has already adopted that standard, and the Second Circuit seems likely to follow. Eventually there will be a circuit split - some circuits will apply intermediate scrutiny (discriminatory laws are presumed to be invalid but can be sustained upon showing that they are *substantially* related to an *important* government interest), while some will continue to apply rational basis (discriminatory laws are presumed to be valid unless they can be shown not to be *rationally* related to a *legitimate* government interest). At that point, the U.S. Supreme Court is likely to step in and resolve the circuit split.
Under an intermediate scrutiny standard, it seems unlikely that complete bans on officially-recognized gay relationships would survive. Laws like Michigan's that prohibit not only marriage, but all state or local recognition of any sort of same-sex relationship (to the extent of denying health insurance to same-sex partners of city employees) would be among the first to go. The government would almost certainly need to offer some sort of package of rights coextensive with those offered to married couples - joint tax filing status, preferential immigration treatment, etc. It's unclear whether civil marriage itself would be extended to same sex couples or not; that question would hinge on the courts' best efforts to tease out the relationship between civil marriage and religious marriage.
(IAAL)
Posted by: Michael Aletheias | Feb 24, 2011 11:39:11 AM
Just one addendum to Michael Alethias's comment: according at least to Judge Walker in the Perry litigation, one need not use intermediate scrutiny to find laws against same sex marriage unconstitutional.
Posted by: Marc DeGirolami | Feb 24, 2011 12:01:35 PM
Aside from the ultimate question of defending the law, I don't understand how the justification that "the 2d Circuit has not adopted a specific standard of review for sexual orientation, so that gives us a blank slate in a way not open in circuits that have done so."
Isn't is standard practice to say that all classifications get rational basis, unless or until a court has affirmatively adopted a different standard? Suppose a new law regulates architects. I don't know if my circuit has ever addressed architects, but I presume they get rational basis, and not because the court fills in a blank, but because they use rational unless someone can justify a higher standard.
Sure, maybe orientation triggers the Carolene Products factors in a way that acrhitects don't. No one is immutably an architect, and there's no history of animus, etc. But the procedure is still the same, isn't it? Start with rational basis as a default?
What am I missing here?
Posted by: Bob Smith | Feb 24, 2011 12:06:39 PM
I'm also not sure why mutability *should* be all that important in constitutional review. Religious discrimination gets strict scrutiny (which is should) and religion is entirely mutable (or at least more mutable than sexual orientation.
Sexual should, it seems to me, get some kind of intermediate scrutiny -- the same that gender gets. Sexual orientation, as I see it, is a subsidiary gender discrimination issue.
That might mean that same sex couples don't have the "right" to get married, but do have the "right" to some kind of civil union that gives all the benefits of marriage, but not the name.
That's how I think Justice Kennedy is going to split the baby.
Posted by: Jon Rowe | Feb 24, 2011 12:19:57 PM
Jon Rowe,
I've often had the same thought about mutability and religion. But another angle, possibly related, is that some decisions and other legal writings are unclear on blurring religion as an "identity" issue, or "who we are," versus a "protected activity" issue, or "something we do." Strict scrutiny, after all, is triggered under equal protection for certain classifications, but it is also triggered for certain activities, such as speech, voting, etc.
So to the extent that religious identity is treated like race or gender, as an equal protection matter, I think it's implicitly sneaking in the notion of protected activity. We're saying that the right to choose your religion is so fundamental that we'll treat it like immutable categories, because we'd never want to pressure you to change.
This blurring is somewhat necessary because certain laws are connected to identity, others to activity, and others to both. In adding religion to Title VII, for example, we wanted to forbid employers from saying "we don't hire Catholics," the same as "we don't hire black employees." So that requires an identity approach, because the employer is not targeting activity (other than the action of choosing/maintaining the identity, unless the employer fires only Mass-attenders, etc.).
But when employment runs into activity issues -- working on Saturday/Sunday, peforming certain acts -- Title VII needed the 1967 modification to cover the acitivty aspect, and there it adopted a balancing test, etc.
So religion always weaves back and forth between being protected under different auspices.
Ironically, of all the "old categories," of race/gender/ethnic and religion, religion is the one that most resembles sexual orientation, with its identity/activity aspects. Even more ironically, look at what Justice Ginsburg and the Court did in the Christian Legal Society opinion. For orientation, they reject the Church's identity/activity distinction, saying essentially that being gay inherently requires doing "gay activity," so it won't do for a CLS chapter to say "but we're admitting gays, as long as they're celibate." By contrast, the Court's take on religion is the opposite: feel free to say you're being Christian as a label, but don't expect to act on that identity if that action would conflict with the State's (university's) standards of behavior. Your identity/status does not trigger an exemption.
The same identity/exercise tension came up in Locke v. Davey. The claim being advanced -- that a college grant program could not selectively exclude those studying religion/theology -- fell between the cracks. It was not an equal protection claim, as it did not discriminate against any identity group; Catholics and Jews and Muslims could all get funds to study math. It was not a free exercise claim, because withholding funding did not even remotely impede anyone's worship activities; it was weaker than the Smith peyote claim.
What the Locke plaintiffs really sought, in my view, was a reverse-Establishment Clause claim: that the government favored all but the religious. No sich doctrine exists, to my knowledge, but it's the best label for that type of claim.
I think your take on Kennedy, btw, is about right, but it'll be hard to get the case up there if the appeals courts agree with the DOJ and if no one else is allowed standing.
Posted by: Joe Catholic | Feb 24, 2011 1:35:08 PM
Jon Rowe,
I've often had the same thought about mutability and religion. But another angle, possibly related, is that some decisions and other legal writings are unclear on blurring religion as an "identity" issue, or "who we are," versus a "protected activity" issue, or "something we do." Strict scrutiny, after all, is triggered under equal protection for certain classifications, but it is also triggered for certain activities, such as speech, voting, etc.
So to the extent that religious identity is treated like race or gender, as an equal protection matter, I think it's implicitly sneaking in the notion of protected activity. We're saying that the right to choose your religion is so fundamental that we'll treat it like immutable categories, because we'd never want to pressure you to change.
This blurring is somewhat necessary because certain laws are connected to identity, others to activity, and others to both. In adding religion to Title VII, for example, we wanted to forbid employers from saying "we don't hire Catholics," the same as "we don't hire black employees." So that requires an identity approach, because the employer is not targeting activity (other than the action of choosing/maintaining the identity, unless the employer fires only Mass-attenders, etc.).
But when employment runs into activity issues -- working on Saturday/Sunday, peforming certain acts -- Title VII needed the 1967 modification to cover the acitivty aspect, and there it adopted a balancing test, etc.
So religion always weaves back and forth between being protected under different auspices.
Ironically, of all the "old categories," of race/gender/ethnic and religion, religion is the one that most resembles sexual orientation, with its identity/activity aspects. Even more ironically, look at what Justice Ginsburg and the Court did in the Christian Legal Society opinion. For orientation, they reject the Church's identity/activity distinction, saying essentially that being gay inherently requires doing "gay activity," so it won't do for a CLS chapter to say "but we're admitting gays, as long as they're celibate." By contrast, the Court's take on religion is the opposite: feel free to say you're being Christian as a label, but don't expect to act on that identity if that action would conflict with the State's (university's) standards of behavior. Your identity/status does not trigger an exemption.
The same identity/exercise tension came up in Locke v. Davey. The claim being advanced -- that a college grant program could not selectively exclude those studying religion/theology -- fell between the cracks. It was not an equal protection claim, as it did not discriminate against any identity group; Catholics and Jews and Muslims could all get funds to study math. It was not a free exercise claim, because withholding funding did not even remotely impede anyone's worship activities; it was weaker than the Smith peyote claim.
What the Locke plaintiffs really sought, in my view, was a reverse-Establishment Clause claim: that the government favored all but the religious. No sich doctrine exists, to my knowledge, but it's the best label for that type of claim.
I think your take on Kennedy, btw, is about right, but it'll be hard to get the case up there if the appeals courts agree with the DOJ and if no one else is allowed standing.
Posted by: Joe Catholic | Feb 24, 2011 1:35:08 PM
Although it is true that all persons, regardless of race or ethnicity have been created equal as persons while being complementary as male and female, to claim that all sexual relationships and sexual acts are equal and thus our Constitution affirms and condones the equality of sexual acts and sexual relationships, is a lie from the start. Since it is true that our Constitution does not provide for the affirmation of the equality of sexual acts and sexual relationships, on what basis can one claim that discriminating between appropriate sexual relationships and innapropriate sexual relationships that are demeaning and cause spiritual, emotional, and physical harm, is an act of discrimination when it is in fact, an act of Love?
Posted by: Nancy D. | Feb 24, 2011 6:06:03 PM
P.S.,Could someone please list those Religions that condone and affirm engaging in demeaning sexual acts?
Posted by: Nancy D. | Feb 24, 2011 7:20:01 PM
Nancy,
You have too many loaded premises to even start with you. But that's your answer; SCOTUS and the Constitution do not begin with your loaded premises that determine your outcome.
You can argue -- I think Justice Scalia does -- that the original 14th Amendment was not meant to protect gender. Well, the Court currently gives gender intermediate scrutiny under the Equal Protection Clause. It's that kind of logic -- where we go from gender NOT being protected under the EPC, to it currently getting intermediate scrutiny -- that would give sexual orientation some kind of heightened scrutiny.
Posted by: Jon Rowe | Feb 25, 2011 8:04:54 AM
"... regardless of race or ethnicity have been created equal as persons while being complementary as male and female,"
And some folks, many folks, indeed many heterosexual folks have that complementary male and female nature within one person.
For instance:
Posted by: Jon Rowe | Feb 25, 2011 8:06:56 AM
Jon, I suppose one could argue that only male persons were human individuals, and thus the Fourteenth Amendment does not protect female persons, but we all know that that argument is not valid since it is true that all persons, regardless of race and ethnicity, have been created equal as persons, while being complementary as male and female. To claim that our Constitution protects and affirms the equality of sexual acts and sexual relationships is absurd, and a lie from the start.
Posted by: Nancy D. | Feb 25, 2011 10:10:12 AM
I hope the justices will take a little time out, in the course of their deliberations, to read and absorb the Laumann Report, the work of Professor Edward O. Laumann and his colleagues in the department of sociology at the University of Chicago. It is quite a revealing piece on the sociology and the politics of the GLBT set.
Ex: on the matter of mutability, the surveys cited there place the total number of men who say they have experienced same sex relations at 2.5% of the American population. He went further to assign these respondents into three groups, with the following results: 1% said they had experienced same sex activities once in their life, and for the most part that occurred before the 16th birthday, 1% were exclusively homosexual, and 0.5% were bi-sexual. So at least 60% of reported homosexuals are highly mutable.
Posted by: Joel Clarke Gibbons | Feb 25, 2011 11:11:44 AM
While it is true that our inherent nature as male and female, despite our sexual behavior, is not mutable, our sexual behavior is mutable. It is absurd to suggest that all sexual acts are equal and that those persons who engage in demeaning sexual acts, including homosexual sexual acts, are a protected class under our Constitution. Out of Love and respect for the dignity of the human person, we should try to help these individuals change their sexual behavior and restore their dignity, not condone and affirm demeaning sexual behavior and demeaning sexual relationships which are spiritually, emotionally, and physically harmful.
Posted by: Nancy D. | Feb 25, 2011 1:22:52 PM
Nancy is quite right, indeed history quite gives the lie to 'modern' constitutional thought... which is little other than modern philosophy dressed up in big words.
The constitution specifically protects religion: the free exercise thereof being written right into it. Sexual activity outside of marriage, on the other hand, was illegal when the constitution was written and none of the founders found that at all odd.
The proper Catholic response to Sodomy is execution; as our founders and almost all of Catholic history makes clear. To move something from a blasphemous and illegal activity to a protected class and pretend that the founders meant for that when they wrote the Constitution is breathtaking.
Posted by: von | Feb 25, 2011 1:43:21 PM
Nancy,
You still didn't address my point. No one is arguing the 14th Amendment means women have no rights as "persons" and consequently, I guess may be enslaved or killed because they are not "persons." EVERYONE, including homosexuals, are protected as "persons" in this sense according to a bare original meaning of the ECP. The point is whether gender based government discrimination OUGHT to receive heightened scrutiny. Currently SCOTUS says yes, but there is as much evidence in the original record that the framers of the 14th were concerned with gender based discrimination as with sexual orientation based discrimination.
I don't know where you are coming up with "affirms the equality of sexual acts and sexual relationships...."
That's something YOU brought up. Not me and not President Obama.
Posted by: Jon Rowe | Feb 25, 2011 2:19:52 PM
"1% said they had experienced same sex activities once in their life, and for the most part that occurred before the 16th birthday, 1% were exclusively homosexual, and 0.5% were bi-sexual."
Joel,
This is a laughable statistic and I think you know it. I know of one study that shows 1/3 of men have had at least one homosexual experience.
Posted by: Jon Rowe | Feb 25, 2011 2:21:12 PM
"The proper Catholic response to Sodomy is execution; as our founders and almost all of Catholic history makes clear."
You sound like the Catholic version of Fred Phelps.
Posted by: Jon Rowe | Feb 25, 2011 2:24:10 PM
How is it "gender based discrimination" to deny marriage to two men or two women when it is a self-evident truth that two men and two women cannot exist in relationship as husband and wife?
Posted by: Nancy D. | Feb 25, 2011 4:30:20 PM
Nancy you are plugging your input to determine your output (i.e., "self evident truth). I think SS couples want to be recognized as husband and husband or wife and wife. Justice Kennedy may determine it's okay for governments to say they are not "married" but I think he'll decide that it is discrimination to not give all of the rights of marriage under a civil union.
Posted by: Jon Rowe | Feb 25, 2011 8:06:39 PM
Jon you, like all defenders of the concept of same sex marriage, also assume your conclusion, namely, that the essence of marriage is not the union of a man and a woman. The issue is not discrimination but definition. Laws that define marriage as being the union of a man and woman do not discriminate against homosexuals. Homosexuals typically may not want to marry but they are free to do so and sometimes do.
Posted by: Dan | Feb 26, 2011 3:59:12 PM
Dan,
Yes, marriage law that excludes homosexuals discriminates against homosexuals.
"Laws that define marriage as being the union of a man and woman do not discriminate against homosexuals."
That's arguable. But law could give homosexual couples equal rights. If law saying same sex couples are "married" frightens us, "civil unions" may substitute.
"Homosexuals typically may not want to marry but they are free to do so and sometimes do."
This is a topic of another discussion. I've recently thought about notable examples of homosexuals being heterosexually married. Some of these couples seem to flourish under the right arrangement. But it's not one man/one woman in sexual exclusivity. It's more like one gay man and his best female fried forever in lifelong emotional intimacy, but where he sexually does what he wants homosexually and she does God knows what (perhaps nothing sexually). Liza Minnelli and Peter Allen. Cole Porter and Linda Lee Thomas. Leonard Bernstein and Felicia Montealegre. This is what Wiki said of Bernstein, "Shirley Rhoades Perle, another friend of Bernstein's, said that she thought 'he required men sexually and women emotionally.'18"
Is this YOUR idea of homosexuals being "free" to marry and "sometimes do[ing]"?
Posted by: Jon Rowe | Feb 26, 2011 6:53:51 PM
Jon, again, my only point is that the issue is one of definition and not one of discrimination. Insofar as the question is whether the definition of marriage is discriminatory, it proves nothing to provide examples of unhappily married homosexuals. Some heterosexuals are ill-suited for marriage, and many are unhappily married, but that does not mean the laws of marriage discriminate against them.
Of course the broader issue is what the goal of marriage law should be, particularly insofar as children are concerned. This should not be the business of the courts. Apparently this is a fringe view -- even Justice Alito disclaimed having it during his confirmation hearing -- but, legally speaking, I believe the Supreme Court made a fundamentally wrong turn when in Griswold it struck down a law banning contraception. I find it fascinating however the way the (evil) implications of contraception have spread though our society parallels the way they have spread through our jurisprudence. Just as the pill begat abortion and is now begetting same sex marriage (as a consequence of having homosexualized heterosexual relationships), so Griswold begat Roe and will likely beget a Supreme Court decision mandating gay marriage (as a consequence of having created a constitutional right to sexual liberty).
Posted by: Dan | Feb 26, 2011 7:47:47 PM
The inherent nature of Marriage is that it is restrictive, not discriminative, despite the fact that there are some who try to argue, erroneously, that it is discrimination to deny Marriage to two men, two women, a father and daughter, mother and son, or any combination of persons that cannot exist in relationship as husband and wife. Not only do you have to change the definition of Marriage, you have to change the definition of authentic Love.
Posted by: Nancy D. | Feb 27, 2011 1:19:59 PM
John Rowe,
If you doubt the statistics reported in the Laumann Reoport, your complaint is not with me but with Professor Laumann. You should start by reading the report, for which there is a popularized version.
Professor Laumann was at the time of the report the chairman of the department of sociology at the University of Chicago. He has spent a large part of his career studying the sociology of sexuality.
Posted by: Joel Clarke Gibbons | Feb 27, 2011 7:03:53 PM
Those who recognize the real definition of authentic Love understand that Love is not possessive nor does it serve to manipulate, and that only in an ordered, complementary relationship, can two become united as one body, one spirit, creating a new family. The Catholic Church, out of Love and respect for the inherent complementary nature of the human person that has been endowed to us from God, realizes that when we refuse to condone or affirm demeaning sexual acts because we desire that all persons develop healthy and Holy relationships, it is an act of Love, not discrimination. If we are really concerned about unjust discrimination in regards to those men and women who suffer from a homosexual inclination, we would not deny them the opportunity to heal their wounds and learn how to develop healthy and Holy relationships.
Posted by: Nancy D. | Feb 28, 2011 8:28:44 AM
Joel,
I did read the Laumann report, and be that as it may, it is not the final word on sexual orientation statistics.
Here is a more current stat:
"The National Survey of Sexual Health and Behavior interviewed nearly 6,000 people nationwide between the ages of 14 and 94 found that 7 percent of women and 8 percent of men identify as gay, lesbian or bisexual, and that by age 50, 15% of men have had at least one oral sex encounter with another man."
"National Survey of Sexual Health and Behavior. Nationalsexstudy.indiana.edu. Retrieved on 2010-10-26."
A final note, if you think that 97.5% of the population never had a homosexual experience in their lives, you are not living in reality.
Posted by: Jon Rowe | Feb 28, 2011 12:41:48 PM
Nancy,
That's all well and good. But the Catholic Church doesn't get to define civil definitions of "marriage."
Posted by: Jon Rowe | Feb 28, 2011 12:42:47 PM
"That's all well and good. But the Catholic Church doesn't get to define civil definitions of "marriage."
Jon, that does not change the self evident truth that not all persons can exist in relationship as husband and wife, and thus restricting marriage to only those who can exist in relationship as husband and wife, is not discrimination to begin with.
Posted by: Nancy D. | Feb 28, 2011 4:15:16 PM
Nancy,
You are just plugging in the term "self evident truth" to try and "settle" things. It's not so "self evident" to the homosexual couples who are legally married in Mass. and other states.
Posted by: Jon Rowe | Feb 28, 2011 6:12:12 PM
When one considers the fact that members of the same sex cannot exist in relationship as husband and wife and thus two persons of the same sex cannot be married without emptying marriage of its inherent, ordered, unitive and procreative nature, it is clear that in Massachusettes, legally, the definition of Marriage no longer exists.
Posted by: Nancy D. | Mar 1, 2011 11:58:18 AM
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