I agree with some of what Ilya writes in response to my post on the Ninth Circuit’s Prop 8 decision and judicial minimalism. As I noted in that post, the effect of striking down Prop 8 is certainly not small. California would be “by far the biggest prize” for same-sex marriage advocates. Of course, it could have been written in a way calculated to produce an even larger effect, bringing same-sex marriage to every state with civil unions, or even to support a right to marriage for gay couples across the country. But requiring a state with 37 million people to accept gay marriage is pretty doggone big.
I also noted that it would be hard to draw the line, as the Ninth Circuit panel did in Perry v. Brown. The opinion explicitly limits its holding to California, where full rights and then marriage itself was given to same-sex couples but then marriage was retracted. I see no principled minimalist reason to justify this limitation. Perhaps there’s no rational-basis for granting full rights but not the dignitary status of marriage, because granting the full rights surrenders the core for refusing marriage (procreation and responsible child-rearing). But it seems only judicial fiat further confines the decision only to states where the word marriage was given and then withdrawn. The effort to cabin the case to California, as opposed to the other civil-union states is the most unsatisfying part of the decision. That’s why I called it “judicial minisculism.” I’ve also said repeatedly in these electrons that I think the Perry litigation is likely a loser that may set back the cause. Reinhardt’s opinion seems to be an effort at harm reduction so that even a loss in the Supreme Court will be on narrow grounds. We’ll see, alas. On all of this, Ilya and I appear to agree.
We do disagree, however, on two things. First, as I believe I’ve argued previously on this blog (I don’t have time now to chase it down), I don’t find the sex-discrimination argument terribly persuasive. It was popular among gay-legal academics in the 1980s and 1990s, and has been subject to extensive defense and critique (most notably in a fantastic exchange between Andrew Koppleman and Ed Stein), but it never caught on with courts and it’s mostly been dropped in gay-rights litigation. It was hardly mentioned in the main attack on the same-sex-only sodomy law in Lawrence v. Texas. Its main problems, very briefly, are that (1) it obscures the heart of the equal protection issue, continuing exclusion of gay men and lesbians, and (2) it isn’t sufficiently attuned to the Court’s sex-discrimination cases, which do suggest a lower level of scrutiny when legislation addresses ”real differences” between men and women (like the capacity to get pregnant or, one might say in the marriage context, the capacity to procreate as a couple). To the extent courts care about sexist legislative purposes, it’s not obviously clear that the traditional definition of marriage is designed to reinforce the legal subordination of men to women. The law today makes spouses legally equal, regardless of sex. It’s a debate that won’t end, and I recognize others may reasonably disagree.
My other disagreement with Ilya is less qualified. He appears to believe that same-sex marriage advocates might be best advised to make maximalist arguments now, to go for broke, as long as they’re likely to lose anyway. A defeat, he writes, could “lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.” Bowers marked progress in the sense that four justices did vote to overturn the Georgia sodomy law (and a fifth, Justice Powell, later said he’d probably made a mistake voting to uphold the law). But Bowers itself was a calamity for the gay-rights movement, a 17-real-long plague that spread into every law at every level of government, state and federal. It was used by courts to deny gay-rights claims in the military, in housing, in public and private employment, in custody, in child visitation, and so on. Politically, the presumptive criminal status of homosexuals was used as a reason to resist every proposal for gay-rights legislation, from hate-crimes laws to marriage, even in states that had no sodomy law. Constitutionally, it was used to deny heightened scrutiny to classifications based on sexual orientation. Its damage was so deep that many doubted the Court would even strike down Colorado’s Amendment 2. If you could jail homosexuals, Justice Scalia plausibly argued in dissent, why can’t you deny them protected status in civil-rights laws? Sure, the decision was reversed in Lawrence by a bare 5-vote majority, but Bowers so spooked the lawyers in that case that even they doubted the Court would reverse it. In my history book, Bowers “laid the groundwork” for Lawrence only in the sense that Pearl Harbor paved the way for VJ Day. So, as a strategic matter, I’m very dubious about expansive claims for gay marriage in the federal courts. The risk of gay-marriage Pearl Harbor is too great, and the unpredictable damage done legally and politically could be profound and long-lasting. Far better a shallow and narrow defeat under minimalism than a deep and wide defeat under maximalism.
UPDATE: Ilya has a nice response to this post here, and it’s well worth reading. Many of the points I would make in further reply are made in the comments to his post, so I think I’ll leave it at that for now.