The Volokh Conspiracy

Overnight, it seems, federalism has become a major ground on which the Defense of Marriage Act is being contested.  This is surprising because, as we saw Wednesday in the arguments of Roberta Kaplan and the Solicitor General, there were no real advocates for federalism as an issue during the oral argument in United States v. Windsor.  No advocates, that is, except for five of the nine people sitting behind the bench.

But what exactly is the federalism objection to DOMA?  Despite some misapprehension to the contrary, it doesn’t rest principally on Tenth Amendment case law establishing an ”anti-commandeering” principle.  And it’s not that marriage is a subject over which the federal government must always, forever, and for every purpose be obedient to individual states’ whims. That would present what we might call a reverse anti-commandeering problem.

Instead, the federalism concern with DOMA breaks down into at least three different but related types of problems.

(1) The federal-power problem. DOMA is an exercise of federal power. So the first question is, where does the federal government get the power to enact a comprehensive definition of marriage? George Will thinks DOMA is a “usurpation of state power.”  James Taranto at the Wall Street Journal agrees.  Michael McConnell, perhaps the leading conservative judicial scholar of his generation, put it this way in an op-ed in the Wall Street Journal:

The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The federalism amicus brief in Windsor argues this point in some detail. It’s not a novel concept in the Court’s federalism cases. It’s also uncontroversial, at least among those who believe there are meaningful limits on federal power, and even among some who don’t think those limits are entirely judicially enforceable, like Justice Breyer.

Some commentators have tried to avoid the implications of this tradition by arguing that DOMA simply facilitates the exercise of Congress’s underlying power to, say, administer and implement federal taxation, an enumerated power. In doing so, they argue, Congress must be able to define the terms it uses.

But just as it’s axiomatic that Congress may generally define the words it uses, it’s also axiomatic that Congress may not violate the Constitution in the guise of defining terms. Definitions that control the administration of a program are subject to constitutional constraints, just as the underlying program is. Consider Adarand Constructors v. Pena, involving a law that gave federal contractors a financial incentive to hire subcontractors owned by “socially and economically disadvantaged people,” but defined this group presumptively to include certain racial minorities. The definition did not fool the Court, which held that the financial incentive was based on race and thus was suspect. If the federal government uses the Dictionary Act or any other definitional provision in a way that violates the Bill of Rights, it’s just as unconstitutional as if the definition were embodied in the heart of the operative statutory text. So it is with definitions that effectively expand federal power beyond those enumerated or necessarily and properly implied in Article I.  Congress may just as effectively erode the nation’s historic commitment to state primacy in the field of family relations through the ruse of a definition as it may by explicitly preempting state control over these matters.

So we get back to the basic question: is an an all-encompassing federal definition of marriage within Congress’s explicit or implied powers?  The federalism amicus brief argues at length why it’s not.  As Justice Kennedy noted, marriage touches almost every area of the law and every aspect of family life. It’s facile to say that DOMA can be logic-chopped into 1100+ individual definitions, ignoring that the combined effect is to complicate, burden, and discourage state policy choices and experimentation on a matter of traditional state concern that pervades the daily lives of ordinary people.

(2) The legitimate-federal-interests problem. Under equal protection principles, every law must serve at least some legitimate government interest. Some interests, like animus against a class of persons, are impermissible no matter how rationally related the means are to accomplishing the objective.  Bare moral disapproval also doesn’t legitimate discrimination preferred by a legislative majority.  Racial supremacy is an impermissible objective. Enforcing traditional gender roles is an impermissible objective.  The enumerated-powers doctrine and the underlying federalist structure similarly take some asserted federal interests off the table in an equal protection analysis. The federal government is barred from invoking interests that lie beyond its powers to pursue. Pursuing them is illegitimate in an equal protection case, just as racist or sexist interests would be.

What interests might the federal government claim for DOMA?  It’s not a puzzle.  Literate people know because Congress told us what its interests were and even now its defenders assert broad federal objectives.  First and foremost, beyond an unadorned moral disapproval of homosexuals, Congress wanted to “defend marriage” against state policy innovations it disliked. It wanted to put its heavy thumb — including its considerable regulatory authority and mighty financial weight — on the side of defining marriage as it thinks best, helping states that agree and discouraging states that don’t.  But the federal government has no legitimate interest in defending marriage in toto. It’s the role of the states to define marriage, subject only to constitutional constraints on their power. Congress may have specific interests in recognizing only certain state-granted marriages for limited federal purposes, like preventing marriages fraudulently entered in order to evade immigration laws. But the states, and only the states, create and license marriages.

Congress may assert other related interests, like promoting uniformity in federal treatment of marriage. But in our history, uniformity in the recognition of marriage has never been a federal end unto itself. The only uniformity Congress has promoted in recognizing relationships is a uniform acceptance of state-law marital status. The baseline in the field of marriage is state, not federal, choice. The analysis of benefits and burdens on state choices must start with a State-choice baseline.  When Congress doesn’t take that baseline as the starting point for its legislation, but instead starts with its own blunderbuss definition, it discourages state choice. It must give more particular justifications than, “we want a uniform application of the federal understanding of marriage.”  If a future Congress controlled by gay-rights advocates decided that the federal government henceforth would only recognize marriages from states that enacted marriage equality, thus stripping opposite-sex couples of federal marriage rights in non-equality states but not in marriage-equality states, would a chorus of federalism deniers be heard to say that Congress was simply defining its programs with no impact either way on state choices in the matter?

Well, how about a federal interest in promoting “responsible procreation”?  I suppose one might think that having well-reared citizens is necessary and proper to keeping the postal roads paved, or to raising a good army and navy.  But saying that Congress may fully regulate matters of family law in order to produce better citizens would end limits on federal power in this historic state realm because “the aggregate effect of marriage, divorce, and childrearing” on the nation’s prosperity and defense ”is undoubtedly significant.”  United States v. Morrison (2000).

The point here is that federalism offers us answers to some equal protection problems when the federal government regulates citizens. Some asserted federal interests simply aren’t within the scope of legitimate federal concerns.  Such interests might justify State legislation but can’t be used to justify a federal classification, no matter what level of scrutiny the Court applies in its equal protection analysis.

(3) The animus problem. At oral argument, Justice Kagan pointed out that given our respect for State control over the law of family relations, and especially the tradition of accepting state definitions of marriage as determined by the States, DOMA is an unusual exercise of federal power.  There is little or no historical precedent for an across-the-board national definition of marriage.  A departure from customary practice can signal impermissible discrimination.  Arlington Heights v. Metropolitan Housing Corp. (1977) (“The historical background of the decision [including substantive departures from normal decisionmaking] is one evidentiary source ... of official actions taken for invidious purposes.”)  That alone might raise the suspicion that it is based on impermissible animus, or as one might put it more gently, a casual and thoughtless disregard for the interests of an entire class of citizens.  Federalist practice can inform the analysis about whether the federal government has acted on an impermissible interest in isolating a group of citizens, making them strangers to the law, and even, formally, strangers to each other. Classifications of an unusual character in the structure of our federal system should increase our alertness to the possibility that invidious discrimination is afoot.  No suspect-classification designation need be adopted to conclude that such a law denies citizens the equal protection of the law.

So here, too, the equal protection analysis and the federalism analysis are linked, as the federalism amicus brief argues.  The Court could base its decision on equal protection principles informed partly by federalist practice and constitutional structure.  Or it could base its decision squarely on federalism and limited-powers grounds without direct reliance on equal protection.  The doctrines reinforce each other.  And they bolster the conclusion that DOMA is unconstitutional.

Over the past few days, the Court has been treated to an avalanche of briefs submitted by law professors, professional associations, prominent Republicans, and even football players arguing that California’s Proposition 8 and Section 3 of the Defense of Marriage Act are unconstitutional.  Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy Barnett, and Ilya Somin — as well as Ernie Young and Lynn Baker in filing an amicus brief in United States v. Windsor arguing that DOMA Section 3 is unconstitutional. While this conclusion is shared by 69% of constitutional law professors around the country, our route to that end is probably not as widely shared.

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status.  While Congress has not (yet?) claimed a statutory authority to bar states from recognizing specific marriages, it has greatly complicated and burdened their police power to do so through the enforcement of DOMA. It may well be that Congress has authority to limit access to specific federal benefits otherwise available to validly married people.  But Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any “legitimate” interest of the federal government.  The federal govt can have no legitimate interest in regulating beyond its enumerated (and necessarily and properly implied) powers.  If DOMA Section 3 does not serve any legitimate interest — indeed, if a sweeping federal determination of marital status is constitutionally prohibited — then Section 3 cannot be justified under any level of scrutiny that might apply under equal-protection principles.  As we express it in the summary of the argument:

Before this Court addresses whether DOMA denies equal protection of the laws, there is a prior question of federal power. This question is prior not only because DOMA cannot stand if it falls outside Congress’s authority but also because DOMA can only survive an equal-protection challenge if it serves federal interests within Congress’s legislative jurisdiction. As Chief Justice Marshall recognized in McCulloch v. Maryland, only ends “within the scope of the constitution” are “legitimate.” 17 U.S. (4 Wheat.) 316, 421 (1819). That is true regardless of the level of scrutiny that this Court applies to Ms. Windsor’s equal-protection claim.

DOMA falls outside Congress’s powers. Marriage is not commercial activity, and DOMA is not limited to federal-benefit programs that might rest on the Spending Clause. Any action by Congress that falls outside its specifically enumerated powers must be justified under the Necessary and Proper Clause, and DOMA cannot pass that test. DOMA’s definition of marriage is not “incidental” to an enumerated power, see Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2591 (2012), because—as the Bipartisan Legal Advisory Group has said—its purpose is to make social policy regarding domestic relations rather than “carry into execution” some federal enumerated power. DOMA’s definition is also not “plainly adapted” to an enumerated end, see McCulloch, 17 U.S. (4 Wheat.) at 421, because it applies to more than 1100 federal statutes at once. Congress has never even considered how defining marriage to exclude same-sex couples will affect most of these statutory regimes, and BLAG does not defend DOMA in those terms. Finally, DOMA’s definition is not “proper,” see Printz v. United States, 521 U.S. 898, 923-24 (1997), because it violates the States’ equal sovereignty and lacks a limiting principle to cabin its usurpation of state control over domestic relations.

“[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.” Sherrer v. Sherrer, 334 U.S. 343, 354 (1948). DOMA represents an unprecedented intrusion into this domain. That is true even though Congress has enacted statutes, such as for cross-border enforcement of child-custody and support orders, within the sphere of domestic relations. Our claim is not that family law is an exclusive field of state authority, but rather that certain powers within that field—such as the power to define the basic status relationships of parent, child, and spouse—are reserved to the States.

Congress’s establishment of a competing federal definition of family undermines the States’ sovereign authority to define, regulate, and support family relationships. Federal law is massively intertwined with state law, and state officials implement many federal programs, like Medicaid, in parallel with their own legal regimes. DOMA thus wreaks confusion and imposes substantial administrative costs that undermine States’ attempts to define marriage for themselves. These contradictory legal regimes impose costs on individuals as well, who cannot rely on a single body of law to settle their domestic status or hold a single set of officials politically accountable.

DOMA’s appropriation of the power to define marriage cannot be justified as simply defining a term relevant to administering federal programs. The statute is not called the “Defense of Marriage Act” for nothing: Congress did not act, say, to make ERISA function more smoothly, but rather because it wished to establish and promote a national definition of marriage to compete with States’ changing definitions. BLAG’s argument in defense of DOMA could not be clearer on this point. It asserts that “the federal government has the same latitude as the states to adopt its own definition of marriage for federal-law purposes.” Br. 19.

BLAG is wrong. The legitimacy of same-sex marriage is a difficult and divisive issue, yet it is one that our federalism has been addressing with considerable success. Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the States’ policy judgments as if it had the same authority to make domestic-relations law as they do. That is the difference between a government with a general police power and a government of limited and enumerated powers. And it is sufficient to decide this case.

While sounding in federalism principles, the argument is ultimately aimed at the equal protection analysis the Court is set to review.  It is an argument that there is, in fact, a federalism component in the equal protection principles made applicable to the federal government through the Fifth Amendment’s Due Process Clause.  It is thus different from the 10th Amendment decision by Judge Tauro of the Massachusetts District Court in a similar case challenging DOMA.  Our argument doesn’t rely on the 10th Amendment, but on limits on federal power that would exist even without that amendment.  We take no position in the brief on whether there is also a 10th Amendment problem with DOMA.

The argument is largely the brainchild of Ernie Young, who led the drafting effort, along with the superb attorneys Roy Englert, Carina Cuellar, and Erin Blondel at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP.  You can read the entire brief here.

At the Federalist Society’s Supreme Court blog, I offer some thoughts on the Second Circuit’s decision in Windsor v. United States, which held the Defense of Marriage Act unconstitutional.  The post concludes with a thought on what direction the Supreme Court might take when it confronts the constitutionality of DOMA:

Even if the Court is inclined to strike down the Defense of Marriage Act, it’s more likely the Court would do so in the more limited and incremental way suggested by the First Circuit than in the more ambitious way advanced by the Second Circuit. The federal-only rationale of the First Circuit focuses on what possible interest the federal government could have in denying equal treatment to a subset of married couples. It does not necessitate a ruling that state governments must equally recognize same- and opposite-sex couples as married. For a Court that wants to leave the marriage debate open in the states, but at the same time wants to ensure that the federal government does not inject itself into that debate with unusual discrimination, that may be a tempting option.

UPDATE:  Ed Whelan argues that the analysis of the First Circuit in Massachusetts v. Dep’t of HHS would also result in the invalidation of state laws confining marriage to opposite=sex couples.

In a 2-1 opinion by Chief Judge Dennis Jacobs, a conservative appointed by the first President Bush, the Second Circuit has joined the unanimous chorus of federal courts striking down Section 3 of the Defense of Marriage Act, which bars federal recognition of same-sex marriages legalized by individual states.  The dissenter was Judge Chester Straub, who was appointed by President Clinton.  Applying intermediate scrutiny to sexual-orientation classifications, the court held that Section 3 violates the Equal Protection Clause.  The decision comes as the Supreme Court is weighing whether to grant certiorari to determine the constitutionality of the Act.  I may have more to say after I’ve had a chance to read the opinion. 

HT: David Lat and Walter Olson.

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the same effect in deterring any future thoughts of congressionally-imposed mandates. (Putting aside the obvious exception for mandates that have a solid basis in the constitutional text, such as jury service.)

The enactment of the mandate has also significantly increased the probability that the next Supreme Court appointments will be made by a President and confirmed by a Senate which denounces the mandate as unconstitutional, and that the new Justices will be the kind who are inclined to vigorously enforce the many strong constitutional limits on congressional over-reaching which are articulated in NFIB v. Sebelius.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

The opinion is here.  The panel concluded that the Defense of Marriage Act, barring federal recognition of same-sex marriages, violates Equal Protection. On a quick reading, it appears the court applied “rational basis with bite” scrutiny based on the arguments that the exclusion (1) denied important federal rights and benefits to a small class of married couples, and (2) intruded on the historic role of the states in defining marriage.  None of the asserted congressional interests, like favoring families headed by biological parents, justified the discrimination in the statute since state law determined who could form such families through adoption and custody rules.  In what appears to be a novel approach, the First Circuit opinion combined the equal protection decisions of Romer, Moreno, and Cleburne, with some of the Court’s recent federalism decisions limiting the scope of federal power over the states.  The panel was careful to say that its decision did not invalidate state marriage laws excluding same-sex couples because, in part, only the Supreme Court could do so under its own precedent in Baker v. Nelson (summarily dismissing, for want of a substantial federal question, a challenge to Minnesota’s marriage law in 1971).  The panel’s opinion won’t be the last word on DOMA, to be sure.  The congressional Legal Advisory Group defending DOMA, headed by Paul Clement, has the option of seeking en banc review or heading straight to the Supreme Court.

In the ongoing search for a constitutionally minimal justification for Prop 8, Orin proposes a creative one – repudiating activist judges independent of the substantive merits of the amendment:

One rational reason to support a symbolic law like Prop 8 would be to issue a rebuke to the California Supreme Court that issued that decision, with the hope that such a public rebuke might influence the Court’s decisions in the future.  Different people will disagree on whether this argument is persuasive, but I think it satisfies the rational basis test.

To the extent this argument rests on the idea that Prop 8 inflicted only “symbolic” harm on same-sex couples, and thus is not not of constitutional concern, it is supported in the opinions of courts in states where same-sex civil unions are recognized but the designation of marriage is withheld.  The New Jersey Supreme Court’s opinion from 2006 would be one example.  As I wrote at the time, I disagree that the difference between “civil union” and “marriage” is purely semantic and unimportant – though that doesn’t by itself mean courts should require the state to grant the designation to same-sex couples.  Indeed, the fact that the word “marriage” is important and in more than a symbolic sense may be the one thing that SSM advocates and opponents agree upon.  Judge Reinhardt addressed the question at length in his opinion and other judges have convincingly, in my view, done the same.  I don’t want to rehash that argument here. At any rate, I don’t think Orin’s point about the judicial-discipline rationale depends on the idea that Prop 8 was a harmless withdrawal of some symbolic affirmation.  Under the rational-basis test, I suppose he’d say that even if some limited harm were collaterally imposed on same-sex couples the judicial-discipline rationale still survives judicial scrutiny.

The rational-basis test in Equal Protection doctrine and in other constitutional fields requires that a law (including a classification) be rationally related to a legitimate state interest. (When a classification affects fundamental interests, like voting, or discriminates on a suspect basis, like race, heightened scrutiny applies.) This ordinarily allows a poor fit between means and ends and accepts almost any governmental purpose as “legitimate.”

Assuming rational-basis review applies to Prop 8, there are two potential difficulties with a judicial-discipline rationale for it:

(1)  When a classification affects what the Court sometimes calls “personal” or private interests, like sex and family-living arrangements, the Court has applied a more aggressive scrutiny while sometimes calling it rational-basis review.  Think of the denial of food-stamp assistance specifically to “hippie communes” even though food stamps are not required benefits (Moore v. City of East Cleveland).  Think of the decision in Lawrence v. Texas, which some people regard as a rational-basis case and which invalidated a state sodomy law although there were some really thin public-health justifications for such laws.  Also, when a classification targets a group that has been subjected to widespread unreasoning prejudice, but nevertheless has not been given the extraordinary judicial protection of suspect-class status, the Court has similarly applied a heightened form of rational-basis scrutiny. Think, for example, of a law that strips all specific civil rights protections from homosexuals in order, inter alia, to conserve state enforcement resources to end discrimination that matters more or to protect the associational liberty of landlords.  (Romer v. Evans)  Or consider a city zoning restriction that forbids facilities for the mentally retarded (while allowing fraternity houses in the same neighborhood) on the asserted rational grounds that the home sits on a 500-year flood plain and that once every 500 years it will be harder to remove the residents for their own safety.  (Cleburne v. Cleburne Living Center).

Based on the Court’s precedents, Prop 8 is a candidate for something more than ordinary rational-basis review both because it classifies in the personal area of family life and because it targets a class of people long subjected to unreasoning prejudice and opprobrium. If that’s right, a court might well reject a judicial-discipline rationale on the grounds that it is unusually likely to be a cover for animus against the group or because the fit between means and ends is almost arbitrary.  Why, we might ask, take out our generalized frustrations with judges on the families of gay couples rather than in any 100 other cases or ways we might express this frustration?  To say that their interests don’t carry much weight in a campaign against judges, that they are acceptable collateral casualties in a larger cause, feeds the conclusion that the political process is infected with at least a casual disregard of them.

(2)  Even if we applied the customarily weak form of rational-basis review there would still be room to reject a  generic judicial-discipline rationale.  In the field of economic regulation, for example, rational-basis scrutiny has been applied in about the most flaccid way imaginable. Indeed, it has been so forgiving — finding just about any objective “legitimate” and any means “rationally” related — that it’s a wonder we bother repeating the mantra. It would be more honest, perhaps, if courts simply said, “Once we determine that the state is regulating an economic matter, in the way we understand what counts as an economic matter, the law will be deemed constitutional.  Full stop.”

Using the version of rational basis that applies to economic regulations and classifications, suppose a state supreme court invalidated a state health-insurance mandate by finding some right (say, substantive liberty, property, or contract protection) in the state constitution that is infringed by a health-insurance mandate. Then suppose the people, using the initiative process, passed a constitutional amendment overruling the decision and imposing health-insurance mandates on consumers of health care.  What would be the rational basis for such an amendment?  Two candidates are offered: (1) Health-care rationale:  The amendment is constitutional under the federal constitution because health-insurance mandates are rationally related to the legitimate objectives of controlling health-care costs and providing universal coverage. (2) Judicial-discipline rationale: The amendment is constitutional because, no matter whether health-insurance mandates are rationally related to the interests in cutting costs and providing coverage (indeed, even if they aren’t), it is rationally related to the people’s interest in showing judges who’s the boss.

Then suppose a group of liberty-loving citizens sue in federal court to have the amendment invalidated because it violates fundamental liberty rights of the kind endorsed by the state supreme court and because it is not even rationally related to any legitimate objective.  Leave aside the fundamental-rights argument for our purposes. Under traditional rational-basis scrutiny applied to economic regulations, the constitutional challenge to the health-care rationale is surely a loser. It might be debatable whether insurance mandates are a good idea, but the whole thrust of rational-basis review is to leave rationally debatable propositions to the political process.

The challenge to the judicial-discipline rationale would be more interesting.  Even under the traditional application of the rational-basis test to economic regulations, the legitimate objective and the means used to achieve it cannot be a complete mismatch.  The relationship cannot be arbitrary.  A legislature presumably could not, consistent with this approach, determine that banning the consumption of orange juice is rationally related to the state’s legitimate interest in preventing lung cancer caused by smoking cigarettes.  It’s not that banning the consumption of orange juice is an irrational means to any conceivable legitimate state interest, like say, promoting the apple-juice industry. And it’s not that reducing the incidence of lung cancer caused by smoking is an illegitimate objective.  It’s that the one has no relationship to the other.

So how would the judicial-discipline rationale fare in an economic case, like the challenge to the amendment imposing a health-insurance mandate? It’s not that rebuking or restraining judges can never be a legitimate objective of the voters or the legislature. Voters could, for example, use what Orin calls a Rose Bird strategy: recalling the judge or refusing to retain her in an election. And it’s not that the means of reversing a judicial decision can’t be a rational way of imposing a preferred policy, like say, mandating that everyone carry health insurance. It’s that achieving the legitimate objective of restraining judges by means that have no independent rational basis looks like a mismatch between ends and means. It’s not quite as arbitrary as comparing apples and oranges, because the voters have chosen something as an expression of their anger.

But unless we believe that the health-insurance mandate has an independent rational basis on its own merits – say, the health-policy rationale — then we really are saying that the rational-basis test is nothing but a splendid bauble. Voters and legislatures would have an automatic rational basis for anything they do, regardless of whether the substance of what they do has any rational justification. It can always be said that the state has acted to rein in the judges for a decision they’ve already made. And under that view, why couldn’t the voters issue a preemptive rebuke to the judiciary, anticipating a possible judicial decision in the future, even though the policy codifying the rebuke is irrational on its own terms?  The judicial-discipline rationale is the justification that swallowed the analysis.  X can impose harm on Y, in symbolism or substance, simply to punish Z.  If that’s right, it would be more candid to give up the pretense and just say that in any case where rational-basis review applies, there will be no review at all.

There’s plenty to like about a strong presumption of constitutionality in most areas of public policy, and plenty of room for debate about what that “most” should and shouldn’t cover.  But I can’t see much to like about an irrebuttable presumption of constitutionality. And whatever the merits of eliminating even minimal judicial review of almost all public policy, it is not an inescapable conclusion from the rational-basis precedents.

UPDATE: It occurs to me that the judicial-discipline rational might be more defensible if it has a sharper focus: it could be said that, whatever their views on the merits of the issue (like same-sex marriage), voters and legislators have a particular concern about judicial activism on that issue.  In other words, they haven’t banned gay marriage because they have a generalized anger about judicial activism (which really does seem to pick on homosexuals in a random way), but because they have a particularized concern about judicial activism on this very question of same-sex marriage.  This seems to me a stronger form of the judicial-discipline rationale because it is more directly linked to the amendment.

I see three continuing problems, however. One is that this more particularized judicial-discipline rationale starts to bleed into a substantive, merits-based justification. Why do voters and legislators think judicial activism in the area of same-sex marriage as opposed to judicial activism in many other areas must be reversed by an extraordinary action? That must have something to do with the merits of the issue. That leads to a second concern, which is that in cases where souped-up rational-basis scrutiny applies (Moreno, Cleburne, Romer, Lawrence), there is greater concern that neutral-sounding justifications (like the 500-year flood plain or saving food-stamp money) are simply a pretext for constitutionally impermissible animus or unadorned ”moral disapproval.” Third, even under the most forgiving form of rational-basis review this more particularized judicial-discipline justification still provides an almost automatic and unreviewable self-justification for everything the legislature or voters do. Every reaction to a decision, or even preemptive action on the issue, could be said to reflect a particular popular concern with judicial activism on that very issue.  Who could say otherwise, unless the rational-basis standard really demands minimal reasons that go to the merits of the issue itself?