The Volokh Conspiracy

In a recent post, co-blogger Orin Kerr writes that “few people have the same instinctive reaction to both [the affirmative action and gay marriage] cases” that the Supreme Court is likely to decide in the next few months. He means that few people want the Court to invalidate both affirmative programs and state and federal laws banning same-sex marriage.

Depending on the definition of “few,” Orin may well be right. But it’s important to note that people who oppose racial preferences in college admissions (the issue the Court will consider in Fisher v. University of Texas), while supporting gay marriage are far from unusual. Recent polls show that about 50% of Americans support gay marriage, while many surveys indicate that some 60 to 70 percent of the public oppose racial preferences in college admissions (e.g. here and here). Even if we assume that some 80 to 90% of the 50% who do not support gay marriage also oppose affirmative action in admissions, that still means that about 15 to 20 percent of the public simultaneously opposes racial preferences and supports gay marriage.

And this position is likely to become more common, since support for gay marriage among moderates and conservatives is rapidly growing, while opposition to racial preferences remains fairly stable. A May 2012 Gallup poll found that 57% of independents and 22% of Republicans support gay marriage, and these percentages are likely to increase, since support for gay marriage is inversely correlated with age. The combination of support for gay marriage and opposition to affirmative action is probably also the most common view among the 10 to 15 percent of the public who are generally libertarian in orientation.

Opposition to affirmative action and laws banning gay marriage on policy grounds is not the same thing as believing that the two are unconstitutional. But, as Orin notes, the two are highly correlated. And, for what it is worth, my own reaction to the two cases is indeed that the Court should strike down the Texas affirmative program (though without ruling that all affirmative action programs are unconstitutional), while also ruling that gay marriage bans are unconstitutional because they discriminate on the basis of sex.

UPDATE: It’s also worth noting that the opposite combination of views – supporting affirmative action, while opposing gay marriage – is also not uncommon, at least among African-Americans. Blacks have long been more opposed to gay marriage than whites, though recent Pew survey data suggests that may have changed in recent months. Still, even the most recent poll cited by Pew shows 39% of African-Americans opposing gay marriage. By contrast, African-Americans overwhelmingly support affirmative action in admissions. That means there is a substantial number of blacks who support affirmative action while opposing gay marriage, a number that used to be much larger until very recently.

Opponents of same-sex marriage are trying to get the Court to review their recent win against SSM in the district court in Nevada, skipping any consideration of the case in the Ninth Circuit.  In their petition for certiorari before judgment, they argue:

Of the “marriage” cases now before this Court, this case is optimal for resolving the fundamental issue for several reasons. This case is the only one that cannot be resolved without answering the fundamental issue. Further, this case has developed most comprehensively and thoroughly the societal interests justifying preservation of marriage’s man-woman meaning; the record here will thus be most helpful in judicial review. Moreover, important collateral issues that may be the basis for resolving the other pending marriage cases will be more prudently and intelligently answered after this Court resolves the fundamental issue. Finally, this case is free of standing issues.

I expect the petition to be denied for at least three reasons.  First, granting review before judgment is an exceedingly rare act reserved for the most compelling circumstances. Second, unlike the pending petitions in the Prop 8 case and in the Defense of Marriage Act cases, the decision below in the Nevada district court upheld the state marriage limitation. And finally, the fact that the Nevada case presents the “fundamental issue” of whether same-sex couples are constitutionally entitled to marry actually cuts against immediate review. The Court usually likes to move in a more minimalist fashion, reserving the largest issues for resolution after more development in the lower courts.  With the DOMA cases and the Prop 8 case, it can issue more cautious and theoretically less ambitious opinions to resolve those matters either way, leaving the underlying question of marriage for another time.

The effort by gay-marriage opponents to get the fundamental issue before the Court now is understandable strategically.  Gay-marriage opponents are now on a losing streak, both in courts and in elections.  Time is not on their side.  Delay is not their friend. The trend lines of public opinion are not pointing in their direction.  And President Obama’s reelection is unlikely to bring them new allies on the court.  The recent win in the Nevada district court, albeit in a remarkably rhetorical and shallow opinion, helps interrupt the narrative of inevitable victory for same-sex marriage around the country.  The Supreme Court is unlikely to accept arguments right now for the immediate nationwide imposition of same-sex marriage, a fact known by supporters and opponents alike. Witness the opposition of the Prop 8 litigation team to certiorari in the Perry case, a win limited on its face to California, which is well short of their initial stated goal to bring SSM to the whole country via their lawsuit. The Perry team can count votes on the Court and the votes aren’t there for a nationally applicable pro-SSM ruling.  But SSM opponents can count votes, too.  And that’s precisely why they would like the “fundamental issue” decided now, with the current justices as the deciders.

The Mexican Supreme Court ruled today that excluding same-sex couples from marriage is unconstitutionally discriminatory.  This follows a 2010 pro-SSM ruling that applied only to Mexico City.  It’s unclear how broadly this new ruling will apply beyond the Mexican state of Oaxaca, but the news story suggests that individual suits brought in other states will gradually bring same-sex marriage to those jurisdictions.

In Uruguay, the lower house in the national assembly appears poised to approve a bill on Monday that would define marriage as “the union of two parties, regardless of gender identity or sexual orientation thereof at the same terms with the same effects established in the Civil Code.”

Same-sex marriage licenses will begin to issue at midnight tonight in Washington State.  Marriage ceremonies will start on Sunday after the state’s obligatory three-day waiting period, which for many gay couples will follow a years-long waiting period.

SSM is now legal in Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, Sweden and Mexico (where same-sex marriages for now are allowed only in Mexico City but are recognized nationwide).  It’s also legal in nine U.S. states – Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington — and in Washington, D.C.

Tom Goldstein at SCOTUSBlog presents the matter succinctly:

At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage.  These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

I have never before seen cases that I believed would be discussed two hundred years from now.  Bush v. Gore and Obamacare were relative pipsqueaks.  The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound.  So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.

This week a divided panel of the U.S. Court of Appeals for the Second Circuit held that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional. Section 3 is the portion of DOMA barring federal recognition of same-sex marriages, even where recognized under state law. In this case, Windsor v. United States, the question was whether a surviving spouse could claim a the spousal deduction on her federal taxes. Although her state of domicile recognized her marriage, under DOMA the federal government cannot. The opinion was written by Chief Judge Dennis Jacobs, joined by Judge Christopher Droney. Judge Chester Straub dissented. As others have noted, it’s interesting that the majority was written by a very well-respected Bush (41) nominee, while a Clinton nominee dissented. Dale and Ilya also commented on the decision below.

As someone who supports gay marriage but is unpersuaded by the argument that recognition of same-sex marriage is constitutionally required, I found Judge Jacobs’ opinion was quite strong. It is quite narrow in that it focuses on the alleged federal interest in an exclusively federal definition of marriage, noting that while such interests are insufficient to justify Section 3 of DOMA, it is not necessarily also the case that states lack sufficient interests to maintain the traditional definition of marriage as between one man and one woman.

The key move in Judge Jacobs’ opinion is concluding that sexual orientation is a “quasi-suspect” class justifying intermediate scrutiny. This requires the federal government to show that its policy is substantially related to an important governmental interest. I am not sure existing precedent calls for such heightened scrutiny here, particularly as the Supreme Court in Romer and Lawrence avoided this step. Nonetheless Judge Jacobs makes a plausible case.

Once he’s taken this step, it is quite clear that the federal government is going to lose. While there is little question that DOMA would satisfy traditional rational basis scrutiny (as Judge Straub explains in dissent), it is hard to argue that the federal government has an important interest in refusing to recognize such marriages. Marriages, after all, are performed and legitimated under state law. Seeking uniformity in the federal definition of marriage or paying less in survivor benefits, and the like, are insufficient to justify intermediate scrutiny. (Indeed, due to the marriage penalty, it’s likely that federal recognition of same-sex marriages would actually increase federal tax revenues.) Insofar as the federal government appealed to other interests, such as encouraging a traditional definition of marriage or “responsible procreation,” it’s hard to see how such concerns are the province of the federal government, rather than the states.

If Section 3 of DOMA is unconstitutional, this does not necessarily mean that state laws barring recognition of same-sex marriages are equally suspect. State governments arguably have interests in the definition of marriage greater than those of the federal government. Family law is the traditional province of state governments and the sorts of interests that can be claimed, such as encouraging traditional family structures for purposes of child-rearing, are more important to state governments than to the federal government. As a policy matter I find such arguments unconvincing, and I support state recognition of same-sex marriage, but it’s not clear to me such interests are necessarily insufficient to justify state policies that prefer traditional family structures.

As a final note, I think Judge Jacobs’ opinion makes it more likely that the Supreme Court will strike down Section 3 of DOMA when this issue finally comes before the Court. Indeed, the opinion provides a roadmap for a fairly minimalist holding against DOMA of the sort the current court might embrace.

Today’s Second Circuit decision striking down a part of the Defense of Marriage Act holds that laws discriminating on the basis of sexual orientation are subject to heightened “intermediate” scrutiny.

But it is not clear that DOMA actually discriminates on the basis of sexual orientation, as opposed to gender. As I explained in the context of state laws banning same-sex marriage, these policies actually restrict marriage based on gender, not orientation:

Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because he is a man. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination.

By contrast, sexual orientation actually has no effect on the way the law operates. Anne is still allowed to marry Colin, even if one of them happens to be gay or lesbian. Bob is denied that right regardless of his sexual orientation. There are actually lots of real world cases where gays or lesbians have entered into opposite-sex marriages, such as the famous example of former New Jersey Governor James McGreevey, a closeted gay man who was married to a woman for many years. McGreevey’s marriage was not illegal, even if his actions were morally dubious.

This point applies to DOMA as well. DOMA does not distinguish between marriages based on the sexual orientation of the partners. If Anne, a lesbian, is legally married under state law to Bob, a gay man, they will qualify as married under DOMA. By contrast, if two straight men enter into a same-sex marriage permitted by state law (perhaps for the purpose of qualifying for some state government benefit), DOMA forbids federal recognition of their marriage regardless of their orientation.

Obviously, both DOMA and state laws banning gay marriage do discriminate against gays and lesbians in the sense that homophobia is a major part of the motivation behind their enactment. Facially neutral laws that have the intended effect of disadvantaging a particular racial group or gender have often been invalidated by the courts. Perhaps facially neutral laws intended to disadvantage gays and lesbians should be treated the same way. But such rulings require the plaintiff to provide substantial evidence showing that the law was enacted because of hostility towards the group in question. The Second Circuit did not conduct any analysis of the motives behind DOMA. And that analysis may not be easy, given that DOMA had very broad support when enacted in 1996, including from numerous liberal Democratic members of Congress who were probably not motivated by homophobia (though they may have been catering to the prejudices of some of their constituents). Democrats voted for the law by a 118-65 margin in the House of Representatives and 32-14 in the Senate, and President Bill Clinton also supported it. It’s likely that DOMA would not have been enacted in the absence of widespread homophobic prejudice. But it may not be an easy thing to prove in court. Yet that is the relevant legal standard if facially neutral laws that allegedly discriminate on the basis of sexual orientation are going to be treated the same way as facially neutral laws that are challenged on the grounds that they discriminate on the basis of race or sex. If the facially neutral law would not have been enacted without a discriminatory motive, then it will be invalidated unless it passes the same level of heightened scrutiny as a law that explicitly discriminates on the basis of race or sex.

By contrast, as I argued here, striking down DOMA and bans on gay marriage because they discriminate on the basis of sex is much easier. Since the sex discrimination is right there on the face of the statute, there is no need for an inquiry into motive.

Sex discrimination and sexual orientation discrimination are not mutually exclusive categories. DOMA explicitly discriminates on the basis of sex, and it may well not have passed but for a widespread desire to discriminate against gays and lesbians. But it seems to me that the former is much easier to demonstrate in court than the latter.

UPDATE: In the original version of this post, I accidentally wrote that Democratic members of the House of Representatives voted for DOMA by a 188-65 margin when the law was passed in 1996. The correct figure was 118-65. I regret the mistake, which I have now corrected.

Perhaps the best most effective argument opponents of gay marriage (which I support) have [which, I've since read, is the focus of their current campaign in Maine] is that once gay marriage becomes institutionalized, people who still oppose it for religious and other reasons will be treated as pariahs and, even worse, will be treated as scofflaws who violate inevitable new antidiscrimination norms (and, more important, laws). With that in mind, stories like this don’t help the cause: “The chief diversity officer at Gallaudet University has been placed on paid leave after she signed a petition to put a gay marriage referendum on the ballot in Maryland.... Gallaudet President T. Alan Hurwitz says McCaskill “participated in a legislative initiative that some feel is inappropriate” for someone in her position.”

UPDATE: Putting aside the issue of whether one thinks people like McCaskill should be treated as pariahs and eventually be subject to penalties for violating antidiscrimination laws (like the wedding photographer in New Mexico who didn’t want to cover a gay wedding), it’s unhelpful. The vast majority of supporters of gay marriage over age forty were once against it; telling them that they weren’t just wrong but evil isn’t helpful. Nor is it helpful for attracting the “swing vote,” the 20% of so of Americans who support civil unions but not gay marriage. And finally, given that an important argument for gay marriage sounds in tolerance, it helps when its proponents show the same.

Some commenters are making the argument that as a “diversity” officer, McCaskill needs to meet an ideological litmus test. I think there are some circumstances where people’s expressed views can interfere with their jobs, but it’s not at all clear to me that this is one of them, especially given that (a) all McCaskill did was sign a ballot initiative petition; (b) there is no inherent connection between signing the petition and not providing support for gay students at Gaulludet–it would be different if she made anti-gay public remarks; and (c) “diversity” at Gaulludet could certainly be deemed to include support for those with minority religious/political sentiments at what I take it is a very left-wing campus. Is Gaulludet not sending a message that students and faculty with traditional religious views are not welcome, or at least are only welcome if they keep their positions well to themselves?

Further UPDATE: My friend Walter Olson, who has been very active in supporting same-sex marriage in Maryland, has a similar perspective. And he quotes a press release from Marylanders for Marriage Equality: “We strongly disagree with the decision to put the chief diversity officer on leave and hope she is reinstated immediately. Everyone is entitled to free speech and to their own opinion about Question 6, which is about treating everyone fairly and equally under the law.”

And, an interesting biographical detail about McCaskill: she was the first deaf African-American woman to received a Ph.D. from Gallaudet.

One More UPDATE: “McCaskill’s decision to sign the petition came as a shock to the school’s LGBT students because she was a strong supporter of the school’s Lesbian, Gay, Bisexual, Transgender, Queer, and Ally (LGBTQA) Resource Center, which opened on National Coming Out day on Oct. 11, 2011.” So it doesn’t look like her (presumed) position on gay marriage reflects an animus toward gays, or interfered with her ability to do her job.

On Monday, September 10, during the lunch hour, I’ll be presenting “The Conservative Case for Gay Marriage” at the Notre Dame Federalist Society.  Professor John Finnis will respond.

University of St. Thomas Law Professor Robert Delahunty argues in this morning’s Minneapolis Star Tribune that “whenever the law expands the freedoms of one person or group, it necessarily contracts those of another.” Thus, he asserts that if gay couples are granted the freedom to marry, gay-marriage opponents will lose the freedom to live in a world without gay marriage — or, as he puts it, a world in which “marriage has a particular meaning” relating to “natural reproduction and family life.”

As another example of a “tradeoff” in human liberty, Delahunty cites slavery.

Of course, some tradeoffs are desirable. No one now regrets that the constitutional amendment banning slavery necessarily ended the freedom to own slaves. But it is not an argument for that amendment that it expanded freedom without contracting it. It did both.

So slaveowners lost what Delahunty calls a “freedom” — “the freedom to own slaves” — when they were forced to live in a world where they could no longer own slaves. It’s just that slaves gained more freedom from their freedom than slaveholders lost from losing the freedom to own other people.

In Minnesota, pro- and anti-gay marriage activists are fighting over political campaign disclosure laws, though this time the usual roles are reversed. On August 17, the Minnesota Campaign Finance and Public Disclosure Board ruled that the group working to defeat a constitutional amendment banning gay marriage does not have to disclose the name of a Catholic contributor to the “No” campaign.   ”John Doe,” who works for a Catholic organization in Minnesota, gave $600 to Minnesotans United for All Families, the main group opposing the amendment.  (I serve as Treasurer of the group.)  He told the Board that he feared the Church would fire him if it knew he made the donation.  Under state law, he was entitled to exemption from itemized disclosure of his donation by Minnesotans United if he could demonstrate that he faced ”loss of employment or other specified harms.” The Board determined he met that statutory standard. But supporters of the amendment, who have long claimed a need to shield the identity of their own donors, are saying that protection from harassment, intimidation, and retribution arising from amendment contributions should be a one-way street protecting only them.

The background to the Board’s decision provides some context for why John Doe sought anonymity.  In May 2011, the Minnesota legislature placed a constitutional amendment on the November 2012 ballot limiting marriage to opposite-sex couples. The Catholic Church hierarchy in Minnesota, led by Archbishop John Nienstedt of Minneapolis and St. Paul, has made passing the marriage ban a top priority.  So far, the Church has given more than $1 million to the “Yes” campaign, the largest donation on either side. But the Minnesota Church’s activism on the issue predates the campaign. In 2007, Nienstedt argued that those who “promote or encourage” homosexual acts cooperate in a ”grave evil” and are “guilty of mortal sin.”  In 2010, on the eve of statewide elections, Nienstedt advocated a constitutional gay marriage ban in DVDs distributed to 400,000 parishioners.  Last year, Nienstedt informed churches that he would brook no open disagreement with the Church’s support for the amendment. Speakers against the amendment have been “uninvited” from local churches when the hierarchy learned of their planned appearances. Earlier this year, Catholic  students were left in tears after approved speakers at a mandatory school assembly tore into gay marriage, comparing homosexual love to bestiality, according to a report in the Minneapolis Star Tribune.  Earlier this summer, Trish Cameron, a teacher at a Catholic school in Moorhead, Minnesota, was fired when she privately told her supervisors that she personally opposed the amendment, even though she did not promote her views in the classroom.

The Campaign Finance Board analyzed Doe’s request as follows (the full text of the decision can be found at the Board’s website under the tab, “Board Issues Order Regarding the Application of John Doe for an Exemption from Disclosure. “):

 The Board granted Mr. Doe’s request for an anonymous and confidential proceeding because it concluded that publication of Mr. Doe’s application, even if under a pseudonym, would expose Mr. Doe to the loss of his employment. For the same reason, this Analysis and Order are issued in terms intended to protect Mr. Doe’s confidentiality so that this document, itself, will not expose Mr. Doe to the loss of his employment. . . .

Mr. Doe is employed by a Catholic organization in a position where he may, from time to time, be required to represent the organization’s policies to the public and to other organizations. Mr. Doe has strong opinions regarding the pending marriage amendment ballot question. Mr. Doe’s opinions are in contrast to the official position of the Catholic Church in Minnesota, which is one of the main supporters of the amendment.

Mr. Doe’s job does not require him to advocate for or against the marriage amendment. Nor does Mr. Doe argue that he is entitled to an exemption solely because he is employed by a Catholic organization. Instead, Mr. Doe argues that because his job requires him to represent the Catholic organization’s policies to others from time to time, if his opposition to the marriage amendment was known, it would cause immense strain in his working relationships. Mr. Doe believes that this strain may be enough that his employment would be terminated....

Mr. Doe believes that Ms. Cameron’s situation provides evidence in support of his position. Mr. Doe points out that Ms. Cameron acknowledged her opposition to the marriage amendment only in private, yet her employment was terminated as a result. On the other hand, Mr. Doe, who sometimes represents a Catholic organization regarding policy, made a $600 contribution to an association diametrically opposed to the Catholic Church’s position on the same issue. Mr. Doe believes that the Catholic Church’s actions with respect to Ms. Cameron provide clear and convincing evidence that public disclosure of his opposition to the marriage amendment would expose him to the loss of his employment.

Minnesota Statutes section 10A.20, subdivision 8, requires an applicant to demonstrate by clear and convincing evidence that an exemption from itemized disclosure is needed to protect the applicant from exposure to the loss of employment or other specified harms. In this matter, the Board concludes that this requirement has been met.

In reaction to the decision, the “Yes” campaign dismissed the idea that gay-marriage supporters might need the same kind of anonymity that gay-marriage opponents have long claimed they needed.  Chuck Darrell, the spokesperson for the “Yes” campaign, told the Star Tribune: “[The] history of donor harassment on the marriage issue overwhelmingly shows that it is only the donors to traditional marriage who are harassed.” The anti-gay marriage campaign also criticized protection for the Catholic donor on its Facebook page on August 22.  The Yes campaign has effectively shielded the identity of most of its individual supporters by funneling their contributions through anti-gay marriage organizations like the Catholic Church, the Minnesota Family Council, and the National Organization for Marriage (NOM) — which then make bulk organizational contributions to the Yes campaign.  Under Minnesota campaign finance rules, these groups do not have to list individual donors in these circumstances.  NOM has gone to great lengths in other states to protect its donor lists.  So far there has been no word from the Catholic Church itself or from NOM about whether Doe should be able to have his identity protected.

In Hawaii, gay couples may enter civil unions with all the state-based rights and legal protections of marriage, but without the official designation of being “married.”  Same-sex couples sued to have the status of marriage, urging that they had a fundamental right to marry under the Due Process Clause and that the state could not discriminate against them under the Equal Protection Clause.  Last week, a federal district court in Hawaii denied their claims.  In a lengthy opinion in Jackson v. Abercrombie, Judge Alan C. Kay rejected the lawsuit on the grounds that he had no choice to do otherwise under binding Supreme Court precedent and that, even if he did, the plaintiffs’ claims failed on the merits.  The judge argued that the Ninth Circuit’s decision striking down Prop 8 in Perry v. Brown was distinguishable because, as Judge Reinhardt ruled, the Perry case involved only the narrow circumstances where a state has granted marriage to same-sex couples and then taken it away.  Hawaii, on the other hand, is a state where couples never had the right to marry.

Judge Kay, who was appointed by President Reagan, opened his opinion with the familar admonition that courts must restrain themselves when ruling on constitutional issues. He first concluded that the whole constitutional question of same-sex marriage was actually decided in 1971 by the Supreme Court in a memorandum opinion in Baker v. Nelson.   That case involved an appeal from a Minnesota Supreme Court decision — the first in American history – rejecting a claim for same-sex marriage.  The Court summarily dismissed the appeal “for want of a substantial federal question.”  Judge Kay argued that this constituted binding precedent on the lower federal courts in same-sex marriage cases and that he therefore had no power to accept the plaintiffs’ claims.  It’s an argument that’s been kicking around in the briefs of anti-gay marriage legal activists, including in the Perry litigation, but it has never gained traction. So much is different now about the law, the underlying arguments, and the legal status of gays that a single-sentence summary dismissal of same-sex marriage in 1971 isn’t controlling or very persuasive on the merits of modern cases.  Indeed, Judge Kay himself seemed not to have much faith in this tidy resolution.  He devoted the next 80 pages of his opinion to rebutting the plaintiffs’ claims on the merits.  That 80 pages is what some people would call dicta – judges judging matters not necessary to the judgment — and it strains one’s patience to read them from a court that has just delivered a paean to judicial restraint.  When the Supreme Court takes up the DOMA case and (likely) the Prop 8 case, it will pay little heed to Baker, no matter what it decides.

Judge Kay next opined that the unenumerated fundamental right to marry contained in the Due Process Clause does not include an unenumerated right of same-sex couples to marry.  He cited decisions in which the Supreme Court has described fundamental rights in very narrow terms (like Washington v. Glucksberg), but mostly ignored cases in which the Supreme Court described the claimed right in much broader terms.   These include the Supreme Court’s cases dealing with the marriage rights of deadbeat parents, prison inmates, and interracial couples.   States have historically restricted marriage in ways the Court would simply not tolerate today, whether or not we could decorate the arguments with talk of history and tradition.  Kay’s conclusion that there is no fundamental right to marry a person of the same sex is not indefensible, but it needs more defense than he gave it.

He also held that only rational-basis scrutiny applied under the Equal Protection Clause. As has been true for almost every court considering a gay-marriage claim, Judge Kay rejected the notion that marriage statutes discriminate on the basis of sex.  And he invoked controlling circuit precedent for the conclusion that sexual-orientation discrimination does not warrant heightened scrutiny.

Judge Kay then listed Hawaii’s rational reasons to exclude gay couples from marriage: promoting heterosexual marriage, fostering the best environment for raising kids, and proceeding cautiously with social change. These arguments tread well-worn ground and I won’t go further into them here.  One gets a sufficient taste for Judge Kay’s views on gay marriage in this sentence:  ”If the traditional institution of marriage is to be restructured, as sought by plaintiffs, it should be done by a democratically-elected legislature or the people through a constitutional amendment, not through judicial legislation that would inappropriately preempt democratic deliberation regarding whether or not to authorize same-sex marriage.” For Kay, adding perhaps 3% more to the pile of existing marriages and second and third marriages and blended heterosexual families created by divorce, adoption, surrogacy, and donor insemination, amounts to restructuring the untouchable ”institution” of “traditional” marriage.  A judge who believes that is unlikely to accept any argument –political, moral, or legal – for same-sex marriage.  It’s on to other courts, legislatures, and ballots.

Over the past few years, David Blankenhorn has been a leading intellectual opponent of same-sex marriage. In 2007, he published The Future of Marriage, which in my view is the most persuasive book opposing it.  In 2009 he was the leading testifier in favor of Prop 8 in the Perry litigation.  His view was never grounded in anti-gay attitudes, however. It was consistently expressed as a desire to support marriage, a legal status and social practice that does indeed serve the important social interest of keeping mothers and fathers together to raise their children.  David was concerned that marriage for same-sex couples might dilute this core purpose and re-orient marriage toward merely satisfying adult desires for love and companionship.

Today, in an important op-ed in The New York Times, Blankenhorn announced that he now supports same-sex marriage, although not without reservation:

I opposed gay marriage believing that children have the right, insofar as society makes it possible, to know and to be cared for by the two parents who brought them into this world. . . .  No same-sex couple, married or not, can ever under any circumstances combine biological, social and legal parenthood into one bond. For this and other reasons, gay marriage has become a significant contributor to marriage’s continuing deinstitutionalization, by which I mean marriage’s steady transformation in both law and custom from a structured institution with clear public purposes to the state’s licensing of private relationships that are privately defined.

I have written these things in my book and said them in my testimony, and I believe them today. I am not recanting any of it.

Yet he writes that “legally recognizing gay and lesbian couples and their children is a victory for basic fairness.”  Conciliation is more important than culture war on this issue, he argues. The fight to ban gay marriage has not, he acknowledges, helped marriage in any way.  And it’s clear that an emerging consensus supports marriage for committed same-sex couples.  Most disturbing to Blankenhorn is the underbelly of opposition to gay marriage, which was most recently exposed in several ugly episodes during the North Carolina vote to ban all recognition.  “[T']o my deep regret,” he writes, “much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus. To me, a Southerner by birth whose formative moral experience was the civil rights movement, this fact is profoundly disturbing.”

Blankenhorn’s is one of several recent conversions of public figures from opposition to support for same-sex marriage. These include President Obama, President Clinton, Gen. Colin Powell, David Frum, and the conservative social theorist Charles Murray.  (Indeed, in 2008 I organized a symposium at the South Texas College of Law for conservatives who supported and opposed gay marriage; two of the four anti-SSM participants, Frum and Murray, now support it.) The change in attitudes can be measured in other ways. Just today, to the delight of her parents, Vice President Cheney’s daughter, Mary, was married to her partner.

It’s not easy to disagree with people you count as allies. David will gain new friends, but he is going to lose some old ones who will feel betrayed.  Even harder than disagreeing with your friends is doing so in public on an issue on which you have taken a very public stand. Deservedly or not, David’s public reputation has been defined in recent years by his opposition to same-sex marriage.  In fact, his career as a public intellectual and writer has been much richer and more comprehensive than that.  It can now turn to the questions he raised at the end of his op-ed:

Instead of fighting gay marriage, I’d like to help build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same. For example, once we accept gay marriage, might we also agree that marrying before having children is a vital cultural value that all of us should do more to embrace? Can we agree that, for all lovers who want their love to last, marriage is preferable to cohabitation? Can we discuss whether both gays and straight people should think twice before denying children born through artificial reproductive technology the right to know and be known by their biological parents?

To which David, this same-sex marriage supporter says yes, yes, and yes.

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.

Yesterday the President told ABC News that he believes same-sex couples should be able to get married. So far so good. He further told ABC that he believes this is an issue that should be left to the states which are “arriving at different conclusions at different times.” I have nothing to complain about here, as this is my position as well. I believe in recognition of same-sex marriage, but also believe that this is the sort of question entrusted to state governments under our constitutional system, and that, as with many questions of social policy about which I have strong preferences, different states are and should be free to come to different conclusions on the matter. I also believe that as more states elect to recognize gay marriage (particularly insofar as this is done by legislatures and ballot initiatives, rather than by courts) many of those who are currently uneasy with the idea of gay marriage will learn they have nothing to fear and opposition to gay marriage will slowly melt away.

The problem with the President’s position is that it cannot be reconciled with the Administration’s stance on the constitutionality of the Defense of Marriage Act. According to Attorney General Eric Holder, he and the President concluded that the constitutionality of legal distinctions based upon sexual preference cannot be defended. In their view, because DOMA precludes federal recognition of same-sex marriages, it violates the constitutional guarantee of equal protection under the Fifth Amendment. Further, according to Holder’s statement, they concluded that no “reasonable” constitutional argument could be made in DOMA’s defense. Yet if DOMA is unconstitutional under equal protection, which applies to the state and federal governments equally, then how could any state law barring recognition of same-sex marriages survive constitutional scrutiny? In other words, while the President says he believes that states should be allowed to reach “different conclusions at different times” on the question of same-sex marriage, the administration’s legal position is that a state’s refusal to treat opposite-sex and same-sex couples alike is unconstitutional. So while the President may say he’d like to leave this question to the states, that’s an option his administration has already taken off the table.

[NOTE: Edited the post to make clear that equal protectioon is guaranteed as against the federal government through the Fifth Amendment and as against the states through the 14th Amendment, but the standard is the same.]

UPDATE: Here’s the full ABC transcript, in which the President suggests he was also influenced by a concern that DOMA federalizes a traditional state concern. Lyle Denniston comments here, suggesting the President’s legal position does not threaten state laws. Calvin Massey disagrees here. Massey is right.

The official statements from the Justice Department do not raise any federalism concerns and rest the conclusion that DOMA is unconstitutional (and that no reasonable arguments may be made in its defense) on the basis that distinctions based on sexual preference are subject to intermediate scrutiny, that there are no important government interests in maintaining a traditional definition of marriage, and that animus may have contributed to DOMA’s passage. While there are other arguments that could challenge DOMA without threatening state laws (such as those suggested by Will Baude), the Adminsitration’s arguments, were they to prevail against DOMA, would be the death knell for state laws as well. If a federal law supported by Senators Biden, Dodd, Reid and Wellstone — and signed into law by President Clinton — were impermissibly tainted by anti-gay animus, it’s hard to see how state laws barring same-sex marriage would not be as well.

President Obama’s recent announcement that he supports gay marriage is yet another addition to the short but distinguished list of issues on which the President and I agree.

Previous entries include creating a playoff system for college football, allowing gays and lesbians to serve openly in the military, ending the home mortgage interest deduction for high-income taxpayers (though I would go further and abolish the deduction for everyone), the president’s authority to forego defending federal statutes he believes to be unconstitutional, the legality of the targeted killing of Osama Bin Laden, the end of the NBA lockout, and that the Obama health care plan’s individual mandate is not a tax. Based on the above, it seems that the biggest areas of overlap between our worldviews are gay rights and sports. But the list is not completely exhaustive, since there are a few other issues where we also agree, but I don’t blog about them because they are too far outside my areas of interest and expertise.

UPDATE: A somewhat overwrought critique of this post takes me to task for supposedly being unaware of numerous largely noncontroversial things that Obama and I agree on, such as that genocide is evil or that Hitler and Stalin were great villains. I’m well aware of these areas of agreement, thank you. But this post was about issues on which Obama and I agree, which means questions that are controversial in modern American politics. The fact that Obama and I agree on many things on which there is an overwhelming national consensus isn’t relevant to that. We also agree that the Earth is round, and that the Sun rises in the East.