The Volokh Conspiracy

With Rhode Island and Delaware recently becoming the tenth and eleventh states to permit same-sex marriage and Minnesota likely to soon become the twelfth, now is a good time to reconsider the impact of judicial decisions requiring state recognition of gay marriage. The trend towards gay marriage began in 2003, with a Massachusetts Supreme Judicial Court decision holding that the state constitution required recognition of same-sex marriage. At first, nearly all the states that recognized gay marriage did so as a result of judicial decisions rather than legislation. In this way, it seems clear that the cause of gay marriage benefited greatly from judicial action.

Nonetheless, scholars such as Gerald Rosenberg and Jeff Rosen argued that such litigation harmed the cause of gay rights more than it helped it, because it tended to generate a political backlash, a theory that gained some credence in 2008, when Proposition 8 reversed a pro-gay marriage California Supreme Court decision. In a series of posts written in 2008-2009, I argued that such skepticism was unjustified, and that pro-gay marriage judicial decisions were a major net benefit for the cause of gay rights, backlash notwithstanding.

I think recent events largely vindicate my side of this debate. Since early 2009, the number of states legalizing same-sex marriage has grown from four to a soon-to-be twelve, with most of the recent ones doing so through the legislative process. This undercuts claims that judicial action undercuts political action. Public opinion has rapidly moved in a pro-gay marriage direction, undercutting arguments that litigation would turn the public against the cause. And, of course, the Supreme Court might be on the brink of requiring recognition of gay marriage from some or all of the states that still deny it. That is highly unlikely to have happened absent litigation-driven progress at the state level. Even if the Supreme Court upholds California Proposition 8, it would likely do so only by a very narrow margin that could easily be reversed by future decisions – signalling that the issue is contested in a way that was clearly not the case just 10-15 years ago.

Obviously, some of this progress is the result of long-term trends in public and elite opinion that would have occurred even without litigation. But it is unlikely it would have happened anywhere near so quickly were it not for the example effect of the establishment of gay marriage in Massachusetts and other states where it happened through judicial action. These decisions made gay marriage seem much more thinkable and mainstream than before. They also helped galvanize the gay rights movement. Furthermore, they made the previously radical idea of civil unions seem moderate by comparison, which in turn helped lead to their adoption in ten states that still do not permit full-blown gay marriage. As in the case of the civil rights movement, feminism, the gun rights movement, and property rights activists, among others, judicial action and political action turned out to be mutually reinforcing rather than antagonistic.

The political backlash against the 2003 Massachusetts decision did lead to the enactment of anti-gay marriage constitutional amendments in some thirty states. But for reasons I noted in this 2009 post, that was only a minor setback for gay rights activists. All but one of these states (California) were unlikely to enact gay marriage in the near future anyway. In addition, most of their constitutions are relatively easy to amend, which means that it will not be hard to reverse these amendments when and if public opinion in the state changes.

None of this proves that pro-gay marriage decisions were legally correct. In my view, gay marriage bans violate the federal Constitution because they constitute sex discrimination, and also those state constitutions that contain Equal Rights Amendments. But the correctness of these decisions is separable from their impact. They could be practically effective but legally dubious, or vice versa. Overall, litigation has turned out be a highly effective strategy for gay marriage advocates, whatever you might think about the correctness of their legal arguments.

That does not mean, of course, that litigation is always an effective strategy for all social movements. In order for it to succeed, there has to be at least some amount of preexisting support for the cause among both elite and general public opinion. Efforts to secure recognition of same-sex marriage through legal action flopped in the 1970s, because that base level of support was still lacking. Even where litigation does work, it is usually effective only in tandem with political activism, rather than completely removed from it.

But the recent history of gay marriage does show that litigation can often help advance a cause significantly faster and more effectively than would be the case otherwise. It therefore helps undercut the arguments of revisionist scholars who claim that such action is almost always ineffective, except in cases where the political process is likely to reach the same results on its own.

Co-blogger David Bernstein and I criticized such revisionist arguments in this 2004 article, focusing on the history of civil rights litigation. We pointed out several ways in which litigation can help disadvantaged minorities even when the political majority remains hostile or indifferent. The gay marriage case seems consistent with our theory as well.

From Hatcher v. Desoto County School Dist. Bd. of Ed. (M.D. Fla. Apr. 5, 2013):

Plaintiff [Amber Hatcher] seeks to organize and participate in the National Day of Silence at her high school in an effort to bring attention to the harms associated with bullying and harassment directed at lesbian, gay, bisexual and transgender students.... Plaintiff asserts that school officials interfered with her First Amendment right to do so last year, and have asserted again this year that plaintiff will not be allowed to participate as she proposes....

While there are factual disputes as to what plaintiff requested last year, it is undisputed that the Desoto County High School Principal refused to allow plaintiff to engage in any of her requested activities relating to that year’s National Day of Silence. At least some of these proposed activities were well within the written policy of the School Board, and some required no approval by any school official, e.g., remaining silent outside of class, communicating in writing or by dry erase board outside of class, non-vulgar conversations about the upcoming National Day of Silence.

Plaintiff has also satisfactorily established, based upon the emails of the defendants, that there is an established unwritten policy or practice absolutely banning all “protest” speech at the Desoto County schools that is contrary to the School Board’s written policy and the First Amendment. The Superintendent of the School Board instructed the Principal to inform plaintiff that “[i]t is inconsistent with the district’s past practice to approve student protests on any of our campuses. The attached [request from plaintiff] is disapproved.” The Superintendent also told the Principal that he “did not refer to a specific policy. Since this is classified as a protest, as evidenced by the submitted documents, I will not approve the activity on our campuses. This past practice position needs to be discussed with Miss Hatcher on April 13, 2012.” The Principal reported back to the Superintendent that she had “addressed the issue” with plaintiff, had told her several times she could not participate in the activities, and had told her “what the ramifications would be if the protest occurred.” The Principal sent an email to all teachers on the day of the proposed activities stating that a group of students “have an intention of protesting. The district has an absolute policy against protesting on school campuses.” The Principal stated that the Dean or Administration should be notified if students “are wearing placard in protest of an issue” or disrupting the hallways or classrooms, which included refusal to participate in class by taking part in a silent protest.

Of course, as the court held, any blanket “no-protest-speech” policy is clearly contrary to Supreme Court precedent. Disrupting school can be prohibited, and refusing to participate in class can be prohibited. But the policy — as found by the court — goes far beyond that, and covers even attempts to organize nondisruptive political expression. (Hatcher states that the Day of Silence would have involved “not speaking for the day at school except when called upon in class,” and thus wouldn’t have involved refusal to participate in class.) And Hatcher’s behavior the previous year, which led to her being pulled out of class, was apparently nondisruptive: “Plaintiff wore a non-vulgar t-shirt and remained silent at school. There were no incidents until after plaintiff was removed from her third period class. Her third period teacher has filed an Affidavit stating he did not call on plaintiff during class, and reported no change or disruption in his teaching of the class.”

The court ultimately declined to grant the preliminary injunction, but only because of the school’s assurances that the school would be following the written policy, which allows nondisruptive protest speech, and not the unwritten policy, which had been used to ban it. The court also allowed the student’s damages claim to go forward.

The proposed law, Senate Bill 323 seems pretty clearly aimed at the Boy Scouts, who would lose the exemption unless they reject both their policy against gays and their requirement of belief in God. The sales/use tax exemption is likely not a very big deal for the Scouts, but I take it that there might well be similar proposals with regard to the nonprofit property tax exemption, the charitable institution income tax exemption, and the tax deductibility of contributions to such institutions. (I assume the argument would be, “We already strip these groups of the sales tax exemption, how are the newly proposed property tax/income tax exemptions any different?”)

I doubt that this is a good idea, but I do think it is constitutional: As I’ve argued in my Freedom of Expressive Association and Government Subsidies (2006) that such proposals are constitutional, notwithstanding the groups’ expressive association rights — just as the government may refuse to subsidize, for instance, constitutionally protected abortion, lobbying, or electioneering, so it may refuse to subsidize constitutionally protected expressive association decisions. The Court’s decision in Christian Legal Society v. Martinez (2010) strengthens that argument. And the Court has long held (see, e.g., Taxation With Representation v. Regan (1983)) that tax exemptions are tantamount to subsidies for Free Speech Clause purposes. If this proposal is defeated, it would likely have be to defeated in the political process, not in court. So far, it has cleared a State Senate committee.

Thanks to Nick Lum for the pointer.

In a recent New York Times column, prominent Supreme Court commentator Linda Greenhouse grossly misrepresents the federalism argument against the Defense of Marriage Act put forward in an amicus brief co-signed by several federalism scholars, including co-bloggers Randy Barnett, Jonathan Adler, Dale Carpenter, and myself. She claims that it is a “Trojan horse” for an effort to block same-sex marriage, and that it is somehow inconsistent with various Supreme Court decisions striking down state laws that violate individual constitutional rights protected by the Fourteenth Amendment:

Beware of conservatives bearing gifts.

Ever since last week’s frustrating Supreme Court argument in the Defense of Marriage Act case, I’ve been wondering whether the attack on DOMA will turn out to be a constitutional Trojan horse. It may bring victory: the demise of a spiteful federal statute, enacted by an opportunistic Congress and signed into law 17 years ago by a cowardly Bill Clinton. But at what price?..

[S]triking down DOMA on federalism grounds is a truly bad idea, and the campaign for marriage equality would be worse off for it. To explain the argument is to reveal its dangers. A ruling that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture...

It would, of course, provide the full benefits of marriage to those living in states that chose to recognize same-sex marriage. But it would snatch away the promise for those living elsewhere, particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party’s favorite constitutional amendment, the 10th....

Just such a vigorous constitutionally based states’-rights argument was put forward in a brief filed in the case last month by a half-dozen law professors under the title, “Brief of Federalism Scholars.” One of the group, Prof. Randy Barnett of the Georgetown University Law Center, is justly regarded as the intellectual father of the Commerce Clause attack on the Affordable Care Act. “DOMA falls outside Congress’s powers” because “marriage is not commercial activity,” the brief declares. It argues further that by limiting federal recognition to marriages between men and women, the law “undermines the states’ sovereign authority to define, regulate and support family relationships.”

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)...

And of course the most famous federal intervention of all was Loving v. Virginia, the 1967 decision (shockingly recent) that overturned the laws of Virginia and 15 other states prohibiting marriage between people of different races.

Greenhouse’s argument is based on a fundamental error: she conflates structural limits on Congress’ authority outlined in Article I of the Constitution with individual rights constraints on the states. In reality, it is perfectly possible for a particular law to be both beyond the scope of Congress’ authority if enacted by the federal government and a violation of constitutional individual rights if adopted by a state. Our federalism brief merely claims that Congress lacks the constitutional authority to enact DOMA because the law exceeds the scope of Congress’ enumerated powers. That conclusion is perfectly consistent with the view that state laws banning gay marriage violate individual rights protected by the Fourteenth Amendment. Indeed, I myself have argued that the Court should strike down California’s Proposition 8 because it is unconstitutional sex discrimination. Similarly, we would argue that a federal law banning interracial marriage is also outside the scope of congressional power under Article I, while simultaneously endorsing the holding of Loving v. Virginia that state laws barring such marriages violate the Equal Protection Clause of the Fourteenth Amendment. The states’ sovereign authority over marriage – like all state sovereign authority – is constrained by constitutional individual rights. Nothing in our brief is inconsistent with that basic principle.

Greenhouse’s piece also contains several other errors. For example, our argument in the federalism scholars brief does not rely on the Tenth Amendment, and most of us are not “conservatives.” At least three of the six signers (Randy, Jonathan, and myself) are libertarians. Perhaps most important, the majority of us are actually gay marriage supporters, and therefore it is unlikely that we are somehow trying to “prop up” the anti-gay marriage “status quo,” as Greenhouse suggests. Dale Carpenter is one of the leading academic advocates of gay marriage, and has been involved in that cause and other gay rights issues for many years. Few people are less likely defenders of the “status quo” on these matters than Dale.

Unfortunately, this is not the first time that Greenhouse has misrepresented the views of her opponents on constitutional federalism issues, including myself. There is plenty of room for legitimate disagreement about both our federalism argument and other important issues at stake in the gay marriage cases. But the debate is not advanced by crude misrepresentation of our adversaries’ views.

UPDATE: I have fixed what was previously a broken link to Greenhouse’s column. My thanks to readers for pointing out this problem.

Before oral argument in the California Proposition 8 gay marriage case, Georgetown law professor Marty Lederman wrote a post outlining five possible options before the Court; I commented on it here. Since the argument, Lederman believes the number of possible options has grown to seven, as he outlines in this interesting post. The two new options are that “the Court might dismiss the petition as improvidently granted – a “DIG”; or that the Court could vacate the court of appeals’ decision and remand the case for reconsideration in light of whatever the Court does in Windsor, the DOMA case.”

Like most commentators, Lederman predicts there is a substantial likelihood that the justices will dismiss the case for lack of standing. Like me, he still believes there is a good chance the Court will strike down Proposition 8′s ban on same-sex marriage if the justices do make a decision on the merits.

In a recent op ed, Harvard Law Professor Noah Feldman argues that striking down the Defense of Marriage Act on federalism grounds – as advocated in an amicus brief I signed along with several other federalism scholars, including co-bloggers Jonathan Adler, Randy Barnett, and Dale Carpenter – would lead to “litigation chaos”:

[T]he problem with this gradual strategy envisioned by court observers and attributed to [Justice] Kennedy is that it would create anomalies leading to a nightmarish barrage of new litigation....

To understand the mess that would result if the court struck down DOMA without finding a general right to same-sex marriage, consider what would happen if the federal government recognized marriages performed in states that allow gay couples to marry while continuing to deny marital status to couples in other states.

In the first, most optimistic scenario, one or several marriage-friendly states might allow anyone from any state to get married there, creating a Las Vegas-style business in same- sex marriage. Gay couples would return to their home states with a piece of paper that should, in principle, entitle them to federal marital tax status, immigration benefits and more. But their home states would probably decline to recognize those out- of-state marriages, and deny them state-level marriage benefits.

If the Supreme Court’s decision to strike down DOMA depended on finding that states have an inherent right to define marriage in which the federal government cannot infringe, then the home states’ policy would probably be upheld. The result would be couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits. Each of these conflicts would be brought to the courts. State and federal courts would probably render divergent conclusions — across all 50 states and 13 federal circuits. If this isn’t legal chaos, nothing is.

If no state wanted to attract business by becoming the same-sex-marriage hub for out-of-state residents, then the anomaly would arise when legally married gay couples moved to states that didn’t recognize their unions. Presumably they would nevertheless bring their federal benefits with them — giving rise to the same legal issues just described.

To be honest, I simply don’t see the problem here. If same-sex couples get married in State A, receive federal marriage benefits, and then move to State B, which denies them state-level marriage benefits, there is no need for litigation of any kind. The couple in question will have federal marriage benefits, but no state ones (at least none from State B). Obviously, the couple might want to get state benefits from B and could potentially file lawsuits claiming that State B is engaging in unconstitutional discrimination against same-sex couples. But they could file the exact same lawsuits even if DOMA remains in place. We already have married same-sex couples that move from states that recognize same-sex marriage to those that don’t and seek to obtain benefits as a result. State and federal courts will have to address those cases regardless of whether or not DOMA gets invalidated on federalism grounds. The fact that if DOMA is struck down these couples will get federal marriage benefits does not require states to grant them state benefits.

To be sure, many states base tax status on residents’ federal tax returns. If same-sex couples could file as “married” on their federal tax returns, states that don’t recognize same-sex marriage might end up implicitly giving such people “married” tax filing status. However, if the state government doesn’t like that result, they could simply alter state tax law to forbid same-sex couples married in other states from filing as “married” on their state tax returns. This would be easy for states to do and need not give rise to any complex litigation. Many states already have tax deductions that are different from those on federal returns.

Feldman also scares readers with the following creative scenario:

Some scenarios are downright funny. Suppose I married someone of the same sex in New York and that marriage wasn’t recognized in Pennsylvania. If I then decided to marry someone of the opposite sex in Pennsylvania, the state would presumably recognize that marriage while New York recognized my previous one. And both marriages would be recognized by the federal government, which would treat me as a lawful bigamist. That would be good news for 19th century Mormons, who were denied a federal constitutional right to plural marriage — but most people today would find the conclusion truly bizarre.

As a legal scholar myself, I enjoy clever law professor hypotheticals as much as the next guy, probably even more. But this one has little real-world bite. As a practical matter, it is unlikely that any significant number of people will want to enter both a same-sex marriage and an opposite-sex marriage at the same time. If someone did try to do it, states that don’t recognize same-sex marriage could protect themselves against the possibility simply by enacting a law stating that they will not recognize a marriage contracted by a person who is still a participant in a same-sex marriage or civil union contracted in another state. Doing that would not require the state to recognize same-sex marriage generally. As for the federal government, refusing to recognize a second marriage entered into by a person who has never divorced their first spouse need not involve any federal encroachment on state governments’ powers to define marriage. After all, no state allows people to enter into multiple marriages at the same time either.

Some degree of conflict and legal uncertainty is inevitable in a federal system where different states have divergent marriage laws. But invalidating DOMA on federalism grounds would not significantly exacerbate these problems, much less lead to legal “chaos.”

UPDATE: Congress could also try to address these possible issues by basing eligibility for federal benefits on the marriage law of either the state of residency or the state where the marriage in question was initially contracted. Either approach would avoid the federalism problems created by DOMA, since neither would be a pretext for an effort to try to pressure states to define marriage in a particular way.

UPDATE #2: Ed Whelan responds to this post here:

Those crediting the federalist argument against DOMA have generally been claiming (wrongly) 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....

Somin’s claim is radically different. Under his account, the federal government would not be deferring to and applying the definition of marriage in the state in which a couple resides. Instead, for same-sex couples that lawfully marry in any state that allows same-sex marriage, the federal government would provide federal marriage benefits for those same-sex couples if they live, or if they later move to, a state that doesn’t recognize same-sex marriage. In short, under the false flag of federalism, Somin would have the federal government nationalize federal marriage benefits for same-sex marriages.

Somin’s position also gives the lie to the absurd claim that he and his co-signatories make that DOMA’s definition of marriage for purposes of federal benefits somehow intrudes on state authority over marriage. Whether or not Somin’s position is correct, Somin, by taking it, necessarily acknowledges that it is permissible for federal marriage benefits to apply to those living in a state without tracking that state’s definition of marriage. So much for the federalist argument against DOMA...

If [Somin] is right, he and the other signatories to the amicus brief of “federalism scholars” have submitted a highly deceptive brief that, in the mistaken name of federalism, would nationalize federal marriage benefits for same-sex spouses. If he is wrong, he has signed his name to an amicus brief without having giving serious attention to what his position actually means.

Whelan is wrong to claim that there is some deep contradiction in my position, much less that the brief I signed was “deceptive.” The position defended in the brief is that the federal government cannot adopt a general national definition of marriage and must instead respect state autonomy in that area. Deferring to the definition of marriage in force in the state where the marriage was contracted is deferring to the states. No one can enter a same-sex marriage unless they do so in a state where it is permitted. If a same-sex couple migrates, the receiving state can still maintain its refusal to recognize SSM. And as a practical matter, we are only talking about a small number of cases here. Gays and lesbians are only about 3% of the population and those who enter SSMs in states that permit it and then move to states that don’t are likely to be a tiny fraction of that.

Whelan’s claim that allowing couples that entered same-sex marriages to continue receiving federal marriage benefits when they move to a different state interferes with state definitions of marriage just like DOMA does is also weak. There is no meaningful comparison between an act that affects over 1100 different benefits and impacts all SSM participants everywhere and is deliberately intended to promote “traditional marriage” with the framework that I describe, which involves no such pretextual intent on the part of Congress, and in practice would have only very minor effects.

Finally, I would add that Congress can choose to condition federal marriage benefits on the law of the domicile state rather than on the law of the state where the marriage was contracted. Either approach is consistent both with my original post and with the position we took in our brief, because both avoid establishing a federal definition of marriage and both ultimately defer to state law. In my discussion above, I merely assumed the framework outlined in Noah Feldman’s op ed, and noted that it would not result in the “legal chaos” he predicted. But it’s not the only possible framework for determining eligibility for federal marriage benefits. Randy Barnett makes some related points here.

Most commentators, including the VC’s own Dale Carpenter, have concluded after the Proposition 8 oral argument that the Supreme Court is unlikely to strike down the California law banning gay marriage. I predicted such an outcome last year, and in this recent post, pointing out that the Supreme Court is unlikely to announce a nationwide right to gay marriage at a time when 41 states still deny it, and that there is no logical way for the Court to justify a “minimalist” decision that would apply to California alone.

Nonetheless, I think many people have been too quick to bury the anti-Proposition 8 cause after Tuesday’s argument. I agree with Dale and others that the Court may well dismiss the case on standing grounds. But if it reaches the merits, it is far from certain that Proposition 8 will survive. As most experts agree, the four liberal justices are likely to vote to strike down Proposition 8. So they would need to pick up only one conservative justice to get a majority. The key swing voter, Justice Anthony Kennedy, expressed skepticism about some of the plaintiffs’ arguments. But he also suggested he is considering the possibility that Proposition might constitute sex discrimination, in which case it would be subject to heightened “intermediate” scrutiny that it probably cannot survive. Moreover, he expressed concern about the 40,000 children being raised by gay and lesbian couples in California. Finally, it is difficult to gauge the impact on Kennedy of a striking concession made by Charles Cooper, the lawyer defending Proposition 8:

JUSTICE SOTOMAYOR: Outside of the -­ outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?

MR. COOPER: Your Honor, I cannot. I do not have any — anything to offer you in that regard.

If there is no rational reason for a state to discriminate against homosexuals in any other area of public policy, it’s hard to see why there is one in the marriage context – especially in a state like California, where gays and lesbians already have the right to adopt children, and – through civil unions -already have all the substantive legal rights usually associated with marriage. In such a context, the denial of marriage rights to gays and lesbians seems largely a result of anti-gay prejudice, and Kennedy is the author of the Supreme Court’s 1996 decision in Romer v. Evans, which ruled that “animus”-based discrimination against gays and lesbians is constitutionally suspect.

As is often the case with Justice Kennedy, his intentions are not easy to read. He could well decide to uphold Proposition 8, or – more likely – choose not to reach the merits of the gay marriage issue at all. But if the Court does decide on the merits, it is not a foregone conclusion that Proposition 8 will survive.

At today’s Proposition 8 oral argument, Justice Scalia asked Ted Olson, the lawyer for the plaintiffs, “when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?” The intuition behind Scalia’s question is that if a law would not have been unconstitutional on the day the Fourteenth Amendment was adopted, it cannot be unconstitutional under that Amendment at all.

But the latter doesn’t necessarily follow from the former. Laws that are constitutional at Time X can easily be unconstitutional at Time Y if relevant factual circumstances have changed. This is true not only under “living Constitution” theories, but even under originalism.

I. Originalism and Changing Circumstances.

How could this be so? Whether a law violates original meaning of the Constitution depends not just on the words of the text, but on relevant factual circumstances. For example, the Fourth Amendment bans “unreasonable” searches and seizures. Whether a search is reasonable depends at least in part on the state of technology, the likelihood that the search will catch a criminal, and other factual circumstances. As technology changes and our knowledge increases, a search that could be considered reasonable at Time A might not be reasonable at Time B, even though the meaning of the Fourth Amendment has not changed at all.

The constitutionality of sex discrimination is a particularly telling example. Steven Calabresi and Julia Rickert have shown that the original meaning of the Fourteenth Amendment constrains discrimination against women if that discrimination lacked a compelling rationale beyond a desire to subordinate them as an inferior “caste.” But 19th century understandings of biology and social science led most people to believe that a wide range of laws discriminating against women were constitutional because they were rational responses to fundamental differences between the sexes. Today, much of the factual understanding of the 19th century has been discredited, with the result that many laws that perhaps could legitimately be upheld in the 1870s ago are now unconstitutional. I expounded on this point in greater detail here:

[In Bradwell v. State (1873)], three justices upheld the exclusion of women [from the legal profession] despite the general principle of occupational freedom under the Privileges and Immunities Clause, based on their factual understanding of women’s “characteristics, destiny, and mission.” If that factual understanding turns out to be wrong, they could no longer argue that the power to discriminate against women in this way would fall under “the police power of the State” and would be required to strike the law down.....

Thus, the legal rule [Justice] Bradley advocated would compel a different outcome in any similar case today. Originalism requires judges to apply the legal rules established by the framers. But it doesn’t require them to perpetuate factual errors in the evaluation of evidence used to determine how the rule applies to any given case. Assume that in 1873 a regulation were upheld based on scientific evidence derived from the popular 19th century theory of phrenology, which held that people’s abilities and character could be predicted based on the shape of their skulls. For example, a state could have enacted a law forbidding a person with the wrong type of skull to become a lawyer. Later research proves that phrenology is a bogus pseudoscience. A consistent originalist judge would overrule the 1873 decision if legislatures continued to enact statutes claiming a police power rationale for curtailing occupational freedom based on phrenological evidence. The same goes for statutes that restrict constitutional rights based on discredited nineteenth century factual assumptions about women. [emphasis added]

II. Implications for Same-Sex Marriage.

As I have previously argued, laws banning same-sex marriage discriminate on the basis of gender, much like 19th century laws banning women from various occupations. For many decades, the state of our knowledge was such that it seemed inconceivable that same-sex couples could raise children, form committed long-term relationships, play a stabilizing role in society, and otherwise carry out the various functions associated with opposite-sex marriages. Today, however, we know that these assumptions are false or at least greatly overstated. Just as we now know that women can be effective lawyers and that phrenology is bogus.

We may not be able to pinpoint the exact date when knowledge advanced to the point that courts were justified in striking down laws excluding women from various occupations. I would tentatively say it happened soon after various states first allowed women to enter many professions in the late 19th century, and experience quickly showed that no great disaster occurred as a result. Still, a good case can be made for a different date. But all a court needs to know is that the relevant date occurred sometime before the day when it has to make a decision in the case before it. And what is true of other forms of sex discrimination is also true of laws banning same-sex marriage.

Finally, I recognize that originalism is far from the only theory of constitutional interpretation. I myself do not believe that it should be the only factor courts take into account. In this post, I focus on originalism because I think it obvious that most “living Constitution” theories readily allow for situations where a law that is initially constitutional becomes unconstitutional over time.

UPDATE: The above analysis could potentially be reformulated as saying that laws banning same-sex marriage were unconstitutional as soon as the the Fourteenth Amendment was enacted in 1868, but people just didn’t have enough knowledge to figure it out until much later. But, for purposes of judicial review, the key issue is when real-world courts had enough evidence to justify striking down a law like Proposition 8. And that time could easily be later than the point at which a court with perfect information would have been justified in doing so.

In today’s Proposition 8 oral argument on the constitutionality of California’s law banning same-sex marriage, Justice Anthony Kennedy – a key swing voter on the Court – asked whether such a law qualifies as sex discrimination, which he called a ” a difficult question that I’ve been trying to wrestle with”:

JUSTICE KENNEDY: Do you believe this can be treated as a gender-based classification?

MR. COOPER: Your Honor, I -­

JUSTICE KENNEDY: It’s a difficult question that I’ve been trying to wrestle with it.

Charles Cooper, the lawyer for the defenders of Proposition 8 went on to assure Kennedy that it isn’t a gender-based qualification, but didn’t really explain why not. It’s not clear whether Justice Kennedy was satisfied with his answer, because another justice quickly shifted the focus to a different issue.

The issue of whether Proposition 8 qualifies as sex discrimination is indeed “a difficult question” in the sense that the idea seems counterintuitive to many. But once you consider how laws such as Proposition 8 actually work, it’s hard to avoid the conclusion that they clearly do discriminate on the basis of gender, both as a matter of logic, and under the Supreme Court precedent defining sex discrimination. I explained why here:

[A] same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And it is perfectly possible to discriminate on the basis of sex even if the motivation for doing so is something other than sexism.

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.....

All of this simply underscores the reality that a ban on same-sex marriage discriminates on the basis of gender rather than orientation – even if the motivation for the discrimination is hostility towards gays and lesbians. Under the Supreme Court’s approach to sex discrimination, any “statutory classifications that distinguish between males and females” are subject to heightened judicial scrutiny. A ban on same-sex marriage pretty obviously “distinguish[es] between males and females.”

For reasons I outline in the post quoted above, a decision striking down Proposition 8 because it qualifies as gender discrimination would have much stronger support from logic, precedent, and the original meaning of the Fourteenth Amendment than one striking it down because it discriminates on the basis of sexual orientation.

In recent years, unfortunately, the sex discrimination argument for gay marriage has not gotten much attention. I am glad that Justice Kennedy has focused on it. I’m still not optimistic that a majority of the Court will adopt this approach, or even that Kennedy himself will. But, given Kennedy’s status as an influential swing-voter on the Court, his interest will at least help ensure that the issue gets some serious consideration.

A ruling that Proposition 8 discriminates on the basis sex doesn’t automatically mean that it will be invalidated. The Supreme Court will uphold gender-discriminatory statutes if they meet heightened “intermediate scrutiny,” which requires the government to show that the discriminatory law is “substantially related” to the promotion of an “important state interest.” But it is unlikely that Proposition 8 can meet that standard. In the oral argument, Mr. Cooper defended Proposition 8 almost exclusively on the ground that excluding same-sex couples furthers the state’s interest in marriage as a “procreative” institution intended to facilitate child-raising. But, as the justices pointed out, opposite-sex couples are allowed to marry even if one or both partners are clearly infertile (e.g. – because they are too old). Moreover, in California, as in many other states, same-sex couples are allowed to adopt children. Lesbian couples can also bear children through artificial insemination. Given that the state allows opposite-sex couples to marry even if they have no ability to bear children, while forbidding same-sex marriage to couples that can have children and in some cases already do, it’s hard to defend Proposition 8 on the grounds that it facilitates procreation or benefits children in some way.

The procreation rationale is probably enough to pass minimal “rational basis” scrutiny of the type applied to most kinds of classifications. But it’s not likely to cut it under intermediate scrutiny or any judicial inquiry that requires the state to provide a serious justification for engaging in sex discrimination.

In a recent post, co-blogger Orin Kerr cites a poll showing that 61% of Californians now support gay marriage, and considers the implications of this result for the Supreme Court’s upcoming decision on the constitutionality of California’s ban on gay marriage. He predicts that:

If last year’s debate over the popularity of the Affordable Care Act provides any clues, each side will have its preferred lesson. For those who want the Supreme Court to strike down Prop 8, the poll shows that the Supreme Court can invalidate Prop 8 without causing a major backlash because the law has become very unpopular. For fans of judicial restraint, however, the poll shows that the Supreme Court doesn’t need to invalidate Prop 8 because California voters will almost certainly repeal it themselves.

These are not mutually exclusive claims, and both are probably true. Growing public support for gay marriage makes it likely that the Court could weather any backlash created by a decision striking down Proposition 8. On the other hand, it is also likely that a ballot initiative reversing Proposition 8 will pass in California sometime in the next few years if the Court chooses not to strike Prop 8 down.

I would add a few caveats to Orin’s analysis, however. First, any decision on the constitutionality of Proposition 8 is likely to have an impact that goes well beyond California. Thus, national public opinion is relevant, not just California opinion. A n December Gallup poll of national opinion shows 53% supporting gay marriage with 46% opposed. Recent Pew Research Center surveys show an average 48% in favor, with 43% opposed. This is a major change from earlier years, and support for gay marriage is rapidly increasing. At the same time, however, it is not nearly as high as the lopsided majorities that wanted the Supreme Court to strike down the individual health insurance mandate last year. A decision striking down Proposition 8 is likely to face broader opposition than a decision striking down the individual mandate would have. Moreover, many of the social conservatives who oppose gay marriage feel very strongly about the issue, perhaps even more so than hard-core liberal Democrats felt about the mandate.

That said, the Court would likely weather the storm without too much trouble. Its decision would start out with majority public support. In addition, the ranks of gay marriage supporters are rapidly expanding, while opposition is diminishing. Thus, the Court could expect support for a decision striking down Proposition 8 to increase over time.

At the same time, I also don’t think the Court would face a debilitating backlash if it upholds Proposition 8. Right now, only a narrow majority supports gay marriage, and for many of them the issue is not a high political priority. Moreover, if gay marriage continues to gain ground politically, that success may diminish advocates’ anger at the Court for upholding Proposition 8. In the long run, such a decision may be condemned by history if we ultimately come to a near-consensus that gay marriage is right and just. It could be viewed in the same light as the Court’s nineteenth century decision upholding state laws banning interracial marriage or its 1986 ruling upholding anti-sodomy laws.

Be that as it may, the Court could go either way in this case without incurring major political risks, especially if a decision striking down Proposition 8 does not immediately invalidate the laws of all 41 states that currently forbid same-sex marriage. The case will ultimately come down to what the justices genuinely believe about the constitutional issue at stake. That’s as it should be. Except in very rare cases, Supreme Court justices should not base their decisions on their potential popularity or lack therefor. They also should not hesitate to strike down an unconstitutional law merely because they expect the political process to repeal it in the future. As Orin puts it in the comments to his post, “I don’t think judges should pay attention to public opinion polls either way, except insofar as it might be formally relevant to existing doctrine.”

UPDATE: I should note that the survey data on gay marriage is not an exact parallel for last year’s polls on the individual mandate case, because the former don’t directly ask about whether the Court should strike down state laws banning gay marriage, but merely ask about respondents’ policy preferences on the issue. The two are likely to be highly correlated, but not perfectly so.

Georgetown law Professor Marty Lederman has a very helpful post outlining the Supreme Court’s options in the case challenging the constitutionality of California’s Proposition 8, which bans same-sex marriage in the state:

[T]hese are the five options offered to the Court:

(i) The Court could uphold the constitutionality of Proposition 8 — that is, hold that states may limit the civil institution of marriage to opposite-sex couples.

(ii) The Court could conclude that the Fourteenth Amendment categorically prohibits states from discriminating against same-sex couples in the conferral of marriage licenses–the so-called “fifty-state holding” (although it would have a practical impact only on the forty-one states that continue to prohibit same-sex marriage).

(iii) Without reaching the question whether a state could justify denying to same-sex couples substantial benefits and privileges that it offers to opposite-sex couples, the Court could conclude that once a state has offered same-sex couples all or virtually all of the incidents of marriage that it offers to similarly situated opposite-sex couples, there is no legitimate justification for denying those couples the status of “marriage” itself . . . and that therefore it is fair to conclude that such a denial is designed only to stigmatize, or to deny respect, on the basis of sexual orientation, which the Constitution forbids. This is the so-called “eight-state solution” suggested by the United States today, which would directly affect only those states (California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island) that already treat same-sex couples the same as opposite-sex couples in virtually all ways but one.

(iv) A California-only holding: The Court could hold, as did the court of appeals..., that where a state has afforded same-sex couples all or virtually all of the incidents of marriage that it offers to similarly situated opposite-sex couples, and where that state has at one point allowed those same-sex couples the right to be married — a set of conditions that presently describes only the state of California — there is no constitutionally adequate justification for withdrawing that right from those same-sex couples. Such a holding would not require the Court to decide whether a state may more broadly discriminate in favor of opposite-sex couples, or even whether a state may in the first instance offer same-sex couples all of the same rights, privileges, etc., that opposite-sex couples enjoy, except for the status of marriage.

(v) The Court could dismiss the appeal on standing grounds, without (a majority) resolving the merits.

Many analysts believe that the Court will ultimately opt for either option iii or option iv. These are so-called “judicial minimalist” choices that would strike down Proposition 8, but leave all or most other state laws banning same-sex marriage in place.

The Court may well indeed try a “minimalist” approach. But even a decision limited to California alone would be extremely significant, since California is the nation’s most populous state, with a population of some 37 million. Moreover, it is difficult to logically distinguish California from the other seven states that have civil unions for same-sex couples, but not gay marriage. The fact that California briefly had full gay marriage before shifting back to civil unions, while these other states did not doesn’t strike me as a persuasive distinction. In his 9th Circuit lower court opinion on this issue, Judge Stephen Reinhardt contended that the difference is that deliberately withdrawing the label of marriage from same-sex unions while retaining all of the material benefits thereof under the civil union label is an indication that the withdrawal was purely the result of irrational “animosity” towards gays and lesbians. Maybe so. But irrational homophobia on the part of some of the public is likely a major reason why the other seven states with civil union laws have not adopted full-blown gay marriage. An “eight state solution” that includes big states such as Illinois, New Jersey, and Oregon, as well as California, will have a profound national impact. Ultimately, I don’t think there is any truly minimalist alternative in the Proposition 8 case, except perhaps dismissing it on procedural grounds.

The eight state approach would also create an interesting incentive structure for the thirty-three states that still don’t have either gay marriage or civil unions. These states, especially the more conservative ones, might hesitate to adopt civil union laws for fear that doing so would automatically force them into full-blown gay marriage mandated by the courts.

If the Supreme Court tries the “fifty state holding,” I think it should pursue an option not mentioned by Lederman: striking down Proposition 8 because laws banning same-sex marriage qualify as unconstitutional sex discrimination, as opposed to discrimination against gays and lesbians. For reasons, I outlined here, the sex discrimination argument has stronger support from logic, precedent, and original meaning than the other arguments against Proposition 8:

[A] same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And it is perfectly possible to discriminate on the basis of sex even if the motivation for doing so is something other than sexism.

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.....

All of this simply underscores the reality that a ban on same-sex marriage discriminates on the basis of gender rather than orientation – even if the motivation for the discrimination is hostility towards gays and lesbians. Under the Supreme Court’s approach to sex discrimination, any “statutory classifications that distinguish between males and females” are subject to heightened judicial scrutiny. A ban on same-sex marriage pretty obviously “distinguish[es] between males and females.”

I doubt the Court will actually rule this way, both because it may hesitate to make a ruling that applies to all fifty states, and because many people find the sex discrimination argument less intuitively plausible than the idea that Proposition 8 discriminates against gays and lesbians, and laws that discriminate on the basis of sexual orientation should get heightened judicial scrutiny.

But, despite its relative unpopularity, I still think that the sex discrimination route is the right approach. And, as I note in my earlier post linked above, concluding that same-sex marriage bans qualify as sex discrimination doesn’t mean that they will automatically be invalidated. It just means that they would be subject to heightened “intermediate” scrutiny, which requires the government to show that they are “substantially related” to an “important state interest.” I’m skeptical that Proposition 8 and other similar laws could pass that test. But opponents of same-sex marriage would surely argue otherwise.

City Councilman Bill Rosendahl has submitted a proposed resolution suspending L.A.’s “Sister City” relationship with St. Petersburg, Russia. The reason: St. Petersburg’s “anti-gay initiatives,” “including enactment of legislation curbing gay rights and a police crack down on lesbian, gay, bisexual and transgender (LGBT) activities” and a ban on “promotion of homosexuality,” which restricts “freedom of speech as well as such fandamental activities as gay pride festivals and parades.”

Now I too oppose the St. Petersburg policies; I’ve blogged about them, and I suspect our readers got the message that I think the policies are indeed wrong. And of course no city has any legal right to sister city status with Los Angeles.

Still, I don’t think it would be right to suspend the relationship only with St. Petersburg over this, when L.A. continues to have sister city relationships with Beirut, Giza (Egypt), and Lusaka (Zambia), all places in countries that are even less tolerant of gay rights than St. Petersburg — those countries continue to criminalize homosexuality altogether. (I don’t list Tehran, since L.A. suspended its sister city relationship with Tehran in 1979.)

Moreover, L.A. is sister city to Guangzhou (the former Canton), where free speech on a wide range of topics is even more restricted than free speech is in China. I can’t speak to the precise state of gay rights in China, but the state of rights generally, including freedom of speech and freedom to parade, is pretty weak.

If you’re a commentator on Russia, you should of course be free to speak about what you know and not discuss what you don’t. But it seems to me that government bodies deciding what official actions to take (as opposed to private individuals deciding which subjects to speak about) have some obligation — though not a constitutional obligation — to be relatively evenhanded in such situations. This obligation isn’t absolute; for instance, in making wartime alliances you sometimes have to turn a blind eye towards the sins of your allies, to get the war won. And maybe there is a comparable, though weaker, economic development reason for L.A.’s soft-pedaling around China’s sins in this context (though I’m not sure about that), even when one doesn’t soft-pedal around St. Petersburg’s. But I don’t see such overwhelming reasons here justifying the proposed resolution’s treating Beirut, Giza, and Lusaka differently than St. Petersburg.

Note that the resolution was apparently suggested in a letter to the City Council from the ACLU of Southern California and the L.A. Gay & Lesbian Center. The ACLU’s press release on the subject, to its credit, also asked council members “to re-evaluate relationships with other cities on L.A.’s list of sister cities, especially Lusaka, Zambia,” and the group’s communication director tells me that the group intends to do the same in testimony before the council. (The press release says that such a call was also present in the letter, but that seems to be an error in the press release; the letter only discusses St. Petersburg.) Still, the ACLUSC message so far does seem to stress St. Petersburg, and mention Lusaka more quietly, and Beirut and Giza not at all. Here is the ACLUSC’s explanation for that, from an exchange I had with its communications director:

There’s no question that life in Lusaka ... is much worse for LGBT people.... [But] while Zambia criminalizes sodomy and Russia does not, few cities have gone to the sometimes ridiculous lengths that St. Petersburg has to make it clear that they don’t like gay people –- often, it seems, merely for sheer publicity value.

Also, Lusaka doesn’t profess to be what St. Petersburg does: a global capital of art and culture. St. Petersburg was founded by Peter the Great to be Russia’s window on the West; now it seems that it’s looking backwards. And while the promulgators of the law claim to be protecting youth, that’s our concern, too: if we’re judged by the company we keep, what does it say to the LGBT youth of Los Angeles that their city maintains a link with a flagrant violator of LGBT rights? ...

I think it’s easy to find something concerning with a number of cities on the list, for many reasons, which is why we’ve asked them to evaluate whether a continued sister city relationship with those locations is appropriate. And as you say, the LGBT community in cities like Chinese cities like Guangzhou has enjoyed a certain amount of freedom to express itself even as free speech in general remains curtailed.

But one distinction is that in the case of St. Petersburg, it was the municipality itself hanging out the “no promo homo” sign. Another is that city officials seem to go out of their way — even pursuing Madonna and Lady Gaga — to attract attention and to let us all know that the LGBT community is not welcome. That message to stay hidden and shut up is broadcast to young people in Russia and abroad. We’ve been working to counteract that type of bile here in Southern California, where LGBT kids are bullied every day. In the end, they’re our ultimate concern and we hope that by suspending the relationship with St. Petersburg, the Los Angeles City Council will help neutralize those messages.

I don’t think these arguments would suffice to justify Councilman Rosendahl’s proposal to suspend St. Petersburg’s sister city status but not that of the other cities I mention, but I wanted to pass them along in any event.

In a recent post, I wrote about the growing number of people who oppose racial preferences in education, while also supporting gay marriage. Richard Kahlenberg, a long-time advocate of replacing race-based affirmative action with socioeconomic affirmative action, can be added to the list:

The Supreme Court’s decision to hear gay-marriage cases from New York and California this spring means the justices will weigh in on two highly fraught social questions this term—same-sex marriage and affirmative action in higher education. (Not to mention the future of the Voting Rights Act.) Justice Anthony Kennedy is likely to be the swing vote in these cases, and many are predicting he will side with conservatives to limit racial preferences and with liberals to support gay marriage. Paradoxically, the very reasoning that could guide Kennedy to support marriage equality may bolster his decision to curtail race-based affirmative action, spurring colleges to adopt new approaches.

Proponents of gay marriage advance two powerful arguments: Couples seeking to marry should not be discriminated against on the basis of an unchangeable factor like sexual orientation; and shifting attitudes, especially among young people, make gay marriage an inevitability.

The problem for supporters of racial preferences is that these precise arguments can be, and have been, made by conservatives challenging the use of race in university admissions in the case of Fisher v. University of Texas. Abigail Fisher, the plaintiff, says the fact that she was born white should not be used to disadvantage her in admissions; and large-scale trends over the past half century—the decline in racial discrimination coupled with growing economic inequality, a rise in racial intermarriage, and the “browning” of the U.S. population—all make affirmative action based on race look outdated.

I don’t agree with all the points Kahlenberg makes. Not every possible argument for gay marriage can also be turned into an argument against racial affirmative action. Similarly, there are various arguments for affirmative action that don’t imply any particular stance on gay marriage. For example, the compensatory justice rationale for affirmative action is potentially consistent with support for gay marriage. Nonetheless, there is greater synergy between the case for gay marriage and the case against affirmative action than meets the eye. In both cases, the core claim is that government should not discriminate on the basis of an ascriptive characteristic – race in the case of affirmative action and sex in the case of laws banning gay marriage. And in both cases, the standard rationales offered to justify discrimination are increasingly implausible in a pluralistic society that has come to accept a wide range of intimate relationships and is no longer clearly divisible along traditional black-white lines.

UPDATE: Well-known blogger and gay rights advocate Andrew Sullivan recently expressed similar views:

I support marriage equality as passionately as I oppose affirmative action. I believe in formal civic equality of opportunity, not actual equality of results....

For years, that position – the core underpinning of my book Virtually Normal – was regarded as eccentric. But the logic of equal opportunity is as solid for one as for the other. Eventually, people will see that. Some already are.

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.

[Updated with link to Prof. Hayes's new paper.]

The man-bites-dog story of Germany legalizing then banning bestiality raises the question of the constitutionality of such laws in the U.S. Most states criminalize zoophilia, and in many places the bans have been enacted quite recently. Moreover, the laws are from time to time enforced.

The 14th Amendment has been interpreted to recognize a broad and very valuable liberty interest in sexual autonomy. Constitutional doctrine regards private sexual choices as vastly more important than other kinds of choices, and thus presumptively protected. Homosexual conduct is just a hot-button particular instance of the general principle. Constitutional protection of heterosexual conduct comes from the same source. Thus if laws against premarital heterosexual sex (with or without contraceptives), sodomy, etc. are unconstitutional – and I think it clear that courts would find them to be – this must be justified by some special protection for sexual choice.

Bestiality is private sexual conduct and thus prima facie requires a very good justification to regulate. Given that bestiality taboos existed long before animal rights movements, one can assume their legalization or delegalization is largely based on the old taboos or stereotypes, perhaps in the sheep’s clothing of animal rights. (Similarly in the VMI case, the Court refused to let the state “update” the rationale for an old practice to something that might sound more in line with current thinking.) But insisting that bestiality bans simply regulate animal welfare is insufficient. Those regulations do not typically intrude on protected interests.

Bestiality bans regulate human sexual expression. And in the Supreme Court’s jurisprudence, sex is special. The government can also regulate, even ban, consumer products, but not when they are condoms, because that is also a regulation of sexuality. Cock fighting can be banned not because the animal suffers, but because the government needs little excuse to ban any commercial activity. Sexual activity is different.

Similarly, while government can regulate animal cruelty, the Supreme Court recently struck down a law targeting “crush films” involving weird sexualized animal torture because the statute was not precisely tailored, and could sweep in some cases where animals did not in fact suffer. Blanket bestiality bans are not narrowly tailored. Thus many European countries make zoophilia legal, but punishable under existing animal welfare laws when cruelty can be shown – but it cannot be presumed.

Constitutional protection of sexual conduct is mostly valuable for conduct that is widely perceived as deviant – when it is someone else’s ox getting gored. Otherwise it is itself merely a tool for reaffirming current mores. With bestiality, one assumes that most folks have have no dog in the fight – and that is what makes it interesting to seriously consider the constitutional issues.

The closest analogy would not be gay sex, or straight sex, but rather other kinds of autonomous sexual activity like sex toys. There are still sex toy bans in some states, including some newly enacted ones. But they’ve been getting struck down since Lawrence by courts (including the Fifth Circuit) that read Lawrence as standing for general sexual libertarianism.

One could argue that ick factor aside, bestiality should if anything be more protected than the dominant social paradigm of 2-person sex. Once there are two people involved, it is a social issue, not purely “private.” Thus such laws can be justified by some purported negative social consequences: uncared for kids with heterosexual fornication; unmarried poor men for polygamy; mutation for incest. By these standards, bestiality (or any other kind of one-person sexual activity) is the most innocuous, as it involves only a person and his property. Spill-over effects on other humans are minimal.

The New York Times several years ago had a very sympathetic piece on Washington state men who have sex with horses, which strongly suggested, based on graphic evidence, that the horses were not unwilling, and that the men seemed reasonable people for whom the activity was meaningful. The bans may well be based on (not yet outmoded) stereotypes and biases.

After the sex toy cases, why not go whole hog and extend the protection of idiosyncratic autoerotic conduct to zoophilia? Indeed, Antonio Hayes, a Fellow at Cornell Law School, has a fascinating paper just posted on SSRN critically examining the various rationales for bestiality laws and finding them wanting. He stresses that animals do not necessarily find such practices painful, and may even enjoy them. As a political matter, I’m not bullish on the success of this argument. And I know this post will really get the animal rights folks’ goat, as the sex toy analogy assumes that animals are more like things than like people.