The Volokh Conspiracy

[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.

I should say at the outset that I approach this delicate subject sheepishly, but this development bears noting. In a rare example of a Western country taking steps to restrict previously recognized sexual liberties, Germany is seeking to ban bestiality. (Its supporters call it zoophilia – are opponents zoophobes?) This will presumably put out to pasture Germany’s erotic zoos, where visitors go beyond heavy petting.

Germany legalized bestiality in 1969, together with sodomy. When Justice Scalia analogized from the decriminalization of the latter to the former in his Lawrence dissent, he was widely denounced, but apparently the liberal Germans agreed with him, at least until now.

I suspect the motives behind the ban are entirely moralistic. Yet the government cannot come out and say so. Thus effort is made to distinguish the matter from Germany’s libertarian approach to sexual matters by suggesting the animals do not consent in the way consenting humans do. Yes, but they don’t consent to being bought or sold, or butchered, either, and they are not human, so consent is a red herring. This would not pass intermediate scrutiny in the U.S.

It is an invariable aspect of sexual morality regulation that those who regard a practice as amoral, or vile, also believe it has negative practical effects. The latter allows one regard one’s own knee-jerk preferences as sound social policy rather than moralizing. In today’s post-morality world, vestigal aversions to prostitution, polygamy and incest have to be justified with strained public policy arguments.

If erotic zoos are bad, it is not because, as critics contend, it is “animal rape,” any more than prohibitions on intercourse with human remains can be justified by the “non-consent” of the corpse. Requiring two-sided consent in zoophilia situations privileges the person/person intercourse model in a way which is neither neutral nor value-free.

Usually it is harder to roll back new social rights than to extend them – the “non-retrogression principle.” I’d be interested to see if the zoophiles mount a challenge based on European human rights law, and how it fares. Berlin may find it is closing the barn door after the animals have escaped.

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.

Most of the post-election attention to the gay-marriage ballot fights has focused on the inspiring wins in Maine, Maryland, and Washington state, where same-sex marriages will now be legal.  But equally important in the long-term is what happened in Minnesota on Tuesday.  Eighteen months ago, when the state legislature voted to place a ban on same-sex marriages on the ballot, I wrote that “on November 6, 2012, Minnesota will become the first state to reject one of these amendments.”  Many people (myself included) were skeptical of that prediction.  It was more a hope than a forecast. Until midnight or so last night, I still doubted we’d win.  Losing Minnesota, for me and for my family and friends, would be a punch to the gut even harder than losing California.

In 30 states, same-sex marriage had never won a popular referendum.  Minnesota is reliably blue, but is more socially conservative than people realize.  The state GOP had taken both the state senate and house in 2010, which is what permitted the issue to go to the ballot.  Minnesota is more religious, with a higher percentage of weekly churchgoers, than places like Maine and California.  It’s in the middle of the country, not on one of the coasts.  In 2006, neighboring Wisconsin had approved a broader amendment by 59%-41%.  Polls on gay-marriage amendments had always been notoriously unreliable, underestimating opposition by an average of seven percent. The public polls never showed us beyond that error rate.  Opponents had a devastating, if misleading and exaggerated, message about how gay marriage would mean the loss of religious freedom, kids would be “taught gay marriage,” judicial activists would impose their will, and family structure would unravel. Somehow all of this would be caused by the marriages of people like two of my best friends, a gay-male couple of 25 years living in Minneapolis. Gay marriage advocates had never found the combination to crack the code of these anti-SSM messages.

Over the next 18 months, with the clock ticking toward November 2012, we built a political movement from the ground up. Under the banner of Minnesotans United For All Families, and led by an incomparable tactician and campaign manager in Richard Carlbom and a ferociously smart board chair in Cristine Almeida, we organized a campaign that was unprecedented in size and scope for a ballot fight in the state.  We put together a coalition of more than 700 faith groups and churches, political allies across the spectrum (including prominent conservative and libertarian Republicans), labor groups, people of color, and businesses.

I was told we’d never raise a million dollars in Minnesota and that national donors would stay out because of our poor track record around the country and because the Midwest was a lost cause.  Some national donors did stay out.  But we still raised $12 million.  And while hundreds of thousands of dollars were donated by national groups like the Human Rights Campaign and Freedom to Marry, and more by some wealthy individual donors, the vast majority of the money was raised from some 65,000 individual donors in the state.

The message fused conservative and libertarian themes and was honed from the experience of many losses and much research by groups like Freedom to Marry and Third Way. The socially conservative idea was that marriage enhances and cements the shared social values of love, commitment, and strong families.  The libertarian argument was that government has no business limiting the freedom of gays and lesbians to make that commitment.  We took the issue of gay marriage head-on.  We didn’t avoid religion, but instead agued that the religious beliefs of many faiths were being attacked by the proposed ban.  Ads featured Catholics, older couples with gay sons and daughters, former opponents of gay marriage, and identified Republicans.  The most powerful ad, which closed the campaign, excerpted an anti-amendment speech by wounded Iraq war veteran and married father John Kriesel.  Kriesel, a Republican state representative, recounted the sacrifice by Cpl. Andrew Wilfahrt, a gay soldier killed-in-action in Afghanistan. The campaign’s messaging was informed by Grove Insight and the ads were executed by 76 Words.

Money and messaging were not the only important factors. In the past, advantages in money and sophistication were not enough. In earlier contests, intensity was always on the anti-gay-marriage side.  My anecdotal experience is that the intensity gap was erased in Minnesota and, I suspect, in the other 3 states that fought out the issue this year.  The campaign against the Minnesota marriage ban was infused with a level of dedication and energy that must be rare in politics. That intensity came from young people, and especially from heterosexuals, who seemed as committed as gay activists to beating the amendment.  There is no question that a generational shift has occurred and that that shift is moving itself up the demographic ladder.  It’s not a “gay marriage” issue anymore.  For increasing numbers of Americans, it’s a marriage issue.

In the last week, the Minnesotans United campaign made 900,000 calls to voters; it knocked on the doors of 400,000 homes; it enlisted 27,000 volunteers.  I don’t know what the comparable numbers were on the other side, but Minnesota had never seen anything like it.

This has been a long time coming.  When gay couples sued to get married, opponents laughed at them and courts dismissed them. When they won a few victories in court, opponents countered that the issue was appropriate only for legislative decision. When legislatures started approving gay marriages, opponents argued that the matter shouldn’t be forced on people by elite politicians. “Let the people decide” became their mantra in Minnesota and around the country.

Yesterday the people of four states decided.  They affirmatively voted for gay marriage in three states, and rejected the proposed ban in Minnesota by 52.4% to 47.6%.  (For county-by-county results, see this site.)  In a fifth state, Iowa, they voted to retain a supreme court justice who had been politically targeted for voting in favor of a gay-marriage claim. The result, I expect, will be a profound change in democratic momentum. At the very least, it was the best single day yet for the cause of allowing same-sex couples to marry.

Winning means more state legislators willing to vote for gay marriage. Winning means a greater willingness to take this issue to the ballot in more states, including some where we’ve previously lost.  Winning means more investment by national donors.  Winning means more enthusiasm and energy, more volunteers, more effective messages, more confidence.  Winning at the ballot box had become a Sisyphean task. Again and again, we’d get tantalizing close to the summit, only to have the boulder fall back to the bottom of the hill.  And then, as we looked down to take up the task once more, we’d be taunted for having failed.

Victor Hugo said that there is nothing as powerful as an idea whose time has come.  The idea that marriage is good for all families, gay and straight, is taking hold in a religiously devout state in the middle of the country. Winning Minnesota, with the support of 1.5 million of our fellow citizens, means that our time is coming.

Nine down, 41 to go.

Impermissible, holds Maxwell v. Maxwell (Ky. Ct. App. Oct. 19, 2012):

[W]e now turn to the family court’s decision to award Robert sole custody. We begin by addressing Angela’s contention that the court erred by considering factors unrelated to the best interests of the children. The focus of the family court’s decision was that Angela’s same-sex relationship was harmful to the children. The family court states in its order:

The Respondent is seeking to live an unconventional life-style that has not been fully embraced by society at large regardless of whether or not same-sex relationships should or should not be considered sexual misconduct. Like it or not, this decision will impact her children in ways that she may not have fully considered and most will be unfavorable.

First, we observe that under the statutory mandate of KRS 403.270(2), the court is required to determine custody based on the best interests of the child by considering the factors discussed previously herein.... The statute’s next section states that “[t]he court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.” KRS 403.270(3). Therefore, Kentucky’s custody statute is designed to focus on conduct that disturbs the interaction between the parent and child. Here, the family court’s decision relies heavily on Angela’s same-sex relationship as problematic without demonstrating that the children were harmed or that their relationship with Angela was harmed. In fact, the evidence suggested that the children were adjusting quite well if not thriving. Thus, under KRS 403.270(2), the court is to consider all relevant factors; however, KRS 403.270(3) does not allow sexual orientation to be a determining factor unless there is a direct negative impact on the children....

[N]ot allowing a parent to have custody of a child because of a threat of private discrimination violates the due process and equal protection clauses of the federal and state constitutions. Although sexual preference has not enjoyed federal constitutional protection under the due process clause, the United States Supreme Court has said in other contexts that homosexuals may not be singled out for disparate treatment. Romer v. Evans, 517 U.S. 620 (1996). We believe that the court’s determination that because Angela is in a same-sex relationship, it is sexual misconduct is not only incorrect but also singles her out for disparate treatment. Further, the United States Supreme Court held in Palmore v. Sidoti, 466 U.S. 429 (1984), in a case involving interracial marriage that custody cannot be denied based on the private biases of others. Hence, characteristics such as race, religion, or sexual identity provide no basis for generalized court concern. Finally, in Vinson v. Sorrell, 136 S.W.3d 465 (Ky.2004), the Court said that “[p]arents of a child have a fundamental, basic and constitutional right to raise, care for, and control their own children.” Thus, it is a violation of Angela’s due process, equal protection, and fundamental right to parent her children using only her sexual orientation as a determinative factor....

The only issue specifically mentioned by the family court, which was related to future harm to the children, is that the children might be teased about their mother’s same-sex relationship and that it might cause difficulty with the parents’ communication. If the children are subject to teasing, it will likely occur whether their mother has custody or not. The harm from removing them from a positive and loving relationship with their mother seems much more consequential. As far as communication problems, most divorcing couples with children must learn after a breakup to communicate properly and deal with conflict. Angela’s sexual orientation does not seem causative or primary to these parents’ difficulties with communication. In sum, the evidence indicated that the children are thriving and that the present arrangement for physical custody of them has not hampered the parents communicating about the children’s schooling, extracurricular activities, health matters or vacations. Harm to these children must have an evidentiary basis and cannot be assumed. Here, harm has not been shown....

Finally, we deal with Angela’s argument that the family court abused its discretion by restricting the parties from cohabitating with a person that he or she is not married to during parenting time. Because we are remanding this case to the family court, the prohibition on non-family members spending the night should be retried on remand. This retrial must be done with the understanding that the cohabitation of any party, while a factor, is not dispositive on its own. It must be ascertained with the children’s best interests in mind. Clearly, changes in moral standards and the inability of same-sex couples to legally marry are also relevant. Consequently, the family court must determine the efficacy of the prohibition based on the best interests of the children.

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.

So report RIA Novosti, Radio Free Europe/Radio Liberty, the Kyiv Post, and Lenta.ru (in Russian). From the Radio Free Europe/Radio Liberty story:

The draft, approved by lawmakers on October 2, would make what it calls “promotion of homosexuality” — defined as taking action to create a positive portrayal of gays — a crime.

Supporters of the bill argue in a note accompanying the draft that “the spread of homosexuality constitutes a threat to national security” because the lifestyle choice could lead to an HIV/AIDS “epidemic,” destroy the institution of family, and lead to a shortage of children which could trigger a “demographic crisis.”

The bill calls for punishment of up to five years in jail.

Parliament must approve the bill in a second reading before it can be sent to President Viktor Yanukovych for signature into law. Reports say it is unclear if Yanukovych intends to sign it....

The measure follows similar legislation that was passed and took effect this year in Russia’s second city of St. Petersburg and has been proposed in Russia’s State Duma lower house of parliament....

The bill’s [authors] have reportedly cited the Oscar-winning Hollywood film “Brokeback Mountain,” which features gay love between two male cowboys, as an example of what could be considered homosexual propaganda under the measure....

Thanks to Don Kates for the pointer; for my earlier post about the bill, before the most recent vote, see here. The Ukrainian language text is available here; I don’t know Ukrainian, but it’s close enough to Russian that I can get a general sense, and the operative text seems consistent with the news account. In particular, the operative text does seem short and lacking in a definition of “promotion of homosexuality,” though I’m not sure whether the longer explanatory note accompanying the operative text has something useful.

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.

According to Interfax:

The Moscow City Court has again upheld a ban on gay pride parades in Moscow for the next 100 years....

According to earlier reports, the organizers of the Moscow gay pride parade on August 23 submitted to the Moscow government and the Moscow Main Interior Affairs Department notices of their intention to hold gay pride parades .... The Moscow government declined to authorize the events ..., citing possible unrest and the opinion of the majority of city residents, who oppose such events.

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.

The New York Times reports on this in English; here are also some Russian-language sources, Kommersant (Ukraine), URA-Inform (Ukraine), and Regions.ru (Russia). According to the Times, the proposal would define the prohibited propaganda as “positive public depiction of gays in public,” and the other articles seem consistent with that; if anyone can point me to the Ukrainian-language text of the proposed law or some reliable Russian translation, I’d love to verify that.

The Times also it is “unclear how much support the bill enjoys among lawmakers,” and that “President Viktor Yanukovych has remained mum about the initiative.” Nonetheless, “the fact that [President Yanukovych's] parliamentary representative Yuri Meroshnichenko supports the bill is an indication that Yanukovych may back it as well.” Kommersant also reports that the authors of the proposed law include representatives of all the factions in Parliament, except the People’s Party (which is a relatively minor party).

Note also that, as the Times reports, “St. Petersburg, Russia’s second-largest city and regarded as one of the country’s most sophisticated, this year passed a law mandating fines of up to $33,000 for promoting homosexuality among minors.”

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.

This week I’ll be discussing my new book, Flagrant Conduct: The Story of Lawrence v. Texas, at two different venues. On Thursday, the Charles Hamilton Houston Institute for Race & Justice will sponsor a speech at Harvard Law School from 5:30-7:00 p.m. Details are available here. 

On Friday evening at 7:00 p.m., I’ll be speaking in Washington, D.C. at the bookstore Politics & Prose.  Andrew Sullivan will offer commentary.  Details about that event are available here.