The Volokh Conspiracy

The Pew Forum’s survey of international Muslim attitudes asks, among other things,

Some people think that if a woman engages in premarital sex or adultery it is justified for family members to end her life in order to protect the family honor. Do you personally feel that this practice is [often justified, sometimes justified, rarely justified, or never justified].

It also asks the same question about men engaging in premarital sex or adultery.

The results:

(1) There’s a vast range of attitudes on the subject in various countries, with “never justified” ranging from just over 80% (in Azerbaijan, Kazakhstan, and Indonesia) to just under 25% (in Afghanistan and Iraq).

(2) In most countries, the respondents’ answers as to “honor killing” of women is very close to their answers as to men, including in many of the countries where there’s a lot of support for such killings. Only a few countries had statistically significant differences, ranging from 47% (81% believe that “honor killing” of men is never justified but only 34% believe that as to women) in Jordan, 10 or 11% in Iraq and Egypt, 7% in Russia, and 14% in the opposite direction in Uzbekistan.

(3) Though the Pew report states, “The Quran and hadith do not condone honor killings, that is, taking the life of a family member who has allegedly brought shame on his or her family,” in a substantial minority of the surveyed countries attitudes towards “honor killings” are significantly correlated to support for imposing Sharia law.

(4) Support for such “honor killings” is shockingly high in some countries. In Afghanistan, for instance, 37% of Muslim respondents say that such killings of women are “often justified,” and 23% say “sometimes justified.” In Iraq, 44% say “often” and 16% say “sometimes.” In Bangladesh, Egypt, Jordan, Lebanon, Pakistan, and the Palestinian Territories, 36% to 41% of respondents say they are often or sometimes justified (and still more say they are justified only rarely).

UPDATE: Commenter SykesFive notes that the question was asked differently in Uzbekistan, Afghanistan, and Iraq (emphasis added): “Some people think that if a woman brings dishonor to her family it is justified for family members to end her life in order to protect the family’s honor....” I don’t know how this might affect the respondents’ understanding of the question, and I assume that the Pew people thought that the italicized clause would be understood as generally referring to supposed sexual misconduct; but it’s certainly worth noting.

The Jerusalem Post reports (thanks to Prof. Howard Friedman (Religion Clause) for the pointer):

In a groundbreaking ruling, the Jerusalem District Court upheld an earlier decision of the magistrate’s court that women who wear prayer shawls (“tallitot” in Hebrew) at the Western Wall Plaza are not contravening “local custom” or causing a public disturbance, and therefore should not be arrested.

The issue of equal prayer rights at the site has risen to the forefront of public debate in recent months due to the frequent arrests of women participating in the prayer services that the Women of the Wall activist group holds there....

The Regulations for the Protection of Holy Places to the Jews, dating from 1981, forbid performing religious ceremonies that are “not according to local custom” or that “may hurt the feelings of the worshipers” at the site, where local custom is interpreted to mean Orthodox practice.

These regulations and their interpretation, which a Supreme Court ruling upheld in 2003 and a Justice Ministry directive reiterated in 2005, have been the legal basis for the regular arrests of women who perform Jewish customs at the Western Wall that are usually practiced only by men in Orthodox Judaism....

[But] Judge Moshe Sobell ... ruled that the definition of “local custom” did not automatically mean Orthodox practice... In reference to the charges of causing a public disturbance and disturbing the peace, Sobell ruled that even if the women had behaved in a way that was disruptive, they were in no way suspected of violent or verbal behavior that would either disturb the peace or endanger the public.

I take it there’ll be further litigation on this, given the apparent conflict with the earlier Supreme Court ruling. I blogged about the issue last year, so I thought I’d note this new development.

For a long time, the conventional wisdom among legal scholars has been that an originalist interpretation of the Fourteenth Amendment would require courts to uphold laws that discriminate against women and laws banning interracial marriage. While these arguments were once advanced by defenders of sexism and Jim Crow laws, today they are usually used as justification for rejecting originalism itself rather than for rejecting court decisions such as Loving v. Virginia, which struck down anti-miscegenation laws. At the same time, most scholars have also argued that the original meaning of the Amendment permits states to adopt affirmative action programs.

Recent scholarship has called this conventional wisdom into serious question. In 2011, Northwestern law professor Steven Calabresi and Julia Rickert published an important article outlining an originalist case for striking down laws that discriminate on the basis of sex. More recently, both Calabresi (with Andrea Matthews) and David Upham have published originalist defenses of the result in Loving.

Just a few days ago, Michael Rappaport posted this paper questioning the conventional wisdom on originalism and affirmative action (which I myself questioned much less thoroughly here). It is not my view that the original meaning of the Fourteenth Amendment clearly requires courts to strike down all affirmative action programs. But the application of the original meaning to these programs is far from being as clear as the conventional wisdom suggests.

I don’t think the work of Calabresi and his coauthors, Rappaport, and Upham will definitively end the debate over originalism and discrimination. Critics of originalism will likely develop rebuttals to their arguments. But this new wave of scholarship does mount a strong challenge to the previously dominant conventional wisdom.

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.

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.

The Pentagon’s recent decision to open up combat roles to women has led legal scholar Gerard Magliocca wonder whether our current system of male-only draft registration is still constitutional. Conservative commentator Dave Carter predicts that the courts will rule that it is not, and women will be made subject to the draft.

In the 1981 case of Rostker v. Goldberg, the Supreme Court upheld the constitutionality of male-only draft registration in part because women were barred from combat roles, and female draftees are therefore less valuable to the military than male ones would be. In the thirty years since then, more and more combat roles have been opened up to women, and the Pentagon’s most recent decision is likely to eliminate most if not all remaining gender-based restrictions. So that rationale for a male-only draft is undercut.

But then-Justice William Rehnquist’s majority opinion also relied heavily the courts’ “lack of competence” on national security issues and the consequent need for “healthy deference to legislative and executive judgments in the area of military affairs.” That deference might justify upholding male-only draft registration even if all or most combat positions are open to women. The federal government could argue that, in the expert judgment of the military, few women have the strength and endurance needed for many combat positions, even if they are not categorically barred from them. Thus, female draftees might still be less useful to the military than male ones. A court applying “healthy deference” might choose not to contest that assertion.

Lower courts applying Rostker could therefore still conclude that male-only draft registration is constitutional, though Rostker is ambiguous enough on the amount of deference due that the issue is not a slam dunk. If the issue gets to the Supreme Court however, I’m far from certain that Rostker wouldn’t be overruled or severely limited. As compared with 1981, the idea of women serving in combat is far more widely accepted by both elite and public opinion. And sex discrimination in draft registration is likely to seem like an outdated relic of the days when women were barred from numerous positions in the military. If the Pentagon sticks to its new policy on women in combat, I think it’s likely that some male plaintiff will bring a new challenge to the selective service registration system, and that plaintiff will have a good chance of succeeding. Like most other constitutional law scholars, I think that Rostker was a dubious decision, and would not shed many tears if it were overruled. For reasons outlined by Steven Calabresi and Julia Rickert, there is also a good originalist case for courts’ taking a strong line against sex discriminatory laws.

Even if Rostker is overruled, it does not follow that women will ever actually be drafted or that such a draft would be constitutional. Elsewhere, I have argued that a draft of any kind violates the Thirteenth Amendment’s ban on involuntary servitude, and that the Supreme Court’s 1918 decision upholding the draft against a Thirteenth Amendment challenge is poorly reasoned and badly misguided, as was a 1916 precedent upholding a Florida law requiring able-bodied male citizens to perform forced labor on public roads. For reasons I outlined here, I am not much moved by arguments that, in some extreme cases, a draft might be the only way to ensure national survival.

I doubt that the Supreme Court will overrule these decisions in the near future. But even if it doesn’t, we are unlikely to see the reinstatement of the draft. Conscription is gradually declining around the world because it is both unjust and inefficient, and tends to degrade the quality of armed forces that rely on it. The public, some 80% of recent veterans, and most political elites oppose the return of the draft in the US. Ultimately, the best way to ensure that women will never be drafted is to not have a draft at all. Men and women should be allowed to serve in the military on an equal basis, but neither should be forced to do so.

The Pentagon’s recent decision to abolish most restrictions on women serving in combat leads conservative commentator Dave Carter to worry that women will now be subject to the military draft:

It was 22 or 23 years ago, I think, that I wrote in the Air Force Times a cautionary article on the combat exclusion that prohibited women from joining front line combat units. My concern then, as now, was that lifting the combat exclusion would removed the only remaining barrier to our daughters, wives, moms, and sisters being eligible for a military draft....

In 1982, the Supreme Court ruled in Rostker v. Goldberg, that the requirement for males to sign up for Selective Service was constitutional precisely because women were excluded from serving in front line combat units. “The court ruled that the Selective Service process is designed to assemble combat-ready people, and right now women are excluded from combat arms,” said Professor Anne Coughlin, of the University of Virginia School of Law in Charlottesville. “Therefore,” she said, “they can’t participate in the very thing that the draft is for.” But that was then. Now, retired Colonel Peter Mansoor, a former US Army brigade commander and veteran of two tours of duty in Iraq, currently a professor of military history at Ohio State, says, “If women are acceptable to serve in combat, they are acceptable to serve whether they volunteer or not. You can’t have the frosting on the cake and not the cake underneath....”

It speaks volumes that the party of young men who once gleefully burned their draft cards has degenerated into the party of old men who declare their daughters and granddaughters eligible for the draft. But to do so in Orwellian tones of, “…moving forward with a plan to eliminate all gender-based barriers to service,” adds injury to insult....

Personally, one of the reasons I spent 20 years in uniform and volunteered to go to very unpleasant places was so that my daughter, my sisters, my mother and grandmothers might never have to taste the bitter cup of life under such inhumane and inhuman conditions. It seems now that my service in that regard might have been squandered.

Carter’s military service is admirable. But his logic in this post is far from compelling. The obvious way to avoid drafting women is to not have a draft at all. For reasons I summarized here, conscription reduces the quality of the military, is economically inefficient, and makes it more likely that military commanders will squander lives in wartime. In addition, it is a form of forced labor that severely infringes on individual liberty. Carter is absolutely right that we should not force women to “taste the bitter cup of life under such inhumane and inhuman conditions.” We shouldn’t force men either.

Furthermore, opening up combat positions to women increases the potential pool of volunteers for the military, and thereby actually reduces the likelihood that we will ever need a draft. Perhaps only a very small percentage of women will have both the ability and the desire to serve in combat. But in a nation of 300 million people, that very small percentage might still amount to a significant number of troops in absolute terms.

I can imagine hypothetical cases where having a draft may be justified because it is the only way to avoid conquest by a totalitarian enemy that will impose even greater violations of liberty than the draft itself. In the real world, however, abjuring the draft both promotes freedom and improves the quality of the military.

In the highly unlikely event that such an extreme case were to arise, I don’t see the justice of limiting the draft to men. It is true that female draftees might face terrible risks. But that’s also true of men. Male POWs have been raped, tortured, and otherwise abused by our enemies, just as women have. Think of John McCain’s experiences in the Hanoi Hilton.

It may well be that a much smaller percentage of women than men have the physical strength and endurance needed for some combat jobs. But when a draft is justified at all, that statistical variation is no reason to exclude those women who do meet the required physical standards. If members of a particular racial or ethnic group are, on average, smaller and weaker than members of other groups, that is no justification for categorically excluding all members of that group from draft eligibility. The same point applies to women.

UPDATE: In the original version of this post, I accidentally failed to include a link to the post by Dave Carter to which I am responding. I have now corrected that mistake.

UPDATE #2: A commenter asks whether I support abolition of today’s male-only system of selective service registration. Indeed, I do. Since I oppose the draft, I also oppose mandatory draft registration. In the highly unlikely event that a draft will ever be justified in the foreseeable future, I believe registration should apply to men and women equally.

Michigan State University apparently has a women-only student lounge — a room for studying, not a restroom or a locker room. A reader asked whether this is permissible; the answer is pretty clearly no, given the Court’s modern Equal Protection Clause jurisprudence.

Sex classifications are impermissible under the Court’s precedents unless they are backed by an “exceedingly persuasive justification“; it’s hard to see such a justification for a women-only lounge, especially (but not only) if no men-only lounge is available. And that the discrimination is as to something quite minor — access to a room, and not to the university as a whole or an educational program within the university — doesn’t matter when it comes to the Equal Protection Clause. (It’s also possible that the existence of the lounge violates federal statutes and state statutes or state constitutional provisions, but I set that aside for purposes of this post.)

Veronica Goudreau and Andrew Lemieux conceived a child, Alexander. (As it happens, they were minors, in high school, but that needn’t matter for the legal analysis.) They then broke up, but Lemieux wants to help raise the child.

When the child was born, Goudreau named the child Alexander Bailey Goudreau. But when the child was a year old, the father (represented by his parents as plaintiffs) asked that the child’s name be changed to Alexander Bailey Lemieux. The court renamed the child Alexander Goudreau Lemieux, reasoning,

The court makes it[s] decision based on the best interests of Alexander. Alexander has two parents who both care for him and love him. Andrew Lemieux’s commitment to Alexander should be demonstrated in Alexander’s name, as should Veronica Goudreau’s.

And on appeal, the New Hampshire Supreme Court (In re Name Change of Alexander Goudreau (N.H. Oct. 30, 2012)) agreed:

[W]e hold that the trial court sustainably exercised its discretion in changing the child’s name to Alexander Goudreau Lemieux. The record supports the trial court’s findings that, at the time of the petition’s filing, both mother and father cared for, loved, and were committed to Alexander — findings which mother does not challenge on appeal. Accordingly, we conclude that the trial court had an objective basis sufficient to sustain its conclusion that Alexander’s full name should include both parents’ surnames. On appeal “[w]e consider only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made, and we will not disturb the trial court’s determination if it could reasonably have been made.” Although additional fact finding might have aided our review of the trial court’s order, we conclude that the trial court could reasonably have found that the name Alexander Goudreau Lemieux was in the child’s best interest.

But, accepting the value of maintaining a connection in the name to both parents, why does it follow that the child should be named Alexander Goudreau Lemieux, rather than Alexander Lemieux Goudreau?

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.

See Caroline Mala Corbin, Expanding the Bob Jones Compromise, in Matters of Faith: Religious Experiences and Legal Responses in the United States (forthcoming, Cambridge University Press). This isn’t the first such call, but it still struck me as noteworthy. Indeed, the rationale — that exemptions are generally denied to racially discrimination groups, so they should also be denied to groups that discriminate based on sex (for instance, in choice of clergy) — suggests that similar arguments would likely be made in the future as to groups that exclude gays and lesbians from the ministry as well. And conversely the argument that sex orientation discrimination is just like race discrimination, if accepted, will strengthen the appeal of the arguments that sex discrimination is like race discrimination, too, and should be just as marginalized as race discrimination even in matters such as the selection of priests and rabbis.

I should note that I don’t think such a denial of tax exemptions to sex-discriminatory groups — if applied generally to all groups, religious and secular — would be unconstitutional; see Freedom of Expressive Association and Government Subsidies, 58 Stan. L. Rev. 1919 (2006). Just as the government may deny tax exemptions to groups that engage in First-Amendment-protected electioneering, and substantial amounts of First-Amendment-protected lobbying, and just as it may deny funding for constitutionally protected abortions and access to government property for constitutionally protected abortions, so it may deny tax exemptions to groups that engage in discrimination that’s protected under the First Amendment’s religious association or expressive association protections.

But I think such proposals are bad policy, and are contrary to the worthy American tradition of religious pluralism and tolerance. When the government (federal, state, and local) spends over 1/3 of the gross domestic product, and when tax exemptions are broadly available to a vast range of charitable organizations, it would be wrong, I think, to deny this same exemption to religious institutions that take a different approach to sex relations than does the government (assuming the government indeed adopts the rigid view that the professor suggests).

I take the same view as to groups (religious and ideological) that engage in constitutionally protected race discrimination, for instance in selecting clergy. While I think such discrimination is wrong, I don’t think religious and expressive groups that engage in such discrimination ought to be excluded from such generally available benefit programs. But even if one thinks that race discrimination is so especially bad that it warrants the total exclusion of race-discriminatory groups from generally available programs, I don’t think that this ought to extend to sex. There are many real differences between the sexes, differences that decent people can see as justifying different gender roles, in the family, in the church, and in life more broadly; religious groups that embody such distinctions in their ordination decisions and their educational practices ought to do so without the massive government pressure that denial of generally available tax exemptions would provide.

And I hope that religious groups that could be affected by such proposals watch out for them, and try to act proactively to persuade the public that antidiscrimination norms should not extend that far. Indeed, Catholic groups’ recent statements defending their rights to discriminate based on sexual orientation in various charitable activities may be a way to do that — to reinforce the notion that religious groups should not be excluded from generally available benefit programs because they disagree with an emerging orthodoxy about sexuality or sex roles.

803 Code Mass. Regs. § 1.40(9)(c)(2) provides that, in determining a sex offender’s likelihood of recidivism — which in turn bears on what sort of registration requirements apply to the sex offender — one factor should be whether the offender is a “male offender who commits a sex offense, as defined in M.G.L. c. 6, § 178C, against a male victim. This demonstrates the degree of sexual deviance associated with this offender (Hanson & Bussiere, 1998; Hanson & Bussiere, 1996; Freund & Watson, 1991).” Doe v. Sex Offender Registry Board (Mass. 2008) upheld this against an Equal Protection Clause challenge (paragraph break added):

In determining the plaintiff’s likelihood of recidivism and degree of dangerousness, the hearing examiner also considered the fact that the plaintiff’s victim was a male. Title 803 Code Mass. Regs. § 1.40(9)(c)(2) advises that among the elements to consider in assessing the nature of a particular sex offense is whether the offense was committed by a male offender on a male victim. The plaintiff claims that the hearing examiner’s application of this regulation to his case penalized him for being homosexual in violation of his equal protection rights. This claim has no merit.

The equal protection analysis under both the State and Federal Constitutions is the rational basis test. The challenged regulation was drawn from findings of sex offender experts (as cited in the regulation) in order to assist the board in determining more accurately a sex offender’s risk to reoffend and level of dangerousness. Prefatory language to the regulation explains: “Much can be learned about an offender by studying the nature of the offenses he has committed.... Based on its review of the research, the [b]oard found the presence of deviant sexual interests dramatically increases the risk of reoffending and that the strongest deviant sexual interests have empirically been found to be more prevalent among those offenders who victimize strangers, prepubescent children, non-consenting males, [or] vulnerable persons.... The [b]oard otherwise, or unless indicated in this [subsection], does not consider sexual gender orientation of either the offender or the victim in determining the risk to reoffend [or] degree of dangerousness posed.”

We have no difficulty concluding that the regulation serves a legitimate State interest and does not seek to punish, or impose an adverse classification on, the sexual behavior of consenting male adults. It follows that cases relied on by the plaintiff, see Lawrence v. Texas, 539 U.S. 558, 563 (2003), and State v. Limon, 280 Kan. 275, 284 (2005), do not support his equal protection claim.

Is this right? In particular, should this be viewed as discrimination based on sexual orientation, or discrimination based on the offender’s sex, which is subject to a rather demanding form of “intermediate scrutiny” under the U.S. Constitution and “strict scrutiny” under the Massachusetts Constitution? And even if heightened scrutiny is required — whether because this is a sex classification, or because you think that sexual orientation classifications should be subject to heightened scrutiny — should that scrutiny be satisfied if there is indeed sufficient evidence that male offenders against male victims are especially likely to repeat their crimes?

Tommorrow from noon to 1 PM Pacific time (3-4 Eastern), I will be appearing on Bob Zadek’s talk radio show in San Francisco to talk about the gay marriage litigation and other related issues. Zadek is a libertarian political commentator and lawyer who hosts a weekly talk show devoted to various political and legal issues. Details on how to listen and call in are available here, including a way to listen through the internet if you are in the San Francisco area.

For my argument that bans on gay marriage are constitutionally suspect because they discriminate on the basis of sex, see here and here. In this series of posts from 2008-09, I explained why gay marriage lawsuits (at least at the state level) have been a net plus for the cause of gay rights, despite the political backlash that they generated.

We will likely discuss both questions during the show, as well as others, such as whether or not government should be involved in the business of defining marriage at all.