The Volokh Conspiracy

Noted lawyer Gloria Allred, writing on the letterhead of the Women’s Equal Rights Legal Defense and Education Fund has asked the West Palm Beach County Attorney to prosecute Rush Limbaugh for violating Fla. Stat. § 836.04:

Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree ....

Readers of the blog know of my disapproval of Rush Limbaugh’s “slut”/”prostitute”; but while I condemned those remarks, they can’t be criminally punished.

1. Knowingly false statements of fact about a person are indeed constitutionally unprotected, whether they injure the person’s reputation (and are thus libel or slander) or would simply be highly offensive to a reasonable person (and are thus actionable under the false light tort. But that is so only when a reasonable listener would perceive these as factual assertions, not as hyperbole or as statements of opinion.

Thus, for instance, say that A asserts that B is guilty of “blackmail.” Blackmail is a crime, and accusations of crime are generally actionable libel. But if in context it is clear that the word is “rhetorical hyperbole, a vigorous epithet used by those who considered [B]‘s negotiating position extremely unreasonable,” then the accusation is constitutionally protected opinion — it is basically an assertion that B’s accurately described conduct is morally similar to blackmail, a statement of opinion (and perhaps clearly understood hyperbole). So the Court held in Greebelt Coop. Pub. Ass’n, Inc. v. Bresler (1970).

Limbaugh’s saying that Fluke’s testimony “makes her a slut” and “makes her a prostitute” falls into the same category: Listeners would understand is as “rhetorical hyperbole, ... vigorous epithet[s] used by [Limbaugh,] who considered [Fluke's advocacy] extremely unreasonable,” an assertion (however logically unsound, in my view) that Fluke’s demands are morally similar to a prostitute’s insistence on getting money for sex. That is a statement of opinion and constitutionally protected.

[UPDATE: Some comments led me to conclude that I should elaborate on this, so I added the following paragraph.] The same is so for the “slut” claim, for a related reason: Limbaugh isn’t claiming any private knowledge of Fluke’s number of sexual partners; he is simply expressing his opinion that people who are as concerned about contraceptive costs as Fluke are probably sexually promiscuous, and that Fluke fits that mold. Reasonable listeners would understand that as an opinion expressing a generalization about how people tend to behave. To borrow an analogy from Restatement (Second) Torts § 566 cmt. c ill. 4, “A writes to B about his neighbor C: ‘He moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand. I think he must be an alcoholic.’ The statement indicates the facts on which the expression of opinion was based and does not imply others. These facts are not defamatory and A is not liable for defamation.” In the illustration, the statement is seen as an opinion about what to infer from the facts, and is thus not actionable; that is even more clearly true as to the statement that, “What does it say about the college co-ed Sandra Fluke, who goes before a congressional committee and essentially says that she must be paid to have sex, what does that make her? It makes her a slut, right?”

Milkovich v. Lorain Journal Co. (1990) suggests that the First Amendment doesn’t fully constitutionalize the § 566 principle. But I think that Limbaugh’s broad generalization-based inference — and one that uses a term, “slut,” that is itself so vague and opinion-laden, given that it basically means “more sexual partners than I think is proper” — would in context be seen as constitutionally protected opinion and not the sort of particularized fact-based accusation at issue in Milkovich. And in any event, as a state law matter, Florida courts have apparently adopted the § 566 cmt. c approach. (See, e.g., Stembridge v. Mintz (Fla. Ct. App. 1995).)

If Limbaugh had called Fluke “prostitute” or “slut” in a different context, in which he was asserting that she actually was paid money for sex in a normal prostitution transaction, or that he knew that she actually had sex with many partners, then it might well be actionable. But I don’t think that this is how Limbaugh’s statements would be perceived by listeners. Marc Randazza (Citizen Media Law Project) has much more on this.

2. Beyond this, the Florida criminal statute, which explicitly applies only to accusations about women and not men, almost certainly violates the Equal Protection Clause doctrine that bans most forms of sex discrimination. (See, e.g., Mississippi Univ. for Women v. Hogan (1982).) This doctrine has long been used to invalidate laws that ostensibly favor women but are based on, and perpetuate, sex-based norms of proper behavior; and at least two cases, Ivey v. State (Ala. 2001) and Rejent v. Liberation Pubs. (N.Y. App. Div. 1994), have specifically concluded that such sex-based rules in libel law are unconstitutional — here’s what Rejent said:

It is, as one commentator has noted, ‘quite blatantly sexist and discriminatory, and is based on outmoded assumptions about sexual behavior. Sex-based classifications very similar to the ‘unchastity of a woman’ rule have been struck down by the United States Supreme Court as violative of the equal protection clause.... The Restatement (Second) takes a laudable lead in this area, modifying the traditional rule to a sex-neutral standard that renders any imputation of ‘sexual misconduct’ by a man or woman slanderous per se.

And since I quite doubt that Florida courts would be willing to cure the discrimination by broadening the criminal law to cover accusations against men — courts in most states generally aren’t allowed to essentially criminalize behavior that the legislature hasn’t criminalized — I think the Florida statute would have to be struck down as an Equal Protection Clause violation, leaving it to the legislature to decide whether to reenact a sex-neutral statute. Such a sex-neutral statute would probably be considered a constitutional criminal libel statute if limited to knowing falsehoods; Garrison v. Louisiana (1964) suggests that such criminal libel statutes are constitutional if suitably limited, and I suspect that the focus on accusations of sexual impropriety would be constitutional despite R.A.V. v. City of St. Paul (1992), because it seems unlikely to be aimed at the suppression of ideas. But it would be up to the Florida Legislature to create such a sex-neutral statutes, and not to the Florida courts to broaden it. (For an extremely rare case where a court solved a constitutional problem with a criminal statute by broadening the criminal prohibition, see People v. Liberta (N.Y. 1984), a case that was driven by felt moral imperatives that are likely not to be present here.)

In a thoughtful recent post, co-blogger Dale Carpenter takes issue with my argument that bans on same-sex marriage are best attacked on the grounds that they are unconstitutional sex discrimination, and parts of my post suggesting that a minimalist strategy in the gay marriage litigation is not likely to work. Dale is one of the leading academic experts on the law of same-sex marriage, so I take his points very seriously. Nonetheless, I remain unrepentant.

Dale argues that the sex discrimination argument is flawed because “(1) it obscures the heart of the equal protection issue, continuing exclusion of gay men and lesbians, and (2) it isn’t sufficiently attuned to the Court’s sex-discrimination cases, which do suggest a lower level of scrutiny when legislation addresses ‘real differences’ between men and women (like the capacity to get pregnant or, one might say in the marriage context, the capacity to procreate as a couple).” On the first point, I think this “obscurity” is part of the strength of the argument. The idea that discrimination on the basis of sexual orientation should be subject to strong judicial scrutiny has no roots in the original meaning of the Fourteenth Amendment and only a modest basis in recent precedent (Romer v. Evans). By contrast, sex discrimination has long been subject to heightened scrutiny, and, as I noted in my first post on the subject, there is growing recognition that this is consistent with the original meaning. Most important, as I explained in some detail in the earlier post, laws banning same-sex marriage do not in fact ban anyone from marrying anyone else because of their sexual orientation. Anne is free to marry Bob even if one of them is gay or lesbian. On the other hand, these laws do restrict marriage rights on the basis of gender. Bob cannot marry Colin solely because he is a man. The greatest strength of the sex discrimination argument is that it directly confronts what the anti-same sex marriage laws actually do: limit marriage rights on the basis of gender. Obviously, these laws may well be motivated in large part by hostility towards gays and lesbians. But it is generally easier to attack a law based on its actual text than on the possible motivations behind it.

On Dale’s second point, it is essential to recognize that bans on same-sex marriage do not actually “track ‘real differences’ between men and women.” Yes, only an opposite-sex couple can procreate by natural means. But traditional marriage laws do not deny the right to marry to couples where one partner is sterile, couples that are too old to conceive, and so on. These couples can, of course, acquire children by adoption. But the same goes for same-sex couples.

Dale also attacks my claim that gay rights advocates should make a full-blown argument for the unconstitutionality of same-sex marriage bans in this case because, as I put it, a defeat might “lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.” In his view, Bowers was an unmitigated “calamity” for gay rights because it “was used by courts to deny gay-rights claims in the military, in housing, in public and private employment, in custody, in child visitation, and so on. Politically, the presumptive criminal status of homosexuals was used as a reason to resist every proposal for gay-rights legislation, from hate-crimes laws to marriage, even in states that had no sodomy law.” As I see it, however, all of this would have happened even in the absence of Bowers. Had there been no Bowers, some states would still have retained anti-sodomy laws, and most people would still have assumed that those laws are constitutional. Indeed, the absence of any strong legal challenge to them would have reinforced that assumption. With Bowers, by contrast, anti-sodomy laws were upheld by a shaky 5-4 Supreme Court majority. When the Court splits 5-4 on an important constitutional issue, everyone realizes that that question is far from settled and that the Court might well reverse itself in the future. That’s a net gain for the side that lost the case if that side was the one trying to change the status quo.

Dale ends by suggesting that “Bowers ‘laid the groundwork’ for Lawrence only in the sense that Pearl Harbor paved the way for VJ Day.” This is actually not a bad analogy. Pearl Harbor did in fact lay the groundwork for VJ day. It did so by mobilizing American public opinion against Japan, leading to a strong determination to pursue the war until total victory. In retrospect, launching a surprise attack on Pearl Harbor was a terrible mistake by the Japanese that sealed their doom. Similarly, Bowers outraged liberals and gay rights advocates, while at the same time the narrow margin of defeat led them to realize that they could prevail in the future. And win they did.

A similar happy outcome in Perry is far from certain. Perhaps gay rights advocates will suffer a more lopsided defeat in this case than in Bowers, and thereby become demoralized. As I noted earlier, this lawsuit is probably premature. That said, the tide of opinion is rapidly shifting in favor of gay marriage, and – over time – the balance of power between the two sides will shift as well, even if not as rapidly as the balance between the US and Japan shifted in 1942. It is therefore unlikely that a defeat in Perry v. Brown will set back the cause of gay rights for very long. Perry may indeed turn out to be like Pearl Harbor. But perhaps not in the way Dale supposes.

In a recent post, co-blogger David Bernstein partially rejects my argument that a ban on same-sex marriage qualifies as sex discrimination. As David puts it:

On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination. On the other hand, from opponents’ perspective, the point is that “marriage” has been defined for several thousand years in Judeo-Christian culture as between a man and a woman, and retaining that definition is not sex discrimination.

The opponents’ argument, however, in no way refutes mine. Many forms of sex discrimination have “several thousand years” of tradition behind them, often backed by religion. Consider such cases as the exclusion of women from many professions, unequal divorce laws, the treatment of wives and daughters as the property of their husbands and fathers, and so on. The fact that a form of sex discrimination has existed for a long time and enjoys religious backing does not make it any less discriminatory.

I am also unmoved by David’s analogy between a ban on same-sex marriage and a hypothetical Israeli law under which boys are entitled to a state-recognized “bar mitzvah,” while girls only get a “bat mitzvah,” which has the same legal status but is less prestigious. If the bar/bat mitvah were a government-endorsed legal status rather than a private cultural and religious tradition, it would still be sex discrimination for the state to allocate that status on the basis of gender – especially if one of the two labels were in fact more prestigious than the other. I would say much the same thing about David’s hypothetical of a female monarch who wishes to be labeled a “king” rather than a “queen.” These examples only have intuitive appeal because in modern liberal society, we generally regard bar and bat mitzvahs and kings and queens as essentially equal to each other (though I recognize that many Orthodox Jews disagree as to the bar and bat mitzvahs). It therefore seems pedantic to insist on one label or the other. By contrast, most people see “civil union” as a lower status than “marriage,” even if the legal rights are identical.

Consider a law under which men are classified as “first class citizens” and women as “second class citizens.” Although the distinction was originally enacted for the purpose of asserting male dominance, recent legislation has given second class citizens the same substantive legal rights as first class citizens. But first class status remains more prestigious than second class. Assume also that the idea that women cannot be first class citizens is endorsed by thousands of years of religious and secular tradition. If a woman files a lawsuit claiming that the denial of first class citizen status is sex discrimination, she should surely win – at least under a constitution that either bans sex discrimination outright or subjects it to some form of heightened scrutiny.

As I said in my original post on this subject, not all forms of sex discrimination are unconstitutional. Current Supreme Court jurisprudence subjects gender classifications to heightened “intermediate” scrutiny without banning them completely; and I think this is roughly the right approach. If, for example, opponents of same-sex marriage can prove that legalizing it would inflict serious harm on children, then laws such as California Proposition 8 should not be invalidated. But government-sponsored sex discrimination does not become constitutionally permissible merely because it is backed by religion or tradition or because the discriminatory law in question is mostly symbolic in nature.

UPDATE: I have modified this post slightly in order to eliminate a few stylistic problems.

UPDATE #2: David responds to this post in an update to his original one:

Ilya starts his response by misapprehending my point. It’s not that marriage is “traditionally” between a man and a woman, and therefore limiting marriage to such is not sex discrimination. It’s that the very definition of the word “marriage” has, for hundreds or even thousands of year, been limited to relationships between men and women. Therefore, the argument would be that it’s not sex discrimination to limit the scope of state-recognized marriage to what comes within that definition, just like, e.g., it’s not sex discrimination to limit the title of King to men.

I don’t see how calling this a “definition” adds anything to the debate. Once the “definition” becomes a legal status assigned by the state, there is still sex discrimination if the status is awarded on the basis of gender. If the definition of marriage had, for many years been that it is a relationship between members of the same race, a law embodying that definition would still be an example of racial discrimination.

David also writes that “I want to reiterate that I agree that limiting marriage to opposite sex couples can accurately be described as sex discrimination; the question is whether it can also be accurately described in a different way, and if so, whether courts should stick their collective noses in the controversy by choosing which description they prefer.” As I said in the original post, the “different” description in no way undercuts the fact that the state is engaging in sex discrimination. There is no contradiction between the statement that laws against same-sex marriage discriminate on the basis of gender and the statement that they embody a long-standing definition of marriage. These claims are not mutually exclusive in any way, and both are in fact true.

Finally, David states that “if I’m following Ilya’s logic correctly, it would have been sex discrimination to limit the title of King to men, say, fifty years ago, when the title of Queen may have been considered relatively less important, but it’s not sex discrimination today. I don’t buy it. It was, by the logic of Ilya’s original post, sex discrimination then and it is discrimination now to limit the title King to men, but it also was just what the word ‘King’ meant then and now, and therefore not sex discrimination.”

As in the case of marriage, once “king” becomes a legal status as opposed to a mere word, it is sex discrimination if the state restricts that status on the basis of gender. In a society where there is no meaningful difference between the status of “king” and that of “queen,” however, it would not be sex discrimination if one word describes men who hold the position of monarch and the other women. Whether or not such a difference exists depends on various factors, including social context. Therefore, it is perfectly possible that limiting the title of “king” to men was an example of sex discrimination 50 years ago, but not today. In any event, whatever might be said of kings and queens, few today believe that marriages and civil unions are essentially the same thing, except for quirks of linguistic usage. Certainly not the supporters of Proposition 8, who devoted an enormous of effort to trying to pass a law ensuring that same-sex relationships cannot be legally considered marriages.

UPDATE #3: David has another update to his original post where he states:

The underlying purpose and therefore definition of marriage from thousands of years had nothing to do with race. So I agree that if, say, in the 17th century, instead of simply banning interracial marriage, a statute had simply defined marriage as not including interracial pairings that would be clear racial discrimination, even if “traditional”. By contrast, marriage was an existing form of male-female relationship that the state came to recognize.... so it wasn’t the state creating a sex distinction, it was the state recognizing a preexisting institution.

The state did not merely “recognize” a preexisting institution. It enshrined that institution into law and attached various legal privileges to it. The fact that the state’s official definition of marriage codified a preexisting understanding does not make that definition any less discriminatory. Let’s say that the definition of marriage as confined to same-race relationships had also existed “for thousands of years,” and was just as well-established as the definition of marriage as confined to opposite-sex relationships. Would that mean that a statute incorporating that definition into law is not race-discriminatory? Clearly, such a law would qualify as race discrimination, no matter how much people previously thought that marriage is, by definition, intraracial, or how long such a belief had persisted. The same logic applies to legal definitions of marriage that discriminate on the basis of sex rather than race.

On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination.  On the other hand, from opponents’ perspective, the point is that “marriage” has been defined for several thousand years in Judeo-Christian culture as between a man and a woman, and retaining that definition is not sex discrimination.

Imagine, for example, that having a bar mitzvah in Israel provided boys with various and important rights and obligations.   [Let me tighten the hypothetical a bit.] Imagine that in Israel, any thirteen year old Jewish boy could go to city hall and get a certificate of bar mitzvah, regardless of whether he had a religious bar mitzvah ceremony, and imagine further that this certificate provides the boys who get it with various important rights and privileges. Israel, recognizing that girls should be entitled to analogous rights, offers girls a [certificate of] bat mitzvah instead.  The bat mitzvah gives girls the same legal rights and obligations as boys, but because it’s not called a bar mitzvah, it’s less culturally significant and, according to critics bespeaks inequality (and in fact, while bar and bat mitzvahs don’t confer legal rights and obligations in Israel, it’s an important religious and cultural tradition. Girls don’t always get a bat mitzvah, and when they do, it’s rarely celebrated with the same vigor or considered as significant as a bar mitzvah in the same family).

A girl sues, demanding that she be entitled to a legally recognized “bar mitzvah.”  On the one hand, Ilya could rightly claim that by definition, denying her access to the status of “bar mitzvah” is sex discrimination.  On the other hand, defenders of limiting legally recognized bar mitzvahs to boys would rejoin that bar mitzvahs by definition, backed by hundreds of years of tradition and culture, are solely for males.

It strikes me that both sides have a point, and most likely the best thing for courts to do under such circumstances, where they’d basically just have to take sides in a culture war pitting feminists against religious and cultural traditionalists, is to stay out of it–so long as analogous rights and obligations are available to the plaintiff through an analogous ceremony certificate, in this hypo the bat mitzvah.

Disclaimer: While I don’t think that courts should recognize a right to same sex marriage by finding that the absence of such a right is sex discrimination, nor do I think courts should even take the position that is must be analyzed as sex discrimination, I support legislation providing for same-sex marriage. I’ll also add the disclaimer that I’m not addressing any other constitutional arguments that states must expand their definition of marriage to include same-sex couples.

UPDATE: Let’s add an interesting hypo to the mix: what if California, instead of having a domestic partnership law, instead created a new legal category called “same sex marriage” that had exactly the same rights and privileges as “marriage”, but every relevant statute that applied to marriage now applies to “marriage and ‘same-sex’ marriage”, or perhaps “‘traditional marriage’” and “‘same sex marriage’”.  Still sex discrimination if same sex couples aren’t eligible for “traditional marriage”? Again, I think that by definition the answer is yes, and by definition the answer is no.

FURTHER UPDATE: New hypo: A small European nation has a constitution that bans any form of sex discrimination.  The King  (who has only ceremonial duties) dies.  His daughter is next in line for the throne.  Even though she’d have the same legal rights, duties, and privileges either way, she demands to be crowned King, not Queen.  She points out that it’s sex discrimination that only men can be called “King”, argues that she will likely get less respect from her subjects if she is called Queen instead of King, and that the distinctions between “King” and “Queen” are rooted ancient patriarchy.  Valid sex discrimination claim?  Once again, my instincts are that (a) this, by definition is sex discrimination [or, more precisely, a classification based on sex and therefore subject to intermediate scrutiny under American law]; and (b) this, by definition, is also NOT sex discrimination, and if I were a judge I’d stay out of it.

RESPONSE TO ILYA: Ilya starts his response by misapprehending my point. It’s not that marriage is “traditionally” between a man and a woman, and therefore limiting marriage to such is not sex discrimination.  It’s that the very definition of the word “marriage” has, for hundreds or even thousands of year, been limited to relationships between men and women.  Therefore, the argument would be that it’s not sex discrimination to limit the scope of state-recognized marriage to what comes within that definition, just like, e.g., it’s not sex discrimination to limit the title of King to men. [And I want to reiterate that I agree that limiting marriage to opposite sex couples can accurately be described as sex discrimination; the question is whether it can also be accurately described in a different way, and if so, whether courts should stick their collective noses in the controversy by choosing which description they prefer.]

And if I’m following Ilya’s logic correctly, it would have been sex discrimination to limit the title of King to men, say, fifty years ago, when the title of Queen may have been considered relatively less important, but it’s not sex discrimination today. I don’t buy it.  It was, by the logic of Ilya’s original post, sex discrimination then and it is discrimination now to limit the title King to men, but it also was just what the word “King”  meant then and now, and therefore not sex discrimination.

If indeed the problem, as Ilya suggests, is that “civil union” doesn’t have the same cultural heft as “marriage,” then I think the argument is that everyone has the fundamental right to get “married,” which is a different argument for constitutionalizing for same sex marriage, and one that I don’t address.

FINAL UPDATE: When I say that marriage “by definition” has been a relationship between a man and a woman, I don’t mean that the government defined it that way.  Rather, the institution evolved, largely outside formal government, to bind a man and woman together into a long-term procreative relationship.  The fact that marriage is often NOT procreative these days (older couples and so on), and the core societal idea of marriage has shifted from pragmatic concerns to “life partner” are good policy arguments in favor of allowing gay marriage.  I don’t think it’s a good argument for denying the fact that the history of marriage and its relationship to the definition makes the equal protection constitutional argument somewhat dubious, as the definition was a result of the core purpose of the institution.  This is quite distinct from the example Ilya gives: “if the definition of marriage had, for many years, been that it is a relationship between members of the same race, a law embodying that definition would still be an example of racial discrimination.”  The underlying purpose and therefore definition of marriage from thousands of years had nothing to do with race. So I agree that if, say, in the 17th century, instead of simply banning interracial marriage, a statute had simply defined marriage as not including interracial pairings that would be clear racial discrimination, even if “traditional”.  By contrast, marriage was an existing form of male-female relationship that the state came to recognize (concubinage was another that has since died out) so it wasn’t the state creating a sex distinction, it was the state recognizing a preexisting institution.

Co-blogger Dale Carpenter argues that Judge Stephen Reinhardt’s recent decision striking down the California gay marriage ban is an attempt at “judicial minimalism” intended to make the outcome acceptable to a Supreme Court that is unlikely to rule that the Constitution requires nation-wide recognition of same-sex marriage. By “lowering the stakes,” Dale argues, Reinhardt gives the Court a way to affirm his ruling.

This may well be Reinhardt’s intention. But I am skeptical that it will work. Whatever one thinks of judicial minimalism generally, there is no minimalist way to strike down Proposition 8. Even if the impact of such a decision were limited to California, that in itself is a huge step. California is a state with some 37 million people. Moreover, the logic of Reinhardt’s decision is that there is no “rational basis” for denying same-sex marriage in a state that already permits same-sex civil unions that give couples the same substantive rights as marriage would. In addition to California, there are seven other states that permit civil unions without legalizing same-sex marriage, including major states such as Hawaii, Illinois, and New Jersey. Many other states are likely to enact civil unions over the next few years, because the idea is very popular, with even a plurality of Republicans supporting it, as of 2010. If the Supreme Court embraces Reinhardt’s reasoning, a state that enacts a civil union law would have to embrace gay marriage as well. That’s not a minimalist result confined to one or a few states, and the Supreme Court justices are likely to realize that.

On the other hand, Dale is probably right to argue that the Supreme Court is not going to rule that the Constitution requires recognition of same-sex marriage at a time when 44 states still forbid it. This suggests that the anti-Prop 8 suit was premature. It would have stood a better chance a decade or two from now, since public and elite opinion are both moving strongly in favor of gay marriage. In the meantime, however, the current lawsuit is likely to fail.

Given this reality, gay marriage advocates might be best served by making the strongest possible constitutional argument for gay marriage rather than trying to engage in “minimalist” hair-splitting that makes them look as if they are trying to evade the real issue, and is unlikely to persuade anyone who isn’t already committed to the cause. The Court might well still uphold Proposition 8. But such a defeat could lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.

In my view, the strongest available argument is that a ban on same-sex marriage qualifies as sex discrimination. Obviously, others will disagree, preferring to base their case on privacy arguments or on claims that discrimination against gays is unconstitutional. Regardless, this is the kind of argument that gay marriage supporters will have to make.

UPDATE: I am, of course, well aware that the anti-Prop 8 plaintiffs have made a variety of broader arguments during the course of the litigation. I do not mean to suggest that they are relying solely on “minimalist” claims. I just wanted to explain why a minimalist victory in this case is unlikely.

Today’s Ninth Circuit decision striking down California’s Proposition 8 banning same-sex marriage is unpersuasive because it claims that the law fails to meet even minimal “rational basis” scrutiny. Eugene Volokh does a good job of explaining why. But there is an alternative constitutional rationale for striking down same-sex marriage bans that avoids this problem. Proposition 8 is an example of sex discrimination, and must be evaluated under the higher standards of scrutiny applied to gender discrimination by the Supreme Court.

Although the sex discrimination argument has been advanced by several academic advocates of gay marriage, nonacademics tend to be skeptical because the same-sex marriage bans seem to be targeted against gays, not men or women. Hostility towards gays is certainly part of the motivation for bans on same-sex marriage. But that does not prevent these laws from qualifying as sex discrimination. In terms of the way the law is actually structured, 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. 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.

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.”

Although a ban on same-sex marriage qualifies as sex discrimination, it is not automatically unconstitutional. Since the 1970s, the Supreme Court has taken the view that laws that discriminate on the basis of sex do not violate the Constitution if they can pass “intermediate scrutiny,” which requires them to be “substantially related” to an “important state interest.” If opponents of same-sex marriage are right to claim that Western civilization will fall into deep decline if the practice is allowed, that would be enough to pass the test. Ditto if they can show that same-sex marriage somehow inflicts severe harm on children. But any such arguments would be subject to detailed judicial scrutiny. They would have to be backed by real evidence, and could not pass muster just by being minimally plausible, as under the “rational basis” test.

Some originalists might reject my argument on the grounds that sex discrimination itself is not really banned by the original meaning of the Fourteenth Amendment. I criticized such arguments in this post. For a much more comprehensive rebuttal, see this important recent article by Steven Calabresi and Julia Rickert.

A more moderate originalist critique of my position might hinge on the idea that the framers of the Amendment would not have thought of a same-sex marriage ban as sex discrimination. But it is not hard to figure out that a law under which a legal right is dependent on gender discriminates on the basis of sex. The Framers surely thought that this was justifiable sex discrimination. But that does not mean that it isn’t sex discrimination at all. If asked whether marriage laws circa 1868 limited the right to marry on the basis of gender, most people at the time would surely have said yes. And, as in the case of occupational discrimination against women, the Framers’ view that this form of sex discrimination is constitutionally permissible hinged on dubious factual assumptions that we are not bound by today.

In sum, a ban on same-sex marriage easily qualifies as sex discrimination and is therefore subject to heightened judicial scrutiny. Whether it could withstand such scrutiny is a question I leave to others, though I am skeptical about its chances.

UPDATE: Many commenters seem to be assuming that, in order for a law to qualify as sex discrimination, it has to be motivated by hostility to men or women. Not so. As the Supreme Court puts it, a law can qualify as unconstitutional sex discrimination so long as it is a”statutory classification... that distinguish between males and females.” Similarly, a racial classification counts as racial discrimination for constitutional purposes even if the motives behind it are benign.

It is also not true that a ban on same-sex marriage avoids qualifying as sex discrimination because it affects members of both genders. It still denies rights to both men and women solely on account of their sex. The fact that Bob cannot marry Colin solely on account of gender is not somehow “balanced” by the fact that Anne is similarly forbidden to marry Carol. Similarly, a law banning interracial marriage still qualifies as race discrimination even though both blacks and whites are barred from marrying members of the other racial group.

Earlier this month, I posted on Steven Calabresi and Julia Rickert’s new paper, “Originalism and Sex Discrimination.”  Published in the Texas Law Review, this article makes an originalist argument that gender discrimination, such as the exclusion of women from VMI, is unconstitutional.

This is an important article, which has already received notice from Lawrence Solum and Jack Balkin, among others.  It was also subject to a lengthy critique by Ed Whelan on NRO’s Bench Memos in five parts: 1, 2, 3, 4, and 5.  Calabresi and Rickert have written a response to Whelan which I am posting here.  It begins below and the continues after the jump.

[UPDATE: Ed Whelan has a brief rejoinder here.]

Steve Calabresi & Julia Rickert Response to Ed Whelan

We recently posted an article on SSRN entitled “Originalism and Sex Discrimination,” which  has now been published in the Texas Law Review. We argue in our article that the Fourteenth Amendment outlaws all systems of caste from the Black Codes to European feudalism to the Indian Caste system.  We also argue that after the ratification of the Nineteenth Amendment in 1920 giving women the right to vote, it was constitutionally correct to read the Fourteenth Amendment’s ban on caste as outlawing sex discrimination with respect to civil rights.  Our position is that originalists reading the text of the Fourteenth Amendment today need to synthesize it with the text of the Nineteenth Amendment.  We believe that the political right to vote which the Fifteenth Amendment extends to men of any race, and which the Nineteenth Amendment extends to women of all races, is at the apex of the Constitution’s hierarchy of rights while civil rights, which the Fourteenth Amendment protects form the base of the pyramid.  Children, aliens, and former felons have civil rights under the Fourteenth Amendment, but they do not have the political right to vote.  No group, however, in our opinion can be granted political rights without also acquiring civil rights under the Fourteenth Amendment.

In five posts on National Review, Ed Whelan, who is one of the most acclaimed conservative legal thinkers and activists of his generation, disagrees with our view.  Whelan agrees to assume along with us that the Fourteenth Amendment outlaws systems of caste, as a matter of original meaning, but he disagrees with us that traditional laws that banned married women from owning property, entering into contracts, or working as lawyers or bartenders set up a system of caste even if the Fourteenth Amendment bans systems of caste.  Whelan also argues that the Nineteenth Amendment ought not to be read synthetically with the Fourteenth because doing so renders the Fourteenth Amendment superfluous.  Whelan makes many additional arguments which we will try to address below, but this is the gist of his argument.

Continue reading ‘Calabresi & Rickert Respond to Whelan on Originalism and Sex Discrimination’ »

My wife Alison and University of San Diego law professor Gail Heriot have just published an article in Engage on the apparently growing practice of sex discrimination on behalf of men in college admissions. Heriot serves as a Commissioner at the US Commission on Civil Rights, where Alison is her special assistant/counsel. Here’s an excerpt from the article:

While some news reports indicate that discrimination against women on the basis of sex in college admissions is increasingly common, there has been relatively little public discussion about it—especially compared to the much more heated public debate concerning race-based affirmative action. Not surprisingly, therefore, there have been few attempts to study the extent of the problem systematically....

Multiple news reports indicate that some colleges and universities, both public and private, have what they regard as “too many” women applicants and are therefore discriminating in favor of men—largely because more women than men apply to college and their academic credentials are in some ways better. Several colleges have more or less openly admitted to discriminating against women – including the University of Richmond (a private institution) and the College of William and Mary (a public institution). Others—including Southwestern University (Texas), Knox College (Illinois), Brandeis University (Massachusetts), Boston University (also Massachusetts), and Pomona College (California)—shy away from admitting directly that they are discriminating, but admit that maintaining an optimal gender balance by non-discriminatory means is difficult....

Sex discrimination in admissions at public universities is illegal under Title IX of the Education Amendments of 1972. But under federal law, it is perfectly legal for private institutions to engage in sex discrimination in admissions—though once both sexes are admitted, neither may be discriminated against....

Perhaps the most attention-getting piece on this topic was a 2006 New York Times op-ed by Jennifer Delahunty Britz, an admissions officer at Kenyon College, in which she admitted that her office often gave preferential treatment to men. Some admissions insiders wrote in response to Delahunty Britz’s piece that these preferences were quite common—what was shocking was only Delahunty Britz’s candor in airing this information publicly. Inside Higher Ed noted that “[w]hile few admissions officers wanted to talk publicly about the column, the private reaction was a mix of ‘of course male applicants get some help’ along with ‘did she have to share that information with the world?’” Several years later, after the wave of chatter over Delahunty Britz’s piece had died down, Columbia University law professor Ted Shaw referred to such discrimination as an “open secret.”
[footnotes omitted].

The article also discusses the interconnections between admissions preferences for men and Title IX rules for college sports teams (the latter may have the unintended effect of incentivizing the former by making it harder for colleges to entice male students through increasing the number of men’s sports teams). Alison previously wrote about Title IX and sports here.

This issue is actually one of the rare points of political disagreement in the Somin household. I am less hostile than Alison to gender-balancing admissions policies that seek to keep the sex ratio (very roughly) even for the purpose of improving the social environment on campus. The problem of gender imbalance may be more serious at some institutions than others, and I don’t think it can justify very large gender preferences anywhere. As Gail and Alison point out, it’s a bad idea for colleges to admit “mismatched” male students whose academic skills are vastly inferior to those of the other students at the same institution. But, in some situations, I think there is a case for modest admissions preferences for the less numerous gender on campus. Some women students themselves may be dissatisfied with life on a campus that is, say, 70% female, and the same goes for male students at an overwhelmingly male institution. Obviously, other students probably couldn’t care less about the sex ratio at their university. But I don’t advocate that all universities with a gender imbalance should resort to admissions preferences to deal with it. I merely want the option to be legally available, at least at private institutions. Be that as it may, I do agree with Alison that such policies at public institutions are legally dubious under Title IX.

Last week, I noted the important new article by Stephen Calabresi and Julia Rickert making an originalist case for the unconstitutionality of sex discrimination.  In short, they argue that the 14th Amendment is best understood as prohibiting caste legislation, not just racial discrimination, and that it must be read in light of subsequent amendments, the 19th Amendment in particular.

Ed Whelan has responded to the Calabresi-Rickert article at length at NRO’s Bench Memos.  To put if briefly, he is not convinced.  His response consists of five parts: 1, 2, 3, 4, and 5.

So holds the D.C. Office of Human Rights in Banzhaf v. Garvey (Nov. 29, 2011). Thanks to Prof. Howard Friedman (Religion Clause) for the pointer; his post offers a slightly longer summary.

It is generally accepted that the Supreme Court’s sex discrimination jurisprudence cannot be reconciled with an originalist interpretation of Section One of the Fourteenth Amendment.   Originalists and non-originalists alike accept that the original intent of Section One was to preclude racial discrimination against blacks, and that there was no intent to prevent sex discrimination by state entities.  Nor did the original public meaning of Section One embody a rule that would prevent state governments from engaging in sex discrimination.

In an important new paper, forthcoming in the Texas Law Review, Northwestern law professor Steven Calabresi and Julia Rickert argue that the conventional originalist view on sex discrimination is wrong, and that the Supreme Court’s sex discrimination decisions (if not their rationales) are largely consistent with a true originalist understanding of Section One of the Fourteenth Amendment.  Specifically, they argue that Section One is best understood as a prohibition on caste legislation and that the meaning of the Amendment must be considered in light of subsequent constitutional amendments, the Nineteenth Amendment in particular.  Thus understood, Section One prohibits state-sponsored gender discrimination and can even justify the Court’s decision in the VMI case.

This article is Lawrence Solum’s “Download of the Week,” and with good reason, as it is sure to prompt significant discussion and debate.  As Solum would say, “Download it while it’s hot!”

North Carolina, it turns out, makes “[a]ssault[ing] a female” a class A1 misdemeanor, if the attacker is “a male person at least 18 years of age”; female-on-male, male-on-male, and female-on-female assaults are generally class 2 misdemeanors. This can translate into a substantial difference in sentencing — for instance, someone who has no prior convictions would face up to 60 days in jail for a class A1 misdemeanor, but only up to 30 days for a class 2. And the statute seems to be used often; searching for “assault #on #a female” & date(= 2010), for instance, uncovered 37 appellate cases just last year.

In State v. Castosa (2005), the North Carolina Court of Appeals rejected an Equal Protection Clause challenge to the statute, citing State v. Gurganus (N.C. Ct. App. 1979), which did the same. Here’s the 1979 court’s reasoning:

[Under the Supreme Court’s] test set forth in Craig and reiterated in Goldfarb ...[,] [f]irst, the classification by gender must serve “important” governmental objectives. Second, the classification by gender must be “substantially” related to achievement of those objectives. We find that G.S. 14-33(b)(2) meets both these requirements and is in no way violative of the letter or spirit of the Fourteenth Amendment.

In passing upon the constitutionality of the challenged subsection of the statute, we do not examine it in isolation. Instead, the challenged subsection must be viewed in context and as a part of the entire and integrated whole of the statute in which it is found. G.S. 14-33, in its entirety, prohibits varying types of assault, batteries and affrays as follows:

§ 14-33. Misdemeanor assaults, batteries, and affrays, simple and aggravated; punishments. — (a) Any person who commits a simple assault or a simple assault and battery or participates in a simple affray is guilty of a misdemeanor punishable by a fine not to exceed fifty dollars ($50.00) or imprisonment for not more than 30 days.

(b) Unless his conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a misdemeanor punishable by a fine, imprisonment for not more than two years, or both such fine and imprisonment if, in the course of the assault, assault and battery, or affray, he:

(1) Inflicts, or attempts to inflict, serious injury upon another person or uses a deadly weapon; or

(2) Assaults a female, he being a male person over the age of 18 years; or

(3) Assaults a child under the age of 12 years; or

(4) Assaults a law-enforcement officer or a custodial officer of the State Department of Correction, while the officer is discharging or attempting to discharge a duty of his office.

... We find that the subsection is substantially related to this important objective [of physical integrity of the citizens of the State].

In reaching this conclusion, we do not find it necessary to rely upon the numerous works documenting and attempting to quantify various social factors and which tend to establish that men, particularly in conjugal settings, assault women more frequently and more violently than women assault men, while women more frequently submit to such violence. We base our decision instead upon the demonstrable and observable fact that the average adult male is taller, heavier and possesses greater body strength than the average female. We take judicial notice of these physiological facts, and think that the General Assembly was also entitled to take note of the differing physical sizes and strengths of the sexes. Having noted such facts, the General Assembly could reasonably conclude that assaults and batteries without deadly weapons by physically larger and stronger males are likely to cause greater physical injury and risk of death than similar assaults by females. Having so concluded, the General Assembly could choose to provide greater punishment for these offenses, which it found created greater danger to life and limb, without violating the Fourteenth Amendment.

We recognize that classifications based upon average physical differences between the sexes could be invalid in certain situations involving equal employment opportunity, participation in sports and other areas. We believe that an analytical approach taking into account such average differences is an entirely valid approach, however, when distinguishing classes of direct physical violence. This is particularly true where, as here, the acts of violence classified are all criminal when engaged in by any person whatsoever and have no arguably productive end.

Certainly some individual females are larger, stronger and more violent than many males. The General Assembly is not, however, required by the Fourteenth Amendment to modify criminal statutes which have met the test of time in order to make specific provisions for any such individuals. The Constitution of the United States has not altered certain virtually immutable facts of nature, and the General Assembly of North Carolina is not required to undertake to alter those facts. G.S. 14-33(b)(2) establishes classifications by gender which serve important governmental objectives and are substantially related to achievement of those objectives. Therefore, we hold that the statute does not deny males equal protection of law in violation of the Fourteenth Amendment to the Constitution of the United States....

I don’t think this is consistent with the Supreme Court’s Equal Protection Clause cases, both before 1979 (Craig v. Boren (1976)) and since (United States v. Virginia (1996)); but North Carolina courts obviously disagree with me.

Cato Unbound has an interesting symposium on the changing status of men in society, including a lead essay by Kay Hymowitz arguing that men are in decline and “falling behind.” The idea that the men are declining is not unique to Hymowitz. Anthropologist Lionel Tiger has a book advancing the same thesis. Other writers have also taken up this mantra.

But the evidence underpinning the case for male decline doesn’t add up. Most of it consists of the well-known facts that men now have slightly lower levels of educational attainment compared to women, and never-married men trail comparable women in income. However, there is no actual decline in male performance in either field. Rather, what has happened is that women are doing much better than before thanks to economic and social changes that have opened up new opportunities for them. When several European nations lifted legal disabilities imposed on Jews in the 19th century, the percentage of Jews in various occupations and educational institutions rapidly increased, and the percentage of gentiles in the same fields fell. Obviously, gentiles were not “in decline.” Rather, Jews were doing better because of the easing of discrimination against them. Much the same can be said of women over the last few decades. On balance, men actually benefit from the rise of women, just as gentiles benefited from that of the Jews. Everyone is better off when society is able to more fully benefit from developing the talents of more of its people.

Nineteenth and early century anti-Semitism flourished in part because many Europeans didn’t understand that the economy wasn’t a zero-sum game in which gains for Jews can only come at the expense of gentiles. Today’s fears that economic gains for women somehow harm men are similarly misplaced. Even if women end up out-earning men (which they are still far from doing), that does not mean that men have been harmed, any more than gentiles suffer because of the much higher average income and educational attainment of Jews.

It’s also worth noting that men continue to dominate the highest levels of achievement in many occupations, in part because the variation in male achievement is greater than that among women. Men are more likely to become high school dropouts than women (thereby explaining some of the data cited by Hymowitz), but they are also more likely to be at the top of the class or their profession.

Hymowitz also argues that men have suffered because of the “collapse of marriage norms.” However, the data shows that only about 20% of men aged 40-44 have never been married. And even that twenty percent doesn’t all consist of people deprived of marriage opportunities by social change. Some men (like some women) simply don’t want to be married, and anywhere from 3 to 9 percent of men are gay (gay marriage is a recent phenomenon, and is still available in only a few states). Marriage continues to be available to those men who want it. And despite Hymowitz’s concern that men have lost their status as providers for the family, married men who live with their spouses still have incomes about a third higher than those of married women. Whether or not married men should be the primary bread-winners in their families, the majority still are.

Hymowitz does identify two genuine areas of male decline. It is certainly true, that men have suffered a relative loss from the diminishing importance of occupations where physical strength is a key job qualification. On balance, however, men – like women – have benefited enormously form the rise of modern technology that has displaced work previously performed by human brawn. It has made an enormous range of goods more readily available to a wide range of people at lower prices. Men who rely on physical strength to make a living were relatively more in demand fifty years ago. But their overall standard of living was far lower than today.

Hymowitz is on firmer ground in pointing to the extremely low marriage rates and high rates of single-parenthood among poor African-Americans and Hispanics. This is a genuine social tragedy. But it has little to do with any broader decline of the male gender. Rather, it is in large part caused by the War on Drugs, which imprisons a high percentage of young inner city males, thereby making family formation extremely difficult. The best way to begin to restore family values in poor minority communities is to end the War on Drugs. That’s likely to be a lot more helpful than worrying about the supposed decline of males.

UPDATE: I should note that Hymowitz doesn’t, in so many words, say that men are in decline, merely that they are “falling behind.” That phrasing is consistent with a view that men are better off than before, but merely haven’t made as many gains as women have in recent years. Still, it’s hard to justify concern about men “falling behind” unless there is some actual harm to men involved, as opposed to merely having slightly lower educational attainment (and among the never-married, slightly lower income) than women.

Thanks to commenter Ispep Teid for alerting me to this interesting Arizona statute, which was just signed by the governor on March 29:

A. A person ... is guilty of a class 3 felony ... [if he or she p]erforms an abortion knowing that the abortion is sought based on the sex or race of the child or the race of a parent of that child....

B. The attorney general or the county attorney may bring an action in superior court to enjoin the activity described in subsection a of this section....

D. A physician, physician’s assistant, nurse, counselor or other medical or mental health professional who knowingly does not report known violations of this section to appropriate law enforcement authorities shall be subject to a civil fine of not more than ten thousand dollars.

E. A woman on whom a sex-selection or race-selection abortion is performed is not subject to criminal prosecution or civil liability for any violation of this section or for a conspiracy to violate this section.

F. For the purposes of this section, “abortion” has the same meaning prescribed in section 36-2151[: "Abortion" means the use of any means to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will cause, with reasonable likelihood, the death of the unborn child. Abortion does not include birth control devices, oral contraceptives used to inhibit or prevent ovulation, conception or the implantation of a fertilized ovum in the uterus or the use of any means to increase the probability of a live birth, to preserve the life or health of the child after a live birth, to terminate an ectopic pregnancy or to remove a dead fetus.] ...

A person shall not knowingly perform or induce an abortion before that person completes [a signed] affidavit that ... [s]tates that the person making the affidavit ... has no knowledge that the child to be aborted is being aborted because of the child’s sex or race....

[Purpose:] Evidence shows that minorities are targeted for abortion and that sex selection abortion is also occurring in our country. There is no place for such discrimination and inequality in human society. Sex-selection and race-selection abortions are elective procedures that do not in any way implicate a woman’s health. The purpose of this legislation is to protect unborn children from prenatal discrimination in the form of being subjected to abortion based on the child’s sex or race by prohibiting sex-selection or race-selection abortions.