The Volokh Conspiracy

Overnight, it seems, federalism has become a major ground on which the Defense of Marriage Act is being contested.  This is surprising because, as we saw Wednesday in the arguments of Roberta Kaplan and the Solicitor General, there were no real advocates for federalism as an issue during the oral argument in United States v. Windsor.  No advocates, that is, except for five of the nine people sitting behind the bench.

But what exactly is the federalism objection to DOMA?  Despite some misapprehension to the contrary, it doesn’t rest principally on Tenth Amendment case law establishing an ”anti-commandeering” principle.  And it’s not that marriage is a subject over which the federal government must always, forever, and for every purpose be obedient to individual states’ whims. That would present what we might call a reverse anti-commandeering problem.

Instead, the federalism concern with DOMA breaks down into at least three different but related types of problems.

(1) The federal-power problem. DOMA is an exercise of federal power. So the first question is, where does the federal government get the power to enact a comprehensive definition of marriage? George Will thinks DOMA is a “usurpation of state power.”  James Taranto at the Wall Street Journal agrees.  Michael McConnell, perhaps the leading conservative judicial scholar of his generation, put it this way in an op-ed in the Wall Street Journal:

The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The federalism amicus brief in Windsor argues this point in some detail. It’s not a novel concept in the Court’s federalism cases. It’s also uncontroversial, at least among those who believe there are meaningful limits on federal power, and even among some who don’t think those limits are entirely judicially enforceable, like Justice Breyer.

Some commentators have tried to avoid the implications of this tradition by arguing that DOMA simply facilitates the exercise of Congress’s underlying power to, say, administer and implement federal taxation, an enumerated power. In doing so, they argue, Congress must be able to define the terms it uses.

But just as it’s axiomatic that Congress may generally define the words it uses, it’s also axiomatic that Congress may not violate the Constitution in the guise of defining terms. Definitions that control the administration of a program are subject to constitutional constraints, just as the underlying program is. Consider Adarand Constructors v. Pena, involving a law that gave federal contractors a financial incentive to hire subcontractors owned by “socially and economically disadvantaged people,” but defined this group presumptively to include certain racial minorities. The definition did not fool the Court, which held that the financial incentive was based on race and thus was suspect. If the federal government uses the Dictionary Act or any other definitional provision in a way that violates the Bill of Rights, it’s just as unconstitutional as if the definition were embodied in the heart of the operative statutory text. So it is with definitions that effectively expand federal power beyond those enumerated or necessarily and properly implied in Article I.  Congress may just as effectively erode the nation’s historic commitment to state primacy in the field of family relations through the ruse of a definition as it may by explicitly preempting state control over these matters.

So we get back to the basic question: is an an all-encompassing federal definition of marriage within Congress’s explicit or implied powers?  The federalism amicus brief argues at length why it’s not.  As Justice Kennedy noted, marriage touches almost every area of the law and every aspect of family life. It’s facile to say that DOMA can be logic-chopped into 1100+ individual definitions, ignoring that the combined effect is to complicate, burden, and discourage state policy choices and experimentation on a matter of traditional state concern that pervades the daily lives of ordinary people.

(2) The legitimate-federal-interests problem. Under equal protection principles, every law must serve at least some legitimate government interest. Some interests, like animus against a class of persons, are impermissible no matter how rationally related the means are to accomplishing the objective.  Bare moral disapproval also doesn’t legitimate discrimination preferred by a legislative majority.  Racial supremacy is an impermissible objective. Enforcing traditional gender roles is an impermissible objective.  The enumerated-powers doctrine and the underlying federalist structure similarly take some asserted federal interests off the table in an equal protection analysis. The federal government is barred from invoking interests that lie beyond its powers to pursue. Pursuing them is illegitimate in an equal protection case, just as racist or sexist interests would be.

What interests might the federal government claim for DOMA?  It’s not a puzzle.  Literate people know because Congress told us what its interests were and even now its defenders assert broad federal objectives.  First and foremost, beyond an unadorned moral disapproval of homosexuals, Congress wanted to “defend marriage” against state policy innovations it disliked. It wanted to put its heavy thumb — including its considerable regulatory authority and mighty financial weight — on the side of defining marriage as it thinks best, helping states that agree and discouraging states that don’t.  But the federal government has no legitimate interest in defending marriage in toto. It’s the role of the states to define marriage, subject only to constitutional constraints on their power. Congress may have specific interests in recognizing only certain state-granted marriages for limited federal purposes, like preventing marriages fraudulently entered in order to evade immigration laws. But the states, and only the states, create and license marriages.

Congress may assert other related interests, like promoting uniformity in federal treatment of marriage. But in our history, uniformity in the recognition of marriage has never been a federal end unto itself. The only uniformity Congress has promoted in recognizing relationships is a uniform acceptance of state-law marital status. The baseline in the field of marriage is state, not federal, choice. The analysis of benefits and burdens on state choices must start with a State-choice baseline.  When Congress doesn’t take that baseline as the starting point for its legislation, but instead starts with its own blunderbuss definition, it discourages state choice. It must give more particular justifications than, “we want a uniform application of the federal understanding of marriage.”  If a future Congress controlled by gay-rights advocates decided that the federal government henceforth would only recognize marriages from states that enacted marriage equality, thus stripping opposite-sex couples of federal marriage rights in non-equality states but not in marriage-equality states, would a chorus of federalism deniers be heard to say that Congress was simply defining its programs with no impact either way on state choices in the matter?

Well, how about a federal interest in promoting “responsible procreation”?  I suppose one might think that having well-reared citizens is necessary and proper to keeping the postal roads paved, or to raising a good army and navy.  But saying that Congress may fully regulate matters of family law in order to produce better citizens would end limits on federal power in this historic state realm because “the aggregate effect of marriage, divorce, and childrearing” on the nation’s prosperity and defense ”is undoubtedly significant.”  United States v. Morrison (2000).

The point here is that federalism offers us answers to some equal protection problems when the federal government regulates citizens. Some asserted federal interests simply aren’t within the scope of legitimate federal concerns.  Such interests might justify State legislation but can’t be used to justify a federal classification, no matter what level of scrutiny the Court applies in its equal protection analysis.

(3) The animus problem. At oral argument, Justice Kagan pointed out that given our respect for State control over the law of family relations, and especially the tradition of accepting state definitions of marriage as determined by the States, DOMA is an unusual exercise of federal power.  There is little or no historical precedent for an across-the-board national definition of marriage.  A departure from customary practice can signal impermissible discrimination.  Arlington Heights v. Metropolitan Housing Corp. (1977) (“The historical background of the decision [including substantive departures from normal decisionmaking] is one evidentiary source ... of official actions taken for invidious purposes.”)  That alone might raise the suspicion that it is based on impermissible animus, or as one might put it more gently, a casual and thoughtless disregard for the interests of an entire class of citizens.  Federalist practice can inform the analysis about whether the federal government has acted on an impermissible interest in isolating a group of citizens, making them strangers to the law, and even, formally, strangers to each other. Classifications of an unusual character in the structure of our federal system should increase our alertness to the possibility that invidious discrimination is afoot.  No suspect-classification designation need be adopted to conclude that such a law denies citizens the equal protection of the law.

So here, too, the equal protection analysis and the federalism analysis are linked, as the federalism amicus brief argues.  The Court could base its decision on equal protection principles informed partly by federalist practice and constitutional structure.  Or it could base its decision squarely on federalism and limited-powers grounds without direct reliance on equal protection.  The doctrines reinforce each other.  And they bolster the conclusion that DOMA is unconstitutional.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tom Goldstein at SCOTUSBlog presents the matter succinctly:

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

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

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

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

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

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

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

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

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

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

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

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

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

Nine down, 41 to go.

At the Federalist Society’s Supreme Court blog, I offer some thoughts on the Second Circuit’s decision in Windsor v. United States, which held the Defense of Marriage Act unconstitutional.  The post concludes with a thought on what direction the Supreme Court might take when it confronts the constitutionality of DOMA:

Even if the Court is inclined to strike down the Defense of Marriage Act, it’s more likely the Court would do so in the more limited and incremental way suggested by the First Circuit than in the more ambitious way advanced by the Second Circuit. The federal-only rationale of the First Circuit focuses on what possible interest the federal government could have in denying equal treatment to a subset of married couples. It does not necessitate a ruling that state governments must equally recognize same- and opposite-sex couples as married. For a Court that wants to leave the marriage debate open in the states, but at the same time wants to ensure that the federal government does not inject itself into that debate with unusual discrimination, that may be a tempting option.

UPDATE:  Ed Whelan argues that the analysis of the First Circuit in Massachusetts v. Dep’t of HHS would also result in the invalidation of state laws confining marriage to opposite=sex couples.

In a 2-1 opinion by Chief Judge Dennis Jacobs, a conservative appointed by the first President Bush, the Second Circuit has joined the unanimous chorus of federal courts striking down Section 3 of the Defense of Marriage Act, which bars federal recognition of same-sex marriages legalized by individual states.  The dissenter was Judge Chester Straub, who was appointed by President Clinton.  Applying intermediate scrutiny to sexual-orientation classifications, the court held that Section 3 violates the Equal Protection Clause.  The decision comes as the Supreme Court is weighing whether to grant certiorari to determine the constitutionality of the Act.  I may have more to say after I’ve had a chance to read the opinion. 

HT: David Lat and Walter Olson.

So holds Evenchik v. Avis Rent a Car Systems, LLC (S.D. Cal. Sept. 17, 2012):

According to the Complaint, Plaintiff rented a car from AVIS in July 2011, in the County of San Diego, California. She was charged $311.36. According to the Complaint, at that time AVIS gave large price discounts to members of two groups: the International Gay and Lesbian Travel Association and the National Gay and Lesbian Chamber of Commerce. Plaintiff is not a member of either group. The Complaint further alleges that AVIS did not give her the gay and lesbian group member price discount. Plaintiff alleges that California’s Unruh Civil Rights Act ... prohibits a business from discriminating between its customers on the basis of sexual orientation....

Plaintiff plausibly alleges that during the transaction AVIS charged her a higher price to rent a car because AVIS did not perceive her to be a lesbian or gay customer or because AVIS did not perceive her to be associated with favored lesbian or gay customer groups....

AVIS asserts throughout its briefs that the purpose of California’s Unruh Civil Rights Act is (to use AVIS’s words): “to prevent unequal treatment for disadvantaged classes of people who have been the subject of invidious discrimination.” Neither the language of the statute nor the case law speak of protecting disadvantaged classes. Instead, the Act seeks to prevent any discrimination among people on the basis of listed characteristics. Thus, because the Act prohibits discrimination on the basis of sex, for example, it prohibits business from charging men more than women for the same services. See Koire, 40 Cal.3d at 32....

Another thread of argument runs through AVIS’s briefs: ... since Plaintiff could have become a member of the International Gay and Lesbian Travel Association or the National Gay and Lesbian Chamber of Commerce and thus qualified for its favored discounts ..., there was no pricing discrimination.... [But this] assumes an evidentiary showing which has yet to be made.... [A]lthough AVIS repeats it often as fact, there is no evidence that membership in either International Gay and Lesbian Travel Association or the National Gay and Lesbian Chamber of Commerce was open to Plaintiff when she rented her car....

The salient allegation of the Complaint is that AVIS charged Plaintiff more money for her car rental than it would have charged Plaintiff if Plaintiff had been a member of the favored gay and lesbian groups. This is sufficient to plausibly allege a violation of [the Unruh Civil Rights Act]....

Eighty-seven percent of constitutional law professors back marriage for same-sex couples, and 7 out of 10 believe the federal Defense of Marriage Act is unconstitutional, but only a slight majority of 54% think the federal Constitution requires states to recognize same-sex marriages. That’s the result of a survey of 485 constitutional law professors that I conducted this summer with the help of my indefatigable and indispensable research assistant, Minnesota 2L Samuel Light. In this post, I want to highlight some of the main results from the survey.

The survey was prompted by a comment from a pro-SSM law professor that the constitutional debate on the issue among scholars was over.  According to him, there was no remaining doubt among specialists that recognition of SSM is required by the Constitution. I suspected this claim was too strong.  Despite a common criticism, many constitutional law professors pride themselves on being able to separate their policy preferences from their constitutional views.  (Whether they succeed in doing so is a different question.)  So I wanted to test the hypothesis that the matter of same-sex marriage has been settled by asking professors themselves.

The survey was also prompted by the progress of some major cases challenging anti-SSM laws.  One of the cases challenges California’s Prop 8; others take on the Defense of Marriage Act. These cases are teed up to reach the United States Supreme Court in the 2012 Term.  (The Court will consider whether to take the Prop 8 case and at least one of the DOMA cases at its September 24 conference.)  The cases don’t necessarily call for a comprehensive answer to the question whether there is a constitutional right to same-sex marriage, but that large question will definitely be in the background. 

The views of constitutional law professors do not determine outcomes in constitutional cases and probably play no role in the Justices’ conscious thinking about those outcomes.  But it isn’t really plausible to believe the Justices are completely unaffected by the views of the nation’s constitutional law specialists.  So on the eve of a Term promising some blockbuster decisions on constitutional issues related to gay marriage, it seemed like a good time to take the temperature of the legal academy.  Just how widely accepted among experts is the constitutional case for same-sex marriage?  Has the constitutional case against same-sex marriage become an exotic remnant of a bygone era, at least among specialists, rather like the argument that Brown v. Board of Education trespassed on the “neutrality” required by the Equal Protection Clause?

We proceeded as follows.  Brief surveys were sent by email to the 1,579 teachers listed as Constitutional Law professors in the 2011-12 directory of the Association of American Law Schools. This list relies on self-reporting by law professors who claim to be teachers or specialists in the field.  In the email, professors were informed that I was conducting the survey and that they could respond by clicking a link to the actual survey instrument. Respondents were assured that their individual identities would not be disclosed. They were prevented from answering more than once.  Of the 1,579 professors queried, 485 responded (a response rate of 30.71%).  These included many of the most prominent constitutional law professors in the country.

The survey consisted of four questions, with space for comments after each question.  Many of the respondents offered detailed and thoughtful comments about the issues.  The questions and answers received were as follows (note: percentages are rounded):

QUESTION 1: “As a policy matter, do you think states should legalize same-sex marriages?”

Yes — 87%

No — 8%

Not sure — 3%

No answer/Other — 2%

QUESTION 2: “As a policy matter, do you support federal recognition of same-sex marriages legalized by the states?”

Yes — 87%

No — 8%

Not sure — 2%

No answer/Other — 2%

QUESTION 3:  “Section 3 of the Defense of Marriage Act (DOMA) forbids the federal government to recognize same-sex marriages legalized in the states.  As a matter of federal constitutional law, do you believe the federal government may refuse to recognize same-sex marriages legalized in the states?”

Yes (DOMA Section 3 is constitutional) — 16%

No (DOMA Section 3 is unconstitutional) — 69%

Not sure — 11%

No Answer/Other — 3%

QUESTION 4: “As a matter of federal constitutional law, do you believe that states *must* allow same-sex couples to marry?”

Yes — 54%

No — 28%

Not Sure — 13%

No Answer/Other — 5%

Some Findings and Conclusions From the Survey

(1) Not surprisingly, constitutional law professors overwhelmingly support same-sex marriage. Indeed, the 87% figure exceeds even what I expected.  (Many among the remaining 13% volunteered that they would support the creation of civil unions or other legal protections for gay couples.) It certainly exceeds the percentage of the American people who support same-sex marriage (about 50%, depending on the poll). Indeed, I cannot think of a demographic group that can match this impressive solidarity in favor of gay marriage – including adults under 30, atheists, those with graduate degrees, and even gays themselves (among LGBT respondents in a recent poll, 85% support same-sex marriage, 12% oppose it, and 3% are unsure). This represents a huge shift toward support for same-sex marriage among constitutional law experts, who just three decades ago would have greeted the idea with bemusement if not disdain.

(2) Opposition to DOMA as a policy matter is just as strong as support for same-sex marriage itself. Even a few gay-marriage opponents among the law professors nevertheless believe that the federal government should honor gay marriages validly recognized by individual states.

(3) Opposition to the constitutionality of DOMA Section 3 is very strong (69%). Only 16% believe it is constitutional.  If the debate about DOMA among constitutional specialists is not quite over, it’s almost there.  Contrast that with the weaker consensus supporting a constitutional requirement to recognize same-sex marriage itself (#4 below).

(4) A majority (54%) of constitutional law professors believe states are required by the Constitution to recognize the marriages of same-sex couples.  About 28% believe the Constitution imposes no such requirement, while about 18% are unsure or decline to answer.  Thus, a total of 46% of constitutional law professors either deny or aren’t sure whether the Constitution mandates the legalization of same-sex marriage.  I was surprised that support for a constitutional requirement was not stronger.  These numbers do not support the claim that the constitutional debate about same-sex marriage among specialists is over. It is still a contested, if fading, issue for constitutional law professors.

From the perspective of the country’s constitutional law teachers, therefore, the pending challenges to DOMA are on a stronger footing than would be a head-on challenge to state marriage laws in toto. However, the survey did not directly ask what constitutional law teachers think about the constitutionality of Prop 8, which could be decided on grounds specific to California.

(5) A sizable number of same-sex marriage supporters among constitutional law professors distinguish their policy preferences from their constitutional views.  More than a third of same-sex marriage supporters declined to say that recognition is constitutionally mandated.  Of the 421 respondents who answered “Yes” to Question 1, 63% voted yes on Question 4.  That is, they believe that same-sex marriage is both a good policy idea and constitutionally required.  The remainder voted “No” (17%) or Not sure/Other/No answer (20%) on Question 4.   By contrast, not a single respondent who opposed same-sex marriage as a policy matter believed recognition of it was required by the Constitution.

Thus, support for same-sex marriage as policy is a good, if hardly infallible, predictor of support for a constitutional right to it among constitutional law teachers. Opposition to same-sex marriage among constitutional law professors is a flawless predictor of opposition to a constitutional right.

(6) Constitutional law professors at religiously affiliated schools strongly support same-sex marriage  (78%), although at a somewhat lower rate than professors at schools unaffiliated with a religion (90%). There was a somewhat larger difference between professors at religious schools and those at unaffiliated schools on the constitutional mandate (Question 4). Sixty-five percent of surveyed professors at secular schools believe SSM is constitutionally required, but only 45% at religiously affiliated law schools believe that (vs. 35% at religiously affiliated schools who believe it is not constitutionally mandated). 

(7) There were small differences by geographic location of the law school.  Support for SSM as a policy ranged from a low of 83% at Midwestern law schools to a high of 95% at law schools in the Northeast.

(8) Constitutional law professors at the most elite law schools (the top 14) were most likely to support SSM as a policy (95%), but were least likely to believe it is constitutionally required (46%).  Professors at third- and fourth-tier schools, by contrast, were least likely to support SSM as a policy matter (still high, at 84%), but were most likely to believe it is constitutionally required (58%).

Possible limitations and qualifications

Two qualifications about the reliability of the findings come to mind. One is that although the nearly 31% response rate was quite good, it’s possible that opponents of gay marriage were more reluctant than supporters to give their views.  Support for SSM is a strong cultural and political norm in most American law schools among both students and faculty. Opposing same-sex marriage might be considered a professional disadvantage, either for those seeking tenure or for those seeking promotion.  (Additionally, some law professors think of themselves as potential federal court nominees and may not want to be seen as taking controversial positions on divisive social and legal issues — although this particular reticence probably cuts both ways since potential nominees endanger their candidacies by offending either side.)

Overall, I doubt the poll overstates support for SSM among constitutional law professors by much. Law professors, especially tenured ones, are a pretty secure, independent, and outspoken lot. Confidentiality was promised, which helped quiet whatever concerns some may have had.

Another possible challenge to the reliability of the results is that some respondents might have been thrown off by some ambiguity in the questions. I doubt this played a significant role.  One could phrase questions about same-sex marriage and the complex legal issues it raises in numerous ways. In public opinion polls, for example, respondents are more likely to oppose a “ban” on same-sex marriage than they are to oppose “defining” marriage as solely the union of one man and one woman — even though the legal consequence is practically identical. I doubt any such great effect would be obtained from a survey of constitutional law specialists.

A more interesting possibility is that some respondents might have been thrown off by Question 4, which asked whether “as a matter of federal constitutional law” states must recognize same-sex marriages. I deliberately avoided phrasing the issue as whether the respondent believed in a constitutional “right” to same-sex marriage.  That language seems to specify a due-process-based fundamental right rather than some other constitutional principle that might require recognition of same-sex marriages.  I wanted respondents to answer based on whatever doctrine (including Equal Protection) they believed might support a constitutional requirement to legalize SSM. The survey also did not offer civil unions or domestic partnerships as a policy or constitutional option, although in written comments some professors volunteered their support for such alternatives to marriage. To maximize responses and clarify the issue, I did not want to invite debates over what might be meant by alternative statuses.

Theoretically, one might also quibble over whether the constitutional mandate question (Question 4) called for a normative, predictive, or descriptive response. Is the question raising the normative issue of whether the Constitution should, under the best reading, be understood to require the recognition of same-sex marriages? Is it asking whether the Court should mandate recognition under the best application of its own doctrine and precedents, regardless of whether that doctrine and those precedents are correct? Or is it asking whether the Court will mandate the recognition of same-sex marriage, regardless of whether it should do so? I think the wording of the question (“do you believe...?”) fairly asked respondents to give their own personal, normative views of the constitutional command, rather than to predict what the Court might do.  At any rate, if these interpretive problems plagued respondents, they did not say so. Only a handful of them quarreled with any aspect of the wording of any of the questions, a remarkable result by itself.

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

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

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

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

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

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.

Today the President of the United States explicitly endorsed the idea that gay couples and their families should have the freedom to marry.  He had already done so as a practical matter by refusing to defend the constitutionality of what he carefully mislabelled the “Defense Against Marriage Act” and by publicly opposing state constitutional amendments against marriage.  But in the past he had said he personally opposed gay marriage because “God is in the mix.”  Jon Rauch has some thoughts about the Obama evolution toward support:

What happened? Harry Truman was fond of quoting Mark Twain: “When in doubt, do right. This will gratify some people and astonish the rest.” Now and then, politicians have a “goddammit” moment. Obama’s position had clearly shifted on the issue (who was he kidding with his talk of having “evolved” but being unwilling to make news?), and there was never going to be a better time to make the switch than now–at least not while he is certain to be a non-lame-duck president.

So Obama decided it’s worth a roll of the dice to make history. Which is what he has done.

As of his announcement, favoring gay marriage is now fully, indisputably, and permanently a mainstream political position. All hint of weirdness or stigma is gone. It is also now the stated position of one of the two major political parties (only 16 years after President Bill Clinton, a Democrat, signed the anti-gay-marriage Defense of Marriage Act). Precisely because the issue is unlikely to decide the election this year, November’s result will not revoke the issue’s promotion in status even if Obama loses. Though gay couples have not achieved full legal equality, gay marriage, as an issue, has achieved full political equality. That is a landmark in the ongoing marriage debate.

Rauch goes on to speculate that Obama’s statement might influence the Justices should the Prop 8 case or DOMA litigation reach them.  That’s possible, but I’m dubious. This Supreme Court has not been shy about disagreeing with the Executive Branch.  For goodness’ sake, Justice Alito delivered a visual advisory opinion to him during the State of the Union speech days after the Citizens United decision. I think they’ll decide the issue independently of what President Obama, or President Romney, personally thinks about it. The bigger constitutional landmark was the Obama Justice Department’s conclusion that DOMA is unconstitutional because it cannot meet the heightened scrutiny that the DOJ argued is applicable to discrimination based on sexual orientation.

The rest of what Rauch says, however, seems spot on to me.  It’s easy to be cynical about everything politicians do, and I yield to few people in my skepticism of officeholders.  I spoke to many Minnesota lawmakers last year who voted to place an anti-gay marriage limitation on the ballot, yet privately expressed their misgivings about it. President Obama himself has a tortured public history on the issue, moving from support when he ran for state office in 1996, to opposition when he ran for U.S. Senate in 2004 and president in 2008, to support now.  It’s obvious that he privately supported gay marriage for years, so his evolution was for public consumption.

Nevertheless, watching him closely on TV, I had a hard time mustering cynicism about the president’s words.  He must know his public support is not obviously a net political plus for him in November.  And his description today of his discussions with his family, his experience of talking to young adults (including young Republicans) for whom opposition to gay marriage is baffling, and his understanding of the hardships faced by gay families, including those headed by openly gay servicemembers, seemed genuine.  His words echoed the conclusions now reached by about half of the American people.  On this issue, as on others, the president may be leading from behind.  But it matters when presidents lead, as when Lyndon Johnson declared civil rights a “moral issue” and announced on national television, “We shall overcome.”  The president’s endorsement won’t matter to people who’ve made up their minds to oppose marriage for gay couples, but many others are listening.

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?

The bill is SB 1172, and it bans “psychotherapy” of under-18-year-olds “aimed at altering the sexual or romantic desires, attractions, or conduct of a person toward people of the same sex so that the desire, attraction, or conduct is eliminated or reduced or might instead be directed toward people of a different sex.” This so regardless of whether the patient or the patient’s parents want the therapy to take place.

The bill also regulates such psychotherapy for adults, but the outright prohibition applies only to under-18-year-olds.