The New York Marriage Decision and Equal Protection:

In addition to the due process argument, the New York gay-marriage plaintiffs claimed that denying them marriage violated the state constitution's guarantee of equal protection. (Here, New York generally follows federal precedent, offering no more protection than would be offered under the federal constitution.) The court confronted two arguments for heightened scrutiny: first, that denying same-sex couples marriage is a form of sex discrimination, to which the court should apply intermediate scrutiny; and second, that their exclusion from marriage is a form of sexual orientation discrimination, to which the court should apply some form of heightened scrutiny.

The first claim, that excluding gay couples from marriage is a form of sex discrimination, has been a staple of gay-rights litigation and especially of academic theorizing for a couple of decades. It's fair to say that sex-discrimination arguments have been the dominant mode of legal-academic writing supporting gay-rights claims for a generation now. One of the primary theorists of this argument has been Andrew Koppelman, a Northwestern University Law School professor and friend of mine, who has been both tireless and remarkably articulate in defense of it.

The argument operates at two levels: a formal one and a deeper sociological one. The formal argument is that much anti-gay legislation, like a same-sex marriage exclusion, that appears to be merely "anti-gay" is actually sex discrimination on its face. After all, Jack can marry Jill, but he can't marry Adam. The exclusion turns on Jack's biological sex, since Jack could marry Adam if he (Jack) were female. Thus, Jack is being denied a government benefit because of his sex. It does not matter, according to this argument, that males and females are equally denied the right to marry someone of the same sex. In Loving v. Virginia, the sex-discrimination theory goes, the Supreme Court easily dispatched the argument that an antimiscegenation law that applied to both blacks and whites was not race discrimination.

Further, the sex-discrimination argument holds, a same-sex marriage exclusion operates sociologically to reinforce traditional notions about the proper gender roles of men and women; women must be "wives" to men, men "husbands" to women, and so on. It is a goal of sex-discrimination jurisprudence to root out legislative classifications grounded in traditional gender roles.

The New York court addressed only the formal part of the sex-discrimination argument, rejecting it in a single paragraph:

By limiting marriage to opposite-sex couples, New York is not engaging in sex discrimination. The limitation does not put men and women in separate classes, and give one class a benefit not given to the other. Women and men are treated alike -- they are permitted to marry people of the opposite sex, but not people of their own sex. This is not the kind of sham equality that the Supreme Court confronted in Loving; the statute there, prohibiting black and white people from marrying each other, was in substance anti-black legislation. Plaintiffs do not argue here that the legislation they challenge is designed to subordinate either men to women or women to men as a class. (pp. 13-14)

The New York court's conclusion here is very much in line with the vast majority of decisions at the state and federal levels that have confronted the sex-discrimination argument in one form or another. Indeed, even courts favorable to gay-rights claims have either explicitly rejected the sex-discrimination argument (as did the Vermont and Massachusetts high courts in their marriage cases) or have ignored it (as did the Supreme Court in Lawrence). In some two decades it has succeeded just once in a high-profile case, Baehr v. Lewin, in which the Hawaii Supreme Court held that the denial of marriage to same-sex couples was sex discrimination. Overall, its won-loss record in litigation has been abysmal.

But should it be? I have never been persuaded by the sex-discrimination argument. At the formal level, the argument over-reads Loving, a single case from a different and special area of equal-protection jurisprudence (race). Classifications based on race are far more likely to be based simply on racism than classifications based on sex are likely to be based simply on sexism. We have separate bathrooms for men and women; separate men's and women's sports teams at public universities; men and women are treated differently by the military; different standards for presuming parentage depending on sex; different penalties and standards for statutory rape depending on sex, and so on. I doubt these sex classifications are unconstitutional, or that they would get anything more than rational-basis scrutiny. Even if we applied intermediate scrutiny to them, they'd probably pass that more forgiving and flexible test.

Further, I understand Loving to have concluded that antimiscegenation laws, however "equal" they were in form, to have one basic and overriding purpose that deeply offends the heart of the 14th Amendment: the maintenance of "White Supremacy." While I agree that the limitation of marriage to opposite-sex couples both reflects and reinforces traditional gender roles, I think it is a crabbed view of traditional marriage to say that that is all it reflects or to say that maintaining a gender hierarchy is even its dominant cultural function nowadays. Many, many legal academics would strongly disagree with my view.

Especially troubling for the formal sex-discrimination argument in the marriage context, I think, are cases in which the Supreme Court has suggested that legislative classifications based on biological differences between men and women get only rational-basis scrutiny (see, e.g., Geduldig). The argument of the state in the New York case, and the one the court ultimately accepted, is that the limitation of marriage to opposite-sex couples (the legislative classification) is rooted in a biological fact -- that most opposite-sex couples may procreate while no same-sex couple can. That's not a good policy reason to exclude gay couples from marriage, in my view, but it may be a good constitutional basis for subjecting their exclusion to rational-basis review despite what looks facially like a sex classification.

Next, the New York plaintiffs argued that their exclusion from marriage was a form of sexual orientation discrimination that should be subjected to heightened scrutiny. Under the federal and state precedents, this claim is even more dubious than the sex-discrimination argument. Federal courts do not apply heightened scrutiny to sexual orientation discrimination. Neither do state courts. Nevertheless, the Supreme Court has never squarely addressed the arguments for heightened scrutiny of sexual orientation discrimination (no, not even in Romer). It is certainly open to New York to go its own way on this question.

To its credit, the New York court at least acknowledged that the gay-marriage exclusion is a form of discrimination based on "sexual preference," implicitly rejecting the glib claim that the exclusion doesn't discriminate against gays because they can still marry someone of the opposite sex. But the court rejected the argument for heightened scrutiny by saying that, while heightened scrutiny might apply to some forms of sexual orientation discrimination, it would not apply to "legislation governing marriage and family relationships," (pp. 14-15) since homosexual "preference" doesn't produce children, a fact "relevant" to state interests in marriage.

This, I think, is the weakest part of the opinion. The usual equal protection approach is categorical, not context-specific. The courts usually ask whether classifications aimed at a group are in general suspect, and then apply the appropriate scrutiny to a particular classification depending on the answer to that question. They do not usually, as the New York court did here, look at each law and decide whether the state has interests "relevant" to the classification and then apply only rational-basis scrutiny wherever the state has such "relevant" interests. For example, a court would not apply rational-basis scrutiny to a decision by a state prison system that has interests "relevant" to race in separating black from white prisoners. The court would apply strict scrutiny to such a classification because that's the level of scrutiny the court applies to all race classifications. (There are cases, however, involving alienage and sex classifications where the level of scrutiny is more context-specific.)

While the Supreme Court has never fully laid out the guidelines for the application of heightened scrutiny, it has suggested some criteria, like the political powerlessness of the group, a history of invidious discrimination against the group, and so on. The New York court acknowledges a history of "serious injustice in the treatment of homosexuals, a wrong that has been widely recognized only in the relatively recent past" (p. 9). But the court fails to cite the criteria for the application of heightened scrutiny or the decisions that employ them, much less analyze the issue. The dissent, by contrast, contains a nice primer on some of the relevant points (Kaye dissent at pp. 12-16). Whether the dissent is correct or not is beside the point. The majority failed even to engage the issue.

Ivan (mail) (www):
Isn't there a contradiction in your analysis of the court's decision regarding gender classification and sexual orientation classification? As to gender classification, you point out the various contexts in which laws differentiating based on gender are acceptable, but that strikes me as an argument for why claims of gender classification receive only intermediate, rather than strict scrutiny. This is supported by your argument below that the usual equal protection approach is categorical, not context-specific.

So why does a court have to apply strict scrutiny to all race classifications, but can apply intermediate scrutiny only to gender cases not based on biological differences? I don't think Geduldig is on point here, since (to my recollection, anyway) it held that there was no gender classification because, though it only affected pregnant women, not all women were pregnant. Michael H seems closest to the point you're making, but that was a plurality and it still acknowledged that rational basis scrutiny is more sharply focused when the classification involves gender.

So why was the court right when it said that some gender classifications receive intermediate scrutiny but some don't, and wrong when it said that some sexual orientation discrimination claims might receive sharper scrutiny, but this one doesn't?
7.7.2006 3:54pm
Goober (mail):
I haven't read much of the opinion yet and have gotten most of the text from the maddeningly dull account in the New York Times (why don't newspapers hire reporters with some basic understanding of legal reasoning? journalists seldom fail to point out primary challenges etc., that likely impact the public moves of elected politicians, so why is it they seem so unconcerned with the reasoning that motivates judges?). And the account of Judge Kaye's dissent is probably unfair to her.

However, that said, the portion from the dissent which is cited above stumbles out of the gate, arguing that homosexuals fit the definition of suspect class because their defining characteristic is so logically unattenuated from any legitimate state interest as to give rise to a presumption of animus whenever the group gets the brunt-end of state action. But that's got it almost precisely backwards---the motivation for defining marriage as between a heterosexual couple wasn't a legislative desire, real or imputed, to exclude homosexuals; rather homosexuals are excluded solely because marriage was defined as between a man and a woman. Both analytically and temporally, homosexuals have come to the marriage nuisance, as it were; the definition preceded the desire of homosexuals to marry, and the conflict is an entirely unforeseen consequence.

It seems to me that judicial resolution of this issue is especially difficult for two reasons. Standing in the way of appellants' conclusion, that heterosexual-only marriage laws are unconstitutional, is a threshold question, what kind of classification is present here? It might be "glib," but I don't think it's trivial to point out that the denial taking place here isn't a direct exclusion of homosexuals from marriage, but rather a definitional decision by the state that effectively makes marriage irrelevant for homosexuals. But is that sort of definition the same as an exclusionary classification, such as preventing blacks from attending certain public schools in Topeka? In Michael H. v. Gerald D., one of the litigants lost his status as father to his child by the operation of California's family law, which presumed the husband of the mother to be the legal father. Parental rights obviously enjoy high constitutional regard, but the definition of who parents are didn't receive high scrutiny in that case. Isn't it the case that, while marriage is a fundamental right, defining a priori the definitional contours of marriage is something that courts simply have to leave to legislatures? (That's something of an open question; I really don't know.)

On the other side is the problem for the majority in this case---and this is parasitic on the political case for equal marriage rights---that, even applying rational basis to the unequal treatment of homosexuals, there seems to be absolutely no articulable basis for such an exclusion. (Those who recall Maggie Gallagher's rather depressing attempt, over a full week, to come up with even a single reason why marriage ought to be restricted to male-female couples have seen the difficulty in its full range of motion.) The thing about rational basis review that makes it such a lax standard is that any reason will do, yet in this case that doesn't seem very easy at all.

I think these two problems rather stem from the same cause, which is that the original definers of marriage as involving one man and one woman didn't particularly think they were excluding homosexuals from the benefits of marriage by doing so. Thus there's no articulable reason for the exclusion, because it was entirely a collateral consequence. But thus also the problem with how to treat the definition---it wasn't a measurement of costs against benefits, because no one making the initial judgment had any realization of the impact of the decision on the dispute between the litigants in New York.

Just a few thoughts.
7.7.2006 4:15pm
Goober (mail):
(One clarification to the cost-benefit point in my last full paragraph: It wasn't the result of a majority pursuing its own benefits at the expense of a minority's great costs, which is the kind of state action that the current doctrine's various tests are well suited for. In fact, that's what they were designed for, if you measure the era of Equal Protection from the decision in Carolene Products.)
7.7.2006 4:20pm
Bob Van Burkleo (mail):
Yes the NY court was a bit obvious in their twisting to find a qualitative difference between a gay citizen's marriage and a straight persons. The idea that that state can preferentially license to heterosexual couples because they can end up with children by other than choice ignores that the vast majority of children of gay married couples are from previous marriages. That 49% of all US children are being raised by other than their 2 genetic contributors.

A gay parent with kids from a previous marriage has no more 'choice' about that situation than the straight one that gets unintentionally pregnant. That with modern birth control and pregnancy termination methods opposite gender couples are at the same risk of having unintentional children as same gender couples.

I do agree that the 'gender discrimination' is a poor argument and has always sounded to me more like legal trickery than an honest point of view. Gay people should be able to marry because we now know that being gay isn't a vice and that some law abiding citizens can only be reasonably expected to marry someone of the same gender. That the biological need to marry exists regardless if you want to marry someone of the same or opposite gender and if the state is going to sanction one they should sanction both or have a very good reason why they aren't.
7.7.2006 4:27pm
Dale Carpenter (mail):
Ivan: As I said in the post, there are sex classification cases where the Supreme Court's scrutiny seems context-specific and not categorical, specifically those where the court thinks the sex classification turns on some sex-specific biological difference (like the capacity to become pregnant). There are also, as I noted in the post, some alienage cases where the court has been context-specific. These cases are rare. The usual approach to classifications under the equal protection clause is categorical. The New York court is free to depart from the categorical approach in the case of sexual orientation discrimination, but if it is going to reject an argument for heightened scrutiny it should give us some explanation for why it is doing so. Its single quote from Cleburne to support its context-specific approach is both unhelpful and taken out of context.
7.7.2006 4:38pm
Houston Lawyer:
I think it necessary to point out that, other than in the 19th amendment, sex is not mentioned in the Constitution. All of the constitutional sex discrimination jurisprudence of the supreme court has been made up out of whole cloth. The constitution has nothing to do with it.
7.7.2006 4:56pm
I would ask one question - why cover a spouse/partner under Health Insurance/Pension/... It would seem a blatant discrimination against single people to do so. Sure, in a competive market, if you can keep an employee by offering him dog-walking services, go for it. But why ever offer partner benefits, whether that partner is traditional, or unconventional?

Societal reasons for offering dependent child coverage has its own reasons, and it can serve several purposes.

And if there is a reason to do so, is it any stronger a reason than for offering parent care?
7.7.2006 5:16pm
Philistine (mail):
Houston Lawyer:

Since race is only mentioned in the 15th Amendment (which only has to do with the right to vote), do you also believe that all of the Supreme Court's constitutional racial discrimination has also been made up out of whole cloth?
7.7.2006 5:21pm
JPS3L (mail):
Prof. Carpenter:

I enjoyed reading your thoughtful analysis of yesterday’s N.Y. Court of Appeals decision regarding gay marriage. Your comments raised a few questions, however, that I would be grateful if you would address.

My first question concerns whether this topic is even justiciable, both because it lacks a judicially discoverable and manageable standard for resolving the issue and because Section 5 of the 14th Amendment would seem to empower the legislative branch to enforce the protections afforded by the liberty clause? My understanding is that the Court’s justiciability inquiries begin with the Carr standard, which states:

“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

Baker v. Carr, 369 US 186, 217 (1962).

As your analysis discussed, courts have struggled to articulate a meaningful definition of the “fundamental right” that same–sex couples are trying to obtain in the context of marriage. I suppose an initial question may be whether same-sex couples are arguing for state sanctioned legal unions that confer the same benefits as marriage or whether the argument is to change the definition of marriage itself to include same-sex couples? I raise this point because I believe that the marriage rights that the courts have previously dealt with have all involved one man and one woman who are not already related to each other. Indeed, the only marriage case that I am familiar with that dealt with a different formulation of marriage was United States v. Reynolds, in which the Court declined to extend Constitutional protection to polygamous couples. With either strategy (i.e. marriage functional equivalency or changing the definition of marriage altogether), the conundrum remains the same: how does a court contrive a legal standard that is broad enough to include same-sex couples while being narrow enough to exclude polyamory? It strikes me that if too broad a definition is adopted, polyamory and incest would be included; while too narrow a definition would impermissibly discriminate against polygamous and incestuous couples. Put another way, the court could not announce a judicially discoverable and manageable standard that would meaningfully distinguish same-sex marriage from polyamory and incest. Justice Scalia alluded to this problem in Casey.

“The right to abort, we are told, inheres in “liberty” because it is among “a person's most basic decisions;” it involves a “most intimate and personal choic[e]:” it is “central to personal dignity and autonomy;” it “originate[s] within the zone of conscience and belief;” it is “too intimate and personal” for state interference; it reflects “intimate views” of a “deep, personal character;” it involves “intimate relationships” and notions of “personal autonomy and bodily integrity;” and it concerns a particularly “ ‘important decisio[n].”…But it is obvious to anyone applying “reasoned judgment” that the same adjectives can be applied to many forms of conduct that this Court has held are not entitled to constitutional protection-because, like abortion, they are forms of conduct that have long been criminalized in American society…Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally “intimate” and “deep[ly] personal” decisions involving “personal autonomy and bodily integrity,” and all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are proscribable. It is not reasoned judgment that supports the Court's decision; only personal predilection.”

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 983-984 (1992) (Scalia, J. Dissenting).

Thus, it would seem plausible that a conservative court may very well hold an issue like same-sex marriage to be non-justiciable precisely because of the difficulty associated with articulating a judicially discoverable and manageable standard. But even if a court articulates such a standard (however problematic it may be), such as Massachusetts did, there is still another argument to support the non-justiciability of this issue. The Carr Court also stated that “the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government” would serve as another justification for holding an issue non-justiciable. Thus where an issue presents a question that both the legislative and judicial branches share a responsibility for resolving, the Court should not decide the issue in a political vacuum that ignores the input of the co-equal branches of government. In this case, the Constitution states, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const. amend. XIV, Sec. 5. Thus, Congress has the power to enforce the requirements of the due process clause and equal protection clause of the 14th Amendment, and not the Court alone. To the extent that Congress has already defined marriage as, “the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife,” then is seems that a Court decision to the contrary would express a lack of respect for the coordinate legislative branch. 1 U.S.C. Sec. 7. (While I understand that the NY decision raised a state constitutional issue, this question is designed to inquire as to the constitutionality of a SCOTUS decision that discovered a fundamental right to same-sex marriage.) Whether the Court were to approach its justiciability analysis under the judicially discoverable and manageable standard rubric or according to it concern for respecting the constitutional obligations of a coordinate branch of government, it would seem that there is a strong argument that same-sex marriage raises a political question that is best left to the elected representatives.

My second question may actually touch more upon your forthcoming equal protection analysis, though I thought I would ask the question anyway because it also applies to the substantive due process issue. Where rational basis analysis is employed, does a state’s obligation not to discriminate against the perceived fundamental rights of other citizens serve as a rational basis for not amending a questionable statute? To the extent that the question of legislative animus towards a demographic minority is resolved at the time of legislative enactment, then it would follow that state statutes defining marriage before the notion of same-sex marriage was even contemplated by society are not facially invalid as serving an improper purpose. Moreover, even if the statute still needed to pass the rational basis test, the societal norms that justified the statute at the time of its adoption should be sufficient to pass this test. Indeed, the same concepts of family stability desired for the purpose of procreation and childrearing that informed the Supreme Court’s Reynolds decision should be sufficient to justify a state’s decision to define marriage as being between a man and a woman. Additionally, the rational basis inquiry is inherently one of legislative intent; it is designed to ascertain whether the enacting legislatures had a legitimate interest in achieving an objective and whether the means sought to achieve that end were rational (i.e. not arbitrary and capricious). If we were to test old statutes against current notions of rationality, in view of current viewpoints, then we will have eviscerated the contribution of legislative intent to judicial review. Thus, testing elderly statutes against contemporary norms for purposes of satisfying a rational basis inquiry would appear to contradict the very purpose of the rational basis test in the first place.

The question, it seems to me, would then become what obligation the state has to amend a statute that arguably trespasses upon a group’s fundamental rights? Because the Supreme Court has not yet declared homosexual conduct or same-sex marriage to be a fundamental right or held gays and lesbians to be a suspect class (See generally, Romer v. Evans; Lawrence v. Texas), then wouldn’t a state legislature be justified in declining to broaden the definition of marriage to include same-sex couples for fear that such a law would discriminate against other non-traditional forms of marriage (i.e. polygamous and incestuous couples)? In other words, absent an express judicial finding that gay and lesbian fundamental rights were indeed being chilled by current statutory definitions of marriage(e.g. Massachusetts), if a state were to change its definition of marriage to include same-sex couples but not other non-traditional marriage formats, then wouldn’t the state be leaving itself open to a Mormon challenging the newly constituted statute as being underinclusive for failing to include polygamous couples? After all, polygamy has a stronger tradition in American and cultural history than does same-sex marriage. Why would a state be rationally justified in protecting same-sex marriage while excluding polyamory? (Is there evidence that children do better in a same-sex marriage than in a polygamous marriage?) Unless a court has already distinguished same-sex marriage as being a fundamental right while contemporaneously rejecting the idea that polygamy does not enjoy similar protection, then it seems to me that any legislative broadening of the definition of marriage would lend itself to an equal protection challenge. However unlikely, the possibility of such a challenge would also appear to provide a rational basis for states to not expand their statutory definitions of marriage.

At any rate, those were the questions that I had. Any thoughts that you would share regarding these questions would be fantastic.

[To the extent that readers feel I am unfairly trying to link same-sex marriage to polygamy or incest for the purpose of further impugning gay marriage, that is not the case. Nor am I building a slippery-slope argument. My purpose has been to buttress my argument that (i) a legal inability to meaningfully distinguish same-sex marriage from polygamy with an objective legal standard could lead to a conclusion that the issue is not justiciable and (ii) to argue that amending state laws to include same-sex marriage while continuing to exclude polygamy could violate the guarantees of equal protection. In the context of the latter argument, I have also argued that avoiding an equal protection challenge to new state statutes that provide for same sex marriage while excluding polygamy provides a rational basis for not changing existing laws. I have tried to stay away from subjective characterizations altogether, both because they tend to inflame an already emotional topic and because they are not a factor in the Court's analysis.]
7.7.2006 5:22pm
Goober (mail):
Economics, Toby. More people want spouse medical coverage than dog-walking. Plus the economics of health care make it cheaper to purchase the larger the group of members purchasing in bulk, so the contribution for two spouses is less than twice that of a single member, or at least it is under my plan. Additionally, the economics of health insurance mean that the cost to the employer (i.e., the amount less an employer pays to their employees to whom they offer it) would be less than the employer's cost if she were to purchase it herself, and nearly every employee wants health coverage for herself (and her spouse), so by deducting the cost to employer but giving the employee coverage, you increase the employee's compensation bundle. Contra dog-walking, where (a) most employees would rather have the money that the employer spent, and (b) even those employees who do want a company-provided dog-walker could probably get a cheaper and more convenient dog-walker by themselves.
7.7.2006 5:25pm
Bob Van Burkleo (mail):
JPS3L, part of the problem is trying to justify marriage equality without at least touching back to the real world that the law is designed to regulate. IF the marriage contract were merely a contract there might be the difficulties you describe, but its not. This is a contract designed to serve those citizens who are 'building a life together' as the old NSA criteria was stated. And most citizens can only be reasonably expected to consider doing so with someone of a particular gender. There are no people that can only be reasonably expected to marry multiple partners, there are none who can only marry close relatives. There in is the difference. The polygamist can still license the contract with someone who they would like to build a life with out of a potential pool of billions - that he would like to license it with more than one is a new and different issue. All citizens are excluded the relative handful of close relatives out of that pool of billions IF if they can reasonably be expected to marry someone of the opposite gender. Only those who can only be reasonably expected to marry someone of the same gender have a potential pool of zero candidates that would meet the licensing restrictions.

The law can't be argued in a vacuum that ignores the way the world and the people in it really are.
7.7.2006 6:05pm
Helen T. (mail):
Given that same-sex married people live in Massachusetts today, did the judges cover the question of what happens if people in a same-sex marriage move to New York? Or is that case entirely outside of the bounds of this ruling.

In general, has anyone written an analysis of what happens to a same-sex marriage from Massachusetts if they move to either a DOMA or a non-DOMA state?

I would assume that a married Massachusetts couple are in a similar situation to an interracial married couple in 1948 California. How did it work, then, if the couple moved through or to a state where their marriage was illegal?
7.7.2006 6:20pm
Let's Be Honest:
Does anyone honestly believe that the NY Court of Appeals would have found it to be constitutional for the State of New York to prohibit sterile people from marrying?

This is ultimately all about animus towards same-sex couplings; And yes, when the marriage laws were enacted same-sex couplings weren't considered because such couplings were criminalized and thought to merit imprisonment.
7.7.2006 6:36pm
JPS3L (mail):

My understanding is that full faith and credit does not require other states to recognize the official documents (e.g. marriage licenses) of other states unless that state provides similar rights to its citizens. Moreover, most states have comity statutes that prohibit them for inflicting their laws upon the citizens of other states. Thus, Massachusetts will not issue a marriage license to an out-of-state applicant unless the applicant's state also provides for gay marriage. Moreover, other states are not required to recognize a same-sex Massachusetts marriage license unless that state also provides for gay marriage. The underlining purpose of these laws is to ensure that all states respect each others laws without allowing any one state to impose its normative laws on the citizens of other states. I believe these statutes were recently upheld by the Massachusetts Supreme Judicial Court.
7.7.2006 6:38pm
A nice analysis, Prof. I broadly agree, and I find that it is very hard to find a textualist interpretation of the Equal Protection clause that reaches race but not sexual orientation, if you concede that sexual orientaiton is not mutable for at least some people.

Furthermore, there are decent arguments (grounded in Ely-esque principles) that the tiny minority of gay people is actually more deserving of suspect class status than are women, because they are far less able to protect their interests in the political process than women (who constitute a majority) are. The mutability factor tends to cut the same way, as does the history of discrimination.

Indeed, it is hard to find an argument other than robotic adherence to a list derived from past precedent (and divorced from the reasons that created that list) that supports the current listed classifications, but not sexual orientation.

(Now, I still think it might be a mistake for SCOTUS to go near this issue right now -- it could very well provoke a public backlash that would usher in a Federal Marraige Amendment and set the cause back significantly. But as a matter of prinicple, it's hard to find a good reason to say that strict scrutiny shouldn't be applicable here.)
7.7.2006 7:54pm
Omar Bradley (mail):

I would not say that ALL of the SCOTUS' racial discrimination jurisprudence has been made up out of whole cloth, however I would say that MUCH of it has been. By contrast, its sex discrimination jurisprudence is ENTIRELY made up out of whole cloth.

See Raoul Berger among many others for well nigh conclusive evidence that the Court's modern definition of equal protection is above and beyond any conception of it that the framers and ratifiers had.

While this may be welcome from a policy standpoint, from a judicial one it is rather unfortunate.

The idea that the 14th Amendment, which everyone would agree DID NOT give blacks the right to vote(arguably the most fundamental right of all in a democracy), DID somehow give them "strict scrutiny" protection in every other facet of life is difficult to believe.

And for the record, yes, I do believe Brown v Board was wrongly decided. The proper authority to remedy segregation was Congressional and at the state level. And were I on the bench in 1954 instead of say Justice Clark, the decision would have been 8-1, not 9-0. Loving was also most likely wrongly decided. Again, the proper avenue was at the state level(or through further amendment)

Would I vote to overrule these cases were I on the SC? Since the possibility would never arise it's rather irelevant but the answer is yes.
7.8.2006 12:19am
Truth Seeker:
Bob Van Burkleo said:
There are no people that can only be reasonably expected to marry multiple partners, there are none who can only marry close relatives.

Any evidence or studies for this broad assertion, Bob? Maybe some people can only be fulfilled with 3 wives or some people can only fall in love with their sisters. Baseless claims are getting us anywhere.
7.8.2006 12:49am
Bob Van Burkleo (mail):
Any evidence or studies for this broad assertion, Bob?

Because no one, even the polygamists are claiming that's the case. Again, virtually all polygamy starts out as a couple - that preemptively precludes a claim of more being required. And has anyone claimed someone has a 'relative' sexual orientation anywhere in the world?

We know that people can only pair-bond with someone of a particular gender, these other issues would have to be first even claimed and then some evidence for their support. Again, still worlds away from marriage equality based on just gender combination.
7.8.2006 3:58am
Helen T. (mail):
So for California 1948 (or Massachusetts 2006), a couple could get married and would be married as long as they're in state. But what about outside their state? Their marriage simply- what- dissolves at the state line? Is annulled? It is as if they were claiming common-law marriage moving from a state with common-law marriage to one without?

And 1/4th of these married couples have children (based on that 1/4 of gay couples have children). If the child's parents move out of the one state where the marriage exists, then is their also a dissolving of the relationship at the state border? Or is it more of a stripping of the marriage as they move into a state where it isn't legal?

ah, Here's the one-question version of what I'd like to find out:

If a member of a same-sex married couple in Massachusetts moved to Georgia, could that person *legally,* under Georgian law, get married to an opposite-sex person?
7.8.2006 4:00am
Cornellian (mail):

The type of questions you describe have always been around in our federal system and the system copes with them well enough that you don't read about problems with it in the newspapers.

Different states have different minimum ages for being married, different rules for whether you can marry cousins etc.

Suppose two cousins of the opposite sex, both aged 15, marry in a state where that is legal. Suppose they then move to a state where cousins cannot marry and the minimum age for marriage is 16. Suppose one of them has a sex change and in their home state this legally changes one's sex, thus turning their marriage into a same-sex marriage. Can they just move to a state where a sex change doesn't legally change one's sex and thereby have a same sex marriage to all appearances, but an opposite sex marriage from the point of view of the law?

In other words, I don't see any particular problem with same sex marriages being permittted in some states but not others. Our federal systems deals with this type of thing all the time and will continue to do so.
7.8.2006 6:32am
Bottomfish (mail):
The analogy between inter-racial unions and same-sex unions is invalid from a historical point of view because people have married across ethnic lines from time immemorial, while same-sex marriage has never or hardly ever existed. This nonlawyer cannot understand how any court can ignore these facts while getting caught up in the scholasticism of "suspect classifications" and "fundamental rights." In fact, why not acknowledge that the question of what rights are fundamental is itself a political question, as Scalia said?
7.8.2006 9:05am
I also think that most of these issues ultimately should be resolved under a gay focus, rather than a gender focus. But I will say two things in defense of the gender argument.

First, insofar as the state asserts an interest in children having both a male father and a female mother, it strikes me as perfectly appropriate to look at that particular argument as a gender argument, and to subject it to intermediate scrutiny.

Second, insofar as the state claims that their laws were not originally based on any consideration of gay people, and that the prohibition on gay marriages simply arises incidentally from the original gender rules, then it would be fair to subject those rules to intermediate scrutiny as being based on gender. But this is really just a clarifying device--it puts the state in the position of having to explain that the real reason these rules are being perpetuated is that the state doesn't like gay marriages, and that the gender effects are in fact incidental to that purpose, not the other way around.

In short, if the state wants to rest on gender-based arguments, then it is only fair to subject those argument to intermediate scrutiny. But I think the likely (and proper) effect of such a rule is just that states will have to get to the heart of the matter--whether they can justify their rules as intentionally, not merely incidentally, prohibiting gay marriages.
7.8.2006 9:23am
Mr L (mail):
In fact, why not acknowledge that the question of what rights are fundamental is itself a political question, as Scalia said?

Because then we wouldn't be able to shoehorn the things we want through the courts. In fact -- horrors! -- we might actually be forced to seek the support of our peers rather than silencing them with rhetorical bludgeons like the idea that gay marriage and interracial marriage hinge on the same issues (which is at least as stupid as the idea that gay and NAMBLA-style marriages are comparable or that one follows from the other).
7.8.2006 11:41am
Bottomfish: not all of the provisions of the constitution take their meaning from historical practice. Some do -- see for instance the Seventh Amendment, which refers to "preserv[ing]" the right to a jury trial, and explicit historical reference.

But the constitutional command under the Equal Protection clause has no historical reference. Indeed, it was an explicit break from a long, long tradition of unequal treatment. Thus, it's meaning can't be fully, or even mostly, determined by looking to historical traditions.

Frankly, the Clause is one of the hardest parts of the constitution to interpret, because it is so abstract and inscrutable. It could mean many different things. But I do think it is fair to ask, are we being consistent in how we interpret it? Is our decision to extend protection to some disadvantaged groups, but not others, an expression of the very discrimination the Clause is trying to root out?

And from a textualist point of view, it is important to remember that the Clause says nothing about race. Rather, we read racial protections into the laws, because it is hard to feel like we are truly protecting all people equally when laws are facially discriminating against some members of our society on the basis of factors beyond their control, unless there is a very good reason to justify such behavior. The logic underlying this prinicple applies just as fully to gay people as it does to black people, and there is nothing inherent in the text that seems to offer a way of protecting one class but not the other.
7.8.2006 2:10pm
And while we are talking about extra-constitutional inventions, where exactly does the constitution authorize the court to create a "political question doctrine," which enables it to avoid interpreting the constituiton as a supreme law when it potentially conflicts with other laws? What gives SCOTUS the authority to refuse to do their jobs when a case is properly presented to them?

Even the pragmatic justifications for the doctrine don't work. It's not like there is either a lack of any meaningful standards to be employed in answering the question, or an explicit committment of this question to the political branches.
7.8.2006 2:12pm
Hamilton Lovecraft (mail):
If a member of a same-sex married couple in Massachusetts moved to Georgia, could that person *legally,* under Georgian law, get married to an opposite-sex person?

Seems like Georgia wouldn't have a problem with it, but it would probably run afoul of federal bigamy laws.
7.8.2006 3:35pm
Helen T. (mail):
Hamilton L.,
I had thought that the federal government doesn't recognize same-sex marriages. The person from the Massachusetts married couple would be a bigamist in Massachusetts, but would they be anywhere else?

I'm still trying to get a sense of what happens when couples in a "legal in only one state" marriage move across state lines, and is what happens different if the new state has a DOMA or not?

I've read Loving v. Virginia- my understanding is that there, the Lovings' marriage was considered an illegal act. In that case, either of the Lovings could not have gotten married to another person in Virginia.
7.8.2006 5:50pm
Bottomfish (mail):
I would say that in the phrase "Equal Protection" the word "protection" is essentially negative. It implies that the issue of unconstitutionality arises when someone is explicitly denied something to which he or she would otherwise be entitled. Thus granting some group a monopoly on a trade or profession is a violation of equal protection, unless there is a good reason ("reasonable basis") why non-members should not be granted licensure.

There is no reason why the Constitution has to create conditions that guarantee disadvantaged groups (d.g.'s) the best deal in all respects. One would think the d.g.'s might be expected to show a little initiative of their own once in a while. In fact, they do show initiative. But when, say, a State government promulgates a requirement that people show i.d. in advance of an election before being allowed to vote, as a means of preventing vote fraud, and a judge immediately strikes the requirement down as disadvantaging "minorities and the poor", I wonder why these same minorities and the poor, who buy homes (at least some) and set up bank accounts and get credit cards, are suddenly paralyzed at the thought of showing i.d., when they are required to do so all of the time in their lives, and do show i.d. for the purposes I have mentioned. So I would say that the issue of equal protection for disadvantaged groups has been blown up out of control.

One would think that the Executive and Legislative branches were created with some purpose in mind, not to mention State governments. When a question is set aside by the courts as "political", all that means is that there should be input from other branches of government, and from the people, as well as from the guys and gals in black robes. Getting back to the question of gay marriage, why shouldn't the people have some input in the debate? Since this is supposed to be a government of the people, by the people, and for the people, why is the answer to the same-sex marriage issue treated as if it were purely one of Constitutional rights? In my now famous state of Massachusetts, the political establishment is fighting tooth and nail agains a popular vote on gay marriage. At the same time, attempts to promulgate gay marriage in the schools are leading to fights among the kids. (There was a recent news item in the Boston Globe about such an incident in Lexington, among six- and seven-year old children). What can you do, in such a situation, other than conduct a referendum?
7.8.2006 6:03pm
There is no reason why the Constitution has to create conditions that guarantee disadvantaged groups (d.g.'s) the best deal in all respects.

We agree on this. But here, we have a selective denial of benefits, based solely on a status outside of individual control, for most people. That isn't saying the government has to give gay people a boost -- it's saying that the government can't facially discriminate against them by giving marriage benefits to some and not others based on an immutable characteristic.
7.8.2006 7:35pm
Truth Seeker:
Bob Van Burkleo said:
We know that people can only pair-bond with someone of a particular gender

There you go again, Bob! Gay Lesbian Transgender and Queer Studies courses all say that there is a range of sexuality and those in the middle ranges can bond with either. Where is you empirical evidence?

Again, virtually all polygamy starts out as a couple - that preemptively precludes a claim of more being required.

It doesn't preclude any such thing. Every ten year old begins as a two year old but that does not mean that only being two years old is normal but being ten is not. Every meal starts with one fork of food but that does not mean that one fork of food is enough to sustain you. Let's get serious here!
7.9.2006 2:06am
I think that polygamy is fairly well excluded by the line of immutability.

But I think that some of it (Mormons, Muslims) should be protected by the Free Exercise Clause.
7.9.2006 3:25am
Grand CRU (mail):
The most important thing the NY Court of Appeals did with this ruling was offer a template to other state supreme courts as to how to silence judicially silly arguments like the ones made in this thread.
7.9.2006 7:42am
Randy R. (mail):
Yeah, Grand, like treating gay people with dignity and respect....
7.9.2006 2:22pm
hjgu (mail):
7.9.2006 9:51pm