New York High Court Rejects Gay Marriage Claim:

By 4-2, the court held that the state constitution does not compel the recognition of same-sex marriages. The matter, said the court, is for the state legislature to decide. It is the first state high court to address the substance of a gay-marriage claim since the Massachusetts decision in 2003.

The ruling, coming from a fairly progressive court in a deep-blue state, has to be considered a significant set-back for gay-marriage litigants. At the same time, it undermines further the arguments of those who have claimed that a federal marriage amendment is needed to block activist courts from imposing gay marriage on the nation. Now we await decisions from high courts in New Jersey and Washington.

More on the substance of the opinion after I have a chance to read it.

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The New York Marriage Decision, Due Process, and Defining Fundamental Rights:

The New York marriage decision raises many interesting questions. I plan, over a few posts, to deal with some of them: (1) the due process claim; (2) the equal protection claim; (3) the legal rationality of excluding same-sex couples from marriage; and (4) some implications of the decision for the future of gay marriage. First up, due process.

The plaintiffs argued that there is a fundamental “right to marry” guaranteed by the state constitution’s due process clause (which New York courts interpret more broadly than the analogous federal clause), and that this right applies to same-sex as well as opposite-sex couples. Thus, their exclusion should be subjected to strict scrutiny, which hardly anyone seems to think a state could satisfy. The Court of Appeals held that while there is a fundamental right to marry, there is no fundamental right “to marry someone of the same sex,” (p. 11) and thus that only rational basis scrutiny applies. It differed from the Massachusetts court in 2003 in Goodridge by holding that the exclusion of gay couples from marriage is rational.

The doctrinal key in these fundamental rights/substantive due process cases has long been the proper way to characterize the right at stake. Much academic commentary has been offered on this issue. Where courts characterize the right at stake broadly (e.g., “this case is about ‘the right to privacy’”) plaintiffs win (see e.g., Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, Casey v. Planned Parenthood, and Lawrence v. Texas) because their activity can always be said to partake of the broad right. Where courts characterize the right at stake narrowly (e.g., “this case is about the ‘right of nonmarital biological fathers to visitation with their children adulterously conceived’” or “this case is about the ‘right to engage in homosexual sodomy’”) plaintiffs lose (see e.g., Bowers v. Hardwick, Michael H. v. Gerald D., and Washington v. Glucksberg), because there is rarely the kind of historical and traditional support for a narrow right that would allow it to be ranked as fundamental. In every due-process case, it is possible to articulate the claimed right very broadly, very narrowly, or somewhere in between.

So the issue is largely decided, doctrinally, at this initial stage of characterizing the right. The rest of the analysis is usually straightforward, though there have been exceptions (e.g., where a law meets strict scrutiny or fails rational basis review). To its credit, the New York court recognized the tensions in the precedents on this issue, with courts sometimes choosing broad characterizations and sometimes narrow ones. The U.S. Supreme Court has never given us a methodology for choosing the level of generality, which has led to the strong suspicion that the cases in this area are result-driven.

Which path to follow in a gay-marriage case, that of Glucksberg and its narrow conception of the claimed right, or that of Lawrence and its broad conception of the claimed right? The question is not a hypothetical one; it will confront every court at the state and federal level that deals with a gay-marriage claim grounded in due process. The New York court offers this methodology for making the choice: "The difference between Lawrence and Glucksberg,” reasoned the court, “is that in Glucksberg the relatively narrow definition of the right at issue was based on rational line-drawing. In Lawrence, by contrast, the court found the distinction between homosexual sodomy and intimate relations generally to be essentially arbitrary.” (p. 12) Thus, the New York court chooses the Glucksberg model and rejects the Lawrence model. (Yet another indication, if we needed more, that Lawrence is not leading courts quickly to gay marriage.)

The New York court’s approach is a novel, but I think unsatisfactory, way to resolve the level-of-generality dilemma in due process cases. It resolves the problem only by deciding the result. Thus, in Glucksberg, under the New York court’s approach we would choose the more specific level of generality (“this case is about a narrow ‘right to physician-assisted suicide’ rather than a broad ‘right to die’”) only after deciding that the law meets the very test likely to be applicable to a right characterized at that specific level: it is rational for the legislature to ban physician-assisted suicide so we characterize the right as involving only the very narrow practice that it is rational for the legislature to ban, not some broader principle of human liberty, like a “right to die with dignity,” which the legislature could not deny.

In a gay-marriage case, we have to choose between characterizing the exclusion of gay couples from marriage as implicating either (1) a “right to same-sex marriage” (narrow), or (2) a “right to marry” (broad). We make this choice, according to the New York court, by first deciding whether the exclusion itself is rational. If it is rational (as it is in the case of gay marriage, the court concludes), then we’ll choose the narrow characterization of the right implicated (#1), which will mean that rational-basis scrutiny applies (since there is rarely sufficient historical support for rights narrowly conceived, and thus they aren’t “fundamental”), and we’ve just decided that the exclusion is rational. It can’t be argued with a straight face that there is a traditionally recognized “right to same-sex marriage.” It follows like the night the day that gay-marriage plaintiffs lose under the New York-style due-process analysis

On the other hand, if the New York court had found — as the Massachusetts court did in Goodridge in 2003 – that the exclusion of gay couples from marriage was arbitrary/irrational, then it presumably would have characterized the claimed right at a broader level of generality (“this case is about the ‘right to marry’”), since the exclusion would not be based on “rational line-drawing”; then it would have found that the case implicated a fundamental right to marry; and hence it would have applied strict scrutiny, which the exclusion would fail, since the court already would have found it irrational.

The New York court thus gives us an approach to the level-of-generality problem in substantive due process cases that, if taken seriously, is both circular and eviscerates fundamental rights. The result in every case is practically determined by the initial analysis about the law’s rationality. If the law is determined rational at the outset, it will probably be constitutional. If not, it probably won’t be. But this makes a (further) mess of the fundamental rights doctrine, the underlying point of which is to say that some rights are so important they cannot be denied even if the government has rational reasons to do so.

I do not want to be too hard on the New York court on this point. The judges deserve credit for recognizing the problem and honestly attempting to grapple with it; not all courts do. It’s equally possible for a court to assume that gay marriage implicates the “right to marry” without ever recognizing this issue, and thus uphold a gay-marriage claim in an equally conclusory fashion.

A less abstract way to approach the problem of choosing a level of generality would be to ask how courts have tended to characterize the right at issue in other marriage cases. Here, the most obvious precedents to look at would be the canonical marriage cases – Loving v. Virginia, Turner v. Safley, and Zablocki v. Redhail. In all three cases, the U.S. Supreme Court chose a broad level of generality, not a narrow one. Thus, in each case, the right at stake was the “right to marry,” not the “right to marry a person of another race” (Loving), the “right of prison inmates to marry” (Turner), or the “right of deadbeat parents to marry” (Zablocki). This would suggest that the right at stake in the New York case was the “right to marry,” not the “right to same-sex marriage.” Surprisingly, the court doesn’t even mention Turner and cites Zablocki only for an unrelated point.

But this, too, would be an unsatisfactory approach. What, after all, is the content of the “right to marry”? It surely cannot mean a fundamental right to marry anyone or anything, regardless of number of partners, age, consanguinity, or even species – a right that could only be denied if the government could satisfy strict scrutiny. “Marriage” in the fundamental rights context must have some substantive content, some underlying purpose, which would help us to distinguish the claim of an adult, unrelated gay couple from the claim of Joe to marry Fido.

I have no problem distinguishing same-sex marriages from inter-species marriages, because I have an underlying idea of marriage and the purposes it properly serves that includes the claims of the former and excludes the claims of the latter. But my view of the underlying point of marriage is sharply contested, since for many people in almost all times marriage has meant something – uniting people whose sex procreates — that excludes gay couples.

There are good arguments against their view – among them, that it has been for at least a century a largely anachronistic vision of marriage – but I’m hardly so confident that I’m correct that I want courts deciding the issue at this point as if it’s a settled matter of “fundamental rights.” And if I were to brief this point for the anti-gay-marriage movement in a good lawyerly way, I’d have plenty of room to argue that the cases in this area seem implicitly and sometimes explicitly to link marriage to procreation, conceiving “marriage” and thus the fundamental “right to marry” as necessarily involving a man and a woman.

One could argue for a wholly different approach to protecting rights under the due process clause, one that is not tethered to long-recognized practices and traditions, or one that wholly eschews a distinction between fundamental rights and other liberties. Under such an approach, a gay-marriage claim might be upheld even though gay marriage has no grounding in our history and tradition. But, despite the powerful arguments of my co-blogger Randy Barnett and a few others, I do not believe that the Supreme Court has moved to an alternative approach. Nor have I yet seen an alternative approach that would be better than the maddening one we now have.

So it seems to me that, at this point in our history and in the development of doctrine, the New York court reached the right result on the due proces claim for rather unconvincing reasons.

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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.

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Is it rational to exclude gay couples from marriage?

Rejecting the due process and equal protection arguments for heightened scrutiny, the New York Court of Appeals in its important decision last week applied rational basis review to the exclusion of gay couples from marriage. This should have been an easy route to denying the plaintiffs’ claims.

As ordinarily applied, rational basis is a very forgiving standard. The law must be (1) rationally related to (2) a legitimate end of the state. The law need not be very wise or very good to survive. As I once heard Richard Epstein memorably describe it, the rational basis standard basically asks whether any fool could come up with a stupid reason for a bad policy.

The New York court offered two rationales to meet this undemanding standard, both of which had to do with children.

“First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships.” (p. 5) Children need permanence and stability in their lives. Yet the heterosexual relationships that produce them, said the court, “are all too often casual or temporary.” Homosexual couples do not become parents by “accident or impulse”; they must plan ahead and obtain children through adoption, artificial insemination, or some other “technological marvels.” Unstable relationships among heterosexuals therefore “present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples.”

Note the irony of this argument. For decades, homosexual life has been medicalized and pathologized by doctors, sexologists, psychiatrists, and politicians. Only 33 years ago, homosexual orientation was still officially a “disorder.” Gays, especially gay men, were denounced as hopelessly promiscuous, unstable, histrionic, and self-absorbed. Above all, this medico-political consensus held, homosexuals were dangerous to children and should be kept away from them. From the outset of the gay-marriage movement, a vocal opposition argued that the supposedly innate instability of homosexual relationships disqualified them from marriage.

Now, in the most important judicial decision yet rejecting a claim for gay marriage, we are told that gay couples may be kept from marriage not because they are unstable, but because heterosexual couples are unstable. Implicit in this view is that gay couples don’t have as large a need for the “inducement” to “make a solemn, long-term commitment to each other.” (p. 6) Implicit also is that gay couples are likely to plan more responsibly for the upbringing of their children. We thus have less reason to worry about the children gay couples are raising. Is the New York legislature listening?

The court is not saying that gay couples are more stable than heterosexual ones. It is saying that the social cost of heterosexual instability is much greater because of the toll it takes on children. And this much seems right. Sexual irresponsibility among heterosexuals imposes huge costs on our society. One-third of children are now born out-of-wedlock. Unwanted pregnancies lead to abortions. Unwanted and uncared-for children are more prone to violence, crime, drug use, ill-health, and so on.

What the New York court has done, then, is give us a very good reason why heterosexual couples should be permitted to marry. Their children badly need them to have the “inducement” marriage provides for the formation of long-term commitments. Otherwise, heterosexuals are too likely to abandon their responsibilities. There is no doubt the state has a “legitimate interest” in the institution we call marriage.

But how is the exclusion of gay couples “rationally related” to this legitimate interest? How does excluding them and their children from the stabilizing influence of marriage help families headed by heterosexuals? How does denying marriage to gay families make heterosexual ones more stable, long-term, and committed? The anti-gay-marriage movement has been trying for more than a decade now to answer these questions, to offer a believable theory of harm.

Whether you think anti-gay-marriage activists have done so convincingly is beside my point here. The point is that the New York court never even tries to answer these questions. The court simply has no explanation, rational or otherwise, for why heterosexual happiness in marriage depends on homosexual exclusion from it. You could come up with such a tale, but the New York court does not do so. The omission is striking.

The New York court offered a second rational basis for excluding gay couples from marriage. “The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.” (p. 6) In response to social-science studies cited by the plaintiffs concluding that there are no differences between same-sex and opposite-sex couples in raising children, the court argued that the studies did not conclusively establish that the legislature was irrational to prefer heterosexual parents.

I agree with the court that the social-science studies on parenting, to date, do not establish conclusively that children do as well in same-sex households as in opposite-sex ones. The day may come when it would indeed be irrational to doubt this. We’re not there yet.

But once again the key question left unanswered by the court is, how does the exclusion of gay couples from marriage rationally advance the putative preference for heterosexual couples in child-raising? If we were faced with a choice between awarding a child either to a heterosexual or homosexual couple then, all else being equal, it would be rational for the legislature to prefer the former, given the present state of our knowledge. A policy that gave a preference in such cases to heterosexual parents would rationally promote the state’s interests.

But that is not what’s at stake in the question of whether gay couples should be able to marry. If the state could rationally claim that gay couples are incompetent to raise children, that would be one thing. Neither New York nor any other state takes that position, since all states permit gay people to raise children (some, with restrictions and qualifications). In New York, it is possible for a same-sex couple to adopt a child, but not to protect their joint responsibility for that child with marriage. New York guarantees these children will be raised outside of marriage. You could, I think, come up with some explanation for how excluding gay couples promotes what the state regards as the optimal familial arrangement, but the New York court’s analysis of this point is missing.

Let me be clear: I am not saying that existing marriage laws can’t satisfy rational basis review. It would be surprising if they couldn’t satisfy it, notwithstanding the conclusion of the majority of the Massachusetts high court in Goodridge. In fact, the best example of the application of rational basis to uphold the exclusion of gays from marriage is still Justice Cordy’s dissent in that case. His opinion is at once respectful of homosexuals’ claims, temperate in tone, closely reasoned, and a model of the kind of judicial humility associated with the test. By contrast, the New York decision is remarkably thin.

UPDATE: A number of the comments seem focused on filling in arguments the majority could have made on rational basis review (e.g., that marriage includes those couples, and only those couples, that present the problem the state identifies). I have no quarrel with these efforts. The point of the post, however, is that the New York court surprisingly omits these sorts of easy steps in the analysis. It identifies the legitimate end and then stops.

It's worth asking why the court's argument is incomplete. I can only speculate, but I'm guessing it's because the court is reluctant to flesh out in too much detail a very narrow normative vision of marriage that hardly anyone -- outside a few doctrinaire anti-gay-marriage activists -- seems to believe. In order to defend traditional marriage using these types of arguments we have to diminish it as an institution and to demean many existing marriages. That's not a legal problem for judges applying rational-basis review, but it is a cultural problem for anti-gay-marriage activists and for judges who want to be seen as making persuasive arguments, not just minimally rational ones.

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The Road to Gay Marriage After New York:

Almost a week has now passed since the New York Court of Appeals handed down its decision denying state constitutional claims to same-sex marriage. Previously, I’ve discussed my thoughts on the court’s legal analysis. Now I want to explore some effects of the decision on the cause of same-sex marriage.

First, the New York decision may be persuasive authority to other state courts. Right now, litigation is pending in 8 state court systems. We await decisions from the high courts of two states, New Jersey and Washington. New York is a large state and its courts are well regarded. At the same time, it’s a politically liberal state. The New York decision could provide cover, jurisprudentially and politically, to judges in other states who want to reject gay-marriage claims but who are concerned about the perception of legal elites that they are denying the next great civil-rights cause. If New York’s high court can do it, it can’t be blind bigotry or ignorance to reject these claims, can it? Thus, the New York decision could be influential on this issue in a way that, say, the Alabama Supreme Court would not be. The New York opinion may therefore hinder the success of gay-marriage litigants elsewhere.

I would not make too much of this, however. While courts in sister states may influence one another on relatively arcane or technical matters, or matters in which the state court system is thought to have special expertise (like the Delaware state court system’s expertise in corporate law), I doubt they’ll really take the lead from each other on a subject as high profile as gay marriage. Judges will tend to have a view of the issue going in, and I doubt that they’ll be converted by the opinion of four judges in Massachusetts in one direction or four judges in New York in the other direction. It’s remarkable how little the New York court even mentioned the Massachusetts decision or the decisions of courts in other states.

To the extent there is some room for actual persuasion on the issue, I also doubt the New York decision (or the Massachusetts one) is sufficiently well reasoned by itself to budge anyone. That’s not to say the New York (or Massachusetts) decision won’t be cited in future state court litigation. It’s only to say that the citation is likely to be adornment for a result already reached.

At most, the New York decision may have canceled out whatever small persuasive effect Goodridge might have had.

A second effect may be to soften the remedial demands made by future gay-marriage litigants. Instead of insisting on full marriage or nothing, as the New York plaintiffs did, perhaps litigants will be more likely to settle for marriage-lite. This might marginally increase their chances for success. Future state courts might see the current landscape as offering three models for resolution of gay-marriage claims: Massachusetts (full marriage), New York (nothing), and Vermont (civil unions, with directions to the state legislature to work out the details.). They might see the Vermont resolution as a middle position between the extremes of New York and Massachusetts, allowing them to give gay couples the benefits and protections of marriage without risking the political backlash that comes with the word “marriage.”

A third effect should be to reduce and to delay litigation arising from inter-state conflicts in marriage law. If the New York court had ruled for gay marriage, that by itself would have dramatically increased the potential for such conflicts in the near future. New York is the third most populous state, with a high concentration of homosexuals. Its residents, especially in the City, are highly mobile. Very quickly, its gay married residents would have moved to or traveled in other states, gotten into legal conflicts with each other or with third parties, and sought some recognition for their relationships. I think discordant state policies in this area can be dealt with under traditional legal principles. And these conflicts will occur anyway, whether they involve gay marriages or civil unions. But there is no doubt the sheer number of such issues coming from New York would have heightened tensions over the gay-marriage issue very quickly and added to calls for a national resolution via constitutional amendment.

A fourth effect of the New York decision may be to cool the fevered brows of gay-marriage litigants who imagined that Massachusetts would commence an avalanche of state-court victories for gay marriage. That has not happened, is unlikely to happen in the immediate future, and the New York decision makes it somewhat less likely to happen now than it was before. The cooling effect may mean that new gay-marriage litigation will be rarer, at least in the immediate future.

I doubt the magnitude of this cooling effect, however. There is no central clearinghouse for gay-marriage litigation, no command center where the great homosexual conspiracy dictates where and when litigation is filed. Anyone with a printer, a filing fee, and a couple of willing clients can file a gay-marriage lawsuit anywhere, anytime. While gay legal elites have sometimes prevailed on such litigants to hold off in states where their lawsuit is likely to make bad precedent for the cause, they haven’t always succeeded. People can be very dogged about what they regard as their constitutional rights and, less abstractly, the manifest unfairness and harm of having their families shut out of marriage. The gay-marriage movement is a revolution of rising expectations among the growing number of gay families and no single judicial decision is going to suppress it.

Also, I doubt New York will turn out to be much of a chastening event for gay legal elites. The main gay legal organizations pushing this effort have been strategically smart about where the litigation should be filed. But their raison d’etre is to file litigation, not to fight decades-long legislative battles. Their funding comes from litigation and from people who support litigation, so they have little internal incentive to back off. Besides, it will take only one more court victory somewhere (perhaps New Jersey) to convince gay-marriage litigants that New York was an aberration.

Related to all this, many commentators who favor gay marriage, like Andrew Sullivan and Jack Balkin, have seen a silver lining in the New York loss. They believe that losing such an important judicial decision may force the gay-marriage movement to emphasize legislative progress, which will produce gains that are more durable and less likely to infuriate opponents than are court victories. Regular VC readers will know that I have argued for an emphasis on legislative progress toward gay marriage.

Will the New York decision re-order priorities toward legislation? Certainly in New York the legislature is for now the only available arena. Some politicians in New York, including Michael Bloomberg, have said they’ll now work for gay marriage in the state legislature. It took New York 30 years to pass an employment anti-discrimination law covering sexual orientation. With Republicans fairly comfortably in control of the state senate and for now the governor’s mansion, gay marriage is not coming to New York anytime soon. Instead, New York will have to be one of the states where, if progress is to be made in the near-term at all, it will have to be made by degrees.

Outside New York, I doubt this decision by itself will have much effect immediately on the balance of power, persuasiveness, and funding between those gay-marriage advocates who emphasize litigation and those who emphasize legislation. I suggested some reasons for this above.

But New York might be the beginning of the end for the strong emphasis on litigation that has marked the early part of the gay-marriage cause. Despite the exaggerated claims of some FMA supporters, there aren’t that many state court systems likely to be hospitable to gay-marriage claims for the foreseeable future. (The federal courts are hopeless, as litigation strategists know.) While gay-marriage litigation strategists might once have hoped to build momentum for a state-by-state judicial sweep, producing a few initial victories in very friendly states that would lead to later victories in less friendly states, that hope has been diminished by the New York defeat and even more by the political backlash to gay marriage. Once existing litigation has worked its way through those few state court systems where litigants have a reasonable prospect of success, as such litigation is now doing, gay-marriage advocates will turn primarily to legislatures.

As in other social and political movements in this country, the courts will have helped along the way by highlighting the strength of the principled arguments and especially by getting some isolated experiments started. But there will be no substitute for making the case to the people and their representatives.

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Washington High Court Upholds Exclusion of Gay Couples From Marriage:

Over the objections of four dissenters, the court turned away a state constitutional challenge to Washington's marriage law. Here's a summary of the holding from the opinion itself:

In brief, unless a law is a grant of positive favoritism to a minority class, we apply the same constitutional analysis under the state constitution's privileges and immunities clause that is applied under the federal constitution's equal protection clause. DOMA does not grant a privilege or immunity to a favored minority class, and we accordingly apply the federal analysis. The plaintiffs have not established that they are members of a suspect class or that they have a fundamental right to marriage that includes the right to marry a person of the same sex. Therefore, we apply the highly deferential rational basis standard of review to the legislature's decision that only opposite-sex couples are entitled to civil marriage in this state. Under this standard, DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children's biological parents. Allowing same-sex couples to marry does not, in the legislature's view, further these purposes.2 Accordingly, there is no violation of the privileges and immunities clause.

There also is no violation of the state due process clause. DOMA bears a reasonable relationship to legitimate state interests -- procreation and child-rearing. Nor do we find DOMA invalid as a violation of privacy interests protected by article I, section 7 of the Washington State Constitution. The people of Washington have not had in the past nor, at this time, are they entitled to an expectation that they may choose to marry a person of the same sex.

Finally, DOMA does not violate the state constitution's equal rights amendment because that provision prohibits laws that render benefits to or restrict or deny rights of one sex. DOMA treats both sexes the same; neither a man nor a woman may marry a person of the same sex.

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The hardest day of the cruelest month:

For gay-marriage litigants, July has been the cruelest month. Prior to today’s 5-4 Washington Supreme Court decision in Andersen v. King County, there were two substantive state marriage decisions against them (New York and Connecticut), one quasi-substantive federal decision against them (the 8th Circuit, whose broad dicta went beyond the state constitutional ban at issue), and three procedural decisions against them upholding the propriety of ballot initiatives (Massachusetts, Tennessee, and Georgia).

But this may turn out to be the hardest day of all. Andersen is the most careful, closely reasoned, and comprehensive judicial opinion to date rejecting constitutional claims to gay marriage. It is much better, as a matter of conventional legal analysis and craftsmanship, than the New York Court of Appeals decision in Hernandez v. Robles rejecting gay-marriage claims a couple of weeks ago. Since the principles and arguments on this issue from state-to-state, and even in the federal courts, are not that different, the Washington decision will deserve close attention from other courts. Among the courts next to consider claims for gay marriage, the New Jersey Supreme Court in particular should grapple with Andersen.

There is a bright spot in Andersen for gay couples. The court practically invites future litigation and legislation resulting in a Vermont-style civil unions resolution, granting the benefits and protections of marriage to gay couples without the status of “marriage.” This seems the likely direction for future litigation and legislative action in Washington and elsewhere. I'll say more about this below.

Since I addressed many of the constitutional issues in earlier posts reacting to Hernandez v. Robles I won’t go over all that territory again. Instead, I’ll address here some of the distinctive features of the Andersen opinion.

(1) While there was some speculation about possible political motivations for the 17-month period to issue the opinion, it seems in retrospect that the justices were simply taking the time to be very careful on an opinion they knew history would judge them for: writing and re-writing sensitive passages, negotiating with each other, trading drafts among the chambers, waiting to see how other courts might come out. The close result, and the opening paragraphs in particular, chiding not just the dissents for the usual abandonment of legal principles but also the concurrence for needlessly extending the opinions, suggests a court that was sharply divided over how to proceed and struggling to reach broader consensus. Yes, judges can be political and Machiavellian; but sometimes they’re just doing their job as conscientiously as they can. In general, I’d be wary of the conspiracy theories about courts that spring up from the populist resentment of judicial activism.

(2) Unlike the New York Court of Appeals, the Washington court dealt substantively with the question of suspect-class status for gays under equal protection principles. It also avoided the bizarre contextualized analysis of the issue the New York court gave us, and instead dealt with the question whether gays generally constitute a suspect class.

The Andersen court is more confident about the elements of the suspect-class analysis (history of discrimination, immutable and usually irrelevant trait, and political powerlessness) than I think is justified, but its rejection of heightened scrutiny is certainly defensible under the precedents. It acknowledges, as every court addressing the issue has, a history of discrimination against gays. But it says the trait defining the class is not immutable, and seems to hold that immutability is essential to heightened scrutiny. Both halves of this holding are questionable. The Andersen court isn’t clear what it thinks the “defining trait” of this class is – homosexual acts or homosexual orientation – and this ambiguity muddies things a bit. If homosexuals acts are the “defining trait,” it’s not immutable; if homosexual orientation, the best evidence is that it is immutable or very close to immutable. It’s also not clear that immutability is even required, as opposed to one factor among many to be weighed, in the analysis of which groups get heightened scrutiny.

The Andersen opinion also shows how legislative advances for gays are a double-edged sword in litigation over marriage. Some courts upholding gay-marriage or civil unions claims have cited legislative progress – eliminating sodomy laws, making adoptions more widely available, passing employment non-discrimination laws – as evidence that times and attitudes are changing and as support for the idea that the legislature has no very good reason to withhold this last bit of progress from them.

In Andersen, by contrast, the court cites legislative progress as a reason to deny gays suspect-class status, on the dubious theory that a truly powerless group wouldn’t have made such democratic progress. This part of the analysis is questionable, since historical work by William Eskridge and others has shown that groups tend to get heightened scrutiny only after they’ve made legislative progress. And once they’ve gotten suspect class status, they don’t lose it simply because the legislature begins to take their concerns seriously.

I have always thought there was room for a good suspect-classification argument, but there’s no doubt the weight of precedent is on the side of the Andersen court.

(3) On whether the plaintiffs have a fundamental right to marry, the Andersen opinion is also better than Hernandez. It avoids directly resolving the level-of-generality problem, i.e., is the issue a “fundamental right to marry” or a “fundamental right to marry a person of the same sex”? Instead, it resolves the issue in good lawyerly fashion by looking closely at the Supreme Court’s cases dealing with the fundamental right to marry, including cases the New York Court of Appeals ignored, like Turner v. Safley (involving marriage for prison inmates). Andersen reads these cases as linking marriage to procreation. That’s not the only way to read the precedents and it doesn’t make much sense of the modern conception of marriage, but as an interpretation of doctrine it’s defensible and perhaps the best view.

(4) Once it rejected any reason to apply heightened scrutiny to the exclusion of gay couples from marriage, the Andersen court applies a standard rational-basis review. The court rightly describes this form of review as “extremely deferential” and granting the state “nearly limitless” power to make policy as it sees fit. Here, the court does a much better job than did Hernandez explaining why it’s constitutionally rational for the state to create a special status for heterosexual couples. The underinclusiveness and overinclusiveness of the classification in relation to the claimed interests – promoting procreation and child welfare – are very poor policy reasons to exclude gay couples from marriage, and the court implicitly recognizes this at several points in the opinion. But they’re sufficient for traditional rational basis review, absent some good indication of animus. The court explains – unlike the New York court — that the issue is not whether excluding gay couples from marriage advances these interests in any way (the exclusion of gay couples does not plausibly advance them) but whether including straight couples in marriage advances these interests (it clearly does).

(5) Andersen quickly, and I think correctly, dismisses the claim that due process “privacy” interests command the inclusion of gay couples in marriage. Marriage is not a purely private matter, though important aspects of the marital relationship are private and it is an intensely personal experience for couples and families. Marriage is full of public benefits and privileges that make it a public investment and a matter of public concern.

(6) The Washington opinion also rejects the sex-discrimination argument much more convincingly than did the New York court. Andersen does as good a job as I’ve seen in a judicial opinion of refuting “the Loving analogy,” which suggests that excluding same-sex couples from marriage is constitutionally analogous to excluding interracial couples from marriage. Moreover, the opinion deals not just with the formal aspects of the sex-discrimination argument (marriage laws classify on the basis of sex) but also with the sociological claim (that marriage laws have the impermissible purpose or effect of perpetuating gender stereotypes). The sociological claim about gender stereotypes seems a crabbed view of marriage, its public purposes and effects.

(7) Finally, there’s a potentially significant passage in the middle of the opinion that might get overlooked on a first read:

We do not dispute that same-sex couples raise children or that the demographics of "family" have changed significantly over the past decades. We recognize that same-sex couples enter significant, committed relationships that include children, whether adopted, conceived through assisted reproduction, or brought within the family of the same-sex couple after the end of a heterosexual relationship. We do not doubt that times have changed and are changing, and that courts and legislatures are increasingly faced with the need to answer significant legal questions regarding the families and property of same-sex couples. (Citations omitted).

We are also acutely aware, from the records in these cases and the briefing by the plaintiffs and the amici supporting them, that many day-to- day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples. A married person may be entitled to health care and other benefits through a spouse. A married person's property may pass to the other upon death through intestacy laws or under community property laws or agreements. Married couples may execute community property agreements and durable powers of attorney for medical emergencies without fear they will not be honored on the basis the couple is of the same sex and unmarried. Unlike heterosexual couples who automatically have the advantages of such laws upon marriage, whether they have children or not, same-sex couples do not have the same rights with regard to their life partners that facilitate practical day-to-day living, involving such things as medical conditions and emergencies (which may become of more concern with aging), basic property transactions, and devolution of property upon death.

Lest you think these are just crocodile tears from a gutless court delivering gay families to the tender mercies of the heartless legislature, the court continued:

But plaintiffs have affirmatively asked that we not consider any claim regarding statutory benefits and obligations separate from the status of marriage. We thus have no cause for considering whether denial of statutory rights and obligations to same-sex couples, apart from the status of marriage, violates the state or federal constitution. (emphasis added)

This qualification is repeated at the end of the opinion, along with another recitation of the ways the denial of marriage harms gay families and with a strong suggestion that “the legislature may want to reexamine the impact of the marriage laws on all citizens of this state.”

To the state legislature, the message seems to be this: “Get moving on addressing the hardships faced by gay couples and their children, some of which we’ve listed for you. You don’t have to give them marriage and maybe not even all of the rights of marriage, but something needs to be done. If you don’t act, we might.”

To gay-marriage litigants, the message seems to be this: “Go to the legislature and see what can be done about the sorts of problems you’ve identified and that we agree exist. If the legislature is unresponsive, come back to us not with a claim for the status of marriage, but with a remedial claim for the benefits and protections of marriage for your families.”

My guess is that this dual message was necessary to get the five votes needed to uphold the state’s marriage laws.

I’ve said before that courts confronting gay-marriage claims may now see three choices: (1) ordering full marriage (Massachusetts); (2) denying the claims (New York); and (3) compromising on civil unions, with instructions to the legislature to decide on implementation (Vermont). Choice #3 involves many complications and permutations.

Though superficially opting for #2, the Washington court would like very much to give #3 a try. It’s a sensible direction for litigants, legislatures, and courts.

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