Why Royal Dutch Petroleum is Wrong About the Liability of Pirates, Inc.

During the Kiobel oral arguments, following a discussion between Breyer and counsel for the Respondents Royal Dutch Petroleum/Shell regarding whether corporations could ever be liable under international law, the example of “Pirates, Inc.” was predictably trotted out for a hypothetical test drive. Justice Breyer asked Shell whether Blackbeard could have avoided liability for any claims on his booty from pirate victims bringing civil actions against him, simply by turning his pirate enterprise into an incorporated entity. Respondents answered with an emphatic “yes,” claiming that damages for a tort alleging piracy in violation of the law of nations were limited to the value of the ship that carried out the piracy:

JUSTICE BREYER: […] Do you think in the 18th century if they’d brought Pirates, Incorporated, and we get all their gold, and Blackbeard gets up and he says, oh, it isn’t me; it’s the corporation — do you think that they would have then said: Oh, I see, it’s a corporation. Good-bye. Go home.

MS. SULLIVAN: Justice Breyer, yes, the corporation would not be liable.


JUSTICE BREYER: What source have you for that proposition?

MS. SULLIVAN: [L]ook to Justice Story in U.S. v. Smith, cited in the Respondents’ brief at footnote 12. It looks to piracy. And piracy is allowed — in rem actions. You could seize the ship with which the piracy was committed, as you could later slave trading ships. But you could not seize another ship, and you could not seize the assets of the corporation.

But Royal Dutch Petroleum was mistaken in its account of civil liability for piracy; both international law and U.S. law have repeatedly held that just the opposite is true.

As an initial matter, Respondents’ citation to U.S. v. Smith is inapposite. In rem jurisdiction plays no part in that case; rather, it concerned jurisdiction to define the crime of piracy.

But Respondents were also wrong in asserting that civil liability for piracy was limited to the value of the ship that made the illegal capture. Yes, in rem jurisdiction did play a part in admiralty and prize law, but not in the context Respondents are asserting. Eighteenth century U.S. case law is clear: the owners of ships that violate international law are liable to the full extent of the damage caused. You could indeed seize another ship beyond the one that engaged in the piratical act, and any other assets of the principal besides, to recover for damages caused by the torts of an agent.

In any event, Pirates, Inc. is a poor hypothetical for considering questions of corporate liability, because the way 18th century law dealt with pirates was a rather strict affair, leaving little room for derivative liability to play a significant role: when you captures pirates, you don’t sue them, you simply kill them and claim their booty for your own. A better example would be Privateers, Inc. — because such entities did in fact exist in the 18th century, and owners of privateers were frequently sued for the acts of the privateer’s captain. As discussed in a previous post, New York state law authorized the incorporation of privateer enterprises, and before that, the Dutch West India Company, unlike its cousin the Dutch East India Company, was a notorious 17th century example of a corporation whose primary source of profits was privateering, not trade. Privateering, although legal, was regulated by the law of nations, and unauthorized captures were a violation of that law, and a frequent source of disputes. Moreover, in many cases, ships that portrayed themselves as “privateers” while in port often had little compunction about turning pirate on the high seas, if a tempting enough opportunity were to arise. And whether it involved incorporated privateers or unincorporated groups who owned or held shares in privateers, owners’ of privateers were frequently held to have derivative liability for their privateers’ breaches of the laws of nations.

The law in this regard was not uniform, and there was some deviation in domestic practice, but the overwhelming weight of authority provided for agency liability for violations of international law. Bynkershoek, for example, in Questions of Public Law (1737), Book I, Chapter 19, discusses a decision that reached an opposite conclusion. He then goes on, however, on to state that such a holding was plainly incorrect, as owners of privateer ships that have made a wrongful capture “are to be held liable until complete reparation has been made.” Although bondsmen — whose only role is to post a security bond for the privateer at the start of the voyage — cannot be liable beyond the amount of their bond, the owner of a ship in violation of the laws of nations is liable in full:

[I]f the owner sent the captain out to take prizes, and he carries out his commission wrongfully, the owners are liable to the full amount of the damage caused. The captain who takes prizes under a commission is appointed for that purpose, and he who appoints him is by the act of appointment liable for all, whether good or bad, that his appointee does under the commission. Thus we permit an actio institoria against the owner of a shop who has placed an agent in charge of it, and if the agent has made a contract we do not distinguish in what manner he has made it. In the same way we give an exercitorian action against the owner of a vessel for the act of a captain, provided the captain was acting in a matter for which he was engaged; for if he was not, he does not bind the owner, as Ulpian has fully explained. The appointment is the sole cause why owners of shops and of ships are bound: that is to say, they are liable if the act was committed in the performance of a task for which the agent was appointed, but not otherwise. He who has placed a captain on a privateering vessel, knows that the captain’s duty was to make captures, and if the captain performs this task improperly, the fault lies with the owner who employed an unskilful and dishonest man for the task. If a captain, having borrowed money for the repairing of his ship, applies it to his own use, Ofilius properly says: ‘the owner is liable, and must impute it to himself that he employed such a person.’ With this agrees the opinion of the States-General expressed in their decree of October 22, 1627: ‘that the shipowners must take care to employ good captains.’

If owners of shops and of vessels are responsible for the acts of their agents, it is evident that they are responsible to the full extent of the damages, and that they are not discharged by the surrender of the shop or the vessel in question. I do not remember that I have ever read an opinion contrary to this; nor would such an opinion be reasonable, since those who are responsible for the acts of their agents are responsible to the full extent; hence owners of vessels are liable to the full for unjust captures made by their captains.

See also Blackstone, Book I, Ch. VII (“Therefore, to encourage merchants and others to fit out privateers or armed ships in time of war, by various acts of parliament, the lord high admiral, or the commissioners of the admiralty, are empowered to grant commissions to the owners of such ships; and the prizes captured shall be divided according to a contract entered into between the owners and the captain and crew of the privateer. But the owners, before the commission is granted, shall give security to the admiralty to make compensation for any violation of treaties between those powers with whom the nation is at peace.”).

And Justice Story, in The Amiable Nancy, 3 Wheaton 546 (1818), contrary to Respondents’ assertions regarding Smith, outright rejected the idea that the wrongful acts of a privateer are limited to in rem damages. Story did agree, however, that punitive damages, being intended as a punishment, may only be issued against the moral actors responsible for the conduct:

Under such circumstances, the honor of the country and the duty of the court equally require that a just compensation should be made to the unoffending neutrals, for all the injuries and losses actually sustained by them. And if this were a suit against the original wrong-doers, it might be proper to go yet further, and visit upon them, in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct. But it is to be considered, that this is a suit against the owners of the privateer, upon whom the law has, from motives of policy, devolved a responsibility for the conduct of the officers and crew employed by them, and yet from the nature of the service, they can scarcely ever be able to secure to themselves an adequate indemnity in cases of loss. They are innocent of the demerit of this transaction, having neither directed it, nor countenanced it, nor participated in it, in the slightest degree. Under such circumstances, we are of opinion that they are bound to repair all the real injuries and personal wrongs sustained by the libellants, but they are not bound to the extent of vindictive damages.

This rule had previously been laid out by the Supreme Court in Del Col v. Arnold, 3 U.S. 3 Dall. 333 (1796):

[T]he right of seizing and bringing in a vessel for further examination, does not authorize or excuse any spoliation or damage done to the property, but that the captors proceed at their peril, and are liable for all the consequent injury and loss. On the third point, that the owners of the privateer are responsible for the conduct of their agents the officers and crew to all the world, and that the measure of such responsibility is the full value of the property injured, or destroyed.

James Kent, in his Commentaries on American Law (1826), likewise agreed that the American rule required Privateers, Inc. to be liable to the full extent of damages caused, although in his view this was a rule that could be modified by domestic law:

It has been a question, whether the owners and officers of private armed vessels were liable in damages for illegal conduct beyond the amount of the security given. Bynkershoek has discussed this point quite at large, and he concludes that the owner, master, and sureties are jointly and severally liable, in solido, for the damages incurred; and that the master and owners are liable to the whole extent of the injury, though it may exceed the value of the privateer and her equipment, though the sureties are bound only to the amount of the sums for which they become bound. This rule is liable to the modifications of municipal regulations; and though the French law of prize was formerly the same as the rule laid down by Bynkershoek, yet the new commercial code of France exempts the owners of private armed vessels in time of war from responsibility for trespasses at sea, beyond the amount of the security they may have given, unless they were accomplices in the tort. The English statute of 7 Geo. II. c. 15, is to the same effect, in respect to embezzlements in the merchants’ service. It limits the responsibility to the amount of the vessel and freight, but it does not apply to privateers in time of war; and where there is no positive local law on the subject (and there is none with us), the general principle is, that the liability is commensurate with the injury. This was the rule as declared by the Supreme Court of the United States, in Del Col v. Arnold; and though that case has since been shaken as to other points, it has not been disturbed as to the point before us. We may, therefore, consider it to be a settled rule of law and equity, that the measure of damages is the value of the property unlawfully injured or destroyed, and that each individual owner is responsible for the entire damages, and not ratably pro tanto.

In short, Pirates, Inc. and Privateers, Inc. would both have been civilly liable for their agents’ torts in violation of international law. Although they would not have been morally culpable if they had not personally authorized the violation, and were therefor immune from punitive measures, they nevertheless remained civilly liable in cases where domestic principles of agency law would attribute liability to them.


Shell’s Activities in Nigeria and Kiobel’s Underlying Claims

There were a million things I wanted to write about after oral arguments this morning in Kiobel v. Royal Dutch Petroleum, but I’ve forgotten half of them by now, and I’m too tired to say everything I wanted to about the rest.

So this post is not about the whether the ATS provides jurisdiction for the Kiobel plaintiffs’ claim; instead, it’s about the underlying claim itself.

It was made unexpectedly clear to me today that, despite all of my interest in ATS litigation as an academic question, I have little idea about any of the underlying events that gave rise to those cases. After all, most ATS cases get kicked out at the Motion to Dismiss stage, if not sooner — and facts do not matter at that point, beyond what is alleged in the complaint, so why bother?

But this morning I caught a cab to the Supreme Court for the Kiobel arguments, and after debating the relative merits of Papa John’s pizza vs. Pizza Hut pizza with the cab driver, he asked about what I was going to see at the Court. So I told him it was a case about international law, for claims that had been brought against Shell for its activities in Nigeria.

And he said, “Oh, I know about that. I’m from Ogoniland, the oil companies have done a lot of things there too.”

Well, damn. It turned out he’d been born in Ogoniland, although he’d moved with his parents to somewhere in eastern Nigeria when he was young, before later moving to the U.S. as an adult. He hadn’t heard about the Kiobel case, though, or at least not this particular version of the litigation against Shell, but he seemed to know just about everything there was to know regarding Kiobel’s underlying events.

He talked about the Abacha regime, and what Nigeria had been like under him, and also about Ken Saro-Wiwa, and the books Saro-Wiwa had written, and what his death had meant. His summary of the events surrounding the execution of the Ogoni Nine was bleak: “Saro-Wiwa had an education, and he thought things could be changed. So Abacha had to kill him.”

It was hard not to be conscious of the jarring contrast between the cab driver’s summary of the events preceding Kiobel, and the attorneys’ sterile arguments before the Court a short time later regarding the exact same matter. So, instead of reading more about the ATS today, I’ve largely been looking into Shell’s involvement in Nigeria instead. There is far more out there than can possibly be summed up in a single post, but what does exist looks pretty ugly for Shell. Unfortunately, it’s impossible to tell at this point precisely how much culpability Shell bears for the human rights violations in Nigeria under the Abacha regime, as much of the relevant documentation has not been released into the public record. But based on what is publicly available, it seems pretty likely that, regardless of whether Shell was committing human rights abuses, Shell certainly didn’t oppose them, just so long as there was no resulting interference with its business operations.

Consider this memo from a security officer in Rivers State, where Ogoniland is located:





Ouch. Even if Shell didn’t think it was lining the pockets of Nigerian officials, the Nigerian officials seem to have been expecting a different arrangement. Not to mention, shortly before that memo was written, records show that Shell had paid that same officer an “honorarium”, along with the rest of his squad, for an armed conflict they had engaged in on Shell’s behalf.

Even in incidents where it cannot be shown than Shell was acting as an aider and abettor of human rights abuses, it is obvious that Shell was an opportunistic player who was happy to use the humanitarian crisis for its own benefit, when it was able to do so. For instance, Brian Anderson, a Shell exec and defendant in a prior ATS case, openly promised aid to Ogoni activists in exchange for their cooperation with Shell’s policies. In a memo regarding a conversation with Ken Saro-Wiwa’s brother, after Saro-Wiwa’s arrest and three months before his execution, Anderson wrote the following:

“I offered Owens Wiwa [Saro-Wiwa’s brother] the possibility that we would be prepared to put in some humanitarian aid in exchange for the undertaking by his brother to soften their official stance … you will recall the response was a frosty one (martyrdom rather than concessions).”

True, that memo is hardly damning in terms of international law violations, but it goes a long ways towards showing Shell’s general attitude to the human rights abuses that were occurring at the time. Anderson, in his Motion to Dismiss the ATS suit, tried to spin this into a claim that “Mr. Anderson engaged in ‘quiet diplomacy’ to attempt to secure fair treatment and ultimately clemency for Mr. Saro-Wiwa and the rest of the Ogoni Nine,” but the only documentary records from Shell expressing any concern with Saro-Wiwa’s fate are memos discussing the PR implications of his execution.

No wonder Shell fears engaging in American-style discovery. I doubt it would be pretty for them.


Eight Predictions on the Court’s Decision in Kiobel

With Supreme Court oral arguments on Kiobel v. Royal Dutch Petroleum set for tomorrow, it will still be a while yet before the Court releases its opinion. In the meantime, however, here are my predictions on what the outcome of the case will be. Once the Court has actually gotten around to issuing an order, I’ll check back to see if I managed to get any right.

  1. The Kiobel plaintiffs will lose. Either directly on the Supreme Court’s ruling, or after being kicked back to the lower courts with a directive to make findings that spell doom for the plaintiffs, the case against Royal Dutch/Shell will ultimately be dismissed.
  2. But not because of a finding that corporations cannot be liable under the Alien Tort Statute. The ATS was enacted as a mechanism allowing aliens injured by acts violations of international law to recover damages directly from the party who caused them harm, rather than having the U.S. itself make reparations to the victims. The ATS’s concern is not punishment, but in the financial reparation of damages. And, to that end, from the precedent set by prize law, marine torts, and other areas of the law which, in 1789, regularly featured civil claims for violations of the law of nations, there is plenty for the Court to draw from in finding that principles of agency law apply when ascertaining the entity liable for the damages under the ATS. Sosa already made it clear the Court is going to pay close attention to history in making pronouncements on the ATS’s scope and function, and an enquiry into the historical purpose of the statute necessitates a finding of corporate liability.
  3. Instead, Kiobel will be dismissed under principals of comity. If I had to bet, this is the battleground on which Kiobel will be fought. The hubris of allowing a suit brought by aliens against foreign companies for foreign torts will be too much for the Supreme Court to look past, and they will find that international comity requires that U.S. courts decline to exercise jurisdiction in the situation presented. The defendants are corporations based in and operated out of the United Kingdom and the Netherlands, and none of their corporate holdings in the U.S. had any direct involvement with Shell’s abhorrent practices in Ogoniland. Allowing suit against these companies in the U.S. is one step short of having U.S. federal courts declare themselves to be an international tribunal competent of adjudicating foreign state’s violations of the law of nations, and the Supreme Court just isn’t going to go there. Bonus prediction: look to see Charming Betsy invoked to explain why the Founders only intended the ATS to be limited to cases with either (a) a sufficient U.S. nexus, whether it be based on territorial concerns or personality jurisdiction, or (b) universal jurisdiction. If Justice Breyer gets his way, part (b) will be expansive and include Really Super Bad Awful Acts. Otherwise, it’ll be limited to piracy and any other crimes in the jurisdictional void.
  4. And possibly for failing to meet exhaustion requirements. The requirement that a plaintiff exhaust all domestic remedies before proceeding in a foreign forum was not a consideration in Sosa, but the Court noted then that “[w]e would certainly consider this requirement in an appropriate case. ” It’s also an issue that cropped up frequently in amici briefs submitted by foreign sovereigns in Kiobel, so the Court may consider it again now, assuming it doesn’t stop once it gets to the comity issue. Although I expect the Kiobel plaintiffs won’t be required to have filed suit in Nigeria in order to meet exhaustion requirements, their failure to pursue suits in the Netherlands and the UK may prove fatal. Particularly so for the UK — the fact that many of the plaintiffs, including the Kiobel family, are themselves UK citizens or residents puts the inappropriateness of a U.S. forum into stark relief.
  5. The Court may also look into the Second Circuit’s decisions regarding aiding-and-abetting liability. The “knowledge and purpose” standard for aiding and abetting liability under the ATS may get some dicta thrown its way, but as Kiobel can be decided without reaching the question of secondary liability, I would guess that it will not feature prominently in the Court’s decision. There may be some discussion, though, about aiding and abetting as a substantive violation vs. agency liability as a theory of recovery, and whether both are decided under domestic law, neither are, or one is but not the other.
  6.  Justice Scalia will author a very terse opinion dissenting in part.  Expect it to feature scathing but memorable descriptions about the purported ridiculousness of the Court exercising jurisdiction under the ATS.
  7. Justice Thomas will join Scalia’s dissent.  True story.
  8. Ultimately, even though the specific plaintiffs in this case will lose, the Court’s decision in Kiobel will strengthen, not weaken, a global regime of corporate liability for international human rights violations. The Court’s opinion will signal its intention to respect both international comity and international human rights. As such, one day, in a different case, with different facts, where the U.S. is a proper forum from which a judgment should be issued, Kiobel will ultimately provide support for a finding of corporate liability for violations of international law. And aside from that, the simple fact that the highest court in the U.S. will have gone on record acknowledging that the activities of corporations are indeed cognizable under international law will be a small but significant step in shaping global norms regarding corporate human rights abuses.


Privateer Corporations and Agency Liability: A Response to the Cato Institute’s Amicus Brief in Kiobel

The Cato Institute’s amicus brief in Kiobel v. Royal Dutch Petroleum, along with a couple of other amici, repeatedly enact a straw man (straw law?) version of international law as it existed prior to 1789. The ATS, they argue, should be applied in the context of the law of nations of the Enlightment era, which is conceived to have been a limited, formalist creature, with no concern for individuals, dealing only with kings vis-à-vis kings. This idealist version of international law is then contrasted with international law as it exists today, which, in their view, is apparently some kind of bloated, sovereignty-munching leftist obsession with human rights. But while it is the case that international human rights law did not exist prior to the 20th century, Cato’s idealist version of international law ignores the fact that, for many centuries, the law of nations was an omipresent force of domestic legal systems in a manner which today’s domestic courts would scarcely be able to recognize. Domestic enforcement of private claims under international law was far more prevalent in 1789 than it was in 1989.

The Cato amicus’ delicate selections of quotes from Grotius are particularly inept at proving that international law in the 17th century matched Cato’s positivist depictions of it. Cato goes so far as to argue that in Kiobel “the Second Circuit employed an analysis based on the principles enunciated by Grotius,” which is that “under the law of nations corporations are not answerable in tort.” It is exceedingly unclear what precise “principles” Cato is referring to here, because Grotius certainly never made any direct assertions to that end. Grotius fully recognized that sub-sovereign entities were subject to rights and obligations under the law of nations, corporate entities included. In fact, Grotius got his start working as counsel for the Dutch East India Company, defending the company from claims that it had taken Portuguese prizes in violation of international law. His early works in particular were more advocacy pieces than treatises, intended as a defense of the Company’s right to engage in trade in the East Indies, and its powers to wage private war and take prizes.

In On the Law of War and Peace, which Cato quotes from, Grotius repeatedly acknowledges that private entities are capable of violating the law of nations, and can further be personally liable for those violations:
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Could the State Constitutionally Prohibit Dual-Income Marriages?

At least in legal academic circles, most of the sturm und drang generated by Perry v. Brown has resulted from disagreement about whether Proposition 8 can legitimately be struck down under the exceedingly deferential rational basis review that, ostensibly, the 9th Circuit applied in deciding the case.

But rational basis review is the funhouse mirror standard for evaluating the constitutional permissibility of legislation. Courts do not actually analyze reality, the world as it actually exists, when analyzing a specific case under rational review. Instead, while implementing a steadfast suspension of disbelief, the court is analyzing a legal fiction. Rational basis review requires the court to squint sidelong at the challenged legislation, and pretending to believe in the white lies and polite excuses provided by the State in its defense. So long as the resulting revisionist version of the law that the court comes up with is not itself offensive to the Constitution, then the court will pay no mind to the man behind the curtain.

So could the 9th Circuit correctly claim that Proposition 8 doesn’t meet even this lenient standard for constitutionality? Probably not. Even though all of the arguments in favor of Prop 8 are — objectively speaking, mind you — entirely asinine, a hefty dose of absurdity has never been a bar to legislation passing muster under rational basis review.

But it’s difficult to place the blame on the 9th for deviating from some idealized “true” rational basis standard when the Supreme Court has repeatedly indicated that we are no longer playing by that same rulebook. “True” rational basis is still applied today to abstract economic or administrative regulations, it is not a dead letter in all respects, but it hasn’t been applied to an intimate associations case since around the time of Bowers v. Hardwick.

There are a number ways in which the Supreme Court could choose to synthesize the line of cases leading up to Perry. The most obvious and straightforward method would be to simply go ahead and recognize sexual orientation as a quasi-suspect class, full stop. But that is not a politically feasible outcome, nor would it necessarily result in the fullest integration of existing precedent.

Looking from Skinner to Griswold, to Eisenstadt, Tremble, Moreno, Lawrence, and now Perry, the formulation that I would suggest is this: there is no legitimate state interest in imposing disabilities on individuals that are members of non-traditional family arrangements because they are members of non-traditional family arrangements. Whether interpreted as recognition of a broadly defined quasi-suspect class or as a fundamental right to be free from illegitimate interference with the choices central to personal dignity and autonomy, the result would be the same. While applying something well below a strict scrutiny evaluation, the U.S. Supreme Court has nevertheless repeatedly recognized that legislation which singles out “non-traditional” family structures for disfavored legal status cannot be rationally based upon (1) the State’s unsupported assertion that the family arrangement it is endorsing is preferable because of the arrangement’s ‘traditional’ character or inherent moral superiority; or (2) a marginal benefit to a legitimate objective that, either due to the de minimis amount of the benefit or its dubious probability, is so disproportionate with the scope of the harm imposed on the disfavored family structure as to compel the conclusion that the surmised benefit is not the actual purpose of the law.

In other words, a summary of the Court’s prior case law in this area it looks a fair bit like Perry.

But this is by no means limited to the question of same-sex marriage. The protections applied in Perry are equally applicable to protections enjoyed by heterosexual couples, even if for political reasons it is gays and lesbians that are more often the target of infringing legislation. If rational basis review were truly applicable to legislation in this realm, however, the State would have broad powers to eliminate or prohibit any union it thought not ideal, gay or straight, so long as the prohibition was not based on a class protected by strict scrutiny.

Consider a situation in which the State has enacted a law known as “the Homemaker Act,” which mandates that, henceforth, in order for any marriage to be recognized, or continue to be granted recognition, one partner must act as the primary caretaker of the home while the other partner is the breadwinner. The law would not make any distinctions based on gender — it doesn’t matter whether the wife or the husband stays home to tend the hearth, as long as someone does.

Is there any reason, under the arguments advanced by Prop 8 proponents, that such a law could be constitutionally invalidated? Not that I can see.

After all, this is a well established traditional conception of marriage. The purpose of marriage is to permit couples to engage in an efficient division of labor while assuring a certain minimum degree of security to all parties involved, so that a married couple can have one parent stay home and personally raise children — which is the optimal environment for a child to be raised in — instead of shipping the kids off to day-care to be raised by strangers. By making the working spouse obligated to support the non-working spouse for life, the non-working spouse will have sufficient assurance of future support to be able to forgo any ability of generating income for themselves, and is able to focus all efforts on raising children without the risk of being left destitute. Marriage exists because a spouse that stays home to raise children is thereby put in an extremely vulnerable position — one which the state has mitigated through the series of legal obligations known as marriage.

In other words, if you are in an intimate personal relationship with another person, but both parties are working, you have absolutely no need for the protections offered by marriage. The State has no interest in legally recognizing a couple where both parties have adequate incomes so that neither is reliant upon the other. Although it’s true that dual-income couples can and do reproduce, because neither party has been made financially vulnerable by the arrangement, marriage does not provide any additional benefit to the couple’s ability to raise children, and it is unnecessary to grant privileges where it will do nothing to support the State’s objectives. Moreover, because of “the state’s legitimate interest in promoting the family structure that has proven most likely to foster an optimal environment for the rearing of children,” as one Amici in Perry put it, the State can offer incentives to couples that have adopted this ideal family structure — which are the only couples that benefit from this incentive anyway — while denying it to couples that are not providing the ideal family structure. Allowing all couples to get married would, after all, undermine the social understanding of marriage as an enterprise dedicated to the rearing of children.

Although a hypothetical Homemaker Act would be politically unfeasible at the present time, the sentiments behind it would undoubtedly have been endorsed by prior generations. And it wouldn’t be hard to find a modern politician or two that would endorse a more limited version of such an enactment. Rick Santorum has, in fact, already gone on the record advocating that the government should discourage two-income households:

In far too many families with young children, both parents are working, when, if they really took an honest look at the budget, they might find they don’t both need to.

What happened in America so that mothers and fathers who leave their children in the care of someone else — or worse yet, home alone after school between three and six in the afternoon — find themselves more affirmed by society? Here, we can thank the influence of radical feminism…

Sadly the propaganda campaign launched in the 1960s has taken root. The radical feminists succeeded in undermining the traditional family and convincing women that professional accomplishments are the key to happiness.

The enactment of a much diluted version of the Homemaker Act — one with the same goals although lesser penalties — is not inconceivable. And it would pass constitutional muster under a “true” rational basis review, as it is rationally related to an objective that has been repeatedly declared to be legitimate. All of the arguments that were advanced by the Prop 8 proponents would apply equally in this circumstance, resulting in the conclusion that a mandatory-homemaker statute is a valid, constitutional enactment, because it is based upon traditional notions of marriage and is rationally related to the State’s interest in promoting the optimal family structure for the upbringing of children.

Although it would pass rational basis review, such a law would be a deep infringement upon the right of private association. Luckily, for close to two decades now, rational basis review has been applied to laws like Proposition 8 or the Homemaker Act in name only — and, in practice, the courts have consistently recognized stronger protections for laws that infringe upon private family relationships.


Does Illegitimacy’s Status as a Quasi-Suspect Class Permit Prohibitions on Same Sex Marriage to be Evaluated Under Intermediate Scrutiny?

Although sexual orientation is officially not a suspect class, almost all U.S. courts that have considered the permissibility of discrimination based upon that particular criterion have applied, in practice, a rather more exacting examination of the legislative objectives behind the discriminatory legislation than is typically permitted under rational basis review, even while simultaneously denying that they are doing anything of the sort. This is what is typically referred to as “rational basis with teeth” — the unofficial fourth category of review under the 14th Amendment. And until sexual orientation is declared to be a suspect class, or until the classification system is replaced with a scale, the courts can do nothing else.

But at least in the context of same sex marriage prohibitions, could intermediate scrutiny be directly invoked on the basis of the Supreme Court’s prior illegitimacy jurisprudence? Illegitimate children are already a suspect class under the law; it is impermissible under the 14th Amendment to burden children whose parents were not married at the time of their birth simply in order to encourage future couples to get married before having kids. So why can the state require that the children of same sex couples be illegitimate in order to encourage opposite sex couples to make their children legitimate?

The argument does not appear to be a particularly common one, but I wonder now why it isn’t made more often. One of the reoccurring arguments touted as a justification for Prop 8, as well as other prohibitions on gay marriage, is that marriage is uniquely designed to encourage responsible procreation, and that access to marriage should therefore only be granted where it will serve as a deterrent to reproducing accidentally outside of marriage. Marriage is only for straight people, the argument goes, because only straight people produce kids the old fashioned way, and the best way to raise kids that were produced the old fashioned way in the context of a marital relationship.

This argument is inadequate in that it provides no explanation for why kids that were not produced on accident are not also best raised in the context of a martial relationship. Many gay couples do, very purposefully, create and raise kids, and if kids are best raised by married couples, then it is pretty damned spiteful to order that those kids should be denied the benefit of married parents just so that straight couples who get pregnant are more likely to have a shotgun wedding.

Beyond being spiteful, prior Supreme Court decisions have repeatedly indicated that the objective itself is impermissible. In Trimble v. Gordon, 430 U.S. 762 (1977), the Supreme Court rejected the argument that a law prohibiting intestate succession of bastards was constitutionally permissible, because

[i]n a case like this, the Equal Protection Clause requires more than the mere incantation of a proper state purpose. No one disputes the appropriateness of Illinois’ concern with the family unit, perhaps the most fundamental social institution of our society. The flaw in the analysis lies elsewhere. As we said in Lucas, the constitutionality of this law “depends upon the character of the discrimination and its relation to legitimate legislative aims.” 427 U.S. at 504. The court below did not address the relation between § 12 and the promotion of legitimate family relationships, thus leaving the constitutional analysis incomplete. The same observation can be made about this Court’s decision in Labine, but that case does not stand alone. In subsequent decisions, we have expressly considered and rejected the argument that a State may attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate relationships.

Likewise in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972), the Supreme Court refused to accept the argument that it is permissible to discriminate between legitimate and illegitimate children as a means of encouraging people to “shun illicit relations because the offspring [of those relationships] may not one day reap the benefits of workmen’s compensation.” 406 U.S. at 173. The Court found that the State’s interest in protecting “legitimate family relationships” may have been itself a legitimate objective, but it was not an end that could be promoted by inflicting hardship on those who happened to not be part of a traditional nuclear family arrangement:

[t]he status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth, and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent.

Almost all of the Supreme Court’s past opinions on distinctions based upon illegitimacy contain language that would be equally at home in the decision issued today by the 9th Circuit in Perry v. Brown. Gay couples are not responsible for the fact that straight people sometimes get knocked up — so why are they punished, and their kids forced to be illegitimate, on the chance that there could be a straight couple out there that would refuse to enter into any relationship that gay people were also allowed to enter? Punishing gay couples, and their children, by prohibiting them from entering into the contractual arrangement that the state has deemed the best for children to be raised in, does exactly what the Weber Court prohibited: it imposes disabilities on those who are not engaging in irresponsible procreation as a means of encouraging better behavior from those who are not being similarly responsible.


Initial Thoughts on the Prop 8 Decision

The 9th Circuit published its opinion in Perry v. Brown today, with a 2-1 majority opinion by Reinhardt upholding the overturning of Proposition 8 on the narrowest possible grounds, and a dissenting opinion from Judge Smith — an outcome that pretty much no one is surprised by.

But even if it’s not a surprising outcome, I am still relieved the decision did end up being as narrow a holding as could be managed. But the majority knew what it was doing, of course, and it did its best to carefully shoehorn Perry into the precedent set down in Romer v. Evans. If gay marriage absolutely has to go in front of the Supreme Court, well, then I guess I’m glad it’s going to be in the context of the 9th Circuit’s opinion here, rather than a potentially more damaging vehicle.

I did end up being pleasantly surprised and impressed by Judge Smith’s dissenting opinion, and I agreed with many of his points over those of the majority far more often than I would have expected. It was certainly more faithful to the concept of rational basis review, anyway, and if it weren’t for two of its ultimate conclusions, I might’ve agreed overall with the dissent’s holding rather than the majority’s.

But there is no possible way I could ever accept the Proponent’s argument that “gay marriage should be banned because because only straight people can get accidentally knocked up, and straight people that accidentally get knocked up might not want to get married if those gay people who can’t accidentally get knocked up are allowed to get married too” with anything resembling a straight face, prior 14th Amendment jurisprudence be damned. Smith’s version of rational basis review would require that courts accept this argument, on the grounds that the government is permitted to (1) use irrational animus as a means of carrying out (2) policies that have no coherent content beyond an empty sound bite. And that’s two bridges too far, for me.

As for the first point, Smith’s footnote 8 does try to distinguish Palmore v. Sidoti by claiming that animus is only prohibited as a means of carrying out a law where that means is based upon creating a suspect classification. But if animus is banned as an end in all cases — rational basis through strict scrutiny — then what could possibly be the constitutional argument for banning animus as a means only in the case of strict scrutiny, but permitting it in all other circumstances?

And for the second point, Smith may be on firmer constitutional standing. But whatever precedent may be, I can’t go along with the argument that a law counts as being “rationally related” to an alleged purpose just so long as a grammatically correct sentence can be formulated which purports to support that claim. When it comes to rational basis review, yes, courts are required to accept a very hefty does of harebrained legislative ideas, no matter how stupid or ridiculous those ideas might be in practice — but even the most properly deferential court should not be required to accept an argument that is, as the majority put it, lacking any basis “on which th[e] argument [c]ould be even conceivably plausible.”

So even if I am skeptical of the strategic soundness of forcing a gay rights case through the courts now, I ultimately agree with the legal analysis of the majority’s opinion. No, it’s not perfectly faithful to past models of rational basis review. But if anything, Perry v. Brown is just another chip off of the slowly eroding concept of strictly tiered classifications under the Fourteenth Amendment. The current law school outline version of the law, which places everything that’s not currently an announced suspect or quasi-suspect class into the same rational basis bucket, just doesn’t match the reality of what is happening in the courts and in society at large. After all, we’ve had, what, two cases before the Supreme Court now, in which a law has been challenged on the basis that it was motivated solely by animus against gay people? And after Perry, it’ll be three. In the context of Supreme Court cases which challenged legislative enactments based on animus towards a specific group, that’s a pretty high number.

And with that kind of pedigree, it’s hard to justify the claim that “homosexuals” is not a class that has been repeatedly subjected to improper legislative discrimination — and even if its not legally recognized as such under the Court’s current classification scheme, as a practical matter, it is plain that a law that makes a distinction on the basis of sexual orientation is one that that warrants an extra dose of skepticism from the judiciary.