Defending Prohibitions on Interracial and Same-Sex Marriages: The More Things Change, the More They Stay the Same

Earlier this week, the Supreme Court heard two cases concerning the government’s ability to prohibit same-sex marriages. In Hollingsworth v. Perry, the Court considered the state of California’s ability to prohibit same-sex marriages under Proposition 8. In U.S. v. Windsor, the Court examined the federal government’s ability to act in a similar fashion, through the Defense of Marriage Act.

After reading through the parties’ briefs and the transcripts of the oral arguments for Perry and Windsor, however, I started wondering about the arguments that were advanced in Loving v. Virginia in support of anti-miscegenation laws. How exactly did the attorneys for Virginia try to defend the constitutionality of their doomed cause? The statutes at issue in Loving — criminal anti miscegenation statutes that had originally been legislated through an Act with the familiar-sounding title of  “A Bill to Preserve the Integrity of the White Race” — seem indefensible in today’s world.

It turns out that the arguments made by the anti-miscegenation side in Loving were far more similar to the arguments made by the anti-gay marriage side in Perry and Windsor than I had expected, even given the cases’ obvious parallels. But the overlap is striking.

In the the Commonwealth Virginia’s Brief in Loving v. Virginia, and in the arguments advanced in the transcripts of the oral arguments before the Supreme Court, the Commonwealth did everything it could to distance itself from the anti-miscegenation law’s racist origins, and appealed to the Court to adhere to traditional notions of the separation of powers. Interracial marriage, the Commonwealth argued, is not a settled science, and the United States’ centuries-long history of permitting only intraracial marriages precluded the Court from establishing a new constitutional right to interracial marriages.

Below, I’ve included excerpts of the Commonwealth’s arguments in Loving, albeit with slight modifications to place the arguments in the modern context:

That there is a rational classification, setting so far as the [Californian] population is concerned, for preventing marriages between [two individual of the same sex], and that this is supported by the prevailing climate of scientific opinion.

We take the position that while there is evidence on both sides of this question, when such a situation exist it is for the legislature to draw its conclusions and that these conclusions are entitled to wait and unless it can be clearly said that there is no debatable question that a statute of this type cannot be declared unconstitutional.

We start with the proposition, on this connection, that it is the family which constitutes the structural element of society and that marriage is the legal basis upon which families are formed.

Consequently, this Court has held, in a numerous decisions over the years, that society is structured on the institution of marriage that it has more to do with a welfare and civilizations of the people that any other institutions and that out of the fruits of marriage spring relationships and responsibilities with which the state is necessarily required the deal.

Text writers and judicial writers agree that the state has a natural direct and vital interest in maximizing the number of successful marriages, which lead to stable homes and families and in minimizing those which do not.

So: given the existence of (1) scientific uncertainty; (2) historical traditions; and (3) the state’s vital interest in stable marriages, then the state necessarily is entitled to prohibit marriage between certain classes of citizens. This passage could have been transplanted, almost verbatim, into the briefs of Prop 8’s defenders.

[I]f the statute equally forbade [women] to marry [women], and [men] to marry [men], then in the opinion of the Framers that that was not a violation of equal protection or due process. In other words, the classification itself was not a violation.

To do the same with a similar passage from Plaintiff’s trial brief in Perry: “Because the [antimiscegenation laws] do[] not treat [whites] and [Negroes] differently, every federal court, and nearly every state court to address the issue has determined that this definition does not discriminate on the basis of [race].” Each race and sex has equal but opposite rights — so the classification based on race or sex is not a violation.

[H]istorically, the regulation of marital relationship was within the States and it was no intent on the Fourteenth Amendment to have any effect at all upon the States’ power over marriage. …

No one has been found who has analyzed this problem, who has suggested that it was the intention of the Framers of the Fourteenth Amendment or the understanding of the legislatures which ratified it that the Fourteenth Amendment affected to any degree the power of the States to forbid [same-sex] marriages. … Our reading of the legislative history is sufficient to lead us to believe that if anybody had suggested that it would have that affect, the entire first section of the Fourteenth Amendment would have been lost. No one, the proponents would never have suggested that the Fourteenth Amendment was going to abolish the power of the States to forbid [same-sex] marriage.

Won’t someone think of the originalists? As Justice Scalia phrased this same argument on Tuesday: “I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted? Some time after Baker, where we said it didn’t even raise a substantial Federal 8 question? When did the law become this?” If wasn’t unlawful in 1791 or 1868, how could the Court find it unlawful now?

It is clear from the most recent available evidence on the psycho-sociological aspect of this question that [same-sex] marriages are subjected to much greater pressures and problems then those of [traditional] marriages, and that the state’s prohibition on [same-sex] marriage for this reason stands on the same footing as the prohibition of polygamous marriage or incestuous marriage, the prescription of minimum ages at which people may marry, and the prevention of the marriage of people who are mentally incompetent.

Interracial and same-sex marriages are just like marriages in which parties lack the capacity to consent? This argument didn’t work in 1967, but the proponents of DOMA and Proposition 8 aren’t quitters — they’ll keep trying to make it stick.

It is a statistical study of over 5000 marriages which was aided by the computers of the Harvard Laboratory of Social Relations and the MIT Computation Center. This book has been given statistical form and basis to the proposition that from the psycho-sociological point of view, [same-sex] marriages are detrimental to the individual, to the family, and to society.

I do not say that the author of this book would advocate the prohibition of such marriages by law but we do say that he personally and clearly expresses his view as a social scientist that [same-sex] marriages are definitely undesirable that they hold no promise for a bright and happy future for mankind.

And that [same-sex] marriages bequeath to the progeny of those marriages, more psychological problems than parents have a right to bequeath to them.

As I say, it was published in 1964 and some of the statements which made in it based upon the statistical and demonstrable greater ratio of divorces and annulments in [same-sex] marriages than in [opposite] sex marriages.

Computers at Harvard, people. You can’t argue with this kind of compelling science.

[Counsel for Appellee]: [This scientist] has stated it as his opinion, and it is my conviction, that [same-sex marriages] are definitely wrong because they are most frequently, if not solely, entered into under the present day circumstances by people who have a rebellious attitude towards society, and who are statistically more likely to have a high degree of self-hatred, neurotic tendencies, immaturity and other detrimental psychological factors.

Justice []: You don’t know what is causing and what is affecting, assuming the validity of these statics, I suppose one could be argued that one reason that [same-sex] marriages are sometimes unsuccessful is the existence of the kind of laws that are in issue here and the — and the societal stigma that these laws reflect, is that correct?

[Counsel for Appellee]: I think it is more the latter, that these inherent characteristics of [same-sex] marriages are reflected by the legislature’s decision to enact the laws we have.

The state’s interest in restricting marriage to the union of [one man and one woman] is born from centuries of tradition, and the collective experience of prior generations demonstrates that the best family environment for a child is to have one mother and one father.

[When a child is deprived of a mother and a father, and instead is raised by two members of the same sex,] it causes a child to have almost insuperable difficulties in identification, and that the problems which a child of [gay parents] faces are those which no child can come through without damage to himself.

Now if the state has an interest in marriage, if it has an interest in maximizing the number of stable marriages and in protecting the progeny of same-sex marriages from these problems, then clearly, there is scientific evidence available that this is so. It is not infrequent that the children of [same-sex] parents are referred to not merely as the children of [same-sex] parents, but as the victims of [gay] parents, as the mascots of [same-sex] parents.

Marriage is a vital human institution. And that’s why the government gets to decide which of its citizens are worthy to enter into such a union. Everyone knows gay people have Issues, so the government has every right to discourage them from acting out on their antisocial tendencies.

It’s not bigotry, it’s science.

And we have pointed out in further appendices to our brief … the recent statements of Professor Engel, professor of physiology at Chicago University in which he cautions against [same-sex] marriages on the ground, not of any specific finding of his own, but on the grounds that there has not been sufficient scientific investigation of this matter for a physiologist at least to determine the true effects, physiologically speaking of [same-sex] marriage, and therefore cautions against it.

And it is perfectly clear that the libraries are filled with criticisms and research studies of the cautionary nature which advised against it on a biological and genetic point of view.

Until the question is so firmly settled that no disagreement exists from any academic sources, then societal prejudices can be enshrined in the law. That’s how it is in America. We didn’t prohibit racial discrimination in our laws until there were no longer any racists in our universities.

And on that point, we have said that a — this Court has clearly said that a statute is not unconstitutional simply because it does not reach every facet of the evil with which it might conceivably deal. Would a statute, which did not undertake to regulate marriages between [infertile couples] or [couples that chose not to have children] be unconstitutional, simply because it didn’t regulate a relationship which [does not implicate the state’s primary interest in the marital relationship]? Now, the fact that there are only few [heterosexual marriages] who does not, you cannot inflate this minority group into constitutional significance when you’re talking about the Legislature dealing with the problems with which is it likely to be faced. The statute doesn’t have to apply with mathematical precision. It is sufficient if it reasonably deals with what the Legislature can reasonably apprehend to be an evil and with 99% of the population in [California], the danger of [same-sex] marriages so far as [California] is concerned is the danger of [heterosexual couples who choose not to get married], not the danger of the marriage of either [infertile heterosexual couples] or [heterosexual couples which do not intend to have children], which for all intents and purposes hardly exist, as one of the text writers which they have cited in their brief.

Look, the fact that we only banned gay marriages, but didn’t ban all those straight marriages that can’t produce children, is totally a coincidence, all right? It is too much work to ban all those other infertile couples, that’s all. It was a rational decision. It’s not because we think any less of gays or anything.

It will suffice to indicate by a brief survey of the materials that there are may arguably be sufficient evidence on both sides of the controversy to afford some basis for a legislature to take either side. [A] large number of studies and research projects have concluded that [same-sex marriage] is undesirable. [A dissenting opinion in a prior case considering this question] ha[s] cited to 10 authorities, one of which itself cited 10 additional authorities which would support a legislative finding that [same-sex marriage] is inimical to the public welfare.

[This opinion] says that these studies were frequently made by notable scientists and it reached that conclusion.

[The judge] then goes on and says the authorities’ finding that [same-sex parenting] has no harmful effects are also quite numerous and he considers that authorities available on that point, including the UNESCO statement and he concluded, “Nonetheless, there is still a considerable debate in comparatively recent studies as the desirability of [same-sex parenting]. Thus, even today, a legislature can find some scientific support for the position that [same-sex parenting] should be banned.” He then goes on to say that of course the sociological evidence is even more persuasive in support of a policy against [same-sex marriages].

And in the later portion of the article, he takes the position that even if the presumption of the validity of the statute should be reversed and the State were required to carry the burden of justifying the statute as a piece of social legislation, he says that the social harm argument would present a closer case.

He said, “But again, it is not likely that the State could prove that the social difficulties of the children of [same-sex] couples are exceptional enough to overcome a presumption against [gender] categorization.”

He is assuming here that the presumption is against the State.

Concrete evidence of the effect upon such children would be difficult to obtain particular since [same-sex marriage] is not widespread. The State then could not present any definite estimate of the potential of the evil it is attempting to prevent.

The State then could not present any definite estimate of the potential of the evil it is attempting to prevent. A State might produce a strong case by investing in research, but that would involve considerable time and expense

The reason the petitioners in Perry couldn’t produce any evidence to support their claims was simply because it is too expensive for the state to do this kind of research, and anyway there aren’t enough gays for the scientists to get a big enough sample size to study. And also, gay marriage is too new — newer than cellphones and the internet, even — so we shouldn’t force states to spend money on science just to prove what we already know from tradition.

If the presumption in favor of the legislation is permitted to prevail, then there is arguable evidence on both sides of this question and the Court is not justified in overturning the legislative determination on this point. If the presumption is against us, we say that despite the fact that this article would seem to indicate that the State couldn’t carry the burden, he said the particular difficulty would be in the absence of evidence of a sociological nature which we say is now at hand and which clearly shows that the State has a justifiable and overriding interest in preventing [same-sex] marriages.

Of course, we go fundamentally to the proposition that for over hundred [and fifty] years since the Fourteenth Amendment was adopted, [] the majority of the States [] have been exercising this power without any question being raised as to the authority of the States to exercise this power.

So you can’t reach the conclusion that this statute infringes, a right under the Fourteenth Amendment without examining evidence on behalf of the State to show that the infringement is a reasonable one, just as reasonable as far as we can determine, as far more evidence of the reasonableness of a ban against [same-sex] marriage than there is against polygamous or incest marriages so far as the scientific proposition is concern.

But I cannot conceive to this Court striking down the polygamy or incest statute on the basis of scientific evidence, and I submit that it would be no more appropriate for this Court to invalidate the [Proposition 8] on that basis.

As Scalia would put it: “there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not.” (Or as Johnnie Cochran would put it: “if the sociologists do not all agree, then gay marriage can be prohibited constitutionally.”)

If Your Honor please, there are several decisions handed out by States which again point out the [animus against homosexuals] concerning these laws.

The Missouri laws bottomed on State v. Jackson which basically held that if the progeny of a [same-sex] marriage, married the progeny of a [same-sex] marriage, there’d be no further progeny. That’s a fundamentally ridiculous statement.

Maybe it wasn’t for those men in that day and age, but it certainly is now, and Georgia has an equally ridiculous basis for the laws. In Scott v. Georgia, they held that from the daily observances, they see that the offspring of such [same-sex] marriages are feminine.

So, let me see if I have this straight: (1) Interracial marriage will lead to the destruction of society because the children of such unions will be mules who are unable to reproduce, and also the children of such unions are feminine, and (2) Gay marriage will lead to the destruction of society because the children of such unions will all be gay and unable to naturally reproduce, and also the children of such unions are feminine.


As we view the matter, marriage is a status controlled by the states, and statutes prohibiting [same-sex marriage] or [same-sex parenting] in no way violate the Equal Protection clauses of the state and federal Constitutions. A state statute which prohibits intermarriage or cohabitation between members of [the same sex] we think falls squarely within the police power of the state, which has an interest in maintaining [marriage as a traditional institution] and in preventing the propagation of [] children [by same-sex parents]. Such children have difficulty in being accepted by society, and there is no doubt that children in such a situation are burdened, as has been said in another connection, with ‘a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’ …

Inasmuch as we have already noted the higher rate of divorce among the intermarried, it is not proper to ask, ‘Shall we then add to the number of children who become the victims of their [same-sex] parents?’ If there is any possibility that this is likely to occur — and the evidence certainly points in that direction — it would seem that our obligation to children should tend to reduce the number of such marriages.

Because discrimination is okay when it protects children.

This judicial position has given rise to the of-repeated mandate that the courts can have no concern as to the expediency, the wisdom, or the necessity for the enactment of laws. As has been said, the courts do not sit to review the wisdom of legislative acts. It is not for the court to decide whether a law is needed and advisable in the general government of the people. Where the legislative purpose has been declared in plain and unmistakable language, it is not within the province of the court to interpose contrary views of what the public need demands, although as individuals the members of the court may hold convictions contrary to those of the legislature.

The basic principle already mentioned applies here with full force. The constitutionality of legislative acts is to be determined solely by reference to the limits imposed by the Constitution. The only question for the courts to decide is one of power, not of expediency or wisdom; and statutes will not be declared void simply because, in the opinion of the court, they are unwise.

For protection against unwise legislation within the limits of recognized legislative power, the people must look to the polls and not to the courts. It is very important to discern constantly that the scope of judicial inquiry in deciding the question of power is not to be confused with the scope of legislative considerations in dealing with the matter of policy. Whether an enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired results, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner are matters for the judgment of the legislature, and the earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.

Tl;dr, who cares if we can’t prove if there is a good reason for banning gay marriage or interracial marriage? Judicial activism is wrong.

Just as no individual needs to explain his desire to live, so it would seem to me that neither races of man nor religious or ethnic groups need offer apologies for their desire to perpetuate their [long-standing traditions and moral convictions]. I believe that the tendency to classify all persons who oppose [same-sex] marriage as ‘prejudiced’ is, in itself, a prejudice.

That’s right, it’s the supporters of marriage equality who are the true bigots.

It is my conviction that same-sex marriage is definitely inadvisable. It places a greater stress and strain upon marriage than is ordinarily true when persons of similar religious views are married. We need not guess about this. In every case of interfaith marriage that we have examined, the facts about the greater strains involved have come to the fore. The fact that divorce an separation rates are higher in these interfaith marriages serves also to support this view.

The statistical evidence incorporated in this study makes it clear that the ‘odds’ do not favor same-sex marriages, in that almost two to four times as many same-sex marriages as traditional marriages end in divorce, separation, or annulment. This is a highly significant fact. It is objective and utterly free from emotion-inducing factors. It ought, therefore, to be considered and weighed most carefully.

‘Objective and utterly free from emotion-inducing factors.’ I do not think those words mean what you think they mean.

It is difficult to comprehend how any other conclusion could have been reached. Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the Legislature. Upon it society may be said to be built, and out of its fruit spring social relations and social obligations and duties, with which government is necessarily required to deal. Moreover, under the Constitution the regulation and control of marital and family relationships are reserved to the State, and the regulation of the incidents of the marital relation involves the exercise by the States of powers of the most vital importance. The [California] statute here under attack reflects a policy which has been the law of those land for well over two centuries, and which is still the law in [forty-one] states. These laws have stood, compatibly, with the Fourteenth Amendment, though expressly attacked thereunder since that Amendment was adopted. Under such circumstances, it is clear that the challenged enactments infringe no constitutional right of the appellee. Counsel for appellee submit therefore that [Proposition 8] is not violative of the Fourteenth Amendment to the Constitution of the United States and that the judgment of the Supreme Court of [California] in the case at bar should be [reversed].

This is not about civil rights, or equality, or discrimination. This is about mawwiage, the most important relationship in life, which has more to do with the morals and civilization of a people than any other institution. And the gays don’t understand these kinds of things, that’s all.

In light of this uncertainty [regarding the desirability of same-sex unions], there are reasonable grounds for concern that [permitting same-sex marriages] would necessarily entail a significant risk of adverse consequences over time to the institution of marriage and the interests it has always served. Indeed, a large group of prominent scholars from all relevant academic fields recently expressed “deep[] concerns about the institutional consequences of [same-sex marriage] for marriage itself.” …

[Proposition 8] seeks to channel [] procreative conduct into stable, enduring relationships, where that conduct is likely to further, rather than harm, society’s vital interests in responsible procreation and childrearing… [Proposition 8] thus plainly bears a close and direct relationship to society’s interest in increasing the likelihood that children will be born to and raised by… stable and enduring family units.

Oh wait, my bad. That one wasn’t from Loving, it’s from Perry.

And last, but not least:

[In debating the enactment of the Civil Rights Act of 1866,] Hon. L. H. Rousseau of Kentucky expressed the fear that under the proposal a minister might be arrested for refusing to solemnize marriages between whites and negroes.

Marriage equality: threatening religious freedoms since 1866.


A Quick Personal Note

I got married this weekend, and while to say it was amazingly awesome would be a vast understatement, having a wedding is also kind of exhausting. So it will probably be at least a week before I will get around to posting a more substantive update to the blog. In the meantime, however, I wanted to share a video that was made by two of my favorite people in the entire world — the officiant/bridesmaid Babs and groomsman Tyrone, along with the help of a lot of awesome Australians. If I was the kind of person who did weaksauce things like cry or anything like that, they would have succeeded amazingly well at that:

Also it’s possible that I just wanted to brag about the clip shown at 4:16 of the video. That pretty much sums everything up.

But it is hard not to be painfully aware of the fact that, by getting married, I am availing myself to a privilege that far more deserving couples are wrongfully denied. And it is, quite frankly, complete bullshit, that I of all people should be permitted to marry, when others are not. This reading was included in the ceremony, and it bear repeating here:

Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations… Without question, marriage enhances the welfare of the community. It is a social institution of the highest importance. Marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. It is undoubtedly for these concrete reasons, as well as for its intimately personal significance, that civil marriage has long been deemed one of the basic civil rights of man, fundamental to our very existence and survival. Because it fulfills yearnings for security, safe haven, and connection that express our common humanity, marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.

But a special thanks goes out to my co-blogger Mike, who did a fantastic job at giving a reading during the wedding ceremony… despite the fact that I never actually got around to sending him a copy of the text ahead of time, and he saw what he would be reading for the first time during the ceremony itself.

And an extra special thanks goes out to Mike’s awesome fiancée, Andrea. For taking charge of the situation during the reception when I managed to spill a bottle of stout all over my dress, and seeing to it that I was properly blotted down with club soda before any more permanent damage could be done. Top notch job there, Andrea.


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.


Polygamy, the Constitution, and Reality TV

As a general rule, it is inadvisable to go on to a talk show or reality tv show to discuss your criminal activities. You might think this would be obvious advice, but you would be wrong.

Still, I was surprised to see that TLC was coming out with a new show called “Sister Wives,” which is essentially the reality show version of Big Love. Polygamy is of course illegal in Utah, where the series is filmed, as well as in all other U.S. jurisdictions. And, predictably, the police are now investigating the family for possible charges of bigamy and adultery.

Utah’s bigamy statute provides that

“[a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”  Utah Code Ann. § 76-7-101 (2003).

Not to mention, just four years ago in 2006, the Supreme Court of Utah rejected a barrage of Constitutional and statutory challenges to the statute, in State v. Holm:

Holm argues that his conviction under the “purports to marry” prong of the bigamy statute was improper as a matter of statutory interpretation.   Specifically, Holm argues that he did not “purport to marry” Ruth Stubbs, as that phrase is used in the bigamy statute, because the word “marry” in subsection 76-7-101(1) refers only to legal marriage and neither Holm nor Stubbs contemplated that the religious ceremony solemnizing their relationship would entitle them to any of the legal benefits attendant to state-sanctioned matrimony.  Second, Holm argues that his conviction under the bigamy statute was unconstitutional as applied in this case because it unduly infringes upon his right to practice his religion, as guaranteed by our state constitution.   Third, Holm argues that his conviction under the bigamy statute was unconstitutional under the federal constitution. …

We reject each of these arguments.

So why, then, did Kody Brown and his wives agree to go on the show on the first place?

The family does not seem to be an obvious bunch of dumbasses, which is generally my first guess when it comes to this sort of thing. However, while I would not rule that possibility out entirely, given the context of the show, I wonder if the family was motivated, at least in part, not in spite of the fact that there was a risk of prosecution, but because of it. Their stated reason for agreeing to star on Sister Wives is to raise awareness of the polygamous lifestyle, and it is not a far leap from there to wonder if perhaps they also hope to de-criminalize polygamy by bringing a favorable test case before the courts.

If so, that is a bold and risky move to make. Bigamy is a felony that is punishable by up to five years in prison, and so far, no court has ever found that laws criminalizing bigamy are not constitutionally enforceable.

Still, bigamy prosecutions are rare, and prosecutions of polygamous individuals are rarer still. And, apparently, all prior polygamy prosecutions have involved allegations of abuse or other improper activity. If the Brown family does end up facing prosecution, the case might very well end up being a constitutional landmark.

It turns out the GW Law professor Jonathan Turley has gotten involved in the case, and is lead counsel for the family. Turley’s take on the case is pretty much the same as my own:

The use of this statute to prosecute the Browns would be in my view unconstitutional. It would also end a long-standing policy to confine prosecutions to those who abuse children or commit such crimes as fraud. We are confident that the authorities will find no such criminal conduct in this case and we intend to cooperate to the fullest in resolving any such questions from the State. I hope that the prosecutors will recognize that this would be bad criminal case making bad criminal law. It is, after all, a television show and there is no need to move the matter from the television guide to the criminal docket.

Whether it is based on First Amendment religious freedoms, or on freedom of association grounds, or (most likely) Lawrence-style due process protections, criminal prosecution of polygamy is likely not sustainable under the federal Constitution. I suspect that the current Supreme Court would have a very hard time finding prosecution of the Brown family to be permissible — even the faction that dissented in Lawrence might now be inclined to accept its precedential value, albeit grudgingly.

Besides, if there was ever the perfect defendant for testing the constitutionality of criminalizing polygamy, the Browns are it. I actually watched an episode of Sister Wives last night, and it was primarily remarkable for how utterly banal it was. If it wasn’t for the sub-plot involving Kody Brown taking a fourth wife, the show would be so lacking in material that it probably wouldn’t be able to exist. I mean this in the nicest way possible, but the family is super boring. In a lot of ways, it reminded me of another TLC show, 18 and Counting, about the infamous Duggars. While temporarily intriguing for the gawking factor, both shows very quickly devolve into utterly trivial depiction of average home life.

And Sister Wives, with its mere 1:4 adult-to-kid ratio, can’t even come close to matching the logistical ingenuity displayed by the Duggars, who face a more daunting 1:10 ratio. In fact, with their incredible feats of organization and their eerily unflagging cheeriness, the Duggars seem far more alien to mainstream American life than the Browns ever could.


The Constitution, Gay Marriage, and the Fact-Finding Power of Judges

As a matter of policy, I couldn’t feel more confident that allowing gay marriage is the right and moral thing to do, and that there will be no significant negative side effects once gay marriage is legalized.

But as a matter of the Constitution, it’s a whole lot harder to feel that same level of confidence.

I’ve been thinking about this a lot lately, for obvious reasons, and I think that, for me, my hesitancy and uncertainty about whether there are Constitutional protections for gay marriage grows directly out of of my hesitancy and uncertainty about the role of judicial fact finding in Constitutional interpretation.

To be clear, my use of the word “fact” here does not mean refer exclusively to empirical scientific fact — although that sort of fact is included as well — but rather I mean “facts” that are based not merely on physical occurrences but are sociological or even, to an extent, philosophical “facts.”

For instance, I hold the following to be accurate factual statements:

  1. Males and females are, jurisprudentially, identical. That is, there are no differences that are legally cognizable between people in the class of humans that we call “male” and people in the class of humans that we call “female.” (To clarify, I don’t believe in the slightest that males and females are biologically identical. But while knowing a specific person’s sex will allow you to guess, with increased accuracy, the degree to which that person displays various physical and mental attributes that are distributed unequally among the sexes, the simple fact of whether they are male or female does not reveal a sufficient distinction which would permit a law to discriminate between them.) (Or if that’s still too muddled: I believe any differences between males and females are as significant as differences between different races, which is to say, not at all.)

  2. There are no meaningful differences between same-sex couples and opposite-sex couples. (If you really want to be pedantic, I’m willing to clarify this to be “between same-sex couples and opposite-sex couples where one partner is completely infertile,” but I don’t think it makes non-inconsequential difference.)
  3. There is no rational basis for allowing straight marriage but not gay marriage. True, the bar for “rational basis” is pretty low, but it requires more than just a basis by itself. A rational basis, to me, requires: (1) that the legislative goal of the law is not itself discriminatory, irrational, or based on factually incorrect beliefs; and (2) that there is a rational, non-discriminatory and factually correct reason for believing that the law will actually promote that goal. And given that there are no differences between same sex couples and opposite sex couples, there is nothing on which a rational basis for a distinction can be found.

So here’s the problem: based upon all of these factual assumptions, I literally cannot articulate a valid argument for why banning same sex marriage is constitutionally permissible, even under the most deferential standards of review.

And yet the idea of a Constitutional right to marriage still gives me pause. I am, probably reflexively, exceedingly skeptical of any new constitutional guarantee that has been hitherto “undiscovered.” This remains so even where given all my factual beliefs, I am unable formulate an acceptable rationale for why prohibiting same-sex marriage is constitutional.

That’s the problem, though. “Given my factual beliefs” is a pretty huge premise to start from. It’s not that I have any personal doubts about whether or not those beliefs are empirically correct — because I don’t. I know I’m right, with the sort of certainty I reserve for believing in things like the heliocentric theory of the solar system.

But when it comes to constitutional law, I just don’t know how important factual truths should be.

Let’s be honest: the Constitution, as originally enacted, was a narrow-minded, petty, and tyrannical document that had inscribed into its heart factually incorrect prejudices regarding the essential humanity of non-white males. Yes, many of these flaws were fixed by later amendments, but that doesn’t change the fact that the U.S. Constitution can, indisputably, be based upon factually wrong assumptions about the nature of the world.

This means that in the abstract, there is nothing “unconstitutional” about hateful, biased, and factually incorrect laws. Even if it can be established empirically that a given prejudice is wrong and motivated by animus, and even if you can get near universal agreement on this point, that does not necessarily imply that it would be unconstitutional to have a law based on that prejudice.

But at the same time, modern Equal Protection and Due Process clause jurisprudence requires that judges make factual findings about sociological and philosophical facts, and it requires that judges use those factual findings to dictate whether or not a given governmental activity is constitutionally permissible or impermissible. And areas of the law involving topics where legislators are likely to be factually incorrect, because their biases are likely to lead them to a false conclusion, are precisely the areas of the law where judges are empowered to give greater deference to their factual beliefs than to the will of the legislative branch.

But seeing how levels of scrutiny is judge-made law, there is no objective, a priori way of determining forever what exactly falls into this category of “things legislators are likely to get factually wrong.” Today, most lawyers and judges agree that laws based upon distinctions involving race, religion, national origin, or alienage are the kinds of laws that the legislative process is supremely likely to screw up. They also agree that distinctions based upon sex and illegitimacy are “things that legislators are reasonably likely to screw up.” But there is zero reason or requirements that heightened judicial review be given to just these categories — it is entirely permissible under EP and DP precedent to add new ones, if such addition is justified.

So here we are, then. We have:

(1) A Constitution that is entirely okay with having incorrect factual conclusions enshrined within it, including false factual assumptions based on prejudice. (And for anyone who wants to claim that the 14th Amendment changed this, then why did we need the 19th?)

And, (2) A Constitutional jurisprudence that requires the judicial branch to discern where the legislative branch has made incorrect factual conclusions as a result of bias, and to then overturn those laws as unconstitutional on the basis of their factual incorrectness.

These points are in tension with one another. How much fact finding are judges allowed to do, then, given these two competing principles?

It is clear, today, that judges are allowed to make the factual finding that the essential humanity of all people is the same, regardless of their skin color. But do judges have the power to make the factual finding that the human impulse for romantic and sexual attraction is the same, whether it is directed towards a male or a female?

I don’t know. And sometimes, I very much suspect there is no “legal” answer to this question at all. Judges will have the power to make this factual finding at the point when they actually do make it, and not a moment before.