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.


The Texas Constitution: Authorizing Same Sex Domestic Partnerships and Prohibiting Opposite Sex Marriage Since 2005

Thanks to the efforts of a Texas candidate for Attorney General, a little constitutional tweak made four years ago is now back in the spotlight. The trouble is caused by a statewide referendum that voted in the following change:

SECTION 1. Article I, Texas Constitution, is amended by adding Section 32 to read as follows:
Sec. 32. (a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

I’ve wondered before why the 434th amendment to the Texas constitution hasn’t received more attention. It’s a real life example of a common thought experiment: What if a law says one thing, but everyone — or at least 99% of everyone — understands it to mean something it does not actually say? What, then, is the law?

Well, the answer’s not clear, aside from the amendment pretty much being Buddy Nino’s worst nightmare.

Any judge that has a case come before them based upon the Texas marriage amendment is going to find themselves in between a rock and a hard place. There simply is not a correct answer. In reality, a judge almost certainly won’t find marriage to be unconstitutional in Texas — the political heat is simply too great, and too many serious legal problems would arise based upon suddenly every marriage in the state being dissolved. But if a judge finds marriages are not prohibited in Texas, she will be ignoring the text and replacing it with what “everyone knows it actually means.” That is some textbook judicial activism right there.

And no, the existence of section (a) describing what a marriage is does not save the amendment. It’s as if it read, “Someone can only be a lawyer in this state if they have been admitted by the state bar; however, this state shall not license or recognize a foreign license that would have the effect of making someone identical to a lawyer or would make them something similar to a lawyer.” The first section provides a definition; the second section prohibits the existence of the defined item.

Although the language of the amendment is obviously ridiculous and meaningless, it is also hilariously ineffective at what it purports to do, i.e., ban same sex domestic partnerships. If “marriage is only a union between a male and a female,” then a same sex pairing is certainly not identical or even similar to marriage, because fully half of the required conditions are not present.

Moreover, from the original legislative resolution,

“This state recognizes that through the designation of guardians, the appointment of agents, and the use of private contracts, persons may adequately and properly appoint guardians and arrange rights relating to hospital visitation, property, and the entitlement to proceeds of life insurance policies without the existence of any legal status identical or similar to marriage.”

So we know that, according to the Texas legislature, an arrangement that involves a sharing of resources, power of attorney, a kinshipesque right to visit in the hospital, and a right to receive someone’s life insurance benefits is not similar a marital union. You could argue it would become similar to marriage if these bundle of rights were granted through a single “domestic partnership contract,” but why should it matter whether the bundle of rights is achieved through one contract or two or three?

I am not being facetious here; I honestly cannot imagine what would have to exist before a union between people of the same sex, which is called something other than marriage, would be considered “similar to marriage.” Precisely what are the rights that create a “similar to marriage” status? Is it the right to file joint tax returns? Well that won’t work, because under DOMA no same-sex pairing can anyway. Is it the right to inherit property? No, the state already says that’s not marriage-like. Is it the right to hold a non-state sanctioned marriage ceremony, or to wear wedding bands? Nope, the state can’t ban couples from doing that. Is it the right to hold yourself out as married under the rules of your religion? Nope, they can’t ban that either.

So basically, without intervention via judicial activism, marriage is prohibited in Texas, no matter the gender pairings involved. Likewise, unless a judge engages in judicial activism to get around it, same sex domestic partnerships are adamantly not prohibited. Opposite sex domestic partnerships, however, may or may not be prohibited — that’s a closer question, and would depend upon what rights the partnerships provide and what the judge construes “similar to marriage” to mean.