Leveling Down

After concluding that California's prohibition of same-sex marriage violated the state Constitution, the California Supreme Court had to face the question of whether to remedy the violation by making marriage available to same-sex couples as well as opposite-sex couples or by eliminating marriage for everyone. The Court concluded that the former course would be both (much) less disruptive and what the legislature would prefer. It also suggested---though it did not officially hold---that eliminating marriage for everyone would itself be unconstitutional because marriage is a fundamental right.

Suppose, however, that there is no fundamental constitutional right (under either the federal Constitution or the relevant state constitution) to have the state recognize your relationship with the term "marriage," but that it does deny equal protection (as a matter of either state or federal constitutional law) for the state to call opposite-sex couples "married" but to call same-sex couples "domestic partners." Would there be anything wrong with a state deciding that, rather than extend the term "marriage" to same-sex couples, it will use the term "domestic partnership" for everybody? Such an approach would have one enormous virtue: By using a different term for the state-sanctioned legal relationship formerly known as marriage, it would not mislead people who object on religious grounds to same-sex marriage. Such people would understand that "marriage," as a religious institution, can be limited to opposite-sex couples (if the leadership of a religion wants to so limit it), and the state's recognition of domestic partnerships is something distinct. Meanwhile, there would be no equal protection violation because the State would be giving same-sex couples the exact same recognition as it gives opposite-sex couples.

"Leveling down" in this way---i.e., denying the relevant benefit to everyone---as opposed to leveling up---i.e., expanding the relevant benefit---is generally considered to be a permissible remedy to an equal protection violation. And yet, in this and other contexts, there's something about it that seems inappropriate.

Consider Palmer v. Thompson. In response to a federal court order, the city of Jackson, Mississippi integrated most of its public facilities, but apparently the idea of white and black children and adults swimming in the same pools was, in the 1960s, too much to stomach, and so rather than open the formerly segregated pools to people of all races, the city chose instead to close the pools altogether. Reasoning that blacks and whites were equally disadvantaged by this action, and that there is no substantive right to swim in a public pool, the Supreme Court upheld the city's action.

But the case was close, 5-4, and one of the 5 Justices in the majority, Justice Blackmun, wrote a separate concurrence emphasizing that there was not conclusive evidence that the City of Jackson closed the swimming pools out of antagonism to integration. (He noted that the swimming pools had operated at a deficit for years and there were legitimate budgetary reasons for closing them.) Moreover, some of the reasoning of the majority opinion (by Justice Hugo Black) is plainly inconsistent with other propositions of constitutional law. For example, Justice Black said in Palmer that racial motive, standing alone, is not the basis for an equal protection violation. Yet Washington v. Davis (written by Justice Byron White, who dissented in Palmer) later held that an otherwise innocent law or policy that adversely effects a racial group, is unconstitutional if adopted for the purpose of disadvantaging that group.

It is, of course, possible to reconcile Palmer and Davis: To state an equal protection claim, a plaintiff must allege both a disparate effect and either an express classification or a subjective intent to discriminate. But it's not clear that this reconciliation saves the Davis rule from the critique of subjective purpose that underlies the Palmer rule. The key to Palmer is something like the insight that the courts can't make the city of Jackson keep the swimming pools open forever. Everybody concedes that Jackson could close the pools for a valid reason, and as a practical matter, the courts won't be able to police motive. And the same exact thing can be said about the Davis rule: The city of Washington is allowed to use a test for city jobs that has a disparate impact on minority applicants, so long as it does not do so for discriminatory reasons, and as a practical matter, the courts won't be able to police motive here either. If the argument against looking to subjective motive makes sense in the Palmer context, then it also makes sense in the Davis context.

Yet, in fact, motive tests work well enough in the law, because objective facts usually give rise to reasonably reliable inferences about subjective motives. Yes, if Palmer had been decided the other way, there would have come a time when the City of Jackson could close its swimming pools without that decision being tainted by the prior segregationist motive, but that time (probably) had not yet come when the case was decided.

Likewise, we might conclude that the symbolic meaning of a state's decision to abolish marriage rather than extend it to same-sex couples is institutional homophobia: On this reading, the citizens of the state are so appalled at having their marriages sullied by association with same-sex unions, that they give up the term entirely. If so, then a rule requiring that the state keep the term "marriage" for all domestic partnerships would be appropriate---until such time as dropping the term no longer had that symbolic meaning.

Posted by Mike Dorf