By Mike Dorf
One of the most intriguing aspects of the Prop 8 litigation concerns the question of whether California (and other states with similar laws) made it more likely that its law would be found unconstitutional by extending the benefits of marriage to same-sex couples without the word marriage. The competing views go as follows:
On the one hand, having (more or less) extended all of the tangible benefits of marriage to same-sex couples, California has lost the ability to claim certain government policies as rationally supporting its decision to withhold the term "marriage." For example, suppose the government claims that children do best (other things being equal) if raised by two parents of the opposite sex. I happen to think this claim is false, and even if it were true, I don't think it would be a sufficient basis for denying same-sex couples the right to raise children (either those biologically connected to one or both of them or adopted children)--but under traditional rational basis scrutiny, it is a sufficient ground for a policy that a lawmaker could rationally think that the predicate facts for the policy exist. So one could well think that state lawmakers would have a rational basis for restricting marriage and the right to raise children to opposite-sex couples. Yet if that rationale is available to support Florida's refusal to recognize same-sex marriage because Florida also has draconian adoption laws, it's unavailable in California. Accordingly, if the right standard of review is rational basis scrutiny (about which my latest FindLaw column has more to say), then California, in withholding only the label "marriage," acts irrationally in a way that Florida does not.
On the other hand, that result seems perverse. Can it really be true that California, which is much more LGBT-friendly in its policies overall, including with respect to civil unions, has acted unconstitutionally, whereas Florida has not? And if so, doesn't that give states the perverse incentive not to take substantial strides towards equality for fear of opening themselves up to the charge that in doing so they did not go far enough? These issues were raised (but hardly resolved) during the 9th Circuit oral argument last week.
Here I simply want to note how common this phenomenon is in constitutional law. Consider free speech doctrine. Suppose a local government obtains a parcel of property by bequest. It could sell the parcel to a private developer, in which case the public would have no right to go on the property, except as invitees of the property-holder. Or the government could use the property as an office building or other "nonpublic forum," in which case the public would have a somewhat greater right of access and any government restrictions on expression on the property would have to be both reasonable and neutral with respect to viewpoint. And if the government decides to turn the property into a park or public square, the public would have nearly complete access and the government could only enforce content-neutral time, place or manner restrictions on speech. To put the point differently, the more the government does to open the property up, the more it constitutionally obligates itself to do relative to people who want to use the property for expressive activities. That's the same "perverse" result as in the comparison between California and Florida, but the "perversity" is not a sufficient ground for discarding the doctrine.
It's tempting to say that all of equal protection doctrine has this character. State and local governments have no federal constitutional responsibility (per the DeShaney case) to provide police protection, but if a government does undertake to provide police protection, it can't systematically deny such protection to any class of persons. Of course, the difference between that general proposition and the marriage/civil unions question is that in the police protection example we are comparing what the government is doing for one class of persons with what it is doing for another class, whereas in the marriage/civil unions example we are comparing how much equality different jurisdictions are giving the same class of persons.
Perhaps tort law is a good comparison. In most jurisdictions, there is no duty to rescue a stranger, but if you do undertake to rescue a stranger, you can't just quit in the middle--even though persons in peril may well be better off with a half-effort (e.g., a good Samaritan who performs the Heimlich maneuver and CPR for three minutes but then leaves to catch a train) than no effort at all. The conventional justification for liability for abandoning a non-obligatory rescue is that once the rescuer undertakes the rescue, he diverts other potential rescuers. But it's hardly clear that this will be true more often than false. And in any event, whether the rule is justified or not, I'm interested here in the fact that it has the same basic structure as the supposedly perverse logic in the Prop 8 case. Here, as elsewhere, the greater power to deny something entirely does not necessarily include the lesser power to grant it in part.