Tuesday, February 07, 2012

Does the 9th Circuit Prop 8 Ruling Recognize a Constitutional Endowment Effect?

By Mike Dorf


Judge Reinhardt's 2-1 majority opinion in Perry v. Brown holds that California's Prop 8 is unconstitutional on California-specific grounds.  Relying heavily on the Supreme Court's 1996 decision in Romer v. Evans, the opinion emphasizes two facts about the case that, taken together, make it applicable only to California: A) California law extends to same-sex couples all of the legal incidents of marriage except the use of the word; and B) Prop 8 (prospectively) took away the right to marry that same-sex couples had previously enjoyed, rather than failed to extend a right that had never previously extended to same-sex couples.  The opinion cites principles of judicial restraint for deciding the case on these relatively narrow grounds, and it also cannot have been lost on the majority that deciding the case in a way that only applies to California makes it somewhat less likely that the SCOTUS will see it as worthy of review.

In a follow-up post next week I may have something to say about the likelihood that the SCOTUS will take the case, but for now I want to focus on the substance of the 9th Circuit's decision to decide narrowly.

I'll begin by noting that each of the purportedly narrowing criteria creates the possibility of perverse incentives.  A) The opinion repeatedly rejects asserted justifications for Prop 8 on the ground that the justifications, if credited, would mean that same-sex couples should not be given the operative rights that they have been given through its domestic partnership law, but that California in fact provides for such rights.  Therefore, a state electorate might worry that enacting a domestic partnership law would lead to the courts requiring marriage, and instead give same-sex couples no or limited rights.  B) Likewise, a state electorate or court that is considering experimenting with granting a right to marry might not do so for fear that it could never change its mind.  Judge Reinhardt rejects these arguments as inconsistent with Romer and equal protection more broadly.  I think he's right to reject the perverse incentive argument with respect to A) but that B) presents a trickier question.

As Judge Reinhardt's opinion correctly explains, it is often true that government violates the Constitution by doing more than it had to do but also less than it had to do.  To use his example, there is no constitutional obligation for the government to provide food stamps for the poor, but if the government does provide food stamps for some of the poor, it cannot then deny food stamps to others of the poor on grounds that deny equal protection.  This is simply how equal protection works.  So there is nothing inherently perverse about move A).

Move B), however, is more problematic.  Judge Reinhardt's opinion says that the withdrawal of a previously granted right denies equal protection where the government lacks a rational basis for withdrawing the right.  That much strikes me as correct -- and we can imagine circumstances in which it would be rational not to extend a right but irrational to take it away.  Suppose that the state had not previously extended a right to use some new drug to redheads because of a reasonable but unproven fear that the gene for redheadedness also made people especially vulnerable to some lethal side effect of the drug.  Failure to extend the right to use the drug to redheads would not be irrational.  However, if redheads had the right to use the drug for a year and none of them succumbed to the side effect, then it would be irrational to take the right away because of the now-disproved fear (assuming that the side effect was expected to manifest quickly).  Still, in this example the important distinction is not between failing-to-extend and taking-away; the real difference is that we evaluate the decision differently based on different knowledge of the relevant facts.

Here's a better category of examples: Taking away a right can be unconstitutional where failing to extend it in the first place is not, because taking away may reflect animus to some group of people, whereas failing to extend may simply reflect indifference or legislative inertia.  It's possible that this is all that Judge Reinhardt's opinion means to say about Prop 8: The taking-away under the particular circumstances in which Prop 8 was passed shows animus towards LGBT persons in a way that a mere failure to legalize same-sex marriage in the first place perhaps would not have.  Perhaps the majority highlights the taking-away aspect of the case only as evidence for the conclusion that Prop 8 reflects animus and thus fails the Romer test.  If so, that is defensible, in my view.

However, parts of the opinion appear to go further.  In particular, in evaluating the justifications for the law, Judge Reinhardt relies on the not-extending/taking-away distinction.  For example, the Prop 8 sponsors argued that reserving the word marriage for same-sex couples was justified because opposite-sex couples but not same-sex couples are capable of accidental reproduction, and thus opposite-sex couples but not same-sex couples need the enticement of the special status of marriage to induce them to wed.  Judge Reinhardt says that this rationale might be a rational basis for not granting same-sex couples a right to marry in the first place but is not a rational basis for taking the right away.

That strikes me as highly contestable.  Either the state is permitted to treat its bestowal of the word marriage as a limited resource or it is not.  If it is, then why can't the state notice that it has bestowed the word marriage when it did not need to, and take it back?

The majority arguably reads Romer as standing for some sort of general proposition that it is unconstitutional for the government to bestow a legal right and then take it away, even though the government was under no obligation to bestow the legal right in the first place.  But I don't think Romer says that.  Romer is the third case in a trilogy of cases involving impermissible "animus" directed against identifiable groups.  Notably, the middle case in the trilogy, Cleburne v. Cleburne Living Center, involves a failure to extend a legal right, not a taking away of an already-granted right.  Yet it is of a piece with Romer.

So Romer is best read as not drawing any sharp or general-purpose distinction between taking away and not granting rights.  There is, in other words, no freestanding constitutional endowment effect (except perhaps with respect to certain property rights).  It's possible to read the 9th Circuit as recognizing a kind of endowment effect based on Romer, but the reasoning is sounder if one understands the references to taking away as simply evidence of animus.

26 comments:

Unknown said...

Any thoughts, Professor, on whether this narrow decision would apply to the situation in WA state? The governor has said she would sign the SSM bill passed by both houses, but the voters can still veto it if enough signatures are gathered. In that case, the law would not take effect before the election.

Michael Ejercito said...

Here is something i wanted to discuss with someone trained in law.

It is without a doubt that plaintiffs were denied the privilege of entering into the status of marriage with someone of the same sex. It is without a doubt they could have married someone of the same sex the morning of the election.

But not all persons today , who wish to marry someone of the same sex, could have married someone of the same sex on the morning of the election. Some people did not meet the age nor residency requirements. Thus, because they did not have this ability on the morning of the election, Proposition 8 did not strip them of the ability to enter into a same-sex marriage. The Court itself disclaimed that addressing "the question of the constitutionality of a state's ban on same-sex marriage". It only held that bans on same-sex marriage can not be applied to people who could have married someone of the same sex prior to the ban.

This ruling will have a direct effect on the Hawaii marriage lawsuit. In Hawaii, the marriage amendment there stripped same-sex couples, but not others, of state strict scrutiny protection with respect to challenges against denial of marriage. The disposition of that case, if decided while this ruling is binding precedent, will turn on whether the plaintiffs would have been entitled to strict scrutiny if they had sued for the right to marry someone of the same sex, and that will turn on whether they met the age or residency requirements.

Michael C. Dorf said...

I think Unknown and Michael Ejercito highlight two important ambiguities in the 9th Circuit ruling: 1) What counts as taking away? and 2) From whom? I think the first question is probably easier to answer: I suspect the 9th Cir would say that if SSM was legal at any time, then you have a taking away, but if the law never went into effect you don't. Still, that's speculation. As to 2), presumably the 9th Cir means to say that the right was taken away "from a class of people," and that current membership in the class suffices, even if someone wasn't previously in the class.

Both of these ambiguities reinforce my sense that relying on a failing to extend/taking away distinction is sub-optimal.

Michael Ejercito said...

Perhaps the majority highlights the taking-away aspect of the case only as evidence for the conclusion that Prop 8 reflects animus and thus fails the Romer test. If so, that is defensible, in my view.
In a post- Romer decision, which Justice Kennedy joined, the Court held that "biases may often accompany irrational (and therefore unconstitutional) discrimination, their presence alone does not a constitutional violation make." Board of Trustees v. Garrett, 531 U.S. 356 at 367 (2001) Neither the majority, nor Kennedy in his concurrence, cite Romer .

And this is because Romer did not announce a new doctrine. It restated that "if a law neither burdens a fundamental right nor targets a suspect class, [the Supreme Court] will uphold the legislative classification so long as it bears a rational relation to some legitimate end" 517 U.S. 620 at 631 Taken together, Garrett and Romer stand for the proposition that if a law or policy was enacted out of animus, is subject to rational basis scrutiny, and bears a rational relation to some legitimate end, it satisfies equal protection.

Michael Ejercito said...

Any comments on how this will affect disposition of the Hawaii marriage lawsuit. While plaintiffs were not necessarily stripped of the privilege to enter into a marriage, they may have been stripped of strict scrutiny protections that apply to challenges to bans on same-sex marriage, while strict scrutiny still applies to others.

Michael C. Dorf said...

Pretty clear that they're punting for now on Hawaii and other cases.

I'm not sure I agree with your reading of Garrett, where there was no indication of animus (as the Court understands the term) towards the old. Moreno/Cleburne/Romer seem to create a separate set of rules for rational basis scrutiny where animus is found.

Thanks for the comments! (I have to prepare for tomorrow's class now.)

Michael Ejercito said...

To use his example, there is no constitutional obligation for the government to provide food stamps for the poor, but if the government does provide food stamps for some of the poor, it cannot then deny food stamps to others of the poor on grounds that deny equal protection. This is simply how equal protection works. So there is nothing inherently perverse about move A).
That analogy is not apt.

For an analogy closer to this case, suppose a state has a law that punishes underage boys for "consensual" sex with underage girls, while exempting from punishment underage girls for having sex with underage boys. The Supreme Court upheld such a law in Michael M. v. Superior Court of Sonoma County , 450 U.S. 464, 101 S. Ct. 1200, 67 L. Ed. 2d 437 (1981) Another state has a law subjecting underage girls to a lesser punishment than underage boys.

How then, can a federal equal protection challenge against the laws of the second state succeed in any court except the Supreme Court? All lower courts must follow Michael M. , and if it is permissible to exempt girls, but not boys, from any punishment, how can it be impermissible to exempt girls from merely a greater punishment. The latter case clearly burdens boys' equal protection interests on a lesser scale than the former case.

Michael Ejercito said...

Moreno/Cleburne/Romer seem to create a separate set of rules for rational basis scrutiny where animus is found.
Would the Romer law have been upheld if "traditional" rational basis scrutiny applied? If so, how?

Michael C. Dorf said...

You are indefatigable!
I think yes. One rational basis for the law in Romer was to conserve the state's resources for enforcing anti-discrimination law on grounds it deemed most serious.

Joe said...

"that it is unconstitutional for the government to bestow a legal right and then take it away, even though the government was under no obligation to bestow the legal right in the first place."

It narrows it to targeting a specific group and then it could do so, but must have a rational basis to do so. It doesn't dwell on it, but 1960s cases like Hunter v. Erickson are also cited, which adds the additional "special legislation" quality, that are harder to remove, which is different from simple legislation.

BTW, the Hawaii legislature was given the power to protect same sex marriage if it wished. Reinhardt noted one interest suggested was a "let's take our time" argument. Hawaii is different there. The legislature had flexibility. CA removed it.

Hawaii: "The legislature shall have the power to reserve marriage to opposite-sex couples." This doesn't ONLY strip "same sex couples" of challenges per ME. If marriage provided a burden that same sex couples could avoid, an equal protection argument is possible in theory w/o the amendment for different sex couples.

The Prop 8 case also looked to the background of the enactment. Is the background of the enactment in Hawaii the same? The litigation in Hawaii was still ongoing. In CA, marriages already were in place. Different? Who knows?

Hawaii is not the same as CA. The Prop 8 case might get it in trouble. It isn't compelled.

Andy Cowan said...

What of the fact that the right was conferred by a judicial interpretation of the state constitution, and taken away by an act of the people?

Put differently, does this decision encroach on the usual rule that the people can amend their constitution to overrule a judicial interpretation of that same constitution?

Michael Ejercito said...

Andy,

Prop 8 was submitted in 2007, before the Marriage Cases decision.

It does disturb me that this ruling essentially states that a state must adhere to a judicial interpretation of its constitution, and may not amend the constitution to undermine such an interpretation.

Indeed, in Crawford v. Los Angeles Board of Education , 458 U.S. 527 (1982). In Crawford, the Supreme Court, in upholding a law, rejected “the contention that, once a State chooses to do “more” than the Fourteenth Amendment requires, it may never recede…. this interpretation has no support in the decisions of this Court” id. at 535.

The Court mightily labored to argue that Crawford was inapplicable, but the very applicability of Crawford relies on whether legal recognition of same-sex marriage was "more" than what the Fourteenth Amendment required.

The Court argued that this case involves a classification, while Crawford did not. But the Crawford Court first dealt with the argument that "once a State chooses to do "more" than the Fourteenth Amendment requires, it may never recede." Only then, did it come to examine the substance of the law. It then concluded the law did not discriminate on the basis of race, and as such found that the state did indeed recede from doing more "than the Fourteenth Amendment requires", instead of receding from doing what the Fourteenth Amendment requires.

The fact that Proposition 8 restored a classification does not alter this analysis. The classification must be subjected to the appropriate level of scrutiny to determine if the state had receded that the state did indeed recede from doing more "than the Fourteenth Amendment requires" or receded from what the Fourteenth Amendment requires. And I do not see how that can be done without addressing "the question of the constitutionality of a state's ban on same-sex marriage".

Joe said...

"It does disturb me that this ruling essentially states that a state must adhere to a judicial interpretation of its constitution, and may not amend the constitution to undermine such an interpretation."

It can very well do that if (1) it doesn't target a certain group or (2) even if they do, do so for a legitimate reason.

If the CA SC defines "reasonable time" in some clause such and such a way, I'm unsure how the ruling will stop amending it. And, if an amendment means minors can't do something it said the old Constitution allowed, it can very well be justified validly.

The court today does not say the state might never recede as to protections. It said that if it does, it has to have a valid reason to do so. Crawford dealt with a law that had one, this one that did not. The invalidity being the lack of a valid reason for removing rights already existing for a certain group.

Rights can be removed illicitly even though they are not constitutionally protected in the first place. See, e.g., the food stamps situation. The targeting itself, not the legitimancy of denying the group of the rights in a vacuum can be addressed.

As to the heavy lifting, it takes a few pages to address the question and I don't see how it took much effort. They answered a major argument and this took time, if only a few pages total.

Michael Ejercito said...

It can very well do that if (1) it doesn't target a certain group or (2) even if they do, do so for a legitimate reason.
The problem is that such a determination can not be made, without determining whether extending that protection to that group, if extended to others, was "more" than what the Fourteenth Amendment required. Only then can the question of whether stripping a protection from a group was receding from doing more than what the Fourteenth Amendment required, or receding from what the Fourteenth Amendment required.
The invalidity being the lack of a valid reason for removing rights already existing for a certain group.
And that depends on the (in)validity of refusing to extend that right to a certain group, while extending it to others, in the first place.
Rights can be removed illicitly even though they are not constitutionally protected in the first place. See, e.g., the food stamps situation.
The food stamps situation merely stated that if food stamps are offered to one group but not other groups, it must pass the appropriate level of scrutiny to survive an equal protection challenge.

Reinhardt cited Department of Agriculture v. Moreno , 413 U.S. 528 (1973), in support of the idea that the withdrawal of rights from a specific group poses a distinct equal protection question from refusing to extend that right to that specific group in the first instance. But nothing in Moreno turned on the fact that plaintiffs were once eligible for food stamps. Indeed, if a state had a food stamp program that, from its start , was only available to households consisting of groups of related individuals, Moreno would require all lower courts to affirm an equal protection challenge; nothing in the ruling suggests that a state that always denied food stamps to groups of unrelated individuals, if offered to groups of related individuals, may do so.

The Crawford principle of course requires a careful description of the recession of benefits and protections. For example, if a state interpreted its RKBA to include the carrying of container of acid ( which is a weapon ), and then amended its constitution to forbid only homosexuals from carrying acid, then the Crawford test would not be if permitting carrying containers of acid as weapons was "more" than what the Constitution required, but if permitting homosexuals to carry containers of acid, if heterosexuals were permitted to do so, was more than what the Constitution required, or what the Constitution required. Similarly, in this case, the question is whether defining marriage to include same-sex unions is required, if the definition includes opposite-sex unions, was more than what the Constitution required, or what the Constitution required.

And answering that question, and thus the question of whether the state may recede back to the definition of marriage as a "union for life of one man and one woman in the holy estate of matrimony", Murphy v. Ramsey, 114 U.S. 15 at 45 (1885) , requires answering the question of the constitutionality of a state's ban on same-sex marriage.

Michael Ejercito said...

The opinion repeatedly rejects asserted justifications for Prop 8 on the ground that the justifications, if credited, would mean that same-sex couples should not be given the operative rights that they have been given through its domestic partnership law, but that California in fact provides for such rights. Therefore, a state electorate might worry that enacting a domestic partnership law would lead to the courts requiring marriage, and instead give same-sex couples no or limited rights.
It would be helpful to quote the very first court ruling that struck down a state marriage amendment on constitutional grounds. “[P]reserving the traditional definition of marriage as a relationship involving a man and a woman, and an eventual recognition of expanded rights in the nature of those extended in other states to domestic partners or civil unions are not mutually exclusive.” , 368 F.Supp.2d 980 at 1004 (D. Neb. 2005)

Michael Ejercito said...

The full cite for the quote is Citizens for Equal Protection v. Bruning , 368 F.Supp.2d 980 at 1004 (D. Neb. 2005)

Michael Ejercito said...

"If the Board was not under such a duty, then the rescission of the initial action in and of itself cannot be a constitutional violation. If the Board was under such a duty, then the rescission becomes a part of the cumulative violation, and it is not necessary to ascertain whether the rescission ipso facto is an independent violation of the Constitution." Dayton Board of Educ. v. Brinkman , 433 U.S. 406 at 414 (1977)

Joe said...

Various replies to final comments.

[1] The EPC is itself part of the 14A so it gets you to the same place; the court determines if for one reason or another, it is violated. 19th Century meanings of "marriage" or sex relations need not be relied on, particularly given later opinions altered such understandings in various respects.

[2] The Dayton ruling did not involve an amendment; it specifically distinguished it from Hunter v. Erickson that did, the targeting of a class in this way of specific concern here and in Romer. Simple legislative activity is not the same thing.

[3] The fact it is are not "mutually exclusive" is of limited importance if the ruling holds up as a whole. It also might be helpful to note both the majority and dissent distinguishes the earlier ruling (from another circuit) cited.

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