Monday, March 18, 2013

Passive Virtues Versus Underenforcement in DOMA and Prop 8 Cases

By Mike Dorf

Senator Rob Portman's recent announcement that he now supports same-sex marriage is welcome news, notwithstanding the (legitimate) complaint that it's too bad he does not generalize his politics to consider the plight of people who are not his children.  As Matthew Yglesias put it on Slate: "The great challenge for a senator isn't to go to Washington and represent the problems of his own family. It's to try to obtain the intellectual and moral perspective necessary to represent the problems of the people who don't have direct access to the corridors of power."

Yglesias rightly compares Portman's epiphany to Sarah Palin's willingness to support government spending on social welfare programs for the benefit of families with children with disabilities, but it's worth noting that the Palin/Portman approach is itself an improvement over President Ronald Reagan, who, upon hearing of individuals who were disadvantaged by his policies, reportedly sought ways to help those individuals.  At least Palin and Portman generalized far enough to champion policies that would benefit other disabled children and other same-sex couples.  A Reaganite response might be to champion programs for the benefit of Trig Palin and same-sex marriage for Will Portman.

It's also worth noting that Portman's position--while still bold for a current Republican office-holder--puts him where President Obama was last May: he favors legalizing same-sex marriage through the electoral process.  Portman wrote last week:
I believe change should come about through the democratic process in the states. Judicial intervention from Washington would circumvent that process as it’s moving in the direction of recognizing marriage for same-sex couples. An expansive court ruling would run the risk of deepening divisions rather than resolving them.
That's an awkward, though hardly unprecedented, position on a civil rights issue.  Portman thinks that denying same-sex couples the right to marry denies them basic equality.  So why is he unwilling to say that it therefore denies them equal protection of the laws in violation of the Fourteenth Amendment (and, so far as the federal government is concerned, the equal protection component of the Fifth Amendment's due process clause)?

One possibility might be that Portman thinks that equal protection does guarantee a constitutional right of same-sex marriage but that it is properly "underenforced" by the judiciary.  In this sort of view--championed most forcefully by Larry Sager--judges and politicians share responsibility for implementing the Constitution, but because of their respective institutional advantages and disadvantages, they concentrate on different tasks.  Thus, legislators may be obligated by the principle of equal protection to guarantee all citizens a right to access to adequate health care, to education, and to other so-called "positive" rights, but because these rights consist of complex packages of goods that can only be distributed based on multifarious policy judgments, courts should not attempt to enforce such rights, or at least not attempt to enforce them in full.

I find Sager's under-enforcement thesis quite attractive, but I would note that it seems a poor fit for the current context and, to my knowledge, Sager has not argued that courts should deny a right to same-sex marriage because of institutional complexity or the need to make tough decisions about how to allocate resources.  To be sure, legal recognition of same-sex marriage sometimes has implications for the public fisc (as the inheritance issue in the Windsor case now before the SCOTUS illustrates), but for the most part the issue is straightforward--a matter of formal equality.  Saying that there is (or is not) a right to same-sex marriage looks like it fits right in the Court's wheelhouse.

In any event, Portman did not invoke a Sager-style under-enforcement argument for distinguishing between legislative repeal of restrictions on same-sex marriage and judicial invalidation of such restrictions.  Instead, his worry that "an expansive court ruling would run the risk of deepening divisions" sounds in Frankfurterian/Bickelian worries about the Court outstripping its legitimacy.  A more contemporary version of this worry can be found in the ambivalence expressed by Michael Klarman in his book From the Closet to the Altar.  Judicial rulings don't always spark backlash but they can, and on same-sex marriage, they often have.

Is Portman (and to the extent that he hasn't moved since publication of his book last year, Klarman) right to worry about backlash?  Depending on how the Supreme Court rules on DOMA and Prop 8, we may find out soon enough, but my sense is probably not.  Opposition to SSM is becoming a regional phenomenon and, given the demographic trends, will lack political salience everywhere in a generation or less.  It's nearly impossible to imagine anything resembling the "massive resistance" that met Brown v. Board arising to challenge a SCOTUS ruling finding a broad right to SSM.

There may yet be occasions when resort to Bickel's "passive virtues" of avoidance is warranted, but it increasingly looks like this is not one of them.  Given the momentum on this issue, the Court can do the right thing without worrying much about any serious blow to its legitimacy.

17 comments:

egarber said...

Sorry to go off-topic some, but:

(and, so far as the federal government is concerned, the equal protection component of the Fifth Amendment's due process clause)?

Does that mean the equal protection and due process clauses in the Fourteenth are redundant (given the identical wording with the fifth on due process)?

I totally get that it would be insane to remove equal protection from the Fifth’s meaning – i.e., how could the federal government enforce equality within the states without respecting it in the national sphere? But it is an interesting textual question, I think. Unless I’m missing something obvious, which is clearly possible. :)

Michael C. Dorf said...

Eric,

You are correct that reading the Fifth Amendment due process clause as tacitly including an equal protection component--and then reading the identically worded due process clause in the 14th amendment in the same way--makes the equal protection clause of the 14th amendment redundant. A similar problem arises when we read the due process clause of the 14th amendment as incorporating most of the bill of rights.

Hashim said...

Mike,

I know you're just using the Portman example as a launching pad for the more theoretical discussion, but isn't there an obvious third explanation for his position and many other like-minded people, besides Sager-style under-enforcement or Bickel-style passive-virtues? Namely, in the style of Stewart in Griswold and Thomas in Lawrence, Portman might just think that not all unwise laws are unconstitutional laws.

Notably, Portman's own statement, as opposed to how it's been characterized, never uses terms like "basic equality" or "equal rights."

http://news.cincinnati.com/article/20130316/EDIT02/303160093/VOICES-Portman-We-owe-our-children-equal-rights?odyssey=mod%7Cnewswell%7Ctext%7CFRONTPAGE%7Cp

Instead, he repeatedly describes marriage merely as an "opportunity" for happiness, etc. And there are, after all, myriad ways in which the Govt selectively denies some of us the "opportunity" to be happy that does not rise to the level of "basic equality," foolish though the disparate treatment may seem or even be.

egarber said...

They were essentially having this conversation on MTP yesterday. When the discussion rolled around to state-level latitude (respecting local choice), Chris Matthews jumped in with a great answer (imo):

--gets down to it as to whether it's a right or not. And I think you're going to see that with the court disposition. And we're all watching Anthony Kennedy, and we want to know whether we're going to get a decision like we saw with the Lawrence case where the liberty clause is really paramount.

And, you know, we do have a declaration in our founding document which gives us the right to pursue happiness. And we do have a liberty clause which is you can't take away a person's right to liberty or property without due process of law. Do we have a due process excuse for denying a person a right to marry someone of their own gender? Do we have that right?

This is a profound question. We can't just talk about it in practical terms like this. Do you have the right to follow your love? And this is a serious question. And I don't think we'll get away with it with just day-to-day politics.

Hashim said...

Eric,

You're right about the redundancy created by treating the due-process clause as if it has an equal-protection component.

Mike tries to make that seem totally fine, given the "similar problem" that arises from incorporating the bill of rights through the due process clause. But that's precisely why that interpretation is equally ridiculous. Instead, if incorporation is justified at all, it is through the 14A's privileges and immunities clause. At that point, the only textual question would be why the ratifiers of the 14A needed to include the due process clause given its incorporation through the equal protection clause, and there's a simple answer to that too: the privileges and immunities clause only protects citizens, whereas the due process and equal protection clauses protect all persons in the State.

To be sure, that leads to two results that I'm sure you would think are "insane": the federal Govt has no equal-protection duty, plus the states only need to provide non-citizens with due process (and equal protection), but no other Bill of Rights protections.

Of course, the non-"insane" result makes a complete hash of the Constitution's text, and also suffers from the inconvenient fact that it's irreconcilable with the Nation's history: e.g., pretty hard to explain how the Fugitive Slave Act was even arguably consistent w/ the so-called "equal protection component" of the 5A's due process clause.

To reiterate my point from my earlier post, not all bad things are unconstitutional.

Michael C. Dorf said...

Hash is of course right that Sen. Portman could be drawing a distinction between policy and constitutional grounds--which, in the language of my original post, would be more "Frankfurterian" than "Bickelian." Portman is a serious lawyer (having served in the White House Counsel office under Pres. Bush I), so he's certainly capable of such an argument. I don't know what he really intended. It is worth noting that when people make similar arguments re interracial marriage these days they virtually never distinguish policy from constitutional grounds.

As for incorporation and reverse incorporation, I didn't mean to be taking a normative position here. For what it's worth, it would not be that big a deal as a matter of policy if there were no equal protection guarantee applicable to the federal government. Richard Primus has a 2004 Colum. L. Rev. article arguing that the chief effect would be to allow somewhat more affirmative action by the federal government than current doctrine allows.

http://ssrn.com/abstract=464847

Joe said...

"All bad things" is a strawman.

As noted in Bolling v. Sharpe, citing a 19th Century case, "due process" has an equal protection component that is not fully continuous with the "equal protection of the laws."

It is far from 'insane' and part of anti-slavery philosophy to provide a substantive content to 'due process' that provides some equal protection content.

As to the Fugitive Slave Act of 1850, some at the time noted it was in some ways patently unconstitutional. And, once slavery is abolished, the reasonableness of race classifications diminished considerably.

---

The USSC need not and should not strike down DOMA and Prop 8 via broad rulings. Case by case adjudication is the proper approach in judicial review and specific matters are at issue here.

DOMA is an invidious discriminatory means of hindering legislative repeals. Prop 8 can be dealt with on standing grounds (see amicus brief of Walter Dellinger) or the narrow rule of the CA9.

egarber said...
This comment has been removed by the author.
egarber said...
This comment has been removed by the author.
egarber said...

But leveraging the privileges and immunities clause for incorporation would create its own redundancy, no? There would be two due process clauses binding on the states: through the incorporated 5th and the 14th. But I guess that could be solved by making the 14th's due process clause do the extra work of protecting non-citizens (the way Amar lays it out).

In any case, it seems to me there is a clear path on this issue within the settled doctrine:

1. What is the public institution that's in play? Answer: in the narrowest sense, monogamous marriage.

2. What should the level of scrutiny be for the government to deny equal marriage rights to same-sex couples? Answer: some form of heightened burden.

3. Do same-sex bans pass the test? Answer: No. (In fact, I would argue that they aren't even rational. But when is the last time a law failed the rational scrutiny test?)

t jones said...

"It's nearly impossible to imagine anything resembling the "massive resistance" that met Brown v. Board arising to challenge a SCOTUS ruling finding a broad right to SSM."
I think you're invoking the wrong paradigm. There's a current argument (which I understand, but given the alternatives don't support) that Roe v. Wade (while possibly correct) was nonetheless a mistake because, by judicially enacting national policy on a divisive social issue, it unleashed the culture war we're still being subjected to by the GOP and their further right fellow travelers. Those making that argument assert that following the legislative path to legalization would have been less stressful (other than, of course, for the women denied abortions while the theoretical legislative processes proceeded).
In contrast, Brown seems to be almost universally respected today as an example of the Court acting properly (vis the lip service paid it by Republican Supreme Court nominees in their confirmation hearings). Roe, however, is more widely perceived by its opponents as a life and death issue - and I think you're also saying that it's hard to imagine opponents finding a life and death component in the same sex marriage debate. Unfortunately, they continue to surprise me.

Michael C. Dorf said...

t jones: The rapid shift in public opinion on SSM suggests to me that there's also very little chance of a backlash like the one that met Roe. In other words, the ruling would come to be taken for granted within a relatively short time.

Of course, I could be wrong . . . .

Joe said...

Per egarber's comment, there have been cases that violated "rational basis" but in effect (as O'Connor recognized in Lawrence) it was in practice stricter since certain minorities were being targeted.

The Obama Administration prefers heightened scrutiny but noted that this "rational basis with teeth" sort of review also would be violated. Note that Lawrence v. Texas suggested even rational basis was not met in that case. Romer v. Evans also.

Cristiero Rola said...

To be sure, legal recognition of same-sex marriage sometimes has implications for the public fisc (as the inheritance issue in the Windsor case now before the SCOTUS illustrates), but for the most part the issue is straightforward--a matter of formal equality. Saying that there is (or is not) a right to same-sex marriage looks like it fits right in the Court's wheelhouse.
www.joyrs.com windows 7 professional product key www.rs2fun.com

Paul.K said...

Opposition to SSM is becoming a regional phenomenon and, given the demographic trends, will lack political salience everywhere in a generation or less. It's nearly impossible to imagine anything resembling the "massive resistance" that met Brown v. Board arising to challenge a SCOTUS ruling finding a broad right to SSM.Cheapest Runescape Gold | billig World of Warcraft Gold

Qiong Zhang said...

Lovely picture with an incredible prospect, I am just thus happy for you Tamu. I have not gone to cosplay costumes Gabon, nevertheless its my goal to check out every land within my mother and father homeland in Some years of age time Our god inclined. The very next time have a look at Eastern side Africa via South africa to be able to Somaliland.

Cicy said...

but isn't there an obvious third explanation for his position and many other like-minded people, besides Sager-style under-enforcement or Bickel-style passive-virtues? cheap fut coins
lol boosting
fifa 14 ultimate team coins
Namely, in the style of Stewart in Griswold and Thomas in Lawrence, Portman might just think that not all unwise laws are unconstitutional laws.