Thursday, September 04, 2014

My More Complete Thinking on the Louisiana SSM Decision

by Michael Dorf

A NYTimes story today on yesterday's ruling by a federal district judge upholding the Louisiana ban on same-sex marriage may give the inaccurate impression that I think the ruling is anything other than terrible. The story's author, Campbell Robertson, correctly quotes two disclaimers I gave in the course of a 15-minute discussion with him but not the main thrust of my comments. First, I am quoted as saying that the decision is a "well-crafted outlier." By that I merely meant more or less what Garrett Epps meant in his excellent first-take on the decision in The Atlantic: namely, that the opinion hangs together well, not that it is correct either legally or morally. Judge Feldman's opinion is well-crafted in the same way that Plessy v. Ferguson or Buck v. Bell ("three generations of imbeciles is enough") can be said to be well-crafted.

Second, I am quoted as noting "some confusion" in the Windsor opinion about the relative roles of federalism and equal protection in that decision. That's also accurate but misleading, as I think that Windsor was chiefly an equal protection decision.

The outlier quote appears right after a discussion in the Times story of how Judge Feldman thought that a ruling invalidating the SSM ban would be undemocratic. Yet I explained to Mr. Robertson that the argument rooted in democracy is a generic argument that one can make against the recognition of any and all rights, because rights trump decisions of democratic bodies. I explained why I thought that Judge Feldman's reliance on last Term's Michigan affirmative action case--in which Justice Kennedy included language that could be taken out of context to uphold SSM bans--was misplaced. Readers interested in the full version of my argument on this point might want to take a look at my blog post on the argument when I first noticed it.

As to the roles of federalism and equal protection, I stand by my disclaimer that there is some confusion based on Windsor--as the dueling dissents of CJ Roberts and Justice Scalia in that very case illustrate. So yes, as I am quoted in the article, Justice Kennedy did give to Judge Feldman some "tools" with which to make the argument he made. But it's still a mistaken reading of Windsor, ultimately.

Although Windsor is not entirely clear on how federalism and equality fit together, I think the best reading goes like this: States have primary regulatory authority over marriage and the federal government, in recognition of that fact, virtually always simply piggy-backs on state definitions of marriage; DOMA massively rejects that presumptive approach and in doing so, raises suspicions that Congress was acting oddly; and indeed, when we look closely, we see that DOMA was motivated by impermissible anti-gay animus; thus, DOMA denies equal protection. Put differently, federalism enters only as an evidentiary point in the equal protection analysis. It is not a freestanding value sufficient to trump equality. In a contest between federalism and equality--as in the challenges to state SSM bans--equality wins.

I don't want to give the impression that I'm faulting Mr. Robertson's reporting. His job is to report on the news and the news here is the ruling, not what one law professor happens to think about the ruling. If the result is that he uses accurate quotes of mine to advance the narrative arc of his story, even though those quotes give an incomplete or misleading picture of my views, that's not really his concern, nor should it be. I'm a big boy and I know that when I talk to the press, this is how things work. As long as they quote you accurately and spell your name right, you really can't complain.

So why am I writing this explanation? Partly it's a matter of personal pride. I don't want people who actually know me to think that I have gone over to the dark side on this issue. But there is also a tinge of remorse: I regret the extent, if any, to which my comments might be taken to legitimize a position that I think is unjustified or worse.