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.

16 comments:

Joe said...

Prof. Epps suggests the opinion is geared to Kennedy. I'm with those who don't quite see that.

The dig at the "empathy"* of the judges who wrote the opinions supporting SSM and not addressing the needs of gay families while citing (quite baldly -- there was little analysis unlike other cases that spend pages rejecting it and other "rational basis" justifications) "preeminent purpose of linking children to their biological parents" doesn't seem appealing to Kennedy.

I'm biased here, clearly, but am not generally impressed at the dissents in these cases. It is true that the couples are making a claim that is a step beyond Windsor, if loyal to its overall logic. But, the opinion overall was lame. I was especially unimpressed by the "new" right marriage stuff that ignores modern day marriage developments.

Oh, and his bit about how the Constitution "expressly condemns racial discrimination as a constitutional evil" is a section in response to a gender claim is really shoddy. The Equal Protection Clause does not "expressly" do that. And, to the extend the Constitution as a whole does, it also "expressly" targets gender too.

And, any opinion with much if anything in way of discussion that raises the specter of incest is hard to take seriously. There is as you say a certain internal logic to the opinion but it is done in poor manner. If you are an outlier, you need to do a better job addressing the other arguments you reject.

Buck v. Bell is faint praise, I guess, but at least it didn't sneer at the "pageant of empathy" of the many judges who struck down the laws.

---

* "a pageant of empathy; decisions impelled by a response of innate pathos" etc.

David Ricardo said...

No one who is familiar with what Mr. Dorf has written over the years would interpret his comments in the Times as supporting the opinion.

But exactly how does one call the Louisiana decision “well crafted” when it contains this blatant error

“Heightened scrutiny was warranted in Loving because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race.”

in differentiating the case from Loving? (With respect to the word ‘expressly' Inigo Montoya would say to the Judge and others who have said the same thing, “You keep using that word, I do not think it means what you think it means” .)

Of course, since Conservatives consider themselves correct as a matter of fact, egregious errors and complete misrepresentation are irrelevant. But that results in the exact opposite of a ‘well crafted’ opinion.

Michael C. Dorf said...

Joe and DR: Quite right, and I have recently criticized Justice Scalia for making just that mistake identified by DR. I think I used the term "well crafted" in response to a question about the rhetorical strategy of the opinion or possibly limited to the federalism point--but again, I did not mean to endorse the soundness of the reasoning (as both of you obviously understood).

Joe said...

Judge Posner's opinion is a pretty good counter -- with actual work discussing the children protection rationale -- to the opinion.

http://www.buzzfeed.com/chrisgeidner/wisconsin-and-indiana-same-sex-marriage-bans-unconstitutiona#1hj1d9c

matt30 said...

I probably would have used "creative" or "clever" rather than "well-crafted." But there's not really much you can do when you're speaking off the cuff.

The equal protection argument section was just a complete abdication. Just because another court doesn't reach the suspect classification analysis doesn't mean it shouldn't be done--especially if one buys the argument that the government has a rational basis for same-sex bans.

Michael C. Dorf said...

Posner's opinion is a tour de force. ("Go figure" is my favorite bit.) And it was released just 9 days after oral argument!

As to word choice, matt30, I agree. As you note, though, this is the price of talking rather than writing.

David Ricardo said...

The only quarrel one might have with the Posner opinion is its scant references to Loving. The critical legal position of those who support the right of states to ban SSM is that marriage is a state regulatory issue, that the definition and regulation of marriage is solely an area for the states and that a la Baker the federal government has absolutely no role in the determination of who can and who cannot marry. (States have the right to ban SSM because states have the right to ban SSM.)

This argument is consistent with their interpretation of Windsor which is that because the feds cannot regulate marriage the feds must accept the state definition when that state definition includes SSM and must reject recognizing SSM when state law prohibits SSM and so Windsor does not stand for federal regulation of marriage or of a right to SSM. In this sense to them Windsor (incorrectly) is a win for those who would allow states to ban SSM, it affirms the position that states, not the federal government regulate marriage.

Loving demolishes this position; it stands for the principle that not just discrimination in general is unconstitutional, discrimination in marriage is unconstitutional. As long as Loving stands, the argument that marriage is not in part a federal and Constitutional issue cannot stand. To say that marriage is outside the purview of the Constitution is to say that yes, states can ban inter-racial marriage, something not even the most ardent opponents of SSM are willing to do.

Hence the flat out error by those who would distinguish banning inter-racial marriage from banning SSM by erroneously saying the Constitution expressly bans racial discrimination as a way of distinguishing Loving from the SSM cases. They have no legitimate way to get around Loving and so have to make stuff up.

It would have been nice if Posner had written more about Loving and its role, but that criticism is akin to saying his opinion is only an A+ instead of an A++.

Joe said...

A bit of care should be used regarding Windsor, including overdose of the federalism strand.

"the feds cannot regulate marriage"

Windsor cites cases where they can (e.g., if a state accepts a marriage is legit, the feds still might not if it is deemed just a racket to get a "green card").

Also, Windsor notes that there are constitutional limits regarding limiting marriage. Loving is not required here. And, Posner cites such a case (Zablocki).

Loving does hold that invidious discrimination in marriage is illicit but it's an easy case -- race is particularly suspect. Some do make the simplistic claim that states have complete power over marriages but that's foreclosed clearly by precedent.

The matter of sexual orientation is a bit harder and this is what he spends his time on. Also, he relies merely on equal protection and Loving is a marriage case. Not much relying on that furthers his cause there, perhaps.

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