Wednesday, February 18, 2015

Same-Sex Marriage Bans: Animus All The Way Down

By Eric Segall

Recently I was asked to join a thoughtful amicus brief in the same-sex marriage cases currently before the Court arguing that the Justices should strike down the bans on the ground that they discriminate on the basis of gender. The reasoning is that the only reason Jim can’t make marry Jack is that they are both men. If Jack were a woman, they could marry (sexual orientation is irrelevant to these bans, at least on their face).

I think the legal arguments in the brief are strong but I declined to join it because I think the brief ignores the reality of what is really at stake in the same-sex marriage debate. Although the bans don’t mention sexual orientation, their goal is quite clearly to reserve for heterosexuals the benefits of marriage. Supporters of these bans know that there is no rush to marry among (and between) one gay man and one lesbian woman, but there is among two gay men or two lesbian women. Denying them marriage is not, as I argue below, some neutral stance towards gays and lesbians, but rather legal animus all the way down.

What is legal animus? In two previous cases involving gay rights (one involving a law prohibiting private, consensual same-sex sodomy and one involving a state constitutional amendment treating gays and lesbians differently than other groups in a state’s political process), the Court found animus where the justifications for the law and the amendment obviously failed to advance any state interests other than the expression of disapproval towards gays and lesbians. In a third case, the Court found animus when a town denied a zoning permit for a group home for the intellectually disabled without producing any plausible justification for the denial other than animosity towards that group. In these cases, the Court found legal animus based mostly on the flimsy and pretextual justifications set forth by the defendants to justify the political decisions, and all three decisions were struck down under the equal protection clause of the fourteenth amendment.

Why did the four states at issue in the current case prohibit gays and lesbians from marrying? These days very few folks answer that question by saying something to the effect that “we don’t like them,” or “engaging in homosexual behavior is a sin.” If those kinds of sentiment were the motivations for the bans, the cases cited above would foreclose their validity under the rule that laws that discriminate against an identifiable group based on nothing more than animus against that group are unconstitutional.

In the court of appeals, the judges who upheld the bans of the four states gave basically two reasons. First, the court held that society has an interest in regulating the consequences of sex (children) and the various rules relating to marriage “create an incentive for two people who procreate together to stay together for purposes of rearing offspring.”

How these purposes are in any way affected by or related to same-sex marriage bans, however, the court did not say. As Mike has previously pointed out, the only possible scenario (and it is incredibly unlikely) is that maybe if too many gays and lesbians decide to marry then heterosexual couples (with children) would decide to forgo marriage so as not to engage in the same behavior as homosexuals. This scenario is both absurd and based on the kind of animus the Court's cases forbid.

Of course, the Sixth Circuit didn't engage in such silliness instead, arguing that rules about marriage generally are rational and thus so are same-sex marriage bans.

What exactly did the Sixth Circuit mean by this analysis? Pursuant to this reasoning, bans on redheads getting married would be upheld because rules relating to marriage are generally rational. I know this sounds crazy but because the court did not articulate a single connection between bans on same-sex marriage and any governmental interest relating to the welfare of children, why would a ban on redheads fail the test? Maybe the court was saying that a gay couple won’t procreate through sex and thus the state has no reason to “subsidize” their sex. The problem, of course, is that the states subsidize heterosexual sex through marriage incentives even when both partners are sterile or will choose never, ever to have children. The legal question is how are sterile heterosexuals different from gays and lesbians for the purpose of the states’ alleged incentive interests, and the answer is they are not (unless we simply like them less).

The second reason offered by the Sixth Circuit was that a State might wish to
wait and see before changing a norm that our society (like all others) has accepted for centuries…. No one here claims that the States’ original definition of marriage was unconstitutional when enacted. The plaintiffs’ claim is that the States have acted irrationally in standing by the traditional definition in the face of changing social mores. Yet one of the key insights of federalism is that it permits laboratories of experimentation… allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time.
This rationale would not apply to banning redheads from marriage.

This federalism argument, however, could have applied equally to segregation, discrimination against women, and state restrictions on campaign finance reform. This argument presents no explanation for why the tradition of excluding same-sex couples from marriage furthers a legitimate state interest apart from maintaining disapproval of gays and lesbians or simply denying them the benefits of marriage because … well, we always have.

Conservative NRO writer Ed Whelan has spilled a lot of ink defending the constitutional validity of same-sex marriage bans. He has come up with only three rationales for sustaining the bans: 1) we don’t know what effects allowing gays and lesbians to marry will have on heterosexual marriage (and maybe children): 2) federalism should allow the states to “experiment” with the issue; and 3) nothing in the Constitution prevents states from excluding gays and lesbians from marriage and thus the unelected judiciary should stay out of the issue.

None of these rationales holds up. Neither Ed nor anyone else has ever explained how allowing same-sex couples to wed will effect heterosexual marriages or the children of such marriages. The speculation that it “might” cannot justify denying such an important benefit to an identifiable class of people. If the welfare of children were really at issue, states (and Ed) would be concerned about the children of gay couples who are denied all kinds of social and financial benefits by same-sex marriage bans.

Second, “federalism” values don’t connect the bans to any legitimate state interests any more than such values would allow segregated schools, prior restraints on speech, or limiting campaign expenditures. Appeals to federalism in the individual rights arena, in any event, are few and far between. For example, Ed thinks affirmative action at the state level is unconstitutional despite ambiguous text, contested history, and “federalism values.”

Finally, as far as the Constitution goes, the fourteenth amendment prohibits states from denying to any “person” the “equal protection of the laws.” I am sure Ed would agree that gays and lesbians are “persons”, and he has to agree that preventing them from marrying treats them “unequally.” All he has said is states have a valid reason for that denial but Ed has failed to assert any valid interest that connects the ban to a legitimate state concern. 

There is a difference between legal animus towards an identifiable group as defined in the Court’s cases and outright prejudice against that group. I am not suggesting that the people of the four states whose bans are before the Court or Ed Whelan or anyone else is bigoted against gays. I am saying that there are no valid concerns those states laws address other than a naked value judgment that gays and lesbians are not entitled to the same governmental benefits and societal approval as heterosexuals. In the absence of any rational connection between denying gays and lesbians those benefits and a legitimate state interest, those bans are unconstitutional because they are the products of legal animus.

One last point. My personal views on judicial review lead me to the conclusion that judges shouldn't strike down laws unless those laws are at an "irreconcilable variance" with the Constitution. Laws that single out one specific group for unfavorable legal treatment based solely on legal animus are, as Justice Kennedy has said, "literal" violations of the fourteenth amendment, and same-sex marriage bans fall in the category.


t jones said...

a. The Federalism argument still bumps up against the right to travel, etc., if it permits some states to deny recognition to legal same-sex marriages from other states (at least absent DOMA).
b. I'm pretty sure Justice Scalia could find a text from 1789 disparaging redheads to use as the basis of an originalist argument in support of a ban on marriage between redheads, if he got up on the wrong side of bed that day.

Joe said...

I think an important underlining sentiment here is sex stereotypes.

The "proper" role of men and women from ancient times is a big part of opposition to same sex behavior and what is now seen as sexual orientation discrimination. Prof. Andrew Koppleman has defended this approach. Some think it makes sense. The courts have generally not relied on it.

The "animus" approach is sensible. I found the "people's brief" pretty good:

James said...

At some point after this debate is settled we will have to confront the issue of polygamy.
There we have many of the same issues but arguably there is a stronger equal protection argument against plural marriage, on the ground that historically it has been associated with gender-based discrimination, so the state has an interest in restricting plural marriage to protect against gender-based exploitation. But inevitably I wonder (as a personal opponent of plural marriage) whether I am not engaging in some of the same perhaps animus-based and certainly result-oriented reasoning as the opponents of same sex marriage.

Joe said...

Looking at the transcript of the oral argument of Loving v. VA, we see polygamy came up there too.

I think there is some remove here, but to some degree some "animus" was shown. For instance, Romer v. Evans, referencing actual policies in the late 19th Century, if a state held that "persons advocating a certain practice may be denied the right to vote, it is no longer good law." Particularly if they are singled out.

There is a "Sister Wives" case ongoing where technically even getting "married" in a religious ceremony -- while not holding yourself as married in any legal sense -- is illegal. Singling this out when even monogamous adulterous (so to speak) are not targeted shows a certain animus.

State constitutional amendments singling out polygamy might also might be problematic. But, overall, the reasoning against polygamy is more reasonable. It is not merely a matter of morality, often based on religion, with very weak factual claims made.

There is some animus shown, most likely, but it doesn't reach as a whole to a clear case of animus for purposes of constitutional law that warrants striking down the policies.

Eric Segall said...

The arguments against polygamy are different as they are based in protection of women and possibly administrative issues with plural families. But, in any event, I'm willing to listen, especially when millions of folks are clamoring for it.

Greg said...

On the polygamy point:

I've always viewed rules against legal polygamous marriage as administratively practical, not strictly based on animus.

For instance, one of the benefits of marriage is that the state establishes your spouse as the default person to receive your belongings when you die without a will. By not allowing polygamous marriage, the state is saying that it simply isn't possible to fairly define what the rules should be in that situation, and as such people in non-legal polygamous marriages should have their own will written, as there is no reasonable way for the state to write one for them. Similar issues exist for the implied legal power of attorney when the spouses disagree on the desired medical treatment for an incapacitated loved one.

Tax breaks based on the expectation that marriages are between couples provide similar practical problems. If a state were to allow a 3 person marriage, what would be the status of those tax breaks? Should a single working individual be allowed to claim deductions for all of their spouses? If 2 of them want to file their takes together, but 1 of them wants to file separately, what are the legal effects of that on filing status, etc?

On a simpler note, should one person be allowed to marry more than one other person, or should groups of people in polygamous marriages be required to marry in a single contract as a group?

The point is that allowing polygamous marriage is a lot more complicated, for good reasons, than allowing same-sex marriage. Allowing same-sex marriage is as simple as simply allowing it, as it otherwise follows all the same rules as heterosexual marriage. Allowing polygamous marriage requires rewriting all of the marriage laws to cover a situation that they just weren't designed to cover.

Thus, I view prohibitions on allowing marriage of a single person to more than one person as due to administrative convenience. The state has a legitimate interest in keeping its laws easy to enforce, and in providing usable guidance for those responsible for implementing those laws. Allowing polygamous marriage would make the work of implementing marriage rules significantly more difficult for law officers and for medical staff.

Other than those concerns above, this is also a situation of not wanting to make a bunch of laws to cover an unusual case, and thus the state deciding not to recognize the situation legally. Is simply not wanting to write a fairly extensive set of laws to handle an unusual case a legitimate interest in itself?

Greg said...

To put it another way:

I really don't care if my state were to start allowing polygamous marriages.

However, I think it is a waste of my state legislators' time [not necessarily a bad thing] to figure out how its marriage laws should be adapted to the unique situation of polygamous marriage, and I don't personally feel that the equal protection clause of the constitution should require them to do so.

Side note: The equal protection clause would require any state that recognizes polygyny to recognize both polyandry and polyamory as well.

Keith Kaplan said...

When 50% of States permit marriages between first cousins, when NJ has a current case of a Father and Daughter engaging in incestual coupling and when your argument is that children aren't a basis against marriage bans, on what basis can any coupling of two consenting adults not be held to the same logical reasoning?

Joe said...

50% is not quite the same as every state allowing (with an assist by Lawrence v. Texas, but only about 1/4 of the states technically had it illegal & rarely enforced them) same sex couples. Less so "one" example.

And, children does remain part of the reason against incest bans. The reason has certain problems, but it is a lot more rational than it being applied to same sex couples.

Many cases of incest will run into "consent" problems, including in some cases of adults. Similarly, bans on therapists having sex with their adult patients are reasonable. Likewise, "incest" bans can reasonably apply to a case like shown on the show "The Fosters" (teen boy, foster daughter), familial stability a concern too.

Can we actually have discrimination by sexual orientation actually dealt with before we yet again talk about polygamy or incest? No? Okay. Then, yes, any bans on adult first cousins and so forth getting married is pretty weak.

Immediate family continues to have consent issues & the number of cases of adults being involved are tiny. They can be dealt on a one-one basis. If a brother and sister, e.g., meet after being apart for years (a real case), not allowing them to be together as an adult is probably not a good idea.

Meanwhile, let's deal with the hundreds of thousands affected by sexual orientation discrimination. And, though Greg is correct, we can deal with the tens of thousands in polygamous relationships. Though the states generally involved do that now mostly by ignoring them unless minors or compulsion is involved. State recognition on part with marriage (though some other form might be good) as Greg notes has various problems.

Joe said...

ETA: There is also a difference between banning "couplings" and not recognizing marriages.

A first cousin or same sex marriage fits the whole gambit of reasons we recognize different sex marriages. The first cousin is a bit different only in that marriages usually involve bringing in someone outside of the family totally.

The family provides a ready-made relationship. Marriage generally is recognized by the state in part because two strangers are setting up a new relationship. This is not totally the case in various cases, but it is a generalized truth.

Two siblings, even if totally consenting, are not in the same position as the average same sex or different sex married couple. This underlines why sex or sexual orientation is particularly not a reasonable classification here as compared to familial relationship

While illicit discrimination by sex, sexual orientation & trans etc. continues to be a problem, it's useful to remember this before we decide to jump to every consenting adult ... since you know, obviously sexual orientation isn't an issue!

Not quite yet.

Keith Kaplan said...

"And, children does remain part of the reason against incest bans."

I disagree. Even if you want to claim that children remain part of the reason, that certainly wouldn't apply to two brothers or two sisters.

Also, it's not an issue at all with first cousins, where the risk to children is less than that of a 40 year old woman with a random partner. The medical risk simply isn't there.

In fact, if you look at the precedent for first cousin marriage laws, they offer an easy answer here. AZ allows them when both people are over 65 years old or one is unable to reproduce. IL has a cutoff of 50 years old or one is unable to reproduce. Indiana puts the cutoff at 65. ME lets you get a physician's certificate of genetic counseling. UT says 65 of if one is 55 and the other can't reproduce. WI has 55 or one can't reproduce.

Pick your precedent, but all of them argue against a blanket ban.

"Many cases of incest will run into "consent" problems, including in some cases of adults"

This isn't a reason for a ban against incest. It's a reason for a ban against cases of people that have had control over another person -- again, if you want to claim that this reason applies to parents and children, it ceases to apply to sibling, cousins and other banned relationships. People (including me have religious objections as well as a general "icky" feeling towards these couplings. That is the real issue.

Re: therapists, foster families, etc...

You have already articulated the ability of the state to ban marriages in a way that relates to the actual issue, so I don't understand why you would simultaneous place a blanket ban where the issue may not exist except for a handful of circumstances.

"Can we actually have discrimination by sexual orientation actually dealt with before we yet again talk about polygamy or incest?.... Meanwhile, let's deal with the hundreds of thousands affected by sexual orientation discrimination."

My step-father's parents happened to be first cousins, so it was of relevance when they ceased to be considered married by crossing the border into PA. When we discuss the reason for treating LGBTQ individuals with the same dignity we show heterosexual couples, we use the phasing "marriage equality". If one must stand in line with a group of a certain size to obtain "equality", then you should use a different word.

Keith Kaplan said...

As for Polygamy, it's a different issue - one that (after decisions striking down cohabitation bans see here.

For those against polygamy (for moral reason or otherwise), I do have a few questions:

As a matter of policy, the government can prevent the practice in one of two ways:
1) Legislate against the act: States can outlaw more than two consenting adults living their lives together through rules similar to Utah's "cohabitation" law that was just struck down by a Federal Judge.
2) Legislate against the benefits: States can outlaw marriage licenses to anyone that already has a spouse and not recognize such unions if other States grant them, which is still the case after the UT decision.

As we saw from the case of gay marriage, gay relationships and living with gay 'spouses' didn't stop merely because gay marriage was illegal, therefore it doesn't appear as if legislating against benefits will do anything, in practical terms, to stop the practice of polygamy should rules on cohabitation be deemed unconstitutional.

Therefore, my question boils down to this: How much government intrusion do you want to permit into our lives by allowing legislators to dictate who may or may not live in your home?

Lowry said...

@t jones:
1) while the "right to travel" argument FEELS right, the actual "right to travel" was based more around treating new arrivals to your state different than long-term residents. If no gay marriage is allowed or recognized in your state for anyone then it doesn't apply.
2) some have instead relied upon the fact that to go to State Y from State X and have to sign forms saying you are not married is either 1) the state unilaterally dissolving your legal relationship, 2) the state unilaterally dissolving (symbolically) your personal relationship, or 3) compelled speech. The argument that there is not a speech element in filling out these forms is not as strong as it seems to be because the other cases where self-identification on forms and otherwise were not seen to have a speech element that could be compelled were of a much less substantive character (simply identifying on a tax form that a religious organization sought an exemption, as opposed to "declare whether you are married" and being forced to choose "no").

One quick thing on polygamy: how do we equate not allowing MORE marriage with not allowing marriage at ALL? The idea that we have to solve all marriage bans for all time in order to allow gay marriage is just an unnecessary stumbling block. Hopefully there are either good reasons to treat those other forms differently and they are susceptible to proof of that. A quick shot, you can say that lack of consent takes care of a lot of the arguments, a complete difference in type (as before) takes care of some of the rest, and studies and statistics (credible ones, not the weak stuff being used to try to show that gay marriage hurts straight marriage) showing the abuse inherent in incestuous relationships and endemic in polygamous relationships should do the rest. Then, just like the EPA gets to use global warming data because it is the "best available science," courts can discount fake studies. But really, that shouldn't have to be decided now.

In any case, our government really shouldn't be involved in the religious rite of should be civil unions all the way down. Government out of marriage! I can see the bumper stickers now.

Joe said...

"it should be civil unions all the way down. Government out of marriage!"

Government licensed marriages are a form of "civil union." Also, how do we go about this? Do all the benefits and so forth based on marriage drop off too?

Keith Kaplan said...

"it should be civil unions all the way down. Government out of marriage!"

Rep Bob Barr already discussed this:
The true marriage divide

"The issue at hand is not so much the specific question of whether two individuals of the same sex should be able to be joined in a legal union; but the broader issue of whether government should continue to enjoy the authority to dictate which individuals can enter into a binding legal agreement not harmful to others. It is this issue that constitutes the core questions for many Generation X, Y and Z voters; and one that illustrates the more libertarian leanings of such voters."

Joe said...

I will response one to Mr. Kaplan's responses. Since I have so many comments already, I will then step away.

Since I said "children" are "part" of the reason for incest bans, you don't "disagree" by pointing out it isn't the only reason. I also said the rationale is somewhat weak & first cousin bans are problematic etc.

Next, in effect, you make an argument that certain bans are overbroad. That is, there are reasons, but they don't apply to all involved. Granted. This might be an issue in various cases if "strict scrutiny" is applied.

But, no, mere 'ickiness' isn't the reason for bans here. There are reasons to be particularly concerned with the groups in question & why particularly for marriage they aren't licensed by the state. And, the reasons are stronger than for same sex couples. "The issue" is not the same in each situation either. I raised various scenarios since your argument was across the board.

Yes, if one person's rights are denied, it's wrong. Thus, my concern for the brother/sister scenario I cited. Sorry for not being 100% pure here in recognizing the breadth of the problem is much bigger for others in the real world. Where first cousins for a long time might have had less right than they deserve, but a lot more than same sex couples. That is if "incest" means that as compared to talk of two brothers.

As to polygamous couples, merely living together has been generally allowed in practice. It is illegal some places as would be what amounts to legal adultery. This results in some people being targeted, but in general, especially in some regions in the Southwest, not many. Cohabitation for a single couple itself was broadly against the law in many places.

The issue there really is some form of legal recognition. But, making it clear polygamous couples can set up households together legally would be the right thing to do. It would make many of their lives easier.

Lowry said...

Gentlemen, with all due respect, you both avoid the implications of involving the government in a religious ritual. The government should give you the piece of paper that defines what your legal benefits and obligations are, and separately (before after whenever you feel like it) you go to your preferred house of worship or bower of enchanted trees to be married by whichever gods/goddesses/fungi you prefer. The United States government has no place telling anybody they are married in the eyes of God.

"Government licensed marriages are a form of 'civil union.'"

Does this really bear mentioning?

Bob Barr also (politically wisely) does not bring up the idea of ending government association with "marriage"

Keith Kaplan said...

Joe, I appreciate your point about familial vs non-familial recognition by the State and I think that's correct. I'd like to see a legal recognitiion based on a contract removing marriage from the equation, opened to all, but I doubt that's realistic short of a State like AL refusing to issue any licenses (as some Counties have chosen to do).

I also wanted to apologize that my point wasn't as clear as it could have been.

While I concede that there are reasons (e.g. coercion), my issue wasn't merely that it's overly broad, but that those aren't substantially related to the category banned. Certainly, not everything that is possible in a sub-group would be applicable to a ban on the whole group.

Obviously that coercive link becomes even more tenuous as you move further away from a nuclear family situation.