Monday, March 30, 2015

The State SSM Respondents Double Down on Narrow Tradition

By Michael Dorf

The state briefs in the pending SSM cases have been filed by the representatives of KentuckyMichigan, Ohio, and Tennessee. They include a predictable mix of three arguments: (1) restricting marriage to heterosexuals serves the rational, non-animus-y interest in addressing the evils of accidental procreation; (2) changes in the institution should come, if at all, through democratic means; and (3) the traditional institution of marriage does not encompass same-sex couples. Needless to say, I'm not persuaded, and I very much doubt that the SCOTUS will be. But prompted by the particulars of the state briefs on point (3), I want to note a very brief follow-up to my March 16 post  regarding the brief that Professor Tribe and I submitted, in which we argue that, in addition to striking the challenged laws on equal protection grounds, the Court ought to strike them on the ground that they violate the fundamental right to marriage.

All four of the state briefs cite Washington v. Glucksberg for the proposition that the Court must be careful in how it defines the fundamental rights it recognizes. That's fair enough, I suppose. Not only Glucksberg but other cases as well describe the enterprise of recognizing fundamental rights as rooted in history and tradition. But what the state respondents apparently mean is something more radical: That the plaintiffs' claim should be rejected because the right to marriage traditionally did not include the right to same-sex marriage.

Glucksberg does not authorize the maneuver attempted by the state respondents in the SSM cases. In Glucksberg, the plaintiffs sought a right of the terminally ill to assisted suicide. The Court rejected that formulation as too narrow, substituting instead a broader formulation (which the Court then rejeted). Chief Justice Rehnquist wrote: "the question before the Court is more properly characterized as whether the 'liberty' specially protected by the [Due Process] Clause includes a right to commit suicide which itself includes a right to assistance in doing so." That is nearly the opposite of the move the state respondents urge in the SSM cases: characterizing the right as too broad, substituting instead a narrow formulation (which they urge the Court to reject).

The idea that the asserted right should be narrowed and then compared with historical traditions was expressed most clearly by Justice Scalia, but only for himself and the late CJ Rehnquist, in footnote 6 of Michael H. v. Gerald D. The Ohio brief cites that footnote once for another proposition and also cites another footnote of Michael H., carefully avoiding expressly relying on footnote 6--but the care is unavailing because it's obvious that Ohio and the three other state respondents in fact are making the footnote 6 argument. That argument has been repeatedly rejected by the full Court, as Professor Tribe and I note in our brief.

But we're hardly the only ones to note in the context of marriage that the Court's precedents reject reliance on tradition narrowly defined. As Judith Schaeffer explained on Slate last week, then-Judge John Roberts said the same thing at his SCOTUS confirmation hearing.

28 comments:

Hashim said...

Mike: when arguing that the State has infringed on a fundamental DP right to "marriage," how do you propose determining what "marriage" is other than by tradition? (Your amicus still isn't on scotusblog for some reason.) Surely "marriage" for purposes of applying strict scrutiny isn't whatever union the pltf chooses to claim is a "marriage," and, if you don't rely on tradition, aren't you essentially pre-judging the case by determining what's "inherently" marriage? More concretely, why is it that a union w/o the traditional opposite-sex requirement is still a "marriage" that gets DP protection, but other unions w/o other traditional requirements (monogamy, non-consanguinity, adults, consent, etc.) aren't "marriages" that get such protection?

Michael C. Dorf said...

Hash: You can download our brief from the SSRN link provided in the post or from the Supreme Court's website at http://goo.gl/gCzGTy . I'm not sure why there's no link on SCOTUSblog. There used to be.

As for the question of the scope of a right, our main descriptive point is negative: That the Court's cases already reject the narrow historical approach. There was no tradition of marriage by deadbeats but the Court found the right applied in Zablocki. There was no tradition of marriage by prisoners but the Court found it applied in Safley.

Our normative point--spelled out in a book, not just a brief--is also chiefly negative: that the approach of looking to narrow tradition claims for itself a false objectivity (much like intentions-and-expectations originalism, to which it is a close cousin).

Our affirmative claims are much more modest but we do not deny that they require value judgments, such as the value judgment that the right to marry by two consenting adults of the same sex warrants protection, whereas the right of an adult to marry a non-consenting minor does not. I've long thought that in rare instances polygamy and adult sibling incest would be harder cases as a normative matter--see, e.g., pages 851-52 of http://goo.gl/uEDohw -- which is why I avoided piling on in response to your comments in that regard on my last post on this subject. However, I think that the development of constitutional rights can properly take account of shifts in public attitudes as well, so that the combination of the very strong normative case, the extra equality dimension, and the evolution in public attitudes make the case for a right to SSM much stronger than the case for including rare instances of polygamy or adult sibling incest in the fundamental right to marry.

Joe said...

Yes, the Supreme Court itself does not merely rely on "tradition," but a developing understanding of the right to marry and other rights. There is no fixed "inherent" right to marry as such. As one article notes, maybe the 7th Amendment requires that ("shall be preserved"), but the open-ended "liberty" here is not so fixed.

Now, maybe they are wrong, but Prof. Dorf et. al. are working with legal precedents here. Then, the logical approach is to look at the various cases and determine what they say the "right to marry" entail. And, they -- taken as a whole -- entail things that exist for same sex couples too.

Justice Powell flagged how the open-ended nature of such precedents would make bans based on homosexuality a problem back in the 1970s. OTOH, monogamy was a constant. A case can be made for polygamy, but it would be harder working with the case law, especially after Lawrence and Windsor taken together recognized the basics works for same sex couples.

The reference to "consent" would be a difference in kind here since it is basic to rights among adults. The child v. adult line is also basic for rights in this country. We can change it, but would be a more significant change. Yes, this is something of a "value" judgment that has to take into consideration how things are done as a whole. Likewise, protecting verbal threats is not the same thing as protecting various other form of speech. Or, drawing lines for 2A rights by age etc.

Tradition therefore has to be continuously weighed -- so coverture in marriage? No longer deemed equitable. Consent? Still deemed appropriate. The monogamy, non-consanguinity aspects of marriage also can be shown to be valid. Prof. Dorf says those bans can be "harder" cases, but still says that is not AS hard as denying SSM. I think as a matter of constitutional law, the comprehensive approach of the comment is valid.

But, to be totally upfront, the brief makes finding a state interest for certain types of bans sound not as hard as that personal law article cited.

Hashim said...

There was no traditional right to "marriage for deadbeats/prisoners," precisely because those restrictions were novel. But critically, there was a right of "marriage" *as traditionally defined*, and *no tradition* of depriving individuals of that right based on their debts/crimes.

Here, by contrast, this is not the right to "marriage" as traditionally defined, and there's an until-recent unbroken tradition of excluding individuals from that right based on same-sex partner.

Under any sensible reading of Glucksburg, that should be the end of the matter in terms of picking the *proper* (i.e, not necessarily "narrowest") level of generality: first ascertain what right (if any) has been traditionally recognized; then determine whether the type of pltf at issue has been traditionally included or instead traditionally excluded from that right.

Allowing a fundamental rights claim even where there's an unbroken tradition of "infringing" the so-called "right" not only makes a mockery of the term, but, as your recognize, requires courts to make inherently normative judgments. And the folly of that approach is confirmed by the hubris required for an unelected and unaccountable judge *simultaneously* to claim that: 1) homosexual marriages are "fundamental" despite the fact that they have been prohibited for time immemorial; but 2) polygamous marriages are not "fundamental" despite the fact that they have been allowed and practiced since time immemorial, including by major world religions (and would likely be practiced in at least one State today but for an extraordinary Congressional intervention into Utah's marriage laws, contra the alleged federalism concerns of Windsor).

Michael C. Dorf said...

Before giving up, I'll simply note:

(1) Fifteen minutes of research did not produce evidence for Hash's confident (but unsupported) assertion that the policies at issue in Zablocki and Safley were novel. It is possible that deadbeats and prisoners had the legal right to marry since 1791 or 1868 or for however long it would take to satisfy the historical tradition test, but I doubt it. In England, from 1753, marriages could not be performed in prison, where not only convicted criminals but many debtors resided. Debtors' prison survived in the U.S. well into the 19th century. I don't know the extent to which American colonies and later states adopted the English approach but I would be surprised to learn that prisoners were routinely permitted to marry.

(2) There is, in any event, not a single word in the majority opinion in either Zablocki or Safley indicating that the Court was interested in whether there was a tradition denying marriage rights to deadbeats or prisoners, thus further vindicating my positive claim that the SCOTUS has NEVER applied the Michael H. footnote 6 approach or a disguised version of it.

(3) All honest methods of constitutional interpretation--and certainly all practiced by all of the sitting Justices--require normative arguments. Or if they don't REQUIRE such judgments, they certainly INVOLVE such judgments. Based on the strong correlation between ideology and a Justice's votes, this is true across the board, but in our academic work and our brief, Prof. Tribe and I show why the resort to tradition is strongly value-laden.

And now, as promised, I give up.

Hashim said...

I'll give up with this rejoinder:

Five minutes of legal research reveals (at p. 11 of the Govt's brief in Zablocki) that the "new provision" there was enacted by the "1959 Legislature." But perhaps that is an equally "traditional" pedigree to the opposite-sex restriction once viewed in the proper "normative" light -- what's a few millennia between "enlightened" jurists?

More generally, it's a bit hard (in 15 mins or more) to cite proof of the *absence* of state statutes/regs barring deadbeats/prisoners from marrying. Suffice it to say that, if there was anything remotely resembling the *existence* of such a traditional practice, the Govt in those cases presumably would have cited it, because it'd have been malpractice not to, even in front of those non-originalist courts.

Finally, of course normative judgments are always required, but in legitimate forms of interpretation that interstitial discretion should be cabined by meaningful legal constraints that are discernible *to those who disagree*, so that *everyone* at least has confidence that judges are trying in good faith to interpret the law rather than just ram their respective policy views down the throat of a captive country whenever they can count to five. Let's just that I have no such confidence about judges who would find "fundamental rights" even where flatly contradicted by tradition and with no basis in text other than the vague words "liberty" or "equal." By contrast, there are objectively verifiable constraints on expected-applications originalism that can be used to test legitimacy. This is why, for example, Scalia can't and won't say that the Constitution *forbids* abortion even in States that would allow it, whereas a judge with your jurisprudential methodology but conservative political preferences could easily invoke a majestic generality about the fundamental right "to life", mix in some "normative" analysis, ponder the transcendent dimension of liberty within the spatial dimensions in utero, and then invent a right not to be aborted so long as he had four co-conspirators.

Samuel Rickless said...

Just piling on in Mike's defense here. There was a long tradition of refusal to recognize interracial marriage. But Loving makes it quite clear that this tradition doesn't matter, at least in part because the right to marry is fundamental. So Loving is literally incoherent on the assumption that there is no more to fundamentality than history and tradition.

The idea that history and tradition should determine *anything* is just totally nuts. If there were a long tradition of kicking Jews in the shin, would that make it ok to kick Jews in the shin? Let's be serious.

Palko/Moore/Snyder articulate various criteria of fundamentality, not only history and tradition. A fundamental right is implicit in the concept of ordered liberty, such that an enlightened system of justice would be impossible without it, rooted in the traditions and *conscience* of our people. The latter criteria are explicitly either partly or wholly moral/normative. The whole *point* of the fundamental/non-fundamental distinction is to pick up on the fact that some rights are more important than others, in the sense that more is needed to justify infringing the former than is needed to justify infringing the latter. This is just obvious, really. The question in Palko, e.g., was really whether an enlightened system of justice requires that it be impossible for a State to try someone twice for the same offense when there was an error of law at the first trial. The Palko court said no. Maybe that was right, maybe it was wrong. No matter. The point is that fundamentality is about justice.

Samuel Rickless said...
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Samuel Rickless said...

Hash, if you can't tell the difference between a judge's "personal policy views" and "moral principles", then I strongly suggest that you go back to college or grad school and study some moral philosophy. Seriously. Morality permeates the bill of rights. It's all over the place. The very idea of a right is a moral idea. It's so obvious that you don't even see it. For example, take the claim that consent makes a search reasonable in the absence of a warrant. Why? Because consent involves the waiver of a right, and the concept of waiving a right is a moral concept. It's not a concept derived from history and tradition. Those who take it for granted that consent plays this kind of role in fourth amendment analysis are using ethical reasoning. And on and on. The same thing is true when the court says that freedom of speech does not include the freedom to engage in fraud or libel or false advertising or shouting fire in a crowded theater etc. This is despite the fact that the first amendment says that Congress shall make NO law abridging the freedom of speech. NO law. It wouldn't matter whether there were a long tradition of accepting false advertising or libel as a cost of doing business or living in a "free" society. The judgment that the right to free speech does not include the right to falsely advertise or commit libel is inherently normative. I could go on, but I need to go to sleep.

Hashim said...

Sam: I can tell the difference between a judge's personal policy views and his personal (and contested) views of moral principles, but it's irrelevant. Because the relevant difference is between what is required/prohibited by (even uncontested) moral principles and what is required/prohibited by the law. And if you can't tell the difference between those two, I suggest you go to law school, or simply read the pre-13A Constitution, under which slavery was still obviously immoral but even more obviously legal.

As for Loving, same-race has not been a traditional requirement of marriage in Anglo-American history or the even older tradition of marriage. It was a relatively recent constraint closely tied to this Nation's peculiar history with slavery/race, and one that was obviously unconstitutional under the equal-protection clause (the whole point of which to upend this Nation's traditions w/r/t race). So the mere fact that Southern states who ratified the 14A at the point of a sword engaged in massive resistance, and that this checkered tradition was insufficient to foreclose Loving's single-paragraph alternative holding, is hardly probative evidence that the traditional sine qua non of marriage in every society ever has been unconstitutional since 1868.

Finally, w/r/t the role of tradition in the 1A -- as opposed to a judge's free-floating personal conception of "morality" -- you may want to read US v. Stevens and Town of Greece v. Galloway.

Joe said...

there are objectively verifiable constraints on expected-applications originalism that can be used to test legitimacy

There are "meaningful restraints" other than this that can be used to test legitimacy, even if "expected applications" can be shown to work that well in practice. Both Scalia and Ginsburg in various ways as judges do not rule in ways they might vote as legislators.

Even if the "expected application" was not simply that broad text and understandings would greatly change over time as understandings of specific applications changed with new facts and experiences. Relying on "originalism" repeatedly in fact leads to more judicial activism, less restraints, than alternatives.

Also, what is "legitimacy" in the first place? "We the People" using current understandings to apply the text and overall principles of the Constitution, informed but not tied to history, seems to many the most "legitimate" means of republican government.

same-race has not been a traditional requirement of marriage in Anglo-American history or the even older tradition of marriage

The "relatively recent constraint" goes back to colonial days & racial (along with caste, religion & other divisions now deemed constitutionally suspect) generally speaking have ancient roots. In time -- the 1960s -- understandings changed enough along with legal and social norms for it to be deemed unconstitutional.

Likewise, over time, traditional aspects of marriage tied to sex roles changed & it was deemed unconstitutional to do what was once deemed basically "natural."

A range of things, over time, changed in respect to rights in this field, including premarital sex & use of birth control. As part of the whole, and separately as a matter of changing understandings as to sexual orientation generally, we have same sex relationships.

Now, some have pointed out that there is as strange as it might be to imagine a history of SSM over history. No matter. Taking marriage as understood in recent times & erasing animus filled views on homosexuals, same sex marriage is constitutionally protected.

This hasn't come out of the blue -- it has been a long developing process. It is helped by looking at right to marry precedents thru a lens of modern understandings of sexual equality. The responsible procreation argument does not work as a grounds to exclude them either.


Finally, w/r/t the role of tradition in the 1A -- as opposed to a judge's free-floating personal conception of "morality" -- you may want to read US v. Stevens and Town of Greece v. Galloway.

Kennedy wrote Galloway so appears to manage to apply tradition along with other things there & still find same sex equality a reasonable argument to make. "Tradition" that made same sex couples liable to be arrested notwithstanding.

The argument is not that free floating morality of judges, full stop, is what is being proposed is a straw argument.

Joe said...
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Joe said...

Edit: The last sentence is a bit garbled. Simply put, the alleged argument that a freestanding weighing by judges guided by their personal morality should be relied on is a strawman.

The argument is that evolving tradition along with other things will be used. And, so it was for the 1A, including when determining the breadth of "religious" liberty.

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Samuel Rickless said...

Hash: I am not saying that morality and law are the same thing. What I am saying is that moral concepts permeate the US Constitution, and this is something you can't avoid. What is "just compensation"? What is "cruel"? What are rights? How are they gained/lost? What is "unreasonable"? And so on. I am responding in large part to your claim that there is "folly" in unelected judges making "inherently normative judgments". Those judgments, when interpreting inherently normative language, are unavoidable. And then it does become important to distinguish between personal policy preferences and these judgments. Those are two completely different things. And this matters.

On 1A incitement (just to take one example), US v. Stevens refers to Brandenburg v. Ohio, which enunciates a rule (incitement to imminent lawless action) that was clearly stated as early as.... 1791?. Really? So what do we do with Whitney v. California? What do we do with a whole host of decisions that do not protect speech to the extent that Brandenburg does? What do we do with the fact that there was a huge *disagreement* about the constitutionality of the Sedition Act? I just don't think that the best reconstruction of the history of 1A involves a clear and unbroken history of acceptance of the Brandenburg principle, as well as other principles of 1A law. These principles are not grounded in history and tradition, but are quite plainly based on moral judgments. The first moral judgment is that no moral rights are absolute, even if the constitution explicitly says that there shall be no federal law abridging freedom of speech. And the next set of moral judgments sets the appropriate moral boundaries of the relevant right. I've done this for 4A already, and I have no doubt that I could do it relatively easily for 1A (though I've been busy with other matters).

Samuel Rickless said...
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Samuel Rickless said...
This comment has been removed by the author.
Samuel Rickless said...
This comment has been removed by the author.
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