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Thursday, October 02, 2008

Gay Rights: Equality or Due Process?

Update: this post originally posted before I finished drafting it.  What follows is the full version of the post.  Blame it on my technical skills.

A while back, Kenji Yoshino and Heather Gerken debated whether gay rights should be based on equality or liberty.  I'm a great admirer of Kenji's work, but I'm with Heather: equality it is.  As Tribe argued, we should rather see gay rights stand in the Brown (and Loving) line of cases than the Roe line.  Let me suggest why: Roe is a poorly-reasoned, poorly-written case that remains highly controversial. 

Indeed, the whole idea of "substantive due process rights" is suspicious to many, as is the enterprise of mining the Constitution for new rights.  "Equality" at least has the virtue of being somewhere in the document, in one form or another.

Yoshino is surely right when he argues that judges are wary of extending protections to "too many groups."  But aren't they also wary of recognizing "too many new rights"?  Moreover, the "too many groups" problem can be somewhat mitigated: at the very least, discrimination against gays can be thought of as a form of gender discrimination, an already-protected category.  This is true both formally (Jim can marry Pat, but only if Pat is a woman and not a man) and in terms of social norms and context.  Recognizing discrimination against gays as a form of gender discrimination might not accomplish all that gay rights advocates wish to accomplish, but it avoids the "too many groups" and "too many rights" problem.

All the same, this debate strikes me as a quixotic--one might say academic--endeavor.  Won't (and shouldn't) lawyers make both arguments, where appropriate?  And won't different judges choose among them as they see fit, or just continue to issue opinions that represent a hodgepodge?  I think this fits in with that other question we've been tackling here--what is the relationship between these academic debates and what goes on in courts and lawyers' offices?

Posted by Hillel Levin on October 2, 2008 at 03:11 PM in Hillel Levin | Permalink

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Comments

Great post --- I tend to agree. For an interesting take on the sexual orientation discrimination vs. gender discrimination, I recommend Zak Kramer's "Heterosexuality and Title VII" (forthcoming in the Northwestern Law Review). Here's the SSRN link:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1103095

Posted by: CBHessick | Oct 2, 2008 5:57:09 PM

"Indeed, the whole idea of 'substantive due process rights' is suspicious to many, as is the enterprise of mining the Constitution for new rights. 'Equality' at least has the virtue of being somewhere in the document, in one form or another."

If SDP seems oxymoronic, you can always turn to the Privileges or Immunities Clause for fundamental rights. That has the virtue of being in the document. So on the fundamental-rights front, there's a choice between (a) in the document, but not in the precedents, and (b) in the precedents, but not in the document.

Posted by: Chris | Oct 2, 2008 7:01:10 PM

Hillel, I think you made a typo. By "too man groups," did you mean to say "two man groups"? :-)

Posted by: John G. | Oct 2, 2008 7:20:11 PM

Can anyone explain to me how same-sex marriage can not be legal under the equal protection clause under the 14th Amendment? I have always wondered how not having access to things like "married-filing jointly" does not almost automatically make same-sex marriage legal. Well, either that that or the elimination of governmental bonuses for marriage.

Posted by: Rob Howell | Oct 2, 2008 8:49:43 PM

"Can anyone explain to me how same-sex marriage can not be legal under the equal protection clause under the 14th Amendment?"

Well, here's one explanation: the EPC is a guarantee of "protection of the laws," not a generic antidiscrimination provision.

Posted by: Chris | Oct 3, 2008 5:16:22 AM

It's been too long since I read it to give a good summary but at the time I was pretty impressed with the argument made by Evan Gerstmann in his nice book _Same Sex Marriage and the Constitution_ that the equality/EP argument wasn't as strong as a "fundamental rights" approach that argued that since there is a fundamental right to marry the partner of one's choice we'd need very strong reasons to keep homosexuals from marrying. My impression is that Gerstmann's book hasn't gotten as much attention as it should (despite a pretty positive review by Richard Posner in The New Republic when it came out) but that it's a careful and useful consideration of the issue.

Posted by: matt | Oct 3, 2008 9:24:23 AM

Instead of having this academic debate, wouldn't it make more sense to persuade legislatures to adopt laws that provide benefits for state citizens who actually request them? Why aren't law professors conjecturing arguments that will motivate legislators to provide for their citizens and uphold their duty to legislate rather than arguing in the abstract about what philosopher-king Herculean judges ought to do if they were appointed to a hypothetical Supreme Court by a hypothetical President in a hypothetical United States of America? And, isn't anyone else troubled by the notion that California's experiment in direct democratic deliberation over gay marriage would be curtailed by a Supreme Court opinion imposing gay marriage on the states as a matter of federal law? Why nullify actual public recognition to replace it with bogus and coerced public recognition that generates resentment?

Posted by: Jack Krevins | Oct 3, 2008 3:21:32 PM

Jack:

I think you are way off base. In fact, academics have put forth great efforts towards developing intellectual frameworks and practical fodder for fighting for gay rights in legislatures. Lots of people, and lots of academics spend a lot of time "persuad[ing] legislatures" on this topic.

You seem to have fallen into the trap of assuming that, because YOU hear about the court cases and the academic discussions of those court cases and doctrines, academics must not be engaged in anything else. But that's simply false.

As for whether my time drafting this post would have been better spent trying to persuade a legislature, I leave it to the readers to decide.

Posted by: Hillel Levin | Oct 3, 2008 3:36:10 PM

Obligatory self-promotion: See my review of Yoshino's book in the Michigan Law Review, or at my SSRN page at right.

Posted by: Paul Horwitz | Oct 3, 2008 3:40:03 PM

You seem to have fallen into the trap of assuming that, because YOU hear about the court cases and the academic discussions of those court cases and doctrines, academics must not be engaged in anything else. But that's simply false.

I don't believe I have fallen into that trap. But I do believe you have sidestepped the actual substance of my post. It was: "[I]sn't anyone else troubled by the notion that California's experiment in direct democratic deliberation over gay marriage would be curtailed by a Supreme Court opinion imposing gay marriage on the states as a matter of federal law? Why nullify actual public recognition to replace it with bogus and coerced public recognition that generates resentment?" The argument is not solely that court-centered academic debate is, well, academic, but that it is actually counterproductive and/or harmful to real social progress for gays.

Posted by: Jack Krevins | Oct 3, 2008 4:40:03 PM

Jack - Your argument - that we should lets states decide whether to extend equal rights to gay couples rather than impose such an obligation on them through the federal judiciary - is, without more, equally applicable to every judicially enforceable, federal right. Why not let states decide whether schools should be racially segregated? Why not let states decide whether blacks and whites should be permitted to marry? Why not let states decide whether the state can criminalize private, consensual sexual conduct between adults?

Most people believe that at least some such rights should not be up for grabs by shifting, state majorities. But instead, their revision depends either on (a) a dramatic shift in Supreme Court interpretation or (b) amendment of the Constitution. To carry more weight, your argument needs to explain why states should be permitted to resolve the gay marriage question via majoritarian politics, but why they should not be able to resolve the racial segregation question in the same way. I'm not saying there are not such theories - there are. But it's difficult to know how to respond to you without knowing why you think federal enforcement of this particular kind of equality right should not exist.

Posted by: Christian Turner | Oct 3, 2008 5:59:33 PM

Jack--

I'll add to Christian's point that it isn't only racial discrimination cases that would have to be distinguished; it is any other case in which a court rules that a majoritarian statute is unconstitutional.

Moreover, let's keep in mind that the California Supreme Court, like many state courts (and unlike the federal courts), is subject to majoritarian politics, at least in some respect. And in this case, so is the decision at stake, since it is now the subject of a ballot initiative--as the Court easily could have predicted. Indeed, all the Court did was shift the burden of inertia.

Finally, I take your point that moving through the courts breeds resentment to be a practical one. And indeed, it may be the case that gay rights advocates overreach when they go through courts, ultimately causing a backlash that overwhelms the gains they have made. But that's a tactical decision for them to make, and I don't think the evidence is on your side. It was because of the Massachusetts decision (and the threat of litigation in Connecticut), I think, that Connecticut's legislature adopted civil unions.

Personally, I think that gains made through legislatures will be more lasting and will indicate greater progress. But the courts have a role in that process, and I don't see anything untoward about gay rights advocates using the same tools that are available to all other individuals and groups.

Posted by: Hillel Levin | Oct 5, 2008 8:10:39 AM

You're absolutely right, Prof. Levin. Prof. Martha Nussbaum (in a review in the New Republic) has also noted that Yoshino's work does not get the law right in many areas:

"More troubling, since this is a book by a law professor, is that Yoshino seems to have relatively little interest in the law. He does not even state legal issues accurately. His treatment of the legal issues involved in the major gay-rights cases is cursory but not truly bad; the same cannot be said of his casual treatment of the legal issues surrounding disability and, above all, religion."

Posted by: Anon | Oct 5, 2008 12:47:58 PM

Why not let states decide whether schools should be racially segregated? Why not let states decide whether blacks and whites should be permitted to marry? Why not let states decide whether the state can criminalize private, consensual sexual conduct between adults? ... To carry more weight, your argument needs to explain why states should be permitted to resolve the gay marriage question via majoritarian politics, but why they should not be able to resolve the racial segregation question in the same way.

1. Precedent/Rule-of-Law. Those cases have already been decided. We do not need to revisit them. Not even hypothetically.

2. Magnitude of Harm. There is no pervasive caste system that subordinates gays economically. Nor was there ever.

3. Agreement with Professor Levin's pragmatism. As the professor puts it well: "[G]ay rights advocates overreach when they go through courts, ultimately causing a backlash that overwhelms the gains they have made. ... [G]ains made through legislatures will be more lasting and will indicate greater progress."

4. Lawrence. Lawrence may be analogous to Loving, in that they both dealt with criminal sanction. But gay marriage does not involve criminal sanction, and is much more like any case involving a claim of an economic or property right. Those cases routinely lose on rational-basis scrutiny.

I'll add to Christian's point that it isn't only racial discrimination cases that would have to be distinguished; it is any other case in which a court rules that a majoritarian statute is unconstitutional.

I disagree. But I will say that since the Supreme Court generally tracks public opinion polling, this rarely happens until a law is unpopular or the populace is sufficiently indifferent. That has yet to happen, as the many state constitutional amendments enacted in backlash show.

Posted by: Jack Krevins | Oct 6, 2008 5:47:02 PM

Jack--

No, I don't think we are in agreement at all. I think I was quite clear that, as a practical matter, it is POSSIBLE that a backlash will overwhelm whatever gains won in court; but that this is not, in fact, what we are seeing on the ground. To be sure, there are setbacks; but the overall picture has to be that gains made in courts and gains made in legislatures are mutually reinforcing.

Further, gay rights activists have been very careful in their chosen battleground states, focusing on states like California, Massachusetts, Connecticut, Vermont, New York, and so forth that have laws, courts, legislatures, and populations likely to be sympathetic and responsive. It is no accident that you haven't seen such challenges in federal courts.

It is also worth noting (again) that the people of California have the opportunity to speak clearly about what their Supreme Court has done, both in the upcoming ballot initiative and when the justices themselves come up for reelection.

Your "Precedent/Rule of Law" explanation is nonsensical. In order to make a claim about what the courts ought to be doing, it is useful--even necessary--to defend or critique what they have done in similar cases in the past. This is especially true in a system such as ours that depends on the development of precedent. Note that the very cases upon which gay rights advocates rely in building their own case are the ones that you refuse to revisit.

All of that said, I think an argument could be made that, under the federal constitution at least, these cases should fail. And I even think that a background presumption that majoritarian-enacted statutes operates. But I surely don't think that's the end of the case; nor do I think that courts should evince the hostility that you do towards gay rights advocates who are using the courts to advance their cause just like many other groups and individuals have before them.

Posted by: Hillel Levin | Oct 6, 2008 7:26:01 PM

"[A]t the very least, discrimination against gays can be thought of as a form of gender discrimination, an already-protected category. This is true both formally (Jim can marry Pat, but only if Pat is a woman and not a man). . . ."

But doesn't this analysis fall down the old analysis of 'discrminatory effect' versus 'facially discriminatory'? It would seem to me that the general opposite-sex marriage rule is gender-neutral (a person can only be recognized as married with a member of the opposite sex). It doesn't favor one sex over another. But, it has the *effect* of being discriminatory against those who seek to marry Patrick -- you, Jim, cannot marry Patrick because you are a man.

Thus, in light of the facially-neutral status of a opposite-sex only marriage law, wouldn't forcing the law into a gender-discrimination analysis solve the (EPC) problem by creating another?

Posted by: Aaron Williams | Oct 7, 2008 2:53:55 PM

Aaron--

Your argument would apply to Loving as well.

In that case, white people could marry white people, and black people could marry black people. That was formally discriminatory because whether you could marry someone turned on race. The same is true for same sex couples: whether they marry turns on gender. It is not facially neutral at all, because the statutes themselves speak of race and gender, respectively.

Posted by: Hillel Levin | Oct 7, 2008 3:28:46 PM

Hillel,

That's an interesting point. In my read of Loving, the court generally conceded that the law was neutral vis a vis both races, but nonetheless used enhanced-scrutiny because "the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the 'most rigid scrutiny'". That is, the law *was* neutral, but was struck down *in spite of* that neutrality because classifications based on race are "inherently suspect" and subject to heightened scrutiny.

Thus, simply because the Loving court chose to strike down the law treating both races the same does not mean that ALL laws treating race/gender/etc. the same are subject to the same scrutiny, or that neutrality is irrelevant. (Not to mention the fact that in Loving there was a criminal statute involved, whereas with opposite-sex only marriage laws we're speaking purely in terms of the conferring of a governmental benefit.)

One case I found recently, Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 274 (1979), said the following:

"When a statute gender-neutral on its face is challenged on the ground that its effects upon women are disproportionally adverse, a twofold inquiry is . . .appropriate. The first question is whether the statutory classification is . . . indeed neutral in the sense that it is not gender-based. If the classification itself, covert[or]overt, is not based upon gender, the second question is whether the adverse effect reflects invidious gender-based discrimination. In this second inquiry,impact provides an important starting point, but purposeful discrimination is the condition that offends the Constitution."

Thus, the question becomes how a particular homosexual plaintiff can show that opposite-sex marriage laws "reflect invidious discrimination" against his or her gender. But, by my logic, I can't decide if such laws reflect invidious discrimination against men or a women, and I don't think a court could either.

Posted by: Aaron Williams | Oct 7, 2008 4:12:09 PM

Aaron--

The Loving court could not have been clearer:

"There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. . . . At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny. . . . ."

In other words, racial classifications trigger strict scrutiny.

My argument is that gender classifications ought to trigger intermediate scrutiny. The question becomes whether heterosexist statutes can withstand intermediate scrutiny. There is no scientific answer to this question, and it can only be answered by reference to substantive and value-based arguments about the meaning of marriage and the nature of sexuality.

I'd further argue that heterosexist marriage laws punish men for failing to "behave like men" (and likewise for women) in a socio-normative sense.

All of that said, I do not mean to suggest that the federal courts likely will treat marriage laws through this lens; and I further do not mean to suggest that there are no cases on the books that offer doctrinal language that undermines these arguments. I mean only to suggest that the line from Loving to the same-sex marriage context is a fairly straight one.

Posted by: Hillel Levin | Oct 7, 2008 5:02:03 PM

Hillel, fair enough. It seems I took an 'is' for what really was an 'ought'. Thanks for being so willing to respond.

Posted by: Aaron Williams | Oct 7, 2008 6:28:40 PM

Your "Precedent/Rule of Law" explanation is nonsensical. In order to make a claim about what the courts ought to be doing, it is useful--even necessary--to defend or critique what they have done in similar cases in the past. This is especially true in a system such as ours that depends on the development of precedent. Note that the very cases upon which gay rights advocates rely in building their own case are the ones that you refuse to revisit.

It makes perfect sense in synthesis with my other points. Gays do not qualify for strict scrutiny in the same way discrete, insular minorities subject to a caste system do, for obvious reasons; they receive rational-basis scrutiny. You acknowledge this when you write "I think an argument could be made that, under the federal constitution at least, these cases should fail." Under that framework, I was quite clear that "Lawrence may be analogous to Loving, in that they both dealt with criminal sanction. But gay marriage does not involve criminal sanction, and is much more like any case involving a claim of an economic or property right. Those cases routinely lose on rational-basis scrutiny."

Your citation to Loving does no work against my analysis of Lawrence. It notes that strict scrutiny is especially appropriate when criminal sanction is involved. That is the very distinction that I make. I will also note that any number of economic/property cases analyzed under rational basis scrutiny lose under the Equal Protection Clause. Just ask a libertarian. In any event, I would suggest that gay rights activists should cite to cases that do not involve criminal sanction and do involve a claim for disbursement of funds or benefits due to over- or under-inclusivity of a program's eligibility requirements. A citation to Brown is a waste of paper and ink.

Posted by: Jack Krevins | Oct 7, 2008 10:45:03 PM

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