Thursday, June 27, 2013

Winning ugly: the Court's same-sex marriage rulings, Part I

I don't take naturally to blogging, as will be obvious to anyone who's tried to follow this blog since its inception earlier this year.  I suppose I'm too verbose for the blogging format; I persist in thinking that lots of things are too complicated to explain adequately in a few quickly composed paragraphs.  That, and I'm not a very good on-the-spot thinker.  It usually takes me a while to organize my thoughts enough to say something even marginally worthwhile and to say it well.

And then sometimes there's an additional problem:  I find myself feeling profoundly ambivalent about something I know I should post on, and thus struggling for something incisive to say about it.

This is the difficulty with the Supreme Court's same-sex marriage rulings yesterday, and it's the reason I haven't managed to post about them until today.  As someone who supports gay rights (including same-sex marriage) in a moral sense, and who believes they properly find some protection in the Constitution in a legal sense, I celebrate yesterday's results.  But as someone who cares about legal craft -- about not just what courts decide but how they decide it and justify that decision in writing -- I'm disheartened by the decisions that produced those results.

To indulge a sports metaphor, these were ugly wins for gay rights.  The best team won, but it relied on sloppy play and some questionable calls by the umpires.

And to make matters worse (or at least more complicated), there are, on reflection, very good reasons for the sloppiness of the decisions, or at least for most of it.  It may in fact be the case that winning ugly was the only way to win at this stage of the game.

In this post, I want to focus on what is in some ways the most frustrating of the two decisions:  United States v. Windsor, in which the Court, by a five-to-four vote (dividing along predictable ideological lines), held that part of the federal Defense of Marriage Act (DOMA) violates the Constitution's equal-protection guarantee.  Unlike in the other case, Hollingsworth v. Perry -- more on Perry in a subsequent post -- the Court in Windsor directly resolved the core constitutional issue posed by the litigation.  The frustrating part -- the ugly part -- is the reasoning (if it can be called that) that the Court, in the person of Justice Anthony Kennedy, used to resolve the issue.  Kennedy's opinion was, with all due respect (and much is in fact due -- again, stay tuned), so thinly reasoned and so riddled with red herrings that I would have required a rewrite if it had been a student paper.

The DOMA provision invalidated in Windsor in essence prohibited recognition of same-sex marriages for purposes of federal law.  The plaintiff, Edith Windsor, married her same-sex partner in Canada while both were residents of New York; New York law recognized their marriage as valid (and has since been changed to allow same-sex marriages to be performed in that state).  When Windsor's spouse died, Windsor, thanks to DOMA, was denied the federal estate-tax exemption that applies to surviving spouses.  She paid the resulting $363,000 tax and then sued the government, claiming DOMA's denial of her tax exemption violated her constitutional right to the equal protection of the laws.

A majority of the Court -- Kennedy, joined by the four Justices on the center-left of the Court (Ginsburg, Breyer, Sotomayor, and Kagan) -- agreed with Windsor.  But Kennedy's opinion for the majority meandered blithely around the central issues and stated its conclusion almost as fiat.  Reading it reminded me of long car trips taken with my family as a kid; I'd be half-asleep for most of the way, lulled into drowsiness by the rhythmic hum of the engine, and would awaken suddenly to find us at our destination, with little clue about exactly how we got there.

The maddening haziness of Kennedy's opinion can only be appreciated against the backdrop of the standard analysis the Court is supposed to apply in these cases.  Windsor claimed a violation of equal protection, that is, an unjustifiable difference in the way she (and others similar to her) are treated by the government in comparison to some other group of people.  (The right to equal protection is guaranteed against the state and local governments by the Fourteenth Amendment and, by implication, against the federal government by the Fifth Amendment.)  Of course, not every difference in the way the government treats two or more groups of people is a violation of equal protection; after all, just about every law differentiates between people in some way.  So the Court over the years has devised a system of "tiers" or levels of scrutiny for assessing equal-protection claims.  If the differential treatment is based on a "suspect" classification -- race, ethnicity, or national origin -- the Court will apply "strict scrutiny" to the law, meaning the government bears the burden of demonstrating that the differential treatment is necessary (or "narrowly tailored") to serve some "compelling" governmental interest.  If the treatment is based on a "quasi-suspect" classification -- currently only sex or gender -- the Court will apply "intermediate" scrutiny, meaning the government bears the burden of demonstrating that the classification is "substantially related" to some "important" objective.  And if the treatment is based on any other type of classification -- any "non-suspect" classification -- the court will apply only "rational basis" review, under which the party challenging the law (not the government) bears the burden of demonstrating that the classification lacks a rational relationship to some legitimate governmental objective.

The first thing the Court usually has to decide in an equal-protection case, then, is which level of scrutiny to apply -- that is, whether the classification used by the challenged law is "suspect," "quasi-suspect," or merely "non-suspect."  For many types of classification the Court has made this decision already.  Classifications based on race, for example, have long been labeled "suspect" and subjected to strict scrutiny.  Classifications based on gender have been subjected to intermediate scrutiny since the mid-1970s.  But once in a while, a new type of discrimination claim comes along, and the Court must decide -- or at least should decide -- which tier of scrutiny to apply to it.  This the Court typically does by assessing various relevant factors:  Has the trait in question historically been the subject of irrational discrimination?  Is it in some way an inborn or immutable trait?  Does the group of people who possess that trait typically lack political influence in a way that is disproportionate to its numbers?

Claims of sexual-orientation discrimination are, relatively speaking, a "new" type of equal-protection claim -- newer, in any event, than claims of race discrimination (which have been around since the inception of the equal-protection guarantee in 1868 and which in fact inspired that guarantee) or of gender discrimination.  The Court first directly assessed a claim of sexual-orientation discrimination in the 1996 case Romer v. Evans.  In that decision, the Court -- in an opinion, it will be noted, written by Justice Kennedy -- held invalid a provision of Colorado's state constitution, added by popular initiative, that purported to bar homosexuals from bringing claims of employment or housing discrimination.  But the Court did not go through the usual analysis regarding which tier of scrutiny should apply to laws that discriminate based on sexual orientation.  Instead the Court simply applied the (supposedly) most-lenient tier of scrutiny -- rational-basis review -- and struck down the law on the grounds that it must have been motivated by animosity toward homosexuals as a class, and that mere animosity toward a politically unpopular group cannot be a sufficiently "legitimate" interest to survive even the deferential rational-basis test.

In 1996, when Romer was decided -- and, not coincidentally, when DOMA was approved by Congress and signed into law by Bill Clinton, a Democratic President -- it seemed understandable that the Court would want to dodge the question of whether sexual orientation qualifies as a "suspect" classification.  Subjecting sexual-orientation discrimination to strict scrutiny would have put it on a par with racial discrimination, a practice recognized by virtually everyone as presumptively evil and indefensible.  But the moral status of sexual-orientation discrimination was a source of deep cultural division in 1996.  For the Court to have taken a stand on that issue would have risked a cultural and political backlash against its ruling, perhaps one similar to the massive resistance that followed the 1954 desegregation rulings or to the rise of the religious right (partly) in response to 1973's Roe v. Wade.  Given that a slim majority of the Court in 1996 had significant qualms about discrimination against homosexuals, it may well have made good sense for that majority to proceed cautiously, invalidating examples of that discrimination on a case-by-case basis and avoiding any broad, dramatic pronouncements about the moral status of homosexuality.

All of which brings us back around to the Windsor decision.  Eighteen years have passed since the Court's tentative foray into the realm of gay rights in Romer.  During that period, the Court has invalidated the only other anti-gay law it has assessed, a Texas statutory regime prohibiting same-sex sodomy, in 2003's Lawrence v. Texas.  (The majority in Lawrence rested its decision on the constitutional right to due process of law, not the guarantee of equal protection, but the analysis otherwise closely resembled that in Romer.)  More to the point, public opinion has shifted monumentally since 1996, with survey after survey indicating that most Americans today favor not only gay rights in a general sense, but (by a smaller margin) same-sex marriage in particular.  Twelve states and the District of Columbia now permit same-sex marriage, with others sure to follow.  In Romer and again in Lawrence, Justice Antonin Scalia warned of the grave logical consequences likely to flow from those decisions, including -- gasp! -- recognition of a constitutional right to same-sex marriage.  That warning might have sounded scary to most people in 1996; it probably frightened a good number of folks in 2003; but today it would be greeted with a casual "ho-hum" by a majority of Americans.

And yet, despite this seismic shift in public sentiment, Justice Kennedy's opinion for the Court in Windsor includes not a jot of discussion about whether heightened scrutiny should, finally, be applied to laws that discriminate based on sexual orientation.  There is no discussion of whether disapproval of homosexuality is irrational.  There is no mention of the long history of discrimination against homosexuals.  There is no engagement with the question whether homosexuality is an immutable trait or with issues of relative political power.  Zero, zilch, nada.  Justice Kennedy simply eases, unexplained and undefended, into an application of the most lenient form of judicial scrutiny -- rational-basis review -- just as he did almost two decades earlier in Romer.

But that's not the worst of it.  We would expect that the Court, having settled by default on rational-basis review, at least would carefully apply that level of scrutiny and clearly elucidate its application of it.  Once the Court settles on a particular tier of scrutiny, it then (in the usual course) must engage in a three-step process of actually scrutinizing the law in question.  First it identifies the governmental interest or interests that might justify the challenged classification; then it asks whether those interests are sufficiently rational (under rational-basis review) or important (under intermediate scrutiny) or compelling (under strict scrutiny); and then, if the government's interests pass muster, the Court determines whether the challenged classification itself is closely enough related to those interests (merely rationally related under rational-basis review or, as we move up through the tiers, "substantially related" or "narrowly tailored").

Remarkably, Justice Kennedy's opinion in Windsor does none of these things.  There is no serious discussion at all of what Congress' objectives in enacting DOMA might have been, and thus no assessment of whether those objectives are legitimate or of how well DOMA serves them.  There is, instead, a conclusion that DOMA was motivated by "animosity" toward homosexuals as a class -- or perhaps by mere "moral disapproval" of homosexual status or conduct; Kennedy lumps together the two arguably different phenomena -- backed by painfully little evidence.  Romer established that mere "animosity" toward homosexuals as a class is not a legitimate governmental interest; Lawrence added that "moral disapproval" of homosexuality is not by itself a legitimate basis for legislation.  So, if in fact DOMA cannot be explained by anything other than mere "animosity" or "moral disapproval," its objectives are illegitimate and it fails even the normally deferential rational-basis level of review.  But we would expect the Court to proffer some pretty strong evidence that in fact animosity or moral disapproval did motivate the challenged law.

Such evidence might assume one or both of two forms.  It might be direct evidence of animosity or moral disapproval, such as homophobic statements by legislators.  Or it might be indirect evidence, such as the lack of any other rational explanation for a law.  Justice Kennedy nods towards both types of evidence in his Windsor opinion.  But it is only a nod.

Kennedy cites legislative history in which DOMA proponents lauded "the institution of traditional heterosexual marriage" and decried same-sex marriage as "truly radical" (Jeff Spicoli, R-California?).  And yes, there is a House report expressing "moral disapproval of homosexuality."  But "moral disapproval" can mean many things; "the institution of traditional heterosexual marriage" might be defended in many ways.  The core question of Windsor -- the core question of gay rights writ large -- is whether there is any substance beneath these platitudes and buzzwords that does not offend the Constitution.  Can it really be the case that a statute is doomed as soon as some legislator echoes the phrase "moral disapproval"?  Shouldn't the Court be looking beneath the verbiage to the underyling moral issues:  Is one's sexual orientation a legitimate basis for unequal treatment?  Is same-sex conduct between consenting adults a protected exercise of liberty?  To dismiss the entire statute on the grounds that some members of Congress used moral language in supporting it is to trivialize the competing moral and legal arguments, including the claim to equality brought by Edith Windsor on behalf of many others.  Windsor's claim is not that she is offended when legislators refer to her same-sex relationship as immoral.  Her claim is that her relationship, in the eyes of the Constitution, is not immoral, at least not in any way that justifies the state in punishing or disadvantaging that relationship.  Windsor's claim is that her status as a lesbian, and the consensual conduct that is an expression of that status, are constitutionally protected from impairment or discrimination by the government.  Aside from some glowing phrases lauding the "dignity" of loving relationships (including, by implication, same-sex ones), Kennedy's opinion is notably and disappointingly devoid of any serious consideration of these claims.  And they deserve, at least, to be taken seriously.

Of course, Kennedy's disregard of any serious moral engagement applies equally to both sides:  He also fails to address fairly the potential arguments for the government on behalf of DOMA.  (The government itself, it should be noted, did not choose to make these arguments; the Obama administration, through its Attorney General Eric Holder, declined to defend DOMA's constitutionality.  That task was left to the ["]Bipartisan["] Legal Advisory Group (my scare quotes), a collection of members of Congress who volunteered to defend the statute on the government's behalf.)  As I mentioned above, the lack of any other rational explanation for a law might serve as indirect evidence that it is in fact motivated by some illicit purpose, such as a mere desire to harm a politically unpopular group of people.  The way to assess this kind of indirect evidence, of course, is to actually identify and consider the possible rational explanations for the law.

But Kennedy's opinion does none of this.  Instead, he offers as indirect evidence of DOMA's illicit purpose ... wait for it ... the fact that DOMA intrudes in an area of regulation, namely marriage, that has traditionally been left to the state governments.  This might conceivably be a reason to invalidate DOMA on federalism grounds -- that is, on the basis that the power to regulate on this subject belongs solely to the states and not to Congress.  But as evidence of an illicit purpose lurking behind DOMA, it is simply a non sequitur.  Education is another area of regulation that has, until recently, traditionally been left to the states; but that doesn't mean that the federal No Child Left Behind Act, whatever its (considerable) flaws, was motivated solely by the desire to harm some politically unpopular group.  Whether Congress is interloping on ground reserved for the states is simply irrelevant to the question whether Congress has some illicitly discriminatory purpose behind its actions.

So Justice Kennedy's opinion for the Court in Windsor is, to say the least, an example of patently sloppy craftsmanship.  It perpetuates the Court's ongoing failure to address the supposedly foundational question of which tier of scrutiny should apply to sexual-orientation discrimination.  In applying rational-basis review by default, it fails to take seriously the government's potentially legitimate interests behind DOMA, and in doing so trivializes the plaintiff's claims and the moral debate they reflect.  And, seemingly just for fun, it smuggles in federalism norms that have no earthly business in an opinion about equal protection.

But so what?  What does it matter which level of scrutiny the Court uses or how carefully it applies that scrutiny, so long as it strikes down the discriminatory law?  An ugly win is still a win, after all.

Well, not exactly.  Sloppy Court decisions, like well-reasoned ones, become precedents.  A decision mandating strict scrutiny in all future cases of sexual-orientation discrimination -- or at the very least carefully assessing and rejecting the potential rationales for such discrimination under rational-basis review -- would raise the bar for lower courts, for legislatures, and for future Supreme Courts, not all of which necessarily will be as sympathetic to gay rights as the Court's current five-Justice majority.  Future plaintiffs would have a much easier time challenging sexual-orientation discrimination; future governments would have a much harder time defending it.  But the approach taken in Windsor, and inspired by Romer and Lawrence, relies almost entirely on the discretion of whichever judge or collection of judges happens to be applying it; it is an "I know it when I see it" approach.  When exactly is a law that happens to disadvantage homosexuals a product of mere "animosity" or "moral disapproval," as opposed to a reasonable means of achieving some legitimate governmental objective?  We had better hope future courts (and Courts) know it when they see it.

Thus far I've focused on the "ugly" part of Windsor.  But what about the "win" part?  Is there anything redeeming to be said about the decision from a gay-rights perspective, or for that matter from the perspective of someone who cares about legal craft?  Anything more, that is, than the obvious fact that one troublesome example of sexual-orientation discrimination has been stricken from the books?

There is; and indeed, to one way of thinking Kennedy's Windsor opinion is both a precision strike for gay rights and a stealthy masterpiece of judicial ingenuity.

I noted above the fear of backlash that likely motivated the Court's reticence in the 1996 Romer decision; I also emphasized the fact that public opinion has evolved rather significantly since then.  Allow me to suggest now that the evolution of public opinion has not eliminated the threat of backlash and may even have exacerbated that threat.  There is political momentum in favor of gay rights, including same-sex marriage, and barring some external influence there is no reason to think that momentum won't continue.  But there is reason to think that dramatic Supreme Court decisions sometimes serve as jarring external influences in these circumstances.  Many have argued that political momentum would have resulted in widely available legal abortions in most states without the Court's intervention in Roe v. Wade; that intervention may actually have set back the cause, mobilizing a coalition of conservative Catholics and fundamentalist Protestants and setting the stage for the "Moral Majority," the election of Ronald Reagan in 1980, and the gradual erosion of abortion rights that has occurred in the forty years since Roe.  A highly visible judicial deus ex machina in the arena of gay rights might have the same counterproductive effect.  It might energize the opponents of gay rights, slowing or even reversing the current trend in their favor.  If that is the endgame, one less DOMA along the way would turn out to be a lonely Pyrrhic victory.

Or so, in any event, the five pro-gay-rights Justices on the Court might have thought.  If this was their thinking, then they found themselves in something of a bind in Windsor (and in Perry as well; more on that in my next post).  The case was an opportunity to push the needle forward on gay rights, to establish another precedent that, alongside Romer and Lawrence, would demonstrate that the Court takes gay equality seriously.  But too dramatic a blow, too broad a decision, would risk a self-defeating backlash.

The answer:  Write an opinion that strikes down DOMA, that sends a strong signal of disapproval of sexual-orientation discrimination, but that avoids taking stands on the most-divisive moral issues or setting a precedent that would put "traditional" marriage instantly at risk in the many states that still prefer it.  Write an opinion that invokes otherwise-irrelevant federalism values as a reed on which states that prohibit same-sex marriage can hang their arguments -- a formal basis on which it can be claimed that Windsor was really only about federal discrimination against same-sex marriage.  Write an opinion that more or less simply assumes an illicit motive of animosity behind DOMA without getting its hands dirty digging through the contested moral positions that the label "animosity" conceals.

Write the opinion, in other words, that Justice Kennedy actually wrote in Windsor.

Maybe I'm overthinking this.  (It's a sin of which I'm often guilty.)  But it strikes me that there is some inner beauty hidden beneath Windsor's superficial ugliness.  At first read, Kennedy's opinion for the majority is a keystone-cops routine of slipshod legal reasoning.  But below its surface, it just might be a tour de force of pragmatic judicial statesmanship.

Maybe, sometimes, winning ugly is the only way to win.  On this issue, time will tell.

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