Posts Tagged ‘rational basis’

Reaction and Analysis to Prop 8 Decision: The View From Provincetown

August 5th, 2010 1 comment

Perhaps it’s the setting – I’m in Provincetown for Family Pride Week – but after slogging through the exhaustive and compelling opinion by Judge Walker in yesterday’s decision striking down Prop 8, I don’t feel like delivering a particularly analytical assessment.

Spending some time around the reality of all these gay and lesbian families and their de facto marriages, I’ve had a revelation that no amount of legal training could have prepared me for.

We in the mainstream LGBT movement do a lot of apologizing for our support of marriage equality, in the face of criticisms such as: “It’s too assimilationist, it’s the wrong fight, and oh! the banality of marriage.” Tell that to the thousands of happy, multi-racial, non-conforming families that pepper Commercial Street and its environs during the week. No, it’s not we who are banal: It’s the forces arrayed against us in their pathetic, doomed holding action who wear their banality like a crown.

Read the arguments that the Prop 8 proponents put forth, and that Judge Walker clinically (and mercilessly) summarized and destroyed yesterday: Marriage is for procreation; it fosters the optimal setting for children, and responds to the natural impulse that causes men and women to create new life by creating institutional support structures around supporting the children who are products of their sexuality. I can type these points as fast as my fingers will move, so rote and tiresome are they. They have nothing to do with the reality of actual families — and not just gay and lesbian ones — that thrive, whatever the sterile arguments against their existence pronounce. The proper question is: What arguments support excluding gay and lesbian families from the one universally recognized marker of commitment and mutual support? The answer, of course, is: none.

Judge Walker took the unusual approach of exposing the ritual pronouncements of the anti-equality forces to the withering glare of a trial: evidence needed to be adduced; witnesses called; arguments supported by facts. This, the Prop 8 proponents couldn’t do. Their factual case was based, at bottom, on the conjecture of David Blankenhorn, who acknowledged that marriage would be good for same-sex families – compare Maggie Gallagher, who won’t even concede this much – but then stated that it wasn’t worth the cost to traditional marriage, which would (somehow, likely, maybe) thereby be weakened.

In other words: Factually, they threw the case. And they paid a very heavy price for doing so: In eighty detailed findings of fact (many with numerous subparts) that ran to some 60 pages, Judge Walker dissected every admissible — as opposed to moral or religious — argument for and against marriage equality, and the results were unambiguous: Logic and fact overwhelmingly support marriage equality. Once the facts had been laid out, the treatment of the state’s justifications had the feel of a ritual execution.

The Prop 8 supporters’ only hope – but it’s a solid one – is that the Supreme Court will ignore the facts and do the following by-the-numbers legal analysis: Gays and lesbians aren’t entitled to a higher level of protection from courts than, say, milliners, and since rational basis scrutiny is very deferential, the side supporting the law usually wins. (There’s a compelling argument for affording the GLBT community more protection under the law, and the great, mostly overlooked accomplishment of the recent CLS v. Martinez case is that it establishes us as a community.) Walker made a compelling argument that Prop 8 can’t even clear the low rational basis hurdle, but the surest route to victory is through some kind of heightened analysis. (Walker made the case for heightened scrutiny for classifications affecting gays and lesbians, but explicitly stated that his decision was grounded in rational basis analysis.)

The Prop 8 proponents’ strategy might work, but – despite my skepticism about this case from the start – I’m starting to doubt it. Facts matter. The closest parallel here is to Iowa, where the trial judge’s exhaustive detailing of the facts led to a unanimous decision for marriage equality in the state supreme court’s later ruling in Varnum. And even a rational basis test demands some level of review; the Court has lately looked askance at laws that seem animated mostly by animus against a disfavored group. Without facts in support of the exclusion of gays and lesbians from marriage, the animus stands revealed. Indeed, anyone reading the Perry decision would come away convinced of the basal fear and loathing of gays that animated Prop 8.

I’ve been on this vertiginous ride for years now, so I can’t get too giddy about a win in Round 1 of any case. But every decision that lays bare the bankruptcy and exhaustion of the opposing side is another wrecking ball’s blow against an indefensible orthodoxy.

Does anyone, even the blusteriest members of NOM, really think this won’t all be over within a generation?

Parsing the Two DOMA Decisions

July 9th, 2010 2 comments

Big, good, and mostly expected news: Federal district court judge Joseph L. Tauro ruled tonight, in two separate cases (Commonwealth of Massachusetts v. HHS and Gill v. OPM), that section 3 of DOMA is unconstitutional. It’s late, and I’ve just slogged through all 75 pages of the decisions, but there are a couple of things that really jumped out at me.

First, I was reminded that these cases were brilliantly targeted at the weaker part of DOMA. Section 3 reads:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or wife.

In other words, DOMA takes the step — the historically unprecedented step — of creating a federal definition of marriage, which it then superimposes on the states’ own definitions, effectively limiting their legal and social effect. The two cases were brought by (1) the Commonwealth of Massachusetts itself; and (2) several legally married, same-sex couples living in Massachusetts. Their constitutional claims were quite different, but (as I’m about to show), connected in one vital respect.

Let’s start with the couples. Their claim is simple, elegant, and really irrefutable: Granting federal benefits and other rights to some married couples, but not to others, is about as clear and indefensible an exercise in the denial of equal protection as can be imagined. In Massachusetts, both opposite- and same-sex couples can marry, but the straight ones get the goodies and the gay ones don’t.

The judge didn’t find any need to apply any kind of heightened scrutiny to the case, because he found that the law didn’t even have a rational basis. In a case that repeatedly cited Romer v. Evans, the court ran through the purported congressional justifications for DOMA in record time (in part because the Obama defense team had abandoned them): encouraging procreation and child-rearing in the optimal setting, and conserving scarce resources. The other justification, which amounted to little more than “we must avoid the apocalypse” (“traditional notions of morality”) was brushed aside as insufficient to ground legislation, per both Romer and Lawrence v. Texas.

The one new justification that the government raised was protection of the status quo. The court demolished — I mean, demolished — this argument, noting that the “status quo” had been for the feds to recognize states’ definitions of marriage, so that DOMA radically changed that status. And the practice of recognizing, and deferring to, local law on marriage, had been unaltered throughout our history, even in especially contentious cases such as interracial marriage. That practice, in turn, was grounded in the long-standing recognition that marriage and family law is one of the most fundamentally state law issues of all.

In short, the court stated what everyone knows: DOMA was a panicked, hastily crafted law designed to shut down the marriage equality movement before it took hold. Rationality and deference to (what Congress considered) bad state law had no place in the discussion. If equal protection under the law means anything, it’s that laws fencing out classes of people need at least a plausible justification. This provision of DOMA has none.


The equal protection argument used to strike down DOMA in the couples’ case turned out to be pivotal in the Commonwealth’s case, too. This was perhaps the most surprising aspect of the court’s decision.

As to section 3, DOMA doesn’t state a legal basis for Congressional action; so the government had to come up with one. It chose the spending clause, which allows Congress to tax and spend for the the  general welfare. (DOMA is (to an extent) about benefits.) The other side of that coin, the court stated, is the Tenth Amendment; it reminds us that Congress only has those powers enumerated in the Constitution. So while respect is due Congressional determinations of their power to legislate, courts get to decide whether an enumerated power can fairly said to have been exercised, or whether the principles of federalism reflected in the Tenth Amendment require striking down the law.

The spending clause discussion turned out to be simple, because the Supreme Court, in a 1987 case, established some clear limitations on Congressional ability to tax and spend. One was fatal here: “the legislation must not be barred by other constitutional provisions.” Since the court had ruled in the couples’ case that DOMA violated the guarantee of equal protection, that limitation was exceeded. (The court also noted that many of the federal laws affecting “spouses” had nothing at all to do with benefits, or spending.)

The court could have stopped there, but didn’t. What followed was a textbook exegesis of “the new federalism” that the Supreme Court has aggressively pursued (almost always by 5-4 majorities) over the past fifteen years. By way of background, the court sailed through the history of marriage regulation, beginning in the pre-Constitutional period. It’s always been a state matter, Judge Tauro noted, so much so that whenever anyone in Congress thought that family law matters might be worth regulating, a constitutional amendment (that would vault over any other constitutional issues) rather than legislation was considered. Until DOMA.

The Supreme Court, too, has assumed that domestic matters were beyond federal power to regulate; in a recent case criticizing an expansive view of the commerce clause, the Court feared that such an approach could lead to federal regulation of “family law and other areas of traditional state regulation.

The government can defend that it’s not making Massachusetts do anything, and maybe that argument will prevail — the Court consistently distinguishes receipt of benefits (like the Medicaid ones that Massachusetts can’t get for its same-sex spouses as it can for its opposite-sex marrieds) from directly forcing an action. But the federal tentacles reach so pervasively throughout the state’s own administration that the Supremes might find a line from benefits to commandeering has been crossed. Particularly unsympathetic is the federal effort to stop VA-funded cemeteries in the state from burying the spouses of service members next to their deceased partners.

And even if the Supreme Court — where this case is surely headed — thinks it can make the benefits/commandeering distinction as a matter of logic, to allow this level of intrusion into state’s affairs would be hard for this Court to do with a, er, straight face. (That’s not to say it would surprise me, especially from this group of activist, expedient-driven justices.) And it still doesn’t get around the equal protection problem, which seems to me unshakeable.

Good night!