Posted by Dale Carpenter:
The hardest day of the cruelest month:
http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1153950668
For gay-marriage litigants, July has been the cruelest month. Prior to
today�s 5-4 Washington Supreme Court decision in Andersen v. King
County, there were two substantive state marriage decisions against
them (New York and Connecticut), one quasi-substantive federal
decision against them (the 8th Circuit, whose broad dicta went beyond
the state constitutional ban at issue), and three procedural decisions
against them upholding the propriety of ballot initiatives
(Massachusetts, Tennessee, and Georgia).
But this may turn out to be the hardest day of all. Andersen is the
most careful, closely reasoned, and comprehensive judicial opinion to
date rejecting constitutional claims to gay marriage. It is much
better, as a matter of conventional legal analysis and craftsmanship,
than the New York Court of Appeals decision in Hernandez v. Robles
rejecting gay-marriage claims a couple of weeks ago. Since the
principles and arguments on this issue from state-to-state, and even
in the federal courts, are not that different, the Washington decision
will deserve close attention from other courts. Among the courts next
to consider claims for gay marriage, the New Jersey Supreme Court in
particular should grapple with Andersen.
There is a bright spot for gay couples pressing litigation in the
Andersen decision. The court practically invites future litigation and
legislation resulting in a Vermont-style civil unions resolution,
granting the benefits and protections of marriage to gay couples
without the status of �marriage.� This seems the likely direction for
future litigation and legislative action in Washington and elsewhere.
Since I addressed many of the constitutional issues in earlier posts
reacting to Hernandez v. Robles I won�t go over all that territory
again. Instead, I�ll address here some of the distinctive features of
the Andersen opinion.
(1) While there was some speculation about possible political
motivations for the 17-month period to issue the opinion, it seems in
retrospect that the justices were simply taking the time to be very
careful on an opinion they knew history would judge them for: writing
and re-writing sensitive passages, negotiating with each other,
trading drafts among the chambers, waiting to see how other courts
might come out. The close result, and the opening paragraphs in
particular, chiding not just the dissents for the ususal abandonment
of legal principles but also the concurrence for needlessly extending
the opinions, suggests a court that was sharply divided over how to
proceed and struggling to reach broader consensus. Yes, judges can be
political and Machiavellian; but sometimes they�re just doing their
job as conscientiously as they can. In general, I�d be wary of the
conspiracy theories about courts that spring up from the populist
resentment of judicial activism.
(2) Unlike the New York Court of Appeals, the Washington court dealt
substantively with the question of suspect-class status for gays under
equal protection principles. It also avoided the bizarre
contextualized analysis of the issue the New York court gave us, and
instead dealt with the question whether gays generally constitute a
suspect class.
The Andersen court is more confident about the elements of the
suspect-class analysis (history of discrimination, immutable and
usually irrelevant trait, and political powerlessness) than I think is
justified, but its rejection of heightened scrutiny is certainly
defensible under the precedents. It acknowledges, as every court
addressing the issue has, a history of discrimination against gays.
But it says the trait defining the class is not immutable, and seems
to hold that immutability is essential to heightened scrutiny. Both
halves of this holding are questionable. The Andersen court isn�t
clear what it thinks the �defining trait� of this class is �
homosexual acts or homosexual orientation � and this ambiguity muddies
things a bit. If homosexuals acts are the �defining trait,� it�s not
immutable; if homosexual orientation, the best evidence is that it is
immutable or very close to immutable. It�s also not clear that
immutability is even required, as opposed to one factor among many to
be weighed, in the analysis of which groups get heightened scrutiny.
The Andersen opinion also shows how legislative advances for gays are
a double-edged sword in litigation over marriage. Some courts
upholding gay-marriage or civil unions claims have cited legislative
progress � eliminating sodomy laws, making adoptions more widely
available, passing employment non-discrimination laws � as evidence
that times and attitudes are changing and as support for the idea that
the legislature has no very good reason to withhold this last bit of
progress from them.
In Andersen, by contrast, the court cites legislative progress as a
reason to deny gays suspect-class status, on the dubious theory that a
truly powerless group wouldn�t have made such democratic progress.
This part of the analysis is questionable, since historical work by
William Eskridge and others has shown that groups tend to get
heightened scrutiny only after they�ve made legislative progress. And
once they�ve gotten suspect class status, they don�t lose it simply
because the legislature begins to take their concerns seriously.
I have always thought there was room for a good suspect-classification
argument, but there�s no doubt the weight of precedent is on the side
of the Andersen court.
(3) On whether the plaintiffs have a fundamental right to marry, the
Andersen opinion is also better than Hernandez. It avoids directly
resolving the level-of-generality problem, i.e., is the issue a
�fundamental right to marry� or a �fundamental right to marry a person
of the same sex�? Instead, it resolves the issue in good lawyerly
fashion by looking closely at the Supreme Court�s cases dealing with
the fundamental right to marry, including cases the New York Court of
Appeals ignored, like Turner v. Safley (involving marriage for prison
inmates). Andersen reads these cases as linking marriage to
procreation. That�s not the only way to read the precedents and it
doesn�t make much sense of the modern conception of marriage, but as
an interpretation of doctrine it�s defensible and perhaps the best
view.
(4) Once it rejected any reason to apply heightened scrutiny to the
exclusion of gay couples from marriage, the Andersen court applies a
standard rational-basis review. The court rightly describes this form
of review as �extremely deferential� and granting the state �nearly
limitless� power to make policy as it sees fit. Here, the court does a
much better job than did Hernandez explaining why it�s
constitutionally rational for the state to create a special status for
heterosexual couples. The underinclusiveness and overinclusiveness of
the classification in relation to the claimed interests � promoting
procreation and child welfare � are very poor policy reasons to
exclude gay couples from marriage, and the court implicitly recognizes
this at several points in the opinion. But they�re sufficient for
traditional rational basis review, absent some good indication of
animus. The court explains � unlike the New York court -- that the
issue is not whether excluding gay couples from marriage advances
these interests in any way (the exclusion of gay copuples does not
plausibly advance them) but whether including straight couples in
marriage advances these interests (it clearly does).
(5) Andersen quickly, and I think correctly, dismisses the claim that
due process �privacy� interests command the inclusion of gay couples
in marriage. Marriage is not a purely private matter, though important
aspects of the marital relationship are private and it is an intensely
personal experience for couples and families. Marriage is full of
public benefits and privileges that make it a public investment and a
matter of public concern.
(6) The Washington opinion also rejects the sex-discrimination
argument much more convincingly than did the New York court. Andersen
does as good a job as I�ve seen in a judicial opinion of refuting �the
Loving analogy,� which suggests that excluding same-sex couples from
marriage is constitutionally analogous to excluding interracial
couples from marriage. Moreover, the opinion deals not just with the
formal aspects of the sex-discrimination argument (marriage laws
classify on the basis of sex) but also with the sociological claim
(that marriage laws have the impermissible purpose or effect of
perpetuating gender stereotypes). The sociological claim about gender
stereotypes seems a crabbed view of marriage, its public purposes and
effects.
(7) Finally, there�s a potentially significant passage in the middle
of the opinion that might get overlooked on a first read:
We do not dispute that same-sex couples raise children or that the
demographics of "family" have changed significantly over the past
decades. We recognize that same-sex couples enter significant,
committed relationships that include children, whether adopted,
conceived through assisted reproduction, or brought within the
family of the same-sex couple after the end of a heterosexual
relationship. We do not doubt that times have changed and are
changing, and that courts and legislatures are increasingly faced
with the need to answer significant legal questions regarding the
families and property of same-sex couples. (Citations omitted).
We are also acutely aware, from the records in these cases and the
briefing by the plaintiffs and the amici supporting them, that many
day-to- day decisions that are routine for married couples are more
complex, more agonizing, and more costly for same-sex couples. A
married person may be entitled to health care and other benefits
through a spouse. A married person's property may pass to the other
upon death through intestacy laws or under community property laws
or agreements. Married couples may execute community property
agreements and durable powers of attorney for medical emergencies
without fear they will not be honored on the basis the couple is of
the same sex and unmarried. Unlike heterosexual couples who
automatically have the advantages of such laws upon marriage,
whether they have children or not, same-sex couples do not have the
same rights with regard to their life partners that facilitate
practical day-to-day living, involving such things as medical
conditions and emergencies (which may become of more concern with
aging), basic property transactions, and devolution of property
upon death.
Lest you think these are just crocodile tears from a gutless court
delivering gay couples to the tender mercies of the heartless
legislature, the court continued:
But plaintiffs have affirmatively asked that we not consider any
claim regarding statutory benefits and obligations separate from
the status of marriage. We thus have no cause for considering
whether denial of statutory rights and obligations to same-sex
couples, apart from the status of marriage, violates the state or
federal constitution. (emphasis added)
This qualification is repeated at the end of the opinion, along with
another recitation of the ways the denial of marriage harms gay
families and with a strong suggestion that �the legislature may want
to reexamine the impact of the marriage laws on all citizens of this
state.�
To the state legislature, the message seems to be this: �Get moving on
addressing the hardships faced by gay couples and their children, some
of which we�ve listed for you. You don�t have to give them marriage
and maybe not even all of the rights of marriage, but something needs
to be done. If you don�t act, we might.�
To gay-marriage litigants, the message seems to be this: �Go to the
legislature and see what can be done about the sorts of problems
you�ve identified and that we agree exist. If the legislature is
unresponsive, come back to us not with a claim for the status of
marriage, but with a remedial claim for the benefits and protections
of marriage for your families.�
My guess is that this twin message was necessary to get the five votes
needed to uphold the state�s marriage laws.
I�ve said before that courts confronting gay-marriage claims may now
see three choices: (1) ordering full marriage (Massachusetts); (2)
denying the claims (New York); and (3) compromising on civil unions,
with instructions to the legislature to decide on implementation
(Vermont). Choice #3 involves many complications and permutations, but
it seems that the Washington court would like very much to give it a
try. It�s a sensible direction for litigants, legislatures, and
courts.
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