Symposium: Good faith and caution, not irrationality or malice

Andrew Brasher is the Solicitor General of Alabama.

As someone who currently defends the constitutionality of state laws for a living, I’m glad the Supreme Court has decided to grant certiorari. The constitutionality of Alabama’s law defining marriage as between one man and one woman is currently being litigated in all three of Alabama’s federal districts. The Court’s decision to duck this constitutional question in Hollingsworth v. Perry, but to strike down Section 3 of DOMA as unconstitutional in United States v. Windsor, has spawned so much litigation in so many different forums that it would have been irresponsible for the Court to avoid the issue again. If it’s unconstitutional for states to define marriage as between one man and one woman, then the Supreme Court, not lower courts of appeals, should tell us so.

That said, I think the most important issue for the states as states is not whether these particular laws are constitutional (though that is obviously an important question), but why they are or are not. Even before the Sixth Circuit upheld the marriage laws at issue here, the circuits had split on the question of why they believed state marriage laws were unconstitutional. Some circuits, like the Ninth, applied strict scrutiny based on the conclusion that homosexuals are a suspect class. Others, like the Fourth, found that the fundamental right to marry is the right to choose a spouse of either sex and, for that reason, subjected to strict scrutiny laws defining marriage as between one man and one woman. Many district courts, like the ones in Kentucky, Michigan, and Ohio, have found that man-woman marriage laws serve no legitimate state interest and fail even the lowest form of constitutional scrutiny – the rational basis test.

If the Court were to accept any of these arguments, it would obviously have serious implications for states beyond the particular issue of gay marriage. But the third line of argument is the most troubling to me. It is one thing for a court to find that a state law affects a suspect class or fundamental right, impose a high level of scrutiny, and hold the state to its burden to justify the law. It is another thing entirely for a court to hold that a state policy is so wrongheaded as to be beyond reason, even though it infringes no fundamental right and affects no suspect class. The former kind of ruling justifies itself by reference to constitutional principles that are, by definition, more important than whatever good-faith reason the state had for its countervailing policy choice; the latter kind of ruling indicts the state’s decision-making process itself as dysfunctional at best and, perhaps, malicious.

Regardless of its bottom-line conclusion on the constitutionality of man-woman marriage laws, the Court should at least reject the argument that these laws serve no legitimate state interest. The rational basis test is easy to meet. It is thus no coincidence that the Sixth Circuit is the first appellate court since Windsor to apply the rational basis test to state marriage laws and, also, the first appellate court since Windsor to uphold them as constitutional. Even the U.S. Department of Justice, which argued that DOMA was unconstitutional under strict scrutiny, defended DOMA as rational.

And the Sixth Circuit’s reasoning on this particular issue is highly persuasive. As the Sixth Circuit recognized, states are in the marriage business “not to regulate love,” but because of “the intended and unintended effects of male-female intercourse.” Accordingly, it is not unreasonable that many states’ marriage laws reflect an “awareness of the biological reality that couples of the same sex do not have children the same way as couples of opposite sexes.” The Sixth Circuit also acknowledged the state’s legitimate interest in adopting a wait-and-see approach “before changing a norm that our society (like all others) has accepted for centuries.” Are these compelling state interests narrowly served by traditional marriage laws? Debatable. Are they legitimate interests that are rationally related to traditional marriage laws? Of course they are.

To hold otherwise would heighten the rational basis test to the point that it would threaten a host of state policies. A rational basis test “with bite,” as some say, would be a welcome development for groups that cannot advance their agenda through the democratic process (which, by all appearances, does not include gay marriage advocates). But it would be bad news for state policymakers acting with majority support in areas that do not affect a fundamental right or suspect class. These are the areas where state policymakers deserve the freedom to respectfully disagree and where societal consensus should be achieved through the ballot box instead of the courtroom. As Justice Kennedy wrote last Term in another case from the Sixth Circuit, “[i]t is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

In fact, our system of federalism rests on the presumption that people in different states may rationally, legitimately, and freely disagree over the right way to resolve contentious issues. It recognizes, as the Sixth Circuit put it, that these differences of opinion do not make the people of Michigan, Kentucky, or Ohio a “monolithic group of hate-mongers” or the people of New York, Minnesota, or Maryland a “monolithic group trying to undo American families.” Diversity of opinion on important issues should be welcomed or at least tolerated. Absent a suspect class or fundamental right, the debate should not be squelched by a judicial declaration that one side is illegitimate.

The “why” question is something the Court more or less avoided in Windsor by mixing federalism talk with individual-rights reasoning. Every time the Court waxed philosophic about “state responsibilities for the defini­tion and regulation of marriage,” it included an important caveat – “subject to constitutional guarantees” – that it left undefined. It is good that the Court has agreed to explore what those constitutional guarantees may be. But I hope that, in doing so, it does not malign the majority of voters in a majority of states as irrationally prejudiced.