Online same-sex marriage symposium: Toward a more perfect analysis

This contribution to our online symposium on same-sex marriages comes from Ruthann Robson, Professor of Law and University Distinguished Professor from the City University of New York School of Law.  She teaches Constitutional Law as well as Sexuality and Law.   Her books include the three-volume edited set, The Library of Essays on Sexuality and Law, as well as Sappho Goes to Law School and Lesbian (Out)Law, and a forthcoming book on constitutional issues from Cambridge University Press.   She is the co-editor of Constitutional Law Professors Blog.

 If the Court takes certiorari in the “Proposition 8” case, now captioned  Hollingsworth v. Perry, or the DOMA consolidated cases, Massachusetts v. United States Department of HHS and Gill v. Office of Personnel Management, it should affirm the Ninth and First Circuit opinions in these cases.

 The easiest and perhaps most unlikely possibility for the Court would be to issue summary affirmances.  A summary affirmance would clearly dispatch the 1972 summary dismissal in Baker v. Nelson to the dustbin of precedent where it has long belonged.  Summary affirmances would also leave intact two closely reasoned and well-structured circuit court opinions.

Judge Reinhardt’s opinion for the Ninth Circuit panel in Perry v. Brown emphasized the unique posture of Proposition 8 as removing a right to marriage from same-sex couples.  Reinhardt’s opinion applied the heightened rational basis scrutiny of Romer v. Evans and found that Proposition 8 did not have a legitimate interest:  Proposition 8 “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”

Judge Boudin’s opinion for the First Circuit panel in Massachusetts v. United States Department of HHS and Gill v. Office of Personnel Management likewise applied the standard of heightened rational-basis scrutiny of Romer v. Evans, but emphasized DOMA as a federal statute.   The First Circuit evaluated the government interests explicitly articulated in DOMA’s legislative history as well as the interests proffered by BLAG, the Bipartisan Legal Advisory Group of the United States House of Representatives, concluding none of them were adequate.

Given the strong possibility that the Court will not avail itself of the simple but unsatisfying strategy of summary affirmances to affirm the Ninth and First Circuits, the Court should nevertheless attempt to emulate the circuit courts’ attempts at analytic rigor.  The Court should also attempt to provide future guidance in the form of clearly articulated constitutional standards.

The Court should explicitly rule that sexuality (or sexual orientation) is a quasi-suspect class, like gender, under equal protection doctrine.  The Court should also clearly (re)articulate the standard of scrutiny: the government interest must be at least important and the classification must substantially serve that interest.  Moreover, the Court should reiterate the language of United States v. Virginia (VMI): “The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations.”

The Court should then rigorously apply the equal protection standard, carefully considering the governmental interests supporting the original government action.  The government interest might not meet the “important” standard, or it might not be the “real reason” as the Ninth Circuit found in Perry, and as the Supreme Court found in Loving v. Virginia.  The Court should then consider whether or not any sufficiently important interests are actually and substantially served by the same-sex marriage prohibition.  Here, the interests regarding procreation and child rearing will suffer from drastic over- and under-inclusiveness.

Additionally, the Court should explicitly declare marriage a fundamental right under constitutional equal protection and due process doctrine.  The Court should also clearly (re)articulate the standard of scrutiny applicable to fundamental rights: the government interest must be compelling and the classification must be narrowly tailored to serve that interest.   Again, the Court should then rigorously apply the strict scrutiny standard, considering whether the proffered government interests are compelling, and even if they are, whether limiting marriage to “opposite-sex” couples is narrowly tailored to any of those interests.

The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor.  While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality.  Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.

Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions.  This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden.  However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.

Regarding the suggested holdings in the Proposition 8 and DOMA cases, the Supreme Court’s clear conclusion that sexuality merits intermediate scrutiny review, like gender, would disentangle the equal protection doctrine from the animus inquiry.  While certainly animus can be operative, the inquisition into intent invites protestations of moral belief or religious conviction.  The false opposition between equality and morals needs to be abandoned.  Additionally, the linking of sexual orientation and gender as quasi-suspect should lead courts to find classifications based upon gender identity, transgender identity, or gender nonconformity as similarly subject to intermediate scrutiny review.

Additionally, the Supreme Court’s definitive holding that marriage is a fundamental right meriting strict scrutiny review would extricate the issues from the federalism quagmire.  While marriage and other family matters have been posited as most obviously within the realm of state rather than federal power, as expressed by Chief Justice Rehnquist in the 1995 landmark Commerce Clause case, United States v. Lopez, DOMA is only one of thousands of federal statutes to govern marriage.   Indeed, an explicit declaration of marriage as a fundamental right might call into question the plethora of federal and state statutes that provide benefits and burdens on the basis of marital status.

For if the Court deemed the right to marry fundamental, then the concomitant right – the right not to marry – should likewise be fundamental.   Revived proposals to condition poverty assistance on marital status, as well as tax benefits and burdens based on marital status, would require strict judicial scrutiny.  While “marriage equality” advocates have often quelled the objections of more nonconformist LGBT activists with assurances that same-sex marriage will not mandate marriage, a judicial commitment to strictly scrutinize government laws channeling people into marriage might make the choice whether or not to marry less legally over-determined.  Although conservative advocates have been fretting over the next rung on the slippery ladder – such as plural marriage or man-goat marriage – the next marriage equality issue might well involve the rights of the unmarried.  Rigorous Court decisions in the “Proposition 8” and DOMA cases might not make such litigation less contentious, only less convoluted.