"The Lord gave, and the Lord hath taken away": a Jobian analysis of gay marriage in America

A frightening look at how a changed Supreme Court might strip LGBT Americans of marriage rights. You can find previous writing by Bill from White Plains here. -promoted by desmoinesdem

If there is one group whose rights may be most immediately at risk following the election of Donald Trump to the Presidency of the United States, it isn’t refugees, or Muslims, or Mexicans, or women. It is those who are wed to their gay partners. The reason for that has a lot to do with a really poorly written and poorly reasoned United States Supreme Court ruling finding restrictions on marriage to those of different genders unconstitutional.

The ruling, Obergefell v. Hodges, does a couple of really bad injustices to gay married couples.

First, it employs the bad reasoning used in Roe v. Wade – finding unwritten “penumbras” in the Constitution that, in turn, say (without saying) Americans have rights of privacy. It does so with just flamboyance that it re-sets a target that for the 43 years that Roe has been in-place has largely been untouchable. Second, it ignores the very constitutional, very relevant issue that was actually on appeal, and instead addresses a more sweeping, and less constitutionally significant question that was as random as some future case overturning it will raise.

As I expressed in an earlier piece. “How Roe v. Wade came to be and why it won’t be overturned,” the thing Roe v. Wade has going for it is the fact the ruling, itself, was based on 80 years of case precedents, all containing a dubious jurisprudence, regarding the notion of a right of privacy that is not written anywhere in the United States Constitution. Likewise, Roe has going for it the fact that over the course of the past 43 years, in all variety of factual scenarios in several states, the fundamental proposition that abortion in most circumstances is Constitutional, based on the due process clause of the 14th Amendment.

The United States Supreme Court’s determination that gay marriage is constitutional does not have the benefit of either 80 years of prior precedents, or much of any case law upholding it in any context.

In order to get a flavor of what went wrong with the United States Supreme Court’s decision in Obergefell v. Hodges, a 2015 decision proclaiming that state-enacted counterparts of the Federal Defense of Marriage Act (DOMA) are unconstitutional under the Due Process and Equal Protection Clauses of the 14th Amendment, it is important to consider two things: First, how lawyers analyze the equal protection clause and second, how it was applied here in Iowa, in Varnum v. Brien.

Once you see how this works, it becomes readily apparent why Windsor doesn’t work, and how a subsequent Supreme Court could overturn it. I will leave aside the bureaucratic nightmare that would ensue, though I do think that practical effect might be enough to keep the ruling in-place.

Traditional equal protection clause analysis goes like this:
(1) Is there a fundamental right at issue;
(2) How adversely is that right affected;
(3) What level of scrutiny (strict, heightened or rational basis) applies; and
(4) Based on the level of scrutiny, has the Government proven that the burden placed on the right is sufficient to address the Government’s purpose for having the law in the first place.

Going through that analysis, yes, marriage is a fundamental right and the cases supporting that fact are legion, not only in America, but in countries much older than ours, from which our law derives.

Second, if a significant block of the country’s populace is prevented from marrying, that question is answered, “significantly.” There has not been a case I have seen that disputes the significance of preventing two people from marrying in the United States. Perhaps the most relied-upon precedent in Constitutional law circles is Loving v. Virginia, a 1967 case allowing inter-racial marriage in the United States that was based on 14th Amendment due process and equal protection clause analysis. There, the Supreme Court wrote that marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

The third and fourth criteria require much more work, but are the keys to understanding about what one is talking when it comes to equal protection analysis.

The third “prong” has to do with the question, “What class of people has the United States Supreme Court deemed important” when it comes to determining whether, and to what extent, the government can discriminate? When that determination is made, the moving parties in equal protection cases have to demonstrate they are “more like” folks whose cases have been analyzed than they are “not alike.”

Those that enjoy “strict scrutiny” analysis are accorded the most protection because the Government must show that the burden it places on them is “narrowly tailored to a compelling Government interest.” Traditionally, the classes of people – or in legal terms, those “suspect classifications of people subjected to governmental intrusion” – who are afforded strict scrutiny analysis have been racial minorities, foreigners, and those Americans of foreign descent. Likewise, two of the issues involved in strict scrutiny analysis are the rights of religion and marriage, based as they on both tradition and the First Amendment’s right of free association.

The “next level down,” so to speak, is “heightened,” or “intermediate” scrutiny (the terms are synonymous). Heightened scrutiny requires the Government to show a “substantial relationship” between the class of people affected by a law, and the “important” government policy to be upheld. Traditional beneficiaries of “heightened scrutiny” are women and children born to unwed parents.

Finally, the lowest scrutiny applied is called, “rational basis” scrutiny, which says, in effect, “if the Government can come up with any rational basis for discriminating against this class of people, the law is Constitutional.” THE traditional class of people given this sort of “bottom of the barrel” protection is the poor.

So, the equal protection question in gay marriage cases has been based on what level of scrutiny to apply. Is it strict or heightened? Is it about marriage or is it about gender? The problem with homosexual marriage for most courts is, and remains, “Is it possible to have a sort of ‘heightened, heightened,’ but not ‘strict’ scrutiny?”

The Iowa Supreme Court in Varnum v. Brien did an admirable job of explaining all of this, and weaving it in with historical precedents and real-life social significance. It is a masterful ruling and, in my view, should be required reading in every Constitutional Law I law school class. It is really a pleasure to read for anyone intimately familiar with Constitutional law and it is a testament, I think, to the fact Chief Justice Cady – who wrote it before he became Chief Justice – is very much a teacher who can take difficult concepts and make them understandable to anyone with even a Third Grade reading level.

All of that being said, and all of that being true, Varnum cheats in its Equal Protection analysis because it applies a “heightened, heightened scrutiny,” in spite of the fact the court lacked any case law precedent allowing it to do so.

Significantly, the Iowa Supreme Court never took a serious stab at addressing the Iowa DOMA’s violation of equal protection toward gays seeking to marry in “strict scrutiny” terms.

What the court did, instead, was “back door” its way into “strict scrutiny.”

In the “Equal Protection” section of its ruling, the Iowa Supreme Court discussed the facts to be used in terms of evaluating “adjudicative” versus “legislative” facts, and conceded by reference to using facts that take into consideration “constitutional issues can involve the ‘process of adapting law to a volatile social-political environment.’” To get there, the court employed principles found in the laws of evidence, rather than those of constitutional law, to create that dichotomy and strike the balance that ultimately led to finding gay marriage as a classification deserving of what it called, “heightened scrutiny,” using what it termed, the “flexible” analysis of United States Supreme Court principles.

When analyzing the level of Government intrusion allowed, it employed the “heightened scrutiny” terms and addressed this issue – “whether excluding gay and lesbian people from civil marriage is substantially related to any important governmental objective.” That definition of the scrutiny to be applied presupposed there probably wasn’t a government objective. In other words, the court went ahead and applied something that was more than “heightened scrutiny,” but more akin to “strict scrutiny.”

Ultimately, then, the unanimous ruling from the Iowa Supreme Court, written by then-Associate Justice Cady, found that “the County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage. . . . This record, our independent research, and the appropriate equal protection analysis do not suggest the existence of a justification for such a legislative classification that substantially furthers any governmental objective.”

That all sounds good but, that isn’t “heightened scrutiny;” it is, for all intents and purposes, “strict scrutiny:” nothing the Government could have provided justified discriminating against gay marriage with Iowa’s DOMA.

My assertions to this effect went unheeded for years, out shouted by the “Oh, isn’t this the greatest thing!” and “Iowa is a leader in civil rights!” and all of that stuff. I even began, slightly, to doubt myself. That was, until a Federal court out of the Sixth Circuit Court of Appeals came along.

The case was called, DeBoer v. Snyder, but it consolidated three other cases, one of which was Obergefell v. Hodges – a case out of Ohio. The federal district court in Obergefell determined that Ohio’s DOMA didn’t “pass constitutional muster” (I am not quoting the case; I am quoting the language used by constitutional scholars, because it is so often mangled by folks who speak in terms of “constitutional mustard.”) under “rational relation”, or “heightened”, scrutiny.

In DeBoer, the Sixth Circuit Court of Appeals began its ruling with the sentence, “This is a case about change—and how best to handle it under the United States Constitution.” Ultimately, it concluded that under “rational basis scrutiny,” state DOMA laws in the Sixth Circuit were constitutional. Because every other Federal circuit, or Federal district court (where their respective Circuit Courts of Appeals had not yet ruled) found to the contrary. In other words, DeBoer created the “conflict in the circuit courts” necessary for the United States Supreme Court to hear the case.

The question presented then, was “What scrutiny applies?” Just as I predicted. The United States Supreme Court agreed to hear the case.

But then, the United States Supreme Court dodged the question, and, in a somewhat unusual move, asked the parties to address their briefs to two related, but much more general questions: 1) Does the Fourteenth Amendment require a state to license marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Presumably, this meant at least a general analysis and recognition of Equal Protection Clause analysis, so that the question of levels of scrutiny would arise. But, the ultimate United States Supreme Court ruling flies right over all of that and does nothing more than make sweeping generalizations about rights of privacy and the universality of marriage in the world, with its only significant, individualized focus being on the consequences of declaring existing gay marriages unconstitutional to the married gay couples’ children.

There was no Equal Protection analysis in the opinion, at all. Again, a lot about the fundamental right of marriage, with an heavy emphasis on the unspecified right of privacy that culminated in 43 years of discussion after Roe v. Wade; but nothing on levels of scrutiny. And this is how the court was able to provide a whole lot of uplifting language to a decision otherwise lacking in any meaningful legal analysis whatsoever.

This was a 5-4 ruling, written by Associate Justice Anthony Kennedy, in what can only be described as, “not his best work.” Because of the narrow margin, this case is ripe for overturning. And Chief Justice John Roberts and Associate Justice Antonin Scalia took time, in their dissents, to say so.

The Chief Justice slammed the majority opinion with this:

The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis [to the Due Process clause of the 14th Amendment] for its holding. []. Yet the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions. []. In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.” [].

Justice Scalia was more matter-of-fact – as he frequently was. His dissent said, among many other very quotable things:

And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.” [] (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis. (emphasis added)

As I stated at the outset, about the only thing that will carry the day for Obergefell and the right to gay marriage going forward will be the administrative nightmare that invalidating such relationships would pose on, among countless others, state officials charged with keeping those records – not to mention insurance companies seeking to un-insure those insured by virtue of their status of being married to someone who has health insurance.

Obergefell isn’t just bad law; it is really bad law. What I mean by “really” bad law is, it is ripe for any number of appeals that would easily bring back into focus the legal analysis that it ignored. And here is where the effect of a new set of Supreme Court justices could have a very significant effect on a large swath of people in a short period.

The Supreme Court had the opportunity to do what it does best: define what the law is. In the case of gay marriage and the equal protection clause, it could have created an identifiable and usable characteristic of analysis for people seeking gay marriage and similarly situated people in other contexts. It would have been less sexy, but it would have both meant something that was legally substantial, and very well could have reached the same result – the constitutionality of gay marriage.

But for reasons that remain – and may forever remain – unclear, Justice Kennedy screwed the pooch on this one. It is easy enough to go back to the oral arguments in this case, where he posed the question about what effect upholding states’ DOMAs would have on the children of gay couples. But Justice Kennedy has demonstrated, time and again, that he is more sophisticated than to let one societal issue so skew a ruling. Stated somewhat differently, he still could have addressed that concern and written a legally-credible ruling.

So, those of you in gay marriages, or who will in the future obtain a gay marriage, watch out! Yours may be the first of a boat load of civil rights retractions to occur with the new President in the coming future.

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  • a friend raised an interesting question

    Who would have legal standing to challenge either the Windsor or Obergefell rulings going forward?

    A Trump-altered SCOTUS would not be able to undo those rulings without a case before them.

    • Good question

      Thank you for the question.

      Over the past month, I have provided a series of dispatches on the Supreme Court, how it functions, and how matters come before it. I have also demonstrated how history has demonstrated that the political background of justices sometimes doesn’t mean anything in terms of their views about civil rights and limitations on government.

      In preparing to answer this question, I reviewed “‘The Lord Gave and the Lord hath Taken Away”: A Jobian analysis of gay marriage in America.” I see that, therein, I mentioned, Windsor,” but never examined it. [“Once you see how this works, it becomes readily apparent why Windsor doesn’t work, and how a subsequent Supreme Court could overturn it.”]. I was actually writing about Obergefell v. Hodges, the United States Supreme Court’s 2015 5-4 ruling declaring (1) gay marriage Constitutional under the 14th Amendment Due Process and Equal Protection Clauses, and (2) that the separate States recognize gay marriages from other States. But I was thinking about Windsor, too.

      Briefly, United States v. Windsor was a 2013 case involving the Federal (and original) DOMA. The Federal DOMA had two operative clauses. The one not at issue involved a clause later struck down in Obergefell that said the separate States need not recognize same sex marriages legally obtained from other States.

      The clause at issue in Windsor was the one that said that, for purposes of federal law, including agency law, “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 a wife.” [This is a quote from Windsor; not the United States Code’s definitions section.].

      The moving party, Windsor, was a New York widow, who had been married to her gay deceased wife in Canada before New York or any other state permitted same sex marriage. When Windsor’s wife died, Windsor inherited the whole of her wife’s estate. Ms. Windsor sought to avoid United States income taxes by using an inheritance tax exemption afforded to heterosexual married couples, but not gay married couples. Based upon the United States Code’s definition of marriage following the enactment of the Federal Defense Of Marriage Act (DOMA), the United States Internal Revenue Service ruled that Ms. Windsor was not entitled to the benefit of the United States Tax Code’s spousal exemption.

      So, Ms. Windsor paid the tax and sought a refund. She sued the Internal Revenue Service, arguing the DOMA was unconstitutional based on the 5th Amendment’s due process and equal protection clauses. Significantly, the United States Department of Justice — the agency whose charge includes acting as the attorney defending various United States agencies — notified the Speaker of the House of Representatives that it was declining the IRS’s request that it represent the IRS against Ms. Windsor.

      In response, a group of Congressmen, collectively calling itself the “Bipartisan Legal Advisory Group,” defended the IRS through the use of the House of Representatives’ general counsel.

      After allowing the suit to go forward with the players involved, the Windsor court, Justice Kennedy writing (as he would later in Obergefell), declared the DOMA definition of marriage unconstitutional under the Due Process Clause of the Fifth Amendment (in simple terms, the Fifth Amendment has to do with federal government power; while the 14th Amendment regards state power). His conclusion says, in pertinent part, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

      That was rational basis, equal protection analysis. For purposes of that ruling, gay, married people were entitled only to the lowest level of protection from government intrusion. All the government had to show, under rational basis scrutiny, that a law discriminating against them served some legitimate state purpose.

      The question left unresolved by Obergefell is, given the ruling — that restrictions on gay marriage are unconstitutional based on the 14th Amendment’s due process and equal protection clauses — what does that mean about the legal classification of “gay, married people?” In other words, for lack of a more subtle use of words, “Just who ARE these people, anyway?”

      Second, what level of scrutiny should the State Government be held to when determining whether it can, or cannot, discriminate?

      And of course, under Equal Protection analysis, the second question relies on the first because the level of scrutiny depends upon what class of people is affected. And Windsor didn’t help matters much because, again, “rational relation scrutiny” is not what a disenfranchised party seeks when it goes to court because the government can make nearly any plausible argument when it seeks to provide a “legitimate purpose.”

      In preparing to answer the question to my “Jobian Analysis,” (i.e. who has standing to bring a case that would overrule Obergefell?) I also spent a couple of hours reading a law review Note written by a University of Iowa law student in 2007 that hypothesized how the Iowa Supreme Court might write its ruling in Varnum. The Note, titled, “Gambling, Greyhounds and Gay Marriage,” is found in volume 94 of the Iowa Law Review, beginning at page 413. It was written by then-second year law student, Steven P. Wieland. Mr. Wieland is now an Idaho lawyer in private practice.

      Mr. Wieland’s Note made an admirable review of equal protection analysis in various state and federal court rulings, but particularly those from the Iowa Supreme Court and the United States Supreme Court. He came to the same conclusion I did: that, historically, courts cheat when they employ traditional equal protection clause analysis in difficult cases. Again, his Note predates Varnum v. Brien, and it predates Windsor.

      In my “Jobian Analysis,” I indicated that Varnum employed, “heightened, heightened scrutiny,” while calling it “heightened scrutiny;” something higher than heightened scrutiny (If there is some liberty interest for an important class of people (e.g. women), is the law that affects it substantially related to an important government interest”) but less than “strict scrutiny” (“Where a law affects a fundamental liberty interest involving a suspect class of people (i.e. race, national origin, religion), it must be narrowly tailored to further a compelling government interest”).

      In his Note, Mr. Wieland suggested the Iowa Supreme Court, pre-Varnum, had employed a lower standard of scrutiny. It was rational basis scrutiny (“because there is no fundamental liberty owed to this class of people, the law is constitutional so long as it is rationally related to a legitimate government purpose”).

      But, he wrote, it was more than that. He called it, “rational basis ‘with teeth.'” At page 418 of his note, he introduced this tendency of courts to realign the traditional equal protection analysis to reach a fair result this way: “Rational-basis-with-teeth cases most often come up when the Court suspect[s] that the legislative body harbored animus toward a class of people. These cases are uncommon, but not so uncommon as to rule them out as effective precedent.”

      From the mouths of legal babes. . .

      Mr. Wieland’s Note was published in 2008. Seven years later, in Obergefell, the Supreme Court did not address the equal protection analysis of “what level of scrutiny.” They remained open to, and ripe for, a final up-or-down definition. In my “Jobian Analysis,” I noted that Chief Justice Roberts said, in effect, that gay married couples had no traditional classification and therefore, “rational relation” scrutiny was all that was required, and, for him, maintaining social and religious tradition was rational enough.

      Rational relation, with gums.

      I envision a state civil servant, or some government agency, seeking a declaratory judgment (a declaration by a court as to what the law is in a particular area) that forces the case, on appeal, to the Supreme Court for the express purpose of defining, once and for all, the Equal Protection Clause analysis due, and the explicit classification of, gay married couples. The legal basis of the case(s) will be the fact Obergefell neglected to provide these fundamental requirements for its analysis.

      Although I have previously written that these cases come from myriad factual scenarios, the existing gay marriage cases have come from disputes between gay couples and state and federal agencies. In Windsor, it was the IRS. In Obergefell, it was state officials whose responsibilities included issuing marriage licenses. The same was true in Varnum; the defendant was the Polk County, Iowa Recorder, charged with issuing marriage licenses.

      A governmental body was also the defendant in another, less publicized (unless you read Michael Gartner’s important, if self-important, column, “Civic Skinny” in the Des Moines area free publication, Cityview) Iowa case, Gartner v. Iowa Department of Public Health. In Gartner, a gay married couple sued the Iowa Department of Public Health, a duty of which is to draft forms like birth certificates, and to issue those forms to parents.

      Michael Gartner’s gay daughter, Melissa’s, wife, Heather, had a baby during their marriage after undergoing artificial insemination of sperm provided by an anonymous male donor. The question in that case was whether the Iowa Department of Public Health, in carrying out its duties under the Iowa Code to create and provide a birth certificate listing the child’s parents’ names, violated the Gartners’ due process rights when it provided only Heather’s name, as the birth mother.

      Once again, the case involved a gay married couple suing a state agent or agency.

      Based on the precedents, I envision any case that might overturn Obergefell as one involving a moving party who is either a state agency or state official.

      (Let me be clear. I nearly wrote “any case seeking to overturn Obergefell.” That would have been an error. Sometimes, cases arise from a set of self-interests that have nothing to do with the results that ensue. The appellate court is looking to define what the law is, and that means the law in any number of contexts. So, sometimes the result achieved is not the result sought; that is the consequence of forcing an appellate court to reach a conclusion.).

      The last time I read about Kim Davis, the rogue Rowan County, Kentucky Clerk of Court who refused to issue marriage licenses to gay couples, she was asking the state trial court to waive the requirement that she, personally, reimburse the couples to whom she denied marriage licenses their attorney fees, because she openly defied established law when she did so. In other words, she — not the county of Rowan, and not the State of Kentucky — was on the hook because the affected couples paid some $233,000.00 to attorneys to secure marriage licenses, post-Obergefell, and won, then sued her for reimbursement.

      I envision Kim Davis, or someone similarly situated, making the argument that gay married couples are not an identifiable class of people to whom legal recourse (in Kim Davis’ case, reimbursement for attorney fees) is available. The argument would be that, in order to be a legally-recognized class of people, the Supreme Court would have identified them as such. Unfortunately, the Supreme Court in Obergefell never got around to identifying them at all. Instead, it spent the whole of its decision on a state of being: gay marriage.

      In his Obergefell dissent, Justice Scalia — and I will truly miss Justice Scalia for his unbelievably strong and persuasive use of language — correctly wrote that the majority opinion “is couched in a style that is as pretentious as its content is egotistic[,]” and that “the opinion’s showy profundities are often profoundly incoherent.”

      In trying to forecast another potential case, I must admit to some reluctance to try to use this next example, but I find it useful, at least academically. It is not directly implicated for reasons I will quickly describe, but I will discuss it with those, and other immediate caveats. The issue, potentially ripe for an equal protection analysis in need of a specific, definitive classification of people, is the federal mandate for transgender public school bathrooms.

      I am remiss to use this example for several reasons. First, I recognize that transgender students, and adults, are not gay married couples. In most instances, they are not gay people, let alone gay married people. Their issues are separate and different.

      The matter of transgender people regards a biological component absent from the lives of gay men and women. Their situations call into question personal and social matters that are just as consequential as those of gay people, and gay married people, but that are unique. The catalogue term, “LBGTQ,” may be a useful political reference for several discrete, individual groups but, for purposes of constitutional analysis, “transgender” is a classification that is quite different from “gay and married.”

      Another reason I am grasping somewhat with transgender bathrooms is because of the manner in which the issue has arisen. The gay marriage challenges I have discussed were the result of ironically pro-active laws enacted to prevent gay marriage in America. (I say they were ironically pro-active because gay marriage had yet to be an issue and was likely decades away; by drafting DOMAs, Congress and the various state legislatures hastened the speed with which gay marriage became a a reality.).

      Transgender public school bathrooms did not become an issue based on any law enacted by any legislature. Instead, the requirement for transgender bathrooms in public schools derives from a “determination,” made by, and issued from, the United States Department of Education, to the effect that public school districts would cease receiving federal funding unless they accommodated transgender students with their own, separate, bathroom facilities.

      Because this is simply an edict from a federal agency whose director — the Secretary of Education — is a member of the President’s cabinet, a new President, as part of creating his new Administration, can appoint a new Secretary of Education who can make the opposite “determination” — that Federal funds will not be tied to transgender bathrooms.

      Or, if President Donald John Trump works with Congress next year to eliminate the United States Department of Education altogether — as both he and Republican members of Congress have discussed doing for years — then seemingly there would be no regulations tied to any federal education funding for anything. In that event, transgender bathrooms would either exist or they wouldn’t, but no school would be compelled to provide them.

      Nonetheless, for purposes of answering the question raised by my “Jobian analysis,” and playing out the scenario of a potential case overturning Obergefell, a school district could bring a lawsuit in either state or federal court, arguing that transgender people, like gay married couples, are not a legally-cognizable class entitled to any rights not rationally related to a legitimate government purpose.

      The government would likely argue that building costs for school districts are significant, and the costs of retrofitting schools — especially given that local education costs are borne on beleaguered homeowners in the form of property taxes — are a legitimate concern of state and local governments that is rationally-related to refusing to provide transgender bathroom facilities. In other words, to the extent transgender people are a legally-recognized group of people entitled to any protection at all, they fall into the dust bin where poor people dwell for purposes of equal protection under the law. And as Justice John Paul Stevens famously wrote in dissent in the case, Bell v. Wolfish (a case about the care and treatment of pretrial detainees), “[t]he requirement that restraints have a rational basis provides an individual with virtually no protection against punishment.”

      Please keep in mind that Chief Justice John Roberts said as much about gay married couples in his Obergefell dissent: “In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ ‘legitimate state interest’ in ‘preserving the traditional institution of marriage.’” [].

      Rational relation/legitimate state interest.

      In either of those two scenarios — a county clerk of court contesting paying attorney fees to a legally-undefined class of folks, not recognized by state or federal law, or a school district opposing a construction requirement that protects a group of people who are not a bona fide legal class under state or federal Constitutional law — these matters could and probably should, gain traction in courts of law. These people deserve an answer — they may not like the answer, but they deserve one. They may not seek an answer, but they may get one regardless.

      One thing is absolutely certain — by the time any such case makes its way to the United States Supreme Court, there will be nine justices, at least one of whom will have been appointed by President Donald John Trump.