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.