Judging the Judge

In the last post I tried to provide a summary of Justice Ling-Cohan's decision without commentary.  In this one I thought I would share some of my thoughts on the opinion.  I'll look at four areas:  The Due Process Argument, The Equal Protection Argument, The State Interests, and finally The Families.

I. Due Process

The bulk of the opinion concerned the due process argument.  Namely that the right to choose whom one marries is a liberty interest protected by the state constitution.  On some level this is unremarkable.  Certainly most people would expect that our right to liberty was being infringed if all marriages were arranged by a governmental Yentl and the Department of Matchmakers.  It would still be troubling even if the government had a good reason for doing so.  Perhaps some study showed that arranged marriages are less likely to add in divorce.  The reason we feel this violates our liberty is simple.  Marriage is a public act, but whom we take for a spouse (and whether we take a spouse) is fundamentally a personal decision that no one should take from us. We might even make a mistake in whom we choose to marry, but it is our mistake to make.  Does this reason hold any less because the spouse one chooses is of the same sex?  No.  This right to choose one's own spouse has nothing to do with an ability to procreate.  Few would argue that sterile people no longer have any right to choose their own spouses.  In fact it would be more even more disturbing if the government were to arrange marriages in order to breed.  It seems clear that if the government is going to forbid a marriage it should have a good reason to do so. 

Now Professor Balkin worries that such a right to marry would undermine incest and polygamy laws.  He criticizes Justice Ling-Cohan for failing to distinguish same-sex marriage from these situations.  Polygamy laws though are not undermined at all by this right to choose one's spouse, a right that is already well established.  Polygamy does not infringe that much on a right to choose one's spouse.  It just says you must make a choice.  You can't have more than one spouse.  In a similar fashion the US Constitution forbids someone from serving simultaneously as both President and US Senator.  That does not restrict their liberty to serve in public office.  It's just incompatible to hold both offices at the same time.  I do agree that a right to marry whom one chooses would seem to require a compelling interest for incest restrictions.  I believe there are such compelling interests, though, at least when it comes to marriages between kin close enough that sexual relations are criminal.  Forbidding marriages between kin where sexual relations are permitted, though, might be difficult to defend.  That issue, though, was not before the court and it is perfectly reasonable (even appropriate) for the Justice not to address it.  For more on this line of thought see my posts on the topic from a year ago. 

II.  Equal Protection

I believe Justice Ling-Cohan was too quick to essentially dismiss the sex-based equal protection argument.  First of all she says that the law treats men and women equally.  That depends on what one means by equal.  Women are allowed to marry men.  Men are not allowed to marry men.  There are parallel restrictions, but does that imply equal.  Would gender segregated schools be acceptable (provided the schools were "equal")?  She claims, without any support, that such parallel restrictions are only problematic if they stem from discriminatory intent.  That is itself not so clear, but even if that were the case, she would seem to at least agree that "discriminatory intent" does not necessarily mean animus toward a group but could include the assigning of traditional gender roles.  This is important as most sex discrimination is not done out of any animosity to women or even a sense of male superiority, but rather a belief in certain traditional gender roles.  Justice Ling-Cohan writes, though:

Moreover, with the gradual equalization of the rights of men and women in marriage, it cannot be readily argued that the requirement that a married couple consist of a man and a woman is intended to, or does, reinforce traditional sex roles.

I note a few things.  First of all the equalization of the rights of men and women within marriage has been done gradually.  The gender requirements of marriage are likewise nothing new.  Is it unreasonable to suppose then that they might be connected to views about gender roles within marriage?  The fact that a legislature has chosen not to do away with these gender requirements speaks to a view on traditional sex roles.  The state even lists "tradition" as one of its two main arguments for the requirement. The same tradition they appeal to within marriage is one for which the role of husband and wife were quite distinct. Why should it matter today whether one's spouse is male or female unless males and females have distinct roles prescribed roles? 

Justice Ling-Cohan's claim that the sexual orientation discrimination was "indisputable" also struck me as strange.  Certainly the state is disputing the fact that they are discriminating against gays.  She said herself that gays and lesbians were not individually prohibited from marriage.  I guess she means that same-sex couples are being treated unequally (which of course they are), but this was a little unclear.

III.  State Interests

The State's asserted interests, tradition and uniformity, do strike me as rather feeble, but then those were the grounds accepted by a trial court in New Jersey recently.  Tradition may often guide us and alert us that there may be good reasons for something, but is on its own a rather weak reason for continuing to do something.  I tend to believe that if there is a long standing tradition for something, there ought to be some reason for changing it, but that has been fairly well established here.  Allowing same-sex couples to marry could be greatly beneficial to these families.  Once that case has been made it is up to the traditionalists to provide something more than, "Well, that's the way it's been done". 

The uniformity seems an even worse argument.  What harm does the state occur by granting marriage licenses that may not be recognized elsewhere?  Yes the couples will suffer some harms, but no more so than if they had no marriage license.  And New York does not even gain uniformity by prohibiting same-sex marriages.  It borders Canada and Massachusetts which both allow such marriages, and Connecticut is likely to allow them soon as well.  (This is not to mention Vermont's civil unions which are designed to be effectively same-sex marriages).

IV.  The Families

One of the best things about the decision was its focus on the real harms suffered by these families (including and especially the children) because the adult couples were denied access to marriage.  Such analysis would be especially important in New Jersey which uses a balancing test (state interests vs. individual interests) instead of a tiered approach to due process claims, but in any case it is important to keep in mind the people involved and how it effects them.  Nothing could send a clearer message that marriage matters deeply to the welfare of families than to allow these families to enter into it.

Comments

[M]

Would gender segregated schools be acceptable (provided the schools were "equal")?

According to Judge Ginsberg in the VMI case, yes. The problem with VMI was that the comparative school was not equal in facilities. And public schools routinely offer separate classes for girls and boys in certain subjects (for example, lots of sex ed classes across the country are segregated, and one of my classes in middle school voted for segregated gym).

Moreover, Loving and Brown were designed to alieviate the badges and incidents of slavery which were having an enormous detremental social effect 100-years on. There is simply no comparison between race and gender, and thus no need for such heavy-handed infringement on the right of people to decide issues democratically.

Polygamy laws though are not undermined at all by this right to choose one's spouse, a right that is already well established. Polygamy does not infringe that much on a right to choose one's spouse. It just says you must make a choice.

You're defining the liberty right so narrowly that the conclusion is forgone. This type of reasoning was condemned by the Supreme Court in Lawrence. Forcing people to choose one person to marry relies on the notion that marriage is between only two people, and that that definition is fixed forever. Not only is relying on that notion wrong (because you assume that the definition of marriage should be static, when clearly it's not - look at the changes in pre-1967 restrictions on remarriage, prohibitions on racial marriage, marriage property laws, etc.), but incorrect, historically. Marriage has at many times and in many places included more than two people. To narrowly define it now smacks of bigotry. And think of the children. We're denying the children of these unions essential social protections (for example, Utah is the only state that deals with the inheritance rights of children of polygamy). Perhaps we should focus on the real harm done to these families.

What harm does the state occur by granting marriage licenses that may not be recognized elsewhere?

I suspect that homosexual couples, once issued a marraige license by one state, may unfortunately rely on the license in another state and fail to set up legal arrangements that they would, in the previous world, have set up as a matter of course. There may be some very nasty shocks in the future (unless the couple is very aware of their new state's conficts of laws rules, DOMA laws, etc). I don't know that the court would consider that a sufficient harm, but it is one that leaps to my mind.

[M]

According to Judge Ginsberg in the VMI case, yes.

Actually, I kind of rushed into that statement (I was typing based on my memory of the case). I re-read the case and now I'm not quite sure whether it would get approval from Ginsberg (because her analysis is so fact-based, and the whole problem with the case is that 1)Ginsberg is using it as her personal "drive sex discrimination up to strict scrutiny" vehicle, and 2) the fact pattern is really bad because it's more difficult to argue that the benefits of single-sex education were at the heart of Virginia's motives). But, I think in a more typical single-sex education case Ginsberg's coalition would fall apart, anyway, so I still think it's likely to be approved.

We do permit federal funding (through student loans and grants and other federal funding) to single-sex education, as a matter of routine. It doesn't get the scrutiny that race or religion does (ie, the only college in the US with any sort of racially discriminatory policy is also the only one that doesn't take any federal money at all). At least at this time they're not applying VMI to private schools. And for why I cannot understand, except that private single-sex ed is a long-standing practice that many understand the value of, and most of these private schools don't have the prestige of VMI (VMI had to die because it was so very special. A really bone-basic, nothing interesting or unique single-sex totally tax payer institution might have survived the case, which is part of the perversity of the case). As Scalia points out in the dissent, it's basically only because of this history that the Court and private actors aren't trying to apply the VMI standard to private schools, but it's likely that this will continue for a long time (at least until society becomes more "progressive").

[Galois]

M,

I thought the problem was that the other school (WVLI or something like that) was not comparable in tradition and prestige and that it was fairly obviously created just to forestall admitting women to VMI. It is one thing to have the same subject taught to men and women at different times, it is another to offer different (even if "equal") opportunities to men and women. For example if the school said only women could take Home Economics but only men could take Woodshop I'm sure the program would be struck down. It doesn't matter that both men and women are equally prohibited from taking an opposite-sex class. Part of the problem is in dealing with the question of when two different opportunities are substantively "equal". Even if one were to say that (on the federal level) gender based protection is the same as race based protection was prior to Brown (ie separate was OK as long as it was equal) one would still face the same problem the California Supreme Court noted in 1948 in Perez. When it comes to human beings you can never offer an "equal" substitute for one's true love.

I don't think Perez or McLaughlin were based on badges or incidents of slavery. Even if they were, though, I think there is a comparison between race and gender though gender discrimination is more subtle. The vestige of women's inequality still have an enormous effect today. One example is in the social difficulty of taking on a profession or hobby traditionally designed for the opposite sex.

You're defining the liberty right so narrowly that the conclusion is forgone. This type of reasoning was condemned by the Supreme Court in Lawrence. Forcing people to choose one person to marry relies on the notion that marriage is between only two people, and that that definition is fixed forever.

How would you define the liberty interest? I'm not relying on any notion or definition of marriage. I accept the notion that you could allow a person to marry more than one other, but we choose not to allow that. Again before you can cricize how I've defined the liberty interest, you must offer some alternate way of expressing the interst. Only then can we analyze and compare which way the interest should be stated. Also what remedy are you asking for?

Perhaps we should focus on the real harm done to these families.

Certainly, we should focus on the real harm done to these families. Please submit an affidavit about the harm some family has suffered because polygamy was prohibited and we can consider how your remedy would help. We can't consider things, though, until you describe your desired remedy.

I suspect that homosexual couples, once issued a marraige license by one state, may unfortunately rely on the license in another state and fail to set up legal arrangements that they would, in the previous world, have set up as a matter of course.

Yes, I've considered that. That's a problem with any laws that are not uniform from state to state, and it is the general reason for comity rules.

[vch]

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