Dale makes a good point that many minorities view the courts in heroic and almost mythic terms. But Newton's law has its legal counterpart: For every myth there is an equal and opposite counter-myth. The anti-gay right, in particular, has done a splendid job of not just de-mythifying the courts, but of delegitimizing them for "activism" on gay equality; it's seldom you will hear them utter the word "court" in the gay rights context without its now joined-at-the-hip modifier, "activist." And, in Newtonian fashion, the left responds in kind when the opportunity presents itself, as it did in the Citizens United case about corporate speech.
Both sides are now positioned for their entirely predictable frenzy on this case. So I'd like to make my usual plea that we not convict judges of politics (usually someone else's) without some kind of due process. In this case, that could be accomplished by actually reading the opinion any judge or group of judges offers.
Dale may be a bit guilty of prejudging in responding to one of the comments to his post, where he says that a very narrow ruling posited by the commenter could look "nakedly unprincipled." That is possible. It's also possible it could look entirely reasonable. Most likely, its bottom line (supporting or opposing marriage equality) will guide people to their conclusion about the judge's principles. While I'd trust Dale to make that decision at the appropriate time, I have a feeling such niceties won't bother the partisans.
Dale's skepticism, though, comes from having read previous opinions on this subject, and I think it's fair for me to disclose that I have some predispositions of my own -- in the opposite direction. To the extent the courts have been political in dealing with homosexuality, it is sometimes against gays.
The fact that we don't know what level of scrutiny sexual orientation should receive from the courts is the tip-off. The courts do - and, frankly, should - make the narrowest decisions that will decide the case before them. Courts shouldn't decide issues (and particularly constitutional issues) unless they have no other choice.
But the question of whether sexual orientation is a suspect class or not has been hanging around the federal courts since the military discrimination cases back in the 1980s. Federal opinions have nibbled around the edges of this, but have taken advantage of the military's unique factors to sidestep the question. The military's vital functions give them constitutional authority to override even fundamental rights like freedom of religion in order to carry out their duties.
For those of us not in the military, though, the question is still unresolved. Some courts have assumed without deciding that sexual orientation gets the lowest level of review. I think that comes from the politcs. Everything we know about equal protection law from the U.S. Supreme Court would and should lead to a finding that laws distinguishing among citizens based on sexual orientation are entitled to the highest level of court scrutiny.
The California Supreme Court is the only one that concluded sexual orientation is entitled to that level of review. It explicitly goes through the neutral principles courts have established for this kind of case, and I think provides a credible and persuasive analysis of each one. Compare their analysis to the dismissal given the issue by New York's highest court.
The retreat to rational basis review can be seen as a response to the heightened politics surrounding sexual orientation. On this issue, the charges of activism will come mostly from the right, and the only defense is for courts to adopt the most deferential posture possible.
But that's not what the precedents say, at least with respect to minorities who have a documented history of irrational discrimination. Laws making a group criminals (some laws still on the books into the present century) would seem to suggest that kind of history.
If this case is decided on equal protection, a responsible opinion would seem to require application of the longstanding principles of equal protection, and a conclusion of whether sexual orientation is entitled to strict scrutiny, middle-tier scrutiny, or rational basis scrutiny - with reasons stated, so those of us so inclined will be able to decide, based on the reasoning, not the result, how neutral (or not) the judge was.
6 Comments for “Judging Judges”
posted by Amicus on
could look ânakedly unprincipled.â
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LOL. At least no one could accuse such a naked position as being “activist”.
One could make a case that SCOTUS should deny cert, too.
Shouldn’t they wait until there are competing district court decisions to get involved?
posted by Amicus on
some laws still on the books into the present century
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If I’m not mistaken, some still on the books to the present day, even if rendered “vestigial” by Bowers.
One of the problems with the timing of this case, I wondered aloud, once, was that, there doesn’t seem to be consensus about what would make a “good opinion”, among legal scholars, old and young. By that I don’t mean a favorable opinion to gays, but one for which most everyone agrees that these are the key issues to be concluded and this is the fact base that should be used to inform those judgments.
I wonder if that off-the-cuff assessment is shared.
Here’s a stab at formulating the problem in somewhat non-legal terms. It’s possible that most people believe or could believe the following:
1. The referenda process is itself suspicious, because it allows simple majorities to so easily pollute their constitutions, drawing lines where none should be drawn. So much so that they are themselves a good argument for non-constitutional government. There is a fundamental interruption of a guarantee to a Republican form of government, when a plebiscite can trump the legislature, the executive, and the courts. [It does seem a little biased to say, âmove along, these are not the âfederal questionsâ youâre looking for.â {grin}] Accordingly, even those who believe in that, on such questions, the courts should almost abjectly defer to lawmakers, we find a fundamental systemic injustice.
2. No one really can believe that rational basis is sufficient to what we understand as the complex thing called marriage in society. Rational basis is a fine, ultimately coercive tool to keep things “out”. Yet, it does nothing much to say what is “in”, and Mormons would surely be in court demanding a fundamental right to marriage, if the State were to drop civil marriage, adopt a one-child rule, or to suggest that 5 or less kids is “what’s bestâ (cf NY Supreme Court opinion). Whatâs more, the putative stateâs interest can be easily distorted in a plebiscite. Indeed, Blankenhorn reports that just 13% of people in America said that their marriage is _primarily_ about kids, let alone whatâs best for kids (1996 survey). One could argue that the plebiscites expressed/voted state interest is âindiscernibleâ, and thereby out of reach of any ârationalâ imputation. In short, we know potentially nothing about the intent or âlegislative intentâ of a law, if it is passed by plebiscite.
3. Marriage *seems* like a right to something, rather than a freedom from something (antidiscrimination), and there appears to be no objective, scholarly consensus on how to read history or biology convincingly as a way to resolve the long, deep religious pre-supposition of âsexual moralityâ as attached to âsodomyâ as something unnatural for gays _and_ unnatural for nongays. One can look at the history of the laws and in general and say, âSee this reinforces the notion that there is nothing but a right to the status quoâ. Or, one can say, âGiven what we now know, the history shows a long and deep bias.â
In few places is this more clear than in the wandering â truly wandering – court and public justifications of why sexual orientation is not like race. From the NY State decision:
âBut the traditional definition of marriage is not merely a byproduct of historical injustice [like racismâs manifestation of miscegenation laws]. Its history is of a different kind.â
One has to read that a dozen times and try to figure out how the referents in that sentence, once determined, do not make a juxtaposition that is intelligible (at least to me). No one ever accused lawyers of being bad historians, but â¦
They go on with:
âThe idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.â
It looks almost like they are using history, rather than reason, to beg the question on the level of scrutiny required, right? Not everyone could have been irrational, throughout history, so we donât need heightened scrutiny. Indeed, they put a dollop of rhetorical paradox on top of that logical paradox, by suggesting that heightened scrutiny might force the court to âlightly concludeâ something.
Thatâs right, possums, we can shrug off racism, but, frankly, we reserve the right to be blatant historicists on civil marriage.
Insult to injury, gloss over that âstrict scrutinyâ was âinventedâ in Loving precisely to cast off âunwanted historyâ.
Anyway, somewhere there might be a way to tie all these things together for a consensus view on what actually needs to be decided, before a decision is made.
posted by Daftpunkydavid on
i think one key difference between the case in new york (hernandez?) and the challenge to prop 8, is that in the former, the majority claimed among many other things that the writers of ny’s domestic laws did not harbor a desire to discriminate against gays and lesbians, even though today the result is very much that. with prop 8, one seemingly straight-forward argument is that people voted to remove a right that the ca supreme court had seen in that state’s constitution, but with the intent for the law to have a grossly disproportionate impact on gays and lesbians.
to resume: in ny, no intent to disproportionately impact; in ca, clear desire to do so. i think it would be hard to argue against that.
posted by Chairm on
The California pro-SSM opinion (its description of its reasoning) is a blatant abuse of judicial review.
There was no discrimination on the basis of sexual orientation, to begin with, so the question of formulating a new suspect classification — which dominated that court opinion — was not credibly raised.
posted by DragonScorpion on
posted by DragonScorpion on
Let me try that again…
Sure there was. To claim otherwise would be like claiming there was no discrimination on the basis of race in anti-miscegenation laws.
There is often a claim among same-sex marriage opponents that homosexuals aren’t discriminated against because we can still marry members of the opposite sex. Yes, but why would we since people generally marry those they are physically/emotionally attracted to and homosexuals are not physically/emotionally attracted to members of the opposite sex?
Applying this mindset prior to 1967, an interracial couple in, say, Virginia (where interracial marriage & cohabitation was illegal) could have simply chosen a partner with the same racial classification and had a genuine, legal marriage. But why should they have been expected to do this? Of course, justice prevailed in determining that they shouldn’t have to at all.
Neither should we, I contend.
Now while the same-sex marriage opponents loathe such comparisons because it so clearly illustrates the lack of fairness and necessity in discriminating against same-sex relationships â just as it reveals the obvious prejudice that motivates it â actually, the inherent discrimination in such arbitrary prohibitions applies even more solidly for us. The reason I say this is because sexual orientation is rather exclusive for most people, whereas, interracial coupling tends to be circumstantial, not based on an exclusive tendency in attraction.
There is really nothing reasonable in expecting people with a homosexual orientation to simply forgo any possibility of ever entering into the civil contract of “marriage” to any partner which they would naturally be drawn to.