July 06, 2006
Hernandez v. Robles
As Chris Geidner and A. Rickey have noted, the New York Court of Appeals has ruled 4-2 that the state constitution does not require marriage to be open to same-sex couples. I called this one easily. New York's constitution lacks an ERA to provide equal rights regardless of sex, which was the essential basis of Goodridge (along with the other court rulings whose analyses I support), the howls about Lawrence notwithstanding. I consider the federal Constitution also to require sex neutrality, but going strictly by state claims, the NY couples didn't have as strong a brief as those in MA.
From the political side, the NY Court of Appeals is more conservative than its Massachusettes counterpart; New York also has a better history of protecting gays and lesbians and providing alternative legal structures to marriage, which makes the claims of discrimination against LGBT less striking.
The For the Children (TM) bit of Judge Robert Smith's opinion for the majority is as silly as those usually are, though. There's absolutely nothing to support how the Legislature rationally could think that a same-sex couple couldn't parent as well as an opposite-sex couple could, other than "common sense." Common sense also used to tell us that interracial couples faced so much trouble that in a custody battle, a child was better off in the household of a uniracial couple. Smith also ignores the number of same-sex households that are raising children and would be able to do so more easily if the heads could marry, thus providing greater stability and allowing arrangments such as a stay-at-home parent who still would have health insurance.
Smith should have left the For the Children part out and stuck to the universal-tradition-of-marriage bit, which suffices to provide the NY legislature with a rational basis to refuse to change their statutes to be gender-neutral and is inarguably true. I also agree that the state and federal constitutions have nothing that can be construed to recognize the existence of homosexuals and therefore there is no way to say they forbid discrimination based on identification as such.
Another part of Smith's opinion that I would have edited out is his claim that there is no gender discrimination in allowing only women to marry men and only men to marry women. Saying that women and men are being treated equally because each is equally restricted makes as much sense as leaving stand a law that allows only women to be OBGYNs and only men to be prostate specialists. People are being treated differently on the basis of sex; therefore there is sex discrimination.
If Smith wants to look at the tradition of marriage, the subjugation of women was rather clearly embedded in the marital custom of most peoples -- from the Hindu sects that burned widows or forbade their remarriage, to the Muslim rule that men can have four wives but women cannot have multiple husbands, to Jewish restrictions on women's ability to divorce, to the Christian belief that the husband bears the same relation to his wife that Christ does to the Church. Some people refuse to marry even with today's non-discriminatory regime because of this history. The recent trend of Western marriage is to become less gendered, not more so.
The concurrence is nearly as foolish in trying to defend the notion that contemporary marriage exists to give potential breeders a reason to stay together for their breeding. A man who gets a woman pregnant can be compelled to provide financial support, but he cannot be compelled to marry the woman nor care for the child. This actually is a shift from older laws that could mandate a man found responsible for a woman's pregnancy marry her, as is infertility's no longer being a ground for divorce, both in the U.S. and other nations. We already have separated procreation and marriage; even the tax code doesn't require that one be wed to receive the dependant credits, only that the financial relationship exist. The Legislature can claim that it is using marriage For the Children, and the Court of Appeals can say that rational basis scrutiny requires it to accept this claim, but trying to make it look good just makes Judge Graffeo look bad.
I didn't think much of Judge Kaye's sentimental dissent, either, except for footnote 6's citation of Scalia's Lawrence dissent, which points out that "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same sex couples." This tempts one to make a Romer-based argument that refusing marriage to same-sex couples is impermissible animus, but New York is a difficult place to describe as having animus toward homosexuals. Again, the very progressiveness of the state as a whole, and localities like NYC in particular, stifles this line of thought.
July 6, 2006 01:42 PM
The "for the children" bit of the opinion isn't really that bad, so long as you don't perform the kind of burden-shifting that you do here. It's rational-basis scrutiny. The "common sense" part of the opinion just stands for the proposition that the legislature can come to an opinion without scientific evidence in support, and it's the burden of the opposition to prove that there is no such basis. Can one say that growing up with two members of the opposite sex--or a policy promoting it--is quite clearly not advantageous? Well, probably not.
Your introduction of the adoption case is simply irrelevant: that case was judged under strict scrutiny, and the burden of proof was on the state. "Common sense" would probably not suffice to meet that burden.
Here's Dale Carpenter's discussion of the sex discrimination argument.
Even rational-basis scrutiny demands that the governmental action be rationally related to its stated interest. It need not be the closest-fitted action (which would be requiring marriage for and restricting it to all procreators), but to say that the state provides the marital status in order to better the child-rearing environment, and then ignore that several of the plaintiffs *do* have children, who presumably also would benefit from being raised in marriage, is dishonest. It would have been better analysis, though mildly horrifying, if the majority had said, "The state may rationally refuse to allow same-sex couples to marry, in the hope that they will go off and make opposite-sex marriages instead."
Why dishonest? Rational basis does not require even a particulaly good fit. Rather, it just has to be shown that some end may reasonably be achieved in a certain way. Sure, the marriage statute might be underinclusive, but even granting your argument, there are simply not all that many gay couples raising children, so the fit isn't that bad. It may not be a good argument, but it is within the very broad standards of rational basis.
One more data point in favor of my position that liberals should get out of the courts, though. Judge Smith may not agree with you, but there was nothing in that opinion that justifies an accusation of bad faith.
So you wouldn't consider "intellectually dishonest" to be a warranted accusation when someone makes a case and leaves out relevant data of which he is aware (as Smith had to be aware that some of the plaintiffs were raising children, considering that the fact is mentioned in the dissent)? Smith's opinion essentially makes a set of explanations for why the Legislature limits the state's recognition of a marital relationship to that between two opposite-sex adults. If I tried to explain Columbia law professors' opposition to the Solomon Amendment and left out that these same professors support the Bob Jones holding, I think most people would consider me to have been dishonest. I could declare that there is no inconsistency between those positions, but there is an obligation to admit the existence of a fact that may undercut it. Williamson v. Lee Optical, the most famous precedent regarding economic rational basis, stated,
The Oklahoma law may exact a needless, wasteful requirement in many cases. But it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement. It appears that in many cases the optician can easily supply the new frames or new lenses without reference to the old written prescription. It also appears that many written prescriptions contain no directive data in regard to fitting spectacles to the face. But in some cases the directions contained in the prescription are essential, if the glasses are to be fitted so as to correct the particular defects of vision or alleviate the eye condition. The legislature might have concluded that the frequency of occasions when a prescription is necessary was sufficient to justify this regulation of the fitting of eyeglasses. Likewise, when it is necessary to duplicate a lens, a written prescription may or may not be necessary. But the legislature might have concluded that one was needed often enough to require one in every case. Or the legislature may have concluded that eye examinations were so critical, not only for correction of vision but also for detection of latent ailments or diseases, that every change in frames and every duplication of a lens should be accompanied by a prescription from a medical expert. To be sure, the present law does not require a new examination of the eyes every time the frames are changed or the lenses duplicated. For if the old prescription is on file with the optician, he can go ahead and make the new fitting or duplicate the lenses. But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.
Notice that the Williamson Court acknowledges that "in many cases," the legislature's requirement is not necessary or appropriate, but declares that it is for the legislature to decide the matter. This is quite different from Smith's exclusion of facts that might call the wisdom of the New York lawmakers into question. The Williamson Court also said,
Secondly, the District Court held that it violated the Equal Protection Clause of the Fourteenth Amendment to subject opticians to this regulatory system and to exempt, as 3 of the Act does, all sellers of ready-to-wear glasses. The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Tigner v. Texas, 310 U.S. 141. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Semler v. Dental Examiners, 294 U.S. 608. The legislature may select one phase of one field and apply a remedy there, neglecting the others. A. F. of L. v. American Sash Co., 335 U.S. 338. The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. We cannot say that that point has been reached here. For all this record shows, the ready-to-wear branch of this business may not loom large in Oklahoma or may present problems of regulation distinct from the other branch.
Again, Judge Smith did not remark that the welfare of homosexual couples' children "may not loom large in New York." He simply ignored that the benefits and responsibilities of marriage are relevant to children other than those accidentally created by heterosexuals.
If I tried to explain Columbia law professors' opposition to the Solomon Amendment and left out that these same professors support the Bob Jones holding, I think most people would consider me to have been dishonest. I could declare that there is no inconsistency between those positions, but there is an obligation to admit the existence of a fact that may undercut it.
As a blogger, this is true. But the Smith we're talking about isn't Commentator Smith, Blogger Smith or Journalist Smith. He's Judge Smith, and as such he's obligated to make a ruling of law. For those purposes, he merely has to state the rule, apply the facts and come to a conclusion. In that case, his opinion of whether the welfare of children of homosexuals "looms large" in New York are irrelevant: all he has to do is determine whether there's a rational basis. He has no need to go any further in order to be "honest."
Of course, if you're Justice Kennedy, your opinions can read like a combination of a decent ruling and a NYT op-ed. But it's not dishonest to refrain from passing judgment on legislative wisdom. At most it's a matter of style. The fact that a Judge that disagreed with you didn't feel the need to let the other side get its licks in isn't a slight on his integrity.
But I don't disagree with Judge Smith on the merits of the claim; as I said in the post, he is correct that this passes rational basis scrutiny, and in the absence of an ERA, that's the standard for a state law claim. Where I think he goes amiss is precisely in "go[ing] any further."
Marriage isn't currently defined to allow same-sex unions legal recognition; NY law does not require more than rational scrutiny of sex-based distinctions; the marriage law does not evidence animus against homosexuals -- that analysis suffices and is nearly indisputable.
NY's rational basis standard says, "Those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker."
I don't consider it unreasonable for people to have deep-set beliefs about sex/ gender -- such beliefs manifest in social norms among even purportedly liberal folks -- but inasmuch as that's where the bias against same-sex marriage derives, we are better off with judges who say so. If one does think that same-sex couples ought not be raising children and that the law should not give assistance to them in doing so, why is it so insulting for that to be described as one's belief, so long as no normative judgments about the wisdom of the belief are made? It is when Judge Smith makes the normative judgment affirming that such a belief is "common sense" ("In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home") that I become annoyed.
Ugh, here you go with the annoyance at "common sense" again. The tenor of Judge Smith's ruling is pretty clear: he's not giving away his preferences on the issue of the advisability of gay marriage at all. The only reason "common sense" appears in that sentence is as a contrast to "conclusive scientific evidence," and the effect of the statement is to re-emphasize that the legislature does not have to have scientific evidence for its decisions to be rational. It can decide upon the basis of what it sees as common sense.
He's not making a normative judgment or affirming that the position is sensible. Rather, he's affirming that the legislature could find it a commonly-held belief and use that as justification. Perhaps it's slightly unhappily phrased, but the wording does not bear the weight you're giving it.
While I also felt ill at ease with Smith's child-raising justification (not because I disagreed with it but because it sounded like too much of an emotional plea - as was the essence of Kaye's dissent), it had to be included. If Smith had gone no further and had not mused as to the most likely justifications for limiting marriage to a man and woman, there would still be the question has to why concerns for "civil rights" do not trump concerns for legislative discretion, as they typically do... Of course, Smith's decision did not quash this tension, but he had to put some meat on the legal bones.