Perry Brief Bonanza

On December 6, the Ninth Circuit will begin hearing the appeal of District Judge Vaughn Walker’s decision in Perry v. Schwarzenegger, which struck down California’s gay marriage ban as a violation of Equal Protection and Due Process under the Fourteenth Amendment of the U.S. Constitution.  Supporters of the appellant, ProtectMarriage.com, filed their amicus briefs last month.  The Alliance Defense Fund, appellant’s co-counsel, has compiled links to those briefs–26 in all–here.

Yesterday, the opposition amicus briefs–that is, those arguing to uphold Walker’s decision–flooded in.  Prop8TrialTracker.com has compiled 24 of the briefs here.

I would like to commend, in particular, my friend Justin Ford of O’Melveny & Myers, for a job well-done co-authoring the National LGBT Association brief.  I’ve known Justin since our days at Duke together and regret that our tenures at Georgetown Law did not overlap.  If gay marriage–and with it, full and equal rights for gays–is the final frontier for American civil rights, then the Nat’l LGBT Ass’n brief squarely addresses the corresponding jurisprudential final frontier: whether laws classifying on the basis of sexual orientation should be subject to heightened scrutiny.

In arguing that heightened scrutiny should apply, the brief surveys the history of federal and state discrimination against gay Americans, including this lovely 1966 letter by then-Chairman of the U.S. Civil Service Commission, explaining the continued ban on gays in the federal government’s employ:

Pertinent considerations here are the revulsion of other employees byhomosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of thesexual deviate to erotic stimulation through on-the-job use of thecommon toilet, shower and living facilities, the offense to members ofthe public who are required to deal with a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.

Of course, gays are no longer banned from working in the federal government, and “Don’t Ask, Don’t Tell” is on the outs, whether judicially or politically.  But the brief argues that these gains made towards sexual orientation equality in the United States don’t stand in the way of recognizing gays and lesbians as a suspect class:

The existence of, for example, the Civil Rights Act of 1870, Civil Rights Act of 1964, and Voting Rights Act of 1965—not to mention the Fourteenth Amendment itself—obviously does not negate the suspicious nature of race-based classifications. More to the point, the Supreme Court in Frontiero noted the existence of antidiscrimination legislation enacted by Congress for the benefit of women—including the then-pending Equal Rights Amendment—as a factor cutting in favor of applying heightened scrutiny to sex-based classifications, because it showed that “Congress itself has concluded that classifications based upon sex are inherently invidious.”

Indeed, to show that gay rights have not enjoyed a one-way ratchet towards equality in recent years, the brief offers a litany of legislated from state statutes and constitutional amendments banning gay marriage to the federal Defense of Marriage Act to Congress’s failure to amend the Employment Non-Discrimination Act to include protection against sexual orientation discrimination.  “In light of these repeated legislative and ballot-box defeats,” the brief states,

it is difficult to see how gay people can be seen as “politically powerful” in any way that could possibly make a difference to the equal protection analysis. On the contrary, women and African-Americans have long demonstrated an ability both to obtain substantial protective legislation, and also to elect and appoint representatives to higher office, and yet legal classifications based on sex and race (rightly) remain suspicious and subject to heightened equal protection scrutiny. It is, in short, as indisputable as it is unacceptable that gay people continue to be treated differently by the law, and by voters, from straight men and women.  Such differential treatment is a product of historical animus and unjustified stereotype, and thus warrants the most searching scrutiny when subject to judicial challenge in any context.

The brief goes on to tackle the Ninth Circuit precedent standing in its way.  In the 1980 case of Hatheway v. Secretary of Army, the Ninth Circuit upheld a challenge to the military’s criminalization of sodomy, but along the way declared sexual orientation a quasi-suspect classification, like gender, worthy of intermediate scrutiny.  But this was reversed in 1990 by a case called, High Tech Gays v. Defense Industrial Security Clearance Office. Because the Supreme Court in 1986 ruled in Bowers v. Hardwick that states could criminalize homosexual conduct, the Ninth Circuit in High Tech Gays held that “because homosexual conduct can thus be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes.”

The brief then invokes a similar syllogism in support of returning to the Hatheway standard of review:

The central premise underlying High Tech Gays—that sexual orientation cannot constitute a suspect or quasi-suspect classification because homosexual conduct may be criminalized without any constitutional impediment—was squarely rejected in Lawrence v. Texas, which explicitly overruled Bowers.  The Lawrence Court determined that the “State cannot demean [gay people’s] existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention from the government.”

Because the foundation upon which High Tech Gays rested has been rejected by intervening Supreme Court precedent, the case is no longer controlling and must be overruled.  Just as High Tech Gays overruled Hatheway in light of Bowers, this Court should overrule High Tech Gays in light of Lawrence and apply heightened scrutiny to classifications based
on sexual orientation.

Overall, the brief is a powerful and accessible argument for the application of heightened scrutiny to classifications based on sexual orientation.  But the question remains: is heightened scrutiny even necessary, given that Prop 8 failed to meet the rational basis test in Judge Walker’s courtroom?   Here, there is some equivocation.  As Walker wrote:

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.  Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

In its previous gay rights cases, the Supreme Court struck down anti-gay laws using only the rational basis test.  Such review clearly empowered Judge Walker to extend that rationale to gay marriage bans, but it is unclear whether the Ninth Circuit or the Supreme Court will be equally disposed towards such an extension.  That uncertainty, it seems, has led the National LGBT Association to advocate for a more secure jurisprudential protection against discriminatory laws.  But given Justice Kennedy’s pivotal fifth vote, trusting in his just-for-gays rational basis review may be a better bet than counting on him to anoint a new suspect class.

As I wrote on the night of Judge Walker’s decision:

[S]exual orientation’s rational basis review, which started as a dodge by Justice Kennedy back in Romer v. Evans and continued by Justice O’Connor in her Lawrence v. Texas concurrence, now seems to be as protective as intermediate and strict scrutiny.  Rational basis review is supposed to be the most forgiving of acts of discrimination–if one gives even a hypothetical justification in defense of a discriminatory law or practice, that law or practice would always be deemed constitutional.  Higher levels of scrutiny were left for “officially” illegitimate identity-based classifications.

But now, the Court, in avoiding the anointment of a new suspect classification for fear of bringing the Clinton/Bush era culture wars into the courtroom, has made its imprimatur irrelevant.  If you enact a law or institute a practice that tells a distinct and traditionally maligned group of Americans that they are unequal citizens, then you are irrational.  Hypothetical justifications are now inadmissible opinions unworthy of deference.  And when this case reaches the Supreme Court, the justices’ reliance on rational basis review will no longer be a peevish dodge or refusal to stratify suffering; it will be an honest reckoning of an America that no longer tolerates intolerance.

It’s also worth considering that heightened scrutiny can be turned against the parties who originally sought it, whereas a uniform rational basis with bite test, as deployed in Romer and Lawrence, does not have the same pitfall.  Even rational and benevolent classifications based on race are subject to strict scrutiny, which has led to the cutting back on affirmative action over the last three decades.  Should sexual orientation classifications be subject to heightened scrutiny, future laws that seek to remedy past discrimination against gays may fall when challenged by straights incidentally burdened by such laws.

In all, however, as long as assignment to levels of scrutiny are meted out by identities and not by actions–which is always, given the Equal Protection Clause’s protection of persons–the National LGBT Association’s brief should be taken very seriously.  After Romer and Lawrence, our Equal Protection Clause jurisprudence with regard to sexual orientation makes no jurisprudential sense.  The brief forcefully states the obvious: heightened scrutiny for sexual orientation classifications is a no-brainer given the indisputable history of legal and social animus against gays in America.  Further, relegating sexual orientation classifications to rational basis also strains doctrinal integrity.  Over time, something must give: either all non-suspect classifications must be subject to similar biting “rational basis” review as laws impacting gays, or laws impacting gays must be subject to the standard forgiving review all non-suspect classifications have long enjoyed.

Whatever the Ninth Circuit decides (if it gets past the standing issue to get to the merits at all), the decision will ultimately be the Supreme Court’s, and thus, Justice Kennedy’s.  I have doubts that his liberal colleagues will once again join him in ducking the standard of review.  If he once again refuses the call to heightened scrutiny, this time to deny a majority over the issue, he will, at best, do so to push forward an idealistic vision of America in which rational basis alone is sufficient to defeat all discriminatory laws.  At worst, he will be committing unprincipled, political cowardice.

My suspicion, however, is that should he vote for a federal right to gay marriage (which is hardly certain), we will find his reluctance to anoint a new suspect class to have evolved.  However happy he might be to retain Romer‘s rational basis with bite, he will be the senior justice in the majority responsible for maintaining such a majority, particularly if he assigns the opinion to himself.  If he seeks anything short of intermediate scrutiny, he may have four justices threatening to splinter the majority and leave him with a lonely concurrence in the judgment, thereby robbing his opinion of its historical force.  Although addressed to the Ninth Circuit, the National LGBT Association’s brief is ultimately directed to this very to this consideration.

Marriage, Not Gay Marriage – says Judge Walker

I’m speed-reading through the Prop 8 case decision that just invalidated the ballot measure as violating the 14th Amendment’s Due Process and Equal Protection Clauses.  Judge Walker framed his decision not as creating a new right to gay marriage, but rather a vindication of the institution of marriage itself:

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages. (p. 114)

And because the Supreme Court has long held that marriage is a fundamental right, and holds that California’s domestic partnership alternative for same-sex couples is no substitute for that fundamental right.  Walker then applies strict scrutiny to the plaintiffs’ claims and concludes that Prop 8 violates the Due Process Clause of the 14th Amendment, largely because he held in the findings of facts that the defense’s witnesses were “unreliable and entitled to essentially no weight”:

As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.”  Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

On the Equal Protection front, Walker did not assign a heightened level of scrutiny to gays and lesbians, abiding by the Supreme Court’s refusal to cast equal suspicion on classifications based on sexual orientation as those based on gender or race.  But sexual orientation’s rational basis review, which started as a dodge by Justice Kennedy back in Romer v. Evans and continued by Justice O’Connor in her Lawrence v. Texas concurrence, now seems to be as protective as intermediate and strict scrutiny.  Rational basis review is supposed to be the most forgiving of acts of discrimination–if one gives even a hypothetical justification in defense of a discriminatory law or practice, that law or practice would always be deemed constitutional.  Higher levels of scrutiny were left for “officially” illegitimate identity-based classifications.

But now, the Court, in avoiding the anointment of a new suspect classification for fear of bringing the Clinton/Bush era culture wars into the courtroom, has made its imprimatur irrelevant.  If you enact a law or institute a practice that tells a distinct and traditionally maligned group of Americans that they are unequal citizens, then you are irrational.  Hypothetical justifications are now inadmissible opinions unworthy of deference.  And when this case reaches the Supreme Court, the justices’ reliance on rational basis review will no longer be a peevish dodge or refusal to stratify suffering; it will be an honest reckoning of an America that no longer tolerates intolerance.

Walker provides an example of this leveling of rational basis and heightened scrutiny by collapsing sex and sexual orientation discrimination into each other:

Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

In doing so, he also pulls out a nugget from Justice Ginsburg’s Christian Legal Society opinion that some seized on several weeks ago as a gay marriage “time bomb” in dicta:

Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian. Lawrence, 539 US at 579; FF 42- 43; see also Christian Legal Society v Martinez, 561 US __, 130 SCt 2971, No 08-1371 Slip Op at 23 (“Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].”) (June 28, 2010) (citing Lawrence, 539 US at 583 (O’Connor, J, concurring)). [my emphasis]

Just for the sake of it, though, Walker does explicitly intimate his belief that even though he is applying rational basis, strict scrutiny is appropriate:

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

This note, however, is more evidence that levels of scrutiny collapse when one recognizes animus-driven actions for what they are.  More searching review may come in time for less overtly hostile acts and practices, but hopefully by that time, there will be no more suspect classes and only suspect actions.

A jurisprudence of rights as opposed to identities appeals to Justice Kennedy, whether or not American society has caught up to his ideal.  Kennedy might not have liked to watch this case at first, but he will most certainly enjoy being in the center of the action once Perry v. Schwarzenegger gets to the Court.  As opposed to his more conservative brethren, he sees rights as robust vessels rather than narrow privileges.  For this reason, Walker’s Due Process analysis broadly reading the right of marriage will be Kennedy’s reasoning of choice, while we can count on Scalia to see such a robust reading as leading, at the very least, to unions between all consenting adults no matter how many or how closely related.

But for unanimity’s sake, Kennedy, or maybe a justice or four in the liberal bloc, would be well-advised to latch onto Walker’s Equal Protection analysis as well.  Under this analysis, Scalia has already accepted gay marriage as an legal inevitability, per his Lawrence concurrence:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

Of couse, gaining Scalia’s vote–even in an exasperated concurrence–is wishful thinking.  But at least the Court’s putative majority in Perry v. Schwarzenegger, — U.S. — (2013) will take pleasure in quoting him, as Walker did in his Finding of Fact 21(c) on page 61 of his 136-page opinion:

Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting) (“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct * * * what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”)

Nevertheless, there always does remain the chance that this putative majority may turn to mush in the face of a federal right to same-sex marriage, whether or not Walker’s framing survives the Ninth Circuit’s go-round.  And as I wrote after the Massachusetts DOMA cases:

The question now, however, is whether Justice Kennedy, the author of both Romer and Lawrence and the putative fifth vote in a gay marriage case, is willing to extend his sexual orientation discrimination jurisprudence the same way he has expanded his death penalty jurisprudence.  In other words, is recognizing a federal constitutional right for same-sex marriage more akin to sheltering juveniles from life without parole for non-homicide crimes, or is it more like deeming the death penalty at all times unconstitutional under the Eighth Amendment?  If the former, the Perry plaintiffs can take heart.  If the latter, Perry may fail to gain Kennedy’s approval, and Gill and Mass v. HHS will become the preferred precedents in the fight for marriage equality.

We must remember that even though Kennedy likes his rights robust, he has also become the limiting agent to the abortion right he helped preserve in Casey.  But there is a difference between the gay rights Kennedy has helped protect in Romer and Lawrence and the abortion rights he has since restricted since Casey: gay marriage, unlike abortion, has no dauntingly actual life-or-death element.

Yet as a matter of political consequence, a critical mass of states has not yet come to pass on gay marriage.  With only a handful of states and the District of Columbia recognizing same sex marriage, Perry may be more Roe than Loving, and I imagine that every member of the Court will have that in mind when considering the case.

What is certain is that same-sex marriage is gestating in the states, however few have so far endorsed it.  The question, then, will be whether Kennedy sees Walker’s opinion as a new birth of freedom for a class long robbed of its dignity, or as a grisly killing of viable progress throughout the states’ slow and steady political processes.

DOMA Unconstitutional?

The gay marriage battle has taken a significant step towards the Supreme Court today.  No, the verdict hasn’t yet been announced in California’s Proposition 8 case.  Rather, a federal district court in Massachusetts, in a pair of cases, has declared the Defense of Marriage Act, or DOMA, unconstitutional as applied to states and individuals.

Via Above the Law:

A federal judge in Boston — Judge Joseph L. Tauro (D. Mass.), appointed to the bench by President Nixon back in 1972 — just issued a ruling striking down Section 3 of the Defense of Marriage Act (DOMA). As you may recall, DOMA is the 1996 law that effectively bans recognition of same-sex marriages for purposes of federal law.

One case, Massachusetts v. U.S. Health and Human Services, struck down DOMA as a violation of Massachusetts’ Tenth Amendment rights.  The other case, Gill v. Office of  Personnel Management, declared DOMA to violate the equal protection component of the Fifth Amendment as applied to seven same-sex couples and three surviving same-sex spouses who were married in Massachusetts.

As this case seems destined for One First Street, somewhere Elena Kagan is thankful she didn’t commit to Sen. Chuck Grassley’s questioning her over the precedential value of Baker v. Nelson, the 1971 Minnesota Supreme Court case that held that a state law restricting marriage to the union of a man and a woman did not violate the Constitution–a holding that the United States Supreme Court dismissed on mandatory appeal in 1972 “for want of a substantial federal question.”

And somewhere in Iowa, Grassley is CTRL-F’ing the two opinions for any mention of Baker v. Nelson, only to find no mention of it by Judge Tauro.

In fact, by prefacing his questions to Kagan with the assertion, “Marriage is a state issue,” Grassley framed Baker v. Nelson in a way favorable to the prevailing plaintiffs in today’s rulings.  After all, Judge Tauro’s opinions struck to the heart of a federal law that cut against a state’s decision to recognize same-sex marriages.

But Grassley had not the Massachusetts cases in mind, but rather the Prop 8 case, Schwarzenegger v. Perry, in which a state constitutional amendment limiting marriage to a man and a woman violates the federal constitution.  On this point, Perry is the opposite of the Massachusetts cases: whereas Mass v. HHS asserted a state’s traditional supremacy in marriage matters over federal statutory meddling, the plaintiffs in Perry seek federal supremacy over a popularly-passed state constitutional provision.

Where the two come together, however, is in Gill.  Just as the Perry plaintiffs seek cover of the federal constitution’s guarantee of equal protection, so did the Gill plaintiffs prevail on that very claim.  The difference, of course, is that Gill employs the federal constitution to strike down a federal law; the Perry plaintiffs seek to use the same provision to strike down a state law.

But that may be a distinction without a difference when it comes to an equal protection claim rooted in sexual orientation discrimination–a concept that had no popular support or force of law when the Court passed on Baker v. Nelson in 1972.  But Romer v. Evans and Lawrence v. Texas set the Court on the path towards looking at state marriage laws that make classifications between sexual orientations with similar suspicion to those that did so on the basis of race.  And the Court surely meddled in the state’s traditional power to regulate marriage when it did find enough of a substantial federal question in the anti-miscegenation statutes in struck down in 1967’s Loving v. Virginia.

The question now, however, is whether Justice Kennedy, the author of both Romer and Lawrence and the putative fifth vote in a gay marriage case, is willing to extend his sexual orientation discrimination jurisprudence the same way he has expanded his death penalty jurisprudence.  In other words, is recognizing a federal constitutional right for same-sex marriage more akin to sheltering juveniles from life without parole for non-homicide crimes, or is it more like deeming the death penalty at all times unconstitutional under the Eighth Amendment?  If the former, the Perry plaintiffs can take heart.  If the latter, Perry may fail to gain Kennedy’s approval, and Gill and Mass v. HHS will become the preferred precedents in the fight for marriage equality.

Either way, though, Grassley’s implication that marriage, unlike criminal law, remains free from federal constitutional scrutiny rests on shaky historical foundations.  But then, if we take that notion seriously, what does that say about Tauro’s opinions today?