JABbering Stooge

Wednesday, May 18, 2005

What's Wrong with Nebraska?

As promised, here is my rebuttal to commentary at The Volokh Conspiracy on Citizens for Equal Protection et al. v. Bruning:

I think it's quite mistaken, and will be reversed on appeal. A few thoughts:


Obviously, I disagree, and will point out why as we go along. I'll admit, I don't know much about this guy, but from a small sample of his writing I can tell he's at least got a modicum of legal training, which should present an interesting challenge. Out of respect for that, I'll take him seriously.

Point 1:
The judge doesn't hold that there's a constitutional right to same-sex marriage as such. Rather, he holds that the recently enacted Nebraska constitutional amendment banning same-sex marriage — "Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska." — is unconstitutional. (See footnote 1 of the decision.) But as I'll discuss below, the logic of the opinion suggests otherwise; if the judge is right, then states would indeed be required to recognize same-sex marriage.


I can't comment on the logical validity of this point until he actually discusses it (see Point 6), since all he has for this point is the claim.

However, even giving Volokh the benefit of the doubt, this point fails to answer the "so what?" question important to any historical or legal analysis. So what if the Equal Protection clause requires Nebraska to recognize Massachusetts' gay marriages? There is, at this point, no demonstrable evidence that allowing gays to marry would do more harm than good. In fact, the American Psychological Association, citing numerous studies, suggests that homosexual couples are just as qualified to raise children as heterosexual couples. Furthermore, the APA notes that "being gay is just as healthy as being straight." No harm, no foul. Thus, the government has no compelling public health reason to ban homosexual marriage.

Point 2:
First Amendment: The judge reasons that the amendment is unconstitutional because it interferes with people's First Amendment rights to advocate, and to association in order to advocate, for legislation protecting same-sex relationships: "The knowledge that any such proposed legislation violates the Nebraska Constitution chills or inhibits advocacy of that legislation, as well as impinging on freedom to join together in pursuit of those ends."

That, I think, can't be right. Most state constitutional provisions make it harder for people to enact certain laws — a state constitutional right to privacy, for instance, makes "chills or inhibits advocacy of [privacy-restricting] legislation" in precisely the same way as the Nebraska same-sex amendment does:


I broke this point up into two sections because it makes two distinct claims: 1) that state constitutional provisions banning homosexual marriage do not violate the First Amendment in the same way that other state constitutional provisions such as those protecting privacy rights do not violate the First Amendment and 2) that state constitutional limits on legislation do not violate the First Amendment because they don't prohibit free expression.

The second argument is predicated on the first, however, and the first exhibits a faulty premise - that state constitutional provisions banning homosexual marriage are in the same class of laws as state constitutional provisions protecting privacy, and thus do not violate the First Amendment. The reason bans on same-sex marriage aren't in the same class of laws as provisions protecting privacy rights is because one (privacy rights) empowers the individual by granting certain protections by unconstitutional intrusion by the state (Judge Bataillon's ruling cites Roberts v. United States Jaycees, Romer v. Evans, Board of Directors of Rotary Int'l. v. Rotary Club as precedent for such protection), while the other represents just such an intrusion that the Constitution was intended to prevent (bans on homosexual marriage).

Furthermore, Healy v. James (also cited in the ruling) concluded that any denial of official recognition to a class of individuals (in Healy v. James, the CCSC Students for a Democratic Society, in this case, homosexuals seeking marriage rights) placed an undue burden on those individuals' First Amendment rights. Additionally, the court could have used (but as far as I could tell, didn't use) McLaughlin v. Florida or similar anti-miscegenation cases to argue that banning homosexual marriage is as egregious a violation of the Fourteenth Amendment as laws banning interracial marriage which, via Healy v. James, would constitute an unconsitutional denial of official recognition. Thus the claim of a First Amendment violation is upheld.


Of course, none of these laws or constitutional provisions violate the First Amendment; they don't keep people from expressing their ideas — they just make it harder for people to turn those ideas into law. That is the very purpose of constitutional constraints on legislation, and the purpose doesn't violate the First Amendment. But precisely the same is true about the Nebraska same-sex marriage amendment.


For all the reasons described above, the above claim by Volokh is false.

Point 3:
Intimate association: The Supreme Court has recognized that people have an unenumerated right to engage in intimate association — to make friends, to rear children, to live with relatives, and the like. The judge in this case argued that the Nebraska provision interfered with this right:

[Note: Quote from ruling removed for brevity]

I'm not sure that the court is reading the amendment properly: Living together and sharing expenses (or even ownership of property) is not necessarily "the uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship" — the only legal relationships there are those of co-owners, which have never been seen as "civil unions," "domestic partnerships," or "same-sex relationships." (The matter might be somewhat different as to shared custody of children.)


But these are the very rights that same-sex couples would like to have, that are being unfairly denied by the state. There is a bit of circuitous logic at work here:

1) In order to have a legal relationship, a same-sex couple must be able to obtain joint ownership of an object (e.g., a car, a house, etc.).
2) Only those in a legal relationship may become co-owners (defined by the amendment in question as only heterosexual couples).
3) Thus, in order to become a co-owner, the homosexual couple must be in a legal relationship.
4) See statement 1.

Now, one might argue that in order to break out of the loop, each member of a homosexual couple could obtain a legal heterosexual marriage. However, they still wouldn't be able to obtain co-ownership rights as the homosexual couple, and thus are still stuck in the loop.

But in any event, the amendment does not prohibit any cohabitation relationships — at most, it bars the government from giving them legal recognition as a "civil union," "domestic partnership," or "same-sex relationship." The right to intimate association does not include the right to have the government specially subsidize or recognize your intimate association. That's why, for instance, the law can give married people special benefits that single people lack. Your intimate association rights doubtless give you the constitutional right not to get married, but that doesn't mean the government has to give you as a single person the same subsidies and special legal privileges that it gives married people. (I will deal with the equality argument below, but for now my point is simply that there's no violation of intimate association rights here.)


But here's the kicker - Heterosexual couples can easily change their status from cohabitating couple to full legal marriage and obtain the benefits. Homosexuals are denied the same opportunity, which presents both an undue burden on their right to intimate association and an equal protection violation, as I will discuss below.

The amendment might conceivably bar same-sex couples, as couples, from adopting children or having foster children. But the constitutional right to intimate association does not include the right to adopt or to have foster children.


No, but it is one of the benefits associated with legal marriage that homosexual couples are being unfairly denied.

Point 4:
Equal protection: The court holds that the Nebraska amendment violates the Equal Protection Clause, citing Romer v. Evans (1996). Here, it's argument is at least plausible: Romer struck down a Colorado amendment that prohibited all state and local bans on sexual orientation discrimination. I think Romer is wrong, badly reasoned, and vague in its implications; but, while it's impossible to tell for sure given Romer's vagueness, I think that Nebraska amendment is constitutional even under Romer.


A bold statement, given how vague he believes the Romer decision to be. But I'm a sporting kind of guy - let's see if he can back it up.

Romer rested in large part on the conclusion that the Colorado amendment's "sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests." The Colorado amendment's defenders urged that the amendment was needed to protect "other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality"; and the Court did not condemn this interest. Rather, it concluded that "The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them," chiefly because the Colorado courts interpreted the amendment as being extremely broad, covering many situations where no private landlords or employers were involved (for instance, when the government created a nondiscrimination policy governing its own operations).


Seems reasonable to me. How does this prove that the Romer decision was overly broad?

Here, the law leaves state and local government free to enact bans on sexual orientation discrimination in lots of contexts. The government only mandates that marriage and similar institutions be reserved for opposite-sex couples; and this mandate is closely tied to the government's desire to reserve the special benefits of marriage for that sort of relationship — a union of one man and one woman — that Nebraskans think is particularly valuable to society, and thus particularly worth fostering.


But, as Judge Bataillon cited in Citizens against Rent Control v. Berkeley, "[t]he voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation." And as I have already demonstrated above, the ban on homosexual marriages represents both an undue burden on homosexuals' intimate association freedoms and a violation of the Equal Protection clause.

The test that Romer set forth was that the law must have a rational relationship to legitimate state interests, not the very demanding "strict scrutiny" test (which requires narrow tailoring to compelling state interests). This "rational basis" test is traditionally pretty deferential to the government; and while in Romer it wasn't applied with the normal deference, the Court's stress in Romer was simply that the law was so overinclusive relative to the interest in protecting associational freedom that it was irrationally broad. Here, the law is a much better fit with the government interest. And it seems to me (and, I'd wager, to the Supreme Court) that the government interest in promoting opposite-sex relationships as the best for society is indeed a legitimate interest, even if it's one that reasonable minds may differ about.


I realize I'm just a neophyte when it comes to the law, but three things jump out at me in this paragraph:

1) Volokh claims that the Romer decision "wasn't applied with the normal deference," yet doesn't provide any logic or evidence to back up the claim.

2) As mentioned in my discussion of Point 1 earlier, the American Psychological Association has provided voluminous empirical evidence that a) homosexuals are equally qualified to raise children and b) homosexuals are no more or less healthy mentally than heterosexuals, thus negating the legitimate public good interest of the government - the only possible interest that I could see that might override concerns about civil liberties. Thus, the government has no case even under the supposedly "lax" standards of Romer.

3) With no legitimate overriding interests to stand on, one can only conclude that the sole reason for the ban on homosexual marriage is indeed an "irrational animus" against homosexuals.

Nor is it right to argue, as the court does, that the law "goes so far beyond defining marriage that the court can only conclude that the intent and purpose of the amendment is based on animus against [the] class [it affects]." First, the law doesn't go at all far beyond defining marriage; it clearly covers marriage and its modern equivalents and near-equivalents. It makes perfect sense that as new quasi-marriage statuses are set up to avoid the legal restrictions on marriage, voters would cover these quasi-marriages as well as traditional marriages.


But by tying certain legal benefits (co-ownership, bequeathing property upon death, etc.) to a particular definition of marriage that one class of citizens, by the very nature of who they are, has no access to, and has no legal recourse except the courts, and because there are no legitimate overriding government interests, the amendment does indeed "go so far beyond defining marriage" that the only "intent and purpose...is based on animus against [the] class [it affects]," as demonstrated above.

Second, while the law does reflect a sense that same-sex unions are less worthy of public support than opposite-sex unions, the Court has never held that this view is impermissible. Most laws reflect the notion that some conduct is better than other conduct.


Funny. In Point 1 above, Volokh castigates the court for opening the door to a state law banning gay marriage. Now he says that such an opinion is constitutionally correct. Which is it?

Unless (and I'll get to this below) the court really is saying that it's unconstitutional "animus" to have marriage be opposite-sex-only — that is to say, unless the court believes that Nebraska has to recognize same-sex marriages — there's no unconstitutional animus in Nebraska voters' insisting that marriage be opposite-sex-only, rather than just leaving the matter to their representatives in the legislature.


And as I demonstrated above (and at the risk of sounding like a broken record), as long as you're tying legal benefits to a particular definition of marriage that, by definition, precludes a whole class of people from even the possibility of participating without a legitimate overriding government interest, then that is absolutely "animus" against that particular class of people.

Incidentally, if you want to "protect" the institution of marriage from participation by homosexuals, you either have to get the government out of the practice by saying that marriage is a strictly religious venture, and that, in accordance with Church/State separation the government should not get involved (which interestingly enough, would permit gay marriage due to the existance of gay-friendly churches) or stop tying legal benefits to the practice (which would effectively result in the same thing, since the only reason for government to get involved in the institution of marriage is specifically to provide such benefits as a way of promoting marriage as a society stabilizing element). But perhaps the most effective way to "save" marriage would be to do something about the embarrassingly high rate of divorce among heterosexual couples.

Finally, note that the standard canon of interpreting statutes is that they must be interpreted to avoid constitutional problems, when such an interpretation is consistent with the language. For instance, if the court fears that reading the amendment broadly — for instance, covering co-tenancy contracts, or co-ownership arrangements, among romantically linked same-sex couples — would violate the Equal Protection Clause under Romer, then the court should read the amendment (quite plausibly) as not being that broad, and only covering marriages, statutory civil unions, or statutory domestic partnerships, not centuries-old generally applicable rules of contract and property law.


Again, even if it had been demonstrated that Romer had been applied too broadly (which has yet to be demonstrated), Romer was not even remotely close to the only case law that was used to decide this case, and that the amendment in question violates the intimate association freedoms of the First Amendment under Roberts v. United States Jaycees as well as the Equal Protection clause of the Fourteenth Amendment.

Point 5:
Bill of Attainder Clause: The court also reasons that the law is an unconstitutional bill of attainder because it "inflict[s] punishment" on same-sex couples, because it's "directed at gay, lesbian, bisexual and transsexual people and is intended to prohibit their political ability to effectuate changes opposed by the majority." That's quite mistaken, I think, for the reasons I mentioned as to the First Amendment — all state constitutional provisions, as well as federal laws that preempt state laws and state laws that preempt local laws, block some groups from enacting laws that they like.


Again, this premise is fatally flawed. See Points 1 and 2 for full discussion.

State constitutional bans on polygamy block polygamists from enacting laws that they like. State bans on lotteries block lottery operators from enacting laws that they like. Some state criminal rights provisions block some tough-on-crime folks from enacting laws that they like.


And in each case there are legitimate overriding state interests in banning such activities.

Virtually all known cases of polygamy have invariably involved what we would now consider statutory rape at some point or another. Furthermore, polygamous relationships are inherently unstable (For you anime fans, imagine if in Tenchi Muyou! Tenchi were married to Ayeka, Ryoko, Mihoshi, Kiyone, Washu and Sasami simultaneously).

Lotteries (or just about any form of gambling, in general), like prohibitions against certain potentially harmful substances, can be a magnet for organized crime (think Al Capone).

Finally, with "criminal rights" statutes that block certain "tough-on-crime" laws there is a federal constitutional concern (particularly in terms of the death penalty) with avoiding "cruel and unusual punishment."

As mentioned several times above, none of these sorts of concerns apply to homosexual marriage, which makes prohibiting homosexual marriage inherently unconstitutional.

Moreover, it's the nature of a democracy that the majority blocks "changes opposed by the majority." It may not block advocacy for such changes; but it can surely block such changes. And if the majority sufficiently opposes certain changes, it can block them at the state constitutional level rather than just at a state statutory level, or at a state statutory level rather than the local level. The whole point of state constitutions is for the statewide majority to prevent its representatives in the legislature (or voters or legislators in the state's political subunits) from enacting changes opposed by that statewide majority.


You know, it's this idea that the majority rules, and the minority can "go Cheney themselves" that most vexes liberals like myself. The idea is inherently anti-democratic and would have the Founding Fathers spinning in their graves. Furthermore, this sort of thinking advocates a return to a Hobbesian state of nature where the strong make the rules and the weak always get the shaft - antithetical to the very idea that civilization is supposed to promote - that of always bettering oneself and one's fellow citizens.

Moreover, majorities aren't always permanent - today's majority can easily become tomorrow's minority. If we're going to survive as a civilization, we need laws that withstand changes in the political landscape (after all, a stagnant civilization is a doomed civilization). Historical precedent has shown that the best way to do that is to continue to widen the circle of freedom to include those previously disenfranchized, within reasonable limits.

The prohibition on Bills of Attainder provision has never been read remotely as broadly as the court suggests; nor would it make any sense for it to be read this broadly.


Given that this sentence is the first time in the entire piece that Volokh even touches upon the Bills of Attainder argument, I'd say he still has considerable work to do if he wants to convince anyone that the Nebraska court was wrong to use it as a reason for striking the constitutional amendment in question.

Point 6:
But in any event — and here I return to what I said in point 1 — if the court is right about the Romer analysis, then it must be because there is no legitimate government interest in favoring opposite-sex long-term relationships over same-sex ones. Likewise, if the court is right about the intimate association analysis, then it must be because the right to intimate association guarantees same-sex couples the right to equal government benefits with opposite-sex married couples, rather than just a right to live together. And if the court is right about bills of attainder, then its analysis equally applies to state law rules that preempt contrary marriage provisions at the city level. (Imagine Portland or San Francisco trying to set up its own marriage rules, over the objections of the rest of Oregon or California.) And if that's so, then despite the court's protestations, its reasoning necessarily means that states are constitutionally required to recognize same-sex marriage (or, under the bill of attainder analysis, at least are required to let any locality recognize same-sex marriage).


The bulk of this last point is comprised of a rehash of Volokh's earlier flawed arguments. However, the conclusion he arrives at, that the justifications cited by the court for overturning the Nebraska constitutional provision banning same-sex marriage necessitates Nebraska recognizing same-sex marriage licenses from other states, is true. While the rules of deductive reasoning certainly allow one to arrive at a true conclusion from false premises, ultimately, the validity of the argument is corrupted ab initio by the false premises it is based on. Furthermore, Point 6 still fails to answer the "so what?" question that was left unanswered way back at Point 1.

Because of this, Volokh's arguments against the Nebraska court's ruling, while most professionally done, are sorely lacking.

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