Demagogue

[Note: I’ve changed the title of this post, because the original title—“Judicial Activism in San Francisco”—really annoyed me. Also, people might actually start reading the post with the new title, to find out what on earth could be the context for the quote. If you really want to know, scroll to the very end of the post.]

As was the case with the Massachusetts SJC’s decision, I found the S.F. Superior Court’s opinion striking down the same-sex marriage ban less than persuasive. The opinion is undoubtedly well-written and thoughtful, but I don’t think it can really hold water. In the SJC, a plurality applied the “rational basis” test and found that the ban failed to meet it. A concurring justice applied “heightened scrutiny” to strike down the ban. Judge Kramer of the Superior Court applied both tests to reach two alternative lines of analysis under which the ban had to fall.

As in the SJC case, I think that the only way a same-sex marriage ban can fail the “rational basis” test is by significantly changing the test. Rational basis is ordinarily an extremely deferential standard that statutes almost never fail to meet. As long as the legislature could have had some reason to believe—even incorrectly—that the law served some legitimate purpose—even a trivial one—the courts will not strike down the law. In fact, it doesn’t even matter if the legislators in fact were acting irrationally; so long as the government’s lawyers can come up with some legitimate purpose that the legislature could have believed the statute to serve if it had thought about it, that’s enough. If there are competing views of reality, a court applying rational basis will not force the legislature to accept the view that the court prefers. For instance, one might challenge an clean-air law by saying that from a scientific and economic point of view, the approach taken by the statute is likely to produce only minimal improvements in air quality at best, while a different kind of regulation would accomplish much more with many fewer burdens on the public. But as long as the legislature wasn’t totally nuts in believing that its law might improve air quality, the courts won’t interfere. And by “totally nuts,” I really mean it: unless the law depends on a flat earth or a perpetual motion machine, it’s going to stand.

The upshot is that even stuff that we think is totally wrongheaded and based on idiotic “common sense” or crackpot studies funded by the fundies can pass the rational basis test. So the notion that kids are better off with straight parents, as hateful and stupid as it is, should be enough to sustain the inequality under rational basis, on the theory that legalizing same-sex marriages will tend to encourage the formation of families that are socially undesirable.

That said, I think one passage in the rational basis section makes an excellent point about the argument that same-sex couples can acquire many of the legal rights of marriage via other statutes and private contracts.

In this context, the existence of marriage-like rights without marriage actually cuts against the existence of a rational government interest for denying marriage to same-sex couples. California’s enactment of rights for same-sex couples belies any argument that the State would have a legitimate interest in denying marriage in order to preclude same-sex couples from acquiring some marital right that might somehow be inappropriate for them to have....Thus, the State’s position that California has granted marriage-like rights to same-sex couples points to the conclusion that there is no rational state interest in denying them the rites of marriage as well.

A couple of points about this passage:

1. Nice rhetorical twist here with the “rights but not rites” phrasing. I like it as a rallying cry against civil unions: “Don’t give them the rights of marriage without the rites of marriage.” The best thing is that both sides could use it equally well, the religious conservatives by saying (as does the Hate Amendment) that the legal incidents of marriage are as bad as the label and the pro-equality forces by saying that the back of the bus isn’t enough.
2. I think this analysis does not work on a judicial level. The fact that California has a ban on same-sex marriage but also has a statute granting many of the benefits of marriage to same-sex couples doesn’t mean that the ban is irrational. It means that there’s a political struggle going on, and that one side wins some battles and the other side wins other battles. Conceiving of “the State” as a unitary entity that either has a legitimate interest or does not warps the analysis. Presumably, most people within the State who supported the one-man, one-woman statutory definition of marriage also opposed the statute granting benefits to same-sex couples, and vice versa. If there is a logical tension, or even conflict, between these statutes, it’s not because the State lacks a legitimate interest in either of them; it’s because people who wanted the State to pursue one vision of the public interest pushed one statute and people who preferred another vision pushed a different statute, and both succeeded.
3. Even though I don’t think this works as a judicial analysis, I do think it makes sense as a policy matter. This is why I have strong feelings against civil unions as a compromise solution, even though, if pressed, I’d take civil unions rather than nothing at all. If we permitted same-sex couples to have all of the substance of marriage, but denied them the label, the only function of the denial would be symbolic. For some, it would mean that the word “marriage” “would continue to mean what it always has meant,” which they take to be a good thing. But for me, it’s an undeniable statement that heteros are superior to homos, that our families are on one plane and theirs on a lower one, and that they aren’t as important as we are. It’s what the SJC got at quite eloquently in its second opinion, in which it rejected an everything-but-the-label approach as imposing “second-class citizenship” on gays.

Anyway, on to the second line of analysis: “strict scrutiny.” Unlike the rational basis test, I think it’s almost a no-brainer to argue that a same-sex marriage ban fails strict scrutiny. The real question is whether strict scrutiny applies in the first place.

Under the strict scrutiny test, the State has to come up with a “compelling” interest—not merely a legitimate one—and prove that it could not achieve that interest through any less discriminatory means. In other words, the discrimination against whatever group is disfavored by the statute must be necessary to achieve the State’s compelling interest.

According to the Superior Court, laws that classify people by sex are subject to strict scrutiny under the California Constitution (under the federal Constitution, sex-based laws are subject to an in-between level called “heightened scrutiny” or “intermediate scrutiny”). Therefore, the legal fight is whether the ban on same-sex marriage classifies people by sex. The State argues that it doesn’t, because it applies to men and women equally. The pro-equality forces argue that it does, because whom you can marry depends on what sex you are. In other words, if you take a man and a woman who are identical in every other respect—age, marital status, mental competence, etc.—and ask whether they can marry Susan Jones, you find that the man can marry her and the woman can’t. The court rejects the State’s argument by analogizing it to the arguments supporting anti-miscegenation laws: a law that bans interracial marriages doesn’t treat blacks any differently from whites, as both are forbidden to marry across racial lines. (Indeed, one could argue that, at least in a formal sense, anti-miscegenation laws are less discriminatory than opposite-sex marriage laws, because any marriage that is forbidden by an anti-miscegenation law must by definition involve one white person and one black person, meaning that the law can never be applied to a black person’s detriment without simultaneously being applied to a white person’s detriment).

Again as in the SJC case, I find the strict (or heightened) scrutiny argument much more plausible. But we know what’s really going on here, just as we knew what was really going on with anti-miscegenation laws. Those laws were about maintaining white supremacy. Opposite-sex-only marriage laws are about treating homosexual relationships worse than heterosexual relationships. I happen to think that’s a lousy reason for a law. But, for purposes of legal analysis, the important point is that the courts have not said that sexual orientation is a “suspect classification.” Race is, and sex is (in California, anyway), so when you discriminate on those grounds, you have to withstand strict scrutiny. Until the courts decide that sexual orientation deserves similar treatment, the government is free (in theory at least) to discriminate against gays and lesbians as long as it can come up with some borderline-coherent theory to pass the rational basis test.

I’ll close this long and turgid post on a light note. The anti-equality litigants argued that the purpose of marriage under California law was procreation, so the State had a rational basis in excluding a group of people who cannot procreate with each other. For support, they cited a case from 1859, which said that “the first purpose of matrimony, by the laws of nature and society, is procreation.” But the Superior Court pointed out that the 1859 case was really about fraud: the husband did not know at the time of the marriage that his bride was carrying another man’s child. You can’t just pluck an irrelevant snippet from an opinion and treat it as a permanent statement of the law:

[T]he line in Baker regarding the “first purpose of matrimony” no more supports a rational government purpose to preclude same-sex marriage than would the line in the same paragraph that “with a man of honor, the purity of the wife is essential” support a notion that in California, only virgins can marry.

Touché. Not only is the judge absolutely right, but he deftly and implicitly aligns the anti-equality argument with other social views that the vast majority of the public would consider outmoded, sexist, and insulting.