Friday, September 10, 2010

In Re Proposition 8: Perry v. Schwarzenegger

At  11 am on September 9th, the lead counsel defending prop 8 in Perry, Chuck Cooper, spoke to students and faculty at BYU's Law School.  I was privileged to sit in the front row, from which position I could observe not only Mr. Cooper but other VIP's such as DC Circuit Court Judge Tom Griffith; First Quorum of the Seventy member Lance Wickman; former clerk for Justices Warren Burger and Antonin Scalia, Von Keetch; J. Reuben Clark Law School Dean James Rasband; and professors Cole Durham and Lynn Wardle. 

Mr. Cooper spoke for a half hour to the standing-room only crowd, focusing on faults in Walker's decision.  After discussing the history and purposes of marriage, he opened to questions.  There were many hands and little time- but amazingly after a few questions such as how homosexual marriage harms heterosexual marriage and whether the plaintiffs have standing to appeal, I was chosen.  I even got to ask two questions!  Hogging the Q and A time- selfish I know.    

My first question addressed his claim that homosexuals can't reproduce.  I refuted his claim, showing that some of them do reproduce by citing two examples (e.g. lesbian couple- partner A gets her egg artificially inseminated, then implants the embryo in partner B who bears the child.  Or, a gay couple who mix their sperm, fertilize a donated egg, then have a close friend act as surrogate).   I further noted that stimulating the germline development of totipotent cells from partner A into sperm, then using that sperm to fertilize an egg of partner B, would yield a two biological parent homosexual household.  I concluded by asking whether advancing reproductive technologies such as these would weaken his tradition-based argument.  He said no, but admitted that eventually it would if the technologies get to that point (a notable concession).  He pointed out that a third party intercessor is required.  I didn't push him on the contention that no one balks at infertile heterosexual couples doing the same or similar third-party-required procedures.  For that matter, I also refrained from the more obvious rebuttals that reproduction or likely reproduction or even potential reproduction has never been required to get a marriage license.  Even if reproduction is vital to the institution of marriage, if you'll let old people who can't reproduce (and others who aren't likely to reproduce) marry, why deny marriage to homosexual people on the basis of their reduced reproductive capacity?   Anyway, back to the story.

He continued to answer my question by citing a lengthy list of social ills, such as children growing up in single parent families, children growing up without a father, and the education and poverty and drug problems that result in those situations.  This is where he lost me.  I spent a chunk of my summer as a research assistant for a law professor researching issues such as the economic and social consequences of family breakdown (let me know if you'd like my research document). Thus, I was aware of how well documented the ills are that he cited.  However, they don't advance his position!  He's arguing for a particular definition of marriage (only a man and a woman) over an alternate (man and a woman + man/man and woman/woman).  Yet the evidence he cites is not causally linked to his advocacy of definition A over definition B, and thus amounts to a red herring.  Sure, we all agree that those social outcomes are undesirable - but they've mostly taken place during the last 30 years, during which time as Mr. Cooper noted the applied marriage definition has been the traditional one.  Thus, the most likely deduction is either that 1) other factors besides the definition of marriage caused those ills or 2) the traditional definition has contributed to those ills.  The speculative, prospective accusation that the alternate definition would exacerbate those negative social consequences is the least supported deduction of the three. This rhetoric bears the signs of a classic witch hunt: though most everyone is upset about the breakdown of the family, you’ve pinned the tail on the wrong donkey.  Homosexuals are not the perpetrators of society’s broken homes and single parenting.  

Thus, my follow up question appropriately demanded that he identify the nexus or link between the ills he cites and the alternate marriage definition he opposes.  I found his response, which centered on the ills resulting from general family breakdown being likely to increase because of the weakening the institution by the alternative definition, unsatisfying.  The alternate definition is not clearly a weakening of the institution- it is only clearly different.  Whether the change weakens, strengthens, or doesn't affect marriage is neither agreed upon nor well evidenced, and thus in the absence of empirical data amounts to little more than a value judgment which lacks the ability to confidently predict future consequences.  The evidence he emphasized is a nothing more than a red herring effectively wielded on those unaware of the glaring gap between that evidence and his proposition. 

However, his overall position seems to be in line with the LDS church on the matter: "The Church of Jesus Christ of Latter-day Saints regrets today’s decision.  California voters have twice been given the opportunity to vote on the definition of marriage in their state and both times have determined that marriage should be recognized as only between a man and a woman."  When I first read this, my response was: "Uh, what happened to the Constitution-loving church I thought I knew?"

I hope it is not necessary to prove that the LDS church is Constitution-affirming.  Besides the potent endorsements of the Constitution in the Doctrine and Covenants (98:5-6, 101:77-80, 109:54), President Ezra Taft Benson ("I reverence the Constitution of the United States as a sacred document. To me its words are akin to the revelations of God, for God has placed His stamp of approval on the Constitution of this land") and President Hinckley, ("The Constitution under which we live, and which has not only blessed us but has become a model for other constitutions, is our God-inspired national safeguard ensuring freedom and liberty, justice and equality before the law") while president, both unequivocally endorsed the document.  Elder Oaks: "If we oppose persons who hold particular offices or the policies they pursue, we are free to vote against them or work against their policies. But we should not carry our opposition to the point of opposing their offices, or we weaken the institution of constitutional government." 

"It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is."- Marbury v. Madison.   The judicial branch determines the constitutionality of state laws and state constitutional provisions under the federal constitution.  A state law, or even a state constitution, may not deprive a US citizen of a right under the US Constitution.  If indeed there is a constitutional right to marry (as has been recognized in numerous US Supreme Court cases- see e.g. pg. 110 of the Perry opinion), then it is emphatically the judicial branch's job to define that right.  An absence of a definition would make the right meaningless, for one could not then discern when or whether the right is violated.  One may certainly argue that the court got it wrong, but I fail to see the defensibility of the position of a US Constitution-affirming church that the people of California should be the ones to define a federal constitutional right.  "[T]he United States Supreme Court... has the ultimate responsibility of interpreting the meaning of the lofty and general provisions of the Constitution" -Elder Oaks.  Coincidentally, Elder Wickman expressed basically the same position as the church that the legislature/people of California should be defining marriage rather than the courts during my conversation with him right afterward (which conversation also included a notable Q and A about the Oaks/Wickman press conference on homosexuality).  I guess I don't see his/the church's logic.  It may seem odd that one man (Judge Walker) can overturn the expressed will of 13.4 million (7 million in favor, 6.4 opposed).  You may even agree with Thomas Jefferson, who in response to Marbury v. Madison said "that if this view of judicial power became accepted, it would be 'placing us under the despotism of an oligarchy.'"  To Thomas Jefferson and those who contend similarly I say: you lost!  Welcome to contemporary America.  Federal judicial review of state law or conduct alleged to be violative of the federal constitution is how our system's been working for over two centuries now. 

Sidenote: I'm still debating on whether to compose and publish an exegesis of the Walker decision.  

Below I provide a document I made as part of my research assisting job this summer on the question of whether courts should be in the business of defining marriage.  I doubt most readers will be interested, but in case some are I include this excerpt.  The end.
Research task-
Whether courts constitutionally and structurally have the power to mandate the legalization of same-sex marriage (SSM): find the best 5 or 6 sources that give the latest, current, cutting-edge research regarding
         a)  modern political theory about the role of courts in the American democratic republic in resolving such issues as whether to legalize SSM;
         b)  modern constitutional law theory and doctrine regarding the role of courts in the American democratic republic in resolving such issues as whether to legalize SSM;
         c)  the best conservative political theory about the role of courts in the American democratic republic in resolving such issues as whether to legalize SSM;
         d)  the best liberal political theory about the limited role of courts in the American democratic republic in resolving such issues as whether to legalize SSM;
         e)  the best law review articles discussing whether political powerlessness is a necessary or sufficient requirement for receiving protection of strict or heightened scrutiny.
         f)  the best law review articles discussing the test for ascertaining unwritten constitutional fundamental rights that trigger "strict scrutiny."
         g)  the best case law discussing the test for ascertaining unwritten constitutional fundamental rights that trigger "strict scrutiny."
         h)  get the best 3-4 cases and 3-4 articles that talk about the "political question" exception to court justiciabilty.”
RULE:  Law review articles, cases, and secondary resources help answer all of the above sub-questions.
Attempts to identify helpful sources about modern political, liberal, and conservative theory through political science department experts and the HBLL political science librarian were unsuccessful.  However, independent efforts did prove reasonably successful.  I address each research sub-question in turn, identifying 5 or 6 sources that give the latest, current, cutting-edge research regarding: 
A)    Modern political theory about the role of courts in the American democratic republic in resolving such issues as whether to legalize SSM

1)    Neal Devins, How State Supreme Courts Take Consequences Into Account: Toward a State-Centered Understanding of State Constitutionalism, 62 STAN. L. REV. 1629 (2010).
“The dominant political science models posit that U.S. Supreme Court Justices are principally interested in pursuing favored policies” (1656).  “From 1993 to 2009, seven state supreme courts interpreted their constitutions to provide expansive protections to same-sex couples… The most salient characteristic shared by all seven courts is their retention schemes. None of the seven make use of contested judicial elections” (1676).    Section III is entitled, “Taking Consequences Into Account: Lessons from Same-Sex Marriage.” 

2)    Sue Davis, Discrimination Through Direct Democracy: The Role of the Judiciary in the Pursuit of Equality, in THE JUDICIAL BRANCH, 375-400 (Oxford University Press 2005).

In chapter 14 of the book, Sue Davis examines “the relationship between majority decision-making and judicial review in the context of the initiative.”  She addresses “the myth of the countermajoritarian difficulty,” examines Colorado’s Amendment 2 (prohibiting prohibitions on sexual orientation-based discrimination), and concludes that “judicial intervention… far from interfering with the will of the people, actually served to encourage political participation…” (395).

3)    David A. Yalof, Courts and the Definition of Defendants’ Rights, in THE JUDICIAL BRANCH, 432-458 (Oxford University Press 2005).

Yalof in chapter 16 argues, “Not so clear is the role judges should play in helping to establish rules defining the rights of … defendants… Is such rulemaking more properly the province of federal and state legislatures?” (435).  He further states, “As a countermajoritarian fixtures of our democratic system, the Supreme Court is often subject to especially harsh criticism” and “it may seem surprising… that the courts… defin[e] and articulat[e] defendants’ rights in our democratic system” (455).  The book also has several chapters about the majoritarian difficulty, judicial review, judicial independence, and American democracy.

4)    William N Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 YALE L.J. 1279, 1283 (2005).

“Part III applies the foregoing model of pluralism-facilitating judicial review to several topics of current and future constitutional interest: the role of courts in… state and federal bars to same-sex marriage...  For contentious issues that roil the nation, the Supreme Court should not impose national resolutions and should instead rely on dialogic techniques that essentially remand to the democratic process and leave it room to elaborate or respond.” 

5)    Kevin J. Worthen, Who Decides and What Difference Does it Make? Defining Marriage in Our “Democratic, Federal Republic”, 18 BYU J. PUB. L. 273, 274 (2004).

The article “seeks to draw attention to the perhaps equally important--but often overlooked--issue of the proper form and forum for resolving the substantive issue. It asks the question, if we awoke tomorrow to the newspaper headline--”Legality of Same-Sex Marriage Decided”-- what difference would it make if the succeeding story referred to 1) a federal statute, 2) a U. S. Supreme Court decision, 3) a federal constitutional amendment, 4) a state statute, 5) a state supreme court decision, or 6) a state constitutional amendment? The article attempts to answer that question in light of the structure of what I call “our democratic, federal, republican” form of government.”  Classic republicanism and classic liberalism, two political philosophies, are analyzed in the defining marriage context.

B)    Modern constitutional law theory and doctrine regarding the role of courts in the American democratic republic in resolving such issues as whether to legalize SSM

1)    Aileen Kavanagh, Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication, in EXPANDING THE CONSTITUTION: ESSAYS IN CONSTITUTIONAL THEORY (Grant Huscroft, ed. 2008) available at
“In this chapter I will address two main questions: (1) Why do judges sometimes refrain from using the full amplitude of their powers to adjudicate constitutional issues and prefer, instead, to defer to the elected branches of government, and (2) should they defer?”

2)    Naomi Cahn & June Carbone, Deep Purple: Religious Shades of Family Law, 110 W. VA. L. REV. 459, 497 (2007).

In the section “Neutralizing the Role of the Courts,” the authors note: “Federal political appointments have clearly become politicized and in many states the public elects judges or votes to continue them in office.  To the extent that the courts lack independence, and to the extent that cautious, legally grounded decisions become defined in partisan terms, the courts lose their ability to provide effective leadership. At that point, legislative judgments become paramount.”  The same authors, in Judging Families, 77 UMKC L. REV. 267, 268-9 (2008) “examine the possibilities and challenges for the judicial role in the moral values debate… These conflicts pose their sharpest challenge to the judiciary when the determination to secure particular results comes ahead of the commitment to institutional integrity... we compare the role of federal and state courts in implementing the decisions at the crux of this divide… We conclude that, when the issues become too politically inflamed, the judiciary departs the field, deferring to the findings of law, policy or fact of other decision-makers.”

3)    Glen Staszewski, Reason-Giving and Accountability, 93 MINN. L. REV. 1253 (2009).

The article “proceeds to explain that this course of action would have significant implications for the proper conception of the structure of American democracy, which would help to resolve some of the most contested issues in the fields of constitutional theory, administrative law, and legislation” (1295).   “Unlike most other policy issues, the existing paradigm of public law could therefore be applied to the legal treatment of same-sex marriage in a relatively meaningful and straight-forward fashion” (1313).  Last, “we could finally move beyond the countermajoritarian difficulty in constitutional law by recognizing that judicial review does not substitute the preferences of an unaccountable judiciary for those of an accountable legislature” (1302).

4)    Martha Nussbaum, A Right to Marry? Same-Sex Marriage and Constitutional Law.   DISSENT 56(3): 43 (2009). 

In the context of arguments about defining marriage and the backdrop of marriage historically, Nussbaum analyzes the legalization of same-sex marriage from Equal Protection, Establishment Clause, and Free Exercise perspectives.  She also discusses the constitutional right to marry, Due Process, privacy, and discrimination. The University of Chicago author also published a book earlier this year entitled From Disgust to Humanity: Sexual Orientation and Constitutional Law.  This article is available in the magazine Dissent through the HBLL.

5)    Monte Neil Stewart, Marriage Facts, 31 HARV. J.L. & PUB. POL’Y 313 (2008).

“Do constitutional norms, particularly of equality and liberty, require the redefinition of marriage from the union of a man and a woman to the union of any two persons? In the present judicial contest over this issue, the real dispute is not over principles of law but about the facts of marriage… A critical examination of the two accounts reveals that the factual description of marriage advanced by proponents of man-woman marriage is more accurate. The Article then analyzes the widely held assumption that judicial selection of the standard of review—rational basis, heightened (but not strict) scrutiny, or strict scrutiny—determines the outcome in cases addressing the constitutionality of traditional marriage laws. That analysis concludes that the choice of marriage facts, not the standard of review, is ultimately dispositive.” 

6)    Julia Halloran McLaughlin, DOMA and the Constitutional Coming Out of Same-sex Marriage, 24 WIS. J.L. GENDER & SOC’Y 145 (2009).

“The Constitution protects, as a bedrock principle, the individual's right to autonomy and self-determination in matters of marriage without regard to sexual orientation. Should the right to marry depend upon sexual orientation or upon broader concepts of equality and self-determination? This article answers these questions by using and extending the concept of structural reasoning.” 

C)    Best conservative political theory about the role of courts in the American democratic republic in resolving such issues as whether to legalize SSM

1)    Martha T. McCluskey, Thinking With Wolves: Left Legal Theory After the Right’s Rise, 54 BUFF. L. REV. 1191, 1270 (2007).
Though it fails to specifically address the role of courts in resolving issues, this article provides important context for understanding modern conservative and liberal political theories’ consideration of same-sex marriage legality.  “Like left Crits and market libertarians, social conservatives challenge the liberal presumption that rights-based or regulatory reforms can be fashioned neutrally to facilitate individual moral choices without disturbing the social order that shapes those choices. The social conservative opposition to same-sex marriage, for example…”

2)    Amy Wax, The Conservative’s Dilemma: Traditional Institutions, Social Change, and Same-sex Marriage, 42 SAN DIEGO L. REV. 1059 (2005).

“Drawing on the work of some leading conservative thinkers, it investigates whether a coherent, secular case can be made against the legalization of same-sex marriage and whether that case reflects how opponents of same-sex marriage think about the issue.” 

3)    Andrew Koppelman, The Decline and Fall of the Case Against Same-sex Marriage, 2 U. ST. THOMAS L.J. 5, (2004).

“My primary task here is to review and critique the arguments that are now being made against same-sex marriage… Same-sex marriage is one of the central issues that has made religious Christians a reliable part of the Republican coalition that dominates modern American politics.” “Robert Bork, the nation's most prominent conservative legal scholar, writes that the second sentence “recognizes that liberal activist courts are the real problem,” and leaves the question of domestic partnerships “where it should be, to the determination of the people through the democratic process” (8). 

4)    Louis Michael Seidman, Gay Sex and Marriage, the Reciprocal Disadvantage Problem, and the Crisis in Liberal Constitutional Theory, 31 HARV. J.L. & PUB. POL’Y 135 (2008).

Though the author concludes it is wrong, he details a conservative position by analyzing Scalia’s dissent in Romer: “the Supreme Court's defense of gay rights “employs a constitutional theory heretofore unknown” and depends on “a novel and extravagant constitutional doctrine.” The Court's treatment of the gay community as a politically unpopular group worthy of constitutional protection is “nothing short of preposterous” and “insulting.” A Court opinion striking down discrimination against gay men and lesbians “has no foundation in American constitutional law, and barely pretends to.”  

5)    Carlos A. Ball, The Backlash Thesis and Same-sex Marriage: Learning from Brown v. Board of Education and its Aftermath, 14 WM. & MARY BILL RTS. J. 1493 (2006).

“[T]he same-sex marriage movement must begin to pay greater attention to the legislative and political arenas and (proportionally) less attention to the courts.”  The article extensively discusses conservative activity in the same-sex marriage context. 

D)    Best liberal political theory about the limited role of courts in the American democratic republic in resolving such issues as whether to legalize SSM

1)    Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 IOWA L. REV. 243,  (2005).
Boasting chapters about both “The Role of Courts” and “Liberal Political Theory,” this article “concludes by illustrating how courts can serve as crucial nodes of interaction between federal and state authority. In this way, the courts can fulfill the goals of federalism, including the protection of individual rights.”  Also, “So far, while troubling theoretically, the practical effects of the Court's restriction of federal authority have been limited. Lower courts generally have upheld the constitutionality of federal statutes, and Congress can usually find some way to achieve its intended goals.” 

2)    Judith E. Koons, Engaging the Odd Couple: Same-Sex Marriage and Evangelicalism in the Public Square, 30 WOMEN’S RTS. L. REP. 255 (2009).

“[T]he opposition between liberal individualism and civic republicanism has become less distinct, with claims of individual autonomy not simply opposed to, but joined in tension with, notions of citizenship and collective goods. The phenomena of same-sex marriage and political evangelicalism are indebted to both political traditions… In liberal theory, the principle of individual autonomy is the lifeblood of gay and lesbian civil rights… In republican theory, marriage is the chief social good and “seedbed of virtue” that is endorsed by evangelicals and same-sex couples on principles of unitivity and procreativity.”

3)    Naomi R.  Cahn and June Carbone, Red Familes v. Blue Families: Working Paper, 18 UNIVERSITY OF FLORIDA JOURNAL OF LAW AND PUBLIC POLICY, forthcoming; GWU LAW SCHOOL PUBLIC LAW RESEARCH PAPER NO. 343, in possession of Brad Carmack and available at SSRN: (SSRN membership is free). 

Like their book by the same title, this article discusses the reality that “the injection of polarized rather than consensus values into the debate undermines the role of courts in mediating public morality even in the most conservative of states” (55).  The authors evaluate the Kennedy majority and the Scalia dissent in Lawrence and advocate, albeit in the family law context, a liberal theory-derived limited role of courts.

4)    Linda C. McClain, Red Versus Blue (and Purple) States and the Same-Sex Marriage Debate: from Values Polarization to Common Ground?, 77 UMKC L. REV. 415 (2008).

“This article considers the degree to which the courts and political majorities should have a role in protecting the values and morals of a population… Dworkin seeks to look beyond the red and blue distinctions to focus on national morality issues, whereas Cahn and Carbone focus on the advantages of permitting different states to promote different values.”  “Carbone and Cahn's view of a new paradigm for the family is somewhat suitable but may in fact perpetuate conservative values regarding marriage.”   “Another framing, inspired by liberal political theory, would ask about the role in courts given value pluralism…”

5)    Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 HARV. L. REV. 1693, 16 (2008).    

“Having heard the critics, I now believe that the affirmative case for judicial review needs to be partially revised if judicial review is to be defended successfully on the moral high ground of liberal political theory. In a nutshell, the best case for judicial review in politically and morally healthy societies does not rest (as has often been asserted) on the idea that courts are more likely than legislatures to make correct decisions about how to define vague rights of the kind commonly included in bills of rights--on notions, for example, that courts are peculiarly well designed to function as “forum[s] of principle.” The best case, as Frank Cross also has argued, rests instead on the subtly different ground that legislatures and courts should both be enlisted in protecting fundamental rights, and that both should have veto powers over legislation that might reasonably be thought to violate such rights.”  (referencing Institutions and Enforcement of the Bill of Rights, 85 Cornell L. Rev. 1529, 1576 (2000) (arguing that judicial review may be justified even if a judiciary lacks “any intrinsic advantage in constitutional interpretation and enforcement” because “adding an additional check on government action will enhance the liberty the Bill of Rights offers”)).

6)    Robert M. Pallitto & Jason Hungerford, The Proposed Anti-Gay Marriage Amendment: The Constitution, the Law of Standing, and Liberal-Democratic Values, 17 LAW & SEXUALITY 75, 79 (2010).

“In essence the question of standing… is founded in concern about the proper--and properly limited--role of the courts in a democratic society.”

E)    Best law review articles discussing whether political powerlessness is a necessary or sufficient requirement for receiving protection of strict or heightened scrutiny

1)    Ingrid M. Lofgren, The Role of Courts Vis-à-vis Legislatures in the Same-Sex Marriage Context: Sexual Orientation as a Suspect Classification, 9 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 213, 239 (2009).
Lofgren’s article includes the phrase “political powerlessness” 31 times, including: “Immutability and political powerlessness are supplementary rather than determinative indicia of suspectness and, as such, need not be considered.”

2)    Emily K. Baxter, Rationalizing Away Political Powerlessness: Equal Protection Analysis of Laws Classifying Gays and Lesbians, 72 MO. L. REV. 891, 907 (2007).
Lofgren’s article includes the phrase “political power” 29 times, including: “if the Court chooses to apply its equal protection analysis evenhandedly by measuring the political power of homosexuals in the same manner it has measured the political power of other groups, the Court may find that laws classifying based on sexual orientation are subject to heightened or strict scrutiny.”

3)    Andrew Olivo, Secrets and Lies: The Intelligence Community’s “Don’t Ask, Don’t Tell”, 12 SCHOLAR 551 (2010).

“Problematically, the Supreme Court has never defined or clarified the exact meaning of “political power,” thus leaving individual courts and states to grope around in the dark for a suitable definition” (576).  “[S]everal courts have recently held that a group's political powerlessness need not be current in order to qualify for enhanced scrutiny” (577).  “There is no brightline diagnostic, annunciated by either this [c]ourt or the U.S. Supreme Court, by which a suspect or quasi-suspect class may be recognized readily” (n.133).  “Conaway v. Deane, 932 A.2d 571, 609 (Md. 2007) (holding that the political power of homosexuals is sufficient to not classify homosexuals as a suspect class)” (n.135).

4)    Rachel A Shapiro, Conaway v. Deane: To Have and to Hold, From This Day Forward—Maryland’s Unfit Marriage to Federal Equal Protection Analysis, 68 MD. L. REV. 957 (2009).

“Courts balancing the factors typically afford the second two factors-- political powerlessness and immutability--less weight than the others. Those factors are mere “supplements” to suspect class analysis. By contrast “the first two factors--history of intentional discrimination and relationship of classifying characteristic to a person's ability to contribute--have always been present when heightened scrutiny has been applied. Because those first two factors are so critical to suspect class analysis… Maryland courts analyze only the two factors the Supreme Court considers the most important” (968).  “By the time the Maryland Court of Appeals reiterated this test in Hornbeck, the Supreme Court had already articulated all four indicia of suspectness. Nevertheless, the Hornbeck court incorporated only two of the federal indicia into its definition” (969). 

5)    Jean C. Love, The Synergistic Evolution of Liberty and Equality in the Marriage Cases Brought by Same-Sex Couples in State Courts, 13 J. GENDER RACE & JUST. 275 (2010).

This article submitted to the symposium “As Iowa Goes, So Goes the Nation: Varnum v. Brien and Its Impact on Marriage Rights for Same-Sex Couples” highlights the “path-breaking” and “unprecedented” conclusion of sexual orientation as a suspect classification subject to strict scrutiny.   

6)    William N. Eskridge, Foreward: The Marriage Cases- Reversing the Burden of Inertia in a Pluralist Constitutional Democracy, 97 CAL. L. REV. 1785 (2009).

“[T]he attorney general still argued that homosexuality should not be a suspect classification, because there was an implicit fourth criterion in the test, “political powerlessness.” The argument for this implicit fourth criterion was taken from the representation-reinforcement theory of judicial review, classically explained by former Stanford professor and dean John Hart Ely. Under Dean Ely's theory…” (1818).  This article contains a few paragraphs of political powerlessness analysis in the context of sexual orientation. 

F)    Best law review articles discussing the test for ascertaining unwritten constitutional fundamental rights that trigger "strict scrutiny."

1)    Ronald D. Rotunda, Fundamental Rights, 2 TREATISE ON CONST. L. § 15.7 (4th ed. 2010).
“These are rights which the Court recognizes as having a value so essential to individual liberty in our society that they justify the Justices reviewing the acts of other branches of government in a manner quite similar to the substantive due process approach of the pre-1937 period. Little more can be said to accurately describe the nature of a fundamental right, because fundamental rights analysis is simply no more than the modern recognition of the natural law concepts first espoused by Justice Chase in Calder v. Bull.”  The author discusses Bower and Lawrence, references Romer, and identifies a fundamental right to freedom of choice in marital decisions, child bearing, and child rearing. 

2)    Rosalie Berger Levinson, Time to Bury the Shocks the Conscience Test, 13 CHAP. L. REV. 307, 356 (2010).

The author discusses fundamental rights inquiry and tiered scrutiny in several contexts.  The last line says: “Lewis' shocks the conscience test and its progeny should be rejected in favor of an approach that restores the Due Process Clause to its historical position as a core guarantor against raw abuse of power by members of all three branches of government.”

3)    James A. Kushner, Equal Protection Standards in Specific Cases: Gays, Lesbians, and Sexual Orientation, GOV. DISCRIM. § 5:18 (2009).

“Sexual orientation discrimination appears to receive mere rational basis review where courts consider rules affecting adoptions, guardianships, aliens, child custody, and visitation, crimes, education, employment, estates, foster parenting, group recognition, housing, insurance, involuntary commitments, jury selection, marriage, medical services, military, parental rights conflicts, or parade, or political participation, police protection… But see prisons, procreation, professional licensing, public facilities use, response to domestic violence, sexual practices, stats privacy, taxation… unless the bias can be tied directly to a fundamental rights argument.”  “Although state laws increasingly prohibit this form of bias, it remains for Congress to add sexual orientation protection to the equal protection firmament.”  A total of 43 complex footnotes from state and federal circuit case law substantiate the chapter.  The “Strict Scrutiny Test- Fundamental Rights” section of 16B C.J.S. Constitutional Law § 1118 (2010) is similarly useful.

4)    Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 HARV. L. REV. 1693, 1729 (2008).

“The best case for judicial review… rests instead on the subtly different ground that legislatures and courts should both be enlisted to protect fundamental rights… [though] I have rested my argument for judicial review of legislation on the premise that some rights are more fundamental than others and therefore more deserving of protection, my core case extends only to the kinds of fundamental rights characteristically protected in bills of rights and does not necessarily apply directly to “ordinary” liberty rights to freedom from governmental regulation.”

5)    Nelson Tebbe & Deborah A. Widiss, Equal Access and the Right to Marry, 158 U. PA. L. REV. 1375 (2010).
“One of the fights surrounding access to civil marriage for same-sex couples concerns whether the right is rooted in tradition. That matters because of judicial pronouncements describing “fundamental rights”… All of these formulations look backward to tradition in order to determine whether an interest counts as fundamental under the Due Process Clause” (1425). 

6)    Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793 (2006).
“One can break down the fundamental rights cases into several identifiable groups: (1) substantive due process; (2) right to travel; and (3) right to vote or to run for office” (863).  “Republican presidents have argued strenuously for a philosophy of “strict construction” that is unwilling to recognize new, unwritten rights in the Constitution…more study is needed before knowing if the ideological difference holds in fundamental rights cases” (866).

G)    Best case law discussing the test for ascertaining unwritten constitutional fundamental rights that trigger "strict scrutiny."
*Because I found abundant case law on point, I narrowed my inclusions to those cases addressing same-sex marriage.

1)    Hernandez v. Robles, 7 N.Y.3d 338, 380-381 (2006). 
“Fundamental rights are those “which are, objectively, deeply rooted in this Nation's history and tradition ... and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”  “The Court concludes, however, that same-sex marriage is not deeply rooted in tradition, and thus cannot implicate any fundamental liberty.”

2)    Strauss v. Horton, 46 Cal.4th 364, 406 (2009) (applying the majority holding of In re Marriage Cases, 183 P.3d 384 (2008)).

“The right to marry… guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one's life partner.”  “one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships.”  Marriage Cases goes into further depth on ascertaining unwritten fundamental rights: “Tradition alone, however, generally has not been viewed as a sufficient justification for perpetuating, without examination, the restriction or denial of a fundamental constitutional right” (427-428).

3)    Lawrence v. Texas, 539 U.S.558 (2003). 
See the next reference (Kerrigan) for a summary of Lawrence’s relevance, most notably in overturning Bowers . Lawrence is likely the most on-point Supreme Court case, as it discusses at length both Bowers, Romer , and their offspring (both significant, relevant Supreme Court cases) in the unwritten fundamental rights test context. 

4)    Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 174 (2008).

*This case is key because I anticipate that a contention that federal courts do not have the power to define marriage will rebut each element of Kerrigan’s reasoning. 
Holding: (1) couples established legally cognizable injury in their exclusion from the institution of marriage, notwithstanding existence of civil union law; (2) as a matter of first impression, sexual orientation is a quasi-suspect classification, such that laws discriminating against gay persons are subject to intermediate scrutiny, abrogating State v. John M., 94 Conn.App. 667, 894 A.2d 376; and (3) laws restricting civil marriage to heterosexual couples violated same-sex couples' state constitutional equal protection rights.
“For the reasons that follow, we agree with the plaintiffs' claim that sexual orientation meets all of the requirements [1) history of discrimination, 2) attribute’s relation to a person’s ability to participate/contribute to society, 3) immutability of characteristic, 4) the minority group lacks political power] of a quasi-suspect classification.”

5)    Citizens for Equal Protection v. Bruning, 455 F.3d 859, 866 (2006).     

“As Supreme Court decisions attest, the level of judicial scrutiny to be applied in determining the validity of state legislative and constitutional enactments under the Fourteenth Amendment is a subject of continuing debate and disagreement among the Justices. Though the most relevant precedents are murky, we conclude for a number of reasons that § 29 should receive rational-basis review under the Equal Protection Clause, rather than a heightened level of judicial scrutiny.” 

6)    Varnum v. Brien, 763 N.W.2d 862, 896 (2009). 
Subjected sexual orientation to at least intermediate scrutiny. 

H)    Best 3-4 cases and 3-4 articles that talk about the "political question" exception to court justiciability

1)    El-Shifa Pharmaceutical Industries Company v. United States, 607 F.3d 836, 840 (2010).
“The political question doctrine is “essentially a function of the separation of powers,” Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and “excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch,” Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). See also United States v. Munoz-Flores, 495 U.S. 385, 394, 110 S.Ct. 1964, 109 L.Ed.2d 384 (1990) (explaining that the “doctrine is designed to restrain the Judiciary from inappropriate interference in the business of the other branches of Government”).”

2)    Political Questions, 16 C.J.S. Constitutional Law § 309 (2010).

“The political-question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the legislative branch or the confines of the executive branch.”  This well-referenced article further states: “a controversy is a nonjusticiable political question where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department, or where there is a lack of judicially discoverable and manageable standards for resolving the controversy.

3)    Bartlett v. Strickland, 129 S.Ct. 1231,1245 (2009).

“Though courts are capable of making refined and exacting factual inquiries, they “are inherently ill-equipped” to “make decisions based on highly political judgments”…. 

4)    Unwillingness to Adjudicate Political Questions, 16 AM. JUR. 2D CONSTITUTIONAL LAW § 121 (2010).

“In determining if a question is a political question, the appropriateness under our system of government of attributing finality to the action of the political department and also the lack of satisfactory criteria for judicial determination are dominant considerations. Also, there will be a "political question" where "the need for finality in the political determination" is "dominant."”

5)    Richard G. Wilkins & John Nielsen, The Question Raised by Lawrence: Marriage, the Supreme Court, and a Written Constitution, 83 N.D. L. REV. 1393 (2007).

“The author argues that the decision in Lawrence expanded the Supreme Court's power beyond what the framers intended by disregarding constitutional structure and allowing the judiciary to decide political questions.” 

6)    Bancoult v. McNamara, 445 F.3d 427 (D.C. Cir. 2006), cert. denied, 127 S. Ct. 1125, (U.S. 2007).

Applying six criteria for finding a political question: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2) a lack of judicially discoverable and manageable standards for resolving it; or (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or (4) the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Law review articles, cases, and secondary resources provide the latest, current, cutting-edge research regarding all of the above sub-questions.  I could write a substantive memo on any of these sub-questions by using the sources identified above.


  1. Wow, that's some post! Isn't it interesting how marriage has shifted from a reproduction-constraining social device to a rights-conferring, class-differentiating device?

    What of the notion that the reproductive tie-in to marriage ISN'T a compelling argument for continuing to define marriage as between a man and woman, but IS a compelling argument for the correct historical interpretation of the term? Marriage has (historically speaking) only ever been conceived of as between a man and a woman, precisely because of the reproductive implications of necessarily constrained sexual impulses.

    Why is there such a drive to eliminate differences? I don't begrudge Asians the right to call themselves Asian and me not-Asian. I don't begrudge women the right to call themselves women and me man. I don't begrudge them these rights EVEN THOUGH it doesn't really make Asians any less Asian or women any less womanly if I want to call myself an Asian woman. Why then, must same-sex unions begrudge hetero unions the right to call themselves married and the same-sexers . . . well, something else? I'm not suggesting that heteros should be able to prescribe the term, for such would be too reminiscent of many hurtful white-man-imposed derogatory racial terms used all too often over the years. But, must everyone be the same?

    Perhaps the more compelling question - why is it any of the government's business?

    Ultimately, none of the above reflects my personal feelings about Prop 8 or same-sex marriage. Both sides have good arguments. I just haven't heard much debate on the comments above, but then, I'll be the first to admit that I'm woefully ignorant about most everything.

  2. I'll respond to each paragraph in turn, embarrassingly noting that I don't remember too well our conversation yesterday about these/ related questions.

    P1: The reproduction-constraining function of marriage has declined in recent decades. However, marriage has always functioned as a social device to confer rights and differentiate classes. The institution has and does create at least two classes - married and non-married- and both has and does confer benefit profiles that are class-specific.

    P2- I agree that the reproductive tie-in is a compelling argument for the correct historical interpretation of the term. However, there are likely in addition other historical reasons for the opposite genderness of marriage- because historically marriage has not been limited to those capable or even likely to reproduce. Thus, the reproductive tie-in is likely not alone as a helpful tool for correctly interpreting the term.

    P3 - I don't strictly know why there's such a drive to eliminate differences. I do remember we talked about Plessy's "separate but equal" and Brown v. Board's decision in this context during our conversation. Everyone need not be the same in all ways, but in the relevant categories that entities are equal they are entitled to the benefits that attach to that category. (e.g. persons but not necessarily dogs are entitled to human rights, citizens but not necessarily non-citizens are entitled to citizenship benefits, etc.) Another example: women and men are both people, and thus are equally entitled to those rights attached to personhood. However, if a separate right/obligation profile attaches to being a woman, then a man would not necessarily be entitled to that same profile.

    P4 - Two reasons.
    1) As noted in my post, because the Supreme Court has chosen to recognize a constitutional right to marry. This right is meaningless absent some interpretation. The tradition in this country is to place the task of constitutional interpretation on the government, specifically the federal judiciary.
    2) Because the voters of this country have and do say so. Quoting a legal scholar, a friend of mine wrote: "in Europe, family relations do not need to be “specifically licensed by the state.”" However, in the US, many federal benefits and obligations are statutorily attached to marriage- which, again, would be meaningless without some definition/regulation. Ours is a government of the people, by the people, for the people, rather than some independent entity imposing its will. Congress, constituted of elected representatives, chose to issue the statutes- thus evidencing the will of the people in the matter.

    5) I'm ignorant about most everything too. That's part of why I like good-faith dialogue: it often exposes and then supplants ignorance with "something there that wasn't there before" (thanks Beauty and the Beast).

  3. Well written and thoughtful. I would only question the assertions about the church having a double standard on the Constitution. (Perhaps double standard is too strong of a term and perhaps that is not what you are saying. However, I will proceed.)

    Admiration for and support of the constitution does not equate to acceptance of anything the court deems is a constitutional right. We embrace the constitution because it protects our rights. It does not follow however that whatever comes to be termed "a right" is actually a right. Today there are rights to fornicate, commit adultery, engage in homosexual sex, to end the life of a baby in a mother’s womb even when the woman had a choice and chose to engage in sex, to view pornography, and a myriad other unlawful and God-forbidden acts.

    Yet, as D&C 101:77 says, the Constitution was established for the rights and protection of all flesh, according to just and holy principles. When God caused the Constitution to be formed his intent was not to create the right to engage in sin. Rather, his intent was the protection of our rights "according to just and holy principles."

    Secondly, admiration and support of the constitution is not an end in itself but rather a means to an end. The constitution protects such things as our right to worship and to guide the upbringing of our families. Thus, we embrace the constitution because it is a means to an end.

    Elder Oaks statement on agency has a fitting analogy: Pro-choice slogans have been particularly seductive to Latter-day Saints because we know that moral agency, which can be described as the power of choice, is a fundamental necessity in the gospel plan. All Latter-day Saints are pro-choice according to that theological definition. But being pro-choice on the need for moral agency does not end the matter for us. Choice is a method, not the ultimate goal…. My young brothers and sisters, in today's world we are not true to our teachings if we are merely pro-choice. We must stand up for the right choice. Those who persist in refusing to think beyond slogans and sound bites like pro-choice wander from the goals they pretend to espouse and wind up giving their support to results they might not support if those results were presented without disguise.

    Likewise, we are not merely pro-constitution. We do not defend everything constitutional just because it is constitutional. Rather, we stand up for constitutional principles and protections when and because they protect our rights according to just and holy principles.

    To summarize, just because something is deemed a right does not mean that it actually is a right. That does beg the question about whose province it is to define what a right is. Yet it goes without question that regardless of the worldly judge, there are some so-called rights, such as I enumerated, that God never intended to protect with the constitution. And the constitution is not an end in itself. Rather is a means to the end of protecting our rights, such as family and religious rights.

    With respect,
    Thomas Alvord

  4. I find, ""Uh, what happened to the Constitution-loving church I thought I knew?," to be an interesting response. I liked some of the points that Thomas Alvord made above.

    "Constitution-loving" is a strong term for the church. Even an 'inspired' document is subject to error, as well as human interpretation.

    My last thought may be a sign of ignorance on behalf of myself since I don't know the law or constitution near as well as you or many people. THE LAW IS NOT THE END-ALL!. We as humans need to ways to communicate with each other and to regulate our affairs so as to provide ourselves with rights that we may think we deserve. But I get extrememly uneasy when I see our definitions (whether made legally, culturally, or any other way) take on the status of the unequivocal measuring stick of right-ness (pardon the poor terminology). Even if we agree to methods by which we can change and improve our definitions of rights and religions and customs etc., I feel like arguing over particulars of how the law regulates our application of moral principles misses the point that we should be arguing over how our moral principles guides our making of laws (and definitions.

  5. Very nice points. I thought your questions were great, but your analysis is even better. Thanks for all your work on this post.

  6. Nicely done.

    I would add to the conception argument one factor that is continually ignored: divorced gay and lesbian parents with children from their prior marriages. The pro-Prop 8 side doesn't even want to call them "families." There are divorced parents who've had children who go on to have a same-sex partner that they love, and the Prop 8 side would say "no, they can't get married," and "no, they're not really families."

    That Walker be perpetually called an "activist" judge is absurd. He's a JUDGE. That's his job. A million thank you's for your inclusion of the obvious: "It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is."- Marbury v. Madison. Three hundred million people could vote to say marriage can only happen between white, opposite-sexed, Americans of national origin... and still be wrong and overturned.

  7. Who are you and what have you done with Brad Carmack?


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