Dispatches from the Creation Wars

Another state court, Washington this time, has upheld their state’s ban on gay marriage. This ruling was long awaited, to the tune of 17 months since the case was actually heard. I haven’t read the ruling yet, and probably won’t get to until tomorrow, but Dale Carpenter has his usual thorough and evenhanded analysis at Volokh. I’m interested to read it because of what Carpenter says about the suspect class analysis in the ruling, which I’ll post below the fold because it’s so long:

Unlike the New York Court of Appeals, the Washington court dealt substantively with the question of suspect-class status for gays under equal protection principles. It also avoided the bizarre contextualized analysis of the issue the New York court gave us, and instead dealt with the question whether gays generally constitute a suspect class.

The Andersen court is more confident about the elements of the suspect-class analysis (history of discrimination, immutable and usually irrelevant trait, and political powerlessness) than I think is justified, but its rejection of heightened scrutiny is certainly defensible under the precedents. It acknowledges, as every court addressing the issue has, a history of discrimination against gays. But it says the trait defining the class is not immutable, and seems to hold that immutability is essential to heightened scrutiny. Both halves of this holding are questionable. The Andersen court isn’t clear what it thinks the “defining trait” of this class is – homosexual acts or homosexual orientation – and this ambiguity muddies things a bit. If homosexuals acts are the “defining trait,” it’s not immutable; if homosexual orientation, the best evidence is that it is immutable or very close to immutable. It’s also not clear that immutability is even required, as opposed to one factor among many to be weighed, in the analysis of which groups get heightened scrutiny.

The Andersen opinion also shows how legislative advances for gays are a double-edged sword in litigation over marriage. Some courts upholding gay-marriage or civil unions claims have cited legislative progress – eliminating sodomy laws, making adoptions more widely available, passing employment non-discrimination laws – as evidence that times and attitudes are changing and as support for the idea that the legislature has no very good reason to withhold this last bit of progress from them.

In Andersen, by contrast, the court cites legislative progress as a reason to deny gays suspect-class status, on the dubious theory that a truly powerless group wouldn’t have made such democratic progress. This part of the analysis is questionable, since historical work by William Eskridge and others has shown that groups tend to get heightened scrutiny only after they’ve made legislative progress. And once they’ve gotten suspect class status, they don’t lose it simply because the legislature begins to take their concerns seriously.

I have always thought there was room for a good suspect-classification argument, but there’s no doubt the weight of precedent is on the side of the Andersen court.

I think the weight of precedent is only on the side of denying suspect class status in the sense that no court has yet applied such status to gays. But I think the inexorable logic of the suspect class criteria set out in precedents clearly applies to gays, defined the only way it should be defined (as an orientation, not an act). If we’re going to treat religion as a suspect class for purposes of anti-discrimination laws (and we do), then surely no rational person would argue that immutability is a necessary trait in order to qualify for suspect class status. Religion is infinitely more mutable than sexual orientation.

Of course, I would prefer that we simply eliminate the need for suspect class status in constitutional law by getting rid of the different standards by which we determine whether a law is constitutional. Such laws are either constitutional or they are not; to say that the same policy would be constitutional if applied to gays but not if applied to blacks or Jews is to destroy the notion of equality before the law. It sets up second class citizenship, two different levels of constitutional protection, and should be done away with. All legislative acts should be subjected to strict scrutiny when applying constitutional law. If the act is not the least restrictive means of achieving a legitimate governmental interest, it should be done struck down and the legislature should have to start over and write a bill that meets that criteria.


  1. #1 kehrsam
    July 26, 2006

    Dale also gives considerable hope for where this whole debate is ultimately heading:

    “(7) Finally, there’s a potentially significant passage in the middle of the opinion that might get overlooked on a first read:

    We do not dispute that same-sex couples raise children or that the demographics of “family” have changed significantly over the past decades. We recognize that same-sex couples enter significant, committed relationships that include children, whether adopted, conceived through assisted reproduction, or brought within the family of the same-sex couple after the end of a heterosexual relationship. We do not doubt that times have changed and are changing, and that courts and legislatures are increasingly faced with the need to answer significant legal questions regarding the families and property of same-sex couples. (Citations omitted).

    We are also acutely aware, from the records in these cases and the briefing by the plaintiffs and the amici supporting them, that many day-to- day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples. A married person may be entitled to health care and other benefits through a spouse. A married person’s property may pass to the other upon death through intestacy laws or under community property laws or agreements. Married couples may execute community property agreements and durable powers of attorney for medical emergencies without fear they will not be honored on the basis the couple is of the same sex and unmarried. Unlike heterosexual couples who automatically have the advantages of such laws upon marriage, whether they have children or not, same-sex couples do not have the same rights with regard to their life partners that facilitate practical day-to-day living, involving such things as medical conditions and emergencies (which may become of more concern with aging), basic property transactions, and devolution of property upon death.”

    As I have commerted before, in 40 years this whole debate will not be too different from the way we regard Loving v Virginia today, as an historical artifact with little connection to reality. I think the Court is correct to defer to the legislature, however: As long as my Christianist friends can charge that “activist courts” have short-circuited democracy, there will be powerful resistence to accepting reality. In the meantime, I regret the pain that my homosexual friends must endure.

  2. #2 Melody
    July 26, 2006

    It sets up second class citizenship, two different levels of constitutional protection, and should be done away with.

    Actually, three classes … restrictions based on gender only get intermediate scrutiny.

    I agree with the statement, though, assuming that the fall back position is not the rational basis test – or asking “whether any fool could come up with a stupid reason for a bad policy.” (props to Epstein)

  3. #3 Irrational Entity
    July 27, 2006

    As grantdale noted over at Ex-Gay Watch, the Johnson opinion quotes Jeffery Satinover and his highly suspect findings. I know bad science is an inevitable part of such things, but I am still surprised by how many people take these contentions seriously.

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