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Tradition and same-sex marriage

By Jack M. Balkin

Jack is right when he says that any imaginable opinion upholding Gill generated by the present Supreme Court would have to be written in such a way as to leave undisturbed all the state laws refusing to recognize same-sex marriage. He?s also right that any such opinion would rest heavily on the unprecedented character of DOMA, and that such an argument is somewhat question-begging: ?the problem with arguments from tradition is that they don't show that deviations from tradition are irrational. They merely show that they aren't traditional.?

If we?re being legal realists, however, it?s notable that this kind of argument from tradition has had a lot of weight in gay rights cases with Justice Kennedy, who is likely to cast the deciding vote in a Supreme Court appeal of Gill. (I have no confidence that Breyer, Ginsburg, Sotomayor, or Kagan would vote to impose same-sex marriage on the whole country, but that won?t be the issue in Gill; I do think that they?d be persuaded by a properly confined equal protection argument in this case.) And Kennedy isn?t wrong, in this context, to think it matters that unprecedented burdens are being placed on same-sex couples.

Kennedy is the author of the majority opinions in Romer v. Evans and Lawrence v. Texas. Romer struck down an amendment to the Colorado constitution (referred to on the ballot as ?Amendment 2?), which provided that neither the state nor any of its subdivisions could prohibit discrimination on the basis of ?homosexual, lesbian or bisexual orientation, conduct, practices or relationships.? The amendment, Justice Kennedy?s opinion for the Court observed, ?has the peculiar property of imposing a broad and undifferentiated disability on a single named group.? The Court concluded that ?Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.? The broad disability imposed on a targeted group ?raise[d] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. [I]f the constitutional concept of ?equal protection of the laws? means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.?

Tradition mattered to Kennedy, who noted that the challenged disqualification ?is unprecedented in our jurisprudence,? and declared that ?[i]t is not within our constitutional tradition to enact laws of this sort.? Similarly in Lawrence, he observed that sodomy laws singling out gays are a fairly recent development in the law, only arising in the 1970s.

Does it make any sense for unprecedented burdens on targeted groups to raise suspicion? It all depends on whether the suspicion is sometimes justified ? which means, whether the state, if put to an explanation, can come up with a plausible one.

With DOMA, the proffered justifications don?t work, and that?s why the suspicion of unconstitutionality ripens into a legal conclusion. They also show why you can strike down DOMA while leaving state laws undisturbed. Jack observes that the Justice Department in Gill didn?t rely on Congress?s stated justifications for DOMA: encouraging responsible procreation, protecting traditional heterosexual marriage, defending traditional morality, and preserving scarce resources. These might make sense as a reason for withholding marriage licenses altogether. They make a lot less sense as a reason for withholding federal benefits, in a broad and undifferentiated way, from same-sex couples. Maybe you want to discourage same-sex marriage, but it?s unlikely that any same-sex couple will decide not to marry because they won?t be able to be buried together in a veterans? cemetery.

What ultimately does the work in these cases is a holistic judgment about what you think is going on in these laws. The fact that a group ? and here, without going all the way to the formality of suspect classification, a court can note that gay people have been the object of hysterical antipathy, as evidenced by the wacky things that DOMA?s supporters said during the Congressional debate ? has in the past been the object of unconstitutional discrimination certainly has some weight in the judgment. So does the fact that the state?s justifications fit the statute so poorly. And so does the fact that the burden imposed on that group is unprecedented. Departure from tradition can?t be dispositive, for the reasons that Jack has stated very well, but it?s probative, particularly when the untraditional thing is beating up on an unpopular group. This isn?t just a legal-realism point about the mercurial Kennedy. The point is that, on this issue, Kennedy is right.

A last word about legal realism. I?m not a professional litigator; I have no faith in my own judgment about which cases it?s wise to bring in federal court. But one of the smartest gay rights litigators I know is Mary Bonauto, the counsel in Gill, who won the Baker case in Vermont and the Goodridge case in Massachusetts. As a general matter, the gay rights organizations have exercised excellent judgment in picking the venues in which to bring their high-profile cases. They surprised everybody with their big win in Iowa: they had done their homework and knew more about the state than the rest of us. They have been quite careful about when to file in federal court, and they weren't the ones who made the silly states? rights argument. (I wish that Theodore Olson and David Boies had talked to them before they filed the Proposition 8 case.) So I?m less worried about this case in the Supreme Court, which I think has a good chance to squeak by with five votes.

Full post as published by Balkinization on July 09, 2010 (boomark / email).