Sunday, June 28, 2015

Jack Balkin Explains Legal Reasoning of Marriage Equality Cases.

In Obergefell v. Hodges Justice Kennedy's majority opinion declared that marriage is a fundamental right and that prohibiting same-sex marriage violates both the Due Process Clause and the Equal Protection Clause of the 14th Amendment to our Constitution (No state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")  Notably he did this without following the standard paths of due process and equal protection analysis (i.e. the way we might analyze the problem on a bar exam).  

So what did Justice Kennedy do?  

Here's Yale law professor, Jack Balkin (numbered headings mine):

1. Kennedy Outlines "Significant equality ideas:"
... Kennedy's argument ... has many significant equality ideas. He states that "[t]here is no difference between same- and opposite sex couples with respect to" marriage's usefulness in grounding the social order. He argues that excluding same-sex couples "teaches that gays and lesbians are unequal in important respects," and that "[i]t demeans gays and lesbians for the State to lock them out of a central institution of the Nation's society." He adds that "laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter." 
... [T]he language of stigma and demeaning sounds in civil equality, and the anti-subordination principle [subordinating one group to others]. Indeed, later in the opinion, Kennedy says: "the challenged laws abridge central precepts of equality. . . . [They are] essentially unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial . . . works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." 
... Kennedy is carefully laying the groundwork for arguing that gays and lesbians have suffered a long history of discrimination, and that they are excluded from important opportunities for reasons that have nothing to do with their contribution to society. Add to that the point that they are a minority without significant representation in "the Nation's decision-making councils," and you have a pretty good argument for treating sexual orientation as a suspect classification. ...  Nevertheless, having set up virtually all of the elements for this conclusion, Kennedy does not go there. 
2.  ... but Kennedy views "equality" and "liberty" as two sides of a coin:
Instead [of viewing gays and lesbians as a suspect classification], Kennedy's equal protection argument seems to be that equality and liberty are two sides of a coin-- that they are two different perspectives on a problem that shine light on each other: "Each concept-- liberty and equality-- leads to a stronger understanding of the other." Hence selective denials of fundamental rights deny equal dignity. ....
3.  Kennedy reinterprets the 1970's sex equality cases...
[In] an extremely interesting passage, [Justice Kennedy] reinterprets the sex equality cases of the 1970s as protecting the equal dignity of men and women in the right to marry (slip op. at 20-21).
4.  Kennedy alludes to "fundamental rights" and "equal citizenship" doctrines ...
Kennedy's account of equality is perhaps closest to two ideas in previous jurisprudence...., ideas of liberty as equal citizenship status .... and the "fundamental rights" strand of equal protection doctrine. 
(A)  The government violates equal protection when it discriminates against or selectively burdens the exercise of a fundamental right or interest. We could read Obergefell as part of this line of cases. Because marriage is a fundamental right (or more correctly, a fundamental interest, as I discuss below), the state cannot deny the right to marry arbitrarily to a group of citizens without a compelling interest. Here the state does not even have a reasonable justification, so, a fortiori, the discrimination is unconstitutional.

(B)  .... [W]hen the state fails to accord people the equal concern and respect that they deserve [citizenship status]... this violates the Equal Protection Clause of the Constitution. Recognizing and respecting dignity is not the same thing as creating dignity or being the source of dignity, any more than respecting religious freedom is the same thing as creating religion. ... [T]he point of the Equal Protection Clause is to require the state to show equal concern and respect toward human beings. This requires the state to recognize the equal dignity of all persons who are subject to its jurisdiction.  The ... state has an obligation to respect and recognize the inherent dignity of the people who live within its borders. The state violates this obligation when it fails to accord people equal respect and concern. One way that states might do this is to arbitrarily deny a host of rights and benefits that come with marriage to a class of its citizens. Although the state may not have to provide those rights and benefits in the first place, once it has given them out, it may not make arbitrary distinctions in who receives them.
... [S]ome fundamental rights are necessary to protect human liberty from democratic majorities ..... [The question is] simply about what those liberties are and whether they can be found in the Constitution. [Although] there is no "Dignity Clause" in the Constitution(,) (n)evertheless, "equal protection," like "freedom of speech," actually does appear in the Constitution's text. ....

It may be better to call marriage a fundamental interest than a fundamental right. The difference is that the state does not have to provide a fundamental interest at all, but once it does, it must bestow and protect it equally among the members of the political community. Thus, the state does not have to have a bundle of rights called marriage. ... Nevertheless, once the state creates a bundle of legal rights and calls it "marriage," it cannot arbitrarily decide who can enjoy that bundle of rights.
5.  Some reasons Kennedy may not have used existing features of equal protection law:  
Why did Kennedy not use the existing features of equal protection law? There are many possible reasons. First, as a libertarian, Kennedy may simply be more comfortable talking about liberty. Second, Kennedy might not want to take on all of the legal consequences of creating a new suspect classification-- the first since the 1970s--without more consideration about the consequences for legal doctrine in a host of different areas. Third, Kennedy may not be particularly enamored of the formalism of existing equal protection categories, which in many cases tend to obscure the real issues at stake.
Finally, perhaps Kennedy did not want to employ the "rational basis with a bite" or "animus" lines of cases because he did not think that he could easily show that all of these state laws defining marriage in terms of opposite-sex couples were passed because of malice or irrational prejudice against gays and lesbians. If he declared that all of them were based in animus, he would be declaring all of the people who voted for them had bad intentions or were prejudiced, or both. Instead, he simply states that whatever their motivations, the laws they produced had the effect of demeaning and subordinating gays and lesbians. ...
6.  What next?
When we examine it closely, Kennedy's opinion does have a lot of equality ideas in it. But it does not offer a very clear account of where doctrine is supposed to go from here. That may be deliberate. But it will mean that the lower courts will have to spend a lot of time puzzling out how best to apply Kennedy's arguments to a host of other issues, including, for example, state discrimination in adoption, family formation, employment, housing, and education. Those are the next stages in the struggle for equality for sexual orientation minorities.
Read the whole thing here.

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