Tales of the Sausage Factory: Gay Marraige? Mine is Pretty Cheerfull.

Yale Law Prof. Lea Brilmayer has some interesting things to say to Congress on whether we need a Constitutional Amendment to let the states decide on gay marraige. See testimony here. I’m not the expert Professor Brilmayer is on Constitutional theory, but as a result of _Goodridge_, real legal analysis doesn’t matter anymore. And therein lies the true evil of judicial activism. Will four arrogant but well meaning judges give Bush the 2004 election, trigger a Constitutional Amendment, trash civil rights for gays for the forseeable future, and undermine confidence in our judiciary to the detriment of our society as a whole? (cue Odd Couple theme)

Odds are good you’ve been bombarded with the “gay marraige” debate recently. The impetus for this comes from a .Massachusetts decision which held that the State of Massachusetts could not legally define marraige so as to exclude same sex couples from civil marraige.

I must give fair warning the my discussion below may offend some of you by reducing this to a legal argument that bores you to tears rather than some sexy moral diatribe. But hey, I gotta be me. More importantly, as I repeat time and again, process really and truly does matter. It’s not just legal niceties and “red tape” we could cut away. Without trustworthy processes that are respected by all, the fundamental institutions of society crumble. To quote A Man for All Seasons “Would you give even the Devil the benefit of the law? Yes! For when you had cut down all the trees of the law to find the Devil, where will you hide when the Devil turns on you.”

In this case, where we debate a fundamental shift in social structure, process is critical. Unless the process is one that is respected by a sufficient segment of society at large, the outcome is at best temporary and the ultimate result may well prove catastrophic.

I support civil marraige for gays & lesbians or, better still, abolishing civil marraige altogether and giving everyone “civil union” and reserve “marraige” for personal religion or personal choice. By my religion, I was “married” to my wife when I handed her a little gold ring in front of two witnesses, said the magic words, and she accepted.

But I cannot support the majority decision in Goodridge. In fact, the Goodridge majority infuriates me beyond measure. Beyond personal pique, Goodridge is the poster child with everything wrong about judges being too clever for society’s own good. In an attempt to achieve what they perceive as a just result in spite of the actual law, they undermine the very foundation a just society. While that sounds like so much rhetorical handwringing, it is surely even now biting us in the ass.

Because, as the Goodridge dissent observed, it is not the role of the courts to act as a legislature. We have legislators rather than kings because we like the idea that the decision makers are accountable to the public, who can chose new legislators if they don’t like how the old ones do things. That’s what makes us a representative democracy (i.e., we elect representatives rather than do everything by a referendum to all citizens). In the opinion of the 18th century European king-hating but still elitist white guys who set this up, this system balances accountability to the people (from whom all sovereignty flows) with stability in decisionmaking (and if you think doing everything by referendum is the way to go, how many times a year are you planning to go the polls to vote on legislation? How are you going to stay informed enough on the issues to vote?)

Judges, especially lifetime appointed judges, serve a very different purpose. As expert jurists, the resolve question regarding the application of law to specific cases. A law, by its very nature, is the general case. How to apply the general rule can very well generate disputes between parties or between individual citizens and the state. We like having experts who we feel are neutral, i.e., free from political pressure, and expert on resolving such disputes. Individual citizens obey the outcomes because the state can use its police power to make them. The state obeys the outcomes, even when those outcomes are disadvantagous, because it recognizes that it must cultivate a respect for the rule of law. And if you think such respect for the rule of law is so much froo froo as long as the state has police power, I will cite Hati, Angola, and a bunch of other examples of what happens when enough citizens do not respect the rule of law. For rest assured, there will _never_ be enough police to control the citizenry, especially an armed citizenry, unless that citizenry voluntarily submits to the rule of law and the processes that create that law.

But getting back to Goodridge and my complaints with Goodridge as a legal decision. The court first looked at the Massachusetts marraige statute and observed that it did not define marraige as between one man and one woman. Plaintiffs offered that as an opening for the court to pretend that the plain language of statute should be construed broadly to include gay marraige because it did not prohibit gay marraige.

The Court declined the invitation, which is probably right on the merits. OTOH, it would have been a better method of achieving the courts desired result, IMO, because it would still have kept control of the statute in the legislature, where it belongs. Courts interpret statutes all the time. The legislature can always rewrite the statute, provided it doesn’t violate the Constitution. This is one of the fundamental checks on the power of the judiciary, and one of the reasons courts should be reluctant to decide cases on constitutional grounds.

But the court held that while the plain language of the statute did not prohibit gay marraige, the legislature clearly intended the dictionary definition of marraige of meaning one man to one woman and no sheep. This presented the constitutional question squarely.

The court next considered what level of scrutiny to apply to reviewing the statute. Depending on the circumstances, a statute can be given lots of deference by the court, some deference, or none. All law created by legislators must serve some purpose related to the powers of the state/federal constitution and the law must be a rational way of achieving that purpose. For example, Congress has the power to give funds to states to maintain highways. It can attach conditions to those funds that are related to highways, like setting a national speed limit. But it can’t attach unrelated conditions, like setting a national election age at 18 (that took a Consitutional amendment).

A normal law gets “rational basis review.” As long as the law has some rational relationship to the permissible goal the state seeks to achieve, even if the goal is pretty stupid and you could think of a hundred better ways to achieve the permissible goal, the court is supposed to defer to the legislature. For example, I think the rationale for extending the copyright another 20 years was pretty stupid and bad for the country, but Congress decided this would encourage more people to produce stuff so it stands.

Next is “intermediate scutiny.” That happens when the law somehow impinges on a protected right, but not so much that it makes it to heightened scrutiny. For example, in the Vietnam War, students used to burn their draft cards as a protest against the draft. This was clearly political expression protected under the First Amendment. At the same time, Congress had a clear interest in maintaining and distributing draft cards to all draftable men and therefore had a legitimate reason unrelated to supressing speech to outlaw burining or otherwise defacing draft cards.

Then comes “heightened scrutiny.” That happens whenever the Constitution makes it highly suspicious that the state has _any_ right to legislate in this area. For example, a law which outlaws indecent content on the Internet gets heightened scruitny, because Congress has no business abridging speech.

Now what standard to consider the marraige act under was a matter of considerable controversy. If it is a distinction based on sex (which the concurrence argued), than it gets either heightened scrutiny or intermediate scrutiny, depndening on whether the Massachusetts constitution is more liberal than the U.S. constitution on this issue. Indeed, the concurrence argued that any distinction based on a status (here being homosexual) is subject to heightened scrutiny.

On the other hand, the law is arguably a restraint on behavior that applies equally regardless of status (straight men aren’t allowed to marry guys either — and if you think that sounds idiotic trust me, there are stupider things in law than two straight guys getting married) and therefore the law is a neutral restraint on behavior and gets rational basis.

The court ducked the issue by concluding that even under rational basis, the statute cannot survive. And this is where I start to have real heartburn with the legal reasoning of the decision.

The state led with the clear difference between gay and straight marraige: procreation. The state argued that it had an interest in encouraging procreation and doing so in the context of a well-known/recognized support system.

Now sadly, under rational basis, it should have been game over. it is a long recognized interest of sovereign states to encourage the production of new citizens. Many countries — such as Japan, Israel, and Saudi Arabia — pay a stipend for the production of new children for the explicit purpose of encouraging their production. the state is entitled to favor production of new children and to prefer natural methods to artificial methods.

Sure, there are many things the state could do to encourage the same result, but that is not supposed to matter under rational basis. Remember, under rational basis, the court is supposed to say (a) is it a permissible purpose? (here, yes) and (b) is there a connection to to the purpose? i.e., will giving straight couples benefits for settling in permanent couples will encourage them to procreate? (Again yes).

Instead, the court decided that the purpose of the marraige law was not to encourage production of children. Say what? That’s not how rational basis analysis works. The court found that the purpose of the marraige law couldn’t be to encourage procreation because the law benefits many classes of people who will never reproduce and does not even require cohabitation. While true, thats not how rational basis analysis works. Arguably, this is how intermediate scrutiny works, where the court checks to see if the measure is “narrowly tailored” to achieve the government’s compelling purpose. But the court claimed to be using rational basis analysis.

Suppose the state says it has an interest in feeding the hungry, and decides to give out $25 a person on the theory they will spend it on food. A lot of them won’t, of course, but is it irrational in a legal sense to say that starving people won’t spend it on food? Yeah, the rest of us may spend it on other things and some hungry people may buy booze or drugs instead, but so what? there is a clear connection between giving people money and them buying food, and the court is supposed to defer to the legislature’s choice of means.

Here, to achieve its desired ends, the court stands proper legal analysis on its head, with a hearty dose of condecention to the state for daring to argue this as if it were in a real court of law.

On to state reason number two, wherein the state argues that straight family homes have a better record for family unity than gay ones. Again, the court decides to abandon legal analysis for its preferred moral analysis. The court observes that some straight marraiges suck and a lot of gay couples provide good family settings. Well sure. But again, we’re talking _rational basis_ a highly deferential standard of review. I can find a boatload of studies that show straight families are more stable, and I can find a boatload that show there is no difference (or would not be but for legal discrimination). But, under rational basis THE STATE GETS TO CHOSE WHAT STUDIES IT WILL RELY UPON.

Now let me jump ahead and explain why this isn’t _Loving v. Virginia_ or _Brown v. Board of Ed._. Leaving aside the differences i will get to in another article (as this one is way too long already), the critical issue for legal analysis is standard of review. _Loving_ and _Brown_ were decided on the basis of heightened scrutiny. The state had a huge burden to show that a difference based on race was justified. Brown relied on an extensive record built over 9 years of litigation that demonstrated not that “separate but equal” was unconstitutional, but that under the relevant level of scrutiny and approximately 75 years of real world experience, “separate but equal” was inherently impossible in the practice of _education_. Therefore, in the area of education, it could no longer continue to persist.

Even then, the court hesitated to provide a means of desegregation and instead referred the problem back to the states and the federal government. It took a decade of hard work by Thurgood Marshall and others to get to _Brown_ , and decades more to see its promise fulfilled.

None of this happened in Goodridge. The court used no record to speak of beyond the factual affadavits of the named plaintiffs. Assuring itself that they are all swell human beings and swell couples, it chastised the legislature for being such irrational bigots. Which may be true, but is utterly irrelevant to the legal questions at issue.

No surprise that the state’s third argument gets rejected out of hand, although this time the court is probably correct since it got this far. The state argued that extending all its benefits to a new class of people would be expensive. The court says that mere expense is not a good reason to make a distinction.

The whole casserol of poor legal reasoning gets served piping hot with a side of arrogant self-righteousness and a relish of assuarance fom the court that it respects the limitations of democracy and stuff and that even stupid ignorant bigots are entitled to have deeply felt opinions about this but, gosh darn it, we got law to do here.

I confess what surprises me is not the backlash but just how surprised everyone is that there is a backlash. And how little credence people seem to be giving that it will succeed. Because I can think of no course of events more calculated to provoke the folks with “deep feelings” about this (who, when last polled represented a substantial plurality if not a majority of the country) than the legal reasoning of Goodridge and what followed.

What followed was a combination of grandstanding by politicians, who figured they could embrace the issue comfortably with little personal consequence, and sermonizing from the press. Lets take San Francisco. As John Stewart put it on the Daily Show: “Defending gay rights in San Francisco! What political risk! I applaud you sir!” and now that the California Supreme Court has issued a stay, the weddings have stopped.

If it was morally impossible to be mayor of San Francisco and discriminate against gays, why is it suddenly o.k.? If the rule of law is suddenly so important, why don’t you resign from this immoral office? Or, alternatively, why didn’t you challenge the California law with a declaratory ruling instead of this highly public display of disregard for the law? The difference between civil disobediance and grandstanding, IMO, is the willingness to take a personal hit and pay a price. I can respect the WTO protester who is willing to get clubbed by police to protest treaties that expand intelectual property rights at the expense of developing nations and personal freedom. I have contempt for the fileswapper who claims they are sticking it to “the man,” then purges Kazaa off his computer when the RIAA announces ‘yes we can track you, and yes we will sue you.’

Now add to these grandstanding politicians and headline grabbers the sermonizing from the mainstream press, most of whom are blind to the process issue and care only for the result.

Such a perfect storm could serve but one end, to mobilize the hardcore opponents for civil liberties for homosexuals. Rather like gollum’s last minute assault on Frodo at the foot of Mt. doom, nothing seems more calculated to rouse the will of what had been a movement quietly melting away in the sunlight of gradual acceptance and social change. _Lawrence_, the Supreme Court decision declaring that criminalization of homsexual acts was unconstitutional, raised barely a wimper from all but the most hardcore conservatives. Goodridge, by contrast, has vaulted the issue to the national stage and sparked a demand for a constitutional amendment.

Which brings us to the tragedy of Professor Lea Brilmayer’s testimony. Professor Brilmayer followed this testimony with an op ed in the Wall St. J. (sadly, not repoducible here) in which she expressed surprise that members of Congress should pay more attention to the hot button political issues and emotional issues at play than to the law. Indeed, she expressed disappointment that the panel had not appeared to have read her testimony or have a legal opinion on its merits.

I have read Professor Brilmayer’s testimony, and it makes a very good argument. But no one believes it anymore. Because the tragedy of Goodridge is that you cannot trust persuasive legal reasoning, right on the merits, that comports with legal precedent to win the day.

Take a look at this editorial from the Texas Star Ledger. It’s basic point is “we know Bush is being political and we don’t care, because liberal democrats and liberal judges will be the death of traditional marraige.” It doesn’t matter a tinker’s damn if you think there is no threat to traditional maraige. We are not in the realm of rationality here. We are dealing with deep, deep convictions that take years to overcome.

The civil rights marchers fought and bled and in some cases literally died not just to win some court cases, but to change the way people think. They did it with courage and a refusal to bow to force. And it took _decades_.

By pushing too far, too fast, too soon, the Goodridge Four have threatened civil rights for gays and lesbians for the next century. Had they trusted in the democratic process and allowed legislatures to address these concerns, had activists pushed via referenda and legislative bills, had they troubled to build the kind of record that Marshall did in _Brown_ (and had the court shown the same restriant in leaving implementation to the proper branches of government), we would not now face the spectre of a Constitutional amendment.

An do not decieve yourself that it can’t happen here. It can. Do the math. Under Article V of the U.S. Constitution, if 2/3 of the state legislatures petition Congress for a Constitutional convention, it circumvents the 3/4 supermajority of both houses of Congress needed to send an amendment to the states. If 3/4 of state legislatures approve the amendemnt, it becomes law.

2/3 of the states is 32 states. 3/4 of the states is 38 states. There are 39 states that now have laws on the books explicitly defining maraige as between one man and one woman.

And that doesn’t even cover the fact that this issue, while having virtually nothing to do with anything real, may well swing the presidential election. The last election was decided by a few thousand swing voters in each swing state. Many of those swing states have “deep feelings,” as the Goodridge Four recognized, about this issue.

Anybody else remeber the 1988 Presidential election and Willie Horton? Michael Dukakis, Governor of Massachusetts, got nailed for a crime committed by a prisoner on furlough in a program developed by his Republican predecessor. The fact that any rational person would have concluded that Willie Horton had nothing whatsoever to do with Michael Dukakis did not stop the Republicans from using Willie Horton ads to great effect in swing states to portray Dukakis as “soft on crime.”

Kerry is the Senator from MA. He voted against the “Defense of Marraige Act,” which purports to give states the power to define marraiges regardless of the Full Faith and Credit Clause. Can the Goodridge Four have given the republicans a greater gift in the swing states of Florida, Missouri, Tennessee, Arkansas, Louisiana and Ohio?

But what is worse to me, again as a lawyer, is the effect of the Goodridge Four on social justice and society as a whole. It encourages one set of activists to believe in the magic of judicial shortcuts. That you can go to a set of judges and get them to wave a magic wand and somehow that cancels out the work we have to do to make social justice and democracy happen in our country. Because being right should be enough, and we shouldn’t have to spend all our time in this messy process of democracy convincing our fellow citizens that what we passionately know is true and right and a fundamental tennet of liberty is true and right and a fundamental tennet of liberty. And it convinces the activists on th losing side that there is no rule of law or faith to place in judges or the courts, because they are captive of “them” and make their decisions not on the basis of law, but on the basis of their own opinions.

Now maybe I am just a paranoid crumdgeon. I continue to hope and expect that our deep national reluctance for amending the Constitution will prove a necessary firebreak. And I also hope that electioneering on this issue will be so transparent it will backfire.

But if I am wrong, I hope the Goodridge Four and the rest of those who think there are shortcuts to social change get the message. If I may be forgiven a simple metaphor, society is a lot like a horse. If you guide it firmly but gently, you can get it to go places and do things it never would have imagined. But if you yank the bridle and shout in its ear, it’ll kick you in the face and run right over you.

stay tuned . . . .


  1. Very detailed entry, thanks for sharing. I dont know enough about the massachusetts judicial to have a comment on the process. As much as I find the US Republican and Australian Liberal stance on gay marriage repugnant, I think the specialists in the judicial should be able to be impeached through some kind of citizen process if they contravene the constitution.

    While tenure is an attempt to keep the parties out of the judicial, there needs to be some way for the people to remove them individually through a well-defined constitutional process should they err outside of constitutional limits. Then again, I am a fan of the ratification/sortition model which makes use of the fact that all wisdom (as well as legitimacy) lies with the people.

    On the subject of gay marriage, I see this as civil rights issue. The question that needs to be answered is; does government have a right to discriminate against an unpopular minority? The answer IMO is no.


  2. I agree with you on the gay marraige issue. Our history is filed with such idiotic disctinctions masquerading as common truths. I have been happy to sign petitions to get initiatives changing the definition of “marraige” on the ballot. The tragedy of losing now is that society has already come so far in the last 15 years.

    It is small comfort if a Constitutional amendment passes today to know that a hundred years from now it will be regarded with the same moral repugnance that we regard “separate but equal” or the 3/5 ths compromise.

  3. “I support civil marraige for gays & lesbians or, better still, abolishing civil marraige altogether and giving everyone “civil union” and reserve “marraige” for personal religion or personal choice. By my religion, I was “married” to my wife when I handed her a little gold ring in front of two witnesses, said the magic words, and she accepted. ”

    Have to agree with this bit — see the appropriate line in my livejournal (http://www.livejournal.com/…)

    (and, yes, agree that judicial activism is overused in this and many other cases — it can help produce temporary (or even long-term) aid against unfair laws, but absent backing legislation, tends to polarize people and make them defensive where democraticallly instutituted laws would not do so.

  4. Harold, thank you for posting this. As I said when I saw an earlier version of this, I do support civil marriage or civil union or whatever you want to call it for everyone, and I have been hearing so much from people who are far more active in their support than I about how the bigots are going to lose this one. However unpopular the contrary view may be, I think it’s vital that we understand why it is not that easy, and why there is no assurance that there will be a Casablanca-like ending, where we all “know” that the good guys will win this time.

  5. Sorry it took me a while to get around to reading this.

    Your analysis of the decision does make it sound poorly reasoned–not as appalling as, say, Bush v. Gore or the major Americans with Disabilities Act decisions, but badly done; the fact that I agree with the outcome doesn’t make me happy about the reasoning.

    However, I note that this issue is unlikely to swing the 2004 presidential election in favor of Rutherford Bush. In one of the most wonderful paradoxes in modern politics, despite the fact that a majority of American oppose recognition of equal marriage rights, a Constitutional amendment opposing equal marriage is not politically popular. This is especially true among political independents–“swing” voters–who strongly oppose a constitutional amendment banning equal protection of marriage. The more this issue is in play, the better it is for Kerry!

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