Nothing in the Constitution, even read loosely, requires states to recognize same-sex romantic or sexual partnerships as marriages. Here are two pieces on that point.
First, an important Case Western Reserve Law Review piece by my former student and coauthor Sherif Girgis (available here). As Sherif shows, opponents of a judicial redefinition of marriage needn't be originalists, or conservatives in any sense of the term. For if the justices invalidates state laws enshrining the concept of marriage as a conjugal union, they will be following in the footsteps of a case that conservative and liberal scholars alike decry with something close to unanimity: Lochner v. New York. There, as Justice Holmes showed in what became a famous dissent, the majority was imposing its conservative economic policy choices over perfectly reasonable alternatives, without Constitutional warrant. The justices would be doing just that--but in the cause of imposing liberal social principles--if they were to strike down state marriage laws. In particular, Sherif shows in careful detail, they would be choosing between competing views of what marriage is and of why it ought to be regulated--views about which the Constitution says nothing at all.
To put it simply, I haven't seen a more comprehensive treatment (and demolition) of the Equal Protection argument against state conjugal marriage laws.
The piece was written for a symposium on Windsor, but (bracketing a section on federalism) its argument applies to state laws. It addresses the increasingly fashionable (albeit, as Sherif shows, untenable) sex-discrimination argument. It offers historical proof that the conjugal view can't be attributed simply to animus or any particular religion. It shows that the Court would have to Lochnerize (to strike down state marriage laws) even if it adopted the more capacious equal-protection tests proposed by scholars like my friend Prof. Andy Koppelman and Prof. Jack Balkin. It addresses objections based on infertility, right-to-marry case law (Loving, Turner, Zablocki), and much more.
As the nation gears up for a decision, of course, all eyes will be on Justice Kennedy, widely regarded as the swing vote on marriage. Kennedy has famously expressed concern that state marriage laws might unconstitutionally infringe the dignitary interests of children reared by same-sex couples. But that argument fails, as Sherif and I show in a second piece, an amicus curiae brief submitted in the course of Utah's marriage litigation. The brief is available here:
http://www.glad.org/uploads/docs/cases/kitchen-v-herbert/kitchen-scotus-cert-robert-george-brief.pdf
Here is a summary of our argument:
Moral claims of equal dignity, a child’s entitlement to a mother and father, and democratic self-determination can be appropriately assessed and settled in the normal political process and have been here by the people of Utah.
The Tenth Circuit believes that Utah’s marriage laws harm the personal dignity of same-sex couples and of the children they rear. But no one disputes their equal dignity. The Tenth Circuit's conclusion misunderstands the social purpose of marriage law, which never has functioned—and could never function—as a mechanism for expressing individual dignity or social inclusion. Accepting this view would have absurd logical implications and harmful effects.
First, it would deprive the State of any limiting principle for its marriage law.
Second, by dissolving the links between marriage and any historic marital norm besides consent, it would harm the state’s material interest in providing children with stable ties to their own parents. It would undermine their right to be reared by their own parents wherever possible--a right affirmed by the United Nations Convention on the Rights of Children.
Third, it could also thereby spread the stigmatic harms that children and partners of broken homes often suffer. And fourth, by reducing marriage to a primary mark of social inclusion and equality, it would—ironically—spread the very social message it was intended to oppose: that those outside the institution of marriage matter less.
In these ways, finally, it would deprive the People and the State of Utah of their own right to settle the purposes and contours of family policy for themselves--a right they can exercise, and have exercised, while respecting the social equality, and personal and romantic freedoms, of same-sex couples in full.
Thursday, January 22, 2015
The always insightful and eloquent defender of pro-life feminism, Erika Bachiochi, hits it out of the ballpark again today in an op-ed on the CNN website.
Today's March for Life seems as good an occasion as any to share this portion of Justice Scalia's dissent in Planned Parenthood of S.E. Pa. v. Casey blasting the plurality's assertion that the Court needed to be even more unwilling than normal to reconsider precedent when that precedent has been the object of intense national controversy:
[T]he notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution has an evolving meaning, see ante, at 6; that the Ninth Amendment's reference to "othe[r]" rights is not a disclaimer, but a charter for action, ibid.; and that the function of this Court is to "speak before all others for [the people's] constitutional ideals" unrestrained by meaningful text or tradition--then the notion that the Court must adhere to a decision for as long as the decision faces "great opposition" and the Court is "under fire" acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be "tested by following" must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change--to show how little they intimidate us.
Wednesday, January 21, 2015
I agree with Rick and Marc in rejecting the existence of a general rule that the Establishment Clause prohibits RFRA- or RLUIPA-required accommodations that impose third-party burdens (or allegedly impose such burdens, depending on one's understanding of the benefit/burden baseline). In my view, the Hobby Lobby amici curiae brief by Nathan Chapman lays out a better reading of the governing law than that adopted by the scholars linked in Rick's post. Unlike Rick and Marc, however, I do not read Justice Ginsburg's Holt concurrence as endorsing an Establishment Clause-based limit on third-party accommodations that should otherwise properly be recognized under RLUIPA and RFRA.
To assess this disagreement, one needs to follow Justice Ginsburg's Holt citations to her Hobby Lobby dissent: "See [Hobby Lobby], at ___, ___–___, and n. 8, ___ (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG, J., dissenting)." {BTW, gotta love these Supreme Court citation conventions! See ___ (gratuitous personal op. at _:);)_).}
Justice Ginsburg's position in the cited portions of her Hobby Lobby dissent is that consideration of third-party burdens is part of the appropriate application of RFRA and RLUIPA. She does not adopt the view that these burdens could give rise to a freestanding Establishment Clause limitation on what would otherwise be required by those statutes. True, the Holt-cited portions of Justice Ginsburg's Hobby Lobby dissent do rely on Cutter v. Wilkinson and Estate of Thornton v. Caldor, which are Establishment Clause cases. But they also rely on Wisconsin v. Yoder and Prince v. Massachusetts, which are not.
Footnote 25 of Justice Ginsburg's Hobby Lobby dissent (not cited in her Holt v. Hobbs concurrence) most directly addresses the influence of the Establishment Clause on RFRA/RLUIPA analysis. It opens with the statement: "As the Court made clear in Cutter, the government's license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause." But the closing sentence relies on United States v. Lee, which was neither a third-party burden case nor an Establishment Clause case: "[O]ne person's right to free exercise must be kept in harmony with the rights of her fellow citizens, and 'some religious practices [must] yield to the common good.' United States v. Lee, 455 U.S. 252, 259, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982)." This is consistent with the position set forth in the Chapman brief, which is that Cutter interprets RLUIPA (and RFRA, by extension) to incorporate consideration of third-party burdens into the application of the statutorily required strict scrutiny.
If this reading of Justice Ginsburg's opinion is correct, then Justice Ginsburg actually agrees both with Rick that "the question whether a proposed accommodation is too costly is one that RFRA and RLUIPA call to be answered through the statutorily prescribed balancing inquiry, and not through an additional, accommodation-skeptical Establishment Clause inquiry," and also with Marc, that "the strict scrutiny standard of RLUIPA and RFRA, if 'properly appl[ied],' itself incorporates the Establishment Clause limits raised by cases like Thornton."
Not too much to add to Rick's analysis of Holt v. Hobbs. A short and precise opinion from Justice Alito. Here are just a few other questions and comments about the opinion and concurrences:
1. Rick quotes Justice Ginsburg's one-paragraph concurrence, which states that she only joins the Court's opinion "on th[e] understanding" that the accommodation here "would not detrimentally affect others who do not share petitioner's belief." I guess she felt she had to use the occasion to say something pejorative about Hobby Lobby, which she also quotes. It seems she has bought the line pressed by those who claim that the Establishment Clause prohibits third-party burdens, yet she articulates the standard that they champion rather expansively. There may be a big difference between arguing that the Establishment Clause prohibits religious accommodations that impose "significant burdens on identifiable third parties" (if memory serves, this was the standard favored by academic defenders of this argument) and arguing that the Establishment Clause prohibits religious accommodations that "detrimentally affect" anybody who doesn't share the claimant's religious beliefs. I don't believe the former is a correct reading of the Establishment Clause. But the latter formulation seems a good deal broader. What constitutes a "detrimental effect" under that approach? Might symbolic harms count? I don't see why they wouldn't. And as Justice Alito points out, Arkansas made no argument that an exemption was not feasible as a matter of cost or other resources ("the Department has not argued that denying a petitioner an exemption is necessary to further a compelling interest in cost control or program administration"). Had the Department made an argument about cost control (with evidence, which was seemingly in short supply on its side), would any evidence of increased cost (no matter how small) not only been enough to find against the claimant as a RLUIPA matter, but actually have triggered an Establishment Clause violation had the prison accommodated the inmate? Suppose I am a prison inmate who thinks 1/2 inch beards are beautiful as a fashion statement, or because I come from a long line of bearded ancestors and it is important to me to observe the tradition (not so far from the truth in my case, other than the bit about being a prison inmate). Am I not "detrimentally affected" by the inequality of treatment that results from Holt's accommodation, but not mine? Surely I am. It seems to me that this sort of standard, as well as its more careful academic progenitor, strikes at the heart of these religious accommodation statutes.
2. Following from that point, the heart of these statutes (as Rick also notes) is to provide "very broad protection for religious liberty" or "expansive protection for religious liberty," as the Court says right at the start of the opinion. This case was an easy one according to that standard, even with a thumb on the scale of deference toward prison administrators, which the Court reaffirms (it rejects "unquestioning deference" but it acknowledges the "respect" that is due the prison administrators' "expertise"). Should not Hobby Lobby, in which there was no such presumptive deference or "respect" accorded to the government, also have been an easy case according to that standard? Should it at least have been as easy, in light of the absence of deference toward the government in the latter? And yet Holt was unanimous while Hobby Lobby split 5-4.
3. The breadth of protection for religious freedom contemplated by the statutes (RFRA and RLUIPA) and affirmed by the Court was notable, but so was the rigor with which the least restrictive means portion of the analysis was applied. In Holt, the prison argued that its concerns about the shaving of facial hair and escape were unique because of the particular sort of prison it operated, and that its rule was therefore the least restrictive means of securing against the possibility of escape. But the Court rejected that argument for the simple reason that the prison had not done enough to distinguish itself from other prisons that allow facial hair and that had managed these concerns. Other prisons, that is, whose situation was analogous to the Arkansas prison (even if not identical) used less restrictive means to achieve their security interests. The Court looked to the variety of less restrictive means on offer out there in the national universe, and found that the Department should have used one or more of those. This is perhaps a useful elaboration of the least restrictive means test. Unless the government can prove that its burden is truly unique, the Court will look to analogous (even if not identical) solutions to similar problems reached by other governmental entities. If those other solutions seem to have worked without an imposition on religious freedom, then the government has not used the least restrictive means.
