Professor Huhn will present a program today at 4:00 at Ohio Northern University Pettit School of Law on Same Sex-Marriage and Reality-Based Legal Analysis. The program will summarize the present status of same-sex marriage laws and litigation in the United States, and describe this movement within the larger intellectual and jurisprudential context of Legal Realism and Pragmatism.

Social conservatives sincerely believe that they are defending "morality" when they condemn practices such as  birth control, women working outside the home, and same-sex marriage. Their view is that these practices are "immoral" because they threaten the fabric of society. They consider people who condone these social transformations to be fostering "immorality."

They are mistaken. They view change itself as threatening. They forget that society often changes for the better – that human progress is possible – and that if given the opportunity to pursue their hopes and dreams people can often make this a better world.

The habit of social conservatives to think that they are defending "morality" is evident in the hysteria that arose over the subject of same-sex marriage. According to some conservative leaders, Satan is walking the land because some people of the same gender love each so much they are willing to promise to be faithful to each other and to share everything they have. What blindness! Committed gay and lesbian couples actually contribute to the strength of our families, our communities, and our society. Anyone can see that! So why all the uproar over what should be a relatively peaceful transition to a new level of acceptance?

Opposition to same-sex marriage is simply stated and easy to understand. Same-sex marriage, says its opponents, "threatens the institution of marriage." Some opponents even claim that it is not possible to speak of "same-sex marriage" – that the phrase itself is a contradiction in terms, a physical and moral impossibility.

The opposition to same-sex marriage is not grounded in logic or reality. It is based simply on tradition. Cultural and religious traditions condemn loving relationships between persons of the same gender, so according to social conservatives the practice of same-sex marriage is "immoral."

Those who approve of same-sex marriage and other changes to society such as the responsible use of birth control or the liberation of women from gender-based roles do not consider themselves to be fostering "immorality." They do not perceive themselves to be on the side of Satan or contradicting basic norms of what is good and right. They simply have a different way of telling right from wrong.

For example, liberals believe that whatever our cultural and religious traditions have been, people should not be treated differently unless they really are different. In accordance with this principle our society eventually came to the realization that racial discrimination is wrong. We learned that gender discrimination is wrong. And now we are figuring out that discrimination on the basis of sexual orientation is wrong. We now know – and social science studies prove – that gay and lesbian couples love each other just as much and are just as good at raising children as heterosexual couples. There is no earthly reason to treat same-sex couples differently – and therefore it is wrong to treat them differently.

This same dynamic is at work on the Supreme Court of the United States. Some justices are beholden to "tradition" in their interpretation of the Constitution. They maintain that if a group of persons has been historically discriminated against, that alone is reason enough for the law to continue to treat them differently. Other justices define equality more broadly and more realistically. They adhere to the principle that "persons who are similarly situated must be treated alike," and that principle has been repeatedly invoked to protect groups such as blacks, women, and the disabled from laws that enforced and reinforced traditional stereotypes.

If you, dear reader, are a social conservative, I urge you to pause the next time you are tempted to condemn me or another liberal for fostering "immorality." Please consider the possibility that I may see myself in a different light, that I may have a different way of telling right from wrong, and that what you regard as "immoral" I regard simply as a step forward.

At oral argument in the health care case Justice Anthony Kennedy suggested that the government bears the burden of persuading the Supreme Court that the Affordable Care Act is constitutional. He is precisely wrong. Like all purely economic legislation, the Affordable Care Act is presumed constitutional. This is a fundamental principle of the doctrine of Separation of Powers.

At oral argument last week in the health care case Justice Kennedy made the following remarkable proposals about the presumption of constitutionality:

Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

The answer to both questions is NO. Justice Kennedy's proposed view of the role of the Judicial Branch violates the Separation of Powers.

The Legislative Branch enacts legislation. The Judicial Branch ascertains the meaning of laws and determines whether they are constitutional. In interpreting a statute the courts must defer to the intent of the legislature. The touchstone for statutory interpretation is "the intent of the legislature." Similarly, in assessing the constitutionality of a statute the courts must presume that it is constitutional.

There is only one exception to this rule. If Congress or a state enacts a law that infringes upon an individual's constitutional rights, then the courts will "strictly scrutinize" the law. In such a case the government bears the burden of proving that the law is constitutional – it must prove that the law is necessary to accomplish a compelling governmental interest. If the law does not affect anyone's constitutional rights then the "rational basis test" applies. The person challenging the law has the burden of proving that the law does not have any tendency to accomplish a legitimate governmental purpose.

It used to be that the Supreme Court recognized "economic liberty" as a constitutional right, and frequently struck down laws regulating employers and protecting workers under the theory of "economic substantive due process." That is no longer the case.

Instead, today economic legislation is presumed constitutional. This rule applies whether or not the law is "novel" or "shocking" to the members of the Court. The Supreme Court has recognized this principle in dozens, if not hundreds of cases. Here are but a few quotations from cases demonstrating this basic precept of constitutional law:

[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. United States v. Carolene Products, 304 U.S. 144, 152 (1938) (Stone, J.) (upholding federal law against challenge under Due Process Clause).

[T]o be constitutional … It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. Williamson v. Lee Optical, 348 U.S. 483, 488 (1955) (Douglas, J.) (unanimous decision) (upholding state law against challenge under Equal Protection Clause).

We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) (Black, J.) (unanimous decision) (upholding state law against challenge under Due Process Clause).

[W]here we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. Katzenbach v. McClung, 379 U.S. 274 303-304 (1964) (Clark, J.) (unanimous decision with concurring opinions by Black, Douglas, and Goldberg, JJ.) (upholding federal law under Commerce Clause).

It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976) (Marshall, J.) (upholding federal law against challenge under Due Process Clause).

Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, United States v. Carolene Products Co., 304 U.S. 144, 153-154 (1938), they cannot prevail so long as “it is evident from all the considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable.” Id., at 154. Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981) (Brennan, J.) (footnote omitted) (upholding state law against challenge under Equal Protection Clause).

[Referring to] the strong deference accorded legislation in the field of national economic policy…. Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 476 U.S. 717, 729 (1984) (Brennan, J.) (unanimous decision upholding federal law against challenge under Due Process Clause).

In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress. South Dakota v. Dole, 483 U.S. 203 (1987) (Rehnquist, J.) (upholding federal law under General Welfare Clause).

[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. United States v. Comstock, __ U.S. __, 130 S.Ct. 1949, 1956 (2010) (Breyer, J.) (upholding federal law under Necessary and Proper Clause).

Tthe principle that the courts must defer to Congress on questions of economic policy pervades the Constitution. This principle applies in every field of Constitutional Law – Commerce Clause, Spending Clause, Necessary and Proper Clause, Fifth Amendment Due Process, and Fourteenth Amendment Due Process. This principle is so basic to our system of government that it must be considered a fundamental aspect of the doctrine of Separation of Powers. There is no exception to this principle for "novel" statutes. All statutes are novel. Nor does it matter how significant a departure that the law makes from existing law. It matters not whether the law works a minor or a major change in our society. The people, acting through their representatives in Congress, have the right to determine national economic policy. That is the meaning of the foregoing cases.

In tomorrow's post I will discuss why the courts must defer to Congress in the realm of economic policy.

Wilson Huhn teaches Constitutional Law at The University of Akron.

Yesterday the Supreme Court issued its decision in Coleman v. Court of Appeals of Maryland, No. 10-1016.   By a vote of 5-4, the Court ruled that the doctrine of "state sovereign immunity" applied in this case, ending Coleman's lawsuit against the State of Maryland.

This is another in the series of 11th Amendment cases decided by the Supreme Court in recent years. Essentially, the rule is that if Congress enacts a law pursuant to the Commerce Clause then it may not abrogate state sovereign immunity; it may not empower a person to sue a state government for money damages. However, if Congress enacts a law pursuant to Section 5 of the 14th Amendment, then it may abrogate state sovereign immunity and permit a plaintiff to sue a state for money damages. The reasoning is that when the Constitution was adopted Congress lacked the power to force the states to pay money damages to individuals, but when the 14th Amendment was ratified in 1868, that Amendment expressly provides that "No state shall" deny any person the equal protection of the laws and it authorizes Congress to enforce that provision.

Accordingly, civil rights laws that are adopted pursuant to the 14th Amendment can be used to sue the states for money damages. Civil rights laws that are adopted pursuant to the Commerce Clause may not be used to sue the states for money damages.

Some civil rights laws have portions that were enacted pursuant to the 14th Amendment, and other portions that were enacted pursuant to the Commerce Clause. The Americans with Disabilities Act is one such law.  In this case the Supreme Court ruled that the Family Medical Leave Act is another such law.

I described the facts of this case and the related case law in this earlier post, so I will only briefly summarize the case here. Mr. Coleman asked to take 10 days "sick leave." His employer, the Maryland Court of Appeals, decided instead to terminate his employment. Coleman sued the Court under the "self-care" provision of the Family Medical Leave Act, which guarantees employees the right to take sick leave.

The Supreme Court found that the "self-care" provision of the FMLA was adopted pursuant to the Commerce Clause, not the 14th Amendment.  This ruling was not a surprise.  Every single Court of Appeals that considered the issue came to the same conclusion. The provisions of the FMLA that permitted workers to take unpaid leave to care for other family members was obviously intended to protect women who historically have served as caretakers in our society and who as a result have often had to choose between family and a career. The FMLA is designed to redress this form of gender discrimination.  This argument is much more difficult with respect to the "self-care" provision of the FMLA.  It would seem to treat both genders equally, and is not so clearly directed against gender discrimination.  In light of the approach that the Supreme Court has adopted in these cases the decision of the Court in this case was reasonable.

However, there was no majority opinion. The vote was actually 4-1-4.  Justice Kennedy, in an opinion joined by three other justices, followed the usual path in these cases and determined that the remedy provided by the "self-care" provision of the FMLA was not "congruent with" or "proportionate to" any possible violation of the 14th Amendment by the state. Accordingly this provision of the FMLA was not a 14th Amendment enactment but rather a Commerce Clause measure.

Justice Thomas concurred on the ground that the entire FMLA is a Commerce Clause enactment, and that therefore all lawsuits for money damages against state governments under the FMLA should be barred.  As a result, in Justice Thomas' judgment the Court's decision in Nevada Dept. of Human Resources v. Hibbs (2003) should be overruled.  Justice Thomas was the only justice to take that position in this case.

In an opinion concurring in the judgment only, Justice Scalia came to the same result as the plurality but used different reasoning. He rejected the "congruent and proportionate" test used by Justice Kennedy, and stated that he evaluates the constitutionality of measures under the 14th Amendment by reference to the text of the Amendment:

I adhere to my view that we should instead adopt an approach that is properly tied to the text of §5, which grants Congress the power “to enforce, by appropriate legislation,” the other provisions of the Fourteenth Amendment. (Emphasis added.) As I have explained in greater detail elsewhere, see Lane, supra, at 558–560, outside of the context of racial discrimination (which is different for stare decisis reasons), I would limit Congress’s §5 power to the regulation of conduct that itself violates the Fourteenth Amendment. Failing to grant state employees leave for the purpose of self-care—or any other purpose, for that matter—does not come close.

In dissent, Justice Ginsburg, writing for herself and three other justices, would have ruled that the "self-care" provision of the FMLA redresses a form of gender discrimination because working women were most likely to be affected by a situation where an employee could not take sick leave. She stated:

The FMLA’s purpose and legislative history reinforce the conclusion that the FMLA, in its entirety, is directed at sex discrimination. Indeed, the FMLA was originally envisioned as a way to guarantee—without singling out women or pregnancy—that pregnant women would not lose their jobs when they gave birth. The self-care provision achieves that aim.

Justice Ginsburg makes a persuasive argument that the self-care provision was indeed a valid enactment under the 14th Amendment.

In footnote 1 of her opinion Justice Ginsburg offered another reason why Coleman should be allowed to sue the State of Maryland for money damages under the FMLA. She expresses the view that the entire enterprise of distinguishing 14th Amendment enactments from Commerce Clause enactments is mistaken:

I remain of the view that Congress can abrogate state sovereign immunity pursuant to its Article I Commerce Clause power.

Only Justice Breyer agreed with Justice Ginsburg on this point.

I agree with the position that Justice Ginsburg and Justice Breyer took in footnote 1. Unlike the Articles of Confederation, the original Constitution of the United States does not mention the term "state sovereignty."  Instead, it provides that federal law is "the supreme law of the land." Nor does the 11th Amendment lend any support for the proposition that state governments are immune from liability imposed by statutes adopted pursuant to the Commerce Clause. That amendment to the Constitution deals with the jurisdiction of the federal courts, not the power of Congress to enact legislation affecting the states. This entire line of "state sovereign immunity" cases is based upon a wayward policy in search of a constitutional home.

Wilson Huhn has taught Constitutional Law at the University of Akron School of Law for longer than the Supreme Court has recognized "state sovereign immunity" as a constitutional principle.

Recent events including the introduction and defeat of the Blunt Amendment in the United States Senate and political commentator Rush Limbaugh's vicious attack on Sandra Fluke in the context of the debate over birth control have highlighted the extent to which the major American political parties have become polarized on gender issues, with women favoring the Democratic Party.  But this was not always the case.  Historically women identified more with the Republican Party.

Here is a historical perspective with data concerning the "gender gap" in national politics.

Congress

From the Historical Data page of the website Women in Congress:

The first woman to serve in Congress was Jeannette Rankin, Republican of Montana, who took office in 1917.

In 1950, the year I was born, nine members of the House of Representatives and one Senator were women.  That year five of the female members of Congress and the lone female Senator were Republicans.

In the 112th Congress 78 members of the House and 17 members of the Senate are women.  Of these, fewer than one-third are Republicans (24 of the House members and five of the Senators).

Supreme Court

From the Justices portion at Oyez:

The first female justice on the Supreme Court was Sandra Day O'Connor, who served from 1981 to 2006.  She was a Republican.  The second, third, and fourth women appointed to the Court are still serving: Ruth Bader Ginsburg (1993), Sonia Sotomayor (2009), and Elena Kagan (2010).  All three are Democrats.

Elections for President

There has never been a female President, but there has been a "gender gap" in presidential elections at least since 1928.  Before 1980 women either were neutral or favored Republican candidates for the presidency.  Jo Freeman in Gender Gaps in Presidential Elections notes that women strongly preferred Herbert Hoover in 1928 and Dwight Eisenhower in 1952.  Since 1980 women have favored the Democratic candidate for the presidency.  Freeman explains:

Historically, it was the Republican Party that was the party of women's rights, and the Democratic Party that was the home of anti-feminism. After the new feminist movement rose in the 1960s-70s, the parties switched sides.

The Center for the American Woman in Politics has published a Fact Sheet The Gender Gap: Voting Choices in Presidential Elections showing how men and women have voted in Presidential elections since 1980.  In 2008 women favored Barack Obama over John McCain by 7 percentage points.

Comparison to the African-American Civil Rights Movement

The movement of women from the Republican to the Democratic Party mirrors what occurred with  African-Americans.  The party of Lincoln was responsible for the Emancipation Proclamation and the adoption of the 13th, 14th, and 15th Amendments to the Constitution, and supported equal rights through the 1920s.  Warren Harding, for example, openly advocated equal rights, appointed African-Americans to federal positions, and supported the adoption of the Dyer Bill, an anti-lynching law.  After 1968 the Republican Party moved to the right on civil rights as it became reliant on southern and socially conservative white voters.  Meanwhile during the administration of Franklin Roosevelt, First Lady Eleanor worked tirelessly for equal rights for African-Americans, and under the administrations of Jack Kennedy and Lyndon Johnson the Democratic Party moved into the forefront in defense of equal rights on the basis of both gender and race.

Barack Obama's recent phone call to Sandra Fluke is reminiscent of Jack Kennedy's first phone call to Coretta Scott King.  In 2012, an African-American President called a white woman who was the victim of a despicable misogynist attack from a leading national commentator to reassure her that her parents should be proud of her.  In 1960 a white presidential candidate called the African-American wife of the leading figure of the civil rights movement, who had been arrested on trumped-up charges, to reassure her of her husband's safety.  Shortly after Kennedy reached out to Coretta King, Martin Luther King, Sr. told Morris Abram that he had thrown his support to the Democratic candidate because Kennedy had "called my daughter-in-law and wiped the tears from her eyes."  But that is a story worthy of a posting of its own.

Federal Judge Roger Cebull emailed a disgusting race joke to his friends and then issued a half-hearted apology.  He should resign.

Earlier this evening John S. Adams of USA Today posted Federal judge admits he sent anti-Obama, racist e-mail.  Adams reports that Roger Cebull, Chief Judge for the District of Montana, has admitted sending the following email through his official account to six friends, who forwarded the "joke" to others:

"Normally I don't send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.

"A little boy said to his mother; 'Mommy, how come I'm black and you're white?' " the e-mail joke reads. "His mother replied, 'Don't even go there Barack! From what I can remember about that party, you're lucky you don't bark!' "

When this message became public, Cebull issued a statement in which he admitted that the message was racist but that he sent it anyway not because he is a racist but because he is "anti-Obama."  Cebull said:

"I didn't send it as racist, although that's what it is. I sent it out because it's anti-Obama."

That is not accurate.  The "joke" does not have anything to do with the President's policies, actions, or decisions.  It does not mock something that he said.  It does not make fun of his habits or appearance.  It does not denigrate any aspect of his character or personality.  Judge Cebull's "joke" has nothing to do with President Barack Obama.

The "joke" relates solely to Obama's race and the race of his mother and father.  It is based on the assumption that there is something wrong with being of "mixed race."  The principal point of the story is that it is humiliating for a white woman to have a black child.  It implies that a white woman would not have sex with a black man unless she was drunk.  It equates sex with a black man to sex with a dog.

This is not a joke about the President.  It is not anti-Obama.  It is anti-Black.  It is White Supremacy.  It is a race joke, pure and simple.

Judge Cebull found this joke "touching."  He hoped it would "touch his friends' hearts" as it did his own.  If this is what is in Roger Cebull's heart, he is not qualified to preside over cases involving the civil and criminal rights of American citizens.

Judge Cebull excuses his conduct on the ground that he is "not a fan of our President."  Fine.   In the future, in accordance with what is in his heart he should pass along jokes that mock something Barack Obama has said or done or stands for.

And he should do so as a private citizen.  Resign.

Wilson Huhn is 62 years old and he has heard quite enough race jokes in his lifetime.

More than one-fourth of Americans now live in jurisdictions that recognize same-sex marriage.  Within five years more than half of Americans may live in such jurisdictions.  But there are legal barriers.

Today's Kansas City Star has an article by Curtis Tate, Gay Marriage Question Evolves One State at a Time, in which he reviews the recent progress of the marriage equality movement and observes that this social issue is being decided one state at a time:

Increasingly, courts and state legislatures have decided that same-sex couples shouldn't be treated differently from opposite-sex couples. It's an incremental process, playing out state by state, reflecting the feelings of a changing but still divided public.

Tate concludes his article with observations that public opinion is slowly shifting in favor of same-sex marriage:

According to a Pew Research Center poll in November, 46 percent of Americans supported same-sex marriage, while 44 percent opposed it. That's a dramatic shift from 2006, when the same poll showed that 33 percent supported it, while 56 percent opposed it. Among people from ages 18 to 30, 59 percent supported it last year.  "Public opinion is moving pretty quickly," said Jane Schacter, a law professor at Stanford University and an expert on sexual-orientation law. "The long-term outcome is pretty clear. The question is how long does it take."

Currently, over 85 million Americans live in states where gay and lesbian couples are allowed to marry.  How long will it take before the rest of the country follows suit?

Nate Silver, the noted predictive analyst for the New York Times, tracks the level of acceptance in the United States.  In April, 2011, he found that support for same-sex marriage had increased 8% in two years, or 4% per year, more than double the historical average.  In 2010 Hank Pellissier, writing for the Institute for Ethics and Emerging Technologies, created a model of state-by-state changes that assumed a slower rate of acceptance – 1% per year.  Using this model Pellissier predicted that New Jersey would adopt same-sex marriage in 2011, Washington in 2012, and Maryland in 2013.  I have based the following figures on Pellissier's predictions.

Counting California, at the moment more than 85 million Americans live in nine states and the District of Columbia that recognize same-sex marriage.  According to Pellissier, between 2012 and 2014 another ten states with a population of more than 45 million people will join this group.  In the next two years, according to Pellissier, five more states with a population of 44 million people will embrace marriage equality.  At that point, 175 million Americans – 56% of the country – will live in places where gay and lesbian couples can marry.

However, there is a legal roadblock that may slow this development.  Eight of the states (indicated by an asterisk* below) slated to enact same-sex marriage by 2016 have provisions in their state constitutions prohibiting this.  In order for same-sex marriage laws to be adopted in these states one of three  things would have to happen.  (1) The people of the state would have to amend their constitution; (2) A court would have to rule that under Romer v. Evans it violates the First and Fourteenth Amendments of the United States Constitution for a state constitution to prevent a state legislature from adopting a law opening up marriage to gays and lesbians; or (3) A court would have to rule that the United States Constitution guarantees gay and lesbian couples the right to marry regardless of any state law.

As more jurisdictions recognize these marriages as valid, political and economic factors will increasingly come into play.  When a married same-sex couple moves to a state that does not recognize their marriage as valid, the state that performed the marriage is going to be irritated at the state of their new residence.  There could be negotiation or retaliation between the states.  More seriously, if DOMA is found to be unconstitutional (as two district courts have now ruled), federal employees who are moved from state-to-state will be have their marriages recognized, not recognized, and perhaps recognized again depending on where they live.  People aren't going to like that.  Most significant of all, members of the military have the right to declare their domocile to be anywhere in the United States; they will be living as married couples in states that otherwise do not recognize their marriages.  These and other factors may well lead to a "tipping point" that will accelerate the process of change in the remaining states.

Here are the statistics regarding the population of the states that currently recognize same-sex marriage, and of those that may be next in line.

States That Currently Recognize Same-Sex Marriage

In a ruling issued yesterday, Judge Jeffrey S. White of the Northern District for the State of California struck down the federal Defense of Marriage Act as unconstitutional under the Equal Protection Clause.  Judge White did not find that the Constitution requires the states to recognize same-sex marriage.  Instead he simply ruled that the federal government may not refuse to recognize the validity of same-sex marriages that the states have chosen to recognize.  But his reasoning leaves little doubt that the states will be required to follow suit.

In 1996 Congress enacted the Defense of Marriage Act in which it provided that the federal government would recognize as valid only marriages between a man and a woman.  In other words, under DOMA even if a state were to recognize same-sex marriages, these marriages would not be valid for purposes of federal law.  Same-sex couples could not file joint tax returns, take advantage of numerous tax deductions or exemptions, receive the benefit of health insurance or other benefits earned by federal employees, or qualify for social security survivorship benefits.  Ms. Golinski, a federal employee, sued the federal Office of Personnel Management contending that DOMA unconstitutionally deprives her and her wife of employment benefits.

In what has now become a familiar pattern, Judge White began by finding that DOMA should be evaluated under "intermediate scrutiny," that is, that the law is presumed unconstitutional and that the government had the burden of proving that the law was "substantially related" to achieving an "important government interest."  Four factors affect the level of scrutiny that must be applied, and all four factors were satisfied in this case.  Gays and lesbians have suffered from a history of discrimination in this country.  Sexual orientation is immutable; aside from a small minority of people it is neither chosen nor can it be changed.  Gays and lesbians are relatively powerless.  And sexual orientation is not related the ability of a person to perform or contribute to society.

Accordingly, Judge White found that intermediate scrutiny applied.  However, he also found that this law would not even pass the "rational basis" test – that the law did not even tend to accomplish a legitimate governmental interest.

Judge White considered a number of governmental interests that supporters of DOMA have asserted are served by the law, and he rejected each of these interests in turn.

1.  Traditional Notions of Morality.  Judge White quoted extensively from the legislative history of DOMA to show that it was adopted because of extreme prejudice against gays and lesbians.

In his expression of these objectives, Henry Hyde, then-Chairman of the House Judiciary Committee, stated that “[m]ost people do not approve of homosexual conduct … and they express their disapprobation through the law.” 142 Cong. Rec. H7480 (daily ed. July 12, 1996). In the floor debate, members of Congress repeatedly expressed their disapprobation of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion,” and “an attack upon God’s principles.” 142 Cong. Rec. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn); 142 Cong. Rec. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); id. at H7494 (statement of Rep. Smith). Members of Congress argued that marriage by gay men and lesbians would “demean” and “trivialize” heterosexual marriage and might indeed be “the final blow to the American family.” 142 Cong. Rec. H7276 (daily ed. July 11, 1996) (statement of Rep. Largent); 142 Cong. Rec. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski) (“Allowing for gay marriages would be the final straw, it would devaluate the love between a man and a woman and weaken us as a Nation.”). Senator Helms, in a statement prepared for the hearing, expressed his disapprobation: “[Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle – these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle … Homosexuals and lesbians boast that they are close to realizing their goal – legitimizing their behavior … At the heart of this debate is the moral and spiritual survival of this Nation.” 142 Cong. Rec. S10,110 (daily ed. Sept. 10, 1996); see also 142 Cong. Rec. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr) (stating that marriage is “under direct assault by the homosexual extremists all across the country.”). The House Report on the pending DOMA bill stated: “Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails [a] moral disapproval of homosexuality.” H.R. Rep. 104-664, at 15-16. The Report further stated that “same-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people … feel ought to be illegitimate.” Id. at 16.

While it is undisputed that DOMA reinforces traditional moral beliefs, Judge White found that this is not a legitimate governmental interest.  Merely because marriage has previously been defined as between a man and a woman does not mean that this definition is constitutional.  The government must point to some reason why the traditional beliefs are rational and fair.

2.  Maintaining the Status Quo.  It is true that DOMA was enacted when it appeared that some of the states were about to recognize same-sex marriage, and DOMA was intended to prevent the federal government from recognizing them as well.  However, this cannot be characterized as "maintaining the status quo" because before DOMA the federal government allowed the states to define eligibility for marriage, including requirements for age, consanguinity, and even race.  Marriage was considered to be a matter confided to the states, not the federal government.  Judge White found that DOMA actually represented a break from the status quo, and a violation of the principle of federalism.

3.  Protecting the Institution of Marriage.  To the extent that this goal represents simply a moral judgment that same-sex unions are inferior and not worthy of protection, it is redundant of the "morality" argument disposed of above.  The government failed to offer any evidence that same-sex marriages harm opposite-sex marriages or otherwise devalues the institution of marriage in any concrete way.

4.  Promoting Effective Childrearing.  Ms. Golinski offered substantial expert evidence buttressed by dozens of published studies proving that same-sex couples are just as effective at parenting as opposite-sex couples.  The only evidence offered in rebuttal were three non-scientific, non-peer-reviewed opinion pieces that were either published in the popular press or not published at all.  Furthermore, the government attorneys failed to answer precisely how the children of opposite-sex couples would benefit by excluding same-sex couples from federal benefits; nor did they justify the dramatic harm that DOMA imposes on the children of same-sex couples.

5.  Conservation of Federal Resources.  Federal attorneys suggested that federal recognition of same-sex marriages would drain federal resources.  However, the court noted that while conserving government funds may be a legitimate government interest in and of itself, this goal may not be achieved by arbitrarily depriving a group of people from eligibility for funding.

Judge White ruled that none of the foregoing governmental interests were sufficient to satisfy intermediate scrutiny or even the rational basis test.

In closing, Judge White explained that it was not necessary for him to find that DOMA was motivated by hatred; it was sufficient to note that it was the product of ignorance (my word, not his).  He stated:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.  Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring).

Strictly speaking, the district court's decision in Golinski does not mean that under the 14th Amendment the states are required to recognize same-sex marriage.  The court's decision simply holds that under the 5th Amendment the federal government may not refuse to recognize same-sex marriages that some states have already chosen to acknowledge.  This is the position that President Obama currently maintains.  The legal standards for equality under the 5th and 14th Amendments are the same, however, and the reasoning of the district court if applied against the states would have the effect of striking down state DOMAs as well.

This is another of those wacky 11th Amendment cases that the Supreme Court has been entertaining lately.

Daniel Coleman was fired by the Maryland Court of Appeals after he requested ten days off because of personal illness. He sued his employer, a state institution, for violating the federal Family Medical Leave Act. The Maryland Court contended that under the Constitution it is immune from liability because of the newly-minted constitutional principle of state sovereign immunity, and the United States Court of Appeals for the Fourth Circuit agreed with the state employer.

Over the past twenty years the Supreme Court has resurrected the concept of “state sovereign immunity” as a constitutional principle under the authority of the 11th Amendment. Essentially, if Congress enacts a law pursuant to the Commerce Clause, it may not authorize private damage actions against state governments, but if Congress enacts a law pursuant to the 14th Amendment it may authorize private damage actions against state governments.

One portion of the FMLA permits workers to take leave to care for others. In Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003) the Supreme Court ruled that this portion of the law had been enacted pursuant to the 14th Amendment because Congress was responding to “the States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits.” As a result the plaintiff was permitted to sue her employer for money damages. However, Hibbs may not apply in this case because Coleman was fired not for requesting leave to care for others, but rather for himself.  The issue before the Supreme Court is whether Congress enacted the “self-care” provision of the FMLA pursuant to the Commerce Clause or pursuant to Section 5 of the 14th Amendment.

In Coleman v. Maryland Court of Appeals, 626 F.3d 187 (2010), the Fourth Circuit Court of Appeals ruled against Coleman and found that the plaintiff’s self-care claim was barred by the Eleventh Amendment. Five other Circuit Courts have come to the same conclusion in similar cases, and this would seem consistent with the Court's previous decisions distinguishing Commerce Clause legislation from laws enforcing the 14th Amendment, even within the same general statute.  Compare Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001) (state sovereignty immunity precludes claims for employment discrimination brought by disabled individual against the state university under Title I of the federal Americans with Disabilities Act) with Tennessee v. Lane, 541 U.S. 509 (2004) (Stevens, J.) (upholding validity of Title II of Americans with Disabilities Act as applied to State that failed to provide handicapped access to courtroom) (“we find that Title II unquestionably is valid § 5 legislation as it applies to the class of cases implicating the accessibility of judicial services ….”).

At oral argument the Court spent most of its time questioning the attorneys whether the "self-care" provision of the FMLA, like the other provisions, was enacted to prohibit gender discrimination in employment which would be an Equal Protection problem, or whether it was enacted simply to protect disabled workers which would be a Commerce Clause problem.

Another issue in the case is that the Fourth Circuit Court of Appeals dismissed Coleman's entire case; not just his suit for money damages, but also any claim he may have made for reinstatement.  Beginning at page 14 of oral argument, Justice Alito suggested that Coleman's claim for reinstatement, if he made one, would not be barred by the Eleventh Amendment and that the decision of the Fourth Circuit should be modified to permit that portion of his claim to go forward.  At page 15 of the transcript Justice Kennedy said, "The Eleventh Amendment primarily protects the treasuries of the state against money damages," implying that it does not protect the states from equitable relief like injunctive orders to reinstate an employee.

The Supreme Court has not yet issued its decision in this case.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

One of the constitutional cases that the Supreme Court is currently reviewing is Armour v. Indianapolis, a tax case brought under the Equal Protection Clause.

In 2001 the City of Indianapolis assessed Christine Armour and a group of 180 other homeowners a fee of $9,278 to pay for connection to city sewers.  Of this group, 142 homeowners elected to pay in installments; Armour and the others decided to pay the entire amount in a lump sum.  In 2002, the City-County Council abandoned this method of assessment because it imposed too great a burden on homeowners, and it adopted a program of connecting property to city sewers at a cost of $2,500 apiece.  In 2005 the Council adopted Resolution 101 forgiving all outstanding balances due on the original assessments; however, the Council decided not to refund any payments that had already been made.

Attorney General Eric Holder released a letter to House Speaker John Boehner today informing him that the Department of Justice will not defend the constitutionality of a federal law denying benefits to members of the armed forces who are lawfully married to persons of the same sex.

Igor Volsky of ThinkProgress reports on a lawsuit filed by servicemembers against the federal government:

That lawsuit, filed by the Servicemembers Legal Defense Network in October on behalf of Maj. Shannon McLaughlin of the Massachusetts National Guard, argues that McLaughlin and her partner Casey are denied benefits that similarly situated opposite-sex couples enjoy, including, “medical and dental benefits, basic housing allowances, travel and transportation allowances, family separation benefits, military ID cards, visitation rights in military hospitals, survivor benefit plans, and the right to be buried together in military cemeteries.” Such treatment “violates constitutional equal protection guarantees,” “the Tenth Amendment and constitutional principles of federalism,” it says.

The Attorney General announced today in this letter that it will not defend the constitutionality of the law, and invited Congress to defend the law if it chooses.  The reasoning of the Attorney General in opposition to the constitutionality of the provisions in Title 38 relating to military benefits is the same as its position in opposition to  the federal Defense of Marriage Act.  The Attorney General contends that "intermediate scrutiny" is the appropriate standard of review, and concludes that in any event the government lacks even a legitimate reason for denying the families of gay and lesbian servicemembers equal benefits.  Holder states:'

The legislative record of these provisions contains no rationale for providing veterans' benefits to opposite-sex spouses of veterans but not to legally married same-sex spouses of veterans.  Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that could warrant treating these provisions differently from Section 3 of DOMA.

Holder assured Congress and the public that the federal government would continue to enforce the law until it is repealed or overturned:

As with Section 3 of DOMA, the Executive Branch will continue to enforce 38 U.S.C. Sec. 101(3) and 38 U.S.C. Sec. 101(31), consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals those provisions or the judicial branch renders a definitive verdict against their constitutionality.

The case has been stayed; no answer need be filed until April 28, 2012.

In his book "It Takes a Family" Presidential candidate Rick Santorum advocates preparing "moral impact statements" to evaluate changes in society, analogous to the requirement that there be an "environmental impact statement" before land use changes are undertaken.  I completely agree.

In Chapter 22 of "It Takes a Family" Santorum states:

Liberals love Environmental Impact Statements.  And while they are costly, and while they may easily be abused as a mere tool to stop a development project altogether, they do reflect a true insight: namely, that nature is a subtle web of intricate organic connections, and even small changes in an ecosystem can have large and unintended negative effects downstream.  Some call it the "butterfly effect": the mere flapping of a butterfly's wings may contribute to causing a hurricane on the other side of the globe.  Trying to look ahead to what might be lost is simply prudent.

What has always baffled me is that the village elders [ed. - this is how Santorum refers to federal judges] who are so sensitive about interventions in the natural ecosystem are almost always the same people who champion the wholesale desrtuction of our society's moral ecosystem.  Human societies are also a subtle web of intricate organic connections, of moral bonds, communities of memory and mutual aid, as the legal scholar Mary Ann Glendon puts it.  Yet when it comes to the moral ecology of our society, liberals turn into the dirty dozen, thoughlessly clear-cutting forests of rich, ancient moral norms, paving them over with contempt, and building in their place the moral equivalent of strip malls.  Where is the prudence, the foresight, the sound science, and the sensitivity to our moral ecosystem?  Shouldn't we spend at least as much time on exhaustive research for a Moral Impact Statement when proposing moral alternatives to our environment as we do when building a bridge that may adversely affect a box turtle in rural Pennsylvania?

Not only do I agree with Senator Santorum's position advocating Moral Impact Statements, I would contend that his proposal does not go far enough.  Not only must we consider the consequences of changes to our moral landscape, we should also consider the moral value of retaining the present form of existing laws and institutions.  Just such a Moral Impact Statement was developed in the Prop 8 trial presided over by Judge Vaughn Walker.  (Judge Walker's decision in that case, Perry v. Schwarzenegger, may be accessed here.)

In that case the plaintiffs and defendants were allowed to call as many witnesses as they wished in support of or in opposition to same-sex marriage.  In particular, the District Court afforded the parties the opportunity to present expert testimony as to the likely consequences of granting or denying same-sex couples the right to marry.  Here was precisely what Rick Santorum called for in his book – the opportunity to set forth "sound science" demonstrating the harm that he believes would ensue from expanding the institution of marriage to gay and lesbian couples.

The opponents of Proposition 8 (supporters of same-sex marriage) seized the opportunity.  They offered the testimony of nine expert witnesses, backed by extensive historical and social science studies, proving that same-sex couples are no different from opposite-sex couples across a range of variables.  They proved that same-sex couples love each just as much and are just as good at raising children as opposite-sex couples.

The supporters of Proposition 8 were unable to muster even a single qualified expert to testify.  They were unable to introduce into evidence even a single peer-reviewed study that would have refuted the proposition that same-sex couples are as capable of creating strong families and contributing to the institution of marriage as opposite-sex couples.

Senator Santorum did not testify at that trial, nor did any other leaders of the anti-same-sex marriage movement.  Why not?

A similar pattern appeared in Iowa in the case of Varnum v. Brien (2009).  In that case much of the same evidence was presented to the court as in the Prop 8 case, and the court came to these conclusions:

Plaintiffs are in committed and loving relationships, many raising families,  just like heterosexual couples. Moreover, official recognition of their status  provides an institutional basis for defining their fundamental relational rights  and responsibilities, just as it does for heterosexual couples. Society  benefits, for example, from providing same-sex couples a stable framework within  which to raise their children and the power to make health care and end-of-life  decisions for loved ones, just as it does when that framework is provided for  opposite-sex couples.

Which of these findings is incorrect?  Precisely how are same-sex couples different in fact in these respects?

The Senator and other opponents of same-sex marriage are properly concerned about the future of the family.  They are correct as to the centrality of the institution of marriage to our society.  They are most certainly right regarding the advantage to a child of having two committed parents.  What they fail to acknowledge is the supporters of same sex marriage share those very same concerns!  Same-sex marriage rewards faithfulness and thereby buttresses monogamy.  In addition, same-sex marriage will ensure that hundreds of thousands more children will be raised by two lawfully responsible parents.  Finally, allowing same-sex marriage will heal many families and strengthen many more.

The "Moral Impact Statement" that Rick Santorum called for regarding same-sex marriage has been prepared and tested in the courts.  If he has evidence opposing these conclusions based on "sound science" he should present it.

As a professor at The University of Akron School of Law Wilson Huhn has been calling for a rational discussion of this and other constitutional issues for a very long time.   In his writing and speaking he attempts to demonstrate the proposition that in the long run facts and logic are a lot more persuasive than namecalling and characterization.

On Tuesday the United States Court of Appeals for the Ninth Circuit handed down its decision in the case of Perry v. Brown, the Prop 8 case.  The Court of Appeals struck down Proposition 8, but it did so on narrow grounds.  It is unlikely that the United States Supreme Court will agree to review the decision of the Court of Appeals.

On Tuesday the Ninth Circuit upheld the decision by District Court Judge Vaughn Walker declaring California Proposition 8 to be unconstitutional.  The Court of Appeals did not hold that same-sex couples have a constitutional right to marry.  Instead, the court ruled that it was unconstitutional for the people of the State of California to take away a previously granted right purely for symbolic reasons.

There are a few things that make this case unique among the same-sex marriage cases.  First, Proposition 8 does not distinguish between same-sex unions and opposite-sex unions in any practical or legal sense.  Under Proposition 8 same-sex couples are allowed to enter into domestic partnerships and opposite-sex couples may enter into marriage, and domestic partnerships and marriages confer precisely the same legal rights.  Under Proposition 8 there is no difference between domestic partnerships and marriage  except in the term used to describe the legal relationship. 

Another remarkable thing about this case was the trial that occurred in the District Court.  In the trial court there were a parade of witnesses who testified about the status of gays and lesbians in our society, the nature of their relationships, and their capacity to raise children.  In general, the experts who testified on behalf of the same-sex couples were highly qualified social scientists who relied extensively upon peer-reviewed studies to support their conclusions that gay and lesbian couples have as stable relationships and are as good at parenting as opposite-sex couples.  The experts who were offered in support of Proposition 8, on the other hand, were self-appointed "experts" who relied upon anecdotal evidence and outmoded stereotypes to argue that the right to marry should not be extended to gay and lesbian couples.  The stark disparity between the two sides was evident to anyone who looked at the evidence.  The plaintiffs challenging Proposition 8 had science and reality on their side; those supporting Proposition 8 had nothing but tradition and prejudice.  Judge Walker entered detailed findings and conclusions based upon this evidence.  The Prop 8 trial was and will remain a watershed in the history of the movement seeking equal rights for gays and lesbians.

However, the Court of Appeals ignored all of this evidence.  Instead, the Court found that only one evidentiary fact was relevant – that the whole case turned upon a single finding.  That fact, admitted by the supporters of Proposition 8, is that there is a symbolic difference between domestic partnership and marriage.  It was this fact – a fatal concession - that drove the majority of the Ninth Circuit panel to the conclusion that Proposition 8 was unconstitutional. 

The third unique aspect of this case is that the plaintiffs did not have to persuade the courts that they had a constitutional right to marry (although Judge Walker ruled that they did have such a right).  Instead, the plaintiffs only had to persuade the court that it was unconstitutional for the State of California to take the right to marriage away and substitute the same legal rights under the name "domestic partnership" for purely symbolic reasons.

Accordingly, the Court of Appeals for the Ninth Circuit issued a ruling confined to the facts of this case.  The Court held that it violated the rights of same-sex couples for the State of California to take away their right to call their legally-recognized relationship "marriage" instead of "domestic partnership." 

In dissent, Judge Smith half-heartedly offered the following rationale for upholding Proposition 8:

Here, the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting.  "The assumptions underlying these rationales may be erroneous, but the very fact they are 'arguable' is sufficient, on rational basis review …."

Because Proposition 8 grants same-sex couples in domestic partnerships the same rights as parents that opposite-sex couples have in marriage, it is difficult to imagine how Proposition 8 promotes responsible procreation and optimal parenting.  Furthermore, the terms used by the dissenting judge to describe this argument - "might," "arguably," and "may be erroneous" do not betoken confidence.

The decision of the Ninth Circuit is quite narrow.  In effect, the Court of Appeals found that Proposition 8 was not intended to alter any legal rights or responsibilities, but rather was intended to "send a message" about the value or significance of same-sex unions.  The Equal Protection Clause of the Constitution, ruled the Court of Appeals, does not permit the states to express their disapproval of entire segments of society in this manner. 

I do not believe that the Supreme Court will choose to review this case.  The precise facts are not likely to occur elsewhere.   Other, more substantive same-sex marriage cases are wending their way through the federal courts.  The Supreme Court will wisely wait until a Court of Appeals has issued a decision in one of those cases.

I do not mean to diminish the political and social significance of this decision.  When California's 33 million residents are added to those of New York and five other states, one-fifth of all Americans will live in jurisdictions where same-sex marriage is recognized.  A handful of other states, including Washington, Maryland, and New Jersey, are poised to join that group.  Gay and lesbian married couples will become more commonplace and more accepted.  In the not-too-distant future, people will wonder what all the fuss was about.

A group of 70 business, legal, community, and municipal institutions have filed an amicus brief in the Gill case in opposition to the federal Defense of Marriage Act.

On July 8, 2010, federal District Court Judge Jacob Tauro ruled in the case of Gill v. Office of Personnel Management that the federal Defense of Marriage Act (DOMA) violates the Equal Protection Clause.  The opinion of the district court in Gill is available here.  I described Judge Tauro's decision the day it was handed down in Federal District Court Rules DOMA Unconstitutional.  This case is now on appeal to the First Circuit Court of Appeals. 

Janet Tu of the Seattle Times posted Microsoft, Starbucks among 70 major organizations supporting challenge of DOMA describing the brief.  The brief was filed with the appellate court and is available here.  The brief cites four reasons why the organizations oppose DOMA, which basically boil down to two: first, because DOMA imposes extra accounting expenses on businesses that have to treat same-sex couples as legally married for purposes of state law and as not married for purposes federal law; and second, because DOMA forces employers to act in a discriminatory manner which strains the employer/employee relationship and is inconsistent with the nondiscriminatory business model that these employers wish to follow.  Here are the headings from the brief:

A. The Burden of Compliance with DOMA

1. Workplace Benefits and a Workplace Ethos of Transparent Fairness are Critical to Enterprise Success

2. DOMA Burdens Amici’s Employees and Strains the Employer/Employee Relationship

3. DOMA Forces Employers to Incur Administrative Burdens and Expense

B. DOMA Forces Employers to Affirm Discrimination They Regard as Injurious to the Corporate Mission

 A full listing of the corporations, law firms and cities who joined the brief follows.

This brief is filed on behalf of the following businesses:

ABT Associates

Aetna, Inc.

Akamai Technologies, Inc.

Alere Inc.

Bank of New York Mellon Corporation

Biogen Idec, Inc.

Blue Cross Blue Shield of Mass., Inc.

Boston Community Capital, Inc.

Boston Medical Center Corp.

Bright Horizons Children’s Centers LLC

Calvert Investments, Inc.

CBS Corporation

The Chubb Corporation

Communispace Corp.

Constellation Energy Group, Inc.

Diageo North America, Inc.

Eastern Bank Corp.

Exelon Corp.

FitCorp Healthcare Centers, Inc.

Gammelgården, LLC

Google Inc.

Integrated Archive Systems, Inc.

Kimpton Hotel & Restaurant Group,LLC

Levi Strauss & Co.

Loring, Wolcott & Coolidge Trust,LLC

Massachusetts Mutual Life Insurance Co.

Massachusetts Envelope Company,Inc.

Massachusetts Financial Services Company

Microsoft Corp.

National Grid USA, Inc.

Nationwide Mutual Insurance Co.

New Balance Athletic Shoe, Inc.

New England Cryogenic Center, Inc.

NIKE, Inc.

The Ogilvy Group, Inc.

Onyx Phar

This case involves a parochial school teacher who was fired because of a disability.  Her employer claimed that it was exempt from the Americans with Disabilities Act because of the "ministerial exception," a judge-created doctrine that exempts religious organizations from the operation of civil rights laws in cases involving "ministerial employees." 

On November 21, 2010, I posted Does a Parochial School Have a Constitutional Right to Fire a Teacher in Violation of the Americans with Disabilities Act?  That case, now entitled Menorah-Tabor Church and School v. EEOC, will be argued before the Supreme Court on October 5.

I described the principal issue – the proper application of the "ministerial exception" to the civil rights laws –  in the previous post.  In discussing the judge-made "ministerial exception" and its application to this case, I stated:

This rule essentially provides  that "ministerial employees" are not covered by employment discrimination laws – that religious organizations may discriminate against employees who are essentially acting as members of the clergy for any reason, including the employee's race, gender, national origin, sexual orientation, or disability.  The reason for the "ministerial exception" is to prevent the government from interfering with the governance of religious institutions as well as the beliefs (however discriminatory) those institutions may hold.  The "ministerial exception" is based not only upon the Free Exercise of Religion, but also upon Freedom of Speech, Freedom of Association, and the Separation of Church and State.

On March 9, 2010 the Sixth Circuit Court of Appeals issued its decision in this case in a decision entitled EEOC v. Perich.  The court found that the statutory exemption contained in § 12113(d) did not apply because Perich was not fired for violating any of the tenets of the church.  It also found that the "ministerial exception" did not apply because Perich was not a "ministerial employee."  The court said:

the overwhelming majority of courts that have considered the issue have held that parochial school teachers such as Perich, who teach primarily secular subjects, do not classify as ministerial employees for purposes of the exception.

…

By contrast, when courts have found that teachers classify as ministerial employees for purposes of the exception, those teachers have generally taught primarily religious subjects or had a central role in the spiritual or pastoral mission of the church.

The court found that, under this standard, Perich was not "primarily" teaching religion or otherwise acting as a "ministerial employee."  The court found the following facts with respect to Perich's duties at the school:

The district court's factual determinations concerning Perich's primary duties throughout her work day were not clearly erroneous. The record supports the finding that Perich's employment duties were identical when she was a contract teacher and a called teacher and that she taught math, language arts, social studies, science, gym, art, and music using secular textbooks.  Furthermore, the record indicates that Perich taught a religion class four days per week for thirty minutes and that she attended a chapel service with her class once a week for thirty minutes. Perich also led each class in prayer three times a day for a total of approximately five or six minutes. The record also indicates that Perich seldom introduced religion during secular discussions.  Approximately twice a year, Perich led the chapel service in rotation with other teachers.  However, teachers leading chapel or teaching religion were not required to be called or even Lutheran, and, in fact, at least one teacher was not.  In all, the record supports the district court's finding that activities devoted to religion consumed approximately forty-five minutes of the seven hour school day.

In tomorrow's post I will discuss the briefs that have been filed before the Supreme Court in this case.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790.

 

 

 

 

In 1911 Roscoe Pound published The Scope and Purpose of Sociological Jurisprudence (which may be found in two parts at pages 140 and 489 of Volume 25 of the Harvard Law Review).  A century later a consequence of Pound's legal philosophy is that the lines between "questions of law" and "questions of fact" are becoming ever more undefined in American law.  And, as a result, the attorneys for Edie Windsor have filed a motion to strike in their case challenging the constitutionality of the Defense of Marriage Act.

Pound, along with other leading legal lights such as Oliver Wendell Holmes (The Path of the Law (1897)) and Benjamin Nathan Cardozo (The Nature of the Judicial Process (1921)) founded the school of "legal realism" which now dominates American law.  In the interpretation and application of our laws it would now be unthinkable – not to mention practically inviting defeat - to fail to make a policy argument when contending for a particular interpretation of the law.  Regardless of the field in which a dispute over the proper interpretation of the law arises, whether the matter is civil or criminal, substantive or procedural, at trial or on appeal, it is always necessary to explain why the court should interpret the law favorably to our client.  It is not sufficient to simply parse the language of the law in question or to merely cite precedent.  American judges also demand to know what purposes the law is supposed to serve and how the proffered interpretation will achieve those purposes – why it will serve justice.  Pound always asked of the law, "What are you good for?"  That  is, how will a particular interpretation of the law affect not just the parties in this case but all of society, and are those effects consistent with the underlying purposes of the law, the values that the law stands for?

This judicial philosophy has led to a blurring of the lines between questions of fact and questions of law, exemplified by the procedural dispute that is brewing in the Southern District of New York in the case of Edith Schlain Windsor v. United States of America.  Ms. Windsor was married to Thea Spyer in Canada in 2007, and they lived in the State of New York which recognized their marriage as valid.  Upon Spyer's death Windsor was required to pay hundreds of thousands of dollars estate taxes to the government of the United States, because pursuant to the federal Defense of Marriage Act the federal government does not acknowledge the validity of same-sex marriages – even those which are lawfully entered into under state law.

The attorneys arguing on behalf of Ms. Windsor presented affidavits by five expert witnesses in support of several propositions relevant to the constitutionality of DOMA.  These experts consisted of academic professionals in the fields of social and developmental psychology, American history, and political science.  These witnesses testified that gays and lesbians have traditionally been the subject of discrimination under the laws of the United States, that until recently they have been politically powerless, that sexual orientation is relatively immutable, and that gays and lesbians are as capable of performing and contributing to society as other people; in particular, that their unions are as stable and that they are as good at parenting as opposite sex couples.

Defense counsel – attorneys appearing on behalf of the House of Representatives, since the Department of Justice decided that it could not ethically defend the constitutionality of DOMA – offered no expert witnesses on behalf of the statute.  Instead, the House has chosen to defend the law by citing to books and articles that purportedly support its point of view, but it has decided not to present the authors of these studies as witnesses nor allow them to be cross-examined.

Attorneys for Ms. Windsor have now filed a motion to strike the "evidence" proffered by the defense on the ground that the nature and form of the evidence is inconsistent with the Rules of Evidence and the Rules of Civil Procedure – specificially, that it is "hearsay."

Joe Sudbay at AMERICAblog Gay has been covering this trial closely, and he addresses the motion to strike thoroughly in his entry of August 11, Boehner’s DOMA lawyers want to cite Maggie Gallagher, but avoid cross-examination.  He links to Windsor's brief in support of plaintiff's motion to strike, in which her attorneys point out that the authorities upon whom the House attorneys place most reliance are not in fact experts but rather lay people.  Professor George Dent (whom I have had the pleasure of debating more than once on this issue) is a professor of Business Law at Case Western Reserve University, and Maggie Gallagher, although head of the National Organization for Marriage (a leading opponent of same-sex marriage) is qualified neither by education nor training as an expert in psychology, sociology, history, or political science.  Had they testified, Windsor's attorneys would surely have challenged their qualifications to testify as experts on the immutability of sexual orientation, the historical treatment of gays and lesbians, or the parenting capabilities of same-sex couples.  Since they did not testify, Windsor's attorneys contend that their opinions should not even be regarded as "evidence" to be considered in determining the constitutionality of DOMA.

Here's the rub.  The issue before the trial court in Windsor v. U.S. is a pure question of law.  This question is determined solely by the court.  Neither a jury nor a judge acting as a "trier of fact" has any role to play in the interpretation of the Constitution.  On the other hand, it is incontestable that this case involves complex factual issues that require for their proper determination the contributions of social science experts. 

This same jurisprudential concern arose at the Prop 8 trial, where the trial court based its decision striking down the California constitutional amendment on the testimony of experts – including many of the same experts in this case.  The essay I posted at that time – Muller v. Oregon and the Prop 8 Case: From Ideology to Rationality in One Hundred Years - compared the plaintiffs' arguments to a Brandeis Brief with its heavy reliance on social science studies. 

What is the meaning of this?  Why is the interpretation of law becoming more and more dependent upon expert testimony, policy analysis, and complex factual analysis?

It is merely the latest flowering of the intellectual movement that was sown by scholastics like Roger Bacon in the high middle ages who introduced the scientific method into western thought.  Not only science but all avenues of inquiry were to become empirical.  In the period of the Enlightenment rationality challenged religion as the guiding force for humankind.  During the 19th century deontological philosophies such as natural law and Kantianism gave way to consequentialist analysis such as utilitarianism and pragmatism.  In the 20th century the social sciences bloomed – psychologists, sociologists, and political scientists all turned to empirical research to unravel the secrets and solve the problems of the human mind and human interaction.

Now it is the law's turn.  Our civilization demands that the law be rational – that it be fashioned to serve the underlying purposes of the law.  As Cardozo said,

"The final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence…. Logic and history and custom have their place. We will shape the law to conform to them when we may; but only within bounds. The end which the law serves will dominate them all."   The Nature of the Judicial Process (1921), p. 66

As it is with all of law, so it is with this particular question of law.  The constitutionality of laws preventing gay and lesbian couples from entering into marriage will be determined not by religious belief or cultural custom, but rather by a practical and realistic assessment of their fitness for marriage in comparison with other people.  The principle of equality is enduring and universal.  The application of this principle changes with advancing knowledge.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790.

As reported in yesterday's post, the House of Representatives has filed briefs in the case of Windsor v. United States in federal district court in New York.  Yesterday's post described the House's Answers to Interrogatories.   Today's post summarizes the House's Brief in Opposition to Plaintiff's Motion for Summary Judgment.

The summary judgment brief filed by the House of Representatives is long on process but short on substance.  The House focuses nearly exclusively on the threshold question "Are same-sex couples a suspect class?"  It devotes almost no attention to the question, "Is there a legitimate reason for the federal government to deny recognition to same-sex marriages?"

1.  Are same-sex couples a suspect class?

The first heading in the House brief on this subject makes a bold yet doubtful claim:

Persuasive Authority Unequivocally Supports the Conclusion that Homosexuals Clearly Are Not a Suspect or Quasi-Suspect Class

Before turning to substance of this claim, I have a couple of quibbles with the wording of the House's argument.  First of all, it would be more respectful to use the term "gays and lesbians" rather than the term "homosexuals."  Under the circumstances the House attorneys should be careful about how they refer to their opponents.  Second, every first-year law student learns that the adverb "clearly" is a red flag for lawyers.  Clear propositions are self-evident – unclear ones need semantic enhancement.  And an examination of the case law reveals that the House lawyers are considerably overstating, if not misstating, the state of the law.

Existing case law does not "unequivocally" establish that sexual orientation is not a suspect classification; instead the recent trend of judicial decisions are "clearly" going the other way.  Recent cases either applying heightened scrutiny or finding it unnecessary to apply the higher standard include:

In re Marriage Cases, 43 Cal.4th 757 (2008) (striking down state laws prohibiting same-sex marriage under strict scrutiny)

Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) (applying intermediate scrutiny in striking down state law prohibiting same-sex marriage)

Varnum v. Brien, 767 N.W.2d 862 (Iowa 2009) (applying intermediate scrutiny to strike down state law prohibiting same-sex marriage)

Perry v. Schwarzenegger ["Prop 8 case"], (Northern District California, 2010) (finding strict scrutiny applicable, but striking down Proposition 8 because it lacks a rational basis)

Gill v. Office of Personnel Services, 699 F.Supp.2d 374 (D. Mass. 2010) (striking down DOMA on the ground that it lacks a rational basis and not reaching the question whether sexual orientation constitutes a suspect classification)

Log Cabin Republicans v. United States, (Central District of California, September 9, 2010) (applying heightened scrutiny in striking down "Don't Ask, Don't Tell")

Major Margaret Witt v. United States Department of the Air Force, (Western District of Washington, September 24, 2010) (applying heightened scrutiny in striking down "Don't Ask, Don't Tell")

These decisions constitute "persuasive authority" for the proposition that gays and lesbians are a suspect class – that they deserve and need protection by the courts from hostile legislation.  At a minimum the relevant precedent is not "unequivocally" in favor of the rational basis test.

Turning from precedent to doctrine, the House brief then asserts that gays and lesbians satisfy none of the four requirements for being a suspect class, elements that the brief correctly identifies as "History of Discrimination," "Ability to Participate in or Contribute to Society," "Immutability," and "Political Powerlessness."  This portion of the brief constitutes by far the greatest proportion of the 25-page brief in support of DOMA.  In contrast, less than two pages of the brief – pages 23-24 – address the substantive reasons supporting the constitutionality of the law.  The House's arguments on each element of suspect class analysis are summarized below.

a.  History of Discrimination

The House of Representatives contends that the history of discrimination against gays and lesbians is relatively recent in origin and is rapidly dispersing.  First, the House brief agrees with one of plaintiff's experts that discrimination against gays and lesbians

is a unique and relatively short-lived product of the twentieth century.

Then, the House observes that

whatever the historical record of discrimination, the most striking factor is how quickly things are changing.

This argument may serve to strengthen the House's contention that sexual orientation is not a suspect class, but it completely undercuts the principal argument relied upon by Supreme Court Justices like Antonin Scalia that discrimination against gays is lawful because of longstanding moral traditions.  The House brief virtually embraces Justice Kennedy's finding of an "emerging awareness" of the essential equality of gays and lesbians.  The House is choosing to characterize the discrimination of which DOMA is a product as a short-lived aberration of American history rather than a longstanding and brutally enforced cultural and religious taboo.  This litigation strategy is the forensic equivalent of an "own goal."

b.  Ability to Participate in or Contribute to Society

The House brief on this point is less than a page long.  The key sentence is:

The Congress who enacted DOMA and the President who signed it obviously thought that the classifications drawn by DOMA were relevant and rationally related to several legitimate legislative goals. 

In this brief the House does not bother to state what those goals are.  Instead, the House brief merely incorporates by reference its other brief, the Response to Interrogatories described in yesterday's post.  That brief merely set forth a list of goals such as defending the institution of marriage but it made no effort to offer any evidence tending to prove that gays and lesbians lack the ability to participate in or contribute to either to the institution of marriage in particular or to society in general.  The House simply punts on this point, essentially conceding the issue to the plaintiffs.  The House brief states:

Moreover, as with historical considerations, Plaintiff's question-begging contention that homosexuality is never a relevant or rational basis for classification is hardly the sum total of the heightened scrutiny analysis.

So, on to the next two points.

c.  Immutability

On this point the House brief is two pages long, and once again it voices a less than full-throated defense of DOMA.  The House chooses to mount a semantic argument against the concept of immutability:

Plaintiff's claim runs headlong into the differing definitions of the terms "sexual orientation," "homosexual," "gay," and "lesbian" ….

OohhKaayy.  The House attorneys seem to believe that their best approach to resolving the question of immutability is a socratic attack on the entire concept of sexual orientation.  If we do not know what the term means, how can it be an immutable characteristic of a person's personality?

The House brief also seems to find it significant that the plaintiff's experts concede that a person's sexual orientation cannot be determined at birth, and that it may not clearly emerge until after puberty or well into adulthood.  The relevant questions are, of course: "Does a mature person "choose" his or her sexual orientation and is he or she able to change it?"  If not, the trait is immutable.  The House brief invokes one study finding that 12% of self-described gays and lesbians admit to "some" or "much" choice in their sexual orientation.  I don't think that is enough to rebut what everyone knows from personal experience - there is very little choice in the matter of sexual attraction.

d. Political Powerlessness

It is on this point that the House brief concentrates.  Almost half of the brief is devoted to rebutting the proposition that gays and lesbians need protection from the majoritarian political process.  The House brief rather bitterly recites the recent string of electoral and legislative victories of the gay rights movement to prove that gays and lesbians are not politically powerless and accordingly that it is unnecessary for the courts to carefully examine the laws that were enacted against them.

The weakness of the House's argument  lies in the fact that at the time that DOMA and other discriminatory laws were enacted, gays and lesbians were a relatively powerless minority.  Hostile legislation was introduced in Congress and submitted to the voters in referenda in order to advance the interests of a major political party.  Here in Ohio, there was a conscious and deliberate effort to "rally the base" of Republican voters in the 2004 presidential election by placing Ohio Issue 1 on the ballot.  At the time, it was a winning strategy.  The House brief admits that the political landscape has substantially changed from what it was when these laws were enacted:

According to Gallup polling, between 1996 and 2011 the portion of the United States population who believed that same-sex marriage should be recognized increased from 27% to 53%.

I don't think that it can rationally be disputed that gays and lesbians have suffered outrageous discrimination, that they are fully capable of participating in and contributing to society, that sexual orientation is for the vast majority of people an immutable characteristic, and that when discriminatory laws like DADT and DOMA were enacted gays and lesbians had far less political power than heterosexual persons – indeed, far less power than other minority groups.  The Golden Rule, Kant's Categorical Imperative, and Rawl's Veil of Ignorance (not to be confused with Smart's Cone of Silence!) all challenge us to walk a mile in someone's else's shoes before judging them.  I believe that each of us would find that to have been gay or lesbian in the United States during the 20th century and down to the present day was a very Long Walk indeed.  Does the House of Representatives really believe that gays and lesbians do not need protection from unfriendly legislation enacted during this period - that the government should not be required to demonstrate why they should be treated differently?

2.  Is there a legitimate reason for the government to treat gay and lesbian couples differently?

In light of all of the energy that the House brief puts into denying that gays and lesbians should be considered a "suspect class" it is surprising that its defense of the substance of the law is so cursory.  The House addresses only one of the proffered reasons purporting to justify DOMA – the assertion that opposite-sex couples are better parents than same-sex couples.  And instead of offering proof of this assertion, the House lawyers simply claim that the contrary studies submitted by the plaintiff are not definitive – that the jury is still out on the question whether gays and lesbians are as good parents as heterosexuals.  Here is an excerpt from this two-page portion of the House brief:

 Plaintiff's claim of a clear expert consensus is overstated.  Indeed, the evidence relied upon by plaintiff's own experts demonstrates that studies comparing gay and lesbian parents to heterosexual parents have serious flaws.

That's it, folks.  In this brief the House does not offer any proof whatsoever that opposite-sex couples do a superior job of parenting or even assert that they are better in this regard than same-sex couples.  The House at most argues that existing studies "are not definitive" and suffer from "serious methodological problems."  In other words, the House of Representatives is attempting to justify a law that withholds legal recognition – and substantial legal benefits like tax breaks, health care coverage, and pension benefits – from the families of same-sex couples because there is no evidence that they are any different from any other families!  That is not a winning argument.  It is not even a vigorous defense.

In my long career in the law I have never seen a more timid and half-hearted collection of legal arguments – particularly not in a matter of such importance as this.  Attorneys are supposed to be zealous advocates on behalf of their clients.  That didn't happen here.  When President Obama and Attorney General Holder came to the conclusion that they could no longer in good conscience defend DOMA in court, they withdrew.  Considering the unenthusiastic briefs that they have filed, the House attorneys are facing the same dilemma.  I would be interested in hearing, through the comments below, whether you share the same impression.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790.

On August 1, 2011, lawyers for the House of Representatives filed briefs in support of the constitutionality of the federal Defense of Marriage Act.  Adam Bink at Prop 8 Trial Tracker has posted both briefs: one is a Response to Interrogatories and the other is a Brief in Opposition to Plaintiff's Motion for Summary Judgment.  In this post I will analyze the House's response to the court's interrogatories.

On February 23, 2011, Attorney General Eric Holder sent a letter to Speaker of the House John Boehner stating that President Barack Obama had determined that the Department of Justice would no longer defend the Federal Defense of Marriage Act in court.  As a consequence, the House of Representatives was invited to hire attorneys to make arguments in support of the law.

Edith Windsor's wife Thea Spyer died in 2009.  Because the federal Defense of Marriage Act does not recognize same-sex marriages as valid, Windsor was required to pay over $350,000 in federal estate taxes that a surviving spouse of an opposite-sex marriage would not have had to pay.   Windsor sued the United States in federal court in the Southern District of New York.   The judge in the Windsor case filed interrogatories asking the federal government two questions:

"What, if anything, do you contend are the compelling justifications for section 3 of DOMA?

“What, if anything, do you assert are the legitimate government interests rationally advanced by section 3 of DOMA?”

These two questions are really one; the judge was asking the House to state the reason or reasons why the federal law refuses to recognize same-sex marriages.  No matter what standard of review the court eventually determines to be applicable to this question, the House must identify at least one rational, legitimate reason for treating same-sex couples differently than opposite-sex couples.  This is a minimum requirement under the Constitution.  The Supreme Court has stated many times that people who are "similarly situated" must be treated alike – only if there are "real differences" between different groups may they be treated differently.  Furthermore, these "real differences," says the court, must be "fairly related to the object of the legislation."  The law may not treat people differently for arbitrary or capricous reasons, nor is it sufficient for the government to simply point out that the group being discriminated against is different in some respect.  The distinguishing factor must be fairly relevant to the benefit or privilege that the government is depriving that group of people of.  In this case, the district court pressed the House to articulate why it wished to treat same-sex couples differently with respect to marriage.

The attorneys for the House of Representatives responded by identifying five reasons that support the constitutionality of the law.  The House claims that the purposes of the law are:

defending and nurturing the institution of marriage by acting with proper caution in the face of the unknown consequences in the face of a novel redefinition of the foundational social institution of marriage;

protecting the public fisc and preserving the balance struck by earlier congresses in allocating federal burdens and benefits;

maintaining consistency in eligibility for federal benefits based on marital status;

defending and nurturing the institution of marriage by avoiding the creation of a social understanding that begetting and rearing children is not inextricably bound up with the institution of marriage;

and defending and nurturing the institution of marriage by creating legal structures that make it more likely that children will be raised by parents of both sexes.

That's it.  The answers to interrogatories simply repeat the foregoing list in response to both of the judge's questions.  Explanations and support for each of these propositions will appear in the substantive briefs, in particular the other brief filed in opposition to the plaintiff's motion for summary judgment.

In my opinion the House's framework in support of the law is paper thin.  Here is my evaluation of each of the House's asserted interests.

1.  Caution in light of the unknown

It has been 15 years since DOMA was enacted.  The question of same-sex marriage has been the subject of sharp and constant political debate, a large volume of social science research into same-sex families, and protracted litigation including the Prop 8 trial that created a voluminous record of that research.  The House may not interminably assert that it must treat people differently because it cannot be sure that they are not the same.  At some point the House must either prove that families headed by same-sex couples are not as worthy of recognition as families headed by opposite-sex couples or it must concede that it lacks such proof.   The House's first answer to this interrogatory implicitly concedes that it has no evidence demonstrating how same-sex couples are so different as to justify withholding recognition of their state-sanctioned marriages.

2.  Protecting the public fisc

Even more than the first asserted government interest, this argument amounts to a concession of unconstitutionality.  The government can never justify treating a group differently in order to "save money."  The Equal Protection answer to this assertion is Ron Paul-like – "So save even more money by denying recognition and funding to all marriages!"  The government may not "protect the public fisc" by arbitrarily denying some people a benefit.  If money is a problem, then simply reduce the amount of the benefit so that it may be shared by all persons similarly circumstanced.  As for the desire not to upset judgments by earlier congresses, it is unlikely that the courts would award retroactive relief to those persons who do not file suit within the period of limitations, even though same-sex couples paid their taxes just like everybody else but did not qualify for benefits.  There will not be "reparations" in this situation any more than in other civil rights contexts.

3.  Maintaining consistency

The House argues that it is "maintaining consistency" by denying equality to same-sex couples.  Good luck with that argument!  In addition to being inherently contradictory, this simply raises the question of why the federal government wishes to "maintian consistency" – it must still explain to the courts why it has chosen to withhold recognition of same-sex marriages.

4.  Marriage is for begetting and rearing children

This argument raises questions of overbreadth and underbreadth.  More than ten percent of opposite-sex couples are infertile.  A significant portion of these opposite-sex couples use many of the same assisted reproduction techniques that same-sex couples use to conceive children.  (My wife has helped both opposite-sex and same-sex couples to conceive in this way.)  Many more opposite-sex couples choose never to have children.  Opposite-sex couples are not expected to divorce if they do not have children or if their children predecease them.  People past the age of childbearing stay married and enter into marriage.  Their is no law or social custom that prevents all these marriages, and DOMA recognizes all of these marriages so long as the spouses are of the opposite sex.  Finally, one may fairly ask, if marriage is so central and important in the lives of children raised by opposite-sex couples, why is it not just as central and important to the hundreds of thousands of children being raised by same-sex couples in the United States?  DOMA does not directly help a single child, but it does grievously harm many.  Striking it down will make a major difference in the lives of hundreds of thousands of children.

5.  Making it more likely that children will be raised by parents of both sexes

There are two basic problems with this asserted governmental interest.  First, why does the House believe that a child is better off being raised by an opposite-sex couple rather than a same-sex couple?  And second, how does DOMA achieve its goal of making it more likely that children will be raised by opposite-sex couples?

If the government can produce social science research demonstrating that opposite sex couples are better at parenting than same-sex couples then it may win this case.  However, all of the recent social science research on the question demonstrates that there is no significant difference in the parenting abilities of same-sex and opposite-sex couples.

Furthermore, DOMA does not provide a single child with parents of different genders.  It simply withholds important legal benefits from the families of same-sex couples.  Will the House argue that DOMA persuades people to change their sexual orientation?  Or that the law encourages gays and lesbians to enter into opposite-sex relationships and bear children despite their orientation?  The House may have difficulty proving either proposition.

What is most striking to me is that the House has declined to make the single constitutional argument relied upon by Justice Scalia and other conservative justices in support of laws that discriminate on the basis of sexual orientation.  Justice's Scalia's principal argument – his only argument – is that society is justified in discriminating against gays and lesbians even to the point of incarceration because such discrimination is in furtherance of "traditional sexual mores."  In Justice Scalia's opinion, the history of discrimination against gays and lesbians is not something to be ashamed of, but rather serves as legal justification for existing laws that discriminate. 

It is a step forward that the House has chosen not to assert an approach to constitutional interpretation that would enshrine traditional prejudices in the Constitution.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790.

On October 1, 1986 – three months and a day after the United States Supreme Court handed down its decision in Bowers v. Hardwick upholding a Georgia law making homosexuality a crime – the Congregation for the Doctrine of the Faith issued Pastoral Care of Homosexual Persons instructing Catholic bishops how to respond to homosexuality.  In this post I draw attention to a number of different aspects of the church letter from a constitutional perspective.

Homosexual Conduct Is Evil

The most striking aspect of the advice issued by the Congregation under the direction of then-Cardinal Ratzinger is how homosexuality is characterized.  In the opinion of the Congregation, homosexual activity partakes of "evil."  The term is used twice:

Although the particular inclination of the homosexual person is not a sin, it is a more or less strong tendency ordered toward an intrinsic moral evil; and thus the inclination itself must be seen as an objective disorder.

Therefore special concern and pastoral attention should be directed toward those who have this condition, lest they be led to believe that the living out of this orientation in homosexual activity is a morally acceptable option. It is not.

***

Here, the Church's wise moral tradition is necessary since it warns against generalizations in judging individual cases. In fact, circumstances may exist, or may have existed in the past, which would reduce or remove the culpability of the individual in a given instance; or other circumstances may increase it. What is at all costs to be avoided is the unfounded and demeaning assumption that the sexual behaviour of homosexual persons is always and totally compulsive and therefore inculpable. What is essential is that the fundamental liberty which characterizes the human person and gives him his dignity be recognized as belonging to the homosexual person as well. As in every conversion from evil, the abandonment of homosexual activity will require a profound collaboration of the individual with God's liberating grace.

What does this "evil" consist of?  The instruction cites injunctions against homosexuality in Leviticus and some of the New Testament letters, but the moral wrongness of homosexuality is ultimately characterized as a symbolic offense against God.  Man and woman together are the complementary images of God, and life-giving sexual intercourse between them represents the full image of God.  In this sense homosexual conduct is an iconic transgression, a form of ritual sin.  The only realistic criticism of homosexual behavior that the letter proffers is that it is "self-indulgent."  Under the Constitution, a person's engagement in acts "self-indulgence" without more is not sufficient to justify punitive or discriminatory laws.

The Interpretation of Scripture Must Be Consistent with the Church's Tradition:

Another striking aspect of the letter is its assumption that the interpretation of the Bible must be in conformity to traditional Church doctrine – otherwise the interpretation is erroneous.   The letter states:

It is likewise essential to recognize that the Scriptures are not properly understood when they are interpreted in a way which contradicts the Church's living Tradition. To be correct, the interpretation of Scripture must be in substantial accord with that Tradition.

The foregoing argument bears strong resemblance to the interpretive technique that Justice Antonin Scalia brings to constitutional analysis.  In virtually every context Justice Scalia relies more on "tradition" than any other interpretive modality.  For example: his plurality opinion in Michael H. v. Gerald D. (contending that rights of parenthood, though fundamental, are limited by how those rights have been specifically understood traditionally); his dissenting opinion in United States v. Virginia (contending that it was constitutional for the State of Virginia to exclude women from VMI because it had traditionally done so); his dissenting opinion in Lawrence v. Texas (finding that the state had a legitimate interest in criminalizing homosexual conduct consistent with of traditional notions of morality); and his recent majority opinion in Brown v. Entertainment Merchants Association (stating that depictions of violence are constitutionally protected because there is no legal tradition proscribing them).  In all of these cases Justice Scalia consistently maintains that the mete and bounds of the Constitution are determined by tradition.

Other justices embrace a far different vision of the Constitution.  They conceive of the Constitution as enjoining upon our government a collection of enduring ideals including liberty, equality, fairness, and tolerance – that the Constitution calls upon us to conform our law to these ideals.  They reject the notion that American traditions are by definition constitutional.  

Violence Against Homosexuals Explained

On the one hand, the letter condemns hate crimes against homosexuals.  On the other, it blames this violence in part on the progress that persons with this "disorder" have made towards legal equality:

It is deplorable that homosexual persons have been and are the object of violent malice in speech or in action. Such treatment deserves condemnation from the Church's pastors wherever it occurs. It reveals a kind of disregard for others which endangers the most fundamental principles of a healthy society. The intrinsic dignity of each person must always be respected in word, in action and in law.

But the proper reaction to crimes committed against homosexual persons should not be to claim that the homosexual condition is not disordered. When such a claim is made and when homosexual activity is consequently condoned, or when civil legislation is introduced to protect behaviour to which no one has any conceivable right, neither the Church nor society at large should be surprised when other distorted notions and practices gain ground, and irrational and violent reactions increase.

It is true that there is often a violent response when a despised minority group demands equality, as the events at Edmund Pettus bridge testify.  If the Congregation is wrong – if these are not rights "to which no one has any conceivable right" but rather simple equality – then the foregoing explanation for these acts of violence amounts to nothing less than blaming the victim.

Treatment of Gays and Lesbians

On the one hand, the letter reminds the Bishops that homosexuals must be treated with respect and dignity.  On the other, it commands the bishops to help them seek treatment to deal with this "disorder":

In a particular way, we would ask the Bishops to support, with the means at their disposal, the development of appropriate forms of pastoral care for homosexual persons. These would include the assistance of the psychological, sociological and medical sciences, in full accord with the teaching of the Church.

This advice is inherently disrespectful.  Today, a quarter-century after the issuance of this church letter, psychologists, sociologists, and physicians are largely in agreement that homosexuality is not a disorder requiring treatment but is instead part of the normal variability of sexuality.  Church doctrine is no longer consistent with modern science and emerging traditions of social acceptance and legal equality.  In 2003 the Supreme Court replaced the rule countenancing discrimination in Bowers v. Hardwick with the principle demanding equal treatment in Lawrence v. Texas.  Equality reflects a "higher law" – it is one of the firmest commands of the Constitution.  The legitimacy of contrary traditions, no matter how deeply entrenched or sincerely held, will ever be measured against that standard.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790.

ENDA (the Employment Nondiscrimination Act) is before Congress.  This law would make it illegal for employers to discriminate on the basis of sexual orientation or gender identity.

Representatives Barney Frank (D-MA) and Ileana Ros-Lehtinen (D-FL) and 145 other members of the House of Representatives are sponsoring H.R. 1397, the Employment Non-Discrimination Act in the House. Senators Jeff Merkely (D-OR) and Mark Kirk (R-IL) and 38 other Senators sponsor S.811, the identical bill in the Senate. The text of the bill is available from OpenCongress here.

The Human Rights Campaign describes the bill and existing legislation in the states on its Employment Non-Discrimination Act page.  HRC states:

Qualified, hardworking Americans are denied job opportunities, fired or otherwise discriminated against just because they are lesbian, gay, bisexual or transgender (LGBT). There is no federal law that consistently protects LGBT individuals from employment discrimination; it remains legal in 29 states to discriminate based on sexual orientation, and in 37 states to do so based on gender identity or expression. As a result, LGBT people face serious discrimination in employment, including being fired, being denied a promotion, and experiencing harassment on the job.

Zach Ford at Think Progress has posted a map illustrating the pattern of state legislation on this subject.

Episcopal Bishop Gene Robinson, writing at Center for American Progress, recently posted ENDA Provides Job Protection for All Americans Employees Should Be Judged on Performance, Not Sexual Orientation or Gender Identity, in which he argues for the adoption of ENDA.  Bishop Robinson cites evidence that employment discrimination on the basis of sexual orientation and gender identity is a serious problem:

Indeed, we know that people who are lesbian, gay, bisexual, and transgender, or LGBT, face widespread discrimination and harassment in the workplace. Studies show that anywhere from 15 percent to 43 percent of LGB people experience some form of discrimination and harassment on the job. Further, 8 percent to 17 percent of LGB workers report being passed over for a job or fired because of their sexual orientation or gender identity. Ten percent to 28 percent received a negative performance evaluation or were passed over for a promotion because they were LGB. And 7 percent to 41 percent of LGB workers encountered harassment, abuse, or anti-LGB vandalism on the job.

Rates of discrimination and harassment are much higher for transgender individuals. An astonishing 90 percent of transgender people report some form of harassment or mistreatment on the job. Nearly half of transgender people also report an adverse job outcome because of their gender identity. This includes being passed over for a job (44 percent), getting fired (26 percent), and being denied a promotion (23 percent).

He then offers a religious argument contending that such discrimination is wrong:

The scriptures of the Old and New Testaments are filled with admonitions that we will be judged by the way we treat our most vulnerable members. For Christians and Jews, God is described as having a special concern for the poor, the marginalized, and the vulnerable. We are morally bound to take special care to protect those who are so marginalized. I believe that in our time, it is gay, lesbian, bisexual, and transgender people who are the marginalized deserving of civil protections. Surely, in this great nation, we can at least do that much.

All forms of non-job related discrimination are economically inefficient because, by definition, the best possible person for a job may be prevented from holding that position.  When the racial barriers in baseball came tumbling down in 1947, Jackie Robinson (Rookie of the Year) joined the Dodgers and Larry Doby (eventual seven-time All-Star) became a member of the Indians - and after 1964 the nondiscrimination laws permitted tens of millions of blacks and women to fully contribute to society as members of every profession and occupation.  Discrimination makes an enterprise less competitive.  In closing, Bishop Robinson draws upon that great economic truth:

Our country’s leading companies also understand that a competitive, stable, and productive workforce depends on these kinds of protections. Of the Fortune 500 companies, 87 percent have nondiscrimination protections for sexual orientation, and about half for gender identity. The percentages are even higher for Fortune 100 companies.

Still, millions of Americans are left with zero protections under the law from senseless workplace discrimination. What is needed is a comprehensive law that provides uniform employment protections to all Americans: ENDA.

The Church of Latter-Day Saints supported legislation similar to ENDA in Salt Lake City, as Carole Mikita at KSL.com reports in Top stories of 2009, No. 9: Mormon Church supports non-discrimination ordinances.  Her article quotes a church spokesperson as stating that the church supports ordinances that prohibit discrimination in housing and employment, even though the church opposes same-sex marriage:

"I represent a church that believes in human dignity, in treating others with respect even when we disagree; in fact, especially when we disagree," said Michael Otterson, managing director of public affairs for the LDS Church.

Otterson said Church leaders are not changing their position against same-sex marriage. He read a statement that said, in part: "When it comes to basic human rights, the ordinances represent common-sense laws that should apply to everyone."

"The Church supports these ordinances because they are fair and reasonable and do not do violence to the institution of marriage," Otterson said.

The United States Conference of Catholic Bishops opposes ENDA.  Last year the USCCB sent this letter to Congress opposing the bill.  The principal argument that the Bishops assert in the letter is that while employment discrimination on the basis of "sexual inclination" should be prohibited, employment discrimination on the basis of sexual conduct is not only permissible but consistent with religious teaching and should be considered a constitutionally protected exercise of religion.  The letter states:

Just as every other group in our society, the Catholic Church enjoys the same rights to hold to its beliefs, organize itself around them, and argue for them in the public square. This is guaranteed by our Constitution. This includes the right to teach what it holds to be the truth concerning homosexual conduct—and to act as an employer consistent with that truth—without the threat of government sanction.

Secondarily, the Bishops contend that if the government prohibits employment discrimination against gays and lesbians, it would strengthen the argument in favor of same-sex marriage, because it would tend to prove that there is no rational basis to discriminate on the basis of sexual orientation.  The letter states:

For example, we have seen state Supreme Courts repeatedly rely on state-level ENDAs as a basis for creating a state constitutional right to same-sex “marriage.” We consider it very likely that ENDA, despite referencing DOMA, could be used for similar purposes at the federal level. The highest courts of California, Connecticut, and Iowa have declared that the traditional definition of marriage is “discriminatory” and lacking any “rational basis,” and so violates the constitutions of their respective states. Cases are now being brought in order to create a federal constitutional right to same-sex “marriage”—whether by striking down federal DOMA, or by striking down California’s Proposition 8 in federal court.  If ENDA were to pass, we would expect lawyers to invoke it in federal court under the federal constitution, just as they invoked analogous state laws in state constitutional litigation. If this strategy were to succeed, it would represent a legal and moral disaster comparable in many ways to Roe v. Wade. As leaders of the Catholic Church, we have a moral obligation to oppose any law that would clearly contribute to this outcome.

The Bishops also maintain that the "religious exemption" in the bill needs to be strengthened; that the adoption of an employment non-discrimination law would be used to strengthen claims for same-sex marriage; that ending discrimination based upon gender identity would threaten privacy and associational rights; and that the bill lacks an exception for a "bona fide occupational qualification."

I do not agree with the constitutional arguments advanced by the Bishops.  It is true that religious organizations have a constitutional right to discriminate on the basis of sexual orientation in their beliefs, in their membership, in the performance of religious sacraments, and in their employment of persons performing clerical functions, all of which would be protected by ENDA.  However, private businesses do not have any comparable constitutional right to discriminate in their employment policies.  Private businesses do not have a constitutional right to discriminate on the basis of sexual orientation any more than they have a constitutional right to discriminate on the basis of race, religion, or gender.  Microsoft does not have a constitutional right to refuse to hire blacks, protestants, females, or disabled individuals no matter what the religious beliefs of its officers and directors are. 

Furthermore, it argues too much – and concedes too much – to say that employment nondiscrimination will inevitably lead to equal marriage.  Opponents of same-sex marriage are on much stronger ground if they attempt to distinguish marriage from employment rather than conflating the two.  The Bishops' concession on this point is reminiscent of Justice Scalia's surprising  admission in his dissenting opinion in Lawrence v. Texas.  After the majority of the Court struck down a law that made same-sex intercourse illegal, Justice Scalia stated:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.

If the opponents of ENDA wish to concede that employment discrimination cannot be distinguished from laws prohibiting same-sex marriage – that if there is no justifiable reason for businesses to withhold employment on equal terms to gay and lesbian workers, then there is no justificable reason for the government to withhold equal marriage rights to gay and lesbian couples – so be it!  

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

On February 23, 2011, Attorney General Eric Holder wrote a letter to John Boehner, Speaker of the House of Representatives, informing him that the President had determined that his administration could no longer in good conscience defend the constitutionality of the Defense of Marriage Act.  The President promised to continue to enforce the Act, but invited the House to assume responsibility for defending the Act in court.  Yesterday the Department of Justice filed a brief in opposition to DOMA in the case of Golinski v. Office of Personnel Management.

Karen Golinski, a staff attorney for the Ninth Circuit Court of Appeals in San Francisco, is married to another woman under the laws of the State of California.  She attempted to enroll her spouse under the Federal Employees Health Benefits Plan, but her application was rejected because the federal Defense of Marriage Act prohibits the federal government from recognizing same-sex marriages or extending benefits to these unions.  She thereupon sued the federal Office of Personnel Management, contending that DOMA is unconstitutional under principles of Equal Protection.

Yesterday, the Department of Justice filed this Brief in Opposition to Motions to Dismiss Ms. Golinski's claim.   The brief is signed by Michael F. Hertz, Deputy Attorney General; Melinda Haag, United States Attorney; Arthur R. Goldberg, Assistant Branch Director; and Christopher R. Hall, Staff Attorney for the Department of Justice.

The brief itself is powerful and concise.  In the first portion of the brief (12 pages, double spaced) the government contends that gays and lesbians are a "suspect" or "quasi-suspect" class and that the law should therefore be evaluated under a heightened scrutiny standard.  In the second portion of the brief (5 pages, double spaced) the government argues that the law fails heightened scrutiny.

I.  What Standard of Review Applies?

For over half a century the Supreme Court has approached Equal Protection cases by means of presumptions.  Most laws that draw distinctions among citizens are presumed constitutional and are subject to the "rational basis" test – they are constitutional so long as the legislature has a "rational basis" for enacting them.  However, when laws discriminate against groups that have been historically discriminated against – groups that are relatively powerless to protect themselves through the political process – on the basis of traits that people did not voluntarily choose – and on the basis of traits that normally bear no relation to a person's ability to perform or contribute to society - a heightened scrutiny test applies and those laws are presumed unconstitutional.

Notice that two of the factors listed above (historical discrimination and political powerlessness) relate to the class of persons who are being discriminated against, while the other two factors (immutability and lack of relation to legitimate governmental purposes) relate to the classification by means of which that group of persons is distinguished.  The Department of Justice contends that gays and lesbians are a "suspect class" and that sexual orientation is a "suspect classification."

The Justice Department cites substantial evidence supporting each of these four elements:

1.  Historical Discrimination

The Department's brief describes the long and vicious history of discrimination against gays and lesbians by the federal government, state governments, and private parties.  The brief quotes from numerous official government documents mandating employment discrimination against homosexuals, and expressed in the crudest, and cruelest, language.  In addition, state and local governments made homosexuality illegal; routinely denied child custody and visitation to gay and lesbian parents; discriminatorily enforced liquor licensing and vagrancy laws against gays and lesbians; and, most recently, have enacted laws making to more difficult to enact laws ending discrimination on the basis of sexual orientation.  Gays and lesbians continue to suffer from discrimination in housing and employment and are the most frequent victims of hate crimes.  The brief states:

In sum, gays and lesbians have suffered a long history of discrimination based on prejudice and stereotypes.  That history counsels strongly in favor of heightened scrutiny, giving courts ample reason to question whether sexual orientation classifications are the product of hostility rather than a legitimate governmental purpose.

2.  Immutable characteristics

The Department of Justice cites to a number of social science studies concluding that sexual orientation is not voluntarily chosen.  The brief makes reference to

the overwhelming consensus of the scientific community that sexual orientation is an immutable characteristic.

3.  Political powerlessness

Perhaps anticipating the argument that gays and lesbians are no longer a powerless minority because of the enactment of nondiscrimination ordinances beginning in the 1970s and their victories in several court battles, the Department of Justice cites the success of the anti-gay movement in referenda scaling back the rights of gays and lesbians.  The brief states:

The strong backlash in the 1970s, 1980s, and 1990s to these civil rights ordinances has been followed in the 2000s with similar political backlashes against same-sex marriage.  In 1996, at the time DOMA was enacted, only three states had statutes restricting marriage to opposite-sex couples. … Today, thirty-seven states have such statutes, and thirty states have constitutional amendments explicitly restricting marriage to opposite-sex couples.

The brief cites the recent electoral victories of anti-gay marriage forces in Iowa and California as evidence that gays and lesbians still lack the political power to defend themselves against discriminatory legislation.

4.  Relation to ability to perform

The brief states:

[P]rior discrimination against gay and lesbian people has rested not on their ability to contribute to society, but on the basis of invidious and long-discredited views that gays and lesbians are, for example, sexual deviants or mentally ill.

At this point the brief quotes President Obama, who in his remarks at the signing of the legislation repealing Don't Ask, Don't Tell, stated:

There will never be a full accounting of the heroism demonstrated by gay Americans in service to this country; their service has been obscured in history. It’s been lost to prejudices that have waned in our own lifetimes. But at every turn, every crossroads in our past, we know gay Americans fought just as hard, gave just as much to protect this nation and the ideals for which it stands.

On this question the brief concludes:

Whether premised on pernicious stereotypes or simple moral disapproval, laws classifying on the basis of sexual orientation rest on "a factor that generally provides no sensible ground for differential treatment." (quoting Cleburne v. Cleburne Living Center (1985) 

II.  Application of the Standard of Review to DOMA

The second portion of the brief evaluating the constitutionality of DOMA is remarkably short and to the point.  The Justice Department lawyers invoke the legislative history of the law to prove – seemingly indisputably – that DOMA was adopted because of moral disapproval of homosexuality.  The brief  quotes eight passages from the House Report on DOMA stating that the law was being adopted because homosexuality was regarded as immoral and because heterosexual unions were preferred over same-sex unions.  If the courts find that this was the only reason supporting the enactment of DOMA then the law would not even pass review under the rational basis test.  The Supreme Court has already ruled that mere tradition or moral disapproval is not a legitimate reason to discriminate against gays and lesbians (Romer v. Evans (1996), Lawrence v. Texas (2003)) - or against women, for that matter (VMI case (1996)).

The brief anticipates that the government will assert other reasons in support of DOMA – in particular, that the law is intended to reserve support for heterosexual married couples and the children of those unions.  The brief correctly points out that when the government extends benefits to one group and specifically denies benefits to another, similarly situated group, the government must articulate a reason for the distinction.

If the government asserts that the reason for excluding same-sex married couples from federal recognition is to promote the interests of children, the brief first states that scientific evidence supports the conclusion that same-sex couples are just as capable of parenting as opposite-sex couples:

First, there is no sound basis for concluding that same-sex couples who have committed to marriages recognized by state law are anything other than fully capable of responsible parenting and child-rearing.  To the contrary, many leading medical, psychological, and social welfare organizations have issued policies opposing restrictions on lesbian and gay parenting based on their conclusions, supported by numerous studies, that children raised by gay and lesbian parents are as likely to be as well-adjusted as children raised by heterosexual parents.

The brief adds:

[T]here is no evidence in the legislative record that denying federal benefits to same-sex couples legally married under state law operates in any way to encourage responsible child-rearing, whether by opposite-sex or same-sex couples, and it is difficult to imagine what such evidence would look like. 

We will await the brief to be submitted by the House of Representatives to see what arguments can be mounted on behalf of the law.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

The Sixth Circuit Court of Appeals has handed down its decision in the case of Coalition to Defend Affirmative Action v. Regents of the University of Michigan.  By a vote of 2-1, a panel of the Court of Appeals struck down Proposal 2 amending the Michigan Constitution insofar as the amendment prohibits state universities from adopting affirmative action admissions programs.

Proposal 2 added the following language to the State Constitution prohibiting affirmative action in public employment, public education, or public contracting:

(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.

(2) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

(3) For the purposes of this section “state” includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.

A coalition of groups challenged this law insofar as it prohibited affirmative action in university admissions.  Yesterday a panel of the Sixth Circuit issued its decision.  The majority opinion by Judge R. Guy Cole, Jr., joined by Judge Martha Craig Daughtrey, is based upon on two decisions previously handed down by the Supreme Court: Hunter v. Ericson (1969); and Washington v. Seattle School District No. 1 (1982).   Hunter involved "fair housing."  After the Akron City Council adopted an ordinance prohibiting racial discrimination in the sale or rental of real estate, the people of the city of Akron approved an amendment to the city charter that both repealed the fair housing ordinance and that required the approval of the people by way of referendum before any other fair housing ordinance could be adopted.  The Supreme Court in Hunter ruled that, while it was constitutional for the people to repeal the fair housing ordinance by way of referendum, they could not make it more difficult to enact a fair housing law than it was to enact any other type of law.  The Court stated:

[T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.

In Washington v. Seattle School District, after the Seattle School District voluntarily adopted a plan to use busing and attendance zones to achieve racial integration of the schools, the people of the State of Washington voted to adopt a statewide initiative (Initiative 350) which denied local school districts the power to assign children to schools for the purpose of integration. The Supreme Court, after noting that virtually all other questions of educational policy had been committed to the discretion of local school boards, ruled that this law violated Equal Protection. The Court in Seattle stated:

[T]he practical effect of Initiative 350 is to work a reallocation of power of the kind condemned in Hunter. The initiative removes the authority to deal with a racial problem – and only a racial problem – from the existing decision-making body, in such a way as to burden minority interests.

The Supreme Court's decisions in Hunter and Seattle do not prevent the states from refusing to adopt civil rights laws nor do they prevent a state from repealing a civil rights policy once it has been adopted.  Instead, these two cases stand for the proposition that the state may not make it more difficult to adopt a civil rights law than it is for any other law.  Judge Cole illustrated this principle with the following metaphor:

The Supreme Court’s statements in Hunter and Seattle clarify that equal protection of the laws is more than a guarantee of equal treatment under the law substantively. It is also an assurance that the majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities. In effect, the political process theory hews to the unremarkable belief that, when two competitors are running a race, one may not require the other to run twice as far, or to scale obstacles not present in the first runner’s course.

The majority found that Proposal 2 distorts the normal political process and makes it more difficult for the state to adopt affirmative action programs than it is to adopt other laws or policies, and that the state constitutional amendment therefore violates the Equal Protection Clause.

Writing in dissent, Judge Julia Smith Gibbons accepted the principle that the government may not distort the political process to the disadvantage of racial minorities – that the law may not make it more difficult for any particular group of people to obtain the passage of favorable legislation.  However, she finds that at present admissions policies at state universities in the State of Michigan are determined by unelected and unaccountable university faculties.  She writes:

The point is simply that the situation here differs greatly from that of Hunter and Seattle in the ways described in this opinion; these program-specific faculty admissions committees are far afield from the legislative bodies from which lawmaking authority was removed in Hunter and Seattle. The most crucial and overarching difference, of course, is that the faculty admissions committees and individual faculty members are not politically accountable to the people of Michigan.

Judge Gibbons finds:

As they currently stand, the faculty admissions committees are islands unto themselves, vested with the full and unreviewed authority to set admissions policy for their respective university programs.

Accordingly, Judge Gibbons concludes that, at least applied to state university admissions procedures, Proposal 2 does not distort the political process, because the entire subject of university admissions is not subject to the political process.

Whatever its merits as applied to the State of Michigan – (and isn't there a song describing what we in Ohio think about "the whole State of Michigan"?) – Judge Gibbons' reasoning would not be applicable to the State of Ohio.  The faculty of Ohio public universities do not have the authority to establish affirmative action admissions policies.  Ohio public universities are governed by individual Boards of Trustees and a statewide Board of Regents that in turn have the statutory authority to make rules and regulations for the universities.  The faculty may be consulted; we may make recommendations; we may be assigned to work on admissions committees; but the admission of students is an administrative function, not a faculty function, and the establishment of public university admissions policies is firmly committed to the public boards operating under statutory authority. 

Furthermore, if it is true that in Michigan unaccountable faculty committees and faculty members set admissions policies, the proper and evenhanded solution would be to place that authority in the hands of public officials, not to make it impossible for public universities or even the state legislature to adopt affirmative action policies.  Hunter and Seattle require that civil rights policies must be left up to the democratic process, not removed from it.  At a minimum the law may not make it more difficult to adopt affirmative action programs for race than it is to adopt admissions policies favoring athletes or the children of alumni.

If the Michigan legislature or a state board of regents or a university board of trustees wants to approve affirmative action admissions programs then it should be able to.  If any of these governmental units wants to prohibit such policies then it should be able to.  But what the law may not do is to close off the normal political process for racial minorities – to make it more difficult for racial minorities to seek the aid of the state than it is for other groups.  Proposal 2 removes this entire subject from the political process. 

Judge Gibbons also distinguishes this case from Hunter and Seattle on the ground that an affirmative action program is different from a fair housing law or school busing for integration.  I agree that affirmative action programs can be distinguished from non-discrimination laws, but I do not believe that they can be distinguished from a policy of busing for integration.  Under the Equal Protection Clause the adoption of civil rights laws and policies should be subject to the normal democratic process, not removed from it.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

Now that New York has legalized same-sex marriage for residents and non-residents alike, the political and legal landscape for same-sex marriage has been dramatically altered.

Sheer numbers – New York has nineteen million residents.  More than ten percent of Americans now live in jurisdictions that recognize same-sex marriage.  If California, where a court decision striking down Proposition 8 is on appeal, is added to the list, that number jumps to over twenty percent.

Moral example – Moral change occurs one person at a time.  Hearts and minds are influenced not so much by rhetoric as by example.  As gay and lesbian couples are married and prove to be no different from heterosexual couples in their relationships and their childrearing – as they experience the same joys and fears, the same successes and disappointments, the same anniversaries and divorces – other people will come to accept them and will forget why they ever thought that same-sex marriage posed a threat to the institution of marriage.

Interstate effect – Tens of thousands of gay and lesbian couples from around the country will descend on New York to formalize their relationships.  When they return to their home states their friends and neighbors will consider them to be married, even if their state and local governments do not. 

Full Faith and Credit - The presence of lawfully married same-sex couples in other states will inevitably give rise to innumerable challenges under the Full Faith and Credit Clause.  The "public policy" exception to Full Faith and Credit is marred by its long history of having being used in opposition to interracial marriages.  Opponents of same-sex marriage will be put in the position of citing those "anti-miscegnation" cases as precedent for refusing to recognize the validity of New York marriages.  Furthermore, at some point New Yorkers are going to get pretty angry at other states for refusing to accord Full Faith and Credit to their marriages, and they may find ways to retaliate – for instance, by refusing to recognize covenant marriages or even all marriages from disapproving states.

Federal benefits - Despite the fact that they work just as hard as anyone else, under the federal Defense of Marriage Act same-sex couples may not file jointly and spouses do not qualify for social security survivorship benefits.  In addition, the same-sex spouses of federal employees do not quality for health insurance.  With tens or perhaps hundreds of thousands of same-sex couples entering into marriage in New York these inequalities will come under enormous pressure.

Military couples - Same-sex marriage in New York coincides with the demise of Don't Ask, Don't Tell in the nation's military.  Tens of thousands of servicemen and servicewomen may soon marry someone of the same sex.  Is this country going to deny the legality of their relationships and deny their families housing and healthcare benefits while that soldier, sailor, marine, or guardsman is serving this nation in Afghanistan or elsewhere?  All it will take is one heartrending case and this aspect of DOMA will come crashing down.

Social Science Research – The number of same-sex married couples is about to jump exponentially.  That will create a substantial pool for purposes of social science research comparing gay and lesbian married couples to heterosexual married couples.  This, in turn, will influence both lawmakers and judges.  If same-sex married couples prove to be just as good (or just as poor) as opposite-sex married couples in their parenting, a principal argument against same-sex marriage will disappear.  There will no longer be a "rational basis" – let alone a "substantial" or "compelling" reason – for treating same-sex couples differently.

Disappearance of sexual taboo – A great deal of the prejudice against gays and lesbians in general and same-sex marriage in particular arises from sexual taboos.  Many people – particularly we older folks – are overcome with feelings of disgust or tittilation when we see same-sex couples holding hands or kissing.  We'll get used to it.  Most young people already have.  In this arena, familiarity breeds acceptance.

Parental fear - A perusal of anti-same-sex marriage advertising reveals that a major driver of opposition to same sex marriage is parental fear – fear that their children will be molested and fear that their children will turn out to be gay or lesbian.   Several of the preceding factors – increased exposure to same-sex married couples, social science research, and the recession of taboos – should help to militate that fear.  At the same time, in New York and other states that recognize same-sex marriage parents will begin to fear how their gay and lesbian children will be treated if they move to other states that deny equal rights to same-sex couples.

Institutional self-interest – Honeymoon destinations like Niagara Falls and New York City hope to benefit from an influx of gay and lesbian couples, but institutional self-interest in this subject extends far beyond the tourism industry.  New York now possesses a significant competitive advantage over states like Ohio that do not even recognize same-sex marriages from other states as valid.  Businesses, universities, and other institutions that wish to attract the most talented workers, students, and leaders will begin to insist that their states must recognize same-sex marriage. 

The polls – Five national polls in a row reveal that a majority of Americans now favor the legal recognition of same-sex marriage.  In the northeast and on the west coast more than sixty percent of adults support same-sex marriage.  The action of the New York State legislature will ratify the opinion of those who favor same-sex marriage and sow doubt among those who oppose it.

Political calculus – Until now, politicians could avoid any political danger by opposing or equivocating on same-sex marriage, but the political calculus is changing.  In New York, three state senators who opposed same-sex marriage in 2009 were defeated for reelection, and major Republican donors like New York Mayor Michael Bloomberg promised to support those legislators who voted for same-sex marriage.  This dynamic may be repeated in more and more states and it poses interesting challenges for the candidates in the 2012 presidential campaign.  At a minimum conservative candidates who previously made opposition to same sex marriage a principal plank of their platforms may mute their criticism and take the position that it is not an important issue.  At a maximum it may force liberal candidates to wholeheartedly support same-sex marriage.

All men are created equal – My severest critics on this site disapprove not only of my position on this subject but also to my entire approach to constitutional interpretation.  They contend that neither the text of the Constitution nor the intent of the framers is consistent with the recognition of same-sex marriage as a constitutional right.  However, my scholarship convinces me that I am right and they are wrong both as to how the Constitution should be interpreted and what the Constitution requires in this instance.  I look to Lincoln and his political supporters who believed that they were incorporating the words "all men are created equal" into the Constitution by fighting the Civil War and amending the Constitution to include the Thirteenth, Fourteenth, and Fifteenth Amendments – in particular, by adding the Equal Protection Clause to the Constitution.  They intended precisely what they said in that Clause – that the law must treat people equally – that it may not draw arbitrary or capricious distinctions among them – that all persons who are similarly situated must be treated alike – that persons may not be treated differently unless there are real differences among them.  That requires a realistic appraisal of human potential, a careful contextual analysis.  Lincoln and the antislavery movement did not interpret the Constitution by looking to tradition or the specific understandings of their ancestors – they were driven by ideals that forced them to take a hard look at their society to determine whether their laws were just and fair and tolerant.  The principle that "all men are created equal" sets up a standard maxim by which we must evaluate our own institutions, traditions, and laws.  It is now becoming clearer and clearer that this principle of equality requires the recognition of same-sex marriage.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

Last night New York State Governor Cuomo announced the passage of the Marriage Equality Act and signed it into law.  This post discusses the religious exemptions contained in the new law.

The new statute clearly exempts clergy from having to perform same-sex marriages and religious institutions from having to host same-sex wedding ceremonies.  The new law states, in relevant part:

A refusal by a clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader to solemnize any marriage under this subdivision shall not create a civil claim or cause of action OR RESULT IN ANY STATE OR LOCAL GOVERNMENT ACTION TO PENALIZE, WITHHOLD BENEFITS OR DISCRIMINATE AGAINST SUCH CLERGYMAN OR MINISTER.

…

A RELIGIOUS ENTITY … SHALL NOT BE REQUIRED TO PROVIDE SERVICES, ACCOMMODATIONS, ADVANTAGES, FACILITIES, GOODS, OR PRIVILEGES FOR THE SOLEMNIZATION OR CELEBRATION OF A MARRIAGE.

The Marriage Equality Act also contains another broader exemption from state nondiscrimination law.  This section of the law states:

NOTWITHSTANDING ANY STATE, LOCAL OR MUNICIPAL LAW OR RULE, REGULATION, ORDINANCE, OR OTHER PROVISION OF LAW TO THE CONTRARY, NOTHING IN THIS ARTICLE SHALL LIMIT OR DIMINISH THE RIGHT, PURSUANT TO SUBDIVISION ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW, OF ANY RELIGIOUS OR DENOMINATIONAL INSTITUTION OR ORGANIZATION, OR ANY ORGANIZATION OPERATED FOR CHARITABLE OR EDUCATIONAL PURPOSES, WHICH IS OPERATED, SUPERVISED OR CONTROLLED BY OR IN CONNECTION WITH A RELIGIOUS ORGANIZATION, TO LIMIT EMPLOYMENT OR SALES OR RENTAL OF HOUSING ACCOMMODATIONS OR ADMISSION TO OR GIVE PREFERENCE TO PERSONS OF THE SAME RELIGION OR DENOMINATION OR FROM TAKING SUCH ACTION AS IS CALCULATED BY SUCH ORGANIZATION TO PROMOTE THE RELIGIOUS PRINCIPLES FOR WHICH IT IS ESTABLISHED OR MAINTAINED.

This language is difficult to parse, so I have arranged its clauses and highlighted certain terms to visually illustrate its meaning:

NOTWITHSTANDING ANY STATE, LOCAL OR MUNICIPAL LAW OR RULE, REGULATION, ORDINANCE, OR OTHER PROVISION OF LAW TO THE CONTRARY, NOTHING IN THIS ARTICLE SHALL LIMIT OR DIMINISH THE RIGHT, PURSUANT TO SUBDIVISION ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW, OF ANY RELIGIOUS OR DENOMINATIONAL INSTITUTION OR ORGANIZATION, OR ANY ORGANIZATION OPERATED FOR CHARITABLE OR EDUCATIONAL PURPOSES, WHICH IS OPERATED, SUPERVISED OR CONTROLLED BY OR IN CONNECTION WITH [of] A RELIGIOUS ORGANIZATION,

TO LIMIT EMPLOYMENT OR SALES OR RENTAL OF HOUSING ACCOMMODATIONS OR ADMISSION TO

OR GIVE PREFERENCE TO PERSONS OF THE SAME RELIGION OR DENOMINATION

OR FROM TAKING SUCH ACTION AS IS CALCULATED BY SUCH ORGANIZATION TO PROMOTE THE RELIGIOUS PRINCIPLES FOR WHICH IT IS ESTABLISHED OR MAINTAINED.

There should be no difficulty with the provisions of this law that give religious organizations the right to limit employment, sales or rental of housing accommodations, or admission to gay persons or couples.  There should also be no difficulty with the provision that recognizes the right of religious organizations to give preference to persons of the same religion or denomination.  These provisions all concern the private activity of religious organizations; as private action, these matters are not subject to the requirements of the United States Constitution, and are optional for the states to permit or forbid.  As I noted in yesterday's post, under the Free Exercise Clause religious organizations may have a constitutional right to engage in certain private acts of discrimination.

The final clause of the religious exemption is quite broad, however.  The Marriage Equality Act states that religious organizations have the right to take "such action as is calculated by such organization to promote the religious principles for which it is established or maintained."  Does this mean that this law grants a religious organization the right to deny services to gay or lesbian individuals or couples even when it is performing a governmental function – which possibly includes placing children for adoption or foster care? 

It is possible that the language of the statute does not extend that far.  The statute merely states that nothing in the Marriage Equality Act is intended to "LIMIT OR DIMINISH THE RIGHT, PURSUANT TO SUBDIVISION ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW" to discriminate in the foregoing ways.  Section 296 of the Executive Law is the operative section of the New York Human Rights Law, and Subdivision 11 of Section 296 is the religious exemption from the operation of that law.  In short, the religious exemption contained in the Marriage Equality Act merely states that nothing has changed in the application of the religious exemption of the state's Human Rights Law.  The Marriage Equality Act does not affirmatively grant religious organizations the right to discriminate in the matter of adoptions or anything else; the new law merely does not expand the operation of the state's Human Rights Law.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

On June 13 the Supreme Court called it a tie in Flores-Villar v. United States.

In this case the Supreme Court considered the constitutionality of a federal law that makes it more difficult for children born abroad to claim American citizenship upon birth if their father is an American than it is if their mother is American.  The law requires fathers to have continuously resided for in the United States for five years after the age of fourteen before the child's birth for their foreign-born children to be considered American citizens, but American mothers need only have resided in the United States for one year prior to the child's birth.  The Supreme Court had previously upheld even more onerous restrictions on the foreign-born children of American fathers in Nguyen v. INS (2001). 

The Ninth Circuit Court of Appeals upheld the federal law under the authority of the Supreme Court's decision in Nguyen.  In Flores-Villar the Supreme Court split 4-4, which means that the lower court decision is automatically affirmed.  The entire opinion of the Court in Flores-Villar states:

PER CURIAM.

The judgment is affirmed by an equally divided Court.

JUSTICE KAGAN took no part in the consideration or decision of this case.

In Nguyen the Court had split 5-4, with Justice Kennedy writing the opinion for the majority finding that these kinds of restrictions that discriminate on the basis of the gender of the parent do not violate the Equal Protection Clause.  In Nguyen Kennedy reasoned that because it is more difficult to determine parentage of the father than the mother, it makes sense to impose stricter requirements on residency for the foreign-born children of American fathers than the children of American mothers.  To those of us who thought that in light of DNA evidence disputes about parentage were a thing of the past for both fathers and mothers, Justice Kennedy stated:

In the case of the father, the uncontestable fact is that he need not be present at the birth. If he is present, furthermore, that circumstance is not incontrovertible proof of fatherhood. … Fathers and mothers are not similarly situated with regard to the proof of biological parenthood. The imposition of a different set of rules for making that legal determination with respect to fathers and mothers is neither surprising nor troublesome from a constitutional perspective. …

Petitioners argue that the requirement of §1409(a)(1), that a father provide clear and convincing evidence of parentage, is sufficient to achieve the end of establishing paternity, given the sophistication of modern DNA tests. Section 1409(a)(1) does not actually mandate a DNA test, however. The Constitution, moreover, does not require that Congress elect one particular mechanism from among many possible methods of establishing paternity, even if that mechanism arguably might be the most scientifically advanced method. With respect to DNA testing, the expense, reliability, and availability of such testing in various parts of the world may have been of particular concern to Congress.

The foregoing rationale in Nguyen was unjustified when the decision was rendered, and in light of the advancement of medical science over the last decade it is now simply ridiculous.  The real reason that we favor the foreign-born children of American mothers is simply cultural bias.  When male American soldiers, diplomats, or tourists impregnate foreign women we erect artificial barriers to recognizing the resulting children as American citizens, but when American women give birth abroad we are much more willing to automatically consider those children to be Americans.  A purer example of gender prejudice would be difficult to find.

Did Justice Kennedy or one of the normally conservative justices find some ground to distinguish Nguyen?  When Justice Kagan is ready to participate, will a majority of the justices overrule Nguyen?  The justices did not issue any individual opinions in Flores-Villar so we do not know. 

Amanda Rich at Just Enrichment and two other commenters brilliantly discuss this non-decision at Per Curiam Affirmance in Flores-Villar: So What Took So Long?  Rich states:

When the Court splits, the lower court’s decision stands, but the Supreme Court’s decision creates no precedent. In other words, it’s just as if the Court never granted certiorari.

So that's that – until the next case!

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790