Oh My God The Obergefell Opinion Is Bad

Last summer, the Supreme Court decided the hideously-named Obergefell v. Hodges, which held that the Constitution protects what we on the left these days call marriage equality, i.e. that state laws defining marriage as between a man and a woman are unconstitutional. And... what with one thing and another I just never really got around to reading the case. Not the majority opinion, not the dissents. I heard some things about it. I heard that Kennedy did a lot of pronouncing about how wonderful marriage is, including a final paragraph the reading of which has apparently become a fixture at weddings. I heard that, as usual in these sorts of cases, his doctrinal analysis was a mess, and (as in Lawrence v. Texas) he was kind of unclear about whether this was an equal protection case or a "substantive due process" a.k.a. fundamental rights case. I heard that Chief Justice Roberts's opinion was far more fire-breathing culture warrior than I had been expecting after his curious dissent in U.S. v. Windsor. But I didn't read it for myself. Between those few snippets and my knowledge of Kennedy's previous gay rights jurisprudence I figured I had a decent kind of idea what the opinion said, and while it left a lot to be desired (aside from, y'know, deciding the case correctly), it had some interesting, maybe even promising stuff going on.

Well I just actually read the damn thing, and oh my god it sucks. It's waaaaaaaaaay worse than I had been imagining. First of all, about half the opinion isn't legal analysis at all, it's Anthony Kennedy Tells The Story of Marriage And How Wonderful It Is. Which first of all is just weird and kinda gross to read in the U.S. Reports. It's like Scalia's dissent in U.S. v. Virginia, the VMI case, where he includes the full text of the Virginia Military Institute's Code of a Gentleman at the end. This is just not something that belongs in a judicial opinion, not like this anyway. (As I'll note later, there could be a place for a little bit of this sort of thing in a better-crafted opinion, but Kennedy massively overdoses us on it.) Second, while there's some nice stuff in what he says, particularly the bits about how the changes that have been made to the institution of marriage over the centuries as women have achieved greater and greater social progress have strengthened and improved marriage, a lot of it is kind of gross on its own terms. He goes on and on about how wonderful marriage is, how it's a bond unlike any other, so ennobling, it's at the heart of human civilization, blah blah blah, and then he's like, hey isn't it great how these gay people love marriage as much as I do! They want in to our patriarchal (if slightly less than it used to be) institution, hooray!!! He literally goes so far as to say that "Were their intent to demean the revered idea and reality of marriage, the petitioners' claims would be of a different order." WTF, bro.

A Constitutional Right Deferred

As best I can tell, there were two conversations going on at the Supreme Court in today's oral arguments about gay marriage. One was on the actual merits of the issue: does the Constitution permit state marriage laws which exclude same-sex couples? And... there doesn't seem to be that much doubt that the Court thinks it does not allow this. I mean, somewhere between three and four members of the Court clearly think that it does allow this, but it doesn't seem like Anthony Kennedy, whose vote will definitely be crucial, had really any patience for the purported arguments in favor of the exclusionary state laws. He said something, for instance, about how the states' focus on the need to foster child-rearing was an interesting argument that, unfortunately, rested on totally untrue factual premises. It's really pretty clear that there aren't five votes right now to uphold these laws.

But there was also the other conversation: is the time right to declare these laws unconstitutional? This has been a popular theme in discussion about gay marriage, whether it's appropriate for the judiciary to step in and take the issue out of the hands of the democratic process. Or, alternately, at what point in the process of increasing social acceptance of homosexuality the courts should step in. A too-early ruling, the thought is, would fail to garner widespread acceptance and might spark a backlash. On this view, the courts should only declare anti-gay marriage laws unconstitutional once we can fairly say that the national conversation on the issue has concluded with a verdict in favor of marriage equality, such that all the courts are doing is enforcing that newly-forged national consensus on a few recalcitrant states.

What nonsense.

Which State Will Accept Gay Marriage Next?

The state of Virginia just lost a case in federal court today, and I daresay it will not appeal the ruling. A federal district judge has ruled, as is their wont, that Virginia's laws prohibiting same-sex marriage violate the Fourteenth Amendment of the Constitution, and are hence invalid. The interesting thing is that Virginia's governor is a Democrat. Not only that, but so is the Attorney General! Mark Herring won a nail-biter of a race last year, by far the most exciting of Election Night 2013. He has since announced that he thinks Virginia's anti-gay marriage laws are some combination of bad and unconstitutional. Presumably he won't appeal. If that's right, it means Virginia's a gay marriage jurisdiction as of right now. Okay maybe as of whenever they dig out from under the current snowstorm. And this has me thinking, what other states might find themselves joining the marriage equality ranks without any further political action? That is, what states might accept a ruling by a federal judge striking down their anti-gay marriage laws, and decline an appeal?

Too Narrow and Too Broad

This post is inspired from reading the beginning of another amicus brief from Perry, this one by several law professors, just in response to a certain little point they make. In certain legal contexts but most notably First Amendment jurisprudence, there is a concept of "overbreadth." This is the idea that, even if there is a sufficiently strong justification for some apparently speech-suppressing law or government action, that law/action might still be unconstitutional if it has effects beyond its justification. To take a comical example, suppose that anti-black hate speech had been held to be unprotected speech, i.e. that preventing hate speech against people of African ancestry had been held to be a sufficient justification for the suppression of speech. A law prohibiting all white people from ever speaking, on the grounds that nearly all anti-black hate speech comes from white people, would be overbroad. It would accomplish its goal, yes, and the goal is an acceptable one (in this scenario, though not in the real U.S. courts), but it would then also accomplish a whole lot of other stuff not included in the acceptable goal, so it would be obviously invalid.

There is also the concept of a law's being underbroad, although I don't know if that word is ever used. The idea here is that, sometimes, a law in pursuit of a sufficient justifying interest will be invalid if it fails actually to accomplish that interest. This only occurs when the law is acting in an area where strong justification is required, and might be most at home in Equal Protection jurisprudence. In a way the principle I discussed in my last post was an example of this idea: in an insult-without-injury scenario we can be reasonably sure that, whatever the justification proffered for the policy might be, it is in fact under-broad to accomplish that policy, since it accomplishes no material effect at all. The principle basically is, even if your aims are sufficiently noble, if your proposed policy both fails to actually attain those goals and involves significant injury to some constitutional right or value we will find it invalid. For a good metaphor, suppose that there is some dam, or really any wall of a large container of water, in which there is a large hole through which water is pouring. Someone proposes some means to stop up the hole, which would have a great cost to implement. If that method will not actually plug the hole, if the plug is too narrow to fill the hole, and we can know that for sure, then we should not pay that cost for no actual benefit, even though the proposal resembles an action to fix a genuine problem.

Note that this is distinct from the principle, which is false and which the Court has repudiated in so many words, under which the government would be prohibited from only solving part of a problem. It may do that, but as the means it chooses becomes more and more constitutionally problematic we become more and more insistent that it at least come close to solving the problem entirely, and if it will not actually solve the problem at all we should not hesitate long to say "stop!"

So a law can be either too broad or not broad enough. Can it be both? Definitely. Lots and lots of laws (or, hopefully, lots and lots of hypothetical laws) are both too narrow and too broad. The brief I'm reading describes gay marriage bans as one example, relative to their purported justifications in terms of protecting traditional marriage. Too broad because they involve substantial violations unrelated to that goal; too narrow because they don't actually do anything to achieve that goal. But, hang on... isn't there a shorter way of saying "too narrow and too broad"? Why yes, yes there is. Here are some possibilities: "wrong," "bad," "terrible." If you're doing a coloring-book and you're supposed to color in a certain area red, and you draw a big red patch on some completely different part of the page, your red patch is too broad because it covers a lot of area outside the lines, but also too narrow because it misses a lot of area inside the lines. It is, in other words, in the wrong place. (Not that I endorse prescriptivist coloring-book norms, mind you.) One way to think about this is in terms of "type I" and "type II" errors in the statistical context. A too-broad-and-too-narrow policy is one with both very high "false positive" errors, applications to places where it shouldn't be applied, and very high "false negative" errors, non-applications to places where it should be applied. Normally we think of these two errors as being balanced against each other; if you want less of one, you might need to accept more of the other. But these policies don't bother having less of either! They just have lots of errors, lots of falseness. They get it wrong, and apply themselves in all the wrong places. They suck!

Of course, those words only apply to an analysis of the policy relative to its purported justification. There's something at which anti-gay marriage policies are excellent. Perhaps lots of things. Expressing the sense of the community that gay people are inferior, for instance. They do a great job of that. But they do a terrible job of "protecting traditional marriage," if you don't just interpret that phrase as a cipher for "keeping the gays out because they're icky and we don't like them." In fact, any time you see a law that appears to be both too broad and too narrow you should be tipped off that the purported justifications are not the real ones. Probably the people enacting it were not idiots, which means there probably is some other motivation behind the law, in light of which it won't look so bad. That inference gets stronger, of course, as the relative degree of the two-way miss gets higher. All laws are slightly over-broad and over-narrow, because life is imperfect. There might even be pretty substantial errors on both sides and yet have the law be a good-faith effort to address the problem it claims to address, either because that problem is hard or because the legislators or executive officers just made good-faith mistakes or miscalculations about the effects of their policy. (That last explanation might not be enough to avert a constitutional challenge if we're in a problematic area.) But when a policy has substantial effects unrelated to its purported justification and does virtually nothing to advance that purported justification, we will be justified in inferring that there was a hidden agenda behind it, probably aimed at doing whatever it is the law actually does.

Insult and Injury

I've just read the Department of Justice's amicus brief from Hollingsworth v. Perry, the 2013 Supreme Court case in which the Court had an opportunity to declare a constitutional right against discrimination in state marriage laws against same-sex couples, but declined to do so on grounds of a technicality that, let's be honest, they went searching for. In it, the United States government goes through the arguments asserted by the proponents of Proposition 8, the California initiative which spent about four years banning gay marriage in that state before getting tossed out by the lower courts in this case, for why the Proposition is constitutional, and shreds each one of them. It's a tour de force read, as legal briefs go, with a handful of what are basically applause/laugh lines that are quite good. Of course, shredding the arguments of anti-gay marriage advocates is not exactly tough work. But there was one point made a few times in the brief that I thought was very interesting: any argument the petitioners (that's the pro-Prop 8 people) could advance suggesting a material interest in preserving the exclusivity of marriage to straight couples is severely undermined by the fact that California law under Prop 8 did not deny to gay couples with civil unions any of the material legal rights of marriage. It denied only the word "marriage." Therefore, the government argued, even if those asserted interests are legitimate government interests, the Prop 8 law does not serve those interests because it does not prevent gay people from doing the things it is claimed they shouldn't be let do. It only prevents them from getting the state to call what they're doing "marriage."

This gets at one little principle in the Equal Protection Clause that I think is interesting. Call it the "insult without injury principle": any time the state insults or demeans any person without doing them material injury, it will be acting unconstitutionally. I can't really think of any possible exceptions to this rule; it's almost a tautology if you follow the logic far enough. Insults are by definition (or at least by the Google definition I got from a quick search) disrespectful. Respect is one of the hardest words to define in the entire language, in part because we use it to mean so many related but slightly different things. The relevant meaning, I think, is the one about having due regard for the interests of another. To insult someone, then, is to disrespect them, and to disrespect them is to fail to give due regard to their interests in itself. Yes it is symbolic, but a lot of things are symbolic. And, moreover, because there is no injury involved we know that there is no compelling material reason for this insult. Insult without injury is really strong evidence that the insult is being uttered entirely for its own sake. That means that, when it offers an insult, the state is acting for the sole purpose of insulting someone, of being disrespectful and contemptuous. This I hold to be a violation of the Equal Protection Clause, and especially of the first section of the Fourteenth Amendment read as a cohesive whole as it ought to be.

Now, this principle as stated runs the risk of conveying a certain misimpression. The principle features an exception: it covers only those insults which are not accompanied by injuries. This exception could be seen as proving the rule, in the actual sense of that phrase, i.e. as implying that insults that are added to injury are just fine. That is not the case. What is the case, however, is that laws often do injury to the interests of some person or another, so simply showing injury as such cannot be sufficient to establish an Equal Protection Clause violation. Some injuries are violations, some are not. And I could imagine some injuries which the state has a significant interest in imposing upon certain persons which, either necessarily or in practice, convey an insult as well. That could sometimes be justified. For instance one could view the criminal justice system as an example of this: murderers, thieves, rapists etc. are, upon conviction, sent to prison for many years and formally declared criminals. This last part is, arguably, an insult, although I might argue to the contrary. Insulting criminals in this fashion does not violate Equal Protection, since it is a necessary component of the peculiar and necessary negative treatment given to criminals.

So no, Prop 8 would not have been more acceptable had it included material injuries to the legal rights of gay couples. Adding injury to insult does not get you off the Equal Protection hook. But declining to do so is a tell. There are times when the state may injure, and even times when it may injure and insult at the same time, acceptable, so a demonstration of injury or even of insult and injury is not enough all by itself to establish an Equal Protection violation. Because, however, the only possible motive in an insult unaccompanied by more material injury is the naked desire to insult, virtually any time that anyone can show they have been insulted but not injured by the government they will have made the entirety of the case for a constitutional violation.

Well, That's Confusing

A recent ABC News/Washington Post poll included a segment about gay marriage. The first part was a fairly simple "do you favor it?" question, with very nice 53% to 39% numbers in favor. But here's the second question: "Do you think each state should make its own laws on same-sex marriage, or do you think the federal government should make one law for all states on this issue?" That's... very confusing. When you talk about "making laws" in this way, it's natural to assume you mean legislative action, and it's absolutely impossible for Congress to pass a law establishing gay marriage in every state. There's the whole anti-gay marriage constitutional Amendment thing, but when people want to poll on that they typically do it in so many words. Now, what could actually happen that would make state laws on gay marriage pretty much uniform would be a Supreme Court decision declaring the right not to have marriage laws discriminate on the basis of sexual orientation protected by the Constitution. But it doesn't exactly sound like that's what this poll is talking about, either! (Also, that would still allow states to write their own marriage laws for themselves, they just couldn't write those laws in a way that was picky about the sexes of the two marrying persons.) So it's really unclear what they mean: an Act of Congress one way or the other, which is completely impossible, a constitutional Amendment to ban gay marriage nationwide, or a Supreme Court case requiring gay marriage nationwide? It's unclear, and that makes it hard to interpret the results. For what it's worth, 49% want states to make their own laws, and 46% want one federal law. But I have no idea what that means! Do you?

The Arc of the Moral Universe

In a lot of ways, Barack Obama is not the most left-wing American President ever. He's quite hawkish on foreign policy, although to be fair that really doesn't set him apart, and he's probably to the right of people like Kennedy and Johnson on economic issues. But he really is unambiguously the most left-wing President this nation has ever seen when it comes to so-called "social issues." Second on that list, of course, is Bill Clinton. That's not an accident. The phenomenon whereby the Democratic Party represents basically everyone whose personhood and legitimacy social conservativism tries to deny is a very recent thing. And the portfolio of groups to whom the political leaders of that left-wing coalition of cultural outcasts and minorities want to extend equality, in a symbolic/philosophical way at least, is getting larger by the minute.

My occasion for mentioning this is, of course, Obama's endorsement of gay marriage this afternoon. I find it a bit difficult to think of any significant way in which Obama currently opposes considering any group in society to not be entitled to full respect as human beings. (Obviously, he's nowhere near as radical on extending moral equality as I am, but then we non-specieists are a decided minority. Also you can argue about various types of criminals, but that's sort of a different thing.) And I think that this view, that basically every non-violent-criminal in human society is deserving of full and equal moral respect, commands roughly two-to-one support among young persons, meaning my generation, about half a generation above it, and everyone younger than us. Of course, that doesn't mean the opposing view, that a very large number of members of human society are deeply morally inferior and do not deserve respect, at least not in the ways that we liberals mean that word, is going away any time soon. But it does mean that it might become very seriously politically implausible to pander to that view rather soon.

Time to Let Mr. Justice Kennedy Decide Again

So apparently the Prop 8 intervenors will be allowed to defend the measure on appeal from the federal district court in which it was struck down. That means appeals will happen, which means that the Supreme Court will hear the case. Which means that it will all boil down to Justice Kennedy's particular inclination in this case. As usual, as it will be with the health-care law, as it was with Citizens United and DC v. Heller. As it will be until some Justice gets replaced by a President of the opposing party. I believe in the idea of constitutional law that is actually about law and truth and justice and all that, and not just nine people voting based on clear political preference, but the recent Courts have clearly not been living up to that standard. In any event, the law is obviously unconstitutional, I have a fair amount of hope that Kennedy is feeling ready to accept that fact, and I really look forward to reading Scalia's dissent if it's a dissent he's writing. His majority opinion would not be much fun to read. I also think it can be confidently predicted that a winning decision in this case will not arouse massive resistance as Brown and Roe did: this decision's time has come.