Tag Archives: same_sex_marriage

Examples of Internal Constraints and Extralegal Influences

As we wrap up our blog for this academic year and many of us who teach constitutional law turn our attention to our summer research agendas, I again write to bring judicial politics back to constitutional law. Two different stories, one from USA Today and one from Concurring Opinions remind us that judicial politics is interconnected to constitutional law.

USA Today discusses the potential influence of external events on two US Supreme Court’s decisions still to come. The first is Association for Molecular Pathology v. Myriad Genetics (No. 12-398). The case asked whether anyone could patent human genes. Myriad Genetics tried to patent two genes; mutations in these genes are important indicators of breast and ovarian cancer in women. Myriad argued that isolating genes is a process that deserves a patent, but a patent would limit the ability of other scientists, pharmaceutical companies, or other researchers to work with the genes and develop alternative tests or treatments. Enter Angelina Jolie, academy award winner and female action star. It was recently reported that Jolie took Myriad’s test, found that she had a mutation, and then underwent a double mastectomy. The aforementioned story in USA today notes the potential for this high profile celebrity story on the test and its costs ($4,000) may further highlight the implications of a ruling for Myriad—most women would be unable to afford the same test. Additionally, the story about Jolie, as USA Today put it, “sent Myriad’s stock soaring…”

The same story discusses the potential impact of recent decisions by several states to accept same sex marriage. The purported change in the trend toward greater acceptance could, if the justices interpret the “polling of jurisdictions” to be heading in the liberal direction, sway the justices in the Perry and Windsor. Alternatively, the remaining states, 38, that still ban same sex marriage could support a decision in the conservative direction. Either way, the decision of the various states is reported as potentially impacting Supreme Court decision-making.

Extralegal influences, such as publicity or state policy changes, are always present and can influence decision-making. Similarly, there are internal constraints or norms that also influence appellate decision-making and the blog Concurring Opinions provided an excellent example of these constraints on the same day as USA Today highlighted the extralegal factors. As reported, Judge David Tatel gave a speech at a ceremony unveiling and hanging a portrait of Judge David Sentelle. The post notes that the two judges sit, ideologically speaking, at different ends of the spectrum. Yet, the judges agreed on decisions most of the time (97%). In the speech, Tatel notes that “despite our best efforts at neutrality, we cannot but see the world—and the law—through the lens of who we are…” Yet, the D.C. Circuit has a norm of collegiality that helped yield an astounding agreement rate of two judges that, barring this norm, would likely not see eye to eye.

Together these examples highlight the complexity of explaining judicial decision-making and the parsimony of any of our models of that behavior. It’s not all attitudes, strategy, or the law. As we head toward the end of the term, it will be interesting to see if Jolie or Minnesota influence the justices, or not.


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Love, marriage, and divorce

These days most of the discussion regarding the right to privacy and the equal protection clause is focused upon same sex marriage.  At the same time that some states or adopting and other states are banning the practice, states are also modifying their divorce laws.  This week the “Healthy Marriage Act” was introduced in the North Carolina Senate.  Among other things, the law requires that couples observe a two-year waiting period before obtaining their divorce, although they do not have to live together.  Additionally, during the waiting period, the husband and wife (yes, the law does presume that marriage remains between a man and a woman) must take courses on communication and conflict resolution; again, the couple does not have to take these classes together.  If the marriage resulted in children, the couple is required to “complete a course of at least four hours on the impact of divorce on children.”[1]


If the right to privacy argument—that marriage is a fundamental right—wins the day and prevents bans on same sex marriage, does that same argument prevent a state from creating ‘undue burdens’ on the dissolution of that contract?  After all, the state’s interest in passing these amendments to the NC divorce laws is the same as those against same sex marriage.  The state seeks to protect the institution of marriage by 1) banning same sex marriage and 2) forestalling the dissolution of a marriage contract.   Preventing men and women from making their own choices over the intimate decision about when to divorce seems equivalent to preventing gays and lesbians the same choice about when to marry.  As Justice White noted in Griswold v. Connecticut:

‘Surely the right invoked in this case, to be free of regulation of the intimacies of [p503] the marriage relationship, “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.” Kovacs v. Cooper, 336 U.S. 77, 95 (opinion of Frankfurter, J.).’ Concurring opinion.

If the decision to marry is covered by the right to privacy, then its complement, divorce, should also be covered.


If we use the privacy jurisprudence, we are left with determining if the NC law creates an undue burden.  While the justices have difficulty determining what an undue burden is in terms of privacy and abortion, it might not be as difficult to do so in terms of privacy and divorce.  Perhaps the waiting period is too onerous?  The justices may allow a 24- or 48-hour waiting period before obtaining an abortion, but 2 years (or 17,520 hours) is considerably longer.


Even if we are unwilling to claim that the waiting period or the courses are an undue burden, the law still has problems in terms of 1st amendment protections.  To receive the dissolution of the marriage, you must take two to three courses.  Again, if we have the right to receive information (Stanley v. Georgia), do we have the concomitant right to avoid it?  Sure, the state requires us to take a drivers course before getting a license, but there are other options (public transportation, bicycle, walking) and the interest of the state in road safety is, at the very least, significant.  But there is no other option to obtaining a divorce short of moving to another state and establishing residency.  Otherwise, a couple is forced to remain in a marriage.


Examining marriage from the dissolution stage, and dealing with restrictions there, may allow the Court to navigate through the “unchartered territory” Justice Kennedy mentioned in his oral arguments last week.  Divorce jurisprudence could pave the way for marriage jurisprudence.

[1] North Carolina Senate Bill 518 Section 1.a.3

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There’s logic and then there’s strict scrutiny…



Last night, Stephen Colbert thought he took aim at Paul Clement and his defense of the Defense of Marriage Act.  In reality, he took aim at the constitutional doctrine surrounding suspect classification.  As Colbert reports, Clement’s argument is that the gay rights movement has been so successful it loses.  And, this is the rub with strict scrutiny.  In order to receive preferential status under the equal protection clause, a group must prove more than the presence of discrimination based upon an irrational criterion.  The classes of citizens elevated to either suspect or semi-suspect classes have more than an inherent characteristic in common.  These classes have experienced well-documented discrimination and these classes were considered politically powerless.[2]


The difficulty of proving that a group fits all of these characteristics is readily apparent.  The Court has not elevated any new classes of citizens to suspect or semi-suspect class since the 1970’s.[3]  How likely is it that the Roberts Court will break with this trend?  How would the Roberts Court determine that the GLBT community is politically powerless?  Are all the successes of the GLBT movement now making the courts the least likely ally in the fight for equal protection and treatment?  How much success is too much success?


This reasoning is what has lead to Clement’s seemingly illogical argument.  The GLBT community has managed to fight against DOMA all the way to the Supreme Court, has received the backing of the White House in its fight, and several states are allowing gay marriage.  These victories reveal a strong and dedicated national movement that is not powerless.  Therefore, this class of citizens does not warrant the increased protection that comes with suspect or semi-suspect classification.


On the flip side, many more states still ban gay marriage. DOMA did pass with majority support in Congress and members of Congress are still fighting for its survival. Young men and women are still harassed and bullied because of their sexual orientation or the failure to fit in with sexual stereotypes.  And as Colbert notes, 29 states allow dismissal from a job based upon your sexual orientation.


Will the Supreme Court oral argument be based upon whether the GLBT community is or isn’t powerful?  And if the constitutionality of DOMA comes down to the type of question two year olds fight over (is too versus is not), is it time to reconsider the criteria for suspect classification?

[1] Warning sexual innuendo is used throughout the clip.  See Bethel School District v. Fraser.

[2] See pages 605 and 606 of CLCA: Rights and Liberties for more discussion on the subject.

[3] The Court has added to the list of the honor roll of rights in McDonald v. City of Chicago (2010)

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Its Bigger than DOMA

The twitter and blogospheres are lighting up with the news coming out of the Court of Appeals for the Second Circuit.  Chief Judge Dennis Jacobs has ruled that the Defense of Marriage Act is unconstitutional.  As a conservative judge appointed by H.W. Bush, with a Clinton judge, Chester Straub[1], dissenting, the opinion turns the perceived ideological divide of the debate on its head.

Upon the first blush, more striking to me is the reasoning rather than the result.  Chief Judge Jacobs did not take the states’ rights position to void DOMA; he ruled it unconstitutional under the equal protection clause.  In doing so, he altered where the classification of homosexuality sits on the tripartite equal protection scheme.  Determining that homosexuals as a class have “A)…endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.”  If his reasoning holds, homosexuality will be equivalent to gender and receive intermediate scrutiny rather than rational basis.  Any classifications not allowed for gender would be equally suspect as applied to homosexuals.

Again, if this reasoning is accepted, the first class will be added to the semi-suspect or suspect classification in several decades.  Eschewing rational basis with teeth for this decision, Judge Jacobs opens the door for one Supreme Court decision to alter a whole slew of federal laws.  Under heightened scrutiny, all federal benefits denied to same-sex couples would likely fall, and fall quickly and easily.  The precedents from the 1970’s and decisions regarding benefits for women versus men will pave the way.  This decision is much bigger than DOMA.

[1] Judge Straub dissented essentially stating a classic restrainist rationale.  This is a question for the people and their representatives not the courts.

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Implications of the Ninth Circuit Ruling on Prop 8 for Washington?

Today, the Washington legislature passed a bill legalizing same-sex marriage; the bill is now headed to the Governor’s desk, and Governor Christine Gregoire has already expressed her support for the bill.[1]  This bill, once it is enacted into law by the Governor’s signature, could test the limits of Judge Reinhardt’s narrow decision.  As discussed on this blog, and elsewhere, the decision rests on the elimination of a right previously granted.  After the California Supreme Court determined that marriage is a fundamental right guaranteed to all, Proposition 8 stripped one segment of the population of that right without providing any legitimate rationale.  For Reinhardt, the short length of time that the right was in place (after the 2008 ruling on marriage and before 2009 ruling upholding Proposition 8) was irrelevant.  Once a right is granted, eliminating that right must have a rational basis.

On its face, it would seem that the reasoning in the Prop 8 case would apply here and even if the law is challenged at the ballot box, there is a good chance that the district and circuit courts would overturn based upon Perry v. Brown. However, that may not be the case.  If Gregoire signs the bill into law, the opponents have 90 days to stop promulgation. In the interim 90 days, the opponents of the bill must gather the requisite number of signatures (over 100,000) to place the issue on the ballot.  In other words, there is a cushion preventing Washington from getting caught in the granted then stripped reasoning of the Ninth Circuit.  Washington’s constitution requires that no law or ballot measure be enacted for 90 days after the enacting session adjourns.  Based upon this constitutional requirement, the law could be challenged before it is fully enacted.

However, the current session of the Washington legislature is set to end in early March of 2012.  Ninety days later puts us somewhere in early to mid June.  The Washington constitution provides that ballot measures will be placed on the next general election ballot.[2]  The next general election would be in November of 2012, leaving a scant few months where the law can be enacted before a ballot measure could repeal it.[3]  Therefore, Reinhardt’s analysis could apply.  The catch is whether the filing of the initiative before enactment affects whether the right was ‘granted’.  Given the convoluted circumstances providing that right to gay couples in California[4], this interim period would not likely change Reinhardt’s reasoning.

What about other judges on the Ninth?  Judges not considered “liberal lions”.[5] Clearly there will be a signature gathering effort, and the low bar of 120,000+ signatures will likely be reached.  The question remains whether there is a constitutional attempt to provide a way to prevent enactment?  Does the requirement to wait until the next election given the holding in the Prop 8 case vitiate that attempt?

[2] This analysis is based upon the wording of the Washington Constitution only.

[3] Note that Washington voters voted for a domestic partnership measure and polls show about 55% support a gay marriage law.  http://www.guardian.co.uk/world/2012/feb/09/washington-state-gay-marriage-bill?newsfeed=true

[4] The ruling in the Marriage cases came from gay married couples appealing a CA Supreme Court order requiring the Mayor of San Francisco to follow Proposition 22, banning same sex marriage.  In that appeal, the California Supreme Court found that marriage is a fundamental right for all under the California constitution.  Prop 8 followed creating the interim period where CA granted the right to marriage.

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Will the Ninth Circuit Ruling on Proposition 8 Survive?

As reported by the Guardian, the chair of the National Organization for Marriage noted that “The ninth circuit is the most overturned circuit in the country, and Stephen Reinhardt, the author of today’s absurd ruling, is the most overturned federal judge in America.”[1]

Judge Reinhardt seems well aware of this fact as you read the opinion.  He takes the time to delineate why the instant case does not require the panel to delve into the broader constitutional questions regarding same sex marriage.  He frames the case this way: California allowed both same and opposite sex couples to marry under state law. Proposition 8 “stripped” same sex couples of the use of the term ‘marriage’.  To treat these two groups differently now, since they were treated equally under the law, there must be a rational interest served.  The majority of the panel finds no legitimate interest served in this change in status.

Focusing on the rescission of the ability to marry, the panel links this case with Romer v. Evans (1996) and tries to distance itself from the larger debate regarding the granting of the right to same sex marriage.  Can this linkage and the narrow nature of the opinion protect the ruling from reversal?

Romer was decided in 1996 and Justice Scalia wrote a scathing dissent from Kennedy’s majority opinion. Justice Thomas and Chief Justice Rehnquist joined this opinion.  The Court has changed significantly since this case.  Chief Justice Roberts now occupies the center seat.  Justice Alito has replace Justice O’Connor and Justice Sotomayor and Kagan replaced Justices Souter and Stevens respectively.  While the line-up in terms of liberal and conservative is not that different, it is a difference of degree.  And it may be that Justice Alito is a wild card here.  Where Justice O’Connor signed onto the proposition that a law could not rescind a right to one group and not another, Justice Alito has shown that he is willing to restrict fundamental rights where other conservative justices are not (Snyder v. Phelps 2010).  The majority from Romer, then, is likely down to 5.  Provided that the ‘liberal’ wing of the Court votes to uphold the ruling, it comes down to Justice Kennedy.  Will his reasoning from Romer resonate?  In Romer, the rights rescinded were central to democratic participation.  Is this a distinction that will make a difference to the eminent justice?  After all, Reinhardt’s argument cuts both ways.  Since Prop 8 only eliminated the ability for same sex couples to use the term marriage and did not rescind any other rights granted under California law, and that law currently provides equivalent rights to spouses and partners, Reinhardt says it must be void.

However, if the only thing that was lost was the nomenclature, could Kennedy find that there really isn’t any tangible loss?  All rights remain in place and a rational basis for maintaining this small modicum of difference may be easy to manufacture.  It remains open to question whether Reinhardt’s legalistic gymnastics will keep this major Ninth Circuit ruling off the SCOTUS chopping block.

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