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Robles Analysis I

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Today, in Hernandez v. Robles, New York’s highest court, the Court of Appeals, ruled that the state constitution does not require extending marriage to same-sex couples. The court didn’t even order the legislature to provide same-sex couples with civil unions. The decision was 4-2; there are seven judges, but one did not participate in the case because his daughter is involved in same-sex marriage litigation in another state.

Three opinions were issued: the opinion of the court, a concurring opinion agreeing with the result, and a dissent. This post summarizes and critiques the main opinion of the court – in layman’s terms, I hope.

The opinion of the court was written by Judge Robert S. Smith and joined by two other judges. (The other day, Gay City News stated that Judge Smith “is considered an iconoclastic conservative and libertarian and he aggressively questioned both sides in this case, displaying little patience for arguments that procreation wasn’t central to marriage and demanding more specific ‘studies’ on how children fare in homes headed by gay parents versus heterosexual parents.”)

1. Rational Basis Review

Bizarrely, the opinion of the court puts the cart before the horse. Normally, a court first explains what type of analysis is appropriate, and then analyzes the case. Here, the court first analyzed the case and then explained why the level of analysis was appropriate. The court gave the legislature’s limitation on marriage the lowest, most deferential level of scrutiny possible, and only afterwards did it explain why this was appropriate. Apparently Smith thinks a higher level of scrutiny is so patently inappropriate that it’s not even worth first explaining why.

Under this low-level review, a court basically accepts a legislature’s decision if the legislature gives a basically rational reason for it. Here, the court stated that the legislature could reasonably conclude that “for the welfare of children, it is more important to promote stability… in opposite-sex than in same-sex relationships” because heterosexual sex can naturally lead to the creation of children while homosexual sex cannot. The court also stated that “The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.” The court cited “intuition and experience” as supporting this argument.

(I never realized that “intuition” was a legal standard; as for “experience,” the court doesn’t cite any.)

Regarding studies showing that children raised by same-sex couples fare no worse than children raised by opposite-sex couples, the court stated that “the studies on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households. What they show, at most, is that rather limited observation has detected no marked differences. More definitive results could hardly be expected, for until recently few children have been raised in same-sex households, and there has not been enough time to study the long-term results of such child-rearing.” The court states, “In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home.”

(I think that calling something “common sense,” with no further explaination, is an evasion of argument – it’s really no explanation at all.)

The court discounts the precedent of Loving v. Virginia, the U.S. Supreme Court case that struck down bans on interracial marriage. The court states that Loving was decided in the context of a long history of racism, but that the analogy doesn’t hold because opposition to same-sex marriage isn’t necessarily based on irrationality, ignorance or bigotry. (Or so the court states.)

2. Marriage as a Fundamental Right

Having dispensed with its analysis, the court next take a step backward and states why it finds low-level scrutiny of the legislature’s decision appropriate. Under constitutional theory, a higher level of scrutiny would be required if a fundamental right were at issue or if a particular class of people was being denied equal protection under the law.

First the court explains why it does not believe a fundamental right is involved. It states that “whether the right in question is ‘fundamental’ depends on how it is defined.” Crucially, the court states:

The right to marry is unquestionably a fundamental right… The right to marry someone of the same sex, however, is not “deeply rooted”; it has not even been asserted until relatively recent times. The issue then becomes whether the right to marry must be defined to include a right to same-sex marriage.

This definition of the question is vital. One of the main thrusts of Lawrence v. Texas, the U.S. Supreme Court sodomy case, was that the court in the case it overturned, Bowers v. Hardwick, had defined the right at issue too narrowly, as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy,” when it should have analyzed the issue more broadly as whether adults have a fundamental right to engage in private, consensual sexual conduct of their choosing.

Incredibly, the court in Hernandez v. Robles specifically acknowledges Lawrence’s admonition to frame the question properly and then goes ahead and frames it incorrectly. It does so by engaging in circular reasoning: it states that the question should be narrowly framed because same-sex couples are seeking “access to a State-conferred benefit that the Legislature has rationally limited to opposite-sex couples.” But the court can’t decide whether a rational-basis analysis is appropriate without first deciding whether a fundamental right is at issue. Oops.

3. Equal Protection

Under equal-protection analysis, a level of scrutiny higher than rational-basis scrutiny is appropriate if certain classes of people are being disadvantaged by a law. Courts have long held that laws creating certain classifcations merit higher scrutiny, primarily those based on race and those based on sex, along with a small number of others.

The court dismisses the notion that the same-sex marriage ban discriminates on the basis of sex, because the law does not disadvantage one sex over the other.

I generally agree. Sex discrimation is a weak argument in this field. However, one can argue that inter-racial marriage bans were unconstitutional despite ostensibly treating blacks and whites the same. On the other hand, the purpose behind such bans was to “keep the white race pure,” whereas there’s no analogous purpose here to privilege one gender over another.

Next, the court discusses classifications based on what it repeatedly calls “sexual preference.” (The use of a term that a great many gay people dislike shows that the majority judges have a tin ear for gay rights issues.) The court finds that such discrimination is not subject to heightened scrutiny here, because the law deals with characteristics relevant to an interest that concerns the State – namely, marriage. “A person’s preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State’s interest in fostering relationships that will serve children best.”

The court uses this as a pivot to return to rational-basis question. The court dismisses the argument that some same-sex marriage couples raise children, stating that the legislature’s decision was nevertheless rational. The court also dismisses the argument that some opposite-sex couples do not raise children, stating that “limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing.” That’s generally true, although the dissent states that the legislature could limit marriage to couples of fertile age (but the dissent doesn’t address fertile couples who just don’t want to have children).

4. Conclusion

The court concludes with a hope that “the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result — as many undoubtedly will be — will respect it as people in a democratic state should respect choices democratically made.”

That last sentence rankles me. Minority rights should not be decided democratically. Then again, the majority of the court apparently doesn’t see this as a minority rights issue.

The concurring opinion is worse; I’ll get to that next.

Stonewall

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Thanks to Joe for the reminder that tonight is the anniversary of the beginning of the Stonewall riots. Joe has reprinted a contemporary New York Post story about the riots.

As much as Stonewall was a watershed in the history of the American gay rights movement, it’s important to remember that gay activism didn’t begin with Stonewall. It had been going on for at least 20 years before then: Harry Hay and the Mattachine Society; ONE, Inc, which brough a case all the way to the U.S. Supreme Court about obscenity and the postal service; and Frank Kameny, who is still alive and who organized the first public gay protest, a picket line in front of the White House in April 1965. John Loughery, in his terrific history of American gay life in the twentieth century, The Other Side of Silence, describes Stonewall as “a culmination rather than an isolated uprising.” Nevertheless, Stonewall marked a new assertiveness – not just in gay activism, but in gay culture and gay people’s sense of themselves.

Loughery also writes:

The mythology of the riot… in its crudest form, implies that gay life in America was immediately and dramatically transformed one summer night. In reality, most gay men and lesbians in the United States did not hear anything about Stonewall until years later, if only because the media outside New York City did not cover the riot.

He says that it did get almost immediate coverage in New York, though. While the mainstream New York Times gave it only scant mention in a short article in the back of the paper under the headline “Four Policement Hurt in Village Raid,” the Village Voice gave it in-depth front-page attention.

Out of curiosity, I looked for Stonewall coverage in the Complete New Yorker and found a Talk of the Town piece in the issue of July 11, 1970, describing the first gay pride march in the city, held in commemmoration of the first anniversary of the riots. It begins, “On June 29 [sic], 1969, city police raided the Stonewall Inn, a well-known gay bar on Christopher Street, in Greenwich Village. A gay bar is a bar frequented by homosexuals.” (Not sure if that’s supposed to be tongue-in-cheek or not.) One man at the beginning of the parade route is quoted as saying, “Homosexuals are very silly. They congregate in certain areas and then spend all their time walking up and down the street ignoring each other.” (Sounds like a gay bar to me.) Later on, one marcher says, “Would you believe it? It looks like an invading army. It’s a gay Woodstock. And after all those years I spent in psychotherapy!”

Gay men still go to psychotherapy, but at least they’re no longer in it to try to “cure” themselves.

Thank you, Stonewall rioters.

David Addington

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There’s a great piece in this week’s New Yorker about a man everyone should know about: David Addington, Dick Cheney’s right-hand man. (The piece isn’t online, unfortunately, but there’s this Q&A with the author that effectively summarizes it.) Addington is an extremist bully who thinks the President can do anything he wants in a time of war and that the two other branches of the federal government can do nothing to stop it. Worse, he essentially controls the legal aspects of the so-called “war on terror.” He was responsible for creating the so-called military commissions (which even many high-ranking military officials disagre with, and the constitutionality of which the Supreme Court will decide this week), and he has taken presidential signing statements, a dicey concept to begin with, to an unconstitutional extreme. In the 1980s, in Alice-in-Wonderland fashion, he argued that rather than the Reagan Administration overstepping executive authority in the Iran-Contral scandal, Congress overstepped its authority in prosecuting people in the scandal.

Adding to his mystique, David Addington refuses to be interviewed or photographed. But one of the many people that Jane Mayer interviewed for her article did indeed refer to him as “a bully,” and another said that in meetings discussing what to do about presidential power after 9/11, he was “very insistent and very loud” and got his way.

This man is scary.

One hopes that if the next President is a Republican, he or she will be less foolish than George W. Bush and won’t allow things like this to happen, or people like this to work in the White House. I’m (rightly or wrongly) optimistic that this will be the case, that George W. Bush is just a horrific aberration in American history instead of the harbinger of a new era.