On Saturday, March 30th, constitutional law scholar Erwin Chemerinsky came to speak on the question of marriage equality at the William S. Boyd School of Law on the University of Nevada, Las Vegas campus. Chemerinsky is founding dean of the University of California, Irvine, School of Law, a former professor of the Duke School of Law, and was named one of the "23 Law Profs to Take Before You Die" by The National Jurist in March 2011. He regularly authors commentary on the United States Supreme Court for publications such as California Lawyer, Los Angeles Daily Journal, ABA Journal,and National Law Journal. His talk was part of a conference entitled "Nevada State Bank Presents: We the People," which was co-hosted by the UNLV chapter of Phi Alpha Delta and Nevada State Bank.
Dean Chemerinsky asked, firstly: “What are the justifications for denying marriage equality?” and secondly: “Are they sufficient to rise to a compelling government interest?”
He began answering these two questions by noting that in nine states plus the District of Columbia, gay persons can marry. “Fifteen percent of Americans live in states where marriage equality is allowed,” he said. He went into the history of the challenge to California’s Proposition 8, noting that the two attorneys who argued Hollingsworth v. Perry before the Supreme Court, David Boies and Ted Olson, were opponents in the landmark Bush v. Gore decision of 2000.
Turning to the constitutional issues at stake, Dean Chemerinsky first identified one issue not being debated which he feels should be: the difference between arguing equality on the basis of immutable characteristic class versus arguing equality on the basis of individual rights. In 1993, the Hawaii Supreme Court decided that marriage laws which prohibit equality are discriminatory not because of sexual orientation, but because of gender. This case, Baehr v. Lewin, was a floodgate that opened up the possibility for marriage equality cases around the country. But it is distinguishable from the present cases in that it locates the argument in favor of marriage equality in an argument about sex discrimination.
That argument should apply to the present cases, says Dean Chemerinsky, but disappointingly does not. “The law outlines that men can only marry women and women can only marry men. So it is telling each sex what it can and cannot do on the basis of their sex. That’s sex discrimination.” Anticipating the argument that DOMA is not discriminatory because men and women are being treated equally as classes, Dean Chemerinsky cited Loving v. Virginia. In Loving, the Supreme Court held that even though both blacks and whites were treated equally as classes by a Virginia law prohibiting interracial marriage, equal treatment as classes was not a bar to a claim of discrimination on the whole.
But equal protection under the Fourteenth Amendment—the current argument in support of marriage equality--is about individuals, not classes, said the dean. In Hollingsworth and Windsor, “equal protection is not based on gender but on sexual orientation,” he said. It is about what has been done to aggrieved parties based on their minority status, not the immutable characteristic of their sex. This distinction is crucial, the scholar noted, because, “the Supreme Court doesn’t treat all discrimination equally.”
So for instance, discrimination on the basis of race and national origin receive strict scrutiny, which means that the discriminatory government action has to be necessary to achieve a government purpose. Other types of discrimination, like discriminating against someone’s age when determining who can receive a driver’s license, are afforded merely immediate scrutiny. The government interest in the latter case has to be compelling, but a rational basis review quickly reveals that it is: The road would be unsafe if ten-year-olds could drive cars. Citing U.S. v. Carolene Products, footnote 4, Dean Chemerinsky emphasized that discrimination directed at “discrete and insular minorities” needs to be given what Carolene calls “more searching judicial inquiry” than simply rational basis review.
Having analyzed whether DOMA and Proposition 8 are discriminatory on the basis of equal protection, Dean Chemerinsky moved to the larger and more sociopolitical question of marriage as a fundamental right. Denying the right to marry should be subject to strict scrutiny, he reasoned, as it was in Zablocki v. Redhail. In that case, a Wisconsin plaintiff who had not been allowed to marry unless their child support payments were up to date won on the grounds that marriage was a fundamental right per Loving. Today, the lofty language of fundamental rights translates materially into “eleven hundred benefits given to married couples that non-married people cannot receive." Dean Chemerinsky identified three main arguments for denying these benefits, followed by his rebuttals:
First: Marriage has always been between a man and a woman. “But that’s descriptive,” said the dean. “Should tradition be legal justification? If tradition is determinative of defining marriage, then was Loving wrongly decided?” After all, he reasoned, Virginia had a tradition of not allowing blacks and whites to marry. But that state tradition was held to be wrong in the face of federal law.
Second: Responsible procreation is the purview of married couples. “Here, I have to be honest, I don’t get it,” he said. Dean Chemerinsky noted that heterosexual couples can marry even if they do not want or cannot have children. If the ability or desire to procreate is not a bar to heterosexual marriage rights, how can it be a bar to homosexual marriage rights? In the inverse, gay couples often already have children regardless of whether they are legally married. “Forty thousand kids in California are the children of same sex couples,” said the scholar, “and we know that it is better for children to be in married families.” But we do not require sociological evidence to justify whether barring marriage equality is a legitimate state interest, he went on to say. And perhaps we should.
Third: Allowing gay people to marry will harm the institution of marriage. “Here, too, I don’t understand,” said the dean, noting that there was no legitimate government purpose in protecting the institution of marriage from gay people.
More thorny than the legal justification question, however, is the fact that either Hollingsworth or Windsor could be dismissed on procedural grounds. In the case of Hollingsworth, it was the political supporters of Proposition 8 who rose to the case’s defense after the Governor of California and other state officials removed themselves from litigation. When the political supporters appealed to the Ninth Circuit, the question became “Could supporters stand in for state officials?” Both the California Supreme Court and the Ninth Circuit Court of Appeals said yes. “But standing in Federal Court is different,” reminds the dean. “Article 3 requires actual injury. Ideological injury is not enough.” So in Arizonans for Official English v. Arizona, for instance, the plaintiffs were found not to have standing because they were a political group supporting a cause, not a party suffering from a direct injury.
A second way in which Hollingsworth could be dismissed, noted the scholar, is if the Supreme Court simply dismisses on the grounds that certiorari was improvidently granted. “If the Court dismisses on improvident grounds, the Ninth Circuit opinion stands, and Proposition 8 is unconstitutional in California.” But, he said, “If the Court dismisses on standing, the District Court opinion stands and gay marriage is state law.”
In U.S. v. Windsor, almost $400,000 in estate taxes hangs in the balance of the high court’s decision. The gay couple in question was legally married in Canada, but their marriage is not recognized by the state of New York. The Second Circuit declared DOMA unconstitutional and the Obama administration responded by saying that it would enforce section three of DOMA but would not defend the legislation on constitutional grounds. In a 3-2 vote, the House of Representatives’ Bipartisan Legal Advisory Group offered to defend the legislation on behalf of the Executive Branch, leading Dean Chemerinsky to ask: “Can the House of Representatives have standing when the Executive Branch refuses to argue the case?”
If her case is dismissed on standing grounds, Windsor would win because she won in the lower courts, said the dean. But section three of DOMA would remain law, so each same sex couple with a similar tax dispute would need to bring their own individual lawsuit. Alternately, President Obama could write an executive order indicating that he deems section three to be unconstitutional. Historically, Chemerinsky notes, the Supreme Court has been careful not to allow members of Congress to sue, as was established in Raines v. Byrd in 1997. Asked whether hearing the case despite its imperfect standing grounds would set a dangerous precedent for the high court, Dean Chemerinsky responded, “It depends on how they write it.” The dean went on to theorize about Hollingsworth that the Ninth Circuit had written their opinion in such a way so that the high court would not take it for review. “The Ninth Circuit said California extended the right to marry but Proposition 8 took it away from same sex couples. I think they wanted it to be just about California.”
Dean Chemerinsky ended his talk by commenting on the political postures of the justices themselves. Noting that Justice Kennedy wrote the majority opinion in both Romer v. Evans and Lawrence v. Texas, two crucial gay rights cases, the dean said, “Kennedy wants to be on the right side of history. 70% of voters under 35 support gay marriage.” In oral arguments, Justice Kagan had asked about animus and prejudice, poking holes in the idea that uniformity in federal law with regards to gay marriage is allowable when heterosexual marriage is treated as a state legislation issue. She was questioning the line between “legitimate state needs versus stereotypes and prejudices,” said the dean. On Justice Roberts, the scholar noted that this justice’s decisive vote in the recent Affordable Care Act case proves that he is “a pro-business justice, not a pro states’ rights justice,” citing the 850 billion dollar insurance industry for proof of as much. Regarding Justice Scalia and the textualist posture in general, Dean Chemerinsky simply asked, “Does the Constitution mean the same thing today as when it was adopted? No. That’s an irrelevant question.”