Rick Santorum Demonstrates Constitutional Ineptness

Republican presidential candidate Rick Santorum objected strenuously to the Ninth Circuit’s ruling that California’s Proposition 8 violated the Fourteenth Amendment’s Equal Protection Clause. Santorum objected, for one thing, to the court’s ruling that “a constitutional amendment” was unconstitutional. He said: “Imagine that. The Constitution is unconstitutional.” More centrally, he objected to the court’s purported rationale that “there’s no rational reason that you should think that marriage is only between a man and a woman.” Focusing on the court’s judgment that Proposition 8 did not meet the “rational basis” test, Santorum derived from this that the court had concluded that “the only reason you could possibly believe that [marriage is only between a man and a woman] is because you’re a bigot or you’re a hater.” And from this conclusion, the former Senator moved quickly to the projection that President Obama was interested in “appointing justices who think that the family is simply an institution that gets in the way of government directly controlling your life.”

There is much to untangle here. First, the court’s ruling did not in any way rest on the supposition that the “Constitution is unconstitutional.” One wants to invoke Herman Cain’s “apple and oranges” metaphor here. Proposition 8, it is true, constituted an amendment to the California constitution. But the Ninth Circuit’s decision in Perry v. City and County of San Francisco, No. 10-16696 (Feb. 7, 2012), held that Proposition 8 violated the federal Constitution, which rather clearly means that the Constitution is not overriding itself. If one is considering whether the federal Constitution or a state constitutional provision prevails, it is not a difficult question. The federal Constitution unequivocally states that its provisions are “the supreme law of the land.” This rather plainly means that it overrides both state statutes as well as state constitutions, and many decisions of the United States Supreme Court make all of this quite clear and well established.

Second, it is certainly true that the decision in Perry was based on an application of the “rational basis” test frequently used to evaluate whether state law or practice denies a citizen the equal protection of the laws. This test requires the court to determine whether the state can adequately justify an arguably discriminatory policy choice. The court determined that Proposition 8 flunked this test. But it did not do so, as Santorum argues, based on analyzing the validity of the rationale that marriage is—or should be—only between a man and a woman—let alone on the view that this rationale is rooted in bigotry or hatred. The Perry court concluded that Proposition 8, by its own language—“Only marriage between a man and a woman is valid or recognized in California” —did not in general affect the substantive constitutional rights of same-sex couples “with the sole (albeit significant) exception of the right to equal access to the designation ‘marriage.’” Perry at 16. The court in Perry saw it as significant that the proposition stripped from same-sex couples a right already established by a decision of the California Supreme Court that had produced more than 18,000 same-sex marriages, all of which had been reaffirmed in the wake of Proposition 8’s adoption. Id. at 14. The court reasoned that, in the relatively narrow context of a proposition designed to take away from same-sex couples “the right to obtain and use the designation of ‘marriage’ to describe their relationships,” id. at 5, this “unique and strictly limited effect” warranted the court’s ruling “on narrow grounds.” Id. on 6. The court thus concluded that it simply need not address “[w]hether under the Constitution same-sex couples may ever be denied the right to marry.” Id. at 6.

Clearly the Ninth Circuit decision embodied the view that, at least in this relatively narrow context, the challenged proposition was apparently based on animas against gays. But equating this finding of animus with an accusation of bigotry and hatred is hyperbole at best. In an extremely non-controversial 1973 decision, the United States Supreme Court held that the requirement of equal protection “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate state interest.” U.S. Dep’t of Agriculture v. Moreno, 413 U.S. 528 (1973). The challenge there was to a federal law that sought to deny food stamps to “hippie communes” by defining eligibility in “single family” terms. There was no suggestion that the animus, reflecting irrationality and illegitimacy, necessarily embodied pure bigotry or hatred. But it still denied equal protection. Almost a decade ago, a relatively conservative member of the Supreme Court, Justice O’Connor, wrote a concurring opinion in Lawrence v. Texas, 539 U.S. 558 (2003), where she analogized to Moreno, reasoning that “[m]oral disapproval of this group [gays], like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Thus a law that prohibited only same-sex sodomy, as did the challenged Texas law, violated the Equal Protection Clause.

One can imagine a commentator contending that many who oppose same-sex marriage are just trying to support traditional families. This would then generate the claim that the animus manifest in criminalizing homosexual sodomy just is not present in the cases challenging Proposition 8—hence the idea that finding it “irrational” to oppose same-sex marriage unduly enlarges the scope of the animus forbidden by the Equal Protection Clause. But this is not an argument that Santorum can plausibly make, in light of his own expressed views. Santorum himself has analogized homosexuality to bestiality and recently advocated that we return to Don’t Ask, Don’t Tell. So a special irony of the Santorum critique is that, even if one might oppose same-sex marriage without manifesting bigotry, it seems rather clear than equating homosexuality with bestiality and insisting that gays cannot honorably serve in the military manifests little else. Politicians who in effect advocate bigotry should be reluctant to object to decisions that don’t use the term at all by characterizing the ruling as based on the harsh assessment that the law is rooted in bigotry.

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