A headspinning pair of decisions regarding state same-sex marriage (SSM) bans last week may have brought the issue one step closer to the Supreme Court. On Wednesday, Federal District Judge Martin Feldman upheld the Louisiana ban in Robicheaux v. Caldwell. Snapping a remarkable winning streak for plaintiffs challenging state bans, Feldman’s ruling was the first decision by a federal court upholding a state SSM ban since the Supreme Court invalidated Section 3 of the Defense of Marriage Act in United States v. Windsor in June 2013.
But if marriage equality advocates were left reeling by Robicheaux, they did not need to wait long for reassurance. The very next day the U.S. Court of Appeals for the Seventh Circuit invalidated the Indiana and Wisconsin bans in Baskin v. Bogan. Judge Richard Posner wrote the opinion for a unanimous three-judge panel.
The 80-year-old Judge Feldman and the 75-year-old Judge Posner were both appointed to the federal bench by President Ronald Reagan, and each wrote a spirited opinion. But despite superficial similarities in background, the two jurists are very different in outlook and stature, as their opinions reflected.
Feldman’s Robicheaux opinion is an eloquent if reactionary potpourri, trotting out claims that conservative judges and commentators have made for at least last six decades to oppose everything from racial desegregation to women’s rights: that tradition suffices to support state legislation on social matters; that courts should not interfere with fractious state democratic processes; and that judges who rule for civil rights plaintiffs give in to “empathy” and “pathos,” rather than being guided by the cold hard logic of the law.
But a side-by-side comparison of the judges and their opinions shows Feldman to be overwhelmingly outgunned by Posner. Feldman is a capable wordsmith repeating tired bromides that have little purchase on the issue of SSM bans. Posner is the greatest judge of his generation and one of the two most influential American judges never to sit on the Supreme Court. (Learned Hand was the other.) His careful dissection of the states’ arguments in support of their SSM bans reveals that it is the supporters of such bans, not the judges who find them unconstitutional, who are governed by pathos and unreason.
Grounds for Invalidating SSM Bans
The many judges who have voted to strike down state SSM bans since Windsor have relied on a number of rationales, singly and in combination: Supreme Court case law recognizes marriage as a “fundamental right” that can only be subject to the most compelling limitations; distinctions based on sexual orientation are subject to exacting scrutiny because LGBT Americans are a traditionally subordinated minority, similar in important respects to African Americans and women; and most commonly, laws barring SSM lack even a rational basis, the minimum requirement for all legislation.
Judge Posner’s Baskin opinion does not address the fundamental right issue, and while it strongly gestures in the direction of treating sexual orientation as a suspect classification, it ultimately rests on the sheer irrationality of the Indiana and Wisconsin bans.
Under a line of Supreme Court precedents that includes the leading gay rights cases, mere prejudice against a minority group cannot count as a rational basis for legislation. Accordingly, lawyers charged with defending SSM bans in court cannot and generally do not point to ugly stereotypes of gays and lesbians. But that has left them struggling to come up with any rational explanation for the bans.
For a time, lawyers argued that SSM bans served to “protect” or “defend” traditional opposite-sex marriage, but states have lately dropped this argument because, on inspection, it is simply an indirect means of expressing prejudice. SSM is only a threat to opposite-sex marriage if the participation in marriage by gay and lesbian couples somehow taints the institution of marriage, but how can that be so, unless one thinks that there is something debased about same-sex couples or same-sex attraction?
Three Weak Arguments for Upholding SSM Bans
Lawyers defending the SSM bans have thus shifted to three chief claims. First, following a strategy laid out in the Windsor dissent of Chief Justice John Roberts, they point to language in the majority opinion in that case reaffirming the state’s traditional role in defining marriage. Although Judge Feldman accepted this reasoning in Robicheaux, most judges have rejected it, and with good reason. In Windsor, considerations of federalism aligned with the plaintiffs’ interests in equality; yet, even then, as I explained recently on my blog, the case makes the most doctrinal sense if the federalism interest is understood as subsidiary to the equality interest. Where federalism cuts against constitutional protection for equality—as it does in the cases challenging state SSM bans—equality properly prevails.
Second, lawyers defending SSM bans point to an undifferentiated interest in “tradition.” Yet Judge Posner’s Baskin opinion explains that traditions may be beneficial, harmless, or harmful; tradition qua tradition is not a state interest. He notes that the longstanding tradition, dating to colonial times, of laws banning interracial marriage, did not prevent the Supreme Court from invalidating an anti-miscegenation statute in the 1967 case of Loving v. Virginia.
Judge Feldman writes that Loving can be distinguished from the SSM cases “because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil,” but that the Amendment says nothing about sexual orientation. That would be a fair point if it were true, but it is obviously false, as readers can confirm for themselves simply by reading the Fourteenth Amendment. It does not “expressly” mention race at all. The best that can be said about Judge Feldman’s gross error is that Justice Antonin Scalia made the same blunder long before he did.
When pressed for some concrete justification for SSM bans beyond the airy invocations of federalism and tradition, the bans’ defenders have offered a third claim—that marriage can be restricted to opposite-sex couples because only opposite-sex couples can procreate accidentally, and state recognition of marriage is designed to ensure that the accidental offspring of heterosexual sex will be raised in stable two-parent homes.
In an effort to be charitable to the accidental procreation argument, Judge Posner draws an analogy: Even though bicyclists might want the benefits of driver’s licenses, the state only issues such licenses to motorists, because the state’s safety interest in licensure only extends to the relatively more dangerous motor vehicles, not to the relatively benign bicycles. Nonetheless, Judge Posner ultimately shows that the accidental procreation claim has no more merit than the federalism or tradition claim.
Judge Posner’s Judicial Jujitsu
The accidental procreation argument is difficult to take seriously because most people understand the contemporary institution of marriage as serving many other functions. And Judge Posner shows that the states themselves do not really take the argument seriously. All states permit infertile opposite-sex couples to marry. Moreover, as Judge Posner notes, in Indiana, “elderly first cousins are permitted to marry because they can’t produce children [but] homosexuals are forbidden to marry because they can’t produce children.”
Following up on a line of questioning he initiated at oral argument late last month, Judge Posner, in a kind of judicial jujitsu, turns the accidental procreation argument against the proponents of SSM bans. If the state is concerned about providing stable two-parent homes for the children produced by accidental procreation, he says, then it should permit same-sex couples to marry, because same-sex couples are in fact the adoptive parents of thousands of those very accidentally created children. The fact that it does not is further evidence that the state does not really deny the right to SSM out of concern about accidental procreation.
I have no doubt that when a SSM case reaches the Supreme Court—very likely in the upcoming Term—lawyers defending the bans will concoct some answer to Judge Posner’s unmasking of the accidental procreation argument. Perhaps they will say that under traditional rational basis scrutiny, a state may tackle a social problem one step at a time, and that the state’s SSM ban is a step that rationally addresses only the initial predicament of accidental procreation.
Such an answer would be flawed on its own terms, as I elaborate in a blog post accompanying this column. But there is a much more fundamental problem with the accidental reproduction argument and, indeed, with all of the arguments state lawyers have lately invented to defend SSM bans: they are, quite obviously, post-hoc rationalizations for state policies that are motivated by prejudice against gay and lesbian couples, plain and simple.
In a justly famous 1960 law review article, the late civil rights lawyer and legal scholar Charles Black answered the contention that Jim Crow was separate but equal in this way: “if a whole race of people finds itself confined within a system which is set up and continued for the very purpose of keeping it in an inferior station, and if the question is then solemnly propounded whether such a race is being treated ‘equally,’ I think we ought to exercise one of the sovereign prerogatives of philosophers—that of laughter.”
The denial of the right to marry to same-sex couples is not Jim Crow, but it is no less obviously a denial of the equal protection of the laws. As Judge Posner’s opinion shows, the arguments against marriage equality are laughably bad. They would be funny, if their consequences were not so serious.
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