Good one on possible strategy using rational basis-plus to argue for gay marriage.
boston.com
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The same-sex marriage argument that Justice Scalia fears
By Emily Bazelon | May 16, 2004
WITH MASSACHUSETTS in the bag, gay marriage advocates are looking for their next victory. So far, the other states in the union haven't been easy sells -- to the contrary, their legislatures have been throwing up barricades in the form of proposed constitutional amendments preserving traditional nuptials. But if another state supreme court sneaks in a ruling in favor of gay marriage (suits are pending in New Jersey, New York, and Washington), is the Supreme Judicial Court's ruling likely to serve as an effective model?
The opinion in Goodridge v. Department of Public Health drew moral force from an historical analogy between gay marriage and interracial unions, but its legal analysis was simple. The four justices in the majority flatly said that Massachusetts had no rational basis for reserving marriage for opposite-sex couples.
There's another, stronger line of reasoning they could have used, however, one that's become a topic of intense conversation in law school circles in the past year and a half. It was developed by Pamela S. Karlan and William B. Rubenstein, law professors from Stanford and UCLA respectively, and it has a nickname: "rational basis-plus." Karlan and Rubenstein wanted to ease the way for the Supreme Court's moderates to expand equal protection law, both for gay rights and more generally. And even Justice Antonin Scalia, no friend of the concept, has signaled that their approach may be the smoothest path to winning gay marriage throughout the country.. . .
The basic question in cases like Goodridge is whether the 14th Amendment's guarantee of equal protection under the law means that gay couples have the same right to civil marriage that straight couples do. In federal court and in many state courts, equal protection cases are accorded one of two kinds of review. When people challenge a law that treats them differently because of their race, religion, or national origin, courts apply a "strict scrutiny" standard, meaning they give the law a close and skeptical look. Laws that treat people differently on the basis of gender get "intermediate scrutiny," which often amounts to the same thing.
Laws that treat other groups differently, however, receive greater deference. When reviewing a law that distinguishes between people on the basis of age, for example, courts ask only whether the state has any conceivable rational basis to justify the distinction. That bodes ill for gay marriage claims, since states can easily come up with some halfway plausible reason -- encouraging procreation, say, or preserving government resources -- for maintaining the status quo.
But there have been a few key exceptions to that definition of rational basis, and they are the starting point for Karlan and Rubenstein's alternate test. In the 1985 case City of Cleburne v. Cleburne Living Center, the city of Cleburne, Texas, denied a zoning permit to a group home for the mentally retarded by imposing construction requirements not required for other group residences. When the case arrived at the US Supreme Court, the justices rejected a lower court's decision to apply strict scrutiny, but noted that rational basis review did not leave the mentally retarded "entirely unprotected from invidious discrimination." The denial of the zoning permit still had to be "rationally related to a legitimate government purpose," Justice Byron White wrote. After reviewing the facts of the case, the court found no such purpose -- only "an irrational prejudice against the mentally retarded."
The case came up again in 1996 when the Supreme Court heard Romer v. Evans, which involved a challenge to an amendment to the Colorado constitution that ordered cities to exclude gay people from anti-discrimination legislation. Drawing on Cleburne, the Court said the Colorado amendment failed the rational basis test, because it subjected gays to "disfavored legal status" out of prejudice.
Cleburne and Romer exemplify "rational basis-plus," Karlan and Rubenstein argue. When politically vulnerable groups like gays and the mentally retarded challenged a law for discriminating against them, the Court's analysis began with the question: Does the state have a legitimate purpose for treating these people differently from others? In addition, Karlan and Rubenstein argue based on other precedents, courts should be especially careful about equal-protection challenges to laws that involve fundamental rights, like marriage. In other words, rational basis review shouldn't be a free pass for the state when the reasons for a law appear fishy, and when an important right is on the line.
Karlan and Rubenstein unveiled their theory of rational basis-plus in a friend-of-the-court brief filed on the side of the plaintiffs in Lawrence v. Texas, the 2003 Supreme Court case in which two gay men successfully challenged the constitutionality of their conviction for sodomy. "It wasn't so much that we were brilliantly saying something no one had said before," says Rubenstein. "We were taking the Court's jurisprudence over the last 15 years and putting it back together in a slightly different way, as scholars do."
Rational basis-plus didn't carry the day in Lawrence -- the right to privacy did. But in a concurrence that gave the plaintiffs a sixth vote, Justice Sandra Day O'Connor interpreted Cleburne and Romer just as Karlan and Rubenstein had (though she didn't give them credit). "When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause," she wrote.
Yet if O'Connor opened the door for rational basis-plus, she didn't exactly invite it to stay for tea. In her concurrence, O'Connor tacked on a concluding paragraph saying that rational basis-plus didn't mean that states would be forced to grant marriage licenses to gay couples. In light of the state's interest in "preserving the traditional institution of marriage . . . other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group," she asserted.
But O'Connor may be overconfident in thinking that rational basis-plus stops exactly where she says it does. Or at least that's what Justice Scalia thinks. "`Preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples," Scalia pointed out in his dissent. O'Connor's reasoning, he continued, left state marriage laws "on pretty shaky grounds."
Scalia's comment was meant to be alarmist rather than celebratory. But Scalia was effectively suggesting a promising strategy for gay marriage advocates to try in other cases. In effect, rational basis-plus neatly shifts the burden of challenging laws governing marriage and other basic rights from the plaintiff onto the state. In other words, judges employing rational basis-plus must think about whether the state's reasons for restricting marriage to opposite-sex couples are legitimate -- meaning unrelated to prejudice -- and about whether the law will really serve the purpose the state says it will.
Consider in that light Massachusetts's best rationale for preserving its marriage laws: the claim that families headed by a mother and a father provide the "optimal setting" for childrearing. No one argues with the state's interest in protecting child welfare. And so far, the scant studies that have been done on the welfare of kids raised in gay households are inconclusive.
According to regular old rational basis review, that would be the end of the story -- as Justice Martha Sosman pointed out in her dissent. The state has a reason for excluding gay couples from civil marriage -- helping to ensure that kids have both a Mom and a Dad -- and the plaintiffs can't show that it's not a good reason, or at least good enough for now.
But if the state has the burden of proof, as rational basis-plus implies, then the inconclusive nature of the studies becomes the state's problem. And even if there is some evidence that children raised in gay households have more trouble, the state can't change the fact that there are already between 160,000 and 2 million such children nationwide (there's no precise count). Wouldn't those kids be better off if the state allowed their parents to marry, given the hope of greater stability that marriage brings?
The Massachusetts SJC more or less applied rational basis-plus in Goodridge -- but without saying so. The majority concluded that the disconnect between traditional marriage laws and the protection of public welfare "suggests that the marriage restriction is rooted in persistent prejudices." This echoes the line of thinking that Karlan and Rubenstein have in mind.
But the SJC never called on Cleburne or Romer, or any related Massachusetts cases, to explain the legal precedents for rational basis-plus. Nor did the court explain why the facts warranted a heightened standard of review. Perhaps the justices thought that relying on a relatively new legal concept would only make Goodridge more controversial.
Whatever the rationale, the missing link left the majority wide open to attack. "As a matter of social history, today's opinion may represent a great turning point that many will hail as a tremendous step toward a more just society," Justice Sosman wrote in her dissent. "As a matter of constitutional jurisprudence, however, the case stands as an aberration. To reach the result it does, the court has tortured the rational basis test beyond recognition."
But if courts make a case for why they need to apply a heightened standard of review in order to stop prejudice against unpopular groups, they won't be torturing the rational basis test. They'll be improving it. That wouldn't just put gay marriage on solid legal footing. It would also open up the possibility of rethinking the artificially fixed boundaries of anti-discrimination law, which would bring other vulnerable groups in from the cold as well.
Emily Bazelon is a senior editor at Legal Affairs magazine. |
