Tuesday, August 10, 2010

Rationality Review

By Mike Dorf

Understandably, most of the news coverage of Perry v. Schwarzenegger has focused on the bottom line: A court found a constitutional right to same-sex marriage.  But some of the coverage that has gone deeper has managed to convey a half-truth: The notion that Judge Walker declined to reach the question of what level of scrutiny applies to laws denying same-sex couples the right to marry.  (I don't have quotations or citations handy but I've seen this line.)  That's a half-truth because while Judge Walker said that Prop 8 flunks rational basis review, he also made clear that it needs to pass something more like strict scrutiny--both because marriage is a fundamental right and because Judge Walker finds all the prerequisites for the conclusion that sexual orientation is a suspect classification.  I make the latter point in my column.  Here I'll add two observations.

First, Perry was a somewhat unusual case in that the gay-rights plaintiffs actually asked for strict scrutiny.  For many years, the litigation strategy of the gay rights movement was to argue that the courts didn't need to reach the question of what level of scrutiny applies because the challenged laws failed rational basis review.  This was a winning strategy in both Romer v. Evans and Lawrence v. Texas, neither of which expressly applied heightened scrutiny, but neither of which exactly applied conventional rational basis scrutiny either.  But why didn't gay rights lawyers argue in the alternative that: a) heightened scrutiny should apply (under either due process or equal protection or both, depending on the nature of the case; but that b) even if mere rational basis scrutiny applied, the challenged law or policy failed?  My sense--based on numerous conversations with movement lawyers over the years--was that making argument a) was deemed too risky.  If we got to the Supreme Court with a heightened scrutiny claim too soon, the logic went, we could blow the whole thing.  I also think this approach was partly based on the calculation that Bowers v. Hardwick was inconsistent with heightened scrutiny--although that notion should have been dispelled by 1996, when the Court decided Romer.  It was clear then that the Court would not treat Hardwick as much of an obstacle to reaching what it deemed a just result in a discrimination case.  In my column, I noted my sense that the mainstream gay rights organizations were a bit miffed that Ted Olson and David Boies filed without prior approval.  That miffedness may have also extended to the fact that Olson and Boies argued for heightened scrutiny, but if so, it seems misplaced.  If there was ever a good reason to rely solely on rational basis scrutiny, there no longer is--certainly not with respect to marriage, where the fundamental rights argument is quite strong.

Second, I think it's somewhat unfortunate that Judge Walker relied on rational basis scrutiny to invalidate Prop 8.  It's one thing to say that a majority of the voters in a state voted for a law that can't withstand rigorous judicial scrutiny.  It's quite another to say that they voted for a law that was completely irrational.  Traditional rational basis scrutiny is incredibly deferential to asserted state interests.  Is there a rational basis for banning same-sex marriage?  If I were trying to defend Prop 8 (a job which I don't want and won't be offered), I think I'd say something like this: The law serves to maintain a traditional line for fear of starting down a slippery slope to official state recognition of polygamy and other relationships (such as two or more Platonic friends who want to be "married").  Is that a good basis for denying a right to same-sex marriage?  I think not, but is it completely irrational?  Laws have passed traditional rational basis scrutiny even if they were based on demonstrably false assumptions, so long as those assumptions could have been true.  And it could be true that same-sex marriage will lead to polygamy in the sense that such a state of the world would not violate any of the rules of logic or the known laws of science.  So, I think Prop 8 probably should survive rational basis scrutiny, and it's unfortunate that Judge Walker's opinion will, for the time being anyway, cast the issue as whether the supporters of Prop 8 are irrational morons or lunatics.

It should be enough to say that Prop 8 violates the basic civil rights of LGBT Californians.  That broader holding could be readily defended without the need to insult Prop 8's supporters.  Thus, we have a case in which an attempt at minimalism--here only applying rational basis review--backfires.  (In case there's any doubt, I say all of this as a longstanding proponent of full marriage equality and as someone who thinks that Judge Walker decided the merits correctly.)


Rick said...

It’s interesting to note that Judge Walker, while concluding strict scrutiny is warranted, applied the rational basis test. But I actually think this is a strategic and wise move on his part. In so ruling, Judge Walker has built a solid factual record to allow for the possibility of a heightened review if the higher courts so choose, and at the same time, has minimized the chance of an outright reversal for applying the wrong standard of review. Perhaps this is the best that a trial judge can do to achieve both of those goals.

The polygamy argument sounds a lot like the "massive disruption of the current social order" that Scalia decried in his dissent in Lawrence v. Texas. But if Scalia’s assertion that decriminalizing gay sex could lead to gay marriage did not pass the rational basis test back then, how would the polygamy argument today?

In short, it seems a bit simplistic to say that Judge Walker’s attempted minimalism “backfires” simply because it might be construed as an insult of Prop 8's supporters.

Michael C. Dorf said...

1) The factual findings made by Judge Walker about things like whether LGBT Americans have suffered a history of discrimination relate to so-called "legislative facts," i.e., issues about questions of law. It is highly unlikely that they will receive any deference on appeal (except by a court already inclined to agree). So the factual record on such questions is likely to be irrelevant. (Facts about things like the motives for the sponsors of Prop 8 are different, but they mostly don't relate to the question of what level of scrutiny applies.)

2)Lawrence did not apply conventional rational basis scrutiny. That's why many of us thought that decisions by lower courts characterizing it that way (like the 11th Cir decision rejecting a right to sex toys) were being disingenuous. Justice Scalia's parade-of-horribles might well have been enough to satisfy conventional rational basis scrutiny, which is essentially toothless. It says the actual facts don't matter at all, so long as the reviewing court can imagine a state of affairs in which the evils invoked by the law's defenders could come to pass. Can we imagine a world in which polygamy is found to be a constitutional right? Of course.

3) Perhaps what you should be saying is that the defenders of Prop 8 and like-minded Americans more broadly won't be offended because they're utterly unaware of the content of conventional rational basis scrutiny or any other constitutional doctrine. I'll give you that, but I still think the term "irrational" standing alone is likely to be seen as insulting.

Joe said...


How did pre-Prop 8 CA set up a slippery slope to official state recognition of polygamy? Note that same sex relationships already had "official state recognition" -- that's what domestic partnership is.

Given domestic partnership protection of the breadth in CA, how is this a rational basis in CA? And, what "other" relationships are we talking about? Domestic partnerships for those over 62, which CA also recognizes?

Anyway, since he considered it sex discrimination, rational basis review won't cut it, even if he said it was enough. By calling it sex discrimination, he basically set up heightened scrutiny.

Joe said...

Also, if it was really the so-called rational basis with teeth found in Lawrence et. al. (particularly when it is tainted with discriminatory animus, apparently), he was just using terminology in this area that the Supreme Court itself used. How can one find fault with him on that?

Michael C. Dorf said...


1) I tried to make it abundantly clear that I don't think it's likely that legal same-sex marriage will lead to legal polygamy. In fact, I think it's extraordinarily unlikely (although the fact that it didn't happen yet is hardly ironclad proof that it never would). In any event--as I said as clearly as I knew how--the actual facts and likelihoods based on them simply don't matter under conventional rational basis scrutiny, for which the facts are irrelevant. Here's a quote from a typical S Ct rational basis case: "a legislative choice is not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data."

2) I'm (mostly) not finding fault with Judge Walker's opinion. I'm lamenting the confusion introduced into the doctrine--mostly by the Supreme Court in Lawrence but also in Romer and the Moreno and Cleburne cases before that--of using the language of an extremely deferential test in a way that is not in fact deferential. This has had pernicious consequences because lower court judges who are hostile to civil rights claims then invoke the tests in their conventional form.

Publius the Clown said...

I haven't been able to read Judge Walker's opinion yet, but I've read a good deal of commentary on it (including what you've written here and on FindLaw). As someone who supports gay marriage as a policy matter but doesn't think that prohibiting it is unconstitutional, I have a few thoughts.

First, as you suggest, and as Justice Scalia's persuasive dissent in Lawrence would imply, a law like Prop 8 should survive the standard application of rational basis scrutiny. If the promotion of traditional sexual morality (however incorrect in this particular instance, in your eyes or mine) can't provide a rational basis for a law, then laws against polygamy, incest, etc. must fall. That's not in any way to equate those activities with being gay; it's just that, if you apply the principle that the Lawrence Court announced across the board, you reach that absurd result.

Second, for a similar reason, I think that basing the decision on marriage as a fundamental right, or on the Equal Protection Clause, fails. The fundamental right analysis begs the question: why does the marriage right extend to gay people? Any answer that a court gives should be subjected to this follow-up question: what legal principle prevents the right to marry from being extended to a brother and a sister who wish to marry, or to a polygamous trio?

You suggest in your FindLaw column that societal values could provide the answer. But that just sounds like inviting a court to usurp the power to make policy from the legislative branch (particularly when you've stepped out of the Eighth Amendment context--although I disagree with using societal standards even there, there's an at least colorable basis in the text of the amendment for that reading).

And under the Equal Protection Clause, on what constitutional basis do we apply heightened scrutiny to gays and lesbians? The sex discrimination argument is clever, since it implicates Loving v. Virginia (where the Court correctly held that, even if a marriage statute could be neutrally applied between races, it needed to be subjected to heightened scrutiny because it made a racial classification). But whereas Loving was about race, and only about race, sexual orientation discrimination is a conceptually distinct category from sex discrimination, and, although I'm morally opposed to that form of discrimination, I don't think the Constitution codifies my moral opposition. (Of course, there's a strong argument that the Equal Protection Clause only protects against race-based classifications, but that's an argument for another time.)

Third, notwithstanding the above analysis, the result that Judge Walker reached was correct under Supreme Court precedent set forth in Lawrence. Had I been in his shoes, my opinion would have looked very different, but I would have been duty-bound to reach the same conclusion: Prop 8 is unconstitutional because traditional sexual morality cannot provide a rational basis for legislation.

Michael C. Dorf said...

Publius: Thanks for your comment. I won't respond to all of it but just a couple of thoughts:

1) I've actually suggested (God and Man in the Yale Dormitories, 84 VA L Rev 843 (1998), that laws against polygamy are constitutionally problematic, unless justified by some concrete notion of harm that is probably covered by other laws, such as those involving coercion and minors. I was moved to that position by a former student who came from a Fundamentalist LDS family. I do think, however, that the state has legitimate interests regarding polygamy (governing benefits, for example) that are absent for 2-person marriages.

2) I think that the Loving analogy is quite tight. For reasons well articulated by Andrew Koppelman, among others, (and also picked up a bit in Judge Walker's opinion), it's not just that denying a right to same-sex marriage is literally sex discrimination; sexual orientation discrimination is fundamentally about policing sex roles; so I regard sexual orientation discrimination as a kind of subset of sex discrimination.

Mortimer Brezny said...

I think a stronger argument is simply that heterosexuals have kids by accident and we have to give them cash incentives to raise their children right. Marriage is a social institution by which we dispense the funds. That's not a reason to exclude gay families, but it's a reason why they haven't been included and why the focus is heterosexual exclusive. One could further say that including gays and lesbians should only be done legislatively or through a ballot initiative. Those sound like rational-bases to me.

Rick said...


Generally, you are right about the unnecessary courtroom fact-finding for rational basis review. But the context is relevant. When it comes to gay rights and challenging a ballot initiative, fact-finding may indeed be highly relevant to rational basis review such as in Romer v. Evans. Thus, I don’t buy the prevailing wisdom of law professors who believe factual record in Prop 8 case is largely irrelevant.

Moreover, I, for one, can’t imagine a world in which polygamy is found to be a constitutional right—at least not under rational basis review. The fear of gay marriage is irrational because it harms NO ONE IN ANY WAY (and thus a law banning gay marriage is irrational), whereas the fear of polygamy might be understandable because it could harm the interests of women and children (and thus a law banning polygamy would survive rational basis).

Sam Rickless said...

I agree with you that it is unfortunate that Walker argued that Prop 8 flunks the Rational Basis Test with respect to application of the EP clause. It doesn't. What Walker's opinion shows is that *the evidence presented at trial* does not support (and indeed, argues against) the existence of any rational relationship between discriminating on grounds of sexual orientation and any legitimate government interest. But all that the Rational Basis Test requires is some *conceivable* rational relationship, and this surely exists (as you point out, pointing to the slippery slope towards the legalization of polygamy).

The problem is that Walker had only two other options. The first was to make the case that LGBT is a suspect classification (like race), and then apply strict scrutiny. The second was to argue that LGBT is a quasi-suspect classification (like sex), and apply intermediate scrutiny. But it is not *clear* that LGBT is a suspect or quasi-suspect classification. The main stumbling block here is the question of political powerlessness. Although the LGBT community is a minority, there is at least some evidence that it has sufficient political power not to count as politically powerless for purposes of applying the categories of suspectness and quasi-suspectness. (It is also difficult to argue that the LGBT community is "discrete" or "insular".)

Walker probably saw that going down this road would risk a nitpicky SCOTUS decision finding that LGBT is not a suspect or quasi-suspect classification, that rational basis applies, and that Prop 8 passes that test. Better to argue that Prop 8 is based on fear, or animus, or a sense of moral superiority, none of which counts as rational. This is the sort of argument that resembles the arguments to be found in Romer and in Lawrence, arguments that persuaded Kennedy (the lone swing justice on this issue now) to invalidate laws discriminating on grounds of sexual orientation.

Just for the record, I think that the entirety of "suspect" and "quasi-suspect" SCOTUS jurisprudence, which has its origins in a not-particularly-well-thought-out footnote in a case that did not bear on the relevant issues directly, is irremediably flawed. Whether a class has suffered a history of discrimination, whether it is politically powerless, whether it is a discrete or insular minority, and whether the trait defining the class is immutable, should all be irrelevant for the purpose of applying the EP clause. What matters is whether a law denies equality of opportunity on the basis of a morally irrelevant characteristic.

Joe said...

1] The question is in the spirit of rational basis review -- I realize YOU don't think so. But, you spoke of "state recognition," and the state already recognizes same sex unions. Polygamy is also generally heterosexual. The amendment doesn't limit all tradition -- marriage continues to change. Would holding the traditional line in any area rationally be defended to stop polygamy, because changing tradition might affect everything else?

As to evidence, Emily Bazelon's new piece at Slate cites Andrew Sullivan on the point in response to Orin Kerr that puts a bit of a spin on that.

2] Unfortunate or not, a district judge in effect really has to follow the SC's path, even if it is messy in some fashion. Lawrence probably could have found some sort of "rational" reason too (to prevent same sex marriage! see Scalia) but it didn't. So what is Walker to do?

The best thing to do is to be honest about what is going on here. In certain areas, especially where there is some evidence of discrimination, "rational" means more. And, honestly, the polygamy scenario is a bit laughable, it is really "irrational." If that is what "rational" is going to lead us, it's fasle adverstising too.

Joe said...

"If the promotion of traditional sexual morality ... can't provide a rational basis for a law, then laws against polygamy, incest, etc. must fall."

There ARE reasons other than "traditional sexual morality" that provide at least a rational basis for laws against polygamy and incest, at the very least in many cases.

Consent and family harmony, for instance, provide "rational" reasons against incest. It is another question if intimate association is a fundamental right, therefore a higher test is necessary.

C.E. Petit said...

There's another issue here on "how much deference" that has remained largely unexamined. In a legislative act, legislatures are quite fond of including "findings of fact" in the legislation itself, which then gets accepted by the courts if supported by "substantial evidence" that is actually considered by the legislature. A referendum like Proposition 8, however, doesn't have that substantial evidence... which is, at least in part, behind the need for a trial here, and thus the factual record developed in front of Judge Walker.

All of which leads to an interesting hypothetical: Assume that the identical statute came before the California Legislature, and was passed on an identical record as that presented for Proposition 8. Assuming arguendo that this comported with the requirements to amend the California Constitution, what factual record would/could be developed to strike the statute? And would that factual record look much like the factual record developed against Proposition 8?

To answer my own hypothetical, the record would need to be more extensive and would have to deal explicitly with the post hoc rationalization problem in a way that wasn't necessary in the actual case. But that's just me... and I'm admittedly on the fringe regarding the validity of post hoc rationalizations by legislative bodies (that is, I reject them almost categorically instead of almost never ;-) ).

Publius the Clown said...

@Professor Dorf: I appreciate that you're taking the analysis where it leads you regarding polygamy. I also agree that there are different governmental interests at stake when it comes to polygamy (in addition to the government benefits example that you cite, once could argue that allowing polygamy would have the potential to cause far greater social friction than gay marriage).

Still, there's something strange about a "rational basis" test that puts the burden on the government to establish that laws against polygamy or incest are constitutional. The more fundamental argument is: Why can't the people's representatives outlaw practices that they consider immoral? It's strange to say that the majority's moral opposition can't serve as the basis for legislation, provided that that legislation doesn't infringe a (fundamental) constitutional right, and I don't think that the Supreme Court has used the rational basis test in such a stringent way until very recently.

Re: the Loving analogy, there's no doubt that the parallels are there. In my view, your argument, that sexual orientation discrimination is about "policing sex roles," makes a social science judgment that the Constitution doesn't empower judges to make when determining whether the Equal Protection Clause applies (although the argument might be relevant when balancing a right against government interests, if there is evidence in the record showing that those interests are in fact discriminatory, and certainly would be relevant in a policy or legislative debate).

Having said that, I think there's a more straightforward application of Loving to Perry. Just as Virginia's anti-miscegenation statute didn't discriminate between white people and black people (because neither group could marry the other), Prop 8 doesn't discriminate between sexes (because neither group can marry one of its own members). Nevertheless, the Virginia statute was unconstitutional because it "proscribe[d] generally accepted conduct if engaged in by members of different races." 388 U.S. 1, 11 (1967). As such, one could argue that Prop 8 is unconstitutional because it proscribes generally accepted conduct if engaged in by members of the same sex.

From what I can tell, Judge Walker doesn't explicitly make this argument, but it's an interesting argument. I think it's flawed because of the one notable distinction: the statute in Loving prohibited people of different races from marrying, whereas Prop 8 prohibits people of the same sex from doing so. In other words, anti-miscegenation laws separated the races, and thus constituted invidious racial discrimination, whereas Prop 8 doesn't separate the sexes. That's why I think that sexual orientation discrimination is conceptually distinct from sex discrimination, which (akin to racial discrimination) involves either treating the sexes disparately or separating the sexes.

@Joe: You argue that "[c]onsent and family harmony, for instance, provide 'rational' reasons against incest." I agree that consent is an argument against incest involving minors--incest in such contexts is statutory rape, so a prohibition on it would survive even strict scrutiny. (In my first comment, I used "incest" as shorthand for "incest between consenting adults.") But "family harmony" is the sort of justification that could be harnessed against gay marriage as well--some people feel that family harmony is disrupted in the absence of either a mother or a father. I disagree, but we're talking about rational basis analysis here--mere policy disagreements with a position don't prevent it from being a rational basis for legislation.

Marilyn Wise said...

I am an LGBT lawyer in the Los Angeles area, and a volunteer at the Los Angeles Gay & Lesbian Center. I have spoken with members of three marriages, all female, who live out of state and came to California simply to get married between June and November of 2008. They want to get divorced, but their states don't recognize same sex marriages, and California has a 6-month residency requirement. If the same-sex marriages are allowed in the future, I am wondering if the annulment statute should be revised to allow these couples to divorce without California residency or the personal testimony usually required for an annulment (although I have never seen any written law requiring such testimony). The domestic partner statutes require the partners to agree to California jurisdiction for dissolution, avoiding this problem. An interesting issue.

Michael C. Dorf said...

Great comments, all. Once again, I'll triage by making only 2 points:

1) There is a deep problem whichever way one goes on the question Publius raises: whether morality as such is a rational basis for a law. Any law can be justified by the claim that the people who support it view the conduct it forbids as immoral, so if morality is a rational basis, then nothing ever flunks rational basis scrutiny. But on the other side, if we reject morality as a possible rational basis, then we are saying that something like the harm principle is constitutionally obligatory, which looks like something much more serious than rational basis review. Traditional rational basis review comes closer to the position Publius espouses than to the one that Judge Walker espouses but I don't think it goes all the way there.

2) Marilyn Wise's comment reminds me that there are a host of fascinating federalism issues raised by family law, and makes me feel sheepish about not knowing much about them.

Now, onto my next post . . . .

Publius the Clown said...

Hi, Professor, just a quick response--I think courts can avoid the pitfall you associate with my position by identifying moral justifications that are clearly pretextual--for instance, because the espoused morality doesn't exist (i.e., suppose a state passed a law making it a crime to wear a plaid shirt, and the state tried to defend it in court by claiming that wearing a plaid shirt is "immoral"). That weeds out laws that aren't rationally related to a genuine moral belief. Laws that are rationally related to a legislative majority's genuine moral belief should pass the rational basis test anyway.

Joe said...
This comment has been removed by the author.
Joe said...


The evidence of this is weak, however, vis-a-vis in respect to incestuous unions. Also, since CA allows same sex couples to adopt and raise children, single parents, and so forth, the absence of a mother or father doesn't work. They allow that in CA.

This is part of my argument with Prof. Dorf. "Rational basis" can't just be a matter of just making **** up. There has to be a credible reason there given the situation. It's a weak test, but it is still a test. To say polygamy is threatened in the CA context makes it a joke.

As to your consent point, as with other power differential situations (to cite just one aspect), consent can be deemed imperfect across the board in incestuous unions. Again, this concern doesn't pop up in homosexual unions in particular.

Again, incest has a rational basis, even if perhaps not a compelling basis. Homosexual restrictions do not.

Joe said...

"weak" may be too generous actually.

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