Ilya Somin’s analysis of the 6th Circuit Court’s recent opinion upholding state same-sex marriage bans and (finally) causing a circuit split on the issue has been receiving some praise – not the least from Ilya Shapiro at Cato – and I don’t really understand why. The analysis has a couple of obvious holes.
Starting with Somin’s first point, actually – which is that Judge Sutton, who wrote for the majority, doesn’t address the sex discrimination issue.
Most egregiously, Sutton completely ignores the sex discrimination argument, even though it was in the briefs and has been endorsed by some of the previous lower court opinions on the subject.
Yeah, well, briefs don’t have to be factored into the opinion – and they frequently aren’t. Judges basically just cherry-pick the ones that support what they’re going to say anyway if they cite them, so there’s nothing to see here from that angle.
As for the lower court opinions, do let’s be clear which "lower court opinions" we’re talking about. In first place, there’s no "opinions-[PLURAL]" – just an opinion, and it isn’t even the majority opinion but rather a concurring one. The "opinion" in question comes from Judge Berzon in the 9th Circuit ruling overturning same-sex marriage bans in Idaho and Nevada, who also joined in the majority opinion. (Her concurrence starts 16 pp. in, after a separate concurring opinion.) So really all Somin has is one judge expressing an opinion that was not part of the official majority opinion – meaning it is evidently not shared by the other two judges who signed their names to that decision.
It’s also really not hard to see why the argument would be unpersuasive. For one thing, it isn’t clear that traditional marriage statutes confer two separate rights – one to "marry a man" and the other to "marry a woman." Probably they confer the right to "marry someone of the opposite sex" – a right afforded to both sexes equally. For another thing, Berzon does not address the question of how other laws that discriminate on the basis of sex have remained constitutional – for example, sex-based differences in the age of consent and marriageable age. It’s noted that a state law setting the legal drinking age differently for males and females was struck down on the basis of sex discrimination, but no explanation is provided for why Arkansas and Delaware, to name but two examples, have different ages of majority for men and women, at least where marriage is concerned. More troublingly, registration for the Selective Service, required for all males aged 18 but not even allowed for women, would seem to be a case of the federal government imposing burdens on one sex that it does not on another. No doubt Berzon thinks these things, too, are sex discrimination, but she needs to address the issue of why the various courts of the land evidently disagree.
Sutton argues at length that Baker (Baker v. Nelson 1972] is still good law, despite multiple Supreme Court decisions since then, which seem to cut against it. But Sutton completely ignores the fact that Baker was decided before the Supreme Court first ruled that gender classifications are subject to heightened intermediate scrutiny, which did not occur until Craig v. Boren in 1976. If Sutton wishes to rely so heavily on Baker’s cursory non-analysis of the same-sex marriage issue, he at least needs to explain why Baker was not superseded by Craig, and by the many other Supreme Court decisions applying heightened scrutiny to gender classifications since then (including in cases where the discrimination in question was not motivated by animus or hostility to either men or women, as such).
That would be a good point, but for it to stick Sutton would need to be convinced that traditional marriage laws impose a gender classification. For the reason given above, and as evidenced by the fact that other courts that have been confronted with this purported issue have not noticed an unconstitutional gender classification despite recognizing other constitutional challenges to state same-sex marriage bans, it’s not clear that they do.
Somin’s second point is that Sutton fails in his task of arguing that matters affecting gays and lesbians, as a social class, do not fall under heightened scrutiny.
Sutton does briefly address the claim that laws banning same-sex marriage should get heightened scrutiny because they discriminate on the basis of sexual orientation. He argues that sexual orientation discrimination should not get heightened scrutiny because gays and lesbians are not disenfranchised and are not a politically “powerless” minority
But actually, even Wikipedia can tell Somin why Sutton didn’t see the need to go beyond rational basis (see link anchored at "heightened scrutiny") for gays and lesbians: it’s because basically the Supreme Court has never held that they are a class deserving it, despite at least two opportunities in landmark cases (Lawrence v. Texas and Windsor v. United States) to say so. Moreover, contrary to what Somin implies (by failing to mention it), Sutton actually did address this point in more ways than simply saying that gays and lesbians are not powerless minorities. Like, for example, on p.45, where he quotes the passage from Windsor where the Supreme Court expressly declines to rule on the constitutionality of state marriage bans, which they presumably would have felt obligated to do had they recognized that gays and lesbians are a class entitled to heightened scrutiny. Here’s Sutton:
The Court noted that New York “without doubt” had the power under its traditional authority over marriage to extend the definition of marriage to include gay couples and that Congress had no power to enact “unusual” legislation that interfered with the States’ long-held authority to define marriage. Windsor, 133 S. Ct. at 2692–93. A decision premised on heightened scrutiny under the Fourteenth Amendment that redefined marriage nationally to include same-sex couples not only would divest the States of their traditional authority over this issue, but it also would authorize Congress to do something no one would have thought possible a few years ago—to use its Section 5 enforcement powers to add new definitions and extensions of marriage rights in the years ahead.
So, that would be "address[ing] the claim that laws banning same-sex marriage should get heightened scrutiny," then. And look, Ma, he didn’t even need to say that gays and lesbians aren’t politically powerless to do it!
The best part of Somin’s weak case, though, has got to be the part where he cites himself as an example of a "powerful originalist case for [a right to same-sex marriage]," but links instead a blog post of his that merely says that "originalism" doesn’t necessarily require us to use the understanding of the 14th Amendment that was in effect at the time it was passed if there is reason to believe that had scientific knowledge that is available now been available then the originators would have understood things differently. Basically, it’s a response to Scalia’s implication, in an exchange with Ted Olsen in the oral arguments phase of Hollingsworth v. Perry, that if the originators of the 14th Amendment did not understand homosexuals to have a right to gay marriage, then there is no equal protection argument that they do now. That’s not a very charitable interpretation of what Scalia was getting at, of course, and it’s telling that in his quotation of the exchange Somin chooses to leave out Olsen’s response, in which Olsen argues that it was the scientific notion that homosexuality is inborn that wasn’t available to the originators. Somin leaves that out because he prefers to argue from the point of view that had the originators known that gay people can raise children as well as straights, they would have upheld a right to gay marriage on that basis. So, he’s shifting the argument that he’s quoting. Not that it matters, because neither approach actually resolves the issue: the originators might as easily have understood that they were upholding the right to participate in an insitution that has fostered reproduction and childrearing – not just because straight pairs actually can biologically reproduce – in contradistinction to gay pairs – but also because it puts social pressure on them to do so. Since that has not changed, Somin’s argument doesn’t rise to the level of a "powerful originalist case for [a right to same-sex marriage]." It’s merely an argument that originalism doesn’t necessarily lead to the conclusion that there is no right to same-sex marriage – an important distinction. And of course this is not to even mention the objection (that Sutton, for what it’s worth, does mention elsewhere in his decision) that other forms of marriage – namely polygamous marriage – which definitely do foster environments for raising (typically lots of) children were understood not to be covered by the 14th Amendment at the time it was passed. Which pretty much dispenses with Somin’s supposedly "powerful" originalist argument whole cloth.
So, I don’t get what is supposedly so persuasive about this column. It looks to me instead like a simple case of academic incest. Somin likes the sex discrimination argument because he himself champions it, therefore any decision that doesn’t consider it is terrible, unless he likes the conclusion, as he did when the 9th Circuit majority failed to incorporate sex discrimination in striking down Idaho’s state SSM ban, in which case it’s kosher? Seen this show before and didn’t enjoy it much the first time either, sorry. The other two arguments – from originalism and failure to apply heightened scrutiny – basically refute themselves. There may well be problems with Sutton’s decision – certainly his tone seems … "majestic," if I can outright steal Ilya Shapiro’s phrase from his Cato column – but Ilya Somin isn’t doing a great job persuading us he knows what they are.