Scalia was right

As Caleb Crain pointed out way back in 2003, Antonin Scalia’s dissent in Lawrence v. Texas, which struck down Texas’s anti-sodomy laws, argues that the majority’s reasoning leaves the federal government without any constitutional way of forbidding gay marriage.

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring”; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?

I think Scalia meant to weight the contrapositive a little more than the direct implication, but hey, the two are equivalent, and it looks like he was right.

Update:  Just to give this a little more context:  It might look from this excerpt like Scalia is saying “gay marriage is obviously terrible and this decision would make it unconstitutional for Congress to outlaw gay marriage, therefore the decision is wrong.”  But in fact Scalia is responding here not to the Court’s main opinion in Lawrence, but to Sandra Day O’Connor’s concurrence, in which she goes out of her way to explain that her vote here should not be taken as precedent for establishing same-sex marriage as a constitutional right, no way, no how; while “moral disapproval” is not a legitimate state interest, she says rather vaguely that  “other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group,” and that these reasons, whatever they are, mean that laws forbidding same-sex marriage are constitutional.

Scalia’s dissent says, and I paraphrase, “You’re kidding yourself, Day-O —  if there’s no legitimate state interest in forbidding sodomy to same-sex couples while allowing it for opposite-sex couples, then there’s no legitimate state interest in forbidding marriage to same-sex couples while allowing it for opposite-sex couples, and you shouldn’t allow yourself to pretend otherwise.”  And he was right!

 

 

California prayer agency, Earth-2 Lawrence v. Texas

Continuing from the last post, here’s a test case for the view that judges applying the “rational basis” must defer completely to referenda.

Suppose the voters of California pass a referendum instituting a state agency which employed people to pray to Jesus for the health of sick Californians.  Can a judge declare this a 1st amendment violation, or not?  Surely prolonging the lives of thousands of citizens constitutes a legitimate state interest, and, per Kennedy’s opinion in the last post, it is not the government’s responsibility to provide evidence that the referendum would aid that interest, nor the judge’s responsibility to consider such evidence.  On what basis could the referendum be unconstitutional?

Actually, looking this up, it seems that a law violating the Establishment Clause triggers (at least sometimes) “strict scrutiny,” a more stringent requirement than “rational basis.”  I expect the referendum above would be axed on that basis.   Racially discriminatory laws have to pass strict scrutiny as well.   But discrimination against gays triggers only the weaker rational basis test.

Justice O’Connor wrote in her concurrence in Lawrence v. Texas that Texas’s law forbidding same-sex sodomy failed the rational basis test, because it was motivated solely by moral disapproval, rather than by a legitimate state interest.”  (By the way, O’Connor writes in the same opinion that “preserving the traditional institution of marriage” is a legitimate state interest.)

Question: Suppose the lawyers for Texas had argued, without providing any evidence, that the state felt same-sex sodomy was more likely than opposite-sex sodomy to promote unspecified disease.  Would the law have still been held unconstitutional?  Or would it have met the rational basis standard?

Gay marriage and the null hypothesis

Two controversial topics in one post!

Orin Kerr this week on Perry vs. Schwarzenegger:

Several of the key factual findings in Judge Walker’s opinion are in the form of predictions, not facts. For example, Judge Walker finds that “permitting same-sex couples to marry will not . . . otherwise affect the stability of opposite-sex marriages.” But real predictions have confidence levels. You might think you’re going to get an “A” on an exam next week, but that’s not a fact. It’s just a prediction, and there’s a hidden confidence level: Maybe there’s an 80% chance you’ll get that grade, or a 60% chance. Judge Walker’s prediction-facts have no confidence levels, however. He doesn’t say that there is an 87% chance that permitting same-sex marriage will not affect the stability of opposite-sex marriages. He says that it is now a fact — with 100% certainty — that that will happen.

I think Kerr is incorrect about Walker’s meaning.  When we say, for instance, that a clinical trial shows that a treatment “has no effect” on a disease, we are certainly not saying that, with 100% certainty, the treatment will not change a patient’s condition in any way.  How could we be?  We’re saying, instead, that the evidence before us gives us no compelling reason to rule out “the null hypothesis” that the drug has no effect.  Elliott Sober writes well about this in Evidence and Evolution.  It’s unsettling at first — the meat and potatoes of statistical analysis is deciding whether or not to rule out the null hypothesis, which as a literal assertion is certainly false!  It’s not the case that not a single opposite-sex marriage, potential or actual, will be affected by the legality of same-sex marriage; Walker is making the more modest claim that the evidence we have doesn’t provide us any ability to meaningfully predict the size of that effect, or whether it will on the whole be positive or negative.

This doesn’t speak to Kerr’s larger point, which is that Walker’s finding of fact might not be relevant to the case — California can outlaw whatever it wants without any evidence that the outlawed thing causes any harm, as long as it has a “rational basis” for doing so.  The key ruling here seems to be Justice Kennedy’s in Heller v. Doe, which says:

A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. “[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”

and later:

True, even the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation.

I’m in the dark about what Kennedy can mean here.  If speculation is unsupported by evidence, in what sense is it rational?  And what “footing in the realities of the subject” can it be said to have?

More confusing still:   in the present case, the legislation at issue comes from a referendum, not the legislature.  So we have no record to tell us what kind of speculation, rational or not, lies behind it — or, for that matter, whether the law is intended to serve a legitimate government interest at all.  Maybe there is no choice under the circumstances but for the “rational basis” test to be no test at all, and for the courts to defer completely to referenda, however irrational they may seem to the judge?

(Good, long discussion of related points, esp. “to what extend should judges try to read voters’ minds,” at Crooked Timber.)

Baseball like it oughta be

I’m jealous that Tom and Mack were at OP@CY in person today to to see the Orioles’ crazy comeback victory, which ended when Nolan Reimold socked a three-run homer in the 11th for the gwaribbie.  I was going to post that he was already the best Nolan in Oriole history, but when I looked it up, I realized that Joe Nolan was actually not bad!

CJ and I also saw some baseball today  — “Baseball Like It Oughta Be,” as the sign says over the Duck Pond, home of the Madison Mallards.  The Mallards played an exhibition game against Sweden’s national side, in a slight drizzle in front of a few hundred fans.  Jordan Hershiser, son of Orel, started for the Mallards.  He walked the first two Swedes; the next batter bunted to third, the throw sailed past the first baseman, and somehow both runners scored.  It was a lot like Atari baseball.  Even more so in the bottom frame, in which the Mallards batted around and scored 8 runs on 5 hits and 3 HBP, including two straight with the bases loaded.  Not much risk of Sweden taking baseball bragging rights from the current champs of the blonde part of Europe.

CJ still hasn’t grasped the rules of baseball but he liked when the umpire yelled “Strike!” And nachos.  He liked the nachos. Mostly he followed the progress of Maynard and Millie Mallard around the stadium, shouting “Go Mallards!” whenever one of them came near enough for a fist bump.

Millie Mallard has a green head, by the way.  I don’t know much about ducks, but I know that means Millie’s a man.  Who cares what the Wisconsin constitution says?  This is gay marriage like it oughta be — encased in a big padded suit and dancing, carefree, on the dugout.