One thing I learned at my law school is that conservative legal arguments comes in three types: (1) worthy arguments with which reasonable people can, even if reluctantly, agree; (2) arguments building on previous torsions of legal doctrine that they now wish to extend; and (3) specious logic and prejudiced ranting in fancy clothes.
Renowned conservative Constitutional Law Attorney, former Dean of Chapman University School of Law, sparring partner of the even more renowned liberal Constitutional Law Attorney Erwin Chemerinsky, and failed California Attorney General candidate John Eastman has given us a brilliant example of the third category. He has exhibited a striking ability to not even understand what Judge Walker said. That took some doing.
In his article The Predictable Vaughn Walker, Eastman argues that while "everyone knew" that "this 66-year-old single man, living in San Francisco and reported by the San Francisco Chronicle to himself be homosexual, would find a way to rule Proposition 8 unconstitutional." The questions are whether he violated existing legal precedent, and whether he "broke new ground with such a thorough and well-reasoned defense of his ruling that it will withstand appellate scrutiny." Eastman assigns Walker a FAIL; I assign Eastman an "O RLY?"
Eastman starts out with simple silliness, noting that Walker's opinion was the exact length of the Dred Scott majority opinion, and therefore (to use the term lightly) a strong contender in the mischievousness index by measure of its length alone. If Eastman were being honest -- and there was never much danger of that -- he'd recognize that the brunt of Walker's ruling is a brutal snipe hunt for any rational basis, any rational basis at all, for the state's desire (expressed by voters or the legislature) to deny a given group member an otherwise available fundamental right simply because they don't want that group to enjoy it. That's what that humongous "Findings of Fact" section -- which I don't recall seeing in Dred Scott -- is about. Walker is doing the opposite of weaving a long, hand-waving argument for things should be as he wants; he's saying "this is the law, now let's review the facts with painful thoroughness to see how they interact with the law." The distinction between that and Dred Scott is apparently lost on Walker; maybe he'll say he was kidding (and then, when the right opportunity arises, say that he wasn't.)
Eastman quotes the liberal lion William Brennan to the effect that "The Equal Protection Clause directs that 'all persons similarly circumstanced shall be treated alike, [but] does not require things which are different in fact or opinion to be treated in law as though they were the same." Indeed so -- and he's right that "The relevant question is whether heterosexual and homosexual couples are similarly situated with respect to marriage." Then he runs right off the rails.
Only the most naïve or most ideologically driven would not acknowledge that a classification distinguishing between heterosexual couples, who generally can procreate by themselves, and homosexual couples, who cannot, is not reasonably related to the government’s legitimate interest in fostering relationships where procreation and the rearing of children by both their natural parents is within the realm of possibility.
Huh? The last woman that I dated before my now-wife had had a hysterectomy. Did the government really have an interest -- not a prurient interest, but an actual interest -- in getting me out of that relationship into one where procreation was a possibility? What was the nature of that interest, pray tell?
But even if there were such an interest, how does barring marriage by people who don't want to have relationships where procreation is a possibility anyway undermine that interest? Without the right to marry, they're just going to have sex without marriage. How does that further this supposed state interest?
It gets worse. Remember (or learn now) that Walker wrote the decision so as both to say that the right to marry in a "pair-bond" is a fundamental right, deserving of what legal scholars call "strict scrutiny." This first part of a monstrous paragraph is actually OK:
Judge Walker also made some new law, holding that the right to marry whomever you chose, regardless of gender, is a fundamental right, and that sexual orientation is a suspect classification. Those holdings allowed him to apply strict scrutiny to Proposition 8, and strict scrutiny is a very high hurdle to get over, requiring that the State demonstrate that the classification is narrowly tailored to further a compelling governmental interest. Although the logic of such a holding is more honest than the portions of the opinion applying rational basis review, there are a couple of problems with treating Proposition 8 as subject to strict scrutiny. First, Justice Kennedy quite explicitly applied rational basis review to the sexual orientation classification at issue in Lawrence, and that remains governing precedent, binding on Judge Walker.
See, that's conservative argumentation that one has to contend with. Kennedy did not apply strict scrutiny to sexual orientation in Lawrence -- he didn't need to, as I recall -- and therefore doing so now is making new law. Now for conservatives to kvetch about judges "making new law" in the year of Citizens United is somewhat laughable, but you still have to contend with it. The counterargument is that, in this case, Walker had to contend with the issue squarely. "New law" was going to be made one way or the other; that's what happens with "new issues." To decide that homosexuals could be excluded from the otherwise available right to marry because of, supposedly, tradition (but actually, as Walker's devastating snipe hunt shows, out of animus) would have made new law also. It would have gone against the principle, as Walker explains, that you can't trench on the rights of minority groups out of animus. As Brennan wrote, doing so denies them equal protection.
And then we get to the ridiculous part. The paragraph continues:
Second, although the Supreme Court has held that the right to marry someone of the opposite sex, without regard to race, is a fundamental right, neither it nor any other federal court has ever applied that right at such a high level of generality as to move beyond the male-female nature of the institution. If Judge Walker’s analysis were to stand, other courts would be hard pressed to uphold other long-established restrictions on marriage. Once the biological nature of men and women is rejected as a core reason for the institution of marriage, what compelling governmental interest would be furthered, for example, by limiting the right to two people instead of three or more? Is not the bisexual’s proclivity for both men and women entitled to the same fulfillment in societal-sanctioned marriage as the homosexual’s interest in having his or her same-sex relationship so sanctioned? Judge Walker at one point seems to acknowledge that it would be. As a result, polygamy and polyamory will have to be allowed as well. Or what would become of restrictions prohibiting marriage between a middle-age man and a sixteen-year-old girl who, in other contexts (the right to get an abortion without parental consent, for example) is deemed to be a mature adult capable of making such decisions? Slippery slope arguments, to be sure, but it is hard to see the logic of a stopping point on that slope under a strict scrutiny analysis.
Yes, judges hadn't yet applied Lawrence to go beyond the "male-female nature of the institution." In what post-Lawrence case had they been asked to do so? The question is why the fundamental right to pair-bond, including with someone with whom you cannot procreate, stops when the number of penises or vaginas within the pair-bond is even rather than odd. (Actually, that's not entire true: men without penises can marry women.)
What Eastman did not get from his apparent failure to read Lawrence is this: it's about pair-bonding. It's about choosing someone with whom one will be legally bound throughout life. For reasons dealing with the economics of the legal relationship of marriage, we stop at two. That's what the "pair" part of pair-bonding means. Does this mean that bisexuals can't marry everyone to whom they're attracted? Yes -- just like the rest of us! There might have been more than one woman out there who I wanted to marry after my divorce, but I could only marry one of them. (At least only one at a time.) There is no legal distinction, so far as this argument goes, between me as a heterosexual male having to choose between marrying one of two women and a bisexual male having to choose between having to marry a woman versus a man. Either way, the law says that you get only one choice at any given time to be your mate. Logic puts up a firm wall on the slippery slope between allowing homosexual marriage and allowing polygamy and polyamory.
As for the "slippery slope" between gay marriage and letting middle-aged men marry sixteen-year-old girls -- a custom, by the way, that Eastman might be flummoxed to know also has a deep foundation in "tradition" -- I can only assume that he believes that letting gays marry necessarily means that we have to redefine legal adulthood. Why? ("why why why why why," the question echoes, unanswered.) What does one have to do with the other? Society has decided that people below a certain age, generally eighteen, do not have full adult rights. They can't pairbond yet, at least without their parent's permission. (And their parents can permit their 16-year-old to marry that 60-year-old, presumably. Maybe we'll see more of this in the New Feudalism.) Eastman's invocation of a slippery slope here makes garden-variety intellectual laziness look like running a marathon.
I'm going to end with two personal observations, because I don't expect to write about this case again here anytime soon. (Got to get back onto the Meg Whitman beat!)
First, I think that Walker did get something important wrong regarding the appropriate standard of review, although I don't know that he'd necessarily disagree with it. To me, the appropriate standard of review is intermediate scrutiny, which is the standard that applies to gender. (Essentially, in my opinion, less than strict scrutiny applies here because society wants the ability to segregate male and female restrooms and sleeping quarters. This doesn't seem ridiculous to me.)
Walker writes about sex discrimination versus sexual orientation discrimination at some length, but I think he misses the point. Sexual orientation discrimination is sexual discrimination. Robert could marry Charles if he were Roberta. Roberta could marry Charlene if she were Robert. Each of them, if homosexual, is denied the right to marry the particular object of their love because of their own gender. So I say that intermediate scrutiny applies (and suffices.)
Second, we're beating around the bush here. For many of the proponents of Prop 8, opposing gay marriage may not even be a matter of animus per se. Instead, it's the belief that "this is what God wants us to do," coupled often with the Pat Robertson view that "if we don't do what God wants, God will punish our nation."
You know, for all I know, this could be true: your cosmology may vary. (It may also be that God is punishing us for abiding bigots too gladly.) But what is inarguable is that this is a religious belief. Do people have the right to impose their religious beliefs about how they must evade divine retribution upon others, when it requires others to give up their fundamental rights? No, they don't. So to me, the main problem with the decision is this: it goes looking for a rational basis for anti-gay legislation where the real basis is irrational -- based on religious beliefs that are not subject to rational analysis. (And that is why we should try to keep them out of politics.) What Prop 8 fails is not just the rational basis test, but the irrational basis test, because it imposes the irrational fears of the many to limit the rights of the few. And, as John Eastman would probably not agree, you can't do that.