Positive Liberty

We’ve never been a blog of record about anything, which is fortunate, since none of us have the time for it. Still, I couldn’t pass up commenting on the recent decision by the New York Court of Appeals, which denied a state constitutional right to same-sex marriage. I think I may have found something the big guys have overlooked.

Here’s the executive summary: I believe that it is a legitimate goal of government to ensure that children have legal and financial protection until they reach adulthood. Yet I find that there is no rational relationship between this goal and the means proposed to attain it, namely denying same-sex couples the ability to marry. On the contrary, I find that this method impairs children’s legal and financial protection.

Meanwhile, I do not agree that it is a legitimate goal of government to ensure that kids have a mother and a father. It may be a rational belief that kids are best off with a mother and a father, but this is something quite different from a legitimate government goal.

Here’s where things get interesting: Unless I am very badly mistaken, the New York Court of Appeals seems to have misconstrued the rational basis test by declaring that government goals must be “rational” rather than “legitimate.” The court declared the belief “a father and a mother is best” to be rational, and therefore it found that this aim survived review. But the rationality of this aim is entirely beside the point.

I’m not a lawyer, but I cannot see how it is warranted to substitute “rational” for “legitimate” when considering government aims under the rational basis test. The two words are not synonyms. (Notably, the dissenting opinion is consistent about using “legitimate” regarding aims and “rational” regarding the means to achieve them. Yet the dissent does not notice or comment upon this usage in the majority opinion.)

Much more below the fold.

Legitimacy — which the rational basis test demands of governmental aims – is far more exacting than mere rationality, which the test only demands of government means. The court’s decision never actually holds “guaranteeing a mother and a father” to be a legitimate goal.

Perversely, I agree: The government has no legitimate business mandating such things, whether they are rational or not. I believe the dissent got it exactly right when it wrote,

The State’s interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses.

Nor may the State legitimately seek either to promote heterosexual parents over homosexual parents, as the plurality posits, or to discourage same-sex parenting. First, granting such a preference to heterosexuals would be an acknowledgment of purposeful discrimination against homosexuals, thus constituting a flagrant equal protection violation. Second, such a preference would be contrary to the stated public policy of New York, and therefore irrational.

A Few Preliminaries:

–The case was decided, at least nominally, under rational basis review, which holds that a law is constitutional if it is rationally related to a legitimate government aim. Broadly speaking, rational basis review is applied whenever questions of fundamental rights, race, religion, national ancestry, or gender are not implicated; these latter types of cases get more exacting standards of review, and the scope of government action is significantly curtailed in their regard.

–Although rational basis is traditionally the most lenient standard of review in civil rights cases, there has been some speculation that the test has grown teeth in recent years, as I strongly believe it should. Clearly, though, the New York Court of Appeals declined to go down this path, and I would further argue that it has offered us a substantially weaker rational basis review than the usual one, if such a thing can be imagined.

(There are suggestions of a toothier rational basis in the case Deane vs. Conaway , which found in favor of same-sex marriage in Maryland (the ruling has been stayed pending appeal). Yet Deane was ultimately decided on strict scrutiny, as Maryland’s constitution contains a powerful equal rights amendment effectively declaring that strict scrutiny must be used in civil rights cases touching on gender.)

–Some proponents of same-sex marriage, including the plaintiffs, have suggested that, because same-sex marriage is manifestly a question relating to gender classifications, intermediate scrutiny would be the more appropriate standard of review. Under mainstream jurisprudence, intermediate scrutiny requires that the government interest be “important” and that the measure in question is “substantially related” to that interest. The New York court did not take this path; it argued that, “limiting marriage to opposite-sex couples…. does not give one class a benefit not given to the other.” I disagree, as no man is allowed the right to marry another man — but any woman at all may marry a man. And vice versa. The Deane opinion gives this argument a particularly good thrashing before moving on to decide, under Maryland’s strict scrutiny requirement, that same-sex marriage must be permitted.

–Dale Carpenter discusses the level of generality to be sought in arguing for fundamental rights. I have focused, in my comments below, on the question of equal protection, on which I think the defendants’ arguments clearly fail. I recommend you read his post as well, as I have purposefully declined to consider many of the issues that he reviews. Here is the crux of his argument:

The New York court…gives us an approach to the level-of-generality problem in substantive due process cases that, if taken seriously, is both circular and eviscerates fundamental rights. The result in every case is practically determined by the initial analysis about the law’s rationality. If the law is determined rational at the outset, it will probably be constitutional. If not, it probably won’t be. But this makes a (further) mess of the fundamental rights doctrine, the underlying point of which is to say that some rights are so important they cannot be denied even if the government has rational reasons to do so.

He seems to be edging toward some form of heightened scrutiny, while the New York court is moving in quite the opposite direction.

–My own biases are as follows: As a minarchist, I cannot support any government that is not “necessary.” We may well fight over the nature of necessity, but beyond it I will not go. I also fail to find much support for the three-tiered review standards used in civil rights law today. Nowhere in the Constitution can one explicitly find the notions of rational basis review, of intermediate scrutiny, or of strict scrutiny. Perhaps the first is implicit, in that a government would be powerless if it could not rationally work toward its legitimate ends. And perhaps — more tenuously — the third is also implicit, in that some types of laws have been entirely and explicitly forbidden, and in that sometimes, borderline cases do arise. But to divine the middle term — intermediate scrutiny — takes a legal mind far more subtle than my own. (Reading suggestions on the legal foundations of intermediate scrutiny would be greatly appreciated.)

And Now For the Decision: The court found that, while a legislature could “of course” enact same-sex marriage, there were nonetheless at least two points on which a rational legislature might decide to limit marriage to heterosexual couples only. Accordingly, it found that New York’s marriage laws, which have consistently recognized only heterosexual unions, are constitutional under that state’s version of the Fourteenth Amendment, a version essentially identical to the federal one.

Yet even the court’s qualifier — that a legislature might also, and purely as a matter of course, provide for same-sex marriages — is notable. Consider how far removed it is from the language of the U.S. Supreme Court in Bowers vs. Hardwick, just twenty years ago:

To claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.

Yes, Bowers has been reversed, but the rights in question here go far beyond the private, consensual sexual relations between adults that were at issue in that case and in Lawrence vs. Texas. If even these rights were “facetious” to the Bowers court, one wonders what that court would have made of the rights at issue here. Even in defeat, the progress has been stunning. But back to New York.

The first reason: The Court of Appeals offered two reasons why heterosexuals-only marriage might satisfy the rational basis test. First, it wrote that,

The Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships.

The use of the word “rational,” both as regards the ends and the means, is problematic; as I mentioned above, the court ought to have written that promoting child welfare is a legitimate aim: Legitimacy, not rationality, is what the rational basis test plainly demans of aims. The distinction is not problematic in this section of the opinion, as I do not dispute that protecting children is a legitimate aim of the state (but see the next section, below).

Further, while I agree that protecting children may be a legitimate aim of the state (that is, within certain limits that need not be discussed here), the means toward this aim is not rational: The denial of protection to some children cannot be rationally related to the protection of all children in general, at least not without significant justifications that the court’s opinion declines to offer. Unless we assert a scarcity of government resources — which the defendants clearly did not do — then declaring that some children must never be protected cannot rationally related to the goal of “protecting children” in general.

Think about what this means in practice: There is a rational relationship, the court asserts, between protecting all children — and denying custody of some children, merely because their parents are of the same gender. There is a rational relationship between protecting all children — and declaring that the parents of some children will not be treated as equals regarding their children’s medical, educational, and financial futures. There is a rational relationship between protecting all children — and ensuring that one class of children will always have fewer protections than the rest.

If we wished to promote education, would it be a rational step toward that goal to declare that some people must always remain ignorant? How exactly would this help anyone learn?

Let us read the court’s opinion here somewhat less charitably: The legitimate aim of government at which we are arriving is not to protect all children, but merely to protect those children whose parents happen to be heterosexual. This is not what the court declared — remember, it’s supposedly standing up for all children — but it is, I think, what many of its supporters would prefer. It is also why this decision will be so applauded by the religious right.

But the mechanism is still wholly lacking. Society is not a zero-sum game, in which one interest must always lose for another to gain. Even supposing that we could permanently enrich one social class by robbing from another and delivering them the proceeds — a project that has never worked in practice — it is much less clear that we could permanently aid heterosexual families by depriving same-sex families of equal treatment. There is nothing further to give them. And if our goal is to aid all people generally, then depriving any one group of them is problematic virtually on its face.

As I mentioned above, scarcity of resources offers a plausible reason to ration the state’s assistance — albeit not one articulated in this case. The court supplies others, but none of them plausibly get us from the legitimate state interest (protecting all kids) to the measure at hand (denying protection to some kids):

Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Gosh, I’m sure glad someone cleared that up. After decades of painstaking scientific research, the conclusion is in: We have just discovered that… Oh please. Repeating this almost totemic statement does nothing to help the hundreds of thousands of children who are right now being raised in households headed by same-sex couples.

Further, suppose I had written that more people are the children of right-handers than of left-handers? Is it then rational to extend marriage only to right-handed couples? Where else, besides homosexual relationships, does this excuse ever become a rational reason to deny marriage? Would a court ever find that it was rational to deny people in their 70s the chance to marry? I can’t imagine that they would find this a rational step at all.

The Legislature could also find that [same-sex] relationships are all too often casual and temporary. I am quite sure that it could. Yet it would be hard-pressed — almost to the point of absurdity, if not altogether at it — to find a same-sex relationship that was both “casual and temporary” and that had children in need of joint protection. As the court itself acknowledges, children don’t come to same-sex relationships through casual acts of intercourse.

For homosexuals who are also biological parents, even raising their own kids takes a dogged insistence that one’s biological children must remain with them after a divorce or a death — even while the courts often enough try to remove them. Meanwhile, adopting kids takes a truly absurd amount of paperwork, background checks, psychological exams, medical exams, financial exams, and fees, fees, fees. Many thousands of dollars of the latter, if that means anything.

Casual? Temporary? I think not.

It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. Sure. But it is peculiar, to say the least, to privilege only those relationships in which children are born. Why not privilege those relationships in which the children are actually raised? What does this decision — birth over upbringing — imply about heterosexual couples who adopt?

It’s obvious by now, I think, that heterosexual-only marriage laws designed ostensibly for the benefit of children are not narrowly tailored, as there are serious errors of inclusion (infertile straight couples) and exclusion (gay couples with kids). As to whether these laws can still be “rational,” I’m open to persuasion — rationality is a vast, multifarious enterprise — but the New York case hasn’t done it.

The court writes, “While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing.” But this is nonsense. If the state can require a VD test, then surely it can require a fertility test (personally, I believe neither should be required. Both, however, are well-advised). Further, many couples can be excluded without any invasion of privacy whatsoever, if this was what the state desired: Forbid women over some maximum age for menopause to marry. Surely no woman over sixty-five is still fertile, right?

The second reason: This one is, if anything, even weaker. Here is the key passage, the one in which the court’s rewriting of the rational basis test seems to get it in trouble:

The Legislature could rationally believe that it is better, other things being equal, for children to grow up with a mother and a father.

Indeed it could, and this would be a rational conclusion. Evidence now inclines against it, but there is nothing inherently irrational about the belief.

But the court flubbed really badly here. It’s shockingly bad, so far as I can tell. As I mentioned above, rational basis review demands that there be a rational relationship — not to a rational government end, but to a legitimate government end.

The state has no legitimate business mandating or even encouraging any family outcome, even if its preferences toward one or another are rational. So long as the basic rights of the children and adults are protected, it cannot declare that some families are better than others. There is simply no legitimate mandate for this power.

“A mom and a dad” are clearly not necessary to give children a sufficient legal protections. If longstanding practice is any guide, these protections are evidently available even to the children of single parents — and even to wards of the court — although the state may understandably declare such protections to be at their zenith in a two-parent household, and act to encourage the stability of such households. (But declaring that children’s legal protections would be, or should be, impaired in a two-parent, same-sex household, is tantamount to admitting a sex discrimination in the law, one which would require justification along the lines of the third bullet point above, using heightened scrutiny review.)

No, “a mom and a dad” is instead a determination about how all families should be organized, and I am convinced that this is not a legitimate power of the state. I admit I have not read the entire New York State Constitution, but from what I have seen in this case at least, I feel I’m on fairly solid ground: Even the defendants aren’t making the claim.

Further, I doubt that there is any relationship at all between this rational-but-illegitimate goal and the proposed method of attaining it, namely denying protections to those who would live in relationships that tend — in the court’s findings — not even to have children.

If gay couples tend not to have children, then it is doubtful in the extreme that discouraging their relationships will do anything at all for the children residing in heterosexual households. These children will have a mommy and a daddy regardless of what happens to the gay guys down the street. And — to borrow a word — the idea that legalized same-sex marriage might induce anyone to abandon a wife and kids is, at best, facetious.

Lastly, if — against all odds — gay people do end up with children (which does happen, contrary to the court’s assumptions), then I cannot see how a hetero-only marriage law helps any children at all to have both a mother and a father.

What would actually help is a step, and a rationally related one, that no one yet cares to contemplate: Simply relocate these children into heterosexual families. That would be rationally related to the goal at hand — which, thank God, is not a legitimate goal of government in the first place. To strive for the optimum family is rational. To enact the optimum family through government force… is illegitimate.

Consider the following point, which was raised in the context of the Marriage Protection Amendment, but which is equally applicable here (h/t: Stephen Miller):

Proponents of legally or constitutionally codified heterosexual marriage state that their primary reason for pursuing their course of action is to protect children. Marriage, they say, is a contract over which we give the state control in order to protect the next generation. They cite oft-debated studies that show the best situation for the upbringing of a child is in a two-parent, male-female home. The biological parents are the best option, they say, for the healthy growth of a child. They claim that by legalizing only “one man - one woman” marriages, they promote the optimal conditions for the upbringing of a child.

But that begs the question: by only legalizing the optimal, do they agree that anything suboptimal should be illegal? If the conditions for raising a child vary, and run along a continuum from the worst (say, being raised by coyotes in the forest) to the possible optimal (being raised by loving, talented, brilliant millionaires) would those who could run government determine that anything below the millionaire level was suboptimal and therefore illegal? Would one have to undergo a wealth and intelligence test before being married, because marriage could lead to childrearing, and that child could possibly be raised in a suboptimal environment? The standard is arbitrary, and dangerous to a free society.

The state should protect children’s rights, both by ensuring that they come into the full enjoyment of adult rights at an appropriate age, and by protecting them from abuse and neglect. It must not declare, though, that two men — as suboptimal parents — can never raise children, or that the children raised by two men must face additional barriers that would make their situation even less optimal than it already is. These would be rationally related to a rational end — but then, rationality only gets you so far in the absence of legitimacy.

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