Tag: Supreme Court

When Did Laws Denying Same-Sex Couples Marriage Licenses Become Unconstitutional?

Readers of this blog know that Cato filed a brief in Hollingsworth v. Perry arguing that state prohibitions on same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment.  But since when have they done that?  More broadly, to quote a colloquy between Justice Scalia and Ted Olson in the Perry argument:

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? …

MR. OLSON: It was constitutional when we -­ as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

With due respect to Ted Olson, a former solicitor general who’s argued more cases than I’ve watched, I think he missed the mark on this one.  How do rights spontaneously emerge?  To pick up on one of the above examples, was segregation constitutional in 1900 but then somehow not 50 years later?  No, Plessy v. Ferguson was incorrectly decided in 1896 and Brown v. Board of Education overruled it rather than merely asserting that there was an “evolutionary cycle.”  Justice Scalia himself recognized that state racial discrimination of all kinds became unconsitutional when the Fourteenth Amendment was ratified, in 1868 – and not at some time in future when each particular instance of it was found to violate that provision.

And so, either it was unconstitutional to exclude same-sex couples from marriage in 1868 or it’s still constitutional to do so.  Josh Blackman and I wrote about doing this “originalism at the right time” in our exegesis of the Privileges or Immunities Clause in the context of the right to keep and bear arms, Keeping Pandora’s Box Sealed.  (Josh later extended that analysis in a short piece on gender equality and sex discrimination.)

Which isn’t to say that what the challengers have to prove here that the drafters or ratifiers of the Fourteenth Amendment had gay marriage in mind.  But it does mean that you have to look at what “equal protection of the laws” in 1868 and apply that understanding accordingly.  As Elizabeth Wydra, my co-counsel on our Perry brief, wrote on the Constitutional Accountability Center’s blog:

While race was obviously at the forefront of the minds of the Amendment’s drafters – after all, they had just secured an amendment banning slavery in the wake of a brutal civil war–they specifically chose language that would protect against unequal treatment based on more than just racial discrimination, and in fact affirmatively rejected narrower proposals that would prohibit only racial discrimination.

Even so, had Olson given Justice Scalia the answer I have suggested, Scalia surely would have retorted that there was no way the American people were thinking of marriage equality for gay and lesbian couples when they ratified the Amendment. That’s not the point. No originalist – not even Justice Scalia – believes that the plain words of the Constitution apply only in the ways the framers expected. The ruling Justice Scalia announced from the bench just before the start of arguments this morning is a perfect example: just because there weren’t drug-sniffing police dogs in 1791, doesn’t mean their use can’t violate the Fourth Amendment’s protection against unreasonable searches and seizures, as the Court held today in Florida v. Jardines.

The Constitution guarantees equal protection of the laws to “any person.” In looking to what rights were understood to be protected equally, the framers of the Fourteenth Amendment understood state-sanctioned marriage as a personal, individual right that must be made available on an equal basis to all persons. Accordingly, by writing into the Constitution a requirement of equality under the law and equality of basic rights for all persons, which included the right to marry, the Amendment’s framers ensured that discriminatory state laws would not stand in the way of Americans exercising their right to marry the person of their own choosing. Laws that discriminate and deny to members of certain groups, including gays and lesbians, the right to marry the person of one’s choice thus contravene the original meaning of the Fourteenth Amendment.

See also Josh Blackman and Orin Kerr.  And for more on the original meaning of the Equal Protection Clause, see my op-ed with CAC’s president, Doug Kendall.

More from Cato Scholars on the Marriage Cases

This morning the Supreme Court hears oral argument in Hollingsworth v. Perry, the Prop 8 case, previewed in this space yesterday and the topic of much past attention at Cato. Over the past 48 hours Cato scholars and friends have been writing up a storm:

  • An editorial in the Wall Street Journal contends that the issue should be left to the political process. In response, Cato constitutional studies director Roger Pilon says the Journal goes fundamentally astray on (among other things) whether the Equal Protection Clause was meant to apply only to some short list of “protected classes,” and whether the Perry and Windsor cases resemble Roe v. Wade (they don’t).
  • At Reason, Cato’s Ilya Shapiro debates Jonathan Adler on whether federalism provides a useful organizing concept for the issue. Plenty of debate on that topic at Volokh Conspiracy.
  • In articles at Hoover’s Defining Ideas and Ricochet, Cato adjunct scholar Richard Epstein explains why he finds originalism in tension with liberty on the issue, and has some advice for Justice Anthony Kennedy.
  • Last chance to register for Cato’s all-star panel tomorrow with former Republican National Committee head Ken Mehlman (NPR profile), Freedom to Marry founder Evan Wolfson (BuzzFeed profile), and Cato’s Ilya Shapiro (AFF profile). You can also watch live online here, and comment on Twitter at hashtag #CatoEvents.
  • I’ve got another roundup at Overlawyered noting tomorrow’s panel and other upcoming events, and summarizing a panel on related issues held at Cato last week; I also note the paradox in one recent poll in which a non-trivial number of participants took the view both that same-sex marriage is a right under the U.S. constitution, and that states should be left to go their own ways on whether to recognize it.

Supreme Court Should Clarify the Meaning of “One-Person, One-Vote”

As I wrote in January, the Supreme Court is currently considering – and will likely decide next week – whether to review a case, Lepak v. City of Irving, involving the constitutional principle of one-person, one-vote (OPOV). The specific issue is whether redistricting processes trying to comply with OPOV should equalize the total population in each electoral district or the number of citizens of voting age.  If the former, then a relatively small number of eligible voters in a heavily immigrant district can have their votes “over-weighted” compared to voters in other districts that are similarly populated but have far more eligible voters – as happened in Irving, Texas. Cato filed a brief supporting the challengers that highlighted the untenable conflict between OPOV and modern applications of Section 2 of the Voting Rights Act.

Over the last few days, several commentators have discussed this case and its implications -– including most recently Adam Liptak in the New York Times.  Most have presented the question facing the Court in Lepak as a choice between two competing theories of democracy: electoral equality (ensuring the equal weighting of voters’ votes) and representational equality (ensuring residents have equal access to representation).  For example, Liptak quotes University of Texas law professor Joseph Fishkin as describing the “enormous practical consequences” of a Court ruling that mandates electoral equality, which include “shift[ing] power markedly at every level, away from cities and neighborhoods with many immigrants and children and toward the older, white, more exclusive native-born areas.”  But this framing of the issue as a mutually exclusive “choice” rests on two crucial assumption, both of which are deeply flawed. 

First, most basically, it’s a false choice.  Electoral and representational equality aren’t mututally exclusive.  States and cities can –and almost always do, albeit unconsciously – create districts that meet both criteria.  That’s because equalizing population between districts will almost always equalize voting power too.  But even in the exceptional case where there are geographic concentrations of disproportionately non-citizen populations in a particular political subdivision, districts meeting both criteria can still easily be formed.   Legislators routinely draw districts that satisfy multiple goals – for instance, equal numbers of total population and certain partisan majorities.  If a state or city pursued both electoral and representational equality as apportionment goals, Fishkin’s parade of horribles would easily be avoided.

Second, Fishkin’s framing incorrectly assumes that OPOV can be met either by equalizing voting power or by equalizing representational access.  But OPOV isn’t some kind of constitutional either/or.  Indeed, as the name itself suggests, the constitutional requirement is one-person, one-vote, not one-person, one-equal-share-of-access-to-representation.  The Supreme Court has made clear that the person being protected by the doctrine is the voter and the thing being protected is the weight of that voter’s vote.  Thus the Court “simply stated” the OPOV doctrine as follows in the 1964 case of Reynolds v. Sims: “An individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living on other parts of the State.”  In other words, the right of a voter to an equally weighted vote stands on its own constitutional grounds.  This right doesn’t somehow evaporate when a city or state creates electoral districts containing equal populations.

This same flaw infects the reasoning in the three circuit court cases that have previously addressed this issue (whose divergent reasoning itself begs Supreme Court instruction).  As the lawyers representing the Lepak plaintiffs – one of whom I should mention is a former co-clerk of mine – put in a recent article in the Texas Review of Law and Politics:

Each [of the lower-court decisions] treats representational equality and electoral equality as morally and constitutionally equivalent. But this is putting the cart before the horse. Even assuming there is a constitutional right to equal representation, in the hierarchy of constitutional rights, electoral equality clearly reigns supreme. The Supreme Court has noted the right to vote is “preservative of all other rights,” and it is. Before there can be any meaningful representation, the right to vote must be protected and secured. In any “clash” between the right of a voter to an equally weighted vote and the right of a nonvoter to equal representation, the right of the voter trumps. 

By ignoring this reality and imposing literally no limits on how severely a city or state could dilute the weight of its voters’ votes, Garza, Daly, and Chen set a dangerous precedent. In those cases, vote dilution was as high as fifty percent. That result is pernicious enough. But it is just the tip of the iceberg. Under the holdings of these cases, so long as the total populations between the districts are equalized, a city could arbitrarily “choose” to make one voter’s vote worth two times, ten times, or even ten thousand times as much as another voter’s vote. Under these cases, any of these “political choices” would be acceptable. Yet how could any of these results be squared with the Supreme Court’s categorical holding that a voter has “a constitutional right to vote in elections without having his vote wrongfully denied, debased, or diluted”?

It’s a good question, and one the Supreme Court will hopefully soon answer.

Voting Rights in Massachusetts and Mississippi

During last week’s oral argument in Shelby County v. Holder – the challenge to Section 5 of the Voting Rights Act – Chief Justice Roberts questioned the Solicitor General concerning the rationality of the VRA’s coverage formula (Section 4(b)) by comparing non-covered Massachusetts with Mississippi, which remains subject to federal preclearance based on registration and voting data from 1964.  As the Chief Justice pointed out (page 32 of the transcript), Massachusetts has the “worst ratio of white voter turnout to African American voter turnout” while Mississippi “has the best.”  Massachusetts likewise “has the greatest disparity in registration between white and African American” while Mississippi is third best in the nation, “where again the African American registration rate is higher than the white registration rate.”

The Chief Justice’s remarks apparently angered the Massachusetts Secretary of State.  According to a Politico story, Secretary William Galvin found it “just disturbing that the chief justice of the United States would spew this kind of misinformation” and that the “2010 numbers don’t support what Roberts is saying.”  Galvin continued: “He’s wrong, and in fact what’s truly disturbing is not just the doctrinaire way he presented by the assertion, but when we went searching for an data that could substantiate what he was saying, the only thing we could find was a census survey pulled from 2010 … which speaks of noncitizen blacks … .  We reached out to academics at many institutions … and they could find no record either, they were puzzled by [Roberts’s] reference.”

But it’s Secretary Galvin who has his facts wrong—a mistake he could have avoided simply by reviewing the lower court decision that the Supreme Court is considering.  In his dissenting opinion, D.C. Circuit Judge Stephen Williams examined the voter registration and voting statistics from the 2004 presidential election – not the 2010 mid-term elections—because it was the last national election before Congress reenacted Section 5 in 2006.  The question the Supreme Court is considering—which seems to be lost on Galvin – is whether Congress acted appropriately in retaining the same coverage formula that has been in place since 1975 despite significant changes in the country.  To answer that question, the Court must of course look at the statistics that were in the 2006 legislative record. And those statistics, which are publicly available and come directly from the Census Bureau, fully vindicate the Chief Justice’s statement.

Supreme Court Could Also Strike Down DOMA on Federalism Grounds

One of the more interesting and potentially influential amicus briefs in United States v. Windsor, the case challenging DOMA Section 3, is one filed by a group of federalism scholars, all of whom have some connection to Cato and/or are generally sympathetic to the positions we take at the Center for Constitutional Studies. As Dale Carpenter puts it on the Volokh Conspiracy blog:

Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy Barnett, and Ilya Somin — as well as Ernie Young and Lynn Baker in filing an amicus brief in United States v. Windsor arguing that DOMA Section 3 is unconstitutional. While this conclusion is shared by 69% of constitutional law professors around the country, our route to that end is probably not as widely shared.

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status.  While Congress has not (yet?) claimed a statutory authority to bar states from recognizing specific marriages, it has greatly complicated and burdened their police power to do so through the enforcement of DOMA. It may well be that Congress has authority to limit access to specific federal benefits otherwise available to validly married people.  But Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any “legitimate” interest of the federal government.

This may be an appealing argument for those on the Court who take federalism seriously and have a problem with Section 3 but may not be ready to extend the constitutional right to marry to same-sex couples. Coincidentally, the justice most likely to fall into that category is Anthony Kennedy—who will almost certainly be the swing vote in these cases—but the four “conservative” justices could also sign on to something like this even as they vehemently reject the broader constitutional argument in Hollingsworth v. Perry (the Prop 8 case) or in future cases challenging state denials of marriage licenses.  The four “liberal” justices, meanwhile, don’t care about limiting federal power through constitutional structure, but will presumably vote to strike down Section 3 on equal protection grounds.

Indeed, as I wrote in December, “I could see an opinion stating that marriage is an issue that our federal system leaves to the states and the federal government has to respect each state’s definition of it in granting benefits based on that status. That would mean that federal benefits would operate differently in different states, but so be it; gay married couples would have an incentive to live in the growing number of states that recognize their relationships.”

This federalism argument may ultimately be too clever because the federal government certainly does have the power to define the terms in its statutes, which would collapse the issue in Windsor back to whether the restriction on DOMA’s definition of marriage survives equal protection analysis (on which see Cato’s brief). It would also probably be a mere way-station on the road to full marriage equality, becoming increasingly academic as more states allow same-sex marriage. But, as I said, it’s more likely to resonate with certain members of the Court—and could have the potentially more important benefit of strengthening federalism in other areas of policy.

It would also mean the striking down of arguably the most signficiant federal law on federalism grounds in the modern era. We shall see.

“Equality Under the Law” Requires State-Sanctioned Marriage to Be Available to Same-Sex Couples

The idea of equality under the law dates back to the foundations of democracy and the ancient Greek word “isonomia.” “Equal justice under law” remains so essential today that it is engraved in the cornice of the Supreme Court building.

In 1868, Congress and the states codified this important ideal into the Equal Protection Clause of the Fourteenth Amendment: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” As the text and history of the Fourteenth Amendment plainly show, the Equal Protection Clause guarantees to all persons — regardless of race, sex, or any other group characteristics — equality under the law, including the legal right to marry the person of one’s choosing.

In 2008, however, California voters passed Proposition 8, a ballot initiative reversing a California Supreme Court ruling that had authorized same-sex marriage and restricting the right to marry to opposite-sex couples only. Both the federal district court and the Ninth Circuit Court of Appeals ruled that Prop. 8 was unconstitutional, for reasons ranging from the violation of a fundamental right to the impropriety of removing rights/benefits once granted.

With the case, Hollingsworth v. Perry, now before the U.S. Supreme Court, the Cato Institute has joined the Constitutional Accountability Center (CAC) on an amicus brief that focuses on supporting marriage equality under the Equal Protection Clause. Our brief explains that the purpose of the Fourteenth Amendment was not exclusively to address the disparaged rights of former slaves but, as the historical record shows, was intended to be universal in its protection of “any person” within U.S. jurisdiction.

The broad and sweeping guarantee of legal equality was understood at the time to secure and protect the equal rights of all individuals, so as to prohibit arbitrary and invidious discrimination. The framers of the Fourteenth Amendment understood marriage to be a personal, individual right that, when established by a state, must be made available on an equal basis to all.

Moreover, the Constitution also protects fundamental rights against state infringement under the substantive liberty provisions of the Fourteenth Amendment. Decades of Supreme Court cases protecting the equal right to marry — without regard to race, being behind on child support payments, or even imprisonment — have been rooted in both the Equal Protection Clause’s guarantee of equality under the law and the Fourteenth Amendment’s broader liberty protections, which converge in securing for all persons an equal right to marry.

Prop. 8 denies gays and lesbians the liberty to marry the person of their own choosing, places a badge of inferiority on same-sex couples’ loving relationships and family life (with the full authority of the state behind it), and perpetrates an impermissible injury to these individuals’ personal dignity. It thus directly subverts the principle of equality at the heart of the Fourteenth Amendment, and is an affront to the inalienable right to pursue one’s own happiness that has guided our nation since its founding.

We urge the Supreme Court, which will hear Perry on March 26, to invalidate Prop. 8 as a violation of the foundational guarantee that all persons shall have equality under the law.

See also my op-ed with CAC’s Doug Kendall, which further explains our reasoning – and stay tuned for another joint brief tomorrow in United States v. Windsor, the Defense of Marriage Act case also on the Court’s docket this term.

Supreme Court Rejects Roving License to Detain People Incident to Far-Away Search

While the Fourth Amendment may not have passed the smell test in one Supreme Court ruling yesterday – which problem would effectively go away if we ended the Drug War – it handily survived questionable police tactics in a far more important case, Bailey v. United States.  

In Bailey, the Court rejected the argument that police should be able to detain someone anywhere at any time if they see that person exiting a location for which there’s a valid search warrant.  Instead, by a 6-3 vote in an opinion written by Justice Anthony Kennedy, the Court ruled that the power to detain incident to the execution of a search warrant – established in the 1981 case of Michigan v. Summers – is limited to the “immediate vicinity” of the premises to be searched.  

The police may want broader detention powers, but none of the justifications for the Summers exception to the normal probable cause requirement – officer safety, facilitating the search, preventing flight – remain in cases where police detain someone beyond that immediate vicinity.  In Bailey, police saw the defendent leave a home they were about to search and, rather than detaining him there and executing the search warrant, followed and subsequently stopped him nearly a mile away. 

As I wrote last summer when Cato joined the ACLU in filing a brief in the case, the government’s argument here had to fail for at least three reasons: 

First, the extension of Summers lacks any limiting principles to the power to detain without probable cause.  A warrant to search a particular place would be transformed into a roving license to detain any person thought to be associated with that place.

Second, the attempt to establish a limiting principle by requiring the detention to occur “as soon as practicable” is inconsistent with the underlying values of the Fourth Amendment and provides no clear guidance to officers.

Third, the extension of Summers is unnecessary to ensure that officers maintain control of the premises during a search.  The detention of an individual away from the searched premises is merely a means of holding someone pending the speculative emergence of probable cause.

The Supreme Court agreed, albeit with an unusual trio of dissenting justices: Stephen Breyer, Clarence Thomas, and Samuel Alito.

Congratulations to Kannon Shanmugam, the co-author of the “Looking Ahead” piece in last year’s Cato Supreme Court Review, who argued Bailey.  (Full disclosure: My fiancee, Kristin Feeley, was on the briefs – so congratulations to her too.)