A Stitch in Haste

Ace Pryhill has a must-read post regarding this story on anti-gay ballot initiatives:

Noting that just a few weeks ago, Missouri voters approved, with a landslide 71 percent of the vote, a state constitutional amendment to limit marriage to one man and one woman, Santorum said, “when the public has a chance to get behind the curtain of the ballot box, it’s a very different thing than what a lot of the media elites would have you believe as to where America is on this issue.”

Ace's insightful reply:

That statement may be true, but a deeper truth is that when the public has a chance to get behind the curtain of the ballot box, it's much easier to express prejudice.

Why is it Klan members, who celebrate their racial pride, don hoods that conceal their identity? Why is it when a troll leaves an inflammatory comment on a blog, they do so anonymously or leave a fake email address? Why do bank robbers wear masks during their heists? The answer to all of these is because these people don't want to be accountable for their actions. They don't want their name or image associated with the bigoted, shameful, controversial, and/or illegal act they committed. It's cowardice.

Do give the whole post a read -- outstanding stuff.

By contrast, my response to the whole "majority opinion" cop-out is best summed up in what I call the "Greatest Footnote Ever Told"...

Nor need we enquire whether similar considerations enter into the review of statues directed at particular religious...or national...or racial minorities; [or] whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry...
--Justice Harlan Stone, U.S. v Carolene Products, 304 U.S. 144 (1938).

In other words, a government should be judged not by how well it recognizes majority rule, but rather by how well it recognizes majority rule's potential threat to the minority.

Every law school graduate has read that quote at some point during their education. Too bad so many are so willing to so easily forget it.

Louisiana Voters Approve Gay-Marriage Ban

"[M]arriage shall consist of the union of one man and one woman, that legal incidents of marriage shall not be conferred on a member of any union other than such union, and that the State shall not validate or recognize a legal status identical or substantially similar to that of marriage for unmarried individuals or any marriage contracted in any other jurisdiction.

Some hasty stitches:

"Louisiana voters overwhelmingly approved a state constitutional amendment Saturday banning same-sex marriages and civil unions."

The key word there is "voters," because, we read later: "Turnout statewide appeared to be about 27 percent of Louisiana's 2.8 million voters." So we have a fraction of a puny fraction of people voting for a measure being described as "overwhleming." Hardly. And this is somehow a preferable way to govern?

"It's gratifying to see the people of Louisiana had an opportunity, as distinguished from judges, having the final say on the issue..."

It's gratifying to see that civics education is alive and well dead and buried in Louisiana. News flash, bigots: even state constitutions are subject to judicial interpretation of what the "final say" is.

[A]t least 59 precincts did not have voting machines when polls opened because officials with New Orleans' clerk of court's office failed to meet drivers who tried to deliver the machines earlier that morning. The problem was solved by midday.

Guess again. As I blogged previously, if I show up at 9AM to vote, then I'm either voting or suing. The problem was not "solved" in any intellectually honest sense of the word. Expect lawsuits.

[A] lawyer for Forum for Equality, reiterated the group's contention that the amendment does far more than stop gay marriage and that it could affect many private contracts between unmarried couples, gay or straight -- a claim its supporters dispute.

Brilliant, be so consumed with your bigotry that you write a ballot initiative that screws yourselves in the process. Bloody brilliant.

Direct democracy is the opiate of the asses. The Founders knew that. We need to remember it more often.

Will update as appropriate.

UPDATE #1: Unsurprisingly, Andrew Sullivan has more, as does Steve Miller. See also Joshua Claybourn.

UPDATE #2: Unsurprisingly, the amendment is now being challenged in court:

They include the contention that the amendment was illegally adopted by the Legislature because it included more than one purpose — banning civil unions as well as "marriages" — and that it was illegally placed on the ballot for a day when there was not a statewide election already scheduled. It also mentions problems with the election in New Orleans, where voting machines were delivered late to many precincts.

The first objection (one issue per vote) is pretty standard in referendum jurisprudence and could be robust, in my opinion. The third point might be declared moot in light of the lopsided outcome. The second issue (scheduling the election) will likely turn on local law, so I can't comment on its viability.

MAJOR UPDATE: A state judge has thrown out the amendment on the first grounds (cannot ban both gay marriage and civil unions in a single ballot measure) -- just as I predicted in the paragraph above. BoiFromTroy rightly asks whether this is a fate that awaits other state referenda. Stay tuned...

(Cross-linked at Outside the Beltway.)

Many if not most lawyers and law students will recognize the reference to the horrific case Buck v. Bell, 274 U.S. 200 (1927), which sanctioned forced sterilization of the mentally incompetent.

For the rest of you, please read David Boaz’ outstanding summary of the history of Virginia’s anti-, well just about anti-everything laws, restricting marriage to "correct" couples. Excellent reading.

Money quote:

[A] Gallup Poll indicated in 1965 that 42 percent of Northern whites supported bans on inter-racial marriage, as did 72 percent of Southern whites. The case [Loving v. Virginia, 388 U.S. 1 (1967)] found its way to the Supreme Court, which unanimously overturned the law against interracial marriage in 1967...

Today, essentially everyone recognizes as proper the right to marry interracially. And no one outside a first-year Con Law class cares that the right was memorialized by an “activist” Supreme Court that flouted the “democratic process” as represented by assorted state legislatures full of hack politicians. So shall it be with gay marriage in years hence.

The bigots are on the wrong side of history, as are the “too much too soon” crowd. The Connecticut approach was correct. But so was the Massachusetts approach. If the democratic process fails to protect the minority, if it fails to preserve basic constitutional rights and basic human dignities, if we are left with no option but to sue, then sue we will. How can you expect otherwise?

Previous posts on Virginia here and here and here.

It's astounding just how bad a federal District Court's website can be, but the United States District Court for the District of Nebraska is pretty lame — no sign anywhere of the decision by the trial judge striking down Nebraska's anti-gay constitutional amendment (or any other opinions, for that matter).

Fortunately we have the omni-blogging Howard Bashman to rescue us. Here is the PDF (43 pages). I will read it this weekend and report back.

From the media accounts, this was a substantive constitutional ruling and, from a very cursory perusal, holds that Nebraska's "Amendment 29" is essentially identical to Colorado's infamous "Amendment 2" held unconstitutional by the Supreme Court in Romer v. Evans, 517 U.S. 620 (1996). That's especially noteworthy since the key holding in Romer is that anti-gay bigotry, without more, does not satisfy even the lowest level of judicial scrutiny, called "rational basis" review. This is a powerful legal argument that makes overturning same-sex marriage bans much easier.

On the other hand, it is important to keep in mind that this ruling says nothing about requiring or even authorizing same-sex marriage in Nebraska. It merely strikes down the amendment that prevents gays from trying to win marriage rights in the legislature (i.e., the case preserves that same "democratic process" that anti-gay forces claim to cherish).

But anyway, for now I want to point out something else before the bigots do. As I noted in this post, this Nebraska case is actually the first gay-marriage ban struck down by a federal judge. The other cases — Vermont, Massachusetts, New York — have all been state judges.

All the nonsense spewed out by the bigots about "activist judges" and the "out of control federal judiciary" has been a red herring — until now. So hunker down and prepare for the swarm of complaints and rants from gay marriage opponents, especially during this time of confirmation battles, the "nuclear option" and the ever-increasing speculation about Chief Justice Rehnquist.

Oh, and once again everyone tip their hats to the heroes of Lambda Legal.

Other early thoughts from Law Dork.

Will report back when I've read the opinion completely.

"It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the 14th Amendment... Nor need we enquire...whether prejudice against discrete and insular minorities may be a special condition which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities and which may call for a correspondingly more searching judicial inquiry.
--U.S. v. Carolene Products, 304 U.S. 144 (1938) (footnote 4)

"We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do."
--Romer v. Evans, 517 U.S. 620 (1996)

Regarding Citizens for Equal Protection, Inc. v. Bruning, the Nebraska same-sex marriage ban decision handed down this week, the consensus is both right and wrong. It's a (mostly) horribly reasoned decision. But it should also clearly be upheld on appeal.

As Donald Rumsfeld might say, a judge writes an opinion based on the case he has, not on the case he wishes he had. The plaintiffs raised the "innovative" arguments in the case regarding First Amendment infringements and Bills of Attainder. So Judge Bataillon had to respond to them. Even if he responded incorrectly, it is wrong to fault him for actually writing about what the plaintiffs sued for. (One might also ask how well the Nebraska Attorney General responded to those novel arguments and what tools he gave Judge Bataillon to use or not use in writing his decision — a bad argument still trumps a worse argument, or no argument at all.)

In any case, I think those who are critical of these portions of the decision are mostly correct, although those who are being excessively insultory toward Judge Bataillon should also lighten up. A federal judge deserves better. And those who blindly chant "Professor X says it's wrong, so it must be wrong" should ask how intellectually sophisticated their own thinking is.

And it's all beside the point anyway. The crux of this case has nothing to do with the First Amendment or with Bills of Attainder. This case is all about Romer, and any discussion about it must take place within the Romer context.

Before I dive head-first into comparing this case to Romer, let's keep two things in mind: Romer is still wholly good law. It has never been distinguished or limited or isolated by the Supreme Court. Second and related, Romer was decided (6-3, incidentally) by the same nine Justices currently sitting on the Court. So there is no reason to think that the current Court's reasoning and dictates flowing from Romer are in any way no longer the law of the land.

So, acknowledging the confusing and probably wrong fluff contained within the decision, let's now focus on reconciling Bruning with Romer.

As background, Romer overturned the following Colorado state constitutional amendment:

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

The court reasoned that such an amendment failed rational basis review (i.e., that the Amendment was not "rationally related" to a "legitimate government interest").

For our purposes, I think the relevant framing of Romer is found here:

First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects...

In other words, a key reason the Colorado amendment was unconstitutional was because it was so broad — it essentially banned any and all forms of anti-discrimination laws for gays. This is a theme that recurs throughout Justice Kennedy's decision — the sheer totality of the Colorado amendment's implications.

Nebraska's Amendment 29 strikes a similar chord:

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

It is not merely a DOMA law. It is not merely a prohibition of same-sex marriage. It is a blanket prohibition against all forms of gay marriage and gay marriage equivalents or the granting of even the slightest benefit conferred by marriage. Not only can't gays get married, they can't get even seek the puniest benefit offered to married couples, by anyone, private or public, under any circumstances. Nebraska's Attorney General has openly admitted this. It bans everything even remotely related to the protections afforded by the legal status of marriage. In fact, as the opinion points out, the state's position on "marriage replication" through contract or other arrangement is that the only way partnered gays could seek legal recognition of any aspect of their partnership, would be to first disavow publicly that they are in fact partners. Kafka would be proud; Orwell would be humbled.

Colorado: "absolutely no anti-discrimination laws of any kind."

Nebraska: "absolutely no partnership protection laws of any kind."

So the question as it applies to Nebraska becomes the following: Is "marriage" a sufficient subset of "everything" for Romer to apply? Or was the Colorado amendment so much worse than the Nebraska amendment that the Romer court's "shock and awe" over its implications would not be repeated were it reviewing the Nebraska case (as it may well in the future)?

Here is where the second part of Romer's reasoning comes into play. If the broad expansive sweep of Colorado's amendment indicated its motivation as being "mere animus" toward gays, then doesn't the same yardstick apply in Nebraska? If Nebraska went so far out of its way to make sure that gays get absolutely nothing even remotely resembling any marriage-related protection, doesn't that suggest that "mere animus" was the motivation there too, rather than any of the other sundry bromides that gay marriage opponents constantly recite?

Reasonable minds might disagree, but I don't think so. The Nebraska amendment is so close to and so resonant with the Colorado amendment that Romer simply must apply. It would take intellectual pretzel-twisting of the most cavalier magnitude to argue that Bruning can be fatally distinguished from Romer.

Right for the wrong reasons is still right. See past the flaws in Judge Bataillon's decision and focus on the insights. Romer is still good law and clearly applies to the Nebraska amendment, which, since it is hopelessly overbroad and presumptively motivated only by mere animus toward gays, fails to meet the rational basis review mandated by the Fourteenth Amendment. It is unconstitutional and must remain voided on those grounds if not on the others.

Two concluding thoughts. First, for those who brazenly assert that Judge Bataillon's opinion is "quite mistaken," consider this passage from Romer:

"[T]he Supreme Court of Colorado, in a second opinion, affirmed the ruling [striking down Colorado's amendment]. We granted certiorari and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court."

Like I said, right for the wrong reasons is still right.

Second, Bruning is a good excuse to go back to Romer and read Justice Scalia's dissent in that case. Not only does it illustrate the man's limitless vitriol and contempt toward gays, but it may well be the single most poorly-argued decision he has ever written. For example, he repeatedly called Colorado's amendment "modest" and "reasonable" and created a bizarre fantasy land where gays are a "politically powerful minority" who appeal to the "elite class" of lawyers to obtain "preferential treatment." He compared gays to murderers and anti-discrimination laws to hypothetical laws protecting corrupt politicians. He called protecting an insular minority from an oppressive state constitutional amendment a "facially absurd proposition." He called the majority opinion "terminal silliness."

Forgive me if I save my contempt for a jurist other than Judge Bataillon.

"A constitution is supposed to protect human rights, not limit them. Proposition 2, however, sets out to 'protect' an institution, marriage, from a group of law-abiding citizens who pose no threat to it."
--Austin American-Statesman, editorial, 5 November 2005

Texas voters are likely to approve a bigot amendment constitutionalizing its already-existing same-sex marriage ban.

Yawn.

A few hasty stitches:

--Gay marriage did not exist in Texas before this vote. And it will not exist in Texas after this vote, regardless of whether the result is for or against.

--The initiative is so badly worded that a literal reading (i.e., by a judge who is not being "activist") would require that all marriages be outlawed in Texas, even "traditional" marriages. If the issue is so important to the moral fabric of society and the procreative future of all humanity, then one would think that its sponsors would want to get it right.

--The turnout is feared to be as low as ten percent. If referenda and initiatives are meant to reflect "the will of the people" (as if the "will of the people" trumps basic human rights and dignities), then why not impose, as legislatures do, a quorum requirement for any ballot proposition to be binding? (See also this related post.)

--The best way to drive gays into the courtroom is by not leaving them any alternative. If you don't want gays suing and seeking redress from "activist judges," then perhaps the wiser strategy is not to give them something to sue about.

--Moreover, state constitutional amendments are an express lane to federal courts interpreting the federal constitution (e.g., the Nebraska litigation). Stated differently: Be careful what you wish for ... you might get it.

--One more thing about those "activist judges." In Texas, they're all popularly elected, even on the Texas Supreme Court. Go figure.

The "backlash" is now petering out. There is this Texas initiative and another bigot proposal in Maine that is not even about marriage (i.e., bigotry for the sake of bigotry). There will be a handful of laggard initiatives in 2006, mostly in redneck Southern states. And then life, legislation and litigation will go on.

Meanwhile, which currently looks more likely to endure, all things considered: the gay-rights movement or radical conservative, fundamentalist Red-State mania?

Twenty-five years from now, the bigots will be apologizing for their shameful anti-gay votes just as many are apologizing today for their shameful civil rights records a generation ago.

The anti-gay backlash was like the screeching cries of a teething baby: you knew it was coming, you knew there was nothing to be done about it, and you know it will soon be over.

More thoughts from Dynamist, Fake Gay News, Catallarchy.

Yesterday I blogged the following regarding the vote on Texas' bigot amendment:

The turnout is feared to be as low as ten percent. If referenda and initiatives are meant to reflect "the will of the people" (as if the "will of the people" trumps basic human rights and dignities), then why not impose, as legislatures do, a quorum requirement for any ballot proposition to be binding?

Well, the turnout was actually about 16%.

In other words, 84% of registered Texas voters just don't give a damn about gay marriage.

That seems like pretty good news to me, all things considered.

Keep that 84% number in mind when you here that Texans "overwhelmingly" passed the amendment.

The only thing that Texans "overwhelmingly" did on Election Day was stay home and watch television.

Now if we could just get the puny handful of bigots still making their hateful noise to do the same...

Some dispatches from the gay marriage front:

--The ruling by a federal judge that Nebraska's constitutional ban on recognition of any form of same-sex relationship (not just marriage) has made its way to the Circuit Court of Appeals. I blogged about the ruling previously. This case is particularly important because it is one of the few cases in federal court (as opposed to state court) based on claims under the federal Constitution (as opposed to a state constitution). It is also noteworthy because the challenge is not an attempt to require Nebraska to offer same-sex marriage, but simply to allow gays to lobby for the possibility of gay marriage or civil union legislation in the future. The case is being argued by the heroes of Lambda Legal, who are very careful in selecting which challenges to make; they don't sue from the hip. Court documents available here.

--The New Jersey Supreme Court, historically one of the most pro-gay courts in the country (e.g., Boy Scouts v. Dale), is hearing oral arguments on Wednesday in a same-sex marriage case, Lewis v. Harris. I'm embarrassed to admit that this case has not been on my radar screen. I do know that this case is, unlike the Nebraska case, based solely on the state's constitution and not the federal Constitution, so the decision of the New Jersey Supreme Court will be final. Lambda Legal is also the sponsor of this litigation. Here's a fun fact: the named gay plaintiff, Mark Lewis, is an Episcopalian pastor, as is his partner. The plaintiffs lost, 2-1, at the intermediate appellate level. More thoughts at Concurring Opinions.

--Senate Majority Leader Bill Frist has announced his intention to hold a vote on the Marriage Protection Amendment, a/k/a the Federal Marriage Amendment, in June (i.e., just in time to make it an election issue). I think that's wonderful. I want senators to go on the record, forever, on the issue of same-sex marriage. I want to see Republicans forced to stand up and declare, openly and unequivocally, that yes, they do think constitutionalizing bigotry is a good idea. I want to see Democrats forced to stand up and stop selling gays out and, for once, vote they way they keep promising to vote. Maybe some of them will even apologize for passing DOMA, ratifying Don't Ask, Don't Tell and passing the Solomon Amendment. This is just the kind of pox both their houses deserve. (And keep in mind that the vote is doomed to fail anyway, so there is no cause to fear — for a summary of the gay-marriage arithmetic, see my previous post.) More thoughts at Where the Dolphins Play.

(Cross-posted at Spectrum Bloggers.)

The Wisconsin Legislature has passed, with very partisan carefully crafted timing, a proposed bigot amendment to the state constitution for this November. The proposed amendment is among the more vicious of the versions we have seen, not just banning same-sex marriage but also civil unions and any and every attempt to confer any form of benefit to any unmarried couple. So much for the lie of "it's all about marriage."

This is not new news. The bigots in the Wisconsin Legislature have been lurking strategizing on this issue for a while, holding back until the point when such pandering to bigots grass-roots mobilizing would have the biggest political impact (i.e., when the governor is up for re-election).

Which invites the preliminary question of why, if gays pose such a threat to "traditional" (i.e., 1950's) marriage, wait so long to enact this amendment (besides the fact that gay marriage is already banned by statute in Wisconsin)?

In any case, here's the really interesting part of this theatrical absurdity:

"An issue of this importance will be decided by the people of this state — not an activist judge," Assembly Speaker John Gard, a Republican.

Ah, yes, "activist judges" overriding the "will of the majority." Same old same old.

There's just one problem with this argument in the context of the Wisconsin bigot amendment:

[Critics] contend the amendment would outlaw benefits such as health care provided by many municipal governments and private companies to partners of gay employees.

Supporters acknowledged the courts would have to sort out what benefits could be offered to gay and unmarried couples.

So apparently, in the eyes of the wizened legislators of Wisconsin, the best way to neutralize "activist judges" is by creating a judicial miasma in which each and every attempt by each and every Wisconsin employer or institution, public or private, to be anything other than an purely bigoted policy will now have to be litigated — before those very same "activist judges" — to determine whether it is sufficient discriminatory under this amendment.

Pure genius — or pure something.

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More thoughts from Wisconsin blogger PurpleScarf.

Do you think any conservatives, or any bigots, will get uppity over this "activist judge"?

A Davidson County [Tennessee] judge ... cleared the way for voters to decide in November whether the Tennessee Constitution should be amended to ban gay marriage.
...
Tennessee law says that a proposed amendment "shall be published six months previous" to the next election of the General Assembly.
...
The ACLU and gay and lesbian groups ... argued that the secretary of state didn't officially publish notice of the amendment until 4 1/2 months before the next election.
...
"Undercutting the plaintiffs' case is that the record is clear that due to the unusual and unique facts of this case of extensive and literal media and website coverage and that the text of the proposed amendment never changed from the time it was filed in the General Assembly, the proposed amendment was actually, although not officially, published well in advance of the six-month window required by the Constitution," [Chancellor Ellen Hobbs] Lyle wrote, in her 35-page opinion.

This is, of course, utter nonsense.

Everyone who has ever read a newspaper knows what "publishing a legal notice" means: it means, literally, publishing a legal notice — placing an official advertisement is a newspaper of general circulation. "Publish" is an active, transitive, verb: If the government must "publish" the amendment, then it must do, it must act, and it did not. End of discussion. There is no provision in the law for some ambiguous gobbledygook about "constructive publication." The law is the law — "publish" means publish — and this (activist) judge disregarded it.

So where is the conservative outrage?

Incidentally, if the position of the Tennessee government is that no official publication was required, then why did they bother publishing a (late) legal notice at all?

If the bigots are so intent on pushing through as many state constitutional amendments as possible before the tide of history washes them away, if the issue is so vitally important to them, then you would think that they would pay more careful attention to the duly enacted laws that they claim to cherish and not go crying to the same "activist judges" that they claim to abhor.

When they say they are guided by principles, they lie.

The case is ACLU v. Darnell. The ACLU is appealing, and I would like to think that their case is open-and-shut. Hopefully the Tennessee Supreme Court will "defend traditional publication" and undo this (activist) judge's flagrant disregard of a duly enacted and unambiguous law.

(Cross-posted at Spectrum Bloggers.)

"We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do."
--Romer v. Evans, 517 U.S. 620 (1996)

"Today the Eighth Circuit Court of Appeals affirmed Nebraskans' right to modify their Constitution as they see fit."
--Nebraska Attorney General Jon Bruning

Here is what I wrote in May 2005 about the Nebraska bigot amendment:

It is not merely a DOMA law. It is not merely a prohibition of same-sex marriage. It is a blanket prohibition against all forms of gay marriage and gay marriage equivalents or the granting of even the slightest benefit conferred by marriage. Not only can't gays get married, they can't get even seek the puniest benefit offered to married couples, by anyone, private or public, under any circumstances. Nebraska's Attorney General has openly admitted this. It bans everything even remotely related to the protections afforded by the legal status of marriage. In fact, as the opinion points out, the state's position on "marriage replication" through contract or other arrangement is that the only way partnered gays could seek legal recognition of any aspect of their partnership, would be to first disavow publicly that they are in fact partners. Kafka would be proud; Orwell would be humbled.

Here is what the Eighth Circuit Court of Appeals wrote about the amendment:

We likewise reject the district court's conclusion that the Colorado enactment at issue in Romer is indistinguishable from § 29. The Colorado enactment repealed all existing and barred all future preferential policies based on "orientation, conduct, practices, or relationships." The Supreme Court struck it down based upon this "unprecedented" scope. Here, § 29 limits the class of people who may validly enter into marriage and the legal equivalents to marriage emerging in other States -- civil unions and domestic partnerships. This focus is not so broad as to render Nebraska's reasons for its enactment "inexplicable by anything but animus" towards same-sex couples.

Oh really?

Me again:

Colorado: "absolutely no anti-discrimination laws of any kind."

Nebraska: "absolutely no partnership protection laws of any kind."

So the question as it applies to Nebraska becomes the following: Is "marriage" a sufficient subset of "everything" for Romer to apply? Or was the Colorado amendment so much worse than the Nebraska amendment that the Romer court's "shock and awe" over its implications would not be repeated were it reviewing the Nebraska case (as it may well in the future)?

Them (I'm paraphrasing):

The answer to that question is "no." Any form of constitutionalized bigotry that is less than a total absolute; any piecemeal form of bigotry -- no matter how irrational, no matter how motivated by mere animus -- is perfectly okay.

If this is now the consensus interpretation of Romer, then Romer is dead, as is essentially all federal litigation for gay rights.

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The appellate decision goes out of its way to cite Hernandez v. Robles, the hot-off-the-presses New York gay marriage defeat. One wonders whether the Circuit Court specifically held off on issuing their decision, hoping for a hook to hang their specious hat on.

Meanwhile, unlike the New York Court of Appeals, the Eighth Circuit panel also cites, wholly improperly, Baker v. Nelson, 409 U.S. 810 (1972), a moot (non-)decision of the Supreme Court that some suggest, wholly improperly, has already foreclosed any federal litigation over same-sex marriage. Gay rights litigants need to pay more attention to this (non-)decision and quash, once and for all, the invalid arguments against same-sex marriage that are based upon it.

The case is CEP v. Bruning, No. 05-2604 (8th Cir., 2006) (PDF - 15 pages)

Professor Larry Solum recently re-posted the entry from his ongoing project, the Legal Theory Lexicon, on the "Counter-Majoritarian Difficulty." Given the recent developments in same-sex marriage litigation in New York, Nebraska and elsewhere, it's also a good time for me to repost my commentary on his entry from June 2005, titled "On Gays and Democracy."

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Noted legal theorist Larry Solum has an ongoing project called the "Legal Theory Lexicon" in which he drafts introductory discussions of various topics in legal theory and jurisprudence. The entries are specifically designed for incoming law students and are suitable for lay readers.

Solum recently posted an excellent new entry on the "Counter-Majoritarian Difficulty" (also available here), which is basically the conundrum of what should be the limits of unbridled democracy (i.e., mob rule) and what role should judicial review by (generally) unelected judges play in the government of a free society?

Those following the gay marriage debate and the various litigations regarding "backlash" legislation, amendments and voter initiatives should consider Solum's entry an absolute must-read. It will give you the weaponry you need to debunk the fiction that the most basic rights are, or should be, up for a majority vote.

Solum identifies the following reasons why it may be valid to limit the power of the majority:

--Insular Minorities: The one I tend to invoke the most when blogging on gay rights — one example here. The argument is that most political factions or constituencies grow and shrink, rise to power and fall from power, win politically and lose politically, at least some of the time over history. But when you have a permanent minority, with no hope of ever becoming a majority, then the "game" of politics is unfairly rigged against them and they are entitled, if not to "special rights," then at least to a check on the ability of the majority to permanently disempower or oppress them. Sound familiar?

--Competing Values: A free society may simply choose to value certain positives more than (limitless) "democracy." Such values might include "liberty" or "equality" or "privacy." As someone said recently about Nebraska's anti-gay amendment: "If 99% of Nebraskans voted to bring back slavery, it would still be wrong." Although this argument can be quite useful when arguing for gay rights, and can have some appeal to libertarians, it seems to me a philosophical framework better suited to liberal supporters of gay rights. But if the shoe fits, then kick somebody with it.

--Dualism: This justification for counter-majoritarianism holds that, since politicians don't always vote based on what their constituents want (in fact, voters may not even know what they want regarding a novel question), the courts may in fact be protecting the will of the majority by striking down laws if judges believe politicians have "strayed" from voting based on popular opinion. This tranche clearly doesn't apply to voter initiatives (although it can apply if, as in the case of gay rights, popular opinion is changing significantly). In any case, dualism is not as important for gay rights as the first two justifications.

The sophomoric bromide that "it should be left to the voters" does not deserve the respect that people are giving it. Certain questions, indeed the most important questions, often should not be left to the voters. That's why we have a Constitution, including a Bill of Rights and a powerful Fourteenth Amendment.

Those working to "win hearts and minds" in the struggle for same-sex marriage, and for gay rights generally, need to equip themselves with the intellectual tools to succeed in that endeavor. Saying "Pretty please?" over and over will get us absolutely nowhere. A solid understanding of the Counter-Majoritarian Difficulty and how to disarm the "we're a democracy" crowd is absolutely essential to the debate.

Please read Solum's entire entry — and use it.

See if you can guess which institution of higher learning employs the professor of law who wrote this:

The United States, which historically was the world leader in defining and protecting basic human rights, has fallen behind many nations in protecting the fundamental human right (and basic social institution) of marriage. The FMPA votes in Congress this summer represent an ongoing commitment to secure such human rights protection by constitutional amendment.

That's right: the ability of a majority to oppress an insular minority by denying them equal protection of law, for no other reason than naked bigotry, is now apparently a "fundamental human right."

Answer here.

James Taranto on the Massachusetts constitutional convention that might send a bigot amendment to the voters in 2008:

If the proposed amendment fails, supporters of same-sex marriage could claim democratic legitimacy, something they lack now, whatever the merits of their position. [Emphasis in original.]

Oh my goodness.

First of all, this cockamamy gobbledygook going on in Massachusetts has nothing whatsoever to do with "democratic legitimacy." A system where a mere one-quarter of the legislature can send a measure to voters, who can then — with a mere 50%+1 of however minuscule a turnout as might occur — nullify the valid action of a duly seated court of ultimate jurisdiction is not wizened statecraft but a decrepit farce. It is not "democratic legitimacy," it is bigotry-by-loophole.

And besides — how many different ways can it be said? — rights must not be subject to majority (or worse, plurality) vote. Asking the majority whether it would like to tyrannize a minority is precisely the opposite of democratic legitimacy. Indeed, it is arguably the very definition of democratic illegitimacy.

I'm not sure precisely when or why so-called "conservatives" became addicted to direct democracy, a thoroughly un-conservative process. It was not the vision of the Framers; indeed it was among their worst fears. It is completely absent from the Constitution as it applies to the federal government. It arguably violates the spirit if not the letter of the "Republican form of government" clause of Article IV, Section 4.

Now that a bigot amendment has actually been defeated, not to mention the Republicans in Congress, it will be interesting to see how consistently so-called "conservatives" like Taranto will approach future ballot initiatives (e.g., to raise the minimum wage or to decriminalize drug possession).

Meanwhile, a loophole to the loophole in the Massachusetts circus will probably keep has successfully kept the bigot amendment off the ballot. Sauce for the goose, I guess. Hooray for "democratic legitimacy."

More thoughts from PHB, PurpleScarf, Outright Libertarians.

George Will recently had a column critiquing the nationwide 21 drinking age:

18-year-olds have a right to marry, adopt children, serve as legal guardians for minors and purchase firearms from authorized dealers, and are trusted with the vote and military responsibilities. So ... it is not unreasonable to think that they can, with proper preparation, be trusted to drink.

Nothing new there -- although the proposal that 18- to 20-year olds could, after completing appropriate classroom instruction, obtain "drinking permits" akin to automotive learner's permits is new (and sensible) to me.

The illogical and heavy-handed federalization (via highway funds) of drinking age laws serves as a classic libertarian poster child for the nanny state and the warm-fuzzy-feeling elevation of political expediency over rational statecraft. It's also a great recruitment tool to initiate discussions with young people about libertarianism in particular and politics in general. Again, nothing new there.

I on the other hand like to use the federalized drinking age in another way: as an example of how insular minorities suffer under majoritarianism.

The group "18-, 19- and 20-year olds" are fully participating members of our democracy; they have as much access to the political process as anyone else. There are rich 18-year olds, there are educated 19-year olds, there are well-connected 20-year olds.

Yet the group as a whole is and will always be a political minority. They will always be at the mercy of the majority. If the majority acts in a fair, enlightened manner, then of course the group has little to fear.

But that's a mighty big "if."

Which is precisely why unbridled majoritarianism -- "democracy" -- fails groups such as "18-, 19- and 20-year olds." And which is precisely why the admittedly "undemocratic" but no less enlightened check-and-balance of judicial review -- "activist judges" -- is so vital in a society that seeks to be pluralistic, just and free.

Of course, there's an added twist to the specific example of the federalized drinking age: people aren't 18-20 forever. They graduate out of the insular minority. That mitigates the failure of majoritarianism, but it doesn't eliminate it. "You'll be 21 someday..." is not a legitimate response to irrational age-based discrimination.

Now imagine how much worse the inequity is when an individual is permanently part of the insular minority. Imagine how unjust the federalized drinking age would be if some people were 20 forever. In such a world, the failure of majoritarianism, the injustice of irrational discrimination, is neither temporary nor insignificant.

Such is the struggle for gay rights.

Gays are the last unvindicated insular minority. The last group to be casually and insolently dismissed with a curt wave of the populist hand. "The people have spoken." "The will of the majority." "The democratic process in action." Ignorant bromide after ignorant bromide.

This is precisely what judges are supposed to prevent. If nothing else, if no other individual right is to be protected, if government is to be in no other way curtailed, judges are at least to do this much: protect insular minorities from the tyranny of the majority --

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments[.]
...
Nor need we enquire whether similar considerations enter into the review of statues directed at particular religious...or national...or racial minorities; [or] whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry[.]

That's from the "most famous footnote in history" -- Footnote Four from U.S. v. Carolene Products, 304 U.S. 144 (1938).

Libertarians tend not to like Carolene Products, because it was one of a number of "nails in the coffin" regarding judicial non-review of economic regulation. Still, Footnote Four can be viewed as a "half-full, half-empty" redemption. "No matter how much we judges emasculate ourselves, there are some lines we simply cannot let the legislature cross. We must, if nothing else, remain the last, best defenders of insular minorities."

Except for gays.

On questions of gay rights, especially same-sex marriage, court after court has cowered at the roar of the masses. When it comes to protecting fair, rational and equal treatment for gays, even Footnote Four seems dead.

The new mantra is not "judicial review" but "judicial deference." Not "checks and balances" but "check for legislative intent." Not "equal protection" but "equal abdication."

Will it always be thus? Hopefully not. Probably not. Gays will always be a political minority, but "gay friendlies" will not. Eventually there will be sufficiently large constituencies of disgust at anti-gay bigotry that either legislatures will accommodate them, or judges will be unable to ignore them.

That sort of "trickle up" victory is of course small consolation and wholly unacceptable. But for now it's all gays are going to get.

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.
--Loving v. Virginia

Today is the fortieth anniversary of Loving v. Virginia, 388 U.S. 1 (1967), in which the Supreme Court struck down anti-miscegenation statutes.

There will be no shortage of commentaries about Loving: examples at Lambda Legal, FindLaw Writ, Pam's House Blend, PurpleScarf.

For advocates of same-sex marriage, Loving is the beginning, but not the end, of the analysis as to what case law does and does not say about the issue. Anyone familiar with the debate knows the succinct response by bigots: "Loving was only about race."

This is, of course, utter nonsense. Loving was decided on two separate grounds:

1. Race (i.e., a suspect classification subject to strict scrutiny under the Fourteenth Amendment's Equal Protection Clause).

2. Fundamental rights (i.e., an infringement of a liberty interest under the Fourteenth Amendment's Due Process Clause).

Could the two prongs of Loving be untangled? Was Loving "only about race"?

That question was answered in 1978, in another marriage ban case, Zablocki v. Redhail, 434 U.S. 374 (1978). At issue in Zablocki was a Wisconsin statute that banned any person with minor children from a previous marriage from marrying again. Only those who could demonstrate to a judge that there was no reason to suspect that such children would become wards of the state could obtain an exemption. Stated differently, rich people with kids could divorce and remarry, but poor people with kids could not.

Race was in no way at issue in the law challenged via Zablocki. The Supreme Court had to confront, head on, the assertion that bigots repeat today: Was Loving "only about race"?

The Court ruled 8-1 that the Wisconsin law was unconstitutional:

Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. ... More recent decisions have established that the right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause.

Bottom line: Loving was not "only about race." Marriage is a fundamental right, period, and the government needs a compelling reason to interfere with that right.

Another interesting point about Zablocki is that the (purported) goal of the invalidated statute was "protecting children." The government, it was asserted, had an interest in making sure that children were not conceived in poverty, and that a person's right to marry could be abrogated in order to foster stable households. Sound familiar?

The Supreme Court was not impressed:

We may accept for present purposes that these are legitimate and substantial interests, but, since the means selected by the State for achieving these interests unnecessarily impinge on the right to marry, the statute cannot be sustained.

The fashionable — and thus far successful — approach of the bigots has been even less viable than the approach of the paternalists in Zablocki. By definition, there actually were children involved in any potential marriage blocked by the Wisconsin statute. But where gay marriage is concerned, the children are often hypothetical.

As I have explained previously: gay marriage bans designed to, somehow, "foster procreation" are both unconstitutionally underinclusive (we do not require married heterosexual couples to procreate) and overinclusive (we do not ban unmarried gay couples from bearing or raising children). If the "it's all about the children" basis of the Wisconsin statute failed to meet strict scrutiny, then how can a gay marriage ban possibly survive such scrutiny?

In this I think the advocates in the New York and Washington cases may have strategized poorly. Their briefs and their oral arguments in the appellate courts should have been "all Zablocki, all the time." Loving is a very sentimental case, one that this country should be very proud of. But it can also be a distraction.

(Incidentally, I see a similar tendency of gay rights advocates to rely too heavily on Lawrence v. Texas and too little on Romer v. Evans, which may be more arcane but is far more powerful as constitutional law, especially in the context of gay marriage. See, e.g., this post.)

Loving was too important a case not to commemorate on its fortieth anniversary. But at the same time, the stakes are too high to rely on sentimentality and the "easy cases." The bigots have concocted cockamamie "counterarguments" at every turn, including their disingenuous insistence that "Loving was only about race." Those who intend to spar with them must have the right weapons. Loving is not enough.

The Massachusetts Legislature is today convening to vote, yet again, on the question of whether to overturn, by bigot amendment, the decision by the commonwealth's Supreme Judicial Court mandating same-sex marriage:

By all accounts, House Speaker Salvatore F. DiMasi, Senate President Therese Murray, and Governor Deval Patrick, all strong supporters of gay marriage, were within one or two votes of blocking the proposal from reaching the 2008 ballot.

The three have spent the last few days prodding, cajoling, and lobbying wavering lawmakers who previously supported the measure. The razor-thin margin will heighten the drama of what is expected to be an emotional and tense showdown at today's session, scheduled to begin at 1 p.m.
...
The voter-initiated constitutional amendment, which would define marriage as a union between one man and one woman, must win the support of at least 50 of the state's 200 lawmakers in two consecutive legislative sessions to win a place on the 2008 ballot.

Whichever way the vote plays out, this is a sad state (commonwealth?) of affairs. Even if gays and their non-bigot allies win, under this cockamamie process, everyone loses.

There are two reasons to be cynical:

1. Legislative leaders, and executives, should simply not wield so much power and influence that they can buy votes as casually as they do. Eight votes short? Fine — let's dredge up as many pork projects, committee appointments, staff increases, corner offices, etc., as it takes. Principles — even misguided principles such as anti-gay bigotry — simply drown in a sea of omnipresent moral defectiveness. This is of course not solely a Massachusetts phenomenon (see this post), or a state phenomenon (see this post). It's quite simple really: If government didn't do so much, and tax so much, then this kind of shameful haggling could not happen. There is nothing so dangerous as reliance on the benevolence of government generally or politicians specifically.

2. Massachusetts' system of requiring only one-quarter of legislators to vote in favor of a constitutional amendment for it to go to the voters is just plain nuts. If Article IV, Section 4's "republican form of government" clause had any potency (it does not), then surely this bizarre system would violate it. For more on this topic, see my previous post.

Finally, of course, insular minorities should never be subject to the tyranny of the majority. Period. Individual rights should never be put to a popular vote. Period. Second-class citizenship is a bigoted contradiction in terms. Period.

UPDATE: A stench-enveloped victory.

Posted without comment:

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God's plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others. Especially if it denies people's civil rights.

I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about.

--Mildred Loving, "Loving for All" (PDF - 2 pages)

(Prepared for Delivery on June 12, 2007, the 40th Anniversary of the Loving vs. Virginia Announcement)

(Via Freedom to Marry.)