Thursday, January 31, 2013

Answer to Jake III - Not the 1st, but the 14th

Here is my response to Jake on the constitutionality of anti-SSM legislation.
2) I am not a constitutional law scholar, and many of the complaints you voiced (“I read the constitution once, ergo I can teach law students!”) are no doubt applicable to me.
Actually, you do a really superb job in your argument. The inevitable consequence under Murphy’s Law of complaining about yahoos on the internet not understanding your field is that the person you are complaining to will then proceed to mount a politely deferential yet expertly sophisticated argument, thereby making you look like a rank-pulling jerk, and possibly a rank-pulling jerk who doesn’t know his own field well enough. Which is pretty much what happened here. Mea culpa. And well played, sir. Well played.
I would like to draw a strong parallel between anti-SSM legislation (Hollingsworth v. Perry) and the teaching of Intelligent Design theory in classrooms(Kitzmiller v. Dover Area School District). Through referencing the decision in Kitzmiller, I will attempt to demonstrate that there is precedent for a law being deemed unconstitutional if it is a clear application of religious ideology without a valid secular basis, even if the wording of the law itself is not explicitly religious. I largely leave the argument about whether or not anti-SSM falls into this category by the wayside, for two reasons- firstly time, space, and the late hour at which I write this, and secondly, because it does not seem to be the thing which raised so many hackles over in the original thread. The main objections came to my claims of how to treat such a category, rather than whether anti-SSM legislation fell into this category (whether or not it does is obviously a hugely important question, but one to be left for another time, I think.)
I think I owe you apology for a lack of clarity, based on the above. To be honest, a big part of my problem with the argument *was* that the category of clearly religious laws is narrow enough that a pro-SSM decision isn’t going to be made in this area, as opposed to equal protection. So whether anti-SSM legislation falls into this category, and indeed whether religiously motivated socially conservative legislation generally falls into this category, was kind of a core area of disagreement for me. But, obviously, I failed to make that clear. Which is on me. Sorry about that. At the very end of this post, I’ll return to Hollingsworth, and give you what I think is the core of my view on all of this. (Stay tuned!)

For those who don’t want to click through, the Kitzmiller decision ruled that “the religious nature of ID [intelligent design] would be readily apparent to an objective observer,” and that “A significant aspect of the IDM [intelligent design movement] is that despite Defendants' protestations to the contrary, it describes ID as a religious argument.” They further said that “The overwhelming evidence at trial established that ID is a religious view.”

In light of this, the judge ruled that “The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Board's ID Policy violates the Establishment Clause.”

No disagreement here. ID is essentially an Evangelical (or perhaps more accurately, Fundamentalist, in fairness to more level-headed Evangelicals) Protestant religious teaching (that happens to tart itself up as a pseudo-science). Since it’s religious doctrine, teaching it in public schools is an establishment of religion. The pseduo-scientific veneer doesn’t make it any less purely religious than Scientology’s Dianetics. However, the key point is that it’s a religious *doctrine*, not a religiously motivated policy preference, like, e.g., abstinence-only sex education. In fact, “Just Say No” sex ed. is more equivalent to anti-SSM legislation: secular folks think (often rightly) that the secular justifications for it are junk. But in Kitzmiller, you’re not dealing with a religiously motivated social policy, but with a religiously derived “view.” That word “view,” i.e., doctrine or dogma, is doing a lot of the work. Also, where Kitzmiller says that “the religious nature of ID would be readily apparent to an objective observer,” they are saying that the religious nature of *ID itself*, not merely of the motivations for wanting to teach it, are religious. By analogy: a Nativity creche is a religiously motivated display, but it is also, *itself* a religious object. An abstinence-only sex. ed video might be displayed to students for religiously motivated reasons, but it is itself a secular (if socially conservative) object.
Again for the click-weary, the endorsement test “asks whether a particular government action amounts to an endorsement of religion, thus violating the Establishment Clause of the First Amendment.” This renders a government action invalid “if it creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion.” Now an argument could be made here for anti-SSM laws failing the endorsement test by creating the perception in the mind of a reasonable observer that the government is endorsing Christianity. However, I think this argument is much weaker than the next, so I will leave it with just a mention and not pursue it further.
Well, yeah, it is much weaker. That’s why, when I erroneously thought you were making it, I got all grumpy. Plenty of socially conservative Jews, Muslims, and atheists oppose SSM for various reasons. Anti-SSM laws might be bad public policy, but they’re not an endorsement of Christianity or any other religion. Now, if a public school were to teach a bunch of “pray the gay away” nonsense, that *would* run afoul of the Establishment Clause, since that’s as much a religious doctrine as I.D. Indeed, even if the public school were to teach that sodomy is immoral, they would be teaching a controversial religious doctrine, IMHO. Of course, the many schools in places like Massachusetts that specifically teach that it is to be affirmed as not immoral are also, IMHO, teaching a “religious” (although use of that word for secular/atheist/liberal Protestant beliefs has various issues atheists are understandably vexed by) doctrine. Public schools ought to just affirm everyone in the human dignity that makes it wrong to bully people, and leave discussion of sexual morality to parents. But that’s another thread.
The Lemon test is, in my mind, the clincher of this debate. The Lemon test, as established in Lemon v. Kurtzman, consists of three prongs:

1. The government's action must have a secular legislative purpose;

2. The government's action must not have the primary effect of either advancing or inhibiting religion;

3. The government's action must not result in an "excessive government entanglement" with religion.

If any of these 3 prongs are violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.

On the strength of prong 1 alone, I consider my point to be valid. If anti-SSM legislation cannot be demonstrated to have a secular legislative purpose (as was the case with Intelligent Design), then it is unconstitutional. Further, I would argue that prong 3 applies to anti-SSM legislation as well.

Your prong 1 argument is a much stronger argument, but I think it still fails. Anti-SSM legislation does have secular purposes, mostly centered on intuitions about optimal environments for child rearing. The live question in SSM cases, I think, is not going to be whether they establish religion or fail to have any secular purpose at all. If they were to be decided on that basis, I think it would be a pretty tendentious misreading of what the relevant legal questions are. (Although with this Supreme Court, you never do know.) Assuming the best of SCOTUS, the key decision is going to be whether the anti-SSM secular purposes are compelling enough to overcome the deep Equal Protection concerns raised by denial of civil marriage to SSA folks. Where attorneys defending anti-SSM arguments are flailing isn’t in attempting to lay out (often really poorly thought-through) secular justifications, it’s in attempting to lay out secular justifications cogent enough to overcome Equal Protection concerns. The fact that the poorly reasoned secular justifications attorneys from various conservative advocacy groups keep arguing are so bad does reveal to commonsensical observers that religion is the primary motivation for a lot of these folks. And the fact that these justifications are a rather shoddy veneer over religious motivations does make a Lemon-type analysis tempting: that’s why I think your prong 1 argument is much stronger than your others. But I have trouble imagining an “establishment of religion” basis for a decision when the mind-reading motivation basis is so much murkier and harder to apply in a bright-line way than the Equal Protection basis.

Your prong 3 argument misfires, IMHO. An example of excessive entanglement would be a voucher program that funded the salary of the religious education teacher at a parochial school. Excessive entanglement concerns arise when government attempts to provide vouchers for parochial schools or funding for faith-based charities or Catholic hospitals or whatever. It’s an important area of the law, but it isn’t really mission-relevant for our issue here. Prong 3, I think, is an example of where even a very intelligent layman can get into trouble with legal reading: “excessive entanglement” sounds like it might mean something like “Legislators getting entangled in non-secular thinking by listening to the advice of Christian cranks instead of sound secular policy analysts when writing legislation” and the English words do bear that meaning if you read them without prior knowledge. But just as a matter of technical usage derived from the accidents of legal history, that’s not what the “excessive entanglement” area of law happens to encompass. (One of the frustrations of researching some new (to me) sub-specialty of the law on Westlaw or LexisNexis for a case I’m working on is when some promising search term turns up a bunch of cases that, on further reading, are about a semantically related, but legally distinct issue from the one I need to find an answer on. Occupational hazard of legal reasoning. Probably happens to professional philosophers and other members of jargon-slinging professions a fair amount, too.)

So I return to my original claim:

“My lay understanding of the Constitution supports the notion that if a moral question is religious in nature, and cannot be adequately addressed secularly (or if the secular answer is clear and in opposition to the prevalent religious answer), then legislating that religious answer counts as limitting the free excercise of other people who would seek to make a religious decision counter to that made by the majority.”

Your response was that that is “a pretty common lay misunderstanding.” Based on the legal precedent I have cited, in particular prong 1 of the Lemon test, I contend that it is in fact a valid interpretation of the Constitution, and is applicable to the constitutionality of anti-SSM legislation.

You made the claim that “your distinction between questions that can be adequately answered with only secular reasons and those that are merely religious would be an impossible nightmare for courts to adjudicate.” I contend, again based on the precedent I’ve cited, that the courts do indeed make this distinction. I do not, however, contend that they are perfect at it. It does seem quite difficult. But as far as I can tell, it’s almost exclusively difficult decisions that end up in the courts in the first place. Isn’t it kind of their job to make difficult decisions based on necessarily vague law and reasonable precedent?

Courts strive to find bright line rules to apply wherever possible. Allowing the rather murky “secular legislative purpose” test to metastasize into Equal Protection cases would just leave the courts reaching similar results after a lot more work. It is a lot easier to adjudicate whether two people are similarly situated, and if so whether they are being similarly treated, and if not if there is a compelling justification for the discrimination, then it is to get into characterizing the religiosity of legislative motives. If courts can do it the easy way, they should and usually will. I contend both that an Equal Protection analysis is the easy way here, and that courts will adjudicate these cases that way.
I find it difficult to evaluate your claim that “people who know law know (with a few academic exceptions on the left, I presume and preemptively concede) that [this view of how the first amendment works is] wrong,” The evidence I have is that two very strong Catholics (you and the original anonymous commenter) who clearly know much more than me about constitutional law think I’m wrong, and say that the vast majority of law professionals agree with them. I am not a law professional, nor do I have experience with law professionals to draw from, but an attempt to find opinions that agree with me was trivially easy ( This one is a good example, though as far as I can tell written by an undergrad. This one is a bit more balanced, but certainly doesn’t give the impression that first amendment arguments against anti-SSM are a decided matter). Moreover, I think the precedent (and the discussion in legal circle reachable by a quick google query) is clear that this is at least a _discussion_, rather than an open-and-shut “you’re blatantly misinterpreting the first amendment” that you and anonymous seem to think it is.
I’m willing to concede that I may have overstated the degree of legal consensus in this area. However, I should note that it’s pretty easy to google up student law review articles–and even law professors’ law review articles–taking positions that most legal scholars think are crankery. There is always going to be some professor somewhere with a pet crank theory. Contrariwise, the caution to people in my position is to remember that the consensus that something is a crank theory is only true until it isn’t: the overwhelming majority of non-Tea Party-affiliated, non-libertarian legal academics thought the whole “broccoli mandate” argument against Obamacare was nuts, and then, lo and behold, Justice Roberts pretty much adopted it in the course of his decision upholding the mandate as a tax rather than an actual mandate.
Similarly, I think your claim that the fact that Blue Laws are still on the books means they are somehow constitutional (and by extension, I ought to jettison my current understanding of constitutional law) miss the mark for several reasons. Firstly, most blue laws have been repealed.
Repealed after legal challenge, or repealed due to unpopularity with a less puritanical modern electorate? The latter doesn’t make them unconstitutional.
Secondly, the specific blue laws that we’re talking about (alcohol sale) to the best of my knowledge have never been challenged. Thirdly, in the decisions that maintained some other Blue Laws, the ruling was that there was a compelling secular purpose for those laws, which is exactly the distinction we’re discussing in the overarching thread (a distinction you seem to claim is invalid). Fourthly, I am certainly not alone in my view of the constitutionality of Blue Laws (as Justice William O. Douglas wrote in his dissenting opinion on McGowan v. Maryland, “I do not see how a State can make protesting citizens refrain from doing innocent acts on Sunday because the doing of those acts offends sentiments of their Christian neighbors.”)
IIRC, you asserted somewhere that you thought Blue Laws were unconstitutional. If a compelling secular purpose has been found for them, then they are not. Justice Douglas is certainly correct that offending Christian sentiment is not a compelling secular purpose. However, as I note in my recent blog post on my opposition to continuing prohibition of narcotics, America’s patchwork of pesky liquor laws has made it harder for alcohol purveyors to “rationalize” the liquor market into an efficient delivery system for cheap, addictive liquor akin to the disaster of the more “rationalized” distribution system that has afflicted Britain with so many violent “lager louts.” Thus, as you agree, there is a compelling secular purpose for those laws. The only reason, I think, that the First Amendment really came into it is specifically because a lot of Blue Laws are specific to Sundays, and the choice of that day does indeed seem rather arbitrary in the absence of religious motivation. “No work on the Sabbath” laws, e.g., even if rephrased to “No work on Sundays,” raise real establishment of religion questions. Why shouldn’t agnostics, atheists, Jews, Muslims, and Seventh Day Adventists work on Sundays? You can make a secular argument about the need for a coordinated day off, but it’s quite shallow, and the matter starts to look a lot like I.D. The fact that Sunday-specific laws have nevertheless survived indicates to me, at least, that courts are not eager to apply First Amendment considerations willy-nilly, since Sunday-specific laws seem a lot closer to the core of establishment concerns than SSM laws. Thus, to me, the survival of Sunday-specific laws is symptomatic of courts preferring to decide these cases on other grounds. YMMV.
Finally, re: your rather apathetic view of the Constitution as law of the land, but not a good measure of morality. I actually agree with you. The constitution is the law of the land, and therefore a discussion of its implications is extremely important. However, my objects to anti-SSM legislation are fundamentally _not_ “it violates the rules laid out in this rather arbitrary document written several hundred years ago by people with whom I disagree on a number of moral issues.” My objections to it are moral, and I use the Constitution as an attack vector to try and take on what I think are immoral laws (which, if you think about it, is what a constitution is for*). It just so happens that I also think the constitution (as it is currently being interpreted) has it right. But the constitution isn’t magic. Things don’t suddenly become “right” if we pass an amendment- they just become legal.
I defer to the Magisterium of the Church on the advisability of SSM. However, as a legal analyst, I think the Constitution *does*, under current jurisprudence, back your moral view. I just don’t think it’s the First Amendment that backs your view. It’s the Fourteenth (and to a lesser extent the Fifth) Amendment that backs you. The Equal Protection Clause of the Fourteenth Amendment, and the substantive due process guarantee that modern jurisprudence has built up against the feds through the Fifth Amendment and the states (more relevant here) again through the Fourteenth, is where you are going to win. Take a look at Hollingsworth. SCOTUS granted certiorari in that case on two issues: “(1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case.” The standing issue is inside baseball about whether the Court can adjudicate this particular case. The substantive legal question is Equal Protection. You’ll note that, pace what you’d expect from that guy from the First Amendment advocacy shop whose paper you linked to, there is no First Amendment question granted review. Equal Protection asks why two similarly situated individuals are being treated differently by the government. Substantive due process (a fuzzy doctrine I dislike, but definitely the law of the land), asks if a plaintiff is being denied a right not specified in the Bill of Rights, but nevertheless “implicit in the concept of ordered liberty.” Substantive due process would be a bit of a reach (although not as much of a reach as your establishment of religion argument), and is not a question here. However, as SCOTUS has recognized, this case is right in the Equal Protection wheelhouse. Here’s how it will most likely go at oral argument, with a supporting actor appearance by the First Amendment that you’ll be pleased to see:
Justices: Why are you discriminating between similarly situated gay and straight individuals who want to marry another consenting adult? How is that not a violation of Equal Protection?

Conservative Advocacy Shop Lawyer: Well, a bunch of studies show that kids need a mom and a dad. They turn out all weird and stuff if they have two parents of the same sex.

Justices: Yeah, most of those studies are junk science. Hardly a *compelling* state interest without more methodologically rigorous studies than are currently available. What else ya got?

CASL: Well, y’know, (some religious or metaphysical argument).

Justices: Yeah, those arguments aren’t compelling state interests, because the interests they implicate (like pleasing God, flourishing according to a certain metaphysical idea of what human flourishing consists of) are essentially religious interests under the First Amendment, and the State of California isn’t allowed to establish religion under the First Amendment. You need to give us compelling secular arguments if you’re going to meet this Fourteenth Amendment Equal Protection challenge.

CASL: I got nothin’.

Justices: You lose. On Equal Protection grounds: there isn’t a *compelling* secular interest available to justify discrimination against the similarly situated marriage license applicants here, [and the arguments that ARE intellectually cogent are grounded in things like Thomist metaphysics that aren’t really non-religious secular public reasons for First Amendment purposes, even if they would’ve been prior to the philosophical turn toward mechanism in the seventeenth century, because that’s not the public square we live in anymore.]

(Well, they won’t say that last part. But it’s still (sadly, IMHO) true. For more on why that last bracketed part is true, my verbose post on the failure of what I call “Vogt’s Essentialist Argument” has a lot more on why realism about essences (on which natural law arguments depend for their teleology) is not an ecumenically “secular” position in our ever more nominalist world.) Anyway: so you’ll prevail, I predict. But NOT on First Amendment grounds! The First Amendment will render certain justifications for banning SSM unavailable, that’s all. But it will be the failure of the *secular* arguments to rise to the level of being really compelling when the quality of the sociology in this area is . . . less than one would hope for . . . that will ultimately cause anti-SSM bans to fall as not having a good enough secular reason to deny Equal Protection of the marriage laws to similarly situated individuals.

TL;DR: This whole tempest may have been in a teapot. I agree with your core contention that pro-SSM folks are going to prevail in the courts, sooner or later. (Probably sooner.) It’s just that, hypertechnical pedant that I perhaps am on this point, it drives me up the wall to see arguments that you all are going to prevail on First, rather than Fourteenth, Amendment grounds.

Part of that is just because I like to see people get the law correct. But another part of it, frankly, is because, on blogs like Leah’s, foregrounding the First Amendment side issue of certain arguments not being available to the government to explain their “compelling” reasons just leads to squabbles about what reasons are and aren’t religious that just sort of depress me. Anyway, here’s my contention in a nutshell: Your side of the civil SSM debate will prevail in the courts. About this you are correct. You are, however, incorrect, as the grant of certiorari in Hollingsworth shows, that the Establishment Clause of the First Amendment will be the deciding issue. That will be the Equal Protection Clause of the Fourteenth Amendment. That’s it. That's all I've been disagreeing with you about this whole time. Sort of a hypertechnical quibble maybe: but us lawyers are trained to care about such things.

1 comment:

  1. Irenist's discussion of the third prong is sufficient. The first prong has been used in three contexts: posting of religious symbols (e.g. ten commandments), school prayer, and creationism. Even the first group has produced really hard to follow rules, as they seem to be flip flopping with particular symbols (and as the justices turn over). Regardless, it's clear that the first prong does not have a compelling secular legislative purpose test as the 14th amendment requires. We don't really know where the bar is exactly, but it's definitely low enough that laws about SSM can get over it.

    Even the simple argument about procreation could likely pass (before people resort to child rearing environment arguments). The response to, "You let infertile people marry!" is to simply point out that such a test for fertility is intrusive, while seeing that it is two people of the same gender is not. (The same thing applies for questions like whether roommates can "marry" for financial purposes... the alternative is (rather intrusively) checking to see if they're actually having sex.)

    Of course, detailed analysis of the Lemon test and Equal Protection have sidetracked us completely from the original contention - whether or not you're allowed to make religious arguments for laws. Clearly, you can (unless your subject is so integrally tied to religion that you have literally no possible secular argument). Religious arguments are even allowed to be the primary driver for voters and politicians. There is no prong to the Lemon test that says a law violates the Establishment Clause if XX% of voters or YY% of Senators who voted for it did so because they were persuaded by religious arguments.

    In the absence of the Equal Protection claim, anti-SSM laws would clearly surpass the Establishment Clause bar, and we wouldn't be talking about it. It's only possible to talk about it because the court is only considering the Equal Protection claim. This means that nobody has to think too much before they start saying things about Establishment... and they can easily mistake a result that anti-SSM laws lack (*sufficient compelling) secular reasons (*to overcome Equal Protection) for a result that they lack any secular reasons whatsoever.