Misreading Windsor

Ever since the Supreme Court handed down United States v. Windsor last June, law professors and journalists have pondered over what it meant and criticized the majority’s perceived lack of clarity.  There are two major complaints: (1) ambiguous categorization; and (2) whether Windsor‘s holding relied on principles of federalism or Equal Protection.  

The complaint about ambiguous categorization in Windsor is a fair one.  When courts review laws that discriminate against a certain group, courts do so using a certain framework created by the Supreme Court to determine whether those laws violate the Equal Protection Clause of the Constitution’s 14th Amendment.  In most instances, the government–the defending party in such cases is always a governmental body–is given the benefit of the doubt and the law is upheld.  This is called rational basis review.  But when it comes to certain categories of people, the so-called “suspect classes,” the standard the government needs to meet is much higher, and therefore those laws are generally deemed unconstitutional.  This is called “heightened scrutiny.”  The major categorizations for suspect classes are race, gender, and national origin.

Sexual orientation is not one of the suspect classes that I named.  Despite the outcomes in Windsor and its predecessor cases Lawrence v. Texas and Romer v. Evans, the Supreme Court never explicitly said whether sexual orientation is a suspect class.  The judiciary, federal and state, has taken all sorts of approaches absent Supreme Court guidance.  In recent months, some federal courts, most notably the Court of Appeals for the Ninth Circuit, have looked at Windsor and decided that even though the Supreme Court was not explicit, overall jurisprudence indicates that gays and lesbians are indeed a suspect class.  This is the rationale behind the gay juror case that I addressed in my last post.

As I said above, this continued explicit guidance is a fair criticism.  I do not particularly agree with it, because I think the Ninth Circuit read the tea leaves correctly.  Nevertheless, I can understand the frustration and acknowledge its validity.

The other complaint though, I do not understand at all.  It follows as such: the Windsor majority left the judiciary in limbo because the Court did not distinguish whether Windsor was a federalism decision (i.e. whether the federal government unconstitutionally encroached onto states’ rights) or an Equal Protection decision.  This is important because when state bans on same-sex marriage come before courts, those bans will probably fail under an Equal Protection framework but succeed under a federalism one.  On Slate, Dahlia Lithwick and David S. Cohen co-wrote a column suggesting that Windsor is an Equal Protection decision, not because the Supreme Court wrote it that way, but because subsequent state and federal judges have unanimously interpreted it as such.  By Lithwick and Cohen’s count 18 of 18 court decisions (and 32 of 32 judges) have all come to this conclusion.  That unanimity is essential to Lithwick and Cohen’s thesis.  They posit that judges could have interpreted Windsor as a federalism decision, but because they are universally choosing not to do so, eventually nation-wide marriage equality is inevitable.

I don’t disagree with Lithwick and Cohen’s conclusions; Windsor is indeed an Equal Protection decision, and marriage equality is inevitable.  Where I disagree with them–and all the other law professors and journalists who have spilled much ink on this subject–is this misconception that the Windsor majority was unclear.  Windsor is not an Equal Protection decision because subsequent federal judges read it as such; Windsor is an Equal Protection decision because Windsor is an Equal Protection decision.  This is not a tautology; the Court’s methodology is in the text, and it is not hidden.  The reason that 32 of 32 judges have decided the way they did is because they can read.

I believe that the bulk of the Windsor decision comes not from the majority opinion, but from the dissents.  There are two dissents of note in Windsor, one from Chief Justice John Roberts, and the other from Justice Antonin Scalia.  (There was another one from Justice Samuel Alito, which amounts to, “I’m scared of new things because I don’t understand them, and I don’t like them.”  As such this dissent has been forgotten.)  Scalia’s decision is the more famous of the two, because it was written by Justice Scalia.  When he dissents, he fulminates with puffed up, operatic rage.  In his Windsor dissent, Scalia rewrote the majority opinion to apply to state laws.  Perhaps he thought he was being cutting, but to date at least four federal judges who ruled in favor of equality have cited his dissent as a basis for their opinions–classic benchslap.

While Scalia’s opinion is the more significant dissent, Roberts’s opinion is the reason why everyone is confused.  The Roberts dissent tried to limit the scope of Windsor by painting the majority decision as a federalism decision.  Significantly, none of the other dissenting Justices signed on to the Roberts dissent.  Scalia mocked it.  So why have so many law professors, pundits, and journalists wondered whether Windsor is federalism opinion?  Perhaps it is because John Roberts is a very smart man.  Perhaps it is because no one wants to believe that the Chief Justice of the United States deliberately misinterpreted a judicial opinion in a way unworthy of the cheapest political hack.  Perhaps it is because they need something to debate.  I have no idea, but they are wrong.

While at least three or four federal judges have gone toe-to-toe with Scalia, not even one has engaged the Roberts dissent.  Yes, they have heard federalism arguments, and yes, they all held that Windsor is not about federalism, but they have not refuted Roberts’s dissent so much as ignored it.  There is a reason for that, and it is not just that Roberts, whose opinion lacked hysteria, is a far less easy target to mock.

On pages 18 and 19 of the Windsor slip opinion, Justice Anthony Kennedy addresses the question about whether Windsor is a federalism opinion.  (Highlighting is mine, and I removed citations to previous cases, but otherwise kept the citation intact.)

Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. ““‘‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’’””

The Federal Government uses this state-defined class for the opposite purpose——to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

Kennedy’s language is flowery, as is his wont.  Nevertheless, his meaning is quite clear.  This quoted section is the pivot in the legal reasoning.  Prior to this excerpt, Kennedy wrote in great detail about federalism principles, and how it has historically been the right of the states to define marriage.  Had he stopped there, Windsor would have indeed been a federalism decision.  But in the above excerpt Kennedy writes that it is not principles of federalism that are central to Edie Windsor’s case.  Federalism principles mattered in Windsor only because Congress’ violation of those principles in enacting DOMA signaled a suspicious and insidious ulterior motive.  That something, Kennedy concludes in the next section, was animus toward gays and lesbians, which is unconstitutional under the implied equal protection guarantees of the 5th Amendment.*

Scalia understood all this and would not let it go unchallenged.  He also understood, that if the judicially manufactured equal protection guarantees of the 5th Amendment applies to same-sex couples, then the next logical step is that the actual equal protection guarantees of the 14th Amendment must also apply.  The only possible outcome is for state bans on marriage equality to also fail constitutional scrutiny.  The Windsor majority may not have explicitly stated this, but their inherent message to the federal judiciary was equally loud and clear as Scalia’s overwrought one.  That is why all subsequent decisions have unanimously sided with marriage equality.


*  There is no Equal Protection Clause in the 5th Amendment; the Equal Protection Clause is unique to the 14th Amendment.  The 14th Amendment however, applies only to the states and not the federal government, which could have been a source of major embarrassment for a Supreme Court that wanted to combat discrimination.  The most famous use of the manufactured 5th Amendment equal protection guarantees is found in Brown v. Board of Education.  There were actually five cases collectively known as Brown, and one of those cases, Bolling v. Sharpe, came from Washington DC.  As Washington DC is not a state and under federal government control, the 14th Amendment does not apply.  Thus, the Warren Court used the 5th Amendment for the DC case and the 14th Amendment for the state cases .

Lawrence Revisited

A tempest in a teapot has emerged in legal circles over the past week.  Dale Carpenter, a libertarian/conservative, gay law professor at the University of Minnesota Law School, published his new book, Flagrant Conduct,* which details the story behind the seminal gay rights case Lawrence v. TexasLawrence is a case which I have many reservations about, but I have been waiting for a book like this since the Justices announced their decision in 2003, and I cannot wait to read it.  I also have reservations about Carpenter, but I suppose it could only be he who wrote the book, primarily because he eviscerated the gay rights movement’s most cherished myth about the case–John Geddes Lawrence and Tyron Gardner, the interracial couple who were arrested for having sex in their home, were (1) not a couple, and (2) not having sex when they were arrested.

Carpenter’s book received surprisingly little attention on the gay blogs until a bombshell hit; Dahlia Lithwick of Slate wrote a very positive review of the book for The New Yorker where she discussed at length the truth behind Lawrence.  Although Lithwick insinuated that the lawyers behind Lawrence were somewhat disingenuous about presenting the facts, she (and Carpenter too) was clear that there was nothing dishonest in the case made to the Supreme Court.

The first angry response came from Kevin Cathcart, the Executive Director of Lambda Legal, and a man deeply involved with the Lawrence strategy.  His defense however, was very weak tea; it amounts to him claiming that the litigation team never misrepresented the facts–a completely different charge from the one Lithwick (and Carpenter) supposedly leveled at Lambda and Co.  It’s not a fair (or good) rebuttal, and I am not alone in noticing that.  Carpenter did his research, and Cathcart does not rebut anything factual.

Others have also jumped into the fray.  Ari Ezra Waldman, Towleroad.com’s resident law professor, took a macro view.  Siding with Cathcart, Waldman wrote that Lithwick did not understand “what gay rights are really all about.” His argument is that Lambda Legal and company simply took a case that could bring them victory and crafted the appropriate litigation to put the best facts forward (as any good lawyer should).  Waldman is a bit in love with his own writing, and it is sometimes difficult to get his point, but his (stripped down) argument is that it wasn’t so much Lawrence and Gardner who were the focus of the case, but rather gay people as a whole.  In this he is correct.**  Where Waldman is incorrect is in claiming that Lithwick misunderstood this, which is not true.  A close reading of her New Yorker review indicates that she very much gets this.  For his part, Waldman fails to comprehend that Lithwick is not evaluating legal strategy; she is reviewing a book about the Lawrence litigation.

In contrast, on Salon, Linda Hirshman takes a micro approach and focuses completely on Lawrence and Gardner in a blog post provocatively titled “Lowlifes deserve justice too.”  Hirshman argues that it is rare for the perfect plaintiff to appear, and almost never in a criminal case, which Lawrence was.  This is something Lithwick discussed in her review.  Because of issues such as child custody and employment, gay couples who would otherwise be “perfect plaintiffs” would not (and indeed could not) get involved.  Hirshman, like Waldman, is correct in the points she makes, but she completely misses the point of the entire controversy.  The issue is not whether Lawrence and Gardner were the best of all possible plaintiffs (clearly they were), but whether their lawyers represented them honestly.

I cannot comment on Carpenter’s book, not having read it, but I do feel secure when I say that everyone from Lithwick onward has completely missed the most important point about Lawrence.  It had nothing to do with John Lawrence, Tyron Gardner, or their lawyers and everything to do with the nine Justices of the Supreme Court.

The implication behind the debate between Lithwick and her defenders is that the Justices cared about the facts of the case.  They did not.  Nor does this debate give the Justices enough credit.  Each one of them was at one time a lawyer, and all of them had served as judges for years.  They all understood how lawyers write briefs.  Moreover, whatever bad facts the attorneys for Lawrence and Gardner wrote in the briefs, the Justices had seen much worse.  Waldman was right when he wrote that all gay people were on trial, but he failed to take that idea to its logical conclusion; the Justices also understood that all gay people were on trial.

Courts are law-making bodies.  We hear foolish arguments about courts as “super legislatures,” but the truth is that courts, in addition to being interpreters of the law, are a check on the tyranny of the majority.  That is why federal judges are given lifetime tenure and their pay cannot be decreased–so that they are not pressured when they have to make tough decisions.  People tend to forget–or ignore–that court-made law is also law, and it always has been.  It has been this way since Marbury v. Madison and probably even earlier.

In 1986, at the height of the AIDS crisis, a majority of the Supreme Court in Bowers v. Hardwick pushed back on the Warren Court and sexual revolutions.  Perhaps allowing a distaste for homosexuality to get in the way of what was correct both morally and legally, 5 Justices found no constitutional right to adult, consensual, homosexual sex even in the privacy of one’s bedroom.  In the decade following Bowers, six of the nine Justices stepped down and were replaced.  Some of those replacements were more inclined to be friendly toward gays and lesbians both personally and in their jurisprudence.  Concurrently, a massive education campaign began, which penetrated even into the halls of the Supreme Court.  One of the Justices in the Bowers majority (Lewis Powell, who had stepped down in 1987) publicly admitted that he made a mistake, while another (Sandra Day O’Connor, who remained on the Court through Lawrence) privately felt the same.

In 1996, the new Supreme Court got its first chance to signal that it was ready to overturn Bowers in a case called Romer v. Evans.  Although Romer did not directly overrule Bowers, it was practically a plea to gay rights advocates to bring a case that would allow the Court to do so.  One Justice, Antonin Scalia, was especially annoyed by this, and if you thought his dissent in Lawrence was scathing, you haven’t read his Romer opinion.

With Lawrence, the Supreme Court got the case it was looking for, and (like Congress in 2010 with Don’t Ask Don’t Tell) a majority overturned the earlier law.  Four of the five justices in the majority opinion joined the Court after Bowers, including the opinion’s author Justice Anthony Kennedy.  The fifth Justice, John Paul Stevens, had been in the Bowers minority.  O’Connor, not wanting to lose face by publicly admitting she was wrong, wrote a concurrence that actually went beyond the majority in terms of protection for gays and lesbians, but did so from a different legal avenue.  In other words, the majority opinion said there is a fundamental right to private, adult, consensual homosexual sex; O’Connor said, there is no such right, but because straight people would not be arrested under such law, it unfairly targets gay people and for that reason is unconstitutional.  Both the Lawrence majority and O’Connor’s concurrence were about gay people as a whole.

When a case gets to the Supreme Court, it is no longer about the parties involved; it is about the principles.  That is why in the end, Lawrence and Gardner themselves made very little difference.  That is also why gay rights advocates were, and to some extent still are, so nervous about Perry v. Brown, the Prop 8 case.  The question is not whether the Justices will be swayed by the stories of four upstanding plaintiffs; the question is whether the Justices feel that now is the right time to start moving ahead with same-sex marriage.

* There are three types of books about Supreme Court cases.  The first is a book about a specific case, how it came to be and how it came before the Supreme Court.  Call this the Gideon’s Trumpet paradigm after Anthony Lewis’s famous book about Gideon v. Wainwright.  This is the kind of book that Flagrant Conduct is.  The second type of book is a history of a movement, which, for obvious reasons, is far longer and much more dense.  The most famous example of this kind of book is Richard Kluger’s Simple Justice, which details the Civil Rights Movement’s legal strategy culminating in Brown v. Board of Education, although Brown is neither the beginning nor the end of the book.  For the gay rights movement, there is no Simple Justice equivalent, but we are not yet at the point where such a book can or should be written.  Finally there are the biographies of the Justices themselves, almost always written after their deaths and after their papers have been opened to researchers.  Only one of the Justices who heard Lawrence has died, and while three have retired, no books are forthcoming in the foreseeable future.

** I make a similar point in another blog post that is currently in the editing process.  The Lithwick affair cropped up while I was writing that post, and I felt like I needed to write about the kerfuffle before I could complete the post I had been writing.