On being pro-gay but anti-marriage in California

One of the most interesting things about the Marriage Cases arguments before the California Supreme Court was the disarray of the opposition to marriage equality. In an unusual step, the Attorney General and the Governor were represented separately before the court, both making largely the same arguments but apparently differing on the level of constitutional scrutiny that sexual orientation discrimination should receive. More significantly, the state's attorney's disavowed any reliance on arguments about procreation and parenting that were at the heart of the defense of marriage bans in other states. In California, conservative organizations stood alone in presenting these arguments.

Douglas NeJaime has a very interesting Jurist column this week on the significance of this split in opposition to marriage, and what it means for the broader LGBT rights movement:

[T]o fully understand the state’s position, we must look to a shift in mainstream thought characterized by an increasingly institutionalized pro-gay perspective that hews to a gay centrist paradigm of coupling, parenting, and general respectability. What were once considered controversial, left/progressive positions, and what still constitute the dreaded “homosexual agenda” in social conservative circles, are now mainstream ideas held by those at the highest level of state government. And yet these same state decision-makers are charged with defending the state’s marriage restriction, itself a remnant of ideas that have been displaced by these new pro-gay principles. It is a difficult balancing act that the state’s advocates now attempt. Indeed, Mr. Krueger’s seeming discomfort at the podium as he defended the state’s marriage restriction perhaps best typifies the uneasy ground on which the state now stands. The fact that the Governor was represented by a separate attorney before the court, rather than Mr. Krueger, only underscores the fine lines being drawn within the state.

In this light, it will be interesting to see how the Governor responds to the forthcoming decision. He has said the issue is "for the courts or the people" to decide. If the court orders marriage equality, will the Governor endorse, oppose, or stay neutral on a referendum to overturn it? If the court upholds the marriage ban, will the Governor have lost his main reason for vetoing a marriage equality bill, or will he maintain that the matter can only be resolved by popular vote?

Rhode Island: Expanded criminalization of sex work?

Today's Providence Journal is reporting:

With the nation’s eyes trained on former New York Gov. Eliot Spitzer’s alleged involvement with a prostitute, Rhode Island lawmakers are considering a bill that would close the loophole in this state’s laws that makes prostitution legal if it occurs indoors.

I was unaware until this morning that unassuming Rhode Island has a somewhat unusual law on prostitution that targets street work but gives wide reign to escort services and other indoor work. (A conservative Rhode Island blogger detailed this issue awhile back, including a link to the statute.) Lawmakers have been trying to close this "loophole" for years; Rhode Island's ACLU and some other critics have opposed such an amendment, for a variety of reasons (though it seems no one has argued to the legislature that indoor prostitution should not be illegal because it's not inherently wrong, and because there are far better ways to help prostitutes than criminalizing their livelihood.) It's unclear whether the Spitzer scandal in nearby New York will give those lawmakers' efforts a boost, but it's at least provided the newspaper a catchy hook for their coverage.

It would be interesting to see whether and how this legal landscape -- markedly different from other states -- has affected indoor sex work: its prevalence, price, market structure and most of all working conditions. But Emily Bazelon recently noted, prostitution is a shockingly under-researched topic, so we may never find out.

Marriage-related news: Spitzer, Spain, and the California court

As well all know by now, NY Governor Eliot Spitzer has been fingered in a federal prostitution probe. He's apologized, and speculation is rampant as to whether he will resign. This has prompted feminist bloggers to those perennial questions: Why is prostitution illegal?, and Why do we place such importance on these "public sex shamings"?

Another good question is: What does Spitzer's scandal mean for the marriage equality issue in New York? Among much else in his short and controversial term in office, Spitzer has been a leading advocate for marriage equality for same-sex couples, introducing groundbreaking legislation to accomplish that goal last year. Whatever you think of Spitzer's actions, being revealed as an adulterer no doubt damages his credibility on marriage in the eyes of many. If he continues in office, it's questionable if he can do any further good, and indeed whether he is bound to do harm on this issue.

On the other hand, Spitzer's resignation could be "a blessing in disguise," according to some -- because Lt. Gov. David Paterson is also a strong advocate of marriage equality and lacks the baggage Spitzer has accumulate from other bruising political fights. I guess we'll see what happens.

Meanwhile, Spain's Socialist government was re-elected this week, and Pres. Zapatero's triumph after a bitter campaign appeared, according to the New York Times, "to endorse some of Mr. Zapatero’s boldest decisions, including the withdrawal of Spain’s troops from Iraq, the granting of more autonomy to Spain’s rebellious regions, simplified divorce and the legalization of homosexual marriage." It's possible, of course, that voters cared less about social issues like marriage than about Spain's faltering economy. In any event, the election puts an end to the prospect that the Socialists' groundbreaking reforms on marriage equality, divorce, and the right to legally change gender could be reversed or cut back by the Popular Party.

But probably the most significant marriage-related item on people's minds this past week has been the March 4 oral arguments in the Marriage Cases at the California Supreme Court. There's been much speculation based on the justices' questioning, and it's all over the map: some predict a loss for the petitioners, others predict a win, and others are only willing to guess that it will be close. For my own part, my head was swimming from the three-and-a-half hours of argument, so I'm not even going to try to count noses -- but it was definitely fascinating to watch, and the passion, eloquence and insight of the attorneys for the petitioners clearly outshined the half-hearted advocacy of the state's attorneys and the largely empty rhetorical bluster of the organizational amici. If they lose the advocates for marriage equality will know they did their best and made an impressive showing.

Discrimination on the ballot in Maryland?

More later today on Spitzer, Spain and California, but first:

A few months ago my own Montgomery County, Maryland joined about 100 local governments around the country in including "gender identity" in its nondiscrimination ordinance. The amendment was passed unanimously by the county council.

An anti-trans citizens group, however, launched a petition drive to put the issue on the ballot. Council members quickly criticized the organizers for their harsh and intolerant message and their outright lies about the ordinance. Nevertheless, the county board of elections says they've collected enough signatures to stay the ordinance and put it on the November ballot.

Equality Maryland volunteers (myself included) have been working diligently to identify problems with many petition signatures and prepare a court challenge. If you live in the DC-Baltimore region and want to help out this week, visit EQMD's website.

I, for one, am not looking forward to this becoming the transgender community's Briggs Initiative experience. As with that 1978 struggle, discrimination at the ballot box is likely to fail, but it's bound to be a harrowing experience.

In particular, I'm not looking forward to having to educate voters about what the law does and doesn't do with regard to restrooms, locker rooms and the like. I say this both because this is the area where emotional responses run highest, and because it will mean reassuring people (however accurately) that the law doesn't do things that it rightly should do, i.e., permit trans people to use such facilities in accordance with their day-to-day gender expression.I'd rather explain that the alternative -- requiring use of facilities in accordance with birth gender, either for all people or for trans people who have not had/cannot have reassignment surgery -- puts them at risk of harassment and violence, creates obstacles to completing their indicated medical treatment, and makes daily life nearly impossible. Yet, I know that however illusory the perennial objections about "safety" (trans people are not dangerous) and "privacy" (toilet stalls have doors), they continue to be very compelling to those who have had little or no experience to actual trans people.

All of this would be moot, of course, if Maryland passed a gender-identity nondiscrimination bill at the state level. That legislation, however, remains stalled.

Equal Protection: the illogic of the "politically powerless" test

The oral arguments in the California Marriage Cases (video here) have got me thinking about an undertheorized aspect of Equal Protection doctrine: how should courts decide when something is a "suspect classification" deserving of heightened scrutiny?

As usually stated, the test (such as it is) for heightened scrutiny requires that a classification be based on (1) an immutable characteristic, (2) that has no bearing on individuals' ability to contribute to society, but (3) that has been the focus of a history of discrimination, (4) such that it defines a politically powerless group.

As to sexual orientation, there has never been any serious dispute that parts (2) and (3) of the test apply. Courts, including those in the marriage decisions so far, have focused on parts (1) and (4), concluding first that it is not conclusively established that sexual orientation is immuta ble, and second that identifiable political gains by gay, lesbian and bisexual folks demonstrate they are not politically powerless.

But it is not clear from the governing precedents whether these are truly prerequisites, let alone how strictly they should be applied. The precedents refer to “obvious, immutable, or distinguishing characteristic." See Lyng v. Castillo, 477 U.S. 635 (1986). Likewise, they speak of whether a group is "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from majoritarian political processes." See Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976).

I wish to focus here on the politically powerless prong. In the marriage cases to date, the prevailing argument has gone something like this:

1. Among other things, a "suspect class" has got to be politically powerless.
2. Our state has a variety of laws that specifically protect the rights of gay, lesbian and bisexual folks.
3. A group specifically protected by some laws cannot be politically powerless.
4. Therefore, gay, lesbian and bisexual folks are not politically powerless.
5. Therefore, sexual orientation discrimination doesn't get heightened scrutiny.

This line of argument seem to me to lead to a number of quite troubling corollaries:

1) If gay, lesbian and bisexual plaintiffs had brought equal protection lawsuits decades ago, when there were no laws that protected them from any kind of discrimination, courts would (or at least should) have treated sexual orientation as a suspect classification.

2) If the politically powerless prong were freshly applied to race, sex or national origin classifications now, they would not be treated as suspect classifications, because there are a plethora of state and federal laws specifically protecting the rights of women and racial and national minorities. (Good news for affirmative action, I guess...)

3a) Following from 1 and 2 above, the application of the politically powerless prong depends upon what, if any, relevant laws are on the books at the time of the litigation. As a result, the kinds of classifications that are "suspect" can change over time. It could even change and change back again. Court will give less weight to stare decisis in this area, and must monitor current political developments in order to keep constitutional rules up to date.

OR

3b) Following from 1 and 2 above, the application of the politically powerless prong depends upon what, if any, relevant laws are on the books when courts first consider a particular characteristic. As a result, the kind of classifications that are "suspect" depends on accidents of legal history. Groups suffering discrimination should be sure to litigate the issue before making any political progress -- not withstanding the likelihood that, in this case, courts themselves may well be too prejudiced to give them a fair hearing.

4) Once legislation is enacted that protects some rights of a group, they are thereafter presumed to be capable of fending for themselves in the political process with regard to all their rights. The possibility that some forms of invidious discrimination against a group (say, in family matters) may persist long after other forms of discrimination against that same group (say, in the marketplace) become politically unpalatable, must be rejected or ignored.

While some may be unmoved by the last of these, I think most everyone would reject the others out of hand. Yet I can't see a way around them, given the line of argument outlined above. Indeed, I think this kind of attention to the legal and/or political landscape of the moment (or at least some moment) is inescapable when one asks whether a group is "relegated to such a position of political powerlessness as to command extraordinary protection from majoritarian political processes." Political power is inherently temporal and shifting.

As I see it, the only means of escape from these strange conclusions is to abandon the "politically powerless" prong as a distinct prerequisite for heightened scrutiny. As noted above, it's not clear that this concept was originally thought of as separate from, and in addition to, the consideration of history. While history is, of course, always in progress, current events are only a part - and not a decisive one - of the historical picture.

Under this view, of course, gay, lesbian and bisexual folks are on considerably stronger legal footing. Hopefully, even folks who are displeased by that result will be comforted by avoiding doctrinal consequences that are just plain crazy.