The Volokh Conspiracy
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Yesterday same-sex marriage advocates notched two more federal district court wins in southern states. It's clear in the early returns that district courts are not following the Sixth Circuit's lead on either Baker v. Nelson or on the merits of the constitutional claims for same-sex marriage. The new decisions challenge the Sixth Circuit's views on important matters like the correct way to frame rational-basis review and its misunderstanding of the animus doctrine.
In Mississippi, the district court in Campaign for Southern Equality v. Bryant, issued a 72-page magnum opus that extensively considers the history of discrimination against gay men and lesbians in the United States and specifically in Mississippi, linking and comparing it in many ways to racial discrimination. The opinion was written by Obama-appointee Carlton Reeves, who is only the second black federal judge from Mississippi. The team challenging the law includes Roberta Kaplan, who shepherded the successful challenge to DOMA in United States v. Windsor, and lawyers with the Campaign for Southern Equality, based in North Carolina.
Judge Reeves held that the state's marriage exclusion made same-sex couples and their children "second-class citizens" under state law, violating the Due Process and Equal Protection Clauses. On the due process claim, Reeves noted that tradition has not circumscribed who can marry:
The right to marry is rooted in history and tradition, but history shows that tradition does not dictate who gets to exercise certain rights. (Any doubt could be resolved by asking Mildred and Richard Loving, Estelle Griswold, William Baird, John Lawrence and Tyron Garner, and Edith Windsor and Thea Spyer.).
On the equal protection claim, the district court concluded that strict scrutiny would be justified because the law impinges on the fundamental interest in marriage.
As for the classification employed, the court noted that the limitation on its face classifies based on sex, not sexual orientation. "On the other hand," Judge Reeves wrote, "if the court is permitted to use common sense and examine the true purpose, history, and effect of Mississippi's same-sex marriage ban, it is obvious that the ban discriminates on the basis of sexual orientation."
The problem for the argument that sexual-orientation classifications should receive heightened scrutiny was that the district court felt hemmed in by vintage Fifth Circuit precedent (reaching back before Romer, Lawrence, Windsor, and more recent circuit court decisions) holding that only rational-basis review applies to such discrimination. Nevertheless, the district court offered a 30-page brief explaining why the Fifth Circuit or the Supreme Court should reconsider the issue. The analysis examines all of the usual factors for heightened scrutiny, with special emphasis on the distinctive history of anti-gay discrimination in Mississippi. "'[I]t is safe to say that there is some doctrinal instability in this area' which merits renewed consideration by the en banc Fifth Circuit or the Supreme Court," wrote Judge Reeves.
Heightened scrutiny aside, the court held that the Mississippi ban could not survive rational-basis review-rejecting the state's arguments based on procreation, tradition, and deference to the political process. As have other courts striking down the state marriage exclusions on rational-basis grounds, the court framed the issue as whether there is a rational basis for excluding same-sex couples rather than whether there is a rational basis for including opposite-sex couples. This is the exclusion framing that I have argued is appropriate in these cases.
Finally, Judge Reeves held that the Mississippi bans on same-sex marriage in statute (passed in 1997) and state constitutional amendment (2004) reflected unconstitutional animus against same-sex couples. The court correctly observed that animus doctrine is not a judicial expedition to uncover the subjective motives of state legislators or voters. "This court does not believe that the 86% of Mississippians who voted against same-sex marriage in 2004 did so with malice, bigotry, or hatred in their hearts," observed Judge Reeves. "Many were simply trying to preserve their view of what a marriage should be, whether by religion or tradition." Nevertheless, the court explained why animus analysis supports invalidating the state ban:
Animus is a legal term of art. It does [apparently a typo, the context indicates the court meant "does not"] attempt to discern the subjective motivation of the legislators or voters who passed the laws at issue. Instead, courts evaluating animus arguments are to look at "the design, purpose, and effect" of the challenged laws. Windsor, 133 S. Ct. at 2689; see also Romer, 517 U.S. at 627-28.
The Supreme Court's interpretation of a federal law "is highly persuasive to understand a similar state" law. Singer & Singer, Statutes and Statutory Construction § 51:6 (7th ed. 2012). Windsor's interpretation of DOMA, a law both historically and substantively similar to Mississippi's same-sex marriage ban, is therefore highly relevant to this analysis. [footnote regarding post-DOMA context of passage of Mississippi statutory ban omitted].
The court also explained the application of several of what I have called the objective factors that courts should consider to determine the presence of unconstitutional animus. I've elaborated these objective factors in an article in the Supreme Court Review, cited by Judge Reeves.
Here, the design, purpose, and effect of Mississippi's same-sex marriage ban is to single out same-sex couples and ensure that they cannot marry in Mississippi or have their out-of-state marriages recognized in Mississippi. As explained earlier, Mississippi's 1997 "mini-DOMA" statutory definition of marriage and its 2004 constitutional amendment were passed in direct response to judicial decisions expanding our conception of same-sex rights. The 1997 bill was entitled, in relevant part, "An Act . . . to Prohibit Homosexual Marriages and to Provide that Homosexual Marriages Recognized in Another State Shall not Be Recognized in this State and Shall Be Declared Void in this State." S.B. 2053, 112th Leg., Reg. Sess. (Miss. 1997). And the effect of the bill was (and is) to label same-sex couples as different and lesser, demeaning their sexuality and humiliating their children. The unrebutted testimony of the plaintiffs shows the deleterious effects of the ban on them and their children. They range from taxation to health care to the stigma imposed on their children.
As with DOMA, the "avowed purpose and practical effect" of Mississippi's same-sex marriage ban "are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages ." Windsor, 133 S. Ct. at 2693. That is something the voters cannot do.
The added wrinkle here is that the district court shows how the Mississippi statute (and later constitutional amendment) was a deviation from state law under animus analysis, primarily passed as a preemptive strike against judicial decisions. I've previously argued that such anticipatory action against judicial decision should not satisfy the rational-basis test by itself because that would practically insulate state law from judicial review, something the Court has not been willing to do even in rational-basis cases.
The Arkansas decision, by Obama-appointee Kristine Baker, came in Jernigan v. Crane. The court held that the state ban on same-sex marriage violates the plaintiffs' fundamental right to marry and held that it constitutes unconstitutional sex discrimination. It also held that the Eighth Circuit's decision in Citizens for Equal Protection, Inc. v. Bruning, a 2006 case upholding Nebraska's constitutional ban on same-sex marriage, barred claims for heightened scrutiny for sexual-orientation discrimination and foreclosed a rational-basis challenge. The ruling was stayed pending appeal to the Eighth Circuit. (A South Dakota district court recently denied the state's motion to dismiss in a same-sex marriage case brought by a former student of mine, Joshua Newville, holding that the Bruning decision did not foreclose a fundamental-right or rational-basis challenge.)