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‘Steering Procreation’ Judicial Chic

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U.S. courts embracing notion irresponsible straight parents need marriage

Barely a week after the New York Court of Appeals embraced the bizarre argument, first floated by the Indiana Court of Appeals, that it is rational to exclude same-sex couples from marriage in order to encourage opposite-sex couples to provide stable marital homes for their casually or accidentally conceived children, the same argument attracted new adherents—three judges of the U.S. Court of Appeals for the 8th Circuit.

On July 14, the panel of judges, based in St. Louis, reversed a May 2005 decision by U.S. District Judge Joseph F. Bataillon and revived the Nebraska constitutional amendment against legal recognition for same-sex couples.

Judges James B. Loken, Pasco M. Bowman, and Lavenski R. Smith—appointed by, respectively, George H.W. Bush, Ronald Reagan, and George W. Bush—all signed on to this irrational and specious argument, in a disingenuous opinion by Loken, the circuit court’s chief judge. The 8th Circuit is the first federal appeals court to substantively address same-sex marriage in a federal constitutional context.

The Nebraska amendment, approved by voters in 2000, is in some senses the least ambiguous of the anti-gay marriage amendments to have been adopted. It states, “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.”

Instead of vague language about denying same-sex couples the “legal incidents” of marriage, Nebraska’s enactment comes right out and forbids civil unions and domestic partnerships. The amendment does not make clear, however, whether a government agency merely providing health benefits to an employee’s same-sex partner would go too far.

Bataillon, the district court judge, had agreed with the plaintiffs that the amendment violated the rights of LGBT Nebraskans to equal protection of the laws, guaranteed by the federal 14th Amendment, because it precluded their ability to resort to the Legislature to seek legal status for their relationships, shutting them out of the normal political process. Bataillon also found that this amendment is an unconstitutional bill of attainder, a legislative imposition of punishment on a specified individual or identifiable group. Finally, the trial judge, on his own, raised a First Amendment objection to the amendment, finding that it impeded the expressive association rights of gay people to petition the government.

Loken’s opinion rejects all of these conclusions, asserting that Bataillon mistakenly subjected the amendment to heightened or strict scrutiny on the incorrect conclusion that state constitutional amendments disadvantaging particular groups violate a fundamental right to equal participation in the political process. The Supreme Court has never recognized such a federal constitutional right, asserted Loken—disputing Bataillon’s reliance on the landmark 1996 gay rights victory in Romer v. Evans, in which the Supreme Court struck down a Colorado amendment barring the state from adopting policies protecting “homosexuals” from discrimination and thereby gays from petitioning for them to do so. The Romer court found that the measure was such so sweeping that it “defied” traditional equal protection analysis and could only be attributable to anti-gay sentiment.

Loken distinguished this case from Romer because the Nebraska amendment focuses on only one subject, marriage—conveniently overlooking for a moment the true scope of the amendment—thus lacking the constitutionally objectionable sweeping nature of Colorado’s amendment. Loken also pointed out that the court struck down the Colorado amendment finding that it could not be defended even on rational basis analysis; the measure was not tested against the higher burden of heightened or strict scrutiny.

Insisting that this so-called rational basis test was the appropriate standard for the Nebraska amendment as well, Loken then cited the argument about the legitimate public policy goal of “steering procreation” in the New York and Indiana marriage rulings as a rational basis for Nebraskans barring same-sex marriage.

The emerging popularity of this argument among appellate judges is quite strange. New York Chief Judge Judith Kaye pointed out in her dissent that excluding same-sex couples from marrying does not logically advance this goal, even if one granted that it is a worthwhile goal. None of these judges, of course, considers whether giving unmarried opposite-sex couples who stumble into unplanned pregnancy a legal incentive to get married even makes sense. One suspects that the divorce rate among this group is rather high, and that the result is hardly a stable home for their offspring.

Part of the problem is the absurd approach to rational basis review that the Supreme Court has commanded. The mandate is not to look to the past when state legislatures first adopted marriage statutes to replace the ancient practice of common law marriage, and ask what policy considerations motivated them then. Instead, according to the Supreme Court, in rational basis cases the challenged statute is presumed constitutional, and the burden is on the challengers to show it is irrational. It will be upheld if the court can imagine any rational basis for it.

Loken’s language points up the bizarre results. Responding to the plaintiffs’ claim that denying protection for same-sex relationships does not “steer procreation into marriage” and therefore the amendment’s only result is to disadvantage gays, he writes, “But the argument disregards the expressed intent of traditional marriage laws—to encourage heterosexual couples to bear and raise children in committed marriage relationsh­ips.”

The first time any such intent was “expressed” was by the Indiana Court of Appeals, not by any 19th or early 20th century state legislature passing a law setting up a formal method for civil marriages to do away with an informal institution, common law marriage, in favor of one more regulated by law. Judge Robert Smith, who wrote one of the plurality opinions for New York’s Court of Appeals, was undoubtedly correct—the Legislature was not thinking about same-sex marriages when it passed the Domestic Relations Law, but neither was it aiming to “steer procreation.”

This irrational theory springs from the imagination of conservative judges, not from history or logic.

Loken also rejected the bill of attainder argument, asserting that imposing political disadvantages is not “punishment” in the constitutional sense. Similarly, he asserted that the amendment does not disempower gay Nebraskans from participating in the political process in any way. Still, gay people are the only minority in Nebraska defined by a personal characteristic who will need to win over their fellow citizens for a constitutional amendment if they want to achieve recognition for their relationships.

Loken pointed out that folks who want to run casinos are similarly disempowered by an amendment prohibiting gambling in the state, and polygamists face the same hurdles gay people do. Loken does not consider, however, the fact that U.S. Supreme Court decisions discuss marriage between two people in the context of fundamental liberty interests protected from state interference under the 14th Amendment’s due process clause.

Lambda Legal litigated this case and petition to the U.S. Supreme Court is the only recourse for further appeal. There was no immediate indication from Lambda whether such appeal will be attempted. In any event, the Supreme Court can refuse to review a federal circuit decision and is unlikely to take on a same-sex marriage case when only one federal appellate court has expressed a view.

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Updated 5:17 pm, July 20, 2018
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