ON JUNE 6, when the highest state court in New York dealt a setback to same-sex marriage, editorialists de nounced it as being "on the wrong side of history." These editorials protest too much: Their invocation of historical inevi tability suggests that this very factor is no longer to be counted on.
The New York decision, Hernandez v. Robles, is an exercise in judicial restraint, but also more. To reach its decision, the New York Court of Appeals had to make certain classic judicial-restraint moves. First: affirm that the state's failure to extend marriage to same-sex couples is subject only to "rational-basis review," the most lenient standard by which the constitutionality of government actions is tested in American courts.
Second: affirm that "rational basis" means only that the legislature could conceivably have believed the law in question is a good one. Other forms of rational-basis review have been known in the past and are surfacing again. In 1905, when the U.S. Supreme Court struck down a work-hours law in the widely criticized Lochner decision, it purported to use rational-basis review; so did the Massachusetts Supreme Judicial court in its 2003 Goodridge decision, which found a right to same-sex marriage in that state's 1780 "Adams Constitution." A century apart, and serving very different values, the Lochner and Goodridge decisions both applied what some commentators call "rational basis with teeth."
The plaintiffs in Hernandez v. Robles had hoped that New York would follow the lead of Massachusetts and find "no rational reason" for denying marriage to same-sex couples. The New York court, in a plurality opinion by Judge Robert S. Smith, would have none of this. Declining to say whether they would find these same arguments persuasive if they were legislators, the New York judges noted that it is not, after all, irrational or bigoted to believe two key propositions: (1) that straight sex can lead to babies, while gay sex cannot, and therefore straight couples, even accounting for contraception, have a higher chance of becoming parents; and (2) that children are at an advantage if they grow up, not only in a stable home, but also one with both a male and a female role-model.
There is no shortage of scholarly support for those propositions (you can find examples at www.marriage debate.com). But in keeping with classic rational-basis review, the New York court did not demand documentation of the obvious. Even in 2006, those propositions remain sufficiently supported by everyday observation and ancestral wisdom that they clear the (low) rational-basis threshold.
But isn't something stricter than rational-basis review required when a fundamental right is at stake? And didn't the U.S. Supreme Court hold in Loving v. Virginia in 1967 that marriage is such a right? No--at any rate, not in the sense that same-sex marriage advocates mean when they rely on Loving.
Loving held that statutes forbidding interracial marriage are unconstitutional. As Judge Victoria Graffeo points out in her concurring opinion in Hernandez: "The Court [in Loving] applied strict scrutiny review to the racial classification, finding 'no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.'"
In other words, Loving was about race. "Although the Court [in Loving] characterized the right to marry as a 'choice,'" writes Judge Graffeo, "it did not articulate the broad 'right to marry the spouse of one's choice' suggested by plaintiffs here. Rather, the Court observed that 'the Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.'" (The emphasis is Graffeo's.)
Judge Smith's plurality opinion points out that gays in New York are as free as straights to marry a person of the opposite sex. Immediately the chorus will arise: That's the "equal application" theory that Virginia tried to use in Loving! That's like saying Virginia's miscegenation law was fine because blacks and whites were equally prohibited from marrying across the racial divide! And the Court in Loving rejected that argument, with scorn.
But that was different, Judge Smith argues. The supposed "equal application" in the Virginia miscegenation law, he writes, was "sham equality. . . . The statute there, prohibiting black and white people from marrying each other, was in substance anti-black legislation." And the plaintiffs in New York did not argue "that the legislation they challenge is designed to subordinate either men to women or women to men as a class."
Yes, it "does confer advantages on the basis of sexual preference"--but that matters little when "rational basis" is the applicable test. In its 1996 decision in Romer v. Evans--striking down an anti-gay rights amendment to the Colorado constitution--the U.S. Supreme Court declined to hold that "strict scrutiny" was the right test. The plaintiffs won anyway, because the law they had challenged was, in the Court's view, explicable only by irrational bigotry, and was therefore unconstitutional without further ado. This doctrine led not only to Romer, but also to Lawrence v. Texas (striking down sodomy laws) and, in Massachusetts, Goodridge.
In Hernandez, however, the "no rational basis" juggernaut screeched to a halt. The New York court did not quarrel with Romer or Lawrence, but it held that marriage is different. Maybe Colorado's Amend ment 2 was based on irrational "animus"; maybe Texas's sodomy law was too. But privileging the exclusive male-female relationship because of its role in child rearing?
Meanwhile, in Massachusetts, a voter initiative that would amend the state constitution to ban same-sex marriage survived scrutiny by the Massachusetts high court--they of the Goodridge decision. There is a state rule against initiatives that reverse the outcomes of decided cases. But changing the substantive law, the court held, is not the same as reversing a judgment rendered under the previous law. So the measure can appear on the 2008 ballot.
However, two justices, John M. Greaney and Roderick L. Ireland, pretty openly announced that they look forward to striking down the initiative even if it becomes part of the Massachusetts constitution. For a juris prudential parallel, imagine Chief Justice Roger Brooke Taney living on into Reconstruction and striking down the Thirteenth Amendment because it conflicts with his opinion in Dred Scott.
Greaney reasoned that the initiative cannot have a rational basis, because his court already decided in Goodridge that there is no rational basis for not allowing gay marriage. "There is," he continued, "no Massachusetts precedent discussing, or deciding, whether the initiative procedure may be used to add a constitutional provision that purposefully discriminates against an oppressed and disfavored minority of our citizens in direct contravention of the principles of liberty and equality protected by Art. 1 of the Massachusetts Declaration of Rights."
No "precedent discussing, or deciding," that is, whether the Massachusetts court can use one part of the Massachusetts Constitution to strike down another. No doubt there isn't: Some elements of the rule of law are too basic to need "precedent." Or at least they were before we entered the age of postmodern law, in which two Massachusetts justices can declare seriously that a rule defining marriage as one-man-one-woman would look "starkly out of place in the Adams Constitution."
John Adams might, for once, feel more at home in New York.
David M. Wagner is associate professor of law at Regent University, and blogs at ninomania.blogspot.com.