The essential point of law and economics is to try to determine the result the parties would reach themselves if they had to bargain over the dispute, yes? Here, there’s no bargaining opportunity, is there? They couldn’t agree, “well, we will forgo access to marriage in exchange for a gay-only tax cut to make up for the benefits we’re losing,” or, “we will extend marriage to you, but we will impose a gay-only tax hike to cover whatever extra burdens on the state.” Besides which, I’m not sure you can fit a bargaining analysis into an equal-protection context, since one of the purposes of the e.p. clause is to redress inequality in societal bargaining ability. So I’m not sure that law and economics provides much of a clue to how Walker’s going to approach the case.
Well, in my view, the legal merits of the case would compel reversal.
But not all the Justices share my view of the legal role courts should have.
So my 90% certainty is based on the my view of how the eight justices with a more established track record will fall, and a less-informed guess on the ninth.
I think law-and-econ is orthogonal to this question – in other words, it’s not a philosophy we can apply to this issue and get a mandated result.
I think Justice Kennedy is quite sensitive to the Court’s position relative to public opinion. The general public was ready to see sodomy laws go by the wayside, for instance, but I think he would worry that mandating SSM nationwide via the equal protection clause would provoke an amendment to constitutionalize DOMA.
There is, however, an in-between position not often explored: It may be against the Equal Protection Clause to bar same-sex marriages, but up to a state’s discretion to grant it legal recognition.
In other words, the default is that there is no law on the subject. A state may modify this, in its magisterial discretion, to permit SSM, but may not pro-actively enact a law or amendment forbidding SSM. It would then be up to the individual states whether to grant legal recognition to indigenous SSMs and/or other states’ SSMs that were “imported” (as New York now does).
Under this line of thought, recognition of SSM would be a legitimiate purview of individual states’ police powers, to be granted or withheld as the legislatures choose. But the converse, the active banning of SSMs, would be a violation of individual human rights under the EP clause.
I’m not following this logic. States can’t ban SSM, but are not compelled to allow it? Seems contradictory.
Well, it would make sense if there was no one in a specific state who wasn’t willing to pass a law/file a lawsuit toward legalizing SSM. If everyone is happy with SSM not being legalized, that’d be cool.
However, I think it is safe to say that there is not a single state in the US where this is the case.
Nitpick: No they weren’t, or the opponents of those laws could have gotten them overturned by democratic rather than non-democratic means.
Not necessarily. It can be hard to repeal a law. People might have thought the anti-sodomy laws shouldn’t have been there, but that it wasn’t a big enough deal to bother to get rid of.
Not necessarily, I don’t think. I suspect that most people didn’t care enough to rouse themselves to overturn them because they just never imagined them being enforced against them. Indeed, the likelihood of a straight woman getting arrested for performing an oral act on her boyfriend in their own home was probably almost nil. Plus, there’s an embarrassment factor in not wanting to be the one to introduce a bill to make sodomy legal.
Unless i’m misunderstanding you, the consequence of this position is that the state either has to recognize all marriages or none at all.
not recognizing… barring recognition of… seems to be a distinction without a difference, otherwise.
I understand how this is supposed to work, but in practice it seems to be a bit of a catch-22. By the time gays get enough political support to be able to convince courts they deserve strict scrutiny, they’ll be considered to popular to merit it.
I don’t really see that as being a “catch” at all.
Should we call it a “grandfather paradox” instead? It’s good that there are other criteria for determine suspect classes, because “They are powerless to protect themselves via the political process” gives the appearance of being self defeating or determining:
They failed to defeat Prop 8, therefore they are politically powerless, and therefore a suspect class.
They are a suspect class, and therefore Prop 8 is invalid and overturned.
Prop 8 is overturned, and therefore they are not politically powerless, and therefore not a suspect class, and therefore Prop 8 stands…
Granted this is an extreme example, but in general that particular criteria seems pragmatically pointless. A court will never have to determine whether a class is politically powerless unless they have to rule on a case of discrimination, which itself is always proof of the inability of the group to have defended themselves against the discrimination.
Added to this, religious groups definitely have immense political power, and yet they are considered a suspect class… which brings us to the irony of two other suspect classes, race and religion, discriminating against another potentially suspect class…
there’s a big difference between being historically shit upon and far too weak (financially and popularly) to do anything about it, and occupying a minority position in a given polity. one really, trully, cannot do anything about it whatsoever, and one just gets pissed that votes don’t go their way. that’s all i’m really saying here.
if their only claim for strict scrutiny review (which I don’t think is the only claim, not by a long shot) is that they are politically powerless, then they’re walking contradictions in the term and it wouldn’t be (to me) problematic for a court to deny them strict scrutiny review (if that’s their only claim, which it isn’t)
While the latter doesn’t prove the former, the former would seem to inevitably lead to the latter. But i see your point.
That’s true. I’m not sure how much their argument plays into that. What I have noticed, is that the opposition is trying to defeat this criteria with their arguments, with evidence such as fairly widespread opposition to Prop 8 in newspaper editorials.
My problem, which is likely simply a problem of ignorance, is in understanding how this particular criteria would ever be pragmatically useful judicially.
criteria : plural
criterion : single
OK, thanks…
The judge comes back with a ruling today.
I do not envy that judge. Regardless of which way the decision goes a helluva lot of people are going to be pissed off.