As Alyssa Rosenberg observed recently, America’s struggle for marriage equality has now reached the stage where people who still harbor anti-gay sentiments are coming to terms with gay couples’ right to equality. Alyssa writes on pop culture, so she spotted this trend in an interview where rapper 50 Cent simultaneously endorsed marriage equality and revealed his homophobic fear that gay men would “grab your little buns,” but a similar sentiment pervades Judge Michael Boudin’s opinion today striking down the unconstitutional Defense of Marriage Act.
To be clear, nothing in Boudin’s opinion suggests that he fears marauding bands of gays will corner him in an elevator and play grab-ass, but Boudin goes to great pains to deny that a law that systematically excludes gay couples from the dignity of full marriage rights is motivated by “hostility to homosexuality.” “Traditions are the glue that holds society together,” Boudin proclaims, and the desire to maintain what marriage discrimination’s supporters call the traditional definition of marriage “is strong and can be honestly held.”
And yet Boudin ultimately concludes that the Constitution does not allow the federal government to exclude gay couples from federal marriage benefits once they are lawfully married by a state. He’s right about this, but he reaches this conclusion in a somewhat roundabout way.
Admittedly, Boudin’s task is muddled by genuinely incoherent Supreme Court precedents. Forty years ago, the Court said that minority groups that are “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 the majoritarian political process” are entitled to the strictest constitutional protections against discrimination. LGBT Americans are obviously such a group. Yet the Supreme Court has declined to extend this heightened constitutional scrutiny to anti-gay laws when given the opportunity to do so.
At the same time, the Court has also applied something more rigorous than very cursory constitutional scrutiny it applies to most laws when examining many anti-gay laws. Thus, the justices struck down an anti-gay Colorado constitutional amendment — holding that the amendment’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects.”
Boudin reconciles these two lines of precedent by noting that the Supreme Court may not accord the most rigorous scrutiny to all discriminatory laws, but it has still struck down laws “in which courts have had reasons to be concerned about possible discrimination.” Citing decisions striking down discrimination against “women, the poor and the mentally impaired,” Boudin notes that “gays and lesbians have long be the subject of discrimination,” and that is reason to treat DOMA with skepticism.
If Boudin had stopped there, or maybe a few paragraphs later where he explains that DOMA strips same-sex spouses of “meaningful economic benefits” similar to the benefits denied in other laws that were struck down, he would have provided an excellent argument for why marriage discrimination cannot be squared with our Constitution and declared that marriage equality must be the law of the land.
Judge Boudin, however, is clearly worried about what I have at times labeled the “Alabama Problem” — meaning that a Supreme Court decision recognizing the Constitution’s full promise of equality must necessarily extend to states with a legacy of massive resistance to the Court’s civil rights decisions. The justices may not yet be ready to take such a politically controversial plunge. Significantly, Michael Boudin does not appear ready to take that plunge either, and so he inserts a bizarre states rights argument into an otherwise excellent opinion:
[T]he denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spending Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.
The upshot of this paragraph is that it allows Boudin to conclude that states like Alabama can continue to exclude gay couples from the Constitution’s promise of equality, while still extending that promise to couples in Massachusetts. But it is bad constitutional law that bears a disturbing resemblance to arguments the Affordable Care Act’s opponents have used to attack Medicaid. America should not have to choose between the blessings of equality and the certainty that our national leaders can adequately address national problems such as the deficiencies in our health care system.
Ultimately, however, Boudin’s opinion is a cause for optimism. The last federal appeals judge to strike a blow for marriage equality, Judge Stephen Reinhardt, is a well-known liberal crusader with little influence over the conservative justices. Boudin, by contrast, is a Republican appointee who’s clearly still uncomfortable with Constitution’s promise of equality throughout America. And yet he just published an opinion striking down the Defense of Marriage Act. This bodes well for gay couples when DOMA comes before the Supreme Court.
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