Harvard Law & Policy Review

Harvard Law Development

by on 4 Comments

Same-sex Marriage Preview I

By Tom Watts*

This is the first in a series of blog posts previewing some of the conceptual questions that may come up in the same-sex marriage oral arguments on Tuesday. Part II is here.

On Tuesday, we will have the legal equivalent of the Super Bowl, a presidential election, and the finale of Seinfeld at all once: oral argument in Obergefell v. Hodges, the Supreme Court’s same-sex marriage case. The outcome of the case is in as little doubt as in any major case in recent memory: most court-watchers expect the Supreme Court, most likely in a 5-4 opinion written by Justice Kennedy, to strike down the state bans on same-sex marriage. (This would be consistent with the gay rights decisions in the Supreme Court for nearly the past twenty years, from Romer to Lawrence to Windsor.) As a result, the interesting questions are not around what the Court will do but rather how the Court will do it.

For example, the Court needs to determine what type of classification these laws make (because the type of classification determines the level of scrutiny under the Equal Protection Clause), and that alone is not as simple as it seems. Most courts have understood these laws to classify people by sexual orientation — in the same way that a law requiring black people to sit in the back of the bus and white people to sit in the front classifies by race — but the question may not be as simple as it seems.

A typical classification actually mentions the classification in the law’s text (in legalese, “on the face of the law”). However, nowhere in the text of the same-sex marriage bans do the words “gay” or “straight” appear. Instead, the words “man” and “woman” appear. These words describe sex, not sexual orientation, so isn’t this a sex classification? Hawaii, in the first successful marriage equality case, thought so. Judge Berzon of the Ninth Circuit thought so. But most judges have taken it to be a sexual orientation classification instead. Perhaps saying “man” and “woman” together in the context of marriage is so close to saying “heterosexual” as makes no difference; after all, a law that classified on the basis of “having the organs to bear children” would almost certainly be a sex classification, even if it never said “woman” anywhere. Also, an unconstitutional classification typically bears a message of the supremacy of one class over others, such as segregation bearing the message of white supremacy. The marriage bans seem to be sending a message of heteronormativity — what might be called heterosexual supremacy — so they seem like sexual orientation classifications.

But is that mutually exclusive with a sex classification? After all, our usual sense of sexual orientation is a composite characteristic: to determine whether someone is gay or straight (or otherwise), you need to know that person’s gender identity and also the genders of that person’s preferred partners. Simply knowing that a person is attracted to men doesn’t tell you whether the person is gay or straight unless you know, for example, that the person also considers himself a man. For this reason, the government cannot determine that a person is gay until after it classifies the person by sex. Perhaps a sexual orientation classification is a sex classification, most of the time.

This approach has some real-world resonance: if a man is attracted to another man, one of the homophobic comments he might get is that he is not a real man, because men aren’t supposed to feel that way or do those things. That sounds like sex stereotyping and, thus, sex discrimination. Moreover, this wouldn’t be the first time that the judiciary has recognized that discrimination on the basis of a sex-related concept should be grouped under the heading of “sex discrimination,” since gender discrimination is considered a type of sex discrimination, even though sex and gender are distinct (albeit related) concepts. The Court could consider sexual orientation discrimination a type of sex discrimination, too.

Of course, one could imagine a law that might allow the government to classify by sexual orientation without classifying by sex. Consider a law that required only self-identified homosexuals to sit at the back of the bus. To administer this law, the government need not determine whether it thinks that the person is homosexual — which requires determining the person’s sex — but only whether the person thinks of himself or herself as homosexual. However, even if this law didn’t involve a sex classification (and it might be complicated to determine whether it did or didn’t), that’s not how the law in this case is structured. It explicitly says “man” and “woman,” so the government must classify one person as a “man” and the other as a “woman.” Those are sex classifications.

Despite the foregoing analysis, there is very little chance that the Supreme Court will consider sexual orientation discrimination a type of sex discrimination. The reason is Title VII of the Civil Rights Act of 1964. Title VII bars (among other things) sex discrimination in employment. Members of Congress have been proposing adding sexual orientation to Title VII (in a bill called “ENDA”) since 1974, but it has never passed. If the Supreme Court held that sexual orientation discrimination is a species of sex discrimination, then it would be implying that Title VII’s ban on sex discrimination includes a ban on sexual orientation discrimination. I suspect the Court would view this as judicial (rather than legislative) enactment of ENDA and would find that prospect distasteful. Thus, somehow, it has to determine that this law is a sexual orientation classification, even though the law says nothing about sexual orientation on its face.

It will be interesting to see if the Court digs into any of these issues at oral argument. Most lower courts have simply assumed that the laws classify on the basis of sexual orientation, but the Supreme Court could dig deeper if it chose.

* Tom Watts is a fourth-year JD/MPP student at HLS and HKS and is the Executive Online Editor of HLPR.

by on Leave a Comment

Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice Roberts

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Senator Sheldon Whitehouse’s Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice Roberts. Senator Whitehouse (D-RI) writes:

A troubling and unmistakable trend has developed over several decades, and accelerated in recent years, of extreme judicial activism within the conservative bloc of Justices on the Supreme Court—reaching a new pinnacle under Chief Justice John Roberts.

The Court’s recent activism has advanced a pro-corporate agenda at the expense not only of injured Americans, but also of fundamental democratic institutions. The Court has exposed our elections to corruption and eroded fundamental protections, such as access to the ballot box. It has weakened the role of the civil jury, a constitutional institution intended to ensure equal- ity before the law and an important check in our unique American system of separated powers. The price of the Court’s corporate agenda has been high.

…

This is admittedly a harsh indictment of the conservative activists. The purpose of this article is to provide a bill of particulars supporting that charge—showing that the patterns to their decisions, and the strategies employed to achieve their results, suggest intentional and purposeful activism. This article will explore the means by which Chief Justice Roberts and the conservative bloc have furthered their agenda—including selective adherence to traditional conservative principles, advance strategic planning to shape policy, and a failure to promote consensus—and describe how the ends promote corporate and ideological interests at the expense of our democracy.

In light of the major issues before the Supreme Court right now, such as King v. Burwell on the subsidies in the Affordable Care Act, Senator Whitehouse’s concerns are especially relevant. Give it a read today!

by on Leave a Comment

Religious Freedom and (Other) Civil Liberties: Is There a Middle Ground?

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Professor Abner S. Greene’s Religious Freedom and (Other) Civil Liberties: Is There a Middle Ground? Professor Greene, who is the Leonard F. Manning Professor at Fordham Law School, writes:

The question will always be in the details: How do we evaluate the need for uniform enforcement versus the need for accommodation? To insist on one or the other to the extreme is to insist on the truth of one’s position in a way that threatens a certain kind of fundamentalism, a sureness of one’s position, which is improper both as a matter of political theory and as a matter of constitutional law. In the remainder of this article, I first discuss contemporary works by intellectual historians, each of whom resists the kind of pluralism I advance. I then criticize Ronald Dworkin’s final book for adopting both too expansive a view of religion and too narrow a view of how to protect it. Next, I evaluate the Court’s holding in the most recent religious accommodation case, Hobby Lobby, admiring its concern for such accommodation but critiquing its treatment of whether the law in question places a substantial burden on religious practice. Before concluding, I offer some brief thoughts on whether we should exempt from anti-discrimination law small business owners who object on religious grounds to providing services to same-sex couples in the setting of weddings or other commitment ceremonies.

Like several other articles previously featured on Notice & Comment, Professor Greene’s article is particularly relevant in light of the recent controversy in Indiana. Give it a read today!

by on 1 Comment

The Case for Evidence-Based Free Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Professor Marci A. Hamilton’s The Case for Evidence-Based Free Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy. Professor Hamilton, who holds the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, writes:

In this article, I will first describe the Supreme Court’s Constitution-based religious accommodation jurisprudence before the first RFRA statute was enacted. Second, I will describe RFRA’s features and enactment, which violate widely-accepted principles of transparency. Third, I will describe the negative unintended (and intended) consequences of RFRA. Finally, I will propose an evidence-based approach to religious accommodation, which is a superior process for achieving sound public policy and the common good. In a nutshell, my proposal requires two initial steps: (1) repeal RFRA and, therefore, (2) return free exercise cases to the Court’s longstanding First Amendment jurisprudence, which provided ample room for legislative and executive accommodation involving a specific practice and a specific law. Once these legal repairs have been accomplished, the accommodation process should strive for greater accountability and transparency, meaning that legislators would take a more responsible position on the potential impact of the proposed accommodation by ascertaining: (1) the laws to be affected; (2) who is seeking to avoid their obligations under the law and for what practice; (3) who would be harmed by the proposed accommodation; and (4) the views of experts in the field and the public. The bottom line is that the federal and state RFRAs have been passed through ignorance, with only religious organizations knowing what laws they intend to break with a RFRA. Legislators have an obligation to all of their constituents, religious or not, and particularly to those they might be harming unknowingly. The proposal in this article is intended to create a more just process and one that shields victims of religious conduct, of which there are many.

Like several other articles previously featured on Notice & Comment, Professor Hamilton’s article is particularly relevant in light of the recent controversy in Indiana. Give it a read today!

by on Leave a Comment

The Satanic Temple, Scott Walker, and Contraception: A Partial Account of Hobby Lobby’s Implications for State Law

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Kara Loewentheil’s The Satanic Temple, Scott Walker, and Contraception: A Partial Account of Hobby Lobby’s Implications for State Law. Ms. Loewentheil, a Research Fellow and Director of the Public Rights/Private Conscience at Columbia Law School, discusses the extreme interpretations of the Supreme Court’s Hobby Lobby decision that appeared in the media right after the decision was announced and tries to clarify the scope of the decision. Ms. Loewentheil writes:

In this article, I demonstrate that Scott Walker’s Administration and The Satanic Temple have more in common than it might superficially appear. In fact, there are three common threads that tie their seemingly diametrical efforts together. First, both Scott Walker’s Administration and The Satanic Temple read Hobby Lobby too broadly. Rather than creating an era of religious exemptions on demand, Hobby Lobby should be read to have a limited impact on state and federal law, even as persuasive authority. Second, both Scott Walker’s Administration and The Satanic Temple fail to appreciate the continuing relevance and impact of many other state and federal laws that continue to provide protection for reproductive rights, including contraceptive access. Third, Scott Walker’s administration and The Satanic Temple share a common strategy of attempting to use claims of religious objection to regulation affecting women’s reproductive rights as a tool for political mobilization of their respective—and antithetical—political communities. In this, however, they are closer to the mark: Hobby Lobby does open up new possibilities for claims of exemption. Politically conservative exemptions have been well-represented in the social, political, and legal discourse around the Hobby Lobby fallout. But what has been less appreciated is that however open the regime is for culturally conservative religious objections, it is equally open for progressive religious objections as well.

In tracing these three common threads between Scott Walker and The Satanic Temple, the purpose of this article is both analytic and descriptive. Analytically, it seeks to unearth the serious point behind The Satanic Temple’s seemingly facetious accommodation campaign: conservatives do not have a monopoly on accommodation. Progressives, too, can look to religious objection claims under RFRA as a means of effecting change in the legal system. For these efforts to be effective, however, we have to be clear— descriptively—about what Hobby Lobby does and does not do.

As the courts continue to hear cases regarding the implications of Hobby Lobby (such as Wheaton College v. Burwell), Ms. Loewentheil’s contribution continues to be timely and insightful. Give it a read today!

by on 1 Comment

A New Era of Inequality? Hobby Lobby and Religious Exemptions from Anti-Discrimination Laws

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Alex J. Luchenitser’s A New Era of Inequality? Hobby Lobby and Religious Exemptions from Anti-Discrimination Laws. Mr. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State, discusses the aftermath of the Supreme Court’s Hobby Lobby decision and its implications for the federal RFRA (and, by implication, state RFRAs). Mr. Luchenitser writes:

There are many options for repairing RFRA. For-profit businesses could be precluded from making claims under the statute. RFRA’s “substantial burden” requirement could be reinvigorated. The “least restrictive means” analysis could be rendered more deferential to the government. Specific statutes could be excluded from RFRA’s grasp. All the foregoing alternatives have drawbacks, however.

The soundest way of ensuring that Hobby Lobby does not open the door to private discrimination or other impositions of religious beliefs on persons who do not share them would be to specifically exclude from RFRA’s coverage requests for exemptions that would impose nontrivial burdens on third parties. Such an amendment would provide the most effective protection against future court decisions that—in the name of religious freedom—abridge such freedom instead of preserving it.

Like Professor Tebbe’s article, previously featured on Notice & Comment, Mr. Luchenitser’s article sheds some light on the recent controversy in Indiana and how we might avert potential subsequent controversies. Give it a read today!