At long last, the Supreme Court is poised to decide what, if anything, the Constitution has to say about same-sex marriage. As spirited demonstrations outside (and, briefly, even inside) the high court during oral argument in Obergefell v. Hodges attest, this question continues to stir emotions and provide ammunition for combatants in the culture wars. All the noise threatens to drown out an important discussion about the role of the judiciary in keeping the political branches in check.
In the opinion that is now before the Court, the Sixth Circuit Court of Appeals upheld a series of same-sex marriage bans, explaining that the states' marriage laws could rest on "rational speculation unsupported by evidence." On Tuesday, former Michigan Solicitor General John Bursch, arguing in support of the bans, invited the Court to take a similarly deferential approach. In response to questions about how excluding same-sex couples from marriage would further any legitimate end of government, Bursch trotted out hypotheticals and, when pressed for concrete evidence, urged that recognizing same-sex marriage might have "consequences over the long term that some people didn't expect."
The Obergefell Court should reject this call for adjudication by speculation. If judicial review is to be an effective check on the political branches, judges must engage in a genuine, evidence-based search for the truth in all constitutional cases--including those that are controversial.
Writing for a divided Sixth Circuit panel in the proceedings below, Judge Jeffrey Sutton made no effort to determine whether the same-sex marriage bans at issue were actually designed (as the states claimed) to "nudge" opposite-sex couples towards stable family units. He brushed aside fact-finding by lower courts. He stated that the government may treat people differently based on naked preferences for politically powerful groups, specifically citing "nepotism" as a legitimate basis for government action. Lastly, he asserted that states could rationally take a wait-and-see approach and enforce bans on same-sex marriage even without any reliable evidence that recognizing same-sex marriage harms anyone.
As the Institute for Justice argued in its amicus brief, the Sixth Circuit's application of the "rational basis test"--the default test in constitutional law--has no place in a constitutional republic dedicated to equality before the law. It would allow public officials virtually unbridled discretion to (among other things) grant favors to politically powerful industries, impose grossly disproportionate tax burdens on similarly situated property owners, and single out unpopular groups for unfavorable treatment. It is useful to contrast this toothless test with the approach taken by the Seventh Circuit Court of Appeals in Baskin v. Bogan, a case involving same-sex marriage bans in Indiana and Wisconsin.
In his opinion for the court, Judge Richard Posner noted the poor fit between what the bans were purportedly designed to do and what they actually did--finding, for example, that while Indiana argued that its marriage laws promoted responsible procreation, the state not only failed to condition marriage on fertility but permitted heterosexual marriages between first cousins on the express condition that they be infertile. This rationale smacked of pretext, and Posner rightly rejected it as being "so full of holes that it cannot be taken seriously." He further rejected the invitation to "go slow" and allow the states to determine the possible effects of same-sex marriage, observing that the states had provided no evidence whatsoever that allowing same-sex marriage would cause "palpable harm to family, society, or civilization."
The Supreme Court should perform its analysis in Obergefell the way Judge Posner did in Baskin--by focusing on the facts rather than simply deferring to legislative majorities. If no reliable evidence at all were required to justify legislative classifications in constitutional cases, the judiciary would be transformed from a co-ordinate branch into a meaningless rubber stamp. The Framers neither intended nor envisioned that role for an institution they designated to serve as the "[bulwark] of a limited Constitution."
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