On Friday, District Judge Bernard Friedman, a Reagan appointee to the bench, declared Michigan's ban on same-sex marriage unconstitutional (read the opinion here). As I have argued several times during this unprecedented string of marriage equality rulings in the lower federal courts, the decision seems almost routine: a state's ban on gays marrying violates equal protection because it treats similarly situated persons differently for no legitimate reason.
The state tried to argue the standard, yet hopeless case--namely, that the ban promotes the "optimal child-rearing environment," allows the state to "proceed with caution" in an area of great social change, and expresses the collective "tradition and morality" of the citizens of the state.
In response, the court said two things in response: First, that some of these reasons are not even legitimate state goals, and, second, even if they all are, banning gays from marrying is so unrelated to these ostensible goals that the ban makes no sense.
We've heard these arguments before. And we've seen then struck down before, in states as different as Massachusetts (back in 2004) and in Utah ten years later.
What was unique about this decision is that, like Judge Vaughn Walker's decision in August 2010 striking down California's ban on same-sex marriage, it followed a trial, with witness testimony and cross examination. That hasn't happened all that often since we began this fight. And despite the benefits to our cause, i.e., putting truth on the record, it may happen even less often going forward because the Supreme Court's decision in Windsor made trials unnecessary.
Below, I briefly summarize the Michigan case and flesh out the argument that full trials, though a boon for our side, are being made superfluous by Windsor.
CONTINUED, AFTER THE JUMP...
Judge Friedman's decision was based solely on the Equal Protection Clause and decided on rational basis review. Regular readers of the Towleroad law column will know that the means immediately.
First, "rationale basis review" is the lowest form of the judiclal scrutiny; it is the lowest hurdle for laws to pass. We have seen several opinions, including a recent appellate court opinion from the Ninth Circuit, argue that discrimination on the basis of sexual orientation merits a tougher standard, what we call "heightened scrutiny," but Judge Friedman was treading a well-worn path here. He argued that Michigan's ban on same-sex marriage was so irrational, so untethered to any legitimate state goal that he did not have to bother with the scrutiny debate: the ban fails even under the lowest standard.
Judge Friedman's decision on scrutiny was also hemmed in by appellate court precedent that he has to follow. The Sixth Circuit, which governs Michigan, has previously held that rational basis is appropriate. As a district judge, Judge Friedman was not willing to defy his superior court even though other judges have used Justice Kennedy's decision in Windsor as a tool to do just that.
His failure of boldness makes his decision more similar to the pile of pre-Windsor marriage equality decisions, which, more often than not, put aside scrutiny and just declared bans dead. Even though I believe we do merit heightened scrutiny when the state discriminates against us, several gay rights legal scholars have argued that Windsor, for its hazy language on such standards, is part of an attempt by Justice Kennedy and others to do away with scrutiny levels altogether. But that's a broader conversation for a future column.
Second, the Michigan decision rested solely on equal protection even though several other cases — from California to Utah, for example — argued that marriage discrimination violates the Equal Protection Clause and the Due Process Clause. Judge Friedman thought the latter line of reasoning — that marriage is a fundamental right due every American and can only be taken away or restricted for a really good reason — was unnecessary because the ban so clearly violated the guarantee of equality.
Here, too, Judge Friedman has a lot of company. It is a tradition, a norm of judicial decision-making, that you decide the case in front of you and that's it. Judges and lawyers are taught that we use the most narrow means of answering the particular question posed by the controversy at bar and any broader statements are superfluous. Hence, Judge Friedman's narrow, even conservative, decision to limit his rationale to one clause of the Constitution and to refuse to touch the scrutiny debate. He didn't have to.
What is notable about this case is that it followed a trial. Judge Friedman heard witness testimony about gay families and couples, about child rearing, about the needs of the state, and about social science literature related to marriage and raising families. Many (but certainly not all) of Judge Friedman's colleagues have decided to strike down bans on gays marriage without trials; they relied solely on the facts and legal arguments presented in briefs and motion papers.
There are two takeaways from this situation.
First, if we recall back to the Prop 8 trial that culminated in Judge Walker's decision, the first of its kind in the nation, the benefits of a trial were clear. Forcing our antigay opponents to go on record, to swear under oath, and to sit for cross-examination stripped them of the ability to lie and mislead that a political campaign grants them. It brought sunshine to the shadowy realm of antigay bigotry. And, perhaps more importantly, it laid bare for the American public that an impartial quest for truth revealed the utter irrationality of preventing gays from marrying.
Trials on same-sex marriage, then, are beneficial.
But, they may be less frequent and less necessary going forward. Even a cursory reading of the district court cases since Windsor makes clear that the Supreme Court's decision in that case was a game-changer. It required that gay persons be treated with "equal dignity" and, even though the case itself was strictly about already legally married same-sex couples, Justice Kennedy's decision seemed broader. At least one judge found that the decision, which never explicitly mentioned scrutiny, demands heightened scrutiny anyway. And several judges have cited Windsor as arguing for a general principles of gay equality and, therefore, making all bans on gay marriage untenable.
If that's true — we will save the "if" for another column — then one wonders: what's the point of a trial? Everyone agrees that bans on gays marrying is a form of discrimination. The debate in the federal courts has always been about whether the discrimination is permissible given the Constitution's equal protection and due process guarantees and the appropriate level of scrutiny. So, if we agree on the facts, then a trial seems superfluous, especially if Windsor makes the death of these bans a fait accompli.
Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.