Ely at the Altar: Political process theory through the lens of the marriage debate

Michigan Law Review

Volumn 109, Issue 8, 2011, Pages 1363-1411

  Schacter, Jane S ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 79958262162     PISSN: 00262234     EISSN: None     Source Type: Journal    
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References (533)

1. John Hart Ely, Democracy and Distrust (1980).
2. United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).
3. McCulloch v. Maryland, 17 U.S. 316, 428-29 (1819) (reasoning that the state of Maryland could not impose a tax on a national bank where the federal government was not represented in the state legislature).
4. Carolene Products, 304 U.S. at 153 n.4.
5. Ely, supra note 1, at 101-04.
6. A LexisNexis search of the American Law Journals database for <"Democracy and Distrust"> on September 5, 2010 yielded more than 3,000 articles.
7. A LexisNexis search of the Supreme Court database for <"Democracy and Distrust"> on September 5, 2010 yielded 18 cases since the book was first published in 1980.
8. An identical search in the LexisNexis Courts of Appeals database yielded 53 cases, and the same search yielded 33 cases in the U.S. District Courts database.
9. A LexisNexis Shepard's Report for Carolene Products generated on September 5, 2010 yielded 3,883 law review articles, 90 U.S. Supreme Court cases, and 581 cases from the lower federal courts.
10. Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 Yale L.J. 1063, 1063-64 (1980).
11. Id. at 1064.
12. See, e.g., Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713, 716-17 (1985)
13. Paul Brest, The Substance of Process, 42 Ohio St. L.J. 131, 131 (1981)
14. Daniel R. Ortiz, Pursuing a Perfect Politics: The Allure and Failure of Process Theory, 77 Va. L. Rev. 721, 722 (1991).
15. In Democracy and Distrust, Ely set out two principles of representation reinforcement, one concerning the problem of entrenchment and the other the problem of bias.
16. See infra text accompanying note 41. Only the latter is at issue in this Article.
17. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).
18. The other standard factors are a history of discrimination, the imposition of disabilities based on stereotypes and unrelated to merit, and (sometimes) a group disadvantage based on an immutable characteristic.
19. See id.
20. For an exception, see infra Section I.B.1 and its discussion of Graham v. Richardson.
21. See, e.g., Craig v. Boren, 429 U.S. 190 (1976) (gender)
22. Korematsu v. United States, 323 U.S. 214 (1944) (race).
23. Note that Justice Brennan's plurality opinion in Frontiero v. Richardson, 411 U.S. 677, 685-87 (1973) (plurality opinion), would have been the counterexample had it secured a fifth vote.
24. See discussion infra Section I.B.1.
25. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
26. Birth outside wedlock was the last.
27. See Clark v. Jeter, 486 U.S. 456 (1988)
28. Lalli v. Lalli, 439 U.S. 259 (1978)
29. Trimble v. Gordon, 430 U.S. 762 (1977). For a discussion of "heightened rational basis," see infra Section I.B.2.
30. The issues addressed in this Article concern members of the LGBT community.
31. In their opinions, courts that have grappled with these issues frequently refer only to "gay" or "gay and lesbian" persons, and have not separately analyzed at any length the implications for bisexual or transgendered persons.
32. The issues of political power discussed here, however, implicate the broader LGBT community.
33. For ease of reference, I use both the terms commonly used by courts-"gay" or "gay and lesbian"-and the broader term "LGBT." I intend no substantive distinction between the terms.
34. See infra Section I.B.2.
35. See generally Jesse McKinley & John Schwartz, California's Ban on Gay Marriage is Struck Down, N.Y. Times, Aug. 5, 2010, at A1.
36. Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal.)
37. Stay denied, 702 F. Supp. 2d 1132 (N.D. Cal. 2010), stay granted, 2010 WL 3212786 (9th Cir. Aug. 16, 2010)
38. and certifying question to the Supreme Court of California, 628 F.3d 1191 (9th Cir. 2011).
39. The American Foundation for Equal Rights has compiled a day-by-day set of trial transcripts for Perry v. Schwarzenegger.
40. Transcripts, Am. Found. for Equal Rights, http://www.equalrightsfoundation.org/our-work/hearing-transcripts/ (last visited Feb. 21, 2011).
41. Segura testified on Days 7 and 8 of the trial.
42. Transcript of Proceedings at 1523-736, 1747-881
43. Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. C 09-2292-VRW).
44. Miller testified on Days 10 and 11.
45. Id. at 2414-579, 2587-715.
46. This was not the first faceoff of expert witnesses on this question, but it was the most detailed and protracted.
47. Competing political scientists testified as expert witnesses in the trial of Amendment 2, the anti-gay rights initiative ultimately struck down by the Supreme Court in Romer v. Evans, 516 U.S. 620 (1996).
48. See Lisa Keen & Suzanne B. Goldberg, Strangers to the Law: Gay People on Trial 105-31 (1998) (reviewing the Amendment 2 testimony on gay political power offered by Professors Kenneth Sherrill, for the plaintiffs
49. and James David Woodard, for the state of Colorado).
50. See supra note 10 and accompanying text.
51. Plaintiffs offered eight lay witnesses and nine experts.
52. Perry, 704 F. Supp. 2d at 944-53.
53. Baehr v. Lewin, 852 P.2d 44 (Haw.), reconsideration granted in part, 875 P.2d 225 (Haw. 1993), appeal after remand sub nom
54. Baehr v. Miike, 910 P.2d 112 (Haw. 1996), and order aff'd, 950 P.2d 1234 (Haw. 1997).
55. The history is laid out in Jane S. Schacter, Courts and the Politics of Backlash: Marriage Equality Litigation Then and Now, 82 S. Cal. L. Rev. 1153 (2009).
56. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (finding that the Massachusetts Constitution protects the right of same-sex couples to marry).
57. See In re Marriage Cases, 183 P.3d 384 (Cal. 2008), Superseded by constitutional amendment, California Marriage Protection Act, Cal. Const. art. I, § 7.5
58. As recognized in Strauss v. Horton, 207 P. 3d 48 (Cal. 2009) (applying strict scrutiny to find that laws preventing same-sex couples from marrying violated the California Constitution).
59. See Kerrigan v. Comm'r of Pub. Health, 957 A.2d. 407 (Conn. 2008) (finding that the Connecticut Constitution protects the right of same-sex couples to marry).
60. See Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) (upholding lower court's ruling that a statute banning same-sex marriages violated the Iowa Constitution).
61. On June 3, 2009, New Hampshire Governor John Lynch signed a bill legalizing samesex marriage, codified as R.S.A. 457:1-457:3. N.H. Rev. Stat. Ann. §§ 457:1-:3 (2004 & Supp. 2010)
62. Eric Moskowitz & Martin Finucane, N.H. becomes sixth state where gays can marry, Bos. Globe, June 7, 2009, http://www.boston.com/news/local/breaking_news/2009/06/nh_legislature.html.
63. Same-sex marriage became legal in Vermont on September 1, 2009, after both houses of the legislature voted to override Governor Jim Douglas's veto.
64. See David Abel, Vermont lawmakers legalize gay marriage
65. Bos. Globe, Apr. 7, 2009, http://www.boston.com/news/local/breaking_news/2009/04/vermont_lawmake.html.
66. A bill allowing same-sex marriage passed the Maine legislature and was signed into law in early 2009; the law was put on hold, however, because opponents successfully petitioned for a statewide referendum.
67. Maria Sacchetti, Maine voters overturn state's new same-sex marriage law
68. Bos. Globe, Nov. 4, 2009, http://www.boston.com/news/local/maine/articles/2009/11/04/maine_voters_overturn_states_new_same_sex_marriage_law/.
69. The voters in California and Maine have voted down same-sex marriage through statewide ballot measures. For discussion of the California initiative, known as Proposition 8
70. see infra note 105.
71. For more information on the Maine referendum, known as Question 1
72. see Kevin Miller & Judy Harrison, Gay marriage repealed in Maine, Bangor Daily News, Nov. 3, 2009, http://www.bangordailynews.com/detail/128048.html.
73. The District of Columbia also allows same-sex marriage, having enacted legislation.
74. See Ann E. Marimow & Keith L. Alexander, First gay marriages in District performed, Wash. Post, Mar. 10, 2010, at B01, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/03/09/AR2010030901904.html.
75. See Relationship Recognition for Same-Sex Couples in the U.S. Map, Nat'l Gay & Lesbian Task Force, http://www.thetaskforce.org/downloads/reports/issue_maps/rel_recog_9_10_color.pdf (last updated Sept. 13, 2010).
76. For more detailed information, see State Laws Prohibiting Recognition of Same-Sex Relationships Map, Nat'l Gay & Lesbian Task Force, http://www.thetaskforce.org/downloads/reports/issue_maps/samesex_relationships_7_09.pdf (last updated June 30, 2009).
77. United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).
78. Id. (emphasis added) (citations omitted).
79. Louis Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 Colum. L. Rev. 1093, 1098-99 (1982).
80. Felix Gilman, The Famous Footnote Four: A History of the Carolene Products Footnote, 46 S. Tex. L. Rev. 163, 166-67 (2004).
81. Ely, supra note 1, at 103.
82. Id. at 77.
83. Id. at 152-53.
84. See, e.g., Ortiz, supra note 9, at 721-22
85. Tribe, supra note 7.
86. At a high level of generality, the theory of representation reinforcement proceeds from the assumption that structural defects in the political process justify greater judicial solicitude.
87. For accounts considering the relevance of representational safeguards beyond the realm of equal protection, see, for example
88. Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485 (1994)
89. Gregory P. Magarian, The Jurisprudence of Colliding First Amendment Limits: From the Dead End of Neutrality to the Open Road of Participation-Enhancing Review, 83 Notre Dame L. Rev. 185 (2007).
90. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)
91. see Erwin Chemerinsky, Constitutional Law: Principles and Policies 672 (3d ed. 2006) (stating that courts determine the applicable level of scrutiny based on "immutable characteristics," "the ability of the group to protect itself through the political process," the "history of discrimination against the group," and the "likelihood that the classification reflects prejudice as opposed to a permissible governing purpose").
92. See Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (quoting Lyng v. Castillo, 477 U.S. 635, 638 (1986) (internal quotation marks omitted)).
93. The Court has not made immutability a strict requirement.
94. See, e.g., Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian and Bisexual Identity, 36 UCLA L. Rev. 915, 923-32 (1989).
95. See infra note 52 and accompanying text.
96. Loving v. Virginia, 388 U.S. 1 (1967)
97. McLaughlin v. Florida, 379 U.S. 184 (1964).
98. This point is nicely developed in Evan Gerstmann, The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection 40-42 (1999).
99. Similarly, Brown v. Board of Education, 347 U.S. 483 (1954), did not focus on level of scrutiny or process theory at all.
100. Mathews v. Lucas, 427 U.S. 495 (1976).
101. Id. at 506 (emphasis added).
102. Graham v. Richardson, 403 U.S. 365, 372 (1971) (citation omitted). For a history of when and how courts have used the footnote
103. see Gilman, supra note 40.
104. See, e.g., Foley v. Connelie, 435 U.S. 291, 294 (1978) (citations omitted) (citing Graham, 403 U.S. at 372
105. and United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938)).
106. In Foley and in other alienage cases, the Court carved out a "political functions" exemption that, notwithstanding the application of strict scrutiny, permitted the exclusion of aliens from certain kinds of programs in which citizenship could legitimately be required.
107. See, e.g., id. at 294-95.
108. Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion).
109. Id. at 686.
110. Id. at 686 n.17.
111. Id. at 687-88.
112. Craig v. Boren, 429 U.S. 190, 197 (1976).
113. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 25 (1973).
114. Id. at 22-23.
115. See Chemerinsky, supra note 46, at 786 (citing Rodriguez for the proposition that the Court "held that discrimination against the poor does not warrant heightened scrutiny" but noting that the Court "also rejected the claim that the [Texas] law should be regarded as discriminating against the poor as a group").
116. Rodriguez, 411 U.S. at 28.
117. Mass. Ret. Bd. v. Murgia, 427 U.S. 307 (1976).
118. Id. at 313-14.
119. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985).
120. Id. at 445.
121. There were other factors cited that were not relevant to political process theory.
122. For example, the Court said that heightened judicial skepticism would be appropriate because it was sometimes sensible for government to treat people with retardation differently than those without it.
123. See id. at 444-45.
124. After some inconsistent decisions, the Court applied a form of intermediate scrutiny in Trimble v. Gordon, 430 U.S. 762 (1977)
125. and Lalli v. Lalli, 439 U.S. 259 (1978).
126. A few years later, the Court explicitly erased any doubt about standard of review that might have lingered.
127. See Clark v. Jeter, 486 U.S. 456 (1988).
128. This is done in different ways and doctrinal contexts.
129. See United States v. Virginia, 518 U.S. 515, 575-76 (1996) (Scalia, J., dissenting)
130. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 317 n.10 (1986) (Stevens, J., dissenting) (citing footnote four and Ely)
131. Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 484-87 (1982)
132. O'Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 801 n.8 (1980) (citing footnote four)
133. Sugarman v. Dougall, 413 U.S. 634, 642 (1973) (citing footnote four).
134. On occasion the Court's reasoning has suggested that "discrete and insular," or "subject to prejudice," is a term of art.
135. In O'Bannon, 447 U.S. at 786-90, for example, the Court held that nursing home residents disadvantaged by certain rules might be a minority and victims of physical infirmity and neglect, but were not objects of footnote four-type prejudice.
136. See supra Section I.B.1.
137. See Virginia, 518 U.S. at 575 (1996) (Scalia, J., dissenting).
138. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 553-55 (1989) (Marshall, J., dissenting)
139. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 387-402 (1978) (Marshall, J., concurring in part).
140. See Gerstmann, supra note 49.
141. Compare J.A. Croson Co., 488 U.S. at 495-96
142. With id. at 553-55 (Marshall, J., dissenting).
143. Id. at 495 (quoting United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938)).
144. Id. at 495-96.
145. Id. at 553-54 (Marshall, J., dissenting) (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)).
146. Cf. Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974) (declining to find conscientious objectors to be a suspect classification, citing the fact that Congress chose to recognize a conscientious- objectors exemption for military training, and suggesting that conscientious objectors were not politically powerless).
147. 517 U.S. 620 (1996).
148. 393 U.S. 385 (1969).
149. See Stephen M. Rich, Note, Ruling by Numbers: Political Restructuring and the Reconsideration of Democratic Commitments After Romer v. Evans, 109 Yale L.J. 587 (1999).
150. Evans v. Romer, 882 P.2d 1335, 1341 (Colo. 1994), cert. granted, 513 U.S. 1146 (1995), aff'd, 517 U.S. 620 (1996).
151. See Romer, 517 U.S. at 626 ("We now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court.").
152. See, e.g., Brief of the Human Rights Campaign Fund et al., as Amici Curiae in Support of Respondents, Romer, 517 U.S. 620 (No. 94-1039), 1995 WL 17008436.
153. 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
154. See Brief of the National Organization for Women as Amicus Curiae in Support of Respondents, Bowers, 478 U.S. 186 (No. 85-140), 1986 WL 720446 (citing footnote four)
155. Cf. Amicus Curiae Brief on Behalf of the Respondents by Lambda Legal Defense and Education Fund et al., Bowers, 478 U.S. 186 (No. 85-140), 1986 WL 720449 (citing process theory as part of substantive due process analysis).
156. 539 U.S. 558, 579-85 (2003) (O'Connor, J., concurring).
157. See Brief of the National Lesbian and Gay Law Association, et al. as Amici Curiae in Support of Petitioners, Lawrence, 539 U.S. 558 (No. 02-102), 2003 WL 152348.
158. See Lawrence, 539 U.S. at 579-80 (O'Connor, J., concurring)
159. see also Chemerinsky, supra note 46, at 844-46.
160. Lawrence, 539 U.S. at 579-80 (O'Connor, J., concurring) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440) (internal quotation marks omitted).
161. Id. at 582.
162. Id. at 580.
163. Id. at 584-85.
164. Id. at 584 (quoting Plyler v. Doe, 457 U.S. 202, 239 (1982) (Powell, J., concurring)) (internal quotation marks omitted).
165. Rowland v. Mad River Local Sch. Dist., 730 F.2d 444 (6th Cir. 1984), cert. denied, 470 U.S. 1009 (1985) (Brennan, J., dissenting).
166. Rowland, 470 U.S. at 1014 (Brennan, J., dissenting) (footnote omitted) (quoting Plyler, 457 U.S. at 216 n.14).
167. Romer v. Evans, 517 U.S. 620, 652 (1996) (Scalia, J., dissenting).
168. See Gerstmann, supra note 49, at 80 (quoting Judge Bayless's opinion in C-18 of Colorado's petition for certiorari).
169. Six years before Romer, the Ninth Circuit had rejected the idea of strict scrutiny for gay people in a case involving a challenge to a Department of Defense policy of conducting enhanced security checks on gay and lesbian job applicants.
170. See High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990).
171. In doing so, the court cited Cleburne and foreshadowed the idea that a group's ability to secure antidiscrimination legislation ought to preclude a finding of political powerlessness.
172. Id. at 574.
173. Citing the political powerlessness criterion, the Circuit Court concluded that legislatures have addressed and continue to address the discrimination suffered by homosexuals on account of their sexual orientation through passage of antidiscrimination legislation.
174. Thus, homosexuals are not without political power; they have the ability to and do attract the attention of the lawmakers as evidenced by such legislation. Id. (internal quotation marks omitted)
175. see also Gerstmann, supra note 49, at 81.
176. Romer, 517 U.S. at 645-46 (Scalia, J., dissenting).
177. Id. at 646 (characterizing gay rights efforts as the "homosexuals' quest for social endorsement").
178. Id. at 647.
179. M.V. Lee Badgett, Income Inflation: The Myth of Affluence Among Gay, Lesbian, and Bisexual Americans 4 (1998), available at http://www.thetaskforce.org/downloads/reports/reports/IncomeInflationMyth.pdf.
180. See Lawrence v. Texas, 539 U.S. 558, 603 (2003) (Scalia, J., dissenting) (arguing that the fact that Texas was one of few states with a sodomy law reflected gay political success, and asserting that the legal profession had embraced the homosexual "agenda").
181. In re Marriage Cases, 183 P.3d 384, 401, 441-42, 444, 446 (Cal. 2008), superseded by constitutional amendment, California Marriage Protection Act, Cal. Const. art. I, § 7.5
182. As recognized in Strauss v. Horton, 207 P.3d 48 (Cal. 2009)
183. Baehr v. Lewin, 852 P.2d 44, 67 (Haw.), reconsideration granted in part, 875 P.2d 225 (Haw. 1993)
184. Appeal after remand sub nom., Baehr v. Miike, 910 P.2d 112 (Haw. 1996)
185. and order aff'd, 950 P.2d 1234 (Haw. 1997).
186. Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 412, 432, 476 (Conn. 2008)
187. Varnum v. Brien, 763 N.W.2d 862, 895 (Iowa 2009).
188. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003).
189. Lewis v. Harris, 908 A.2d 196, 212 (N.J. 2006).
190. Baker v. State, 744 A.2d 864, 867 (Vt. 1999).
191. Conaway v. Deane, 932 A.2d 571, 605-06 (Md. 2007)
192. Hernandez v. Robles, 885 N.E.2d 1, 12 (N.Y. 2006)
193. Andersen v. King Cnty., 138 P.3d 963, 969 (Wash. 2006).
194. In re Marriage Cases, 183 P.3d 384, 443 (Cal. 2008), superseded by constitutional amendment, California Marriage Protection Act, Cal. Const. art. I, § 7.5
195. As recognized in Strauss v. Horton, 207 P.3d 48 (Cal. 2009)
196. Kerrigan, 957 A.2d at 440-44
197. Varnum, 763 N.W.2d at 893-95
198. Conaway, 932 A.2d at 609-14
199. Andersen, 138 P.3d at 974-75.
200. Conaway, 932 A.2d at 611.
201. The court listed statutes banning sexual orientation-based discrimination covering public accommodations, employment, housing, and education. Id. at 611-12.
202. Andersen, 138 P.3d at 974.
203. Conaway, 932 A.2d at 613.
204. Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 444 (Conn. 2008)
205. Varnum v. Brien, 763 N.W.2d 862, 896 (Iowa 2009)
206. Lewis v. Harris, 908 A.2d 196, 199 (N.J. 2006).
207. In relevant part, the majority opinion asserted: Although some California decisions in discussing suspect classifications have referred to a group's political powerlessness, our cases have not identified a group's current political powerlessness as a necessary prerequisite for treatment as a suspect class.
208. Indeed, if a group's current political powerlessness were a prerequisite to a characteristic's being considered a constitutionally suspect basis for differential treatment, it would be impossible to justify the numerous decisions that continue to treat sex, race, and religion as suspect classifications.
209. Instead, our decisions make clear that the most important factors in deciding whether a characteristic should be considered a constitutionally suspect basis for classification are whether the class of persons who exhibit a certain characteristic historically has been subjected to invidious and prejudicial treatment, and whether society now recognizes that the characteristic in question generally bears no relationship to the individual's ability to perform or contribute to society.
210. Thus, courts must look closely at classifications based on that characteristic lest outdated social stereotypes result in invidious laws or practices.
211. This rationale clearly applies to statutory classifications that mandate differential treatment on the basis of sexual orientation.
212. In re Marriage Cases, 183 P.3d 384, 443 (Cal. 2008), superseded by constitutional amendment, California Marriage Protection Act, Cal. Const. art. I, § 7.5
213. As recognized in Strauss v. Horton, 207 P.3d 48 (Cal. 2009) (footnotes omitted) (citations omitted) (internal quotation marks omitted).
214. The New Jersey court stated: The statutory and decisional laws of this State protect individuals from discrimination based on sexual orientation
215. When those individuals are gays and lesbians who follow the inclination of their sexual orientation and enter into a committed relationship with someone of the same sex, our laws treat them, as couples, differently than heterosexual couples.
216. As committed same-sex partners, they are not permitted to marry or to enjoy the multitude of social and financial benefits and privileges conferred on opposite-sex married couples.
217. Lewis, 908 A.2d at 200.
218. Kerrigan, 957 A.2d at 444.
219. Id. at 446.
220. Id. at 444.
221. See Varnum v. Brien, 763 N.W.2d 862, 896 (Iowa 2009).
222. Transcript of Proceedings, supra note 21, at 1646.
223. Id. at 1560
224. see also id. at 1556-57, 1582-83, 1660, 1709, 1721
225. In this connection, Segura also mentioned the devastating impact HIV/AIDS has had on the gay community, noting that it reduced the gay population and shifted political resources to public health and prevention efforts.
226. Id. at 1583-84, 1819.
227. Id. at 1560.
228. Id. at 1552.
229. Id. at 1552-1553.
230. Id. at 1556.
231. Id. at 1562.
232. Id. at 1563-64.
233. Id. at 1560.
234. Id. at 1561.
235. Id. at 1569.
236. Id. at 1574.
237. Id. at 1556-57.
238. Along these lines, only six openly gay individuals have ever served in the House of Representatives, and only two of those were openly gay when elected.
239. No openly gay individuals have ever served in the Senate, Cabinet, or Presidency.
240. Only about 1 percent of state legislators nationwide are openly gay, and this number is far lower among local government officials (estimated at. 05 percent). Id.
241. Id. at 1582, 1660.
242. Id. at 1558-59.
243. Id. at 1560.
244. Id. at 1548-49.
245. Id. at 1548-50.
246. Id. at 1655.
247. Id. at 1546.
248. The only protection in federal statutory law is the recent addition of sexual orientation to law banning hate crimes.
249. See Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, 18 U.S.C.S. § 249 (LexisNexis 2009 & Supp. 2010).
250. Transcript of Proceedings, supra note 21, at 1581.
251. Two significant developments took place several months after Segura testified.
252. First, Congress passed and the President signed a bill authorizing the repeal of the "don't ask, don't tell" policy, once certain certifications are made by military officials and the President.
253. Sheryl Gay Stolberg, Obama Signs Away 'Don't Ask, Don't Tell', N.Y. Times, Dec. 22, 2010, http://www.nytimes.com/2010/12/23/us/politics/23military.html.
254. Second, as this Article was being completed, the Department of Justice announced that, in circuits that had not already determined that rational basis review is the correct level of scrutiny to apply to sexual orientation-based claims, it would no longer defend the portion of DOMA that bars the federal government from providing benefits to couples legally married under state law.
255. The Department reasoned that the law could not survive the heightened scrutiny it believed appropriate for sexual orientation-based classifications.
256. Charlie Savage & Sheryl Gay Stolberg, In Turnabout, U.S. Says Marriage Act Blocks Gay Rights, N.Y. Times, Feb. 24, 2011, at A1.
257. Transcript of Proceedings, supra note 21, at 1647-52.
258. Id. at 1650.
259. Id. at 2486-87.
260. Id. at 2437-38.
261. Id. at 2438-39.
262. Id. at 2447-68.
263. Id. at 2470.
264. Id. at 2470-2471.
265. Id. at 2471.
266. Id. at 2453.
267. Relying on data from the Gay and Lesbian Victory Fund, he noted that, in 2008, 80 out of 111 openly LGBT candidates were elected to office, and at least 49 out of 79 were elected in 2009.
268. Id. at 2480.
269. Id. at 2472.
270. Id. at 2473-74.
271. Id. at 2478.
272. Id. at 2479.
273. Id. at 2482-83.
274. Legislation setting in motion the process to repeal "don't ask, don't tell" has since been enacted.
275. See Stolberg, supra note 145.
276. Transcript of Proceedings, supra note 21, at 2483-84.
277. Id. at 2475.
278. He testified that, in 1978 voters rejected Proposition 6-which would have allowed public schools to fire teachers and other personnel found to be advocating, imposing, encouraging or promoting homosexual activity-by a "decisive" 58% "no" vote.
279. Id. at 2475-76.
280. Similarly, in the 1980s Californians rejected three measures that sought to make persons with HIV subject to quarantine and isolation, and require doctors to report suspected HIV carriers, all by very decisive margins (between 65.6% and 71%).
281. Id. at 2476-77.
282. Id. at 2478.
283. Id. at 2485.
284. For the Prop. 22 voting results
285. see Statewide Election Results, Cal. Secretary St., http://www.sos.ca.gov/elections/elections_elections.htm (follow "March 2000 Primary Election" hyperlink; then follow "Summary of Votes on Statewide Measures" hyperlink) (last visited Mar. 15, 2011).
286. For the Prop. 8 voting results
287. see Statewide Election Results, Cal. Secretary St., http://www.sos.ca.gov/elections/elections_elections.htm (follow "November 2008 General Election" hyperlink; then follow "Votes For and Against State Ballot Measures") (last visited Mar. 15, 2011).
288. Id. at 2486-87.
289. Id. at 2487.
290. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 943-44, 950-52, 986-91 (N.D. Cal.), stay denied, 702 F. Supp. 2d 1132 (N.D. Cal. 2010)
291. Stay granted, 2010 WL 3212786 (9th Cir. Aug. 16, 2010), and certifying question to the Supreme Court of California, 628 F.3d 1191 (9th Cir. 2011).
292. Id. at 943.
293. Id. at 940 (concluding that all of the plaintiffs' nine expert witnesses were "amply qualified to offer opinion testimony on the subjects identified"; had the appropriate "demeanor and responsiveness"; and "offered credible opinion testimony")
294. see also id. at 943 (reviewing Segura's testimony and credentials).
295. Id. at 951 (citations omitted)
296. Id. at 952.
297. Id. at 997 ("[T]he evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.").
298. Id. ("The trial record shows that strict scrutiny is the appropriate standard of review to apply Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.").
299. Id. at 956, 960-61, 967, 982-83, 985-89.
300. For discussion of how the court used the evidence on political power
301. See supra Section I.B.4.
302. See infra Section III.A.
303. See supra notes 7, 9.
304. Transcript of Proceedings, supra note 21, at 2487.
305. Id. at 1646.
306. See supra notes 112-116 and accompanying text.
307. See supra notes 117-123 and accompanying text.
308. United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938).
309. Ely, supra note 1, at 101-04.
310. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).
311. Nor is this conflict resolvable at the doctrinal level.
312. It would overstate things by a considerable margin to regard the language in City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 445 (1985)
313. About the "ability to attract the attention of the lawmakers" as having settled the standard for political powerlessness claims.
314. The Supreme Court's pronouncements are far too scattered, scant, and inconsistent to support that idea. Moreover, were the Cleburne language regarded as some kind of definitive test, the heightened scrutiny accorded race and gender would be called sharply into question, given the demonstrated ability of racial minorities and women to "attract the attention of the lawmakers."
315. Id. In short, the doctrine remains undeveloped and uncertain because there are deeper conceptual questions at work.
316. For an argument that an overreliance on the Cleburne language has led courts astray
317. See Mark Strasser, Unconstitutional? Don't Ask; if It Is, Don't Tell: On Deference, Rationality and the Constitution, 66 U. Colo. L. Rev. 375, 407-11 (1995).
318. Cf. Vieth v. Jubelirer, 541 U.S. 267, 306-07 (2004) (Kennedy, J., concurring) (identifying "the lack of comprehensive and neutral principles for drawing electoral boundaries" as an obstacle for courts addressing claims of gerrymandering).
319. On the role of baseline questions in voting rights jurisprudence
320. See, for example, Samuel Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success?, 104 Colum. L. Rev. 1710 (2004)
321. Pamela S. Karlan, Georgia v. Ashcroft and the Retrogression of Retrogression, 3 Election L.J. 21 (2004)
322. Pamela S. Karlan, The Fire Next Time: Reapportionment After the 2000 Census, 50 Stan. L. Rev. 731, 741-45 (1998)
323. Richard H. Pildes, The Supreme Court, 2003 Term-Foreword: The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 29, 58-59 (2004).
324. On the recurrence of baseline questions in public law
325. See Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (1993).
326. For a comprehensive history of how not only gay people but other minority groups have organized in response to "pervasive state exclusion, discrimination, and violence,"
327. see William N. Eskridge Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 Mich. L. Rev. 2062, 2070, 2072-194 (2002) [hereinafter Eskridge, Jr., Constitutional Law in the Twentieth Century].
328. In his work on the rise of social movements asserting civil rights claims of various sorts
329. Bill Eskridge suggests that movements pass through different phases as they achieve successes and their political needs and identities change, with some movements and groups being absorbed into what he calls "normal politics," and others-like the gay rights movement-struggling longer against the resistance of traditionalist groups.
330. Id. at 2373
331. see also William N. Eskridge Jr., Channeling: Identity-Based Social Movements and Public Law, 150 U. Pa. L. Rev. 419, 475-76 (2001) [hereinafter Eskridge, Jr., Public Law].
332. His account, while comprehensive and careful in many ways, is somewhat sanguine in generally placing rights movements on a trajectory toward assimilation into a realm of prosaic politics.
333. Even with this optimism, Eskridge does not suggest that groups reaching the "normal politics" stage in his model are thereby rendered powerful, nor that reaching that stage means that the group's legacy of discrimination is left behind.
334. See id. at 476
335. Noting that while successful social movements ultimately join the fray of ordinary pluralist politics, they are distinct in "that they deploy classifications that remain charged criteria of normative decisions in our polity," and suggesting that the success of such movements "does not ensure the eradication of prejudice against or stereotypes about the minority group," though it does change the nature of countermovements against it.
336. On the limits of antidiscrimination laws as a general matter
337. see Jane S. Schacter, Skepticism, Culture and the Gay Civil Rights Debate in a Post-Civil-Rights Era, 110 Harv. L. Rev. 684, 719 (1997) (book review).
338. The Los Angeles Times has created an interactive map detailing the past decade of electoral activity.
339. Interactive: Gay marriage chronology, L.A. Times, http://www.latimes.com/news/local/la-gmtimeline-fl,0,5345296.htmlstory (last visited Feb. 21, 2011).
340. For a discussion of how the structure of state governments has affected same-sex marriage laws
341. see Neal Devins, How State Supreme Courts Take Consequences Into Account: Toward a State-Centered Understanding of State Constitutionalism, 62 Stan. L. Rev. 1629, 1674-91 (2010).
342. Note that some ballot measures have been enacted by voters acting alone (as in California), while others have been enacted with legislative approval.
343. The only statewide measure to go down was an Arizona measure restricting both marriage and domestic partnerships.
344. The initiative apparently aroused the ire of retirees who did not want to lose domestic partnership status.
345. A marriage-only ban was promptly passed by Arizona's voters after this initial loss.
346. See Monica Davey, Liberals Find Rays of Hope on Ballot Measures, N.Y. Times, Nov. 9, 2006, at P16, available at http://www.nytimes.com/2006/11/09/us/politics/09ballots.html
347. Jesse McKinley & Laurie Goodstein, Bans in 3 States On Gay Marriage, N.Y. Times, Nov. 6, 2008, at A1, available at http://www.nytimes.com/2008/11/06/us/politics/06marriage.html.
348. See Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 Am. J. Pol. Sci. 245, 253, 257-60 (1997)
349. Donald P. Haider-Markel et al., Lose, Win, or Draw? A Reexamination of Direct Democracy and Minority Rights, 60 Pol. Res. Q. 304, 306-11 (2007).
350. For a perspective more skeptical of the idea that direct democracy necessarily harms minorities in general
351. see Zoltan L. Hajnal et al., Minorities and Direct Legislation: Evidence from California Ballot Proposition Elections, 64 J. Pol. 154 (2002).
352. Cf. Arthur Lupia et al., Why State Constitutions Differ in their Treatment of Same-Sex Marriage (Munich Personal RePEC Archive, Paper No. 15096, 2009), available at http://mpra.ub.uni-muenchen.de/15096/1/MPRA_paper_15096.pdf
353. Stressing importance of procedural variations in how state constitutions can be amended). 200.
354. See Derrick A. Bell Jr., The Referendum: Democracy's Barrier to Racial Equality, 54 Wash. L. Rev. 1, 14-15 (1978)
355. Julian N. Eule, Judicial Review of Direct Democracy, 99 Yale L.J. 1503, 1526-28, 1551-56 (1990)
356. See also supra note 198.
357. Claims about the the risks that direct democracy poses for those opposing same-sex marriage have been suggested in Doe v. Reed, 130 S. Ct. 2811, 2837 (2010) (Thomas, J., dissenting) (addressing the risks of disclosing the identities of petition-signers)
358. And Hollingsworth v. Perry, 130 S. Ct. 705, 713 (2010) (citing seventy-one newspaper articles describing harassment of Prop. 8 supporters as evidence in favor of blocking any live broadcast of the resulting trial).
359. In these contexts, opponents of same-sex marriage seek judicial protection, expressing fears of harassment.
360. These are not traditional equal protection arguments, but might be assimilated to a version of process theory.
361. For a critique of these claims, see Pamela S. Karlan, The Gay and the Angry: The Supreme Court and the Battles Surrounding Same-Sex Marriage (forthcoming 2011).
362. On the idea of separate spheres in the domain of gender, see the classic description in Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139-42 (1872) (Bradley, J., concurring).
363. But see Nancy F. Cott, The Bonds of Womanhood: "Woman's Sphere" in New England, 1730-1835, at 197-206 (2d ed. 1997)
364. Martha Minow, "Forming Underneath Everything That Grows:" Toward a History of Family Law, 1985 Wis. L. Rev. 819 (1985).
365. Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 364-65 (2009)
366. See also Gregory A. Caldeira, Courts and Public Opinion, in The American Courts: A Critical Assessment 303, 313-19 (John B. Gates & Charles A. Johnson eds., 1991)
367. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 Va. L. Rev. 1 (1996) (arguing that neither the countermajoritarian arguments nor the noncountermajoritarian arguments are completely correct and that the truth is in the middle).
368. See Klarman, supra note 203.
369. In adopting what I see as a realistic picture of courts, one need not go quite as far as Gerald Rosenberg does in his classic book
370. Rosenberg is deeply skeptical that courts can produce meaningful reform and views them as only a dangerous distraction for those seeking genuine social change.
371. See Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (2d ed. 2008).
372. See Friedman, supra note 203, at 358-60.
373. For an account that traces in careful detail the relative positions of courts and legislatures in states with judicial rulings on same-sex marriage
374. See Scott Barclay, In Search of Judicial Activism in the Same-Sex Marriage Cases: Sorting the Evidence from Courts, Legislatures, Initiatives and Amendments, 8 Persp. on Pol. 111 (2010).
375. See Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973)
376. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)
377. Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974).
378. See Baehr v. Lewin, 852 P.2d 44 (Haw.), reconsideration granted in part, 875 P.2d 225 (Haw. 1993
379. Appeal after remand sub nom., Baehr v. Miike, 910 P.2d 112 (Haw. 1996), and order aff'd, 950 P.2d 1234 (Haw. 1997).
380. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
381. For an overview, see Schacter, supra note 25.
382. For an advocate's perspective on how the accretion of favorable law shapes litigation decisions
383. see Mary L. Bonauto, Goodridge in Context, 40 Harv. C.R.-C.L. L. Rev. 1 (2005).
384. See supra Section I.B.3.
385. See Cal. Civ. Code § 51 (West 2007); Cal. Gov't Code § 12920 (West 2005)
386. Conn. Gen. Stat. §§ 46a-81c to -81m (2007)
387. Iowa Code § 216.6 (2009)
388. Mass. Ann. Laws ch. 151B, §§ 3-4 (LexisNexis 2008)
389. N.J. Stat. Ann. § 10:2-1 (West 2002)
390. Vt. Stat. Ann. tit. 9, § 4503 (2006).
391. See Cal. Penal Code § 422.55 (West 2010)
392. Conn. Gen. Stat. § 53a-181j (2007)
393. Iowa Code §§ 729A.1-.2 (2009)
394. Mass. Ann. Laws ch. 265, § 39 (LexisNexis 2010)
395. N.J. Stat. Ann. § 2C:16-1 (West 2005)
396. Vt. Stat. Ann. tit. 13, § 1455 (2009).
397. See Cal. Educ. Code § 220 (West 2002)
398. Conn. Gen. Stat. § 10-15c(a) (2007)
399. Iowa Code § 280.12(2)(c) (2010)
400. Mass. Ann. Laws ch. 76, § 5 (LexisNexis 2003)
401. N.J. Stat. Ann. §§ 18A:37-13 to -17 (West 1999 & Supp. 2010)
402. Vt. Stat. Ann. tit. 16, § 14 (2006).
403. See Haw. Code R. § 8-19-2 (LexisNexis 2006) (defining "harassment" as "[m]aking verbal or non-verbal expressions that causes others to feel uncomfortable, pressured, threatened, or in danger because of gender identity and expression or sexual orientation").
404. See Cal. Fam. Code § 9000(b) (West 2004)
405. Conn. Gen. Stat. § 45a-726a (2007)
406. Haw. Rev. Stat. Ann. § 578-1 (LexisNexis 2010)
407. Iowa Code § 600.4 (2009)
408. Mass. Ann. Laws ch. 210, § 1 (LexisNexis 2003)
409. N.J. Stat. Ann. § 9:3-43 (West 2002)
410. Vt. Stat. Ann. tit. 15A, § 1-102 (2002).
411. Recent events in Iowa suggest that the adoption of gay rights measures in a state does not necessarily equate to acceptance of same-sex marriage.
412. In November 2010, the three Iowa Supreme Court justices who faced a retention election were ousted by voters because of their votes in 2009 in favor of marriage equality.
413. See A.G. Sulzberger, Ouster of Iowa Judges Sends Signal to Bench, N.Y. Times, Nov. 4, 2010, at A1.
414. See State Laws, Hum. Rts. Campaign, http://www.hrc.org/laws_and_elections/state.asp (last visited Feb. 21, 2011) (noting that Mississippi and Alabama have no such protective legislation)
415. State Nondiscrimination Laws in the U.S. Map, Nat'l Gay & Lesbian Task Force, http://www.thetaskforce.org/downloads/reports/issue_maps/non_discrimination_7_09_color.pdf (last updated July 1, 2009) (indicating those states without sexual orientation-based protective legislation).
416. On the question of judges sharing broader social biases in the gay rights arena
417. see Douglas NeJaime, Winning Through Losing, 96 Iowa L. Rev. 941, 986-88 (2011).
418. This is consistent with Scott Barclay's analysis disputing the idea that state courts ruling in favor of same-sex marriage have been activist, and finding that courts in this area have very rarely acted "in direct contradiction of [recently expressed legislative] preferences."
419. Barclay, supra note 206, at 122-23.
420. See, e.g., Scott L. Cummings & Douglas NeJaime, Lawyering for Marriage Equality, 57 UCLA L. Rev. 1235 (2010) (chronicling the strategic choices of lawyers in the same-sex marriage movement).
421. Patsy Takemoto Mink Equal Opportunity in Education Act, 20 U.S.C. § 1681(a) (2006)
422. Equal Pay Act of 1963, 29 U.S.C. § 206(d) (2006)
423. Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2006)
424. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 to -3 (2006).
425. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985)
426. See supra note 66 and accompanying text.
427. See Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978, 29 U.S.C. § 794 (2006).
428. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended in scattered sections of 42 U.S.C.).
429. In the Act, Congress explained as follows: [I]ndividuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society[.]
430. Id. § 2(a)(7), 104 Stat. at 329 (amended 2008).
431. On the need for social ratification before the extension of heightened scrutiny
432. See Eskridge, Jr., Constitutional Law in the Twentieth Century
433. Supra note 194, at 2064-66
434. Eskridge, Jr., Public Law
435. Supra note 195, at 513
436. Miranda Oshige McGowan, From Outlaws to Ingroup: Romer, Lawrence, and the Inevitable Normativity of Group Recognition, 88 Minn. L. Rev. 1312, 1314 (2004).
437. Eskridge's analysis aptly dubs this dynamic the "paradox of the tiers."
438. See Eskridge, Jr., Constitutional Law in the Twentieth Century
439. Supra note 194, at 2267.
440. Tribe, supra note 7, at 1075 (noting that burglars are denied heightened constitutional scrutiny because burglary is judged to merit social disapproval).
441. See Barclay, supra note 206
442. Schacter, supra note 25.
443. See Schacter, supra note 25, at 1155 (citing Anti-Gay Marriage Measures in the U.S. Map, Nat'l Gay & Lesbian Task Force, http://www.thetaskforce.org/downloads/reports/issue_maps/GayMarriage_05_09.pdf (last updated May 6, 2009)).
444. Defense of Marriage Act, 28 U.S.C. § 1738C (2006).
445. See Schacter, supra note 25, at 1188
446. President George W. Bush endorsed a federal constitutional amendment to outlaw same-sex marriage, and the issue became a salient one in the 2004 presidential election
447. Citing President's Radio Address, 2 Pub. Papers 1286 (July 10, 2004).
448. See Sulzberger, supra note 217.
449. Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008)
450. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)
451. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003)
452. Baker v. State, 744 A.2d 864, 886 (Vt. 1999).
453. New Hampshire and the District of Columbia went on to legislate in favor of full marriage equality.
454. See Schacter, supra note 25, at 1189 n.225.
455. The states are New York and Maryland.
456. See Schacter, supra note 25, at 1189-90 & n.225.
457. New York began to recognize same-sex marriages performed in other states after an executive order issued by then-Governor David Paterson on May 14, 2008.
458. See Jeremy Peters, New York to Back Same- Sex Unions Performed Elsewhere, N.Y. Times, May 29, 2008, at A1.
459. Maryland began recognizing same-sex marriages performed elsewhere after state Attorney General Douglas Gansler issued an opinion on February 24, 2010.
460. See John Wagner, Gansler: Effective Immediately Md. Recognizes Same-Sex Marriages Performed Elsewhere, Wash. Post, Feb. 24, 2010, http://voices.washingtonpost.com/annapolis/2010/02/gansler_marylands_high_court_l.html
461. Schacter, supra note 25, at 1189-90 & n.225.
462. New Jersey, California, Oregon, Washington, and Nevada (broad laws)
463. Colorado, Maryland, Wisconsin, Maine, and Hawaii (narrow laws).
464. Id. Illinois will soon be added to the list of states with broad laws
465. Its comprehensive civil unions bill, passed in December 2010, is scheduled to take effect in June 2011.
466. Understanding Civil Unions in Illinois, Equality Ill., 1, http://www.equalityillinois.org/cmsdocuments/Civil_Unions_FAQs.pdf (last visited Feb. 21, 2011).
467. See supra Section II.A.
468. See supra notes 199-200 and accompanying text.
469. On the informational dynamics in the Prop. 8 campaign
470. See Ruth Butterfield Isaacson, Comment, "Teachable Moments": The Use of Child-Centered Arguments in the Same-Sex Marriage Debate, 98 Calif. L. Rev. 121, 148-52 (2010) (describing in detail the advertising campaign in support of Prop. 8 and arguing that it sent a "powerful and fearful message" to voters).
471. See supra notes 199-200 and accompanying text.
472. For an incisive critique of the tiers of scrutiny and a suggested revamping
473. see Suzanne B. Goldberg, Equality Without Tiers, 77 S. Cal. L. Rev. 481 (2004).
474. See supra notes 90-95.
475. Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O'Connor, J., concurring) (quoting U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973)) (internal quotation marks omitted).
476. Id. at 584-85
477. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our democratic society.
478. See supra Section I.B.4.c.
479. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 981-82 (N.D. Cal.) (citing, in finding of fact number 75, testimony by Segura on anti-gay violence and Miller on anti-gay bias, stereotypes
480. And job discrimination), stay denied, 702 F. Supp. 2d. 1132 (N.D. Cal. 2010
481. Stay granted, 2010 WL 3212786 (9th Cir. Aug. 16, 2010, and certifying question to the Supreme Court of California, 628 F.3d 1191 (9th Cir. 2011).
482. Id. at 985-86 (citing, in finding of fact number 77, testimony by Segura on the powerful effect on political debates of the "teaching" by organized religious entities "that gays are morally inferior").
483. Id. at 986-88
484. Citing, in finding of fact number 78, testimony by Segura and Miller on the frequent passage of anti-gay rights initiatives, by Miller on the existence of anti-gay prejudice among some Prop. 8 voters, and by Segura on the low scores earned by gays and lesbians on feeling thermometers used to measure public opinion toward social groups.
485. Id. at 988-90
486. Citing, in finding of fact number 79, testimony by Miller on the fact that some Prop. 8 voters were motivated by prejudice and by Segura that one "enduring trope[] of anti-gay argumentation has been that gays are a threat to children" (first omission in original))
487. Because the state itself is not defending Prop. 8, ballot sponsors, acting as intervenors, have asserted interests on behalf of the state.
488. The standing of intervenors to appeal the district court's decision is being contested in the Ninth Circuit and will be resolved by that court with assistance from the California Supreme Court, the views of which the federal appellate court has sought.
489. See Jesse McKinley, California: Judges Ask for Clarity On Same-Sex Marriage Measure, N.Y. Times, Jan. 5, 2011, at A13, available at http://www.nytimes.com/2011/01/05/us/05brfs-JUDGESASKFOR_BRF.html?scp=1&sq=9th%20circuit%20standing&st=cse.
490. On the problems with allowing intervenors to speak on behalf of the state in defending Prop. 8
491. see Pamela S. Karlan, Old Reasons, New Reasons, No Reasons 13-16 (draft on file with author).
492. See Perry, 704 F. Supp. 2d at 973-91, 995-1003.
493. See supra notes 130-132 and accompanying text.
494. See Patrick J. Egan, Nathaniel Persily & Kevin Wallsten
495. Gay Rights, in Public Opinion and Constitutional Controversy 234, app. B at 260 (Nathaniel Persily et al. eds., 2008).
496. See generally Jane S. Schacter, The Pursuit of "Popular Intent": Interpretive Dilemmas in Direct Democracy, 105 Yale L.J. 107 (1995).
497. For a discussion of these choices and the particular problems they pose for Ely
498. see Jane S. Schacter, Ely and the Idea of Democracy, 57 Stan. L. Rev. 737 (2004).
499. It also leaves process theory vulnerable to critiques like that offered by Bruce Ackerman, who pointed out that, for various reasons, diffuse and anonymous minorities may actually have a harder time in the political process than do discrete and insular minorities.
500. See Ackerman, supra note 9.
501. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1002-03 (N.D. Cal.) (Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.
502. [T]his belief is not a proper basis on which to legislate. (citations omitted)), stay denied, 702 F. Supp. 2d 1132 (N.D. Cal. 2010)
503. Stay granted, 2010 WL 3212786 (9th Cir. Aug. 16, 2010), and certifying question to the Supreme Court of California, 628 F.3d 1191 (9th Cir. 2011) Perry mentions ballot proponents' desire to "advance the belief that opposite-sex couples are morally superior to same-sex couples." Id.
504. Id. at 973.
505. Id. at 979.
506. Id. at 974.
507. Id. at 971.
508. On sexual orientation and hierarchy
509. See Romer v. Evans, 517 U.S. 620, 623 (1996) ("One century ago, the first Justice Harlan admonished this Court that the Constitution 'neither knows nor tolerates classes among citizens.' "
510. Quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting))).
511. On sexual orientation inequality and democracy
512. See Jane S. Schacter, Lawrence v. Texas and the Fourteenth Amendment's Democratic Aspirations, 13 Temp. Pol. & Civ. Rts. L. Rev. 733 (2004)
513. Jane S. Schacter, Romer v. Evans and Democracy's Domain, 50 Vand. L. Rev. 361 (1997).
514. On the ways in which hierarchies undermine equal citizenship
515. See Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution (1991)
516. J.M. Balkin, The Constitution of Status, 106 Yale L.J. 2313 (1997).
517. See Jane S. Schacter, The Other Same-Sex Marriage Debate, 84 Chi.-Kent L. Rev. 379, 394-98 (2009) (probing the extent to which "social groups, especially historically subordinated ones, can shape the social meaning of their own choices and struggles").
518. See generally Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943 (1995).
519. See Schacter, supra note 262
520. Arguing that marriage has become a showdown question on gay equality for both proponents and opponents of gay rights in ways that further the idea of domestic partnerships as second class, but exploring as counterfactual whether debate over domestic partnerships might have unfolded differently had gay community expressed more affirmative interest in shaping a separate institution rather than in gaining access to marriage.
521. See id. at 396-97.
522. Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and Wisconsin.
523. See State Laws Prohibiting Recognition of Same-Sex Relationships Map, supra note 36.
524. For a collection of sources setting out some aspects of the general approach in greater detail
525. See supra note 261.
526. See, e.g., John M. Hubbell, Gay marriage bill fails by 4 votes in state Assembly, S.F. Chron., June 3, 2005, at A-1 (reporting that the legislative sponsor of a failed marriage-equality legislation said that if "this [legislature] can't pass [the bill], it should clarify its position and say we do believe that gay and lesbian couples are second-class citizens")
527. Norma Love, N.H. becomes latest state to legalize gay marriage, Newsday, June 4, 2009, at A35 (reporting that a prominent advocate of same-sex marriage characterizes passage of marriage equality legislation as "about being recognized as whole people and whole citizens")
528. Tom Suozzi, Op-Ed., Why I Now Support Gay Marriage, N.Y. Times, June 13, 2009, at A19
529. Announcing his support for marriage equality legislation in New York, saying that same-sex couples are "entitled to clear recognition of their equal status as citizens of a country that is founded on the principle that we are all inherently worthy".
530. Controversy surrounded the decision of the high-profile legal team of Theodore Olson and David Boies to file a federal court challenge after gay rights groups had declined to file.
531. See Jesse McKinley, Bush v. Gore Foes Join to Fight California Gay Marriage Ban, N.Y. Times, May 28, 2009, at A1.
532. On these complexities, see William B. Rubenstein, Divided We Litigate: Addressing Disputes Among Group Members and Lawyers in Civil Rights Campaigns, 106 Yale L.J. 1623 (1997).
533. See Andrew Gelman et al., Over Time, a Gay Marriage Groundswell, N.Y. Times, Aug. 22, 2010, at WK3.