The anti-humiliation principle and same-sex marriage

Yale Law Journal

Volumn 123, Issue 8, 2014, Pages 3076-3103

  Yoshino, Kenji ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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[No Author keywords available]

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EID: 84902777513     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (68)

1. Bruce Ackerman, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION (2014).
2. 704 F. Supp. 2d 921 (N.D. Cal. 2010).
3. 347 U.S. 483 (1954).
4. ACKERMAN, supra note 1, at 128.
5. ACKERMAN, supra note 1, at 289 ("Loving v. Virginia shifted legal attention away from the evil of institutionalized humiliation."); id. at 291 ("I do deny that Loving deserves a central place in the civil rights canon.").
6. Korematsu v. United States, 323 U.S. 214 (1944).
7. ACKERMAN, supra note 1, at 302.
8. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 229-30 (1995) ("The principle of consistency simply means that whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection.").
9. 133 S. Ct. 2675 (2013).
10. ACKERMAN, supra note 1, at 291.
11. 539 U.S. 558 (2003).
12. ACKERMAN supra note 1, at 302; see supra text accompanying note 17.
13. Joseph Landau, Ripple Effect, NEW REPUBLIC, June 23, 2003, at 12, 14-16 (noting ripple effect of sodomy statutes in collateral areas of doctrine).
14. Lawrence, 539 U.S. at 575.
15. Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 YALE L.J. 1694, 1741-42 (2008) ("The dignity Lawrence protects concerns questions of autonomy and self-definition and questions of social standing and respect: the right to be treated as a full member of the polity, not excluded, subordinated, or denigrated.").
16. Watkins v. U.S. Army, 847 F.2d 1329, 1358 (9th Cir. 1988), withdrawn on reh'g, 875 F.2d 699 (9th Cir. 1989) ("I believe that history will view Hardwick much as it views Plessy v. Ferguson. And I am confident that, in the long run, Hardwick, like Plessy, will be overruled by a wiser and more enlightened Court."); Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 MICH. L. REV. 431, 489 (2005) ("It may not be too much longer before Lawrence evolves into the Brown of the twenty-first century.").
17. ACKERMAN supra note 1, at 308 ("In moving beyond the law world to the lifeworld, Justice Kennedy [in Windsor] treated his earlier decision in Lawrence v. Texas as decisive precedent. In that case, he had led the Court to strike down traditional criminal laws against 'sodomy' since their enforcement 'demean[ed]' same-sex couples. But his reliance on this relatively recent decision ignored Windsor's deeper roots [in Brown.]").
18. United States v. Windsor, 133 S. Ct. 2675, 2689 (2013) ("It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage."); id. at 2692 ("Here the State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.") ("When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community."); id. ("That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment."); id. ("By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond."); id. ("This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages.") DOMA's enactment and its own text demonstrate that interference with the equal ignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute."); id. at 2694 ("Responsibilities, as well as rights, enhance the dignity and integrity of the person."); id. at 2696 ("The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity).
19. Reva B. Siegel, The Supreme Court, 2012 Term-Foreword: Equality Divided, 127 HARV. L. REV. 1, 77 (2013) ("What distinguishes Windsor from the race cases of the 2012 Term is not the subject matter or reach of the decision, but its determination to redress the dignitary and material injuries law inflicts on a minority group. In Windsor, a closely divided Court reasons about equal protection in ways the Court has not reasoned in its race discrimination decisions in a very long time."); see also id. at 90-91 ("[Windsor] begins from the appreciation that, in the American constitutional order, community judgment about the meaning of 'unjust exclusion' can evolve. The opinion recapitulates that learning process, as it endeavors to understand, and to make plain to others, how law can express and enforce inequality in 'status,' as Brown did. These concerns are essential prerequisites of equal protection, more fundamental than any standard of review.").
20. Courtney G. Joslin, Windsor, Federalism and Family Equality, 113 COLUM. L. REV. SIDEBAR 156, 164 (2013) (noting competing views on whether Windsor "turns on principles of federalism"); David S. Cohen & Dahlia Lithwick, It's Over: Gay Marriage Can't Lose in the Courts, SLATE (Feb. 14, 2014), http://www.slate.com/articles/news_and_politics/jurisprudence/2014/02/virginia_s_gay_marriage_ban_ruled_unconstitutional_a_perfect_record_for.html (noting that Justice Kennedy's "less than crystal clear reasoning" left ambiguous whether Windsor was rooted in federalism concerns).
21. DeBoer v. Snyder, No. 12-CV-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014); De Leon v. Perry, SA-13-CA-00982-OLG, 2014 WL 715741, at *20, *23 (W.D. Tex. Feb. 26, 2014) ("This Court finds that Texas cannot define marriage in a way that denies its citizens the 'freedom of personal choice' in deciding whom to marry, nor may it deny the 'same status and dignity' to each citizen's decision."); Bostic v. Rainey, No. 2:13-CV-395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014); Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1278 (N.D. Okla. 2014) ("The Windsor majority opinion, authored by Justice Kennedy, held that when a state recognizes same-sex marriage, it confers upon this class of persons 'a dignity and status of immense import.'"); Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 982 (S.D. Ohio 2013) ("As the Supreme Court held in Windsor, marriage confers 'a dignity and status of immense import.'"); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1193 (D. Utah 2013) ("In other words, Utah believes that it is up to each individual state to decide whether two persons of the same sex may 'occupy the same status and dignity as that of a man and woman in lawful marriage.'").
22. Windsor v. United States, 699 F.3d 169, 180-85 (2d Cir. 2012).
23. Brief for the United States on the Merits Question at 18-36, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307); cf. Letter from Eric H. Holder, Jr., Att'y Gen. of the United States, to John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011), http://www.justice.gov/opa/pr/2011/February/11-ag-223.html ("I will instruct the Department's lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch's view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law.").
24. Cass R. Sunstein, The Supreme Court, 1995 Term-Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4, 99 (1996) ("Minimalism is best understood as an effort to leave things open by limiting the width and depth of judicial judgments. Minimalist judges try to keep their judgments as narrow and as incompletely theorized as possible, consistent with the obligation to offer reasons.").
25. Windsor, 133 S. Ct. at 2709-10 (Scalia, J., dissenting) ("DOMA's This state law's principal effect is to identify a subset of state sanctioned marriages constitutionally protected sexual relationships, see Lawrence, and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA this state law contrives to deprive some couples married under the laws of their State enjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities.").
26. Michael J. Klarman, Windsor and Brown: Marriage Equality and Racial Equality, 127 HARV. L. REV. 127, 128 (2013); see also Siegel, supra note 42, at 88 ("The opinion does not bind future judgments about these restrictions by the formal technique of adopting heightened scrutiny. But neither does the opinion practice deference associated with rational basis review, even rational basis of an elevated kind. The Court extends the potential reach of its decision by tying the judgment of unconstitutionality to features of DOMA that the statute shares with other legislation-and by reasoning about the meaning of the Constitution's equality guarantees in ways the Court has not for years.").
27. Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111, 1142-47 (1997) (observing that the Supreme Court's race jurisprudence has disestablished de jure segregation, while permitting "facially neutral" state action that perpetuates racial stratification, and constraining legislatures from adopting race-based remedial measures).
28. Michael Warner, THE TROUBLE WITH NORMAL: SEX, POLITICS, AND THE ETHICS OF QUEER LIFE 48-74 (1999) (expressing the challenge of claiming dignity for people defined in part by "undignified and abject sex").
29. United States v. Carolene Products Co., 304 U.S. 144, 154 n.4 (1938). In an interesting turn, Professor Ackerman argued some time ago that "anonymous and diffuse minorities"- including gay individuals-might be more vulnerable in the political process than "discrete and insular minorities." See Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 722-31 (1985). I have more recently contended that this assessment might be contingent. See Kenji Yoshino, The Gay Tipping Point, 57 UCLA L. REV. 1537 (2010). Ackerman's analysis might hold before a certain critical mass of gay individuals came out of the closet. Id. at 1540-41. After they reached a "tipping point," however, the anonymity and diffuseness of gay individuals might begin to work for them. Id. at 1541-42 (arguing that the capacity of gays to pass-their anonymity-precludes gatekeeping mechanisms from being used against them, and their diffuseness means every extended family in America includes a gay person).
30. Leslie Meltzer Henry, The Jurisprudence of Dignity, 160 U. PA. L. REV. 169, 1789 (2011).
31. Gonzales v. Carhart, 550 U.S. 124, 157 (2007) ("The Act expresses respect for the dignity of human life.").
32. Noah Feldman, The United States of Justice Kennedy, BLOOMBERG (May 30, 2011, 3:48 PM), http://www.bloomberg.com/news/2011-05-30/how-it-became-the-united-states-of-justice-kennedy-noah-feldman.html.
33. ACKERMAN, supra note 1, at 131 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954)).
34. Plessy v. Ferguson, 163 U.S. 537, 551 (1896); 3 ACKERMAN, supra note 1, at 132.
35. Edward Lazarus, CLOSED CHAMBERS 386 (2d ed. 2005)
36. Adam Liptak, Exhibit A for a Major Shift: Justices' Gay Clerks, N.Y. TIMES, June 9, 2013, at A1.
37. Lawrence v. Texas, 539 U.S. 558, 579 (2003).
38. Gwen Bergner, Black Children, White Preference: Brown v. Board, the Doll Tests, and the Politics of Self-Esteem, 61 AM. Q. 299, 300-01 (2009).
39. ACKERMAN, supra note 1, at 132-33.
40. Brianne J. Gorod, The Adversarial Myth: Appellate Court Extra-Record Factfinding, 61 DUKE L.J. 1 (2011).
41. John Frazier Jackson, The Brandeis Brief-Too Little, Too Late: The Trial Court as a Superior Forum for Presenting Legislative Facts, 17 AM. J. TRIAL ADVOC. 1 (1993).
42. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 932 (N.D. Cal. 2010). The proponents of Proposition 8 argued that their witnesses could be subject to "harassment, economic reprisal, threat and even physical violence" if the trial were broadcast, and some witnesses on the proponents' side said they would withdraw for the same reason. The plaintiffs argued that such concerns were "utterly unsubstantiated and groundless speculation." See Adam Liptak, Justices to Review Plan for Webcasts of a Trial, N.Y. TIMES, Jan. 11, 2010, http://www.nytimes.com/2010/01/12/us/12camera.html.
43. SHERIF GIRGIS, Ryan T. Anderson & Robert P. George, WHAT IS MARRIAGE?: MAN AND WOMAN: A DEFENSE (2012).
44. Robert P. George et al. as Amici Curiae Supporting Petitioners, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144).
45. GIRGIS, ANDERSON & GEORGE, supra note 69, at 88.
46. According to the book's "Note on Authorship," Girgis was listed as first author to "reflect his primary role in developing our arguments, and in drafting the book and the article on which it expands." Id. at ix. Girgis was disqualified during the trial proceedings in DeBoer v. Snyder in the Eastern District of Michigan. Ed White, Michigan's Witness in Gay Marriage Trial Barred, YAHOO! NEWS (Mar. 3, 2014), http://news.yahoo.com/michigans-witness-gay-marriage-trial-barred-171156615.html. The district court in DeBoer ultimately ruled in favor of plaintiffs, holding that Michigan's constitutional same-sex marriage ban violated the Equal Protection Clause. DeBoer v. Snyder, No. 12-CV-10285, 2014 WL 1100794, at *17 (E.D. Mich. Mar. 21, 2014).
47. United States v. Windsor, 133 S. Ct. 2675, 2718-19 (2013) (Alito, J., dissenting).
48. John H. Langbein, The Disappearance of Civil Trial in the United States, 122 YALE L.J. 522 (2012).
49. Transcript of Proceedings at 45, Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. C 09-2292-VRW).
50. ACKERMAN, supra note 1, at 302.
51. United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (adopting the equity practice of appellate deference to trial court findings "when dependent upon oral testimony where the candor and credibility of the witnesses would best be judged").
52. Transcript of Proceedings, supra note 77, at 84. (testimony of Ilan Meyer) ("[T]he word 'marriage' is something that many people aspire to. Doesn't mean that everybody achieves that, but at least I would say it's a very common, social, socially-approved goal for children as they think about their future and for people as they develop relationships. For young people. if you attain it, it's something that gives you pride and respect."); id. at 1914 (testimony of Hak-Shing William Tam) ("It is very important that our children won't grow up to fantasize or think about, [s]hould I marry Jane or John when I grow up?"); Milestone for LGBT Equality: Prop. 8, DOMA Will Have Their Day in Court, HUM. RTS. CAMPAIGN (Dec. 7, 2012), http://www.hrc.org/press-releases/entry/milestone-for-lgbt-equality-prop.-8-doma-will-have-their-day-in-court (quoting Human Rights Campaign President Chad Griffin) ("Now the Supreme Court has an opportunity to send a resounding message of hope to LGBT young people from coast to coast that they have the same dignity and same opportunities for the future as everyone else.").
53. Transcript of Proceedings, supra note 77, at 169.
54. ACKERMAN, supra note 1, at 135.
55. There were in fact nine expert witnesses. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 932 (N.D. Cal. 2010) ("Plaintiffs presented eight lay witnesses and nine expert witnesses.").
56. Owen M. Fiss, Reason in All Its Splendor, 56 BROOK. L. REV. 789, 802-03 (1990).
57. The Supreme Court raised this concern in the context of considering the constitutionality of victim impact statements, which are similarly difficult to challenge in court. See Booth v. Maryland, 482 U.S. 496, 506-07 (1987), overruled by Payne v. Tennessee, 501 U.S. 808 (1991).
58. Elaine Scarry, Speech Acts in Criminal Cases, in LAW'S STORIES: NARRATIVE AND RHETORIC IN THE LAW 165, 166 (Peter Brooks & Paul Gewirtz eds., 1996).
59. Transcript of Proceedings, supra note 77, at 93-94 ("We were struck by these rocks and eggs. And there were slurs. And again we couldn't see who the people were, but we were definitely hit. And it was a very sobering moment because I just accepted that as, well, that's part of our struggle.").
60. ("71 percent of all hate-motivated murders in the United States were of gay men and lesbians in 2008. Fifty-five percent of all hate-motivated rapes were against gays and lesbians in 2008. There is simply no other person in society who endures the likelihood of being harmed as a consequence of their identity than a gay man or lesbian.").
61. Margaret Talbot, The Gay Marriage Classroom, NEW YORKER: NEWS DESK (Feb. 1, 2010), http://www.newyorker.com/online/blogs/newsdesk/2010/02/the-gay-marriage-classroom.html.
62. CBS News' Face the Nation: August 8, 2010 Transcript, CBS BROADCASTING INC. 6 (Aug. 8, 2010), http://www.cbsnews.com/htdocs/pdf/FTN_080810.pdf.
63. Adam Liptak, Trial in Same-Sex Marriage Case Is Challenged, N.Y. TIMES, Mar. 23, 2010, at A14.
64. Austin R. Nimocks, Perry v. Schwarzenegger District Court Trial Blog Posts, ALLIANCE DEFENDING FREEDOM (Jan. 27, 2010), http://www.adfmedia.org/News/PRDetail/4897 ("Mr. Blankenhorn throws a huge wrench into the plaintiffs' case since, as described by some, he's 'one of them' and yet doesn't believe that same-sex 'marriage' is good for society.").
65. Transcript of Proceedings, supra note 77, at 2744-45.
66. Frank Rich, Two Weddings, a Divorce, and 'Glee,' N.Y. TIMES, June 12, 2010, http://www.nytimes.com/2010/06/13/opinion/13rich.html.
67. David Blankenhorn, How My View on Gay Marriage Changed, N.Y. TIMES, June 22, 2012, http://www.nytimes.com/2012/06/23/opinion/how-my-view-on-gay-marriage-changed.html.
68. Blankenhorn, supra note 115.