Sunday, December 2, 2012

Judge Jones' Opinion in Nevada Same-Sex Marriage Case (Part 1 - The Fourth Element of Suspect Class Analysis)

The opinion of Nevada Federal District Court Judge Robert Jones upholding a Nevada law prohibiting same-sex marriage is deficient, disingenuous, and disturbing. It is deficient in that he neglected to apply a key element of the law of Equal Protection and he ignored a massive amount of historical and social science evidence about sexual orientation that bears upon that point. It is disingenuous because it mischaracterizes and misapplies the previous relevant case law. It is disturbing because of the language he chose to use in framing his opinion.

Judge Jones filed his decision in the case of Sevcik v. Sandoval on November 26, and it may be accessed here.

Standard Equal Protection analysis is a fairly straightforward undertaking. If a law intentionally treats two groups of people differently, then the Constitution requires the courts to consider three factors: (1) the nature of the group that is being discriminated against; (2) what that group is being deprived of; and (3) why the government treated them differently.

The first factor is called "suspect class analysis," which is a misnomer. It should be called "suspect class legislation analysis," for if certain factors are present it is the law, not the class of persons that is suspect. There are four factors to consider in determining whether class legislation should be considered suspect: whether the group that the law is directed against has been historically discriminated against; whether the group is politically powerless; whether people freely chose to enter or remain in that group (that is, whether the trait is "immutable"); and whether that group of people is essentially the same or essentially different from other people who are not discriminated against. As the Supreme Court has said many times in connection with this fourth factor, the principal consideration is whether the characteristic that distinguishes the group bears any relation "to ability to perform or contribute to society." (e.g., Cleburne v. Cleburne Living Center, 473 U.S. 432, 441 (1985)).

Judge Jones treats each of the first three factors superficially. He utterly ignores the fourth element.

There is now voluminous evidence of the longstanding and pervasive discrimination against gays and lesbians in our society. One need look no further than Justice Scalia's dissenting opinion in Lawrence v. Texas where he adverts to "4 executions during the colonial period" of American history. (Scalia cites this gruesome fact without condemning it in support of the proposition that laws prohibiting same-sex intercourse are constitutional.) Judge Jones might have acknowledged that laws making same-sex intercourse illegal were overturned only in the year 2003 or that the laws being challenged were enacted in Nevada only ten years ago in 2002. Or Judge Jones could have turned to the extensive expert evidence presented to him detailing the long and vicious history of discrimination against gays, a history that several other federal courts have adverted to. But he did not. He simply found that because gays and their allies have recently won passage of favorable legislation and referenda, that it wipes the slate clean - that the history of discrimination at the federal level, in Nevada and dozens of other states no longer matters. It is as if it never happened and is of no constitutional relevance.

In the same vein Judge Jones concludes that gays and lesbians are no longer politically powerless. Judge Jones - in the 1960s blacks enjoyed political support in the north and the west - that does not mean that had suddenly become powerful enough to protect themselves in the south! Jones' analysis of the relative power of this despised minority is not simply blinkered, it is blinded. Does he not remember the presidential campaign of 2004 where the horrible specter of "gay marriage" was invoked to promote the winning candidacy of George W. Bush? Once again, Judge Jones could have turned to expert analysis presented in his court for solid evidence about the relative power of gays and lesbians.

With respect to whether sexual orientation is deliberately chosen, Judge Jones punts. Once again, he refuses to review the scientific evidence proving that for the overwhelming majority of people sexual orientation is not a matter of conscious choice, but rather something beyond our control. Jones blandly states: "Assuming for the sake of argument that the characteristic is immutable for the purposes of an equal protection analysis, this factor would weigh in favor of heightened scrutiny."

As to the fourth element - the ability of gay and lesbian couples to contribute to the institution of marriage - to love and support each other, to raise children, to create their own families, and to thereby strengthen all of our families and communities - Judge Jones says nothing. Not a word. He does not even acknowledge that this factor exists. How does a federal judge miss the fourth element of suspect class analysis?

Nor does Judge Jones mention the mountain of medical, psychiatric, psychological, and social science evidence that now bears upon this subject, and the overwhelming consensus of researchers and practitioners that gay and lesbian couples are no different from anyone else in their ability to love each other and their children. Here are but a few sources for Judge Jones to consider:

1. Judge Vaughn Walker's opinion in Perry v. Schwarzenneger (August 4, 2010), containing hundreds of findings and citations to the scientific evidence;

2. Michael J. Rosenfeld (Stanford University), Nontraditional Families and Childhood Progress Through School, Demography, Volume 47 (3): 755-775 (2010), at;

3. M.V. Lee Badgett, Jody L. Herman, The Williams Institute (U.C.L.A.), Patterns of Relationship Recognition by Same-Sex Couples in the United States, at (November, 2011); and

4. Joint Brief of the AMA, APA, APA, NASW, AAP, at  (citing 86 scientific studies, filed with First Circuit November 3, 2011 in Massachusetts v. DHHS)

Judge Jones omitted a key element of Equal Protection analysis - the equality or inequality of gay and lesbian couples - and all of the historical and scientific evidence that bears upon that point.

Why does this matter? What difference does it make if Judge Jones forgot one element of suspect class analysis? It is because that fourth factor goes to the heart of the Equal Protection Clause. Here is that old warhorse Justice Robert Jackson on the meaning and purpose of Equal Protection:
I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.
Railway Express Agency v. New York, 336 U.S. 106, 112-113 (1949).

Judge Jones failed to ask himself whether gay and lesbian couples are any better or worse at being married than he is, and he ignored the incontrovertible evidence that they are his equal.

That's enough for today. Tomorrow I will describe Judge Jones' misunderstanding and misuse of precedent.

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