Wednesday, December 12, 2012

The Twelve Days of Gheorghemas: Day 4

On the third day of Gheorghemas, Big Gheorghe gave to me...

Four Things to Think About
Three catastrophe staches
The Finest Holiday Duet in History
And One Hell of a bloggy Par-ty

We aim to avoid taking ourselves too seriously at Gheorghe: the Blog, so when our tiny dictator asked me to write something about the Supreme Court's decision to grant cert in the DOMA and Prop 8 cases, I thought long and hard about what to say. I was fortunate enough to take a class with a Supreme Court nominee who clerked for the Supreme Court. Early in his clerkship, his Justice told him that despite what you hear in civics classes, Supreme Court decisions are largely political. I don't want to get into a heavy politcal debate in the middle of Gheorghemas, so I will simply give you some limited context and a few points to ponder within that framework.

As I understand these cases (and my understanding arises without reading anything other than the newspaper and SCOTUSblog), the issues involved center on the Equal Proptection clause, which is part of the 14th Amendment (which applies to the federal government through the 5th Amendment). Equal protection cases are evaluated under three different levels of scrutiny. Cases involving race and other "suspect classes" get the highest level of scrutiny, and cases involving gender are treated using an intermediate level of scrutiny. I think that cases involving sexual orientation are currently evaluated under the lowest level of scrutiny, meaning that a law that discriminates against people based on their sexual orientation will be upheld if it has some rational basis to achieve a legitimate state interest.

It seems to me that two rationales could support gay marriage, although there are probably limitless ways for the Court to reach any decision. First, the Court could create a new "suspect class" and apply strict or intermediate scrutiny. This seems unlikely -- they've had several opportunities to do this in the past and failed to do so, and I think the Court is reluctant to create new suspect classes. For instance, they declined to treat the mentally challanged as a suspect class, which I will never understand.

The second, and more likely option in my mind, is to find that banning gay marriage has no rational basis and/or promotes no legitimate state interest. Reaching this conclusion is entirely subjective and thus political, and it doesn't matter one bit what I or anyone else thinks. All that counts is what five out of nine middle-aged-to-elderly judges think.

If you follow politics you will hear tons of fact-based arguments in favor of both sides. I offer no facts, and instead ask you to think about four things. And to lighten the mood I've included a song for each ponderous point.

1. Who is opposed to happiness?

Perhaps the Gheorghest point to ponder is: who has a problem with two happy people proclaiming their happiness and formalizing it before society? Shouldn't we celebrate anytime people find happiness together? If you've ever been in a miserable relationship you know how precious a happy one is. This is the stuff we need to encourage and cling to.

2. How does this devalue anyone else's marriage?

The reply to my first question could very well be "I support and encourage happiness, but that doesn't mean I have to call a relationship between two people of the same sex 'marriage.' This term is reserved for the special institution between men and women, and calling anything else a marriage will devalue the term."

I get this up to a point. But how often do you look at someone else's marriage to determine the value of your own? I remember looking at happily married people and wondering why my first marriage was so painfully opposite, but that didn't change the value I placed on it. Now that I am remarkably happily married I can't imagine looking at someone else's relationship and saying "Geez, in light of what I've just seen, this thing I have going on with zwoman isn't as worthwhile as it used to be." It just won't happen.

3. What fiscal consequences will result?

The brand of conservatism I find most appealing is libertarianism. Unfortunately, most libertarians are rabidly dogmatic and impossibly rigid so they gain no traction outside of their small circle of brilliant loons. But a softened form of libertarianism incorporating smart conservative fiscal policy that also acknowledges and deals with the cuts and scrapes resulting from the rough edges of free markets (and that lets people do as they please socially) probably has a future with people of our generation.

Why did I do all that rambling? The DOMA case, United States v. Windsor, involves equal protection in the application of the estate tax. Edith Windsor married her same-sex partner of 50 years in Canada, then they moved to New York. Ms. Windsor's partner died and because the United States did not recognize her marriage, she had to pay $363,000 in estate tax.

Many conservatives detest the estate tax. Shouldn't they champion anything that thwarts its application? By allowing more people to hold onto their money, shouldn't we see the benefits of trickle-down and elimination of various dead-weight losses? Shouldn't this result in increased utility throughout the economy?

There are also benefits for fans of increased taxation. Increasing the number of married couples will in turn increase the amount of tax revenue generated through the marriage penalty.

Further, extending marriage rights to same-sex couples would make more people eligible for family coverage through employer-based healthcare plans. That has to be a good thing.

So from a fiscal perspective it seems like gay marriage provides something for everyone.

4. Why does anyone care?

I know a lot of leftists, and they were appalled when I said "Who cares?" regarding McCreary County v. ACLU, the case where the Supreme Court found a display of Ten Commandments in a courthouse unconstitutional. And I still say "Who cares?" If I walk into any room and see the Ten Commandments, it serves a notice function to let me know that there are God-fearing people nearby. I have no problem with that. What harm comes from displaying a couple of tablets? This simply has no impact on my life.

Similarly, I don't see why I should care if two people want to get married. I don't care if this allows them to bequeath property tax-free (up to one million dollars), or to visit each other in the hospital, or to say "we are married." This just doesn't affect me or change the course of my life.

By the same token, same-sex partners could probably gain all the same rights and privileges of marraige if they would acquiesce to some other term like "civil union." I don't understand why being able to use the term "marriage" is so important. Being able to say "we are married" facially makes everyone appear equal, but a Supreme Court decision allowing gay marriage won't suddenly eliminate the ire and discrimination harbored by its opponents.

5. What does it all mean zman?

I don't know. I can say with great comfort that the Scalia/Alito/Thomas bloc will vote no on gay marriage while Ginsburg/Breyer/Sotamayor/Kagan will vote yes. Kennedy is the famous swing vote, but I wouldn't be surprised if Roberts voted yes too, especially after his recent take on the Commerce Clause and his turn as Peppermint Patty.

So my guess is 6-3 in favor. This is the outcome I want, but that doesn't mean it's the "right" one under the Constitution. Only 5 Justices can say what the right answer is. And then, down the road, 5 different Justices can say the right answer is something else.

I hope I haven't offended anyone and that I didn't get too heavy for Gheorghemas. Hopefully you can see the Gheorgheness of my approach and that it isn't based on any concrete facts or real rules of law, and will take it as it is intended -- something to think about from a perspective different from those you hear on your politically oriented 24 hour news channels.

Finally, and most importantly, I hope that all our readers are happy and loved for Gheorghemas and beyond.


Marls said...

Bravo Zed.

Gary Moore said...

Well done, well done.

rob said...

i can't wait until justice kennedy forces us all into gay marriages.

rob said...

beer dinner featuring stone brewing products at a local restaurant last night. feeling a bit logy this morning.

T.J. said...

I honestly don't ever read what you guys write, but today for some reason I did. And damn, this was good. I might read more of this website more often.
- a devoted fan

Geoff said...

Until the GOP takes its head out of its ass on abortion and gay marriage, we will continue to lose every national election while continuing to win safely gerrymandered backwoods districts and old folks homes. I bet the court does the right thing a 5-4 vote.

rob said...

megatron has 1546 receiving yards through 13 games. damn.

mayhugh said...

Z - you just covered 2 months of Con Law in a few paragraphs and then applied it in an interesting and intelligible way. I hope you consider being a professor some day.

Marls said...

Now that we have decided this issue, can we get some Gheorghemas love for Ravi Shankar?

rob said...

caa hoops tournament to be held in baltimore 2014-16. giddyup.

Marls said...

If the CAA is trying to move the tourney to a city higher up the murder per capita list, I endorse the strategy. After a crappy couple of years in Baltimore, Detroit & East St. Louis, we will be living it up in The Big Easy.

rob said...

i'd lay 50/50 odds that there won't actually be a caa by 2016, so the tourney venue may not be that big an issue.

zman said...

I doubt anyone would let me profess anything outside the friendly confines of G:TB. But if you want me to get Socratic ... Mr. Mayhuge, what is the procedural posture of Hadley v. Baxendale?

mayhugh said...

I blocked everything out of my law school experience aside from Peirson v. Post.

And this:

rootsminer said...

Well done Zman. Nice musical interludes, too.

Dave said...

i love gay marriage and stone beer.

Clarence said...

I love my dead gay son.

Shlara said...

Zman--great post and LOVED the musical selections.
As someone who failed B-Law the first time, I appreciate your simple explanation of the legal really should consider teaching.

Clarence said...

Anybody watching the 121212 concert? Eddie Vedder just dug up, dusted off, and gave new life to "Comfortably Numb" alongside Roger Waters. He crushed it.

Clarence said...

And high praise to ZZ Man for this post, like Constitutional Law for Dummies plus good music plus witticisms. Gheorghemas rules.

And the fact that my phone AutoCorrected a misspelled Gheorghemas just now? Muah. [blows kiss]

zman said...

I watched a little of the 121212 show. Roger Waters lost his fastball. Mick Jagger appears to have been lyophilized.

And thanks for all the praise with this post. I'm not sure if any of it is accurate.

rob said...

shlara just asked zman to teach her stuff, if i read correctly. awww, yeah.

Danimal said...

yeah vavy yeah!

good post. enlightening for the legal neophytes like myself

clarence - closed my tuesday night (mon was when i did the late night check-in) with multiple nutty irishmen...good times & good stff. 2 nights in a row, schoolnights no less, closing hotel bar somewhere in florida. work-related of course.

zman said...

Out of curiosity, did anyone get the "what does it all mean"/Steinski reference?

rob said...

the big atlantic east 21 will be headquartered in newport news, va, where the atlantic 10 offices currently reside. w&m is conveniently very close to newport news, va. the big atlantic east 21 may need a 22nd team to make scheduling easier. ergo, we'll be in the same conference as gheorghetown soon. nice.

amanda young said...

Big respect. peace old school forever. Amanda Vanderpool