Monday, October 13, 2014

No, Chron, Abbott isn't saying that

Recently, Texas' marriage law, which excludes same sex marriage, has come under attack. As the state Attorney General, Greg Abbott has been defending it. Because that's his job. Anyway. The Houston Chronicle recently published a rather confused article on Greg Abbot's judicial briefing before the 5th Circuit Court. The headline "Greg Abbott: Texas gay marriage ban reduces out-of-wedlock births," is factually wrong, Abbott argues no such thing. The actual briefing (which, to its credit, the Chron does link) is entirely unconcerned with either gay marriage or out-of-wedlock births.

I suspect part of the problem is that many people, and the media is especially guilty of this, tend to approach things pertaining to the judicial branch the same way they approach things pertaining to the legislative branch. Seeing as these branches operate in entirely different manners and are primarily concerned with entirely different questions, this leads to problems. Regardless, let us examine what Abbott is actually saying in his judicial brief.


The first sentence sets the stage: "The plaintiffs argue that Texas’s marriage laws fail rational-basis review." Abbott goes on to explain:
Rational-basis review does not require the State to prove in court that a law “actually serve[s] a state interest.” Appellees’ Br. at 37. The Supreme Court made this clear in FCC v. Beach Communications, Inc., when it declared that under rational-basis review a legislative decision “is not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data.” 508 U.S. 307, 315 (1993). If it is rational to believe that a legislative classification might be related to a legitimate state interest, then it does not matter whether the law actually advances that state interest—or any other state interest.
So what does this legalese mean? Put simply, the people who are suing Texas over its marriage law are doing so on the ground that Texas's current marriage laws do not pass the "rational-basis test." Since this is the plaintiff's argument, Abbott, as the Attorney General, need only show that the law *does* pass this test. So what is the rational basis test?

Cornell's law school describes it thusly:
Under the rational basis test, the courts will uphold a law if it is rationally related to a legitimate government purpose. The challenger of the constitutionality of the statute has the burden of proving that there is no conceivable legitimate purpose or that the law is not rationally related to it. This test is the most deferential of the three levels of review in due process or equal protection analysis (the other two levels being intermediate scrutiny and strict scrutiny), and it requires only a minimum level of judicial scrutiny. E.g., courts use the rational basis test when analyzing the constitutionality of statutes involving age discrimination, disability discrimination, or the Congressional regulation of aliens.

 So "rational-basis" does not mean "makes sense to me" in this case. It's a legal standard. Hopefully you are wondering how the plaintiffs expect to argue Texas's laws fail such an easy standard. It's a pretty tall order, as Abbott goes on to explain, the state doesn't even need to show any evidence that the law works as intended, it only needs to be rational to believe it does:

Rational-basis review also does not require the State to show that same-sex marriage would be harmful. But see Appellees’ Br. at 40 (“The responsible procreation argument requires the Court to accept the unfounded premise that same-sex couples’ marriages will somehow decrease the incidence of heterosexual marriage and cause increased heterosexual procreation outside of marriage.”). Indeed, Texas’s marriage laws will survive rationality review even if same-sex marriage will advance the State’s interests in procreation and child rearing, as some courts have argued. See Bostic v. Schaefer, 760 F.3d 352, 380-84 (4th Cir. 2014); Baskin v. Bogan, Nos. 14-2386, 14-2387, 14-2388, 14-2526, 2014 WL 4359059,at *7-*12 (7th Cir. Sept. 4, 2014). So long as one could rationally speculate that opposite-sex marriages advance some state interest to a greater extent than same-sex marriages, then Texas’s marriage laws survive rationality review. See Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1107 (D. Haw. 2012) (“[T]he relevant question is whether an opposite sex definition of marriage furthers legitimate interests that would not be furthered, or furthered to the same degree, by allowing same-sex couples to marry.”); United States R.R. Ret. Bd. v. Fritz , 449 U.S. 166, 179 (1980) (“The ‘task of classifying persons for … benefits … inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line,’ and the fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.”) (internal citation omitted).
I'm throwing a lot of legalese at you, but bear with me. Abbott is showing (by citing previous legal cases) that he doesn't need to provide any sort of hard evidence to show that the marriage laws pass the "rational-basis test." Rather the plaintiffs must prove that there isn't a single rational defense of the marriage laws at all!
The plaintiffs bear the burden of negating every conceivable rationale that might be offered for Texas’s marriage laws—regardless of whether those rationales appear in the State’s appellate brief. See Beach Commc’ns, 508 U.S. at 315 (“[T]hose attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it.”) (internal quotation marks omitted). That requires the plaintiffs to refute every defense of traditional-marriage laws in the amicus briefs and academic literature, as well as any possible rationale of which this Court might conceive.
So, having established that the plaintiffs have the burden of proof, Abbott counters a few of their arguments. They are worth reading, but in the interest of space I'll skip to the argument that created the Chron's unfortunate headline, quoted below:

Second, Texas’s marriage laws are rationally related to the State’s interest in reducing unplanned out-of-wedlock births. By channeling procreative heterosexual intercourse into marriage, Texas’s marriage laws reduce unplanned out-of-wedlock births and the costs that those births impose on society. See Appellants’ Br. at 10-14. Recognizing same-sex marriage does not advance this interest because same-sex unions do not result in pregnancy. At the very least, one could rationally believe that opposite-sex marriages will do more to advance the State’s interest in reducing unplanned out-of-wedlock births than same-sex marriage will.
This argument is, on its face, a little bizarre. But the reasoning is clear, the state has an interest in reducing unplanned out-of-wedlock births, same sex marriage does not affect this because it does not result in pregnancy, thus, it doesn't further the compelling government interest.

It is critically important to realize that the question here is "is" and and not "ought." Abbott is arguing that one can rationally speculate that same sex marriage does not further this particular compelling government interest for the very simple reason that same sex marriage does not result in pregnancies. This is a very different thing than claiming that the ban on gay marriage reduces out-of-wedlock pregnancies, as the Chron headline screams. Abbott is arguing nothing of the sort!

Again, the full brief is relatively short at only 30 double spaced and large print pages. It's worth a read, and it's not too hard to understand whats going on. I'd encourage you to read it.

Unfortunately, we see this sort of misunderstanding all the time. Look at the outrage over the SCotUS decision in the Hobby Lobby case, which merely affirmed that Hobby Lobby was covered by the RFRA, (Passed in the 93 by a Democratic congress and signed by a Democratic president, no less!) and that the HHS Contraception Mandate did not meet the "least restrictive means" necessarily test, the court noting there was a less restrictive means available to religious non-profits and nothing stopping HHS from adopting that exception on a larger scale.

Yet the reaction was not to blame Congress for passing the RFRA, but rather it was to accuse the Supreme Court of acting legislatively! Cecile Richards, president of the Planned Parenthood Action Fund, said,"Today, the Supreme Court ruled against American women and families, giving bosses the right to discriminate against women and deny their employees access to birth control coverage." This is legislative language, and SCotUS did nothing of the sort. The ruling was so simple it is tragic that people didn't take the time to understand it.

This post has been long and so I'm going to bring it to an end. If you take only one thing away from here let it be this: Courts do not make value judgements. They interpret the law as written by the legislator and apply it to the facts presented to them. Approaching a court decision or a legal brief the same way you would a legislative document or argument is a surefire way to miss the point. Don't do that!

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