Thursday, March 27, 2014

Facts in the Case

Hon. Bernard A. Friedman, a federal district court judge in Detroit, has just decided that Michigan's ban on same-sex marriages violates the Constitution of the United States. What would Holmes say?

He could not have imagined the circumstances under which such a question came before a federal court, and Judge Friedman's reasoning would have been wholly unfamiliar to him; yet Holmes would have something to tell us about the case. Holmes thought the law of the future would be based on scientific understanding. Judge Friedman is one of many district court judges who are taking a hard look at the factual basis of statutes. He held that Michigan's same-sex marriage ban was not "rationally related to any conceivable legitimate governmental purpose." That sounds harsh and extreme, but it is lawyer's language. In ordinary speech, one would say that the state's witnesses failed to provide sufficient evidence that there was a factual basis for the claimed purpose of the state's marriage ban.

A state government may not restrain a person's liberty without some acceptable purpose. In this case, the State of Michigan forbade two women from jointly adopting their three children, solely because the women were not and could not be married to each other. Judge asked the State of Michigan to justify its refusal to accept a marriage between the women, and the state's witnesses were unable to express any acceptable reason for discriminating against the couple, solely because of their sex. 
The sponsors of marriage bans in state after state claim that same-sex marriages are bad for children. This has been an effective advertising strategy in support of popular initiatives. The first important defeat for that strategy was suffered in California, in the Proposition 8 case, just under four years ago, when the factual basis of this claim was challenged. In that case, Judge Vaughan Walker held a trial, to determine whether there was a factual basis for any of the claims made in support of California's marriage ban. After making careful findings of fact, he concluded that history and social science supported the conclusion that children raised by same-sex couples were no different from those raised in heterosexual marriages, and there was some evidence that recognizing the marriages of same-sex partners would be beneficial to the children that they raised. Moral or religious objections to homosexuality were not acceptable reasons for legal discrimination against same-sex couples. Only some material purpose could justify infringing constitutional rights: the state needs a reason before it can discriminate. The California marriage ban accordingly was held to lack a rational basis, and was invalidated. (Appeals were eventually dismissed by the Supreme Court on procedural grounds,and Judge Walker's opinion is no frequently cited.)

In Detroit, Judge Friedman followed Judge Walker's lead, and ordered a trial to determine whether the State of Michigan had a factual basis for the claims it made in support of its ban on same-sex marriage. Forced to present evidence, the State of Michigan offered only familiar, shopworn arguments: marriages between homosexual parents somehow would be bad for children. In the usual manner of a judge weighing evidence, Judge Friedman found the state's evidence wholly without credibility. 

What would Holmes say? Legislation, he thought, should be based on reasonable judgments about the evil to be corrected and the results to be achieved. In talks given in the 1890s he expressed the hope that the social sciences would guide lawmakers in their work. Unfortuantely, the judges of his day were offered the pseudo-science of "eugenics." The social sciences have begun to earn that title, however, and district court judges of today, whose job it is to identify facts and draw conclusions from them, are better educated in such matters and will follow Judge Walker's lead and cast a critical eye, informed by a better understanding of what counts as fact, on the claims made on behalf of invidious discrimination.