Saturday, November 28, 2015

Trouble for Tribe’s “Double Helix”: or, a Failed Marriage of Equal Protection and Due Process?

     Laurence Tribe’s Equal Dignity: Speaking Its Name, 129 Harv. L. Rev. F. 16 (Nov. 10, 2015), his response to Kenji Yoshino, The Supreme Court, 2014 Term — Comment: A New Birth of Freedom?: Obergefell v. Hodges, 129 Harv. L. Rev. 147 (2015), propounds “that Obergefell’s chief jurisprudential achievement is to have tightly wound the double helix of Due Process and Equal Protection into a doctrine of equal dignity[.]” Id. It certainly sounds encouraging to hear that the Equal Protection Clause, and Due Process Clause, of the 14th (or constructively, the 5th) Amendment(s), nicely supplement each other and drive us further to Utopia.
     One could write volumes on this notion, but even a brief look shows some of the troubles with such a cheerful idea. The two Clauses supra may supplement each other at times, but they may also tear each other down, leading more to double trouble than being a “double helix”.

     There are other problems with Tribe’s essay: e.g., he says, “Justice Kennedy’s opinions can be best understood as deliberately fostering and enriching broad public debate regarding issues like same-sex marriage"; whereas, as Chief Justice Roberts aptly noted in his dissent, Obergefell, 135 S. Ct. 2584 (2015) actually ends the debate, see id. at, e.g., 2612. But the worst problem is near the essay’s end:
     Such precedents [e.g., allowing divorce even to those who can’t afford the filing fee] would be difficult to cabin in any principled way that does not encompass a right to remain unmarried without suffering penalties for that choice. . . . To penalize individuals for living either alone or in intimate nonmarital arrangements in the name of honoring and encouraging marriage is akin to denying same-sex couples the right to marry in the name of honoring and encouraging marriage by opposite-sex couples . . . . Justice Kennedy may have displayed a distressing marriage myopia in parts of his Obergefell opinion[.]
Id. Who knew Kennedy was such a “blinkered reactionary”? How dare he intimate that people willing to make a lifetime marital commitment to each other, receive any kind of reward or honor at all?? --In any case, Justice Kennedy deserves a far more dignified and respectful appraisal from Tribe than he gets in Equal Dignity.

     At this point, a true anecdote is in order: the present author had time to read only about a third of Tribe’s essay (when first seeing it linked on SCOTUSblog), before going off for several hours and thinking, more or less, “Well, doesn’t the status of ‘marriage’ at all, create a putative second-class status for those who aren’t married? This shows the ‘double helix’ idea isn’t much good, since the Due Process fundamental right of marriage seems to violate an Equal Protection right, by creating a so-called ‘inequality’.” Lo and behold, when the author returned to Tribe’s article and finished it, he saw that Tribe said the words in the blockquote supra, but with Tribe finding a “positive” aspect in that—i.e., making marriage itself questionable, and seeing that as good—, instead of the negative cast which the present author had thought beforehand. Otherwise put, Tribe takes the present author’s thoughts in reverse, by having the idea of equality eviscerate the value of marriage.
     And eviscerate it does. If we take Tribe seriously, the unmarried are “penalized” (!), id., by not having the exact same status and benefits that the married do. And not just the benefits, note. Many States who offered same-sex civil unions or domestic partnerships argued that they didn’t have to offer full marriage, since the unions or partnerships offered the same, or substantially similar, benefits as marriage. However, plaintiffs argued that unless they had marriage itself per se, and all of its status, they were stigmatized, stripped of dignity, demeaned.

     In other words, Tribe would apparently not be satisfied if the unmarried merely received the same benefits, tax treatment, etc., as the married. Tribe condemns “a view that demeans those choosing other forms of intimate companionship [besides marriage]”, id.; so, the expressive harm, the status stigma, caused by some being married by the State, and others being unmarried, could reasonably be ended only by…ending marriage itself.
     (Unless, as an alternative, the State issues a “Certificate of Being Just as Good as Married Folks Even Though You’re Unmarried”…but would anyone want that?)

     Tribe’s shocking assertions help show how tenuous the “double helix” is: after all, there is no, or maybe little, necessary convergence between equal protection and due process. The first concept is about being treated the same as others; the second concept is about having the right to do what you want. Apples, meet oranges. (Even Kenji Yoshino notes, in his Comment, supra, that EP and DP may interfere with each other at times, see id. at 174, 175, 179. But Yoshino sees that interference as being sometimes a positive thing; e.g., if equality concerns prevent a Lochner-style “freedom of contract” from having full sway. He does not really plumb the depths of how much EP and DP can nastily interfere with each other, as with Tribe’s “double helix” which tends to destroy marriage.)

     There may be some real convergence of EP and DP at times, as in Loving v. Virginia (388 U.S. 1 (1967)), where racial equality dovetailed with the right of privacy either to engage in private interracial intimate conduct (a.k.a. “miscegenation” in those days’ parlance), or to enter a marital status that included that right to intimate conduct. However, gays already had the right to legalized intimate conduct, from Lawrence v. Texas (539 U.S. 558 (2003)), so Loving does not necessarily lead to Obergefell. (Justice Thomas, in an interracial marriage himself, saw no necessity to join the Obergefell majority.)

     Tribe’s “double helix” is an awkward metaphor, too, in that DNA (from which he borrows the “double helix” term) is supposed to encapsulate tradition, the passing of one’s (genetic) culture. However, Tribe’s helix would apparently eliminate tradition, since he intimates that there’s a constitutional right for the unmarried to get the same goodies as the married. But if that happens, what’s the point of the tradition of marriage?

     Part of Obergefell, after all, with which the present author and Justice Kennedy both agree, is that marriage is something special, a state of heightened dignity. Tribe overturns that by implying that marriage shouldn’t even be special at all, lest the unmarried be "oppressed". (Cf. Masha Gessen saying that "it is a no-brainer that the institution of marriage should not exist.") At this point, there is not a “double helix” any more; rather, the Clauses become two snakes eating each other alive. If marriage exists, it produces "inequality"; or on the other hand, if equality is allowed to level all, marriage cannot survive.

     As for Tribe’s mantra, “equal dignity” sounds lovely—but just how is it cabined? Do, say, unborn children old enough to feel pain get that equal dignity, too? How about applicants to Harvard Law School? even those who are not alumni kids or donor kids??

     Indeed, people like Tribe could start at home and suggest the abolition, or total transformation, of Harvard Law School. Wouldn’t a new incarnation as the Greater Cambridge Crimson Community College of Law, with free tuition and open admission, make everyone feel more equal? (Of course, tenured professors like Tribe would receive no more perks or salary than teaching assistants do, lest the latter feel they're not being treated as equals.) True, Harvard isn't a state institution—but it is state-accredited and may receive government grants. So why is Tribe not urging the de-accreditation and public de-funding of the school where he teaches? that school which is a totem of privilege, snobbery, and racism to so many people?
     If Tribe is willing to disrespect marriage to the point of extinction in the name of “equality”, then, newer traditions like Harvard Law should be put at risk of extinction as well.

     Tribe’s journey through the looking glass in Equal Dignity is so extreme that one needs literary references to try to understand it, such as Kurt Vonnegut’s famous short story “Harrison Bergeron”, about the perils of “equality” gone nuts. (E.g., the Handicapper General, see id., makes sure that agile individuals are handicapped so as not to be more agile than others.)
     One also thinks of Christopher Nolan's The Dark Knight Rises (Warner Bros. Pictures (2012)), where Anne Hathaway’s Catwoman notes with horror, while peering around a trashed domicile in supervillain Bane’s terrorized Gotham, that “This used to be somebody’s home”, with her chum snappily rejoining, “Now it’s everybody’s home!” Id. Similarly with marriage: if anyone can get the benefits and status of it, without even calling it marriage, what does that leave left of marriage?
     And for Prince to write the song “Let’s Pretend We’re Married” would be impossible, since there would be no more marriage. Admittedly, there might be left a status, say, “The Welfare Entitlement Formerly Known as Marriage”, which would comport nicely with Prince’s habit of calling himself “The Artist Formerly Known as Prince”.

     Tribe’s last words are, “The great advance of Obergefell is to have pointed the way forward for resolving [some] remaining conflicts by creating a legal and social environment in which dignity can proudly speak its name.” But as we have seen, it may actually create an environment where the dignity and institution of marriage are wiped out—at least if Tribe’s version of “equal dignity” holds sway. Just as Harvard Law School has recently come under fire for the black tape placed over portraits of black professors, the “double helix” risks placing black tape over the voices of all those who want to say “I do” and receive the dignity of a State marriage; those who want to “proudly speak their names” and join in that sacred union of which Justice Kennedy said, “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family”, Obergefell at 2608. After all, when Tribe’s theories could logically mean that the Lovings themselves were bigots for wanting the State status of marriage rather than being “egalitarians” and fighting for the abolition of marriage, his theories may simply not be due equal status with more serious and humane interpretations of the law.


     (Cross-posted to Casetext)

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