Science and the Defense of Marriage Act

As many of you no doubt know, the Obama Administration announced a decision to cease defending the Defense of Marriage Act (DOMA) against legal challenges this past Wednesday.  Just to be clear, this does not mean the administration will no longer enforce the law.  It just means they will no longer take steps to actively defend it in court.  Why not just stop enforcing it altogether?  Well, just imagine what would happen if every administration could simply pick and choose which laws to enforce!  Doing so would all but eliminate the legislative authority of the United States Congress. 

To my mind, these developments are interesting to historians of science for at least two reasons.  The first has to do with the specific legal reasoning employed in the administration’s decision.  The second is about the implications this reasoning has for the role that science plays in democratic society.  Let’s start at the beginning, with the law itself.

Section three of DOMA states that: “In determining the meaning of any Act of Congress … the word 'marriage' means only a legal union between one man and one woman as husband and wife.”  This has many obvious and far-reaching practical implications for gay couples.  Even if you are legally married in a state like Massachusetts, federal law will not recognize the union.  For example, a couple I know here in Boston files two separate sets of tax returns: one jointly to the state and another singly to the feds.  What if one of them suffers a serious accident when traveling out of state?  Will the hospital have to recognize his husband’s visitation rights?  The list goes on.

Currently, there are several cases making their way up through the court system that challenge the constitutionality of DOMA under the equal protection clause of the 14th Amendment, which mandates that “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”  As I understand it, this clause was designed to empower the federal government to enforce the principle that “all men are created equal” (expressed in the Declaration of Independence) on the states.  However, it has since been interpreted to apply to the federal government itself.

As always, there is a question about how the text of the 14th Amendment (which also includes the even more wide-ranging due process clause) ought to be applied in legal practice.  Prior to the announcement on Wednesday, the Justice Department defended the constitutionality of DOMA under the so-called Rational Basis Test.  This refers to the level of scrutiny the court applies, i.e., how it goes about deciding if a particular law violates the equal protection clause.  To pass the test and be declared constitutional, the law must further a legitimate government interest by reasonable means.  This is the most permissive level of scrutiny.  In practice, almost no law will ever fails to satisfy the Rational Basis Test because the court can always think of some legitimate government interest the law in question will protect.  (To my knowledge, laws only fail the Rational Basis Test is if their passage can be shown to have been motivated by animus against a politically unpopular group.)

However, there are two additional levels of scrutiny a court can use to decide if a particular law violates the equal protections clause.  These are called intermediate scrutiny and strict scrutiny.  Under intermediate scrutiny the government must show the law substantially furthers an exceedingly compelling government interest.  The same applies under strict scrutiny, with the added caveat that there are no other, less restrictive means by which the government can further this exceedingly compelling interest.  The particular standard of scrutiny the court uses depends on which classification of people the law impacts.  Intermediate scrutiny is usually used for laws that discriminate against members of a so-called Quasi-Suspect Classification, which includes gender and illegitimate children.  Strict Scrutiny, on the other hand, is applied to laws that discriminate against members of what is called a Suspect Classification, which includes race, nationality, and religion.  It is also applied to laws that seek to deny a Fundamental Right, such as, suffrage, access to the courts, and the right to cross state lines.  (As an interesting aside: the distinction between different levels of scrutiny comes from a 1938 Supreme Court case about whether skimmed milk compounded with oil to make it resemble whole milk or cream could be shipped across state lines.) 

The Wednesday announcement by Eric Holder, the Attorney General, is all about which level of scrutiny the courts should apply to DOMA.  In his announcement, Holder said that up until now “the Department has defended [DOMA] in court because we were able to advance reasonable arguments under that rational basis standard.”  However, they would cease to do so in the future.  To quote from the official announcement again, “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.”  That is, from now on, the Justice Department would argue that DOMA should be subjected to intermediate or strict scrutiny, owing to the fact that sexual orientation is a Quasi-Suspect or Suspect Classification.

What does this tell us?  For one thing, it tells us that history matters!  Which level of scrutiny a court chooses to use when evaluating the constitutionality of a law under the 14th amendment depends on whether they judge a particular classification of people to be Suspect, Quasi-Suspect, or not suspect at all.  Clearly, our ideas about which classifications are suspect will change over time.  And so will the ideas of judges.  There is thus a very real sense then in which our legal system legitimizes discrimination against people if we do not think doing so is suspect. So there is an interesting question here about how we should read the word ‘suspect.’  Do we mean classifications that are morally suspect?  Or politically suspect?  Or do we think there is a sense in which classifications can just be legally suspect?

Of course, I do not mean to suggest we can avoid this problem.  Clearly our legal system discriminates against ax murders.  I am not arguing that “ax murderers” ought to be treated as a suspect classification, and that we therefore ought to stop discriminating against them.  However, I do think that if the history of science has taught us anything at all, it is this: we ought to suspect all classifications as serving some complex social, cultural, and political purposes!  Classificatory schemes are never merely technical innovations, e.g., tools designed to help preserve order in a just society.  Is there room, then, for historians of science (especially historians of social science) to make a genuine and potentially very important contribution to what at first sight might look like a purely technical discussion within jurisprudence?  I certainly think so!

That’s the first thing I wanted to say.  The second applies to what happens next.  I can predict with a fairly high degree of certainty that in response to the Wednesday announcement we will witness a fascinating legal and political debate about what it means to classify by sexual orientation.  I can also predict, perhaps with a slightly lower degree of certainty, that a great many people involved in this discussion will marshal lots scientific evidence in favor of one view or another.  For example, suppose the courts decide to apply intermediate scrutiny to DOMA.  That means opponents of same-sex marriage will have to show how the law furthers an exceedingly persuasive government interest.  One way I am almost certain they will try to do so is by offering statistical data about how children in same-sex households are raised to become a burden on society.  That’s just one possible example, but I’m sure we can all think of plenty more.  Again, this strikes me as rich intellectual fodder for anyone interested in the history of social science.  What is the proper or most effective role for science in regulatory discussions of this kind?  What happens when a prima facie cultural, moral, and political discussion becomes a scientific one?


Lukas: To demonstrate "an exceedingly persuasive government interest," would it be enough for opponents of a change to the definition of marriage to offer anecdotal evidence about the importance of the (heterosexual, procreational) marriage to the state?

From one perspective, this argument has crippling problems that run all the way down to its foundations; from another, it's been pretty successful to date in maintaining the status quo. I wonder what you think about whether a new level of scrutiny will force these arguments off the table.

To address another of your points, and to do so from another angle (to add some more interesting linkages to the sort of thinking historians of science often do): How does Originalism (meaning and/or intention, 14A or otherwise) fit into your assertion that "history matters!"?

Accessing (or trying to access) the "original intent" or "original meaning" of the document in question is a centerpiece of historical scholarship; however, in the context of current politics, we associate that move with a conservative strand of legal theory.

I see that you're relativizing further than Scalia would - for him, what matters today is what Madison thought, whereas, for you, what matters today is what we think today - but I wonder if you might weigh in on this, too..

Hank –

in answer to your first question: I don’t know, but my intuition is that this would not be enough. It seems pretty unlikely that courts will subject the law to strict scrutiny. The main difference between the Rational Basis Test and intermediate scrutiny is that the government interest has to be explicit. Under the Rational Basis Test the government does not even have to spell out what legitimate interests it is trying to promote. All that’s required is for the courts to agree there is SOME legitimate interest the law COULD be seen as protecting. Under intermediate scrutiny, the state will have to spell out what it thinks those interests are, why they are compelling, and how the law protects / promotes them. My guess would be anecdotal evidence will not suffice. Hence my prediction that science will play a role. It will be interesting to see what happens.

To address your second question: the argument I was making about why history matters is very much at odds with the Originalist philosophy of legal interpretation. My point was that in trying to decide which level of scrutiny is appropriate in a particular 14th Amendment case the court must decide if the law posits a suspect of quasi-suspect classification. It does not decide if the classification would have been suspect when the Amendment was ratified in the wake of the Civil War but whether it is suspect today. That’s why its rulings on same-sex marriage can change over time, because our views on the status of sexual orientation as a legitimate classification have changed.

I would also *strongly* resist the move to compare Originalism with sound historical method. My understanding is that Originalism claims we should interpret a law according to the meaning it would likely have had to the people who wrote it. Of course, in practice, Originalist judges also take precedent into account. They have a pretty good argument for their position, which is that you want courts to be conservative in the sense of moving incrementally, taking things one step at a time. Otherwise the court would loose its legitimacy. Imagine what would happen if it handed down a decision today only to contradict it with another one tomorrow. If you want to make a bold move, Scalia says, you should do so legislatively, not judicially.

These are not bad arguments per se, but they have nothing to do with sound historical methods. Why do we historians try to recover the meaning a text might have had when it was written? It’s not because we are trying to recover a prima facie privileged meaning, but rather because we’re interested in the past for its own sake. But jurisprudence is not interested in the past for its own sake. The law is a social technology, a means to an end, where the end in sight is a just society. So the appropriate question is not: what is the right way to read a historical document. It is: what is the right way to read a legal document, where “right” means “the reading that best promotes the creation and preservation of a just society.” It might turn out that judges and historians converge on the same answer, that the right way to read their respective documents is historically, but if they do so it is for very different reasons. And needless to say judges disagree about the right way to read law.

Lukas: Thanks for clarifying. I'm struck, though, by your conflation of methods and motives. Let me put this back to you in two ways:

(1) There is a philosophical argument for trying to recover "a prima facie privileged meaning" in the law, and there is a philosophical argument for being "interested in the past for its own sake" in history. It doesn't follow, though, that former has nothing to do with "sound historical methods" (as you assert).

Indeed, Originalists have some pretty supple (and pretty familiar) ways of hypothetically accessing the motives of these c18 authors. Their effort to recover intended meaning from a dialectic of personal traits, context, and what was *known* (or imagined) about that context at the time is positively Skinnerian! Their motives aren't ours (or are they? See next point...), but their methods might be.

(2) I'd also be interested in you explicating the difference between "classificatory schemes" and jurisprudence. In particular, you assert that the history of science teaches us that the former "are never merely technical innovations, e.g., tools designed to help preserve order in a just society," while the latter "is a social technology, a means to an end, where the end in sight is a just society." Could you just explain a bit more about how the two relate?

My point is that language does not speak for itself. It always requires interpretation. There are more ways than one to interpret a text. What is the right way? Well, it depends. There is no prima facie right way to read a text, ever. All you can do is try and develop a reading practice that is consistent with some goal. For example, if you are interested in understanding the past, it makes sense to try and interpret the meaning a text had in the context it was created (its meaning for the person who wrote it but also the people who would have read it). Quentin Skinner’s contribution was not, I take it, that this is the only way anyone should ever read anything. He was trying to figure out the best way to read a text if your goal is to understand the past.

It’s interesting to think about the debate between New Critics and New Historicists in the 1980s. It should come as no surprise that I side with the New Historicists (probably in part just because my college English teachers were mostly New Historicist critics) but not for foundational reasons. I just think its more interesting to read Shakespeare plays and John Donne poems as the expression of historically situated people writing in a very particular context. But that’s not to say you can’t identify internal tensions, formal structures, etc. in a John Donne poem. There’s plenty of that too. It’s not a question of absolutes. Reading is always a means to an end.

And yes, I think that reading law is (or anyway ought to be) a means to a just society. I happen to think that Originalism—though interesting and compelling in many respects—is not the best way to go about doing so. That said, I also think that bringing about a just society is an incredibly difficult task. All classifications being suspect is a case in point. There’s no way to write law that does not classify people in one way or another. So it makes sense for judges to worry about the status of those classifications. But it does not mean that they will ever get it exactly right, that they will ever be able to judge the merit of a classification only in terms of how well it contributes towards the creation of a just society. Democracy, after all, is always a work in progress.

Lukas: Thanks for elaborating, again. I want to press one point, and then you can be done with me (in the context of this conversation, anyway). That point is about means and ends.

"Reading is always a means to an end," you say. There are different reasons to read a text - the two we're talking about seem to be "understanding the past" and jurisprudence (or legal argumentation) - and, to these "ends," different "means" are more or less well-suited.

On one level, I agree with you. This is one way to understand what reading's about (and how language works), and it's obvious people read for different reasons (no one was arguing otherwise). What's not obvious is how the "means" (methods?) are different for an intellectual historian only trying to "understand the past" and a legal Originalist engaged in present-day jurisprudence. Practices for both might be (and, I assert, are) extremely similar, and I wanted you to muse on those similarities.

On another level, I disagree with your framing. "Reading is always a means to an end" imputes, to my mind, a conscious intention to readers that they don't all possess. That is, while it is theoretically true that readers should "develop a reading practice that is consistent with some goal," they just don't. Whether or not you intend this imputation doesn't matter: your framing allows it.

We inherit ways of reading unconsciously and without choosing them; I suggest that when means are subconsciously adopted and ends aren't articulated or chosen, the sense in which reading is "a means to an end" is complicated.

Lastly, the idea that "language does not speak for itself" is one idea, but it isn't, to use your own language, prima facie right. Vagaries of vocabulary, syntax, and context "force" meanings, independent of the means and ends of hypothetical interpreters.

I'm a new historicist, too, but I don't think acknowledging that there are different ways to interpret texts (and attending on thos differences in the past) necessarily entails understanding reading and its practices in light of the means-ends system you propose.

Well, I guess we really disagree…

My argument is normative, not descriptive. I don’t mean to suggest that people always choose their reading practice consciously or carefully. On the contrary, most people do not. But that does not mean their reading practice is not therefore geared towards some unstated, implicit end. So, although I agree that the story of how most readers actually go about interpreting a text is extremely complicated, I think these details are irrelevant to the discussion at hand. The question at stake here is not how most people actually do go about reading, but rather how certain people (historians and judges) ought to go about reading their texts. And, anyway, I think the point is moot because we’re talking here about historians and judges, two groups that, as you pointed out yourself, have both spent a lot of time thinking very carefully how they ought to go about interpreting texts.

I also agree that some historians (skinnerians), some literary critics (new historicists), and some legal scholars (originalists) have all developed what look at first blush like very similar reading practices. But they each did so for different reasons. So there’s no need to worry too much about the implications of this similarity. Are new historicist critics politically conservative because they read Shakespeare in a way that’s similar to how Scalia reads the Constitution? My answer is an emphatic ‘no.’ (And anyway I don’t think they really *are* all that similar, but that’s another discussion for another day.)

Finally, I’m sorry but I find the suggestion that “Vagaries of vocabulary, syntax, and context "force" meanings” pretty facile. The word ‘vagaries’ should tip you off to the root of the problem. That’s like saying, ‘somehow language speaks for itself, but don’t ask me to spell out exactly how.’ Of course I’m not saying that a particular linguistic utterance can be interpreted in any old way, that there aren’t any *constraints* in interpretation. Nor am I saying that syntax and semantics don’t matter. A sentence like ‘the cat is on the mat’ has a pretty straightforward interpretation and you won’t be much argument about what it means. But this is a very simple declarative sentence whose propositional content can be laid bare simply by translating it into predicate logic and specifying a model to serve as a semantic interpretation. I’m talking about something like the 14th Amendment which does not admit of such a straightforward treatment. If it did, there would be no need for the courts to go through the trouble of distinguishing different levels of scrutiny, etc.

I don't think we disagree that much!

Historians and Judges spend a lot of time thinking about interpretation. You assert they have very different answers about "why"; I assert there are interesting similarities in their answers about "how." Musing on the latter is what I want you to do (especially now that you suggest you disagree with me).

Why? Because two groups that think a lot about the same practice (even, or maybe especially, if they do so for different reasons) might productively learn from one another through such musing!

So what if "they each did so for different reasons"? That certainly can't mean "there’s no need to worry too much about the implications of this similarity," especially since I care about what either can learn from the other!

As to your logical proof of my facility: I don't mind that it's a reductio ad absurdum - we can still be friends.

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