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Heller v. Doe and the Obergefell amici
Chris Green

I commented last week on the failure of the same-sex-marriage petitioners in Obergefell to confront what I consider respondents' strongest argument: the inference in Heller v. Doe of a "commonsense distinction" from the fact that that "the law has long treated the classes as distinct." The first 13 petitioner-side amici (briefs available here) unfortunately likewise fail to confront Heller. Two of them (here at 10 and here at 26) cite the preceding sentence--that ancient lineage does not immunize a distinction from rational-basis attack--but without mentioning the commonsense-distinction point, which treats tradition as an important positive consideration in favor of the reasonableness of a distinction. Indeed, one of the briefs (here at 10) cites Heller for the proposition that reliance on tradition affirmatively violates the Equal Protection Clause, a notion belied by Heller itself. Another brief (here at 34) notes that "history plays a critical role in the Court's equal-protection analysis," but without mentioning the role history played for such analysis in Heller. Perhaps amicus briefs yet to appear online will do better.

Update (3/10): With eight more amicus briefs online, still no response to the relevant point from Heller. Like three of the parties and two other amici, the United States's brief (here at 30) quotes Heller's no-immunity sentence without confronting the context, in which the Court deploys tradition to support the existence of a common-sense distinction.  Relying on US v. Virginia and Lawrence, the brief at this point also blurs the difference between a tradition in a single state (which existed, for instance, in the VMI case) and the existence of a long nationwide tradition (at stake in Heller and Obergefell). The Lawrence Court, quoting Justice Stevens's Bowers dissent, stresses that insufficiency of "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral," but the United States's amicus brief glosses this quotation to suggest that Lawrence sees history and tradition as irrelevant, or even negative, considerations in equal-protection law in general. Justice Kennedy made clear in Heller that this is not so; indeed, in Lawrence itself he relied on "our laws and traditions in the past half century." Likewise, the foundation of current gender-classification law, Craig, relied on the clash between the 3.2-beer-only-for-18-year-old-women law and contemporary tradition: "The repeal of most of these laws signals society's perception of the unfairness and questionable constitutionality of singling out groups to bear the brunt of alcohol regulation." Justice Stevens's concurrence noted that the law was unique, "a mere remnant of the now almost universally rejected tradition of discriminating against males in this age bracket." The sort of "almost universal rejection" present in Craig, Lawrence, Virginia, and Romer--not even the 34-16 contemporary legislative split relied upon in Loving--is conspicuously absent in Obergefell.

Update 2 (3/11): Another 38 amici online, presumably all of them now. One more invocation of the ancient-lineage-no-immunity line without the suggestion-of-commonsense-distinction context, here at 24, and still no amici engaging with Heller's use of tradition as a positive means for assessing a distinction's reasonableness. The Institute for Justice brief at 19-20 discusses the relevance of factfinding in Heller, but without mentioning Kennedy's specific use of tradition in the case. It's a bit surprising that none of the 63 briefs so far mention this point. 

Update 3 (3/12): I spoke too soon; twelve more amici today.  One more quotation of the first sentence from Heller without the second (here at 16), and still no response to Heller's positive use of tradition.

Update 4 (3/16): Three more amici, but no references to Heller.