Against the Scalian Tautology

Unlike Ed Whelan, the Iowa Supreme Court is required by existing norms to actually make arguments in defense of its opinions. One of the arguments they make in Varnum is particularly worthy of emphasis. One argument on behalf of the proposition that requirements that citizens be afforded the equal protection of the laws should be read very narrowly is the argument about how to read ambiguous constitutional provisions offered by Antonin Scalia:

But in my view the function of this Court is to preserve our society’s values regarding (among other things) equal protection, not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees. For that reason it is my view that, whatever abstract tests we may choose to devise, they cannot supersede–and indeed ought to be crafted so as to reflect–those constant and unbroken national traditions that embody the people’s understanding of ambiguous constitutional texts.

Contrary to what Whelan seems to believe, the normative attractiveness of this literally reactionary way of reading the Constitution is (to put it mildly) far from self-evident. But, moreover, Scalia himself doesn’t seem to believe it or at least isn’t willing to follow his own logic where it leads, because if this is true then (for example) Brown v. Board and Loving v. Virginia were both unquestionably incorrect — after all, the Constitution does not unambiguously prohibit school segregation or bans on interracial marriage, and both were well-rooted in American tradition. And yet Scalia doesn’t believe that these decisions were wrong, so obviously these logics have some limits, and it’s just a question of what these limits are.

The Iowa court forcefully argues against this not-very-credible argument that traditions of discrimination are constitutionally self-justifying. Obviously, as a threshold matter state classifications that exclude certain classes of people from access to a fundamental right raises a plausible equal protection challenge, so the question becomes whether the classification can be justified by a legitimate state interest. As the Iowa court points out, however, the state’s answer that the state’s tradition of discrimination is itself a legitimate state goal won’t fly:

First, the County argues the same-sex marriage ban promotes the “integrity of traditional marriage” by “maintaining the historical and traditional marriage norm ([as] one between a man and a woman).” This argument is straightforward and has superficial appeal. A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged. When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification. In other words, the equal protection clause is converted into a “ ‘barren form of words’ ” when “ ‘discrimination . . . is made an end in itself.’ ”

This precise situation is presented by the County’s claim that the statute in this case exists to preserve the traditional understanding of marriage. The governmental objective identified by the County—to maintain the traditional understanding of marriage—is simply another way of saying the governmental objective is to limit civil marriage to opposite-sex couples. Opposite-sex marriage, however, is the classification made under the statute, and this classification must comply with our principles of equal protection. Thus, the use of traditional marriage as both the governmental objective and the classification of the statute transforms the equal protection analysis into the question of whether restricting marriage to opposite-sex couples accomplishes the governmental objective of maintaining opposite-sex marriage.

The Court has good answers to the other assertions of interest made by the state, but this is especially powerful. And assertions that their analysis is so implausible as to not constitute “law” at all are simply unserious.