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Obama: No Victor’s Justice

Per the New York Times – and the President Elect himself – the incoming administration will only prosecute the architects & implementers of (ahem) “overzealous” Bush-era national security policies if it’s clear that “the law has been broken.” As we’ve argued before, this is the right result: as much as the righteous bloodlust is, for sure, ringing in all our ears, pursuit of criminal remedies against ex-Bush operatives would open the door to making prosecution of outgoing officials a regular part of the political game. The last thing we should want for our country is for criminal prosecution to become the due of every politician, the reward for a career of (ideally) wisely balancing severe risks (such was the course of the Roman Republic, to the point that Julius Caesar clung to power partly to avoid prosection).

While it should be clear that Cheney and other Bush administrations did not live up to the ideal of wise risk-balancing, the danger of criminalizing politics should be powerful enough to counsel against prosecution in this case. Those of you disappointed by the announcement just don’t get it: this is bigger than revenge.

Update: on a related story, Obama’s discussion of the difficulty of closing Guantanamo in his first 100 days went to the difficulty of implementing the order, not his willingness to implement it. As The Times reports, he’s liable to issue the damn thing on day one.

The Equal Protection of the Laws: Gender-”Segregated” Dorms

More than once, we’ve discussed at this site what both I, and my excellent co-author, consider to be the bright-line between extending marriage rights to gay couples, and tolerating polygamy. As far as we’re concerned, the slippery slope is no such thing, and recognition of marriage equality need not (and must not) encompass plural marriage.

Curiously, what’s generated so much debate here is a slam-dunk case in the legal world. Here’s why. Over the years, from the admittedly opaque and deceptively simplistic text of the Fourteenth Amendment -

[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

- Legal scholars and judges have inferred a two tier equal protection doctrine.  Per equal protection doctrine (in very brief), the state may “classify” most citizens without fear of denying equal protection, so long as the legislation is rational on its face. However, when classifying so as to separate citizens on the basis of race or gender, or otherwise burden “discrete & insular minorities,” ((The famous Carolene footnote four.)) the state must satisfy a higher burden of proof. Without going into too many terms of art (I’m sleepy), the state’s justification for separating based on race or gender has to be damn near convincing, and in narrow service of an important government objective. ((Lawyers out there – I know, I’m conflating intermediate & strict scrutiny. The subject as a whole is beyond the scope of this post.))

While the Supreme Court justices have yet to draw the parallel, it’s remarkably easy to extract from race and gender that trait that entitles race and gender-groups to higher constitutional protection: immutability, or, close linkage with personality. And it’s similarly easy to see that, based on its near-immutability, sexual orientation should entitle gay men & women to the same constitutional protections against arbitrary discrimination. So, (1) sexual orientation is immutable, (2) immutability historically entitles groups to heightened constitutional protection, (3) courts should evaluate legislation that discriminates on the basis of sexual orientation at a higher tier of review and, (4) such a heightened review scheme would strike any ban on same-sex marriage. Easy. The way the law is written now, same-sex marriage is a slam-dunk case, once we have a Court willing to deal with the political fallout.

The same “immutability analogy” cannot be drawn, though, in the case of polygamy. On the force of the Equal Protection Clause alone, since one’s numerical preference in marriage is not an immutable trait, the state can deny the right to plural marriage upon a rational basis. Which means, essentially, for any reason or for no reason at all. Without regard to whether current law makes sense, that’s how it is: despite political debates, legally, gay marriage is an easy “yes,” and plural marriage is an easy “no.”

Curiously, while the law makes a hard political question easy in the marriage context, the law also tends to make easy political questions incredibly hard. Here’s one: suppose a state university requires that men and women live in separate dorms. Is that an abridgment of the equal protection clause?

Politics and common sense both say no, but key elements of constitutional history scream out to the contrary. While the state can surely levy legitimate interests in defense of keeping men and women in different dorms (safety, security, privacy, discretion, and even – God help us – morality), any justification seems to whither when one draws the comparison between race and gender, and suggests that separate dorms amount to the de facto segregation and subordination of, per any of those justifications, women. Looking to constitutional history, the promise that gender-segregated dorms would be similarly equipped and furnished does not make the separation any more palatable: fifty plus years later, the phrase “separate but equal” should still ring in our ears. I don’t have any answer to this dilemma – other than, perhaps, to insist that categorization is not necessarily subordination, and to insist that the equal protection clause should only be concerned with the latter.  But, for the one woman who would prefer to live with men, or the one man who’d prefer to live with women, that’s small comfort indeed. Help?