MOOT COURT REPORT: Waddling Thunder

[I don't make up these blog pseudonyms. I just report 'em. --Eve]

The Ames Moot Court Competition is held at Harvard Law School every year. Traditionally, a Supreme Court Justice arrives for the final, along with two judges from the circuit courts of appeal. This year, the judges were Ruth Bader Ginsburg, of the US Supreme Court, Richard A. Paez, of the US Court of Appeals for the Ninth Circuit, and Reena Raggi, of the US Court of Appeals for the Second Circuit. The cases for the Ames are invented, but usually discuss a major topic of the day. Accordingly, this year's case tackled the constitutional issue of gay marriage, in an action called Amy Annis, et al v. The State of Ames and the Ames Department of Health. ...

The argument for Petitioners on Due Process covered several major topics. Of course, the chief problem for the case on that side is one of line drawing--if Loving v. Virginia said that bans on interracial marriage were illegal because marriage was a fundamental right, and Lawrence v. Texas tells us that being homosexual is a protected privacy right, what keeps someone who wants to marry their both grandmother and their sister from coming to the court for redress? I thought respondents gave as good an answer that exists on that point--polygamists aren't being denied the right to marry but the "right to marry infinite people". What gays and lesbians are asking for is fundamentally different than that. The Court didn't push on the pure incest case, so I'm not sure what Petitioners response would have been.

Justice Ginsburg drove at one point on why Petitioners were bothering the Court about this question. Couldn't the legislature do as well? Respondents answered that fundamental rights were subject to no election. Ginsburg followed by asking about the international context--certainly, gay marriage has been legalized around the world, she noted, but almost always by legislatures. Did respondent know of any country besides Canada to legalize gay marriage through the Courts? Respondents answered that they did not, but that this didn't change their argument on fundamental rights.

There were two main issues on the Equal Protection side of Petitioners argument, as one might expect. First, the question was whether the Court should apply some sort of heightened rational basis scrutiny. Second, regardless of which standard of review the Court was to apply, the Respondents had to show that the State's reasons for banning gay marriage had no rational basis.

There was considerable debate between Justice Ginsburg and Petitioners about the first of these points. Obviously, the position of Petitioners was that there was such a thing as heightened rational basis scrutiny. Justice Ginsburg pursued them, asking them which case supported their position. Petitioners conceded that no specific case held as much, but that the Supreme Court practice betrayed a difference between the kind of rational basis scrutiny applied in economic regulation cases, and that applied in cases where, as their brief put it, "a classification significantly interferes with important personal interests and relationships". Romer was thought to be the chief of these cases. Justice Ginsburg pursued again--in Romer, she said, the problem was denial of the classes' right to the political process. They couldn't just go to the legislature, because discrimination had been embedded in the state Constitution--here, the Justice continued, the obvious remedy was to go to the legislature. Petitioners responded, I believe, by noting that the plaintiffs in Romer could indeed go to the legislature, but that the effort was just harder. And in any case, they noted, the right to marriage shouldn't rely on efforts before the legislature.

On the second point, both Judge Raggi and Paez pressed Petitioners on their definition of rational basis. The former asked Petitioners why the imperative of bringing order to an institution that produces disorder, such as marriage, was not a rational basis. The rational basis, she said, wasn't the protection of procreation, but the imposition of order. Judge Paez at one point followed by asking whether tradition itself was not a rational basis. Petitioners were able to respond to that point by wielding Loving--tradition also forbade inter-race marriage, and yet the Court ruled bans on such marriage unconstitutional in Loving.

This brought the Respondents to the podium, first to argue the due process point. The obvious problem for respondents is Loving. How can it possibly be different than the current case, several judges wanted to know? There really are only two answers available to Respondents. ...The second, which Respondents did argue, is that Loving differs from the current case because of the state's emphasis on procreation. Respondents were pushed hard by several judges on the question of whether marriage itself, devoid of procreation, was a fundamental right or not. Their answer was again to put the discussion in the context of procreation. As their brief explains it, "[the pertinent] enquiry is not whether a fundamental right to marry exists, but whether that long recognized right includes the right to marry a same-sex partner". Justice Ginsburg, I believe, raised the inevitable question of the sterile marrieds, drawing an unclear response. Judge Raggi leaned in for the kill by putting respondents on the spot--if a state drafted a law forbidding marriage between obviously sterile adults, but allowed same sex partners to marry who were committed to using a third party to have children, would that be constitutional? Stuck between a rock and a hard place, Respondent agreed that it would--but that other constitutional concerns would keep the state from passing such a law.

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posted by Eve at 9:03 PM VOTE

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