Henry J. Miller Lecture Series: Old Reasons, New Reasons, No Reasons
| Publication year | 2010 |
Georgia State University Law Review
Article 2
3-13-2012
Henry J. Miller Lecture Series: Old Reasons, New Reasons, No Reasons
Pamela Karlan
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Karlan, Pamela (2010) "Henry J. Miller Lecture Series: Old Reasons, New Reasons, No Reasons," Georgia State University Law Review: Vol. 27: Iss. 4, Article 2.
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OLD REASONS, NEW REASONS, NO REASONS
Pamela S. Karlan*
It has long been the law in cases where rationality review applies that "[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it."1 Nowhere have the courts been more imaginative than in conceiving justifications for laws that deal with the family, gender roles, and sexuality. What was true for Shakespeare's weaver Nick Bottom in the woods outside Athens remains true: "[R]eason and love keep little company together nowadays."
In this essay, I explore two aspects of judicial review as it relates to the family, gender roles, and sexuality. The first is descriptive, albeit implicitly critical. In a number of areas, describing what happens as "rationality review"—let alone as "heightened scrutiny"—is a bit of a misnomer: courts seem to be driven as much by unexamined intuitions and deeply felt sentiment as by anything rational. The second is speculative. I ask whether the general principle that it is "entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature" should still hold when the government affirmatively disclaims a particular reason. I suggest that the general principle underlying rationality review—deference to the policy choices of the political process—cuts against courts upholding a practice on the basis of a justification the government forswears.
* Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School. I delivered an earlier version of this essay as the 2011 Miller Lecture at Georgia State University, as the 2010 Hon. Betty Roberts Talk at Lewis and Clark Law School, and at a lunchtime workshop at the University of Denver Sturm College of Law. In thinking about the issues I discuss here, I also benefitted greatly from discussions with Viola Canales, Jane Schacter, and my Constitutional Law class.
1. McGowan v. Maryland, 366 U.S. 420, 426 (1961).
2. William Shakespeare, A Midsummer's Night Dream, Act III, sc. i.
3. FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993).
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I. The Constitution of Parenthood
Family arrangements are fundamental to people's lives. So it is no surprise that the legal rules that affect them prompt a range of litigation. As a matter of formal doctrine, courts adjudicate these claims under a wide variety of legal standards. Some claims receive heightened scrutiny, either because a fundamental right is at issue4 or because a disfavored classification is used.5 But even when doctrine calls for heightened scrutiny, the analysis judges offer often rests on the kind of hypothetical reasoning that rationality review expressly contemplates.
To get a sense of just how forgiving rationality review can be, it is hard to imagine a better example than Kotch v. Board of River Port Pilot Commissioners.6 For many years, Louisiana had a system for licensing river pilots for the port of New orleans that required applicants first to serve a six-month apprenticeship under one of the incumbent pilots. The pilots generally chose only their "kinsmen" for these career-enabling apprenticeships. The plaintiffs in Kotch brought suit, alleging that the result of Louisiana's law was to deny them an opportunity to become pilots, in violation of the equal protection clause.
By a 5-4 vote, the Supreme Court upheld the Louisiana system. Justice Hugo Black's opinion for the Court offered a romanticized account of life on the Mississippi. Pilotage, he explained, was "a
4. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000) (applying heightened scrutiny to a Washington state law that gave visitation rights over a parent's objection); Zablocki v. Redhail, 434 U.S. 374, 383-88 (1978) (using heightened scrutiny to strike down a Wisconsin provision denying persons who were not meeting their child support obligations the right to marry); Moore v. City of East Cleveland, 431 U.S. 494 (1977) (using heightened scrutiny to strike down a zoning law as applied to the ability of relatives to live together).
5. See, e.g., Palmore v. Sidoti, 466 U.S. 429 (1984) (overturning a child custody decision that denied the mother custody because she was involved in an interracial relationship as impermissible racial discrimination); Califano v. Goldfarb, 430 U.S. 199 (1977) (striking down a federal survivors' benefits rule that treated widows and widowers differently as impermissible sex discrimination).
6. 330 U.S. 552 (1947). Interestingly, the last time the Supreme Court cited the decision was in Romer v. Evans, 517 U.S. 620 (1995), where the Court recognized that the law "seem[ed] unwise or work[ed] to the disadvantage of a particular group" and "the rationale for it seem[ed] tenuous." Id. at 632 (citing Kotch). Notably, in Kotch itself, the Court took a far rosier view of the challenged law, expressing no reservation about the wisdom of the state's choice.
7. See Kotch v. Board of River Port Pilot Comm'rs, 209 La. 737, 746 (1946).
2011] OLD REASONS, NEW REASONS, NO REASONS 875
highly personalized calling," requiring "a detailed and extremely intimate, almost intuitive, knowledge of the weather, waterways and conformation of the harbor or river." Growing up in the distinctive "pilot towns" on the river, young men, he declared, "have an opportunity to acquire special knowledge of the weather and water hazards of the locality and seem to grow up with ambitions to become pilots in the traditions of their fathers, relatives, and neighbors."9
The Court recognized that it was faced with straightforward nepotism, but it upheld the law on the hypothesis that Louisiana might have concluded that nepotism served the public interest:
We can only assume that the Louisiana legislature weighed the obvious possibility of evil against whatever useful function a closely knit pilotage system may serve. Thus the advantages of early experience under friendly supervision in the locality of the pilot's training, the benefits to morale and esprit de corps which family and neighborly tradition might contribute, the close association in which pilots must work and live in their pilot communities and on the water, and the discipline and regulation which is imposed to assure the State competent pilot service after appointment, might have prompted the legislature to permit Louisiana pilot officers to select those with whom they would
serve.
Well, maybe. But this sort of nepotism was hardly restricted to exceptional vocations like river pilot. In fact, labor unions often adopted similar policies in fields that involved no specialized lore or public purpose.11 And they did so for the obvious restraint-of-trade
8. Kotch, 330 U.S. at 558.
9. Id. at 559.
10. Id. at 563.
11. For example, Local 53, International Association of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047, 1050 (5th Cir. 1969), involved a Title VII lawsuit against a Louisiana-based union local that restricted membership to applicants who had "four years of experience as an 'improver' or 'helper' member of the union, but improver membership in the union is restricted to sons or close relatives living in the households of members."
876 GE ORGIA STATE UNIVERSITY LAW REVIEW [Vol. 27:4
advantage exclusion confers. Indeed, even the Supreme Court ultimately came to describe Louisiana's river pilot policy as
"unwise," and its "rationale" as "tenuous."
If Kotch represents a romanticization of fathers and sons, then a
later case, Nguyen v. INS represents a staggering blindness. Tuan Nguyen was born in 1969 in Vietnam....
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