The Weekly Sift

While the Supreme Court has been relatively quiet lately, a lot has been going on in lower courts. This week I’ll tackle the recent net neutrality and same-sex marriage cases. In future articles I plan to address cases related to the NSA, voting rights, and drug-testing welfare recipients.

Net neutrality. The headlines about this decision said things like “Verizon Wins, Net Neutrality Loses“. But the overall impact of the D. C. Court of Appeals ruling is a little more ambiguous and complicated. Reading it was like watching the tape of a football game where my team gets way ahead, but I’ve already heard that they lost. On its way to ruling in Verizon’s favor, the court trashes one Verizon argument after another. “We lose this?” I kept asking myself.

Net neutrality is one of those important-but-somewhat-technical issues that it’s hard to get the public excited about. The issue will go months at a time without making headlines, so when it comes up again even people who have read about it before are likely to say, “Wait, I know this. What is it again?” Wikipedia defines it pretty well:

Net neutrality (also network neutrality or Internet neutrality) is the principle that Internet service providers and governments should treat all data on the Internet equally, not discriminating or charging differentially by user, content, site, platform, application, type of attached equipment, and modes of communication.

The practical problem is that you don’t have a lot of choices if you want fast broadband internet access in your home. The local cable monopoly may be the only option if you aren’t near a major city. If you are, you might have a choice between Comcast and Verizon FIOS — a Coke/Pepsi choice where competition is tightly confined to battlefields that don’t rock the corporate boat too much.

In short, broadband providers have a lot of market power. And the technology has shaken out in such a way that they have the power not just to impose a bad deal on you, but also on “edge providers” of services like Netflix or Google. Comcast has its own video-on-demand service, for example, so what if it decided to block its users from accessing Netflix? Or maybe Netflix connections could be inexplicably glitchy, unless Netflix paid Comcast a big fee. (Nice service you got there. It’d be a shame if something happened to it.)

Verizon could decide to compete with Comcast by charging smaller fee (or no fee at all) so that its users got Netflix cheaper. But why not just charge the same fee, give your own on-demand service the same advantage, and make money hand-over-fist? If there were five or six broadband providers, one of the smaller ones would probably break ranks. But with two or three, probably not. (BTW: That’s the same logic why none of the larger wireless companies should be allowed to take over T-Mobile.)

Until Tuesday, FCC rules made that illegal. Those are the rules that got thrown out by the D. C. Appeals Court. But along the way, the Court rejected almost all the arguments Verizon made for why it should be allowed to do whatever it wants with its network and charge whatever the market will bear.

The relevant law is Telecommunications Act of 1996, which gave the FCC the mission to promote the spread of broadband internet access. The main argument is over how to do that: Verizon thinks that making things as profitable as possible for broadband providers (like itself) encourages the providers to build out the broadband infrastructure. Net neutrality advocates argue that letting a few big corporations essentially “own the internet” discourages the real creativity in the system, which comes from edge providers trying to create the next gotta-have-it service like Netflix or YouTube. A Verizon-owned internet will be less interesting than a net-neutrality internet, and hence will inspire less consumer demand.

In short, it’s yet another version of the eternal supply-side vs. demand-side argument.

Anyway, the TCA classifies internet companies into two bins: telecommunications carriers and information-services providers. Telecommunications carriers are regulated like the wired phone companies: They have to offer their services to everyone on a more-or-less equal basis. Information-services companies have more leeway.

The gist of the court ruling is that the FCC has classified cable companies as information-services providers, but that its net-neutrality rules regulate them like telecommunications carriers. So the FCC’s net-neutrality rules can’t stand. But — and this is the observation that snatches victory from the jaws of defeat — it’s totally within the FCC’s current powers and mandate to just reclassify the cable companies.

So net neutrality is dead. But if the FCC wants to revive it, all they have to do is issue new rules. Judge Laurence Silberman dissented from the majority opinion that the FCC has this power, but since Verizon technically “won”, they can’t appeal the ruling to the Supreme Court unless and until the FCC tries to use the power that the Court says it has.

In short, this is all a long way from over.

Same-sex marriage. A month ago, if I had to guess which two states would be the last ones to legalize same-sex marriage, I might have picked Utah and Oklahoma. Since then, though, federal judges have struck down the amendments to both state constitutions that restrict marriage to opposite-sex couples. Both judges build on the Supreme Court’s Windsor decision that struck down parts of the Defense of Marriage Act last summer, but they do it in somewhat different ways.

You may remember that while I liked the outcome of Windsor, I was no fan of Justice Kennedy’s majority opinion, which I labeled “mush” and lumped together with Chief Justice Roberts’ voting-rights-act decision in a subtle, soft-spoken article I called “This Court Sucks“.

Here’s why Kennedy’s Windsor opinion sucked. Same-sex marriage cases all revolve around these three questions:

• Does the right to marry (which the Court has often affirmed as a fundamental right protected by the Constitution) apply to same-sex couples?
• Are laws targeting gays and lesbians (like laws targeting blacks or women) inherently suspicious as vehicles for irrational prejudice, and so subject to some form of heightened scrutiny from the courts?
• Whatever standard of scrutiny you choose, do the laws serve legitimate purposes that outweigh the limitations they put on the couples’ rights?

Kennedy dodged all that. He waxed eloquent for a while on the plight of same-sex couples and the unreasonable prejudices against them, and then announced that DOMA was struck down.

That’s exactly the result I want, Justice Kennedy, but how did you get there? The purposes Congress imagined DOMA serving — whatever they were; you don’t list them or examine them — don’t “overcome”, but are they failing to overcome a high standard or a low standard?

The victims of Kennedy’s judicial malpractice are lower court judges like Terence Kern and Robert Shelby, who have been left to rule on similar-but-not-identical cases without any clear guidance. In his Oklahoma ruling, Kern avoids technical legal terms like sucks and mush, but makes more-or-less the same point I did:

The Windsor Court did not apply the familiar equal protection framework, which inquires as to the applicable level of scrutiny and then analyzes the law’s justifications. … Thus, Windsor does not answer whether a state may prohibit same-sex marriage in the first instance. Nor does Windsor declare homosexuals a suspect class or discuss whether DOMA impacted a fundamental right, which would have provided this Court with a clear test .

So Kern does his best to puzzle out the WWJKD question:

This Court has gleaned and will apply two principles from Windsor.

Ordinarily, a lower-court judge just “applies” principles from a higher-court ruling, rather than having to “glean” them first.

Lacking clear guidance, Kern avoids declaring either a fundamental right to same-sex marriage or that gays and lesbians are a protected class. That means that Oklahoma’s same-sex marriage ban only needs to have “rational relation to some legitimate end”.

Shelby took a somewhat different path to the same destination in the Utah case. He made an insightful observation about what exactly has changed in recent years: not the Constitution, but our understanding of what it means to be gay or lesbian.

The State accepts without contest the Plaintiffs’ testimony that they cannot develop the type of intimate bond necessary to sustain a marriage with a person of the opposite sex. … Forty years ago, these assertions would not have been accepted by a court without dispute. In 1973, the American Psychiatric Association still defined homosexuality as a mental disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSM-II), and leading experts believed that homosexuality was simply a lifestyle choice. … The State presents no argument or evidence to suggest that the Plaintiffs could change their identity if they desired to do so. Given these undisputed facts, it is clear that if the Plaintiffs are not allowed to marry a partner of the same sex, the Plaintiffs will be forced to remain unmarried. The effect of Amendment 3 is therefore that it denies gay and lesbian citizens of Utah the ability to exercise one of their constitutionally protected rights.

So Shelby is in a position to demand a higher standard of the state, that their ban on same-sex marriage is “narrowly tailored to serve a compelling state interest.” But ultimately, both Kern and Shelby end up arguing that the ban does not satisfy even the lowest standard, the rational-basis test.

In each case, the state trotted out the same justifications: that the state has an interest in promoting “responsible procreation” among “naturally procreative” couples, and that opposite-sex couples provide the ideal setting for raising childrent.

Both judges make basically the same counter-argument, but Shelby says it best:

[T]he State poses the wrong question. The court’s focus is not on whether extending marriage benefits to heterosexual couples serves a legitimate governmental interest.  No one disputes that marriage benefits serve not just legitimate, but compelling governmental interests, which is why the Constitution provides such protection to an individual’s fundamental right to marry. Instead, courts are required to determine whether there is a rational connection between the challenged statute and a legitimate state interest. … The State of Utah has provided no evidence that opposite-sex marriage will be affected in any way by same-sex marriage. In the absence of such evidence, the State’s unsupported fears and speculations are insufficient to justify the State’s refusal to dignify the family relationships of its gay and lesbian citizens. …

Applying the law as it is required to do, the court holds that Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.

Both cases are being appealed and will undoubtedly end up before the Supreme Court. But what’s clear from the rulings is that the opponents of same-sex marriage will have to come up with a new set of arguments if they hope to prevail: It’s not enough to argue that opposite-sex marriage is good; they’ll need to argue that same-sex marriage is bad, which they have not done and may not be able to do, particularly when the person they need to convince is the Supreme Court’s swing vote, Justice Kennedy.