No one will ever accuse Slate’s Mark Joseph Stern of measured and dispassionate legal analysis. Last Wednesday, just two days after labeling Justice Gorsuch “an uncompromising reactionary and an unmitigated disaster for [euphemism alert!] the progressive constitutional project,” Stern posted a short essay that condemned Gorsuch’s dissent in Pavan v. Smith as “an amateurish effort to justify anti-gay discrimination through deeply dishonest analysis and an outright untruth.” As it happens, Stern’s pejorative labels apply much more aptly to his own piece.
First, some brief background:
An Arkansas statute (§ 20-18-401(f)(1)) sets forth the general rule that if a mother is married at the time she gives birth to a child, “the name of the husband shall be entered on the [birth] certificate as the father of the child.” In their certiorari petition, “two married same-sex couples” who “conceived their children through anonymous sperm donation” argued that the statute’s failure to entitle them to have the names of both members of the couple on the birth certificate violated their constitutional rights. The Arkansas supreme court had ruled against them on this claim.
In Pavan, a per curiam majority summarily reversed the ruling below by the Arkansas supreme court. That is, the majority not only granted the petition for certiorari; it also simultaneously reversed the ruling below without allowing the usual briefing and oral argument before the Court.
The actual divide between the majority and the three-justice dissent in Pavan was over whether the ruling below by the Arkansas supreme court was a proper candidate for summary reversal. Gorsuch’s dissent (joined by Justices Thomas and Alito) is framed entirely around the standard for summary reversal and never actually expresses a conclusion on the constitutional question the case presents. Here’s how the dissent begins:
Summary reversal is usually reserved for cases where “the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.” Schweiker v. Hansen, 450 U. S. 785, 791 (1981) (Marshall, J., dissenting). Respectfully, I don’t believe this case meets that standard.
And in his last full paragraph, Gorsuch concludes that “it seems far from clear what here warrants the strong medicine of summary reversal.”
Some observations on Stern’s attack:
1. Stern doesn’t even mention that Pavan involved a summary reversal, much less that the question whether summary reversal was proper was at the core of the dissent’s argument or that the dissent didn’t actually express a bottom-line judgment on the constitutional question. How much easier it is just to fling the “anti-gay” epithet.
2. Here’s Stern’s charge of the “outright untruth” (or, in the words of the piece’s title, the “huge factual error”) that Gorsuch supposedly committed:
[Gorsuch] wrote that the court should have dismissed the appeal because “in this particular case and all others of its kind, the state agrees, the female spouse of the birth mother must be listed on birth certificates too.” What? That issue lay at the heart of this case—but Gorsuch has it exactly backward: Arkansas explicitly refused to list “the female spouse of the birth mother” on birth certificates. That’s how the case wound up at the Supreme Court in the first place. [Emphasis in original.]
Stern’s account is badly confused and confusing, largely because he hides from his readers the actual course of developments in the case. Before the Arkansas supreme court, the solicitor general of Arkansas specifically conceded that another statute that provides that a “child born by means of artificial insemination to a woman who is married at the time of the birth of the child shall be presumed to be the child of the woman giving birth and the woman’s husband” (emphasis added) “fails equal protection under the plain old rational basis standard” and that the court, as a remedy, should “either read or revise the word husband in the statute to mean spouse.” (Appendix to certiorari petition at 82a-83a; see also Arkansas brief in opposition to certiorari petition at 1-2 (repeating concession).) As Gorsuch notes, the state also reads this statute to “control how birth certificates are completed in cases of artificial insemination.”
Further, the couples in the case had—pursuant to an order of a lower court—already received birth certificates listing both members of the couple. As the Arkansas supreme court pointed out (p. 13), the state was not challenging on appeal the issuance of those birth certificates. (See also Arkansas brief in opposition to certiorari petition at I, 1, 7, 13, 25 (repeatedly describing such birth certificates as “valid”).)
3. As for Gorsuch’s purportedly “deeply dishonest analysis,” Stern writes:
[Gorsuch] insisted [petitioners] should have challenged the “artificial insemination statute,” not the state policy refusing to list same-sex parents on birth certificates. This reasoning makes no sense. The plaintiffs cited the artificial insemination statute only to prove that Arkansas already listed non-biological parents on birth certificates. They had no desire to overturn it; they merely used it as evidence that Arkansas was not extending a key marital benefit to same-sex couples. Did Gorsuch simply not understand this extremely basic aspect of the case? [Emphasis in original.]
It’s Stern who misunderstands Gorsuch’s argument. Gorsuch did not “insist” that petitioners should have challenged the other statute. He instead presented the state’s position that it should have done so, in support of his broader position that summary reversal wasn’t proper given the complexities of the case. In other words, the petitioners and the state had a fundamental disagreement about the meaning and import of this other statute. Stern simply takes the petitioners’ side without even informing his readers of the state’s contrary position.
Perhaps the petitioners’ position on this matter is correct. (Gorsuch never says otherwise.) Perhaps not. At the very least, this dispute over the meaning—not the constitutionality—of a provision of state law is one that the Court is ill-positioned to resolve. (The Court’s usual practice is to recognize a state’s highest court as the authoritative expositor of what state law means. The Arkansas supreme court hasn’t yet spoken to this question. What weight, if any, it would give to the executive branch’s reading is unclear.)
In sum, Stern badly fails to engage the actual bases of Justice Gorsuch’s dissent.