The Proposition 8 decision and the law market

Cite this Article
Larry Ribstein, The Proposition 8 decision and the law market, Truth on the Market (August 05, 2010),

This market/business oriented blog will only contribute a few of the zillions of words that will be written on this case. I will, of course, focus on the market aspects – that is, the market for law.

I have previously discussed same sex marriage in the context of the U.S. federal system – in a 2008 post on Prop 8, my initial article (with Buckley) on the law market for marriage, a more recent article analyzing marriage as a standard form contract, and my book with O’Hara, The Law Market, chapter 8 of which analyzes the market for marriage law. My blog post summarizes that book’s theory as it relates to marriage:

Those favoring a particular legal regime can further their interests not just by lobbying a particular legislature, but also by “shopping” for law in other jurisdictions, including by getting married in the relevant state. These other jurisdictions have an incentive to supply law to attract residents, ceremonies, legal work. Even non-supplier jurisdictions have an incentive to enforce the foreign law because the “shoppers” (including affluent and productive same sex couples) can avoid non-recognizing states. We’ve seen this competition play out, among other areas, in corporations and commercial contracts, and it is happening in Europe as well as the US.

Now of course the Law Market shouldn’t trump the constitution. The problem is that the constitution just isn’t as clear on same sex marriage as it is, say, on slavery. I would have voted against Prop 8. I don’t think much of the arguments against same sex marriage. But does the constitution compel others to accept this view?

As argued in my “standard form” article, I would leave this knotty question to the Law Market (footnotes omitted):

[T]he relevant question is whether the process is likely in the long run to disregard rights that deserve recognition. A decision invalidating laws against same sex marriage would leave many questions unanswered concerning potential differences between same sex and heterosexual relationships. Agnosticism is particularly important for family law, given the clash of normative views and the difficulty of getting reliable data. Among other things, there are questions about the optimal mix of standard forms that each state should offer, and the nature of the restrictions on who can use each form. * * * [A] choice-of-law approach lets states experiment with various approaches. Courts and legislators can observe the results, particularly as children grow up under different regimes. Evolution also permits the law to adapt incrementally to unpredictable future events and changing mores, provides feedback as to alternatives, and minimizes the cost of mistake compared to a Supreme Court decree.

So where does the law market stand with same sex marriage? According to this website, a significant majority of 29 states have actually gone to the trouble of adopting specific laws against same sex marriage. Another 12 have traditional marriage laws on the books defining marriage as one man and one woman. The states authorizing same sex marriage are limited to an enclave in the northeast (NH, VT, CT, MA) plus DC and Iowa. California ultimately put itself in the anti-same-sex-marriage position through Prop 8, which its supreme court let stand.

Now a federal judge has ruled that “Proposition 8 deprives [plaintiffs] of due process and of equal protection of the laws contrary to the Fourteenth Amendment and that its enforcement by state officials violates 42 USC § 1983.” The court reasoned:

For the reasons stated in the sections that follow, the evidence presented at trial fatally undermines the premises underlying proponents’ proffered rationales for Proposition 8. An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

In other words, a judge in a San Francisco court has ruled that plaintiffs’ experts should decide this case rather than California’s voters.

Ironically, I suspect that this issue ultimately would have played out in favor of same sex marriage. Not long ago same sex marriage was recognized nowhere. The tide is turning despite the fervent efforts of religious groups and others. Although it will take time, the law market eventually will follow attitudes evolving toward homosexuality and accept same sex marriage. State statutes will clarify rights at least within states, and state laws likely will evolve toward uniformity. Even in California, a replay of Prop 8 by ballot rather than court decision likely would come out different today.

Instead, we are likely to get a Supreme Court decision that either affirms and fuels decades of resentment and confusion about exactly which state family laws are valid, or reverses and stalls the momentum of the same sex marriage movement. I am not sure even proponents of same sex marriage should celebrate either outcome.