Pamela Karlan Speaks at Second Annual Women in the Law Program
by Jill Tanner ’88, Presiding Magistrate, Oregon Tax Court
On March 9, the Law School welcomed Pamela Karlan, the Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford Law School, as the second Honorable Betty Roberts Women in the Law speaker. Karlan’s remarks, titled “Old Reasons, New Reasons, and No Reasons,” were delivered to an audience of attorneys, professors, and law students.
Karlan focused on two aspects of judicial review as it relates to the family, gender roles, and sexuality. “In a number of areas, describing what’s going on 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,” she said.
“I [also] 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 a state affirmatively disclaims a particular reason. And I ask whether the analysis should change if the challenged statute is the product of direct democracy.”
Karlan began with a comment about the U.S. Supreme Court rationality review in Kotch v. Board of River Port Pilot Commissioners for Port of New Orleans, 67 S. Ct. 910 (1947). She pointed out that the Court concluded that state statutes regulating the appointment of river port pilots (with nepotism being the ultimate outcome) did not violate the 14th Amendment equal protection clause because the occupation of a river port pilot is a “highly personalized calling.” Karlan concluded that the Court hypothesized a reason while romanticizing the “calling.”
Next, she moved to the Court’s decision in Nguyen v. Immigration and Naturalization Service (Nguyen), 121 S. Ct. 2053 (2001), which held that a statute imposing an affirmative written acknowledgment of paternity prior to the age of 18 to claim citizenship for a
child born abroad and out of wedlock to a U.S. citizen father did not violate the equal protection guarantee of the Fifth Amendment. There is no similar statute requiring acknowledgment be made by the mother. In reaching its holding, Karlan concluded that the Court overlooked the real relationship between the son and his father and in effect furthered a stereotype of a nurturing mother and absent father.
She then took up Gonzales v. Carhart (Carhart), 127 S. Ct. 1610 (2007), in which the Court concluded the Partial-Birth Abortion Ban Act of 2003 “recognizes that respect for human life finds an ultimate expression in a mother’s love for her child” in reaching its holding that “on its face [the Act does not] impose an unconstitutional substantial obstacle on women seeking late-term, but previability, abortions” and it furthers “legitimate congressional purposes.” To sum up the Nguyen and Carhart discussion, Karlan quoted U.S. poet Robert Pinsky: “A country is the things it wants to see.”
Karlan’s intellectually stimulating presentation concluded with a discussion of recent same-sex marriage cases, including Hernandez v. Robles (Robles), 855 N.E. 2d 1 (2006). In Robles, the New York Court of Appeals held that the state’s Domestic Relations Law, which prohibited same-sex marriage, met the rational basis test, did not violate due process, and did not violate equal protection. In explaining the rational basis prong of its holding, the court concluded that the legislature had “rationally decided that, for the welfare of children, it was more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships, and that it was better, other things being equal, for children to grow up with both a mother and a father.”
The Honorable Betty Roberts Women in the Law Program is made possible through an endowment by Portland law firm Williams Love O’Leary & Powers.