Irizarry, Milagros v. Bd Educ City Chicago , 251 F.3d 604 ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3216
Milagros Irizarry, individually and on
behalf of all similarly situated employees
of the Chicago Board of Education,
Plaintiff-Appellant,
v.
Board of Education of the
City of Chicago,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 6991--Joan B. Gottschall, Judge.
ARGUED JANUARY 8, 2001--Decided May 15, 2001
Before Posner, Manion, and Kanne, Circuit
Judges.
Posner, Circuit Judge. Although Milagros
Irizarry has lived with the same man for
more than two decades and they have two
(now adult) children, they have
nevermarried. As an employee of the
Chicago public school system, she
receives health benefits but he does not,
even though he is her "domestic partner"
(the term for persons who are cohabiting
with each other in a relationship similar
to marriage), though he would if he were
her husband. In July 1999, the Chicago
Board of Education extended spousal
health benefits to domestic partners--but
only if the domestic partner was of the
same sex as the employee, which excluded
Irizarry’s domestic partner, an exclusion
that she contends is unconstitutional.
Besides being of the same sex,
applicants for domestic-partner status
must be unmarried, unrelated, at least 18
years old, and "each other’s sole
domestic partner, responsible for each
other’s common welfare." They must
satisfy two of the following four
additional conditions as well: that they
have been living together for a year;
that they jointly own their home; that
they jointly own other property of
specified kinds; that the domestic
partner is the primary beneficiary named
in the employee’s will. Although the
board’s purpose in entitling domestic
partners so defined to spousal benefits
was to extend such benefits to homosexual
employees, homosexual marriage not being
recognized by Illinois, 750 ILCS 5/212,
5/213.1, entitlement to the benefits does
not require proof of sexual orientation.
Irizarry’s domestic partner satisfies
all the conditions for domestic-partner
benefits except being of the same sex.
She argues that the board’s policy denies
equal protection and, secondarily, due
process. The district court dismissed her
suit for failure to state a claim.
The board of education makes two
arguments for treating homosexual couples
differently from unmarried heterosexual
couples. First, since homosexual marriage
is not possible in Illinois (or anywhere
else in the United States, though it is
now possible in the Netherlands), and
heterosexual marriage of course is, the
recognition of a domestic-partnership
surrogate is more important for
homosexual than for heterosexual couples,
who can obtain the benefits simply by
marrying. Second, the board wants to
attract homosexual teachers in order to
provide support for homosexual students.
Cf. Crawford v. City of Chicago, 710
N.E.2d 91, 98-99 (Ill. App. 1999).
According to its brief, the board
"believes that lesbian and gay male
school personnel who have a healthy
acceptance of their own sexuality can act
as role models and provide emotional
support for lesbian and gay students. . .
. They can support students who are
questioning their sexual identities or
who are feeling alienated due to their
minority sexual orientation. They can
also encourage all students to be
tolerant and accepting of lesbians and
gay males, and discourage violence
directed at these groups."
This line of argument will shock many
people even today; it was not that long
ago when homosexual teachers were almost
universally considered a public menace
likely to seduce or recruit their
students into homosexuality, then
regarded with unmitigated horror. The
plaintiff does not argue, however, that
the Chicago Board of Education is
irrational in having turned the
traditional attitude toward homosexual
teachers upside down. It is not for a
federal court to decide whether a local
government agency’s policy of tolerating
or even endorsing homosexuality is sound.
Even if the judges consider such a policy
morally repugnant--even dangerous--they
may not interfere with it unless
convinced that it lacks even minimum
rationality, which is a permissive
standard. It is a fact that some
schoolchildren are homosexual, and the
responsibility for dealing with that fact
is lodged in the school authorities, and
(if they are public schools) ultimately
in the taxpaying public, rather than in
the federal courts.
The efficacy of the policy may be
doubted. Although it had been in effect
for a year and a half when the appeal was
argued, only nine employees out of some
45,000 had signed up for domestic-partner
benefits and none of the nine indicated
whether he or she was homosexual; they
may not all have been, as we shall see--
perhaps none were. Nor is there any
indication that any of the nine are new
employees attracted to teach in the
Chicago public schools by the
availability of health benefits for same-
sex domestic partners. Maybe it’s too
early, though, to assess the efficacy of
the policy. No matter; limited efficacy
does not make the policy irrational--not
even if we think limited efficacy
evidence that the policy is more in the
nature of a political gesture than a
serious effort to improve the lot of
homosexual students--if only because with
limited efficacy comes limited cost.
Because homosexuals are a small fraction
of the population, because the continuing
stigma of homosexuality discourages many
of them from revealing their sexual
orientation, and because nowadays a
significant number of heterosexuals
substitute cohabitation for marriage in
response to the diminishing stigma of
cohabitation, extending domestic-partner
benefits to mixed-sex couples would
greatly increase the expense of the
program.
Irizarry argues that the child of an
unmarried couple ought equally to be
entitled to the mentoring and role-model
benefits of having teachers who live in
the same way as the student’s parents do.
Cost considerations to one side, the
argument collides with a nationwide
policy in favor of marriage. True, it is
no longer widely popular to try to
pressure homosexuals to marry persons of
the opposite sex. But so far as
heterosexuals are concerned, the evidence
that on average married couples live
longer, are healthier, earn more, have
lower rates of substance abuse and mental
illness, are less likely to commit
suicide, and report higher levels of
happiness--that marriage civilizes young
males, confers economies of scale and of
joint consumption, minimizes sexually
transmitted disease, and provides a
stable and nourishing framework for child
rearing--see, e.g., Linda J. Waite &
Maggie Gallagher, The Case for Marriage:
Why Married People Are Happier,
Healthier, and Better Off Financially
(2000); David Popenoe, Life without
Father: Compelling New Evidence That
Fatherhood and Marriage Are Indispensable
for the Good of Children and Society
(1996); George W. Dent, Jr., "The Defense
of Traditional Marriage," 15 J.L. & Pol.
581 (1999), refutes any claim that
policies designed to promote marriage are
irrational. The Chicago Board of
Education cannot be faulted, therefore,
for not wishing to encourage heterosexual
cohabitation; and, though we need not
decide the point, the refusal to extend
domestic-partner benefits to heterosexual
cohabitators could be justified on the
basis of the policy favoring marriage for
heterosexuals quite apart from the
reasons for wanting to extend the spousal
fringe benefits to homosexual couples.
Of course, self-selection is important;
people are more likely to marry who
believe they have characteristics
favorable to a long-term relationship.
Lee A. Lillard & Constantijn W.A. Panis,
"Marital Status and Mortality: The Role
of Health," 33 Demography 313 (1996); Lee
A. Lillard, Michael J. Brien & Linda J.
Waite, "Premarital Cohabitation and
Subsequent Dissolution: A Matter of Self-
Selection?" 32 Demography 437 (1995). But
the Chicago Board of Education would not
be irrational (though it might be
incorrect) in assigning some causal role
to the relationship itself. Linda J.
Waite, "Does Marriage Matter?" 32
Demography 483, 498-99 (1995), finds that
cohabitants are much less likely than
married couples to pool financial
resources, more likely to assume that
each partner is responsible for
supporting himself or herself
financially, more likely to spend free
time separately, and less likely to agree
on the future of the relationship. This
makes both investment in the relationship
and specialization with this partner much
riskier than in marriage, and so reduces
them. Whereas marriage connects
individuals to other important social
institutions, such as organized religion,
cohabitation seems to distance them from
these institutions.
Irizarry and her domestic partner may,
given the unusual duration of their
relationship, be an exception to general
izations about the benefits of marriage.
We are not aware of an extensive
scholarly literature comparing marriage
to long-term cohabitation. This may be
due to the fact that long-term
cohabitation is rare--only ten percent of
such relationships last for five years or
more, Pamela J. Smock, "Cohabitation in
the United States: An Appraisal of
Research Themes, Findings, and
Implications," 26 Ann. Rev. Sociology 1
(2000). But there is evidence that the
widespread substitution of cohabitation
for marriage in Sweden has given that
country the highest rate of family
dissolution and single parenting in the
developed world. David Popenoe,
Disturbing the Nest: Family Change and
Decline in Modern Societies 173-74
(1988). It is well known that divorce is
harmful to children (see Jonathan Gruber,
"Is Making Divorce Easier Bad for
Children? The Long Run Implications of
Unilateral Divorce," NBER Working Paper
No. 7968 (Oct. 2000), for a survey of the
evidence), and presumably the same is
true for the dissolution of a
cohabitation--and a cohabitation is more
likely to dissolve than a marriage. True,
Irizarry’s cohabitation has not
dissolved; but law and policy are based
on the general rather than the
idiosyncratic, as the Supreme Court noted
with reference to other benefits tied to
marital status in Califano v. Jobst, 434
U.S. 47, 53-54 (1977). Nor is it entirely
clear that this couple ought to be
considered an exception to the general
concern with heterosexuals who choose to
have a family outside of marriage. For
when asked at argument why the couple had
never married, Irizarry’s counsel replied
that he had asked his client that
question and she had told him that "it
just never came up." There may be good
reasons why a particular couple would not
marry even after producing children, but
that the thought of marriage would not
even occur to them is disquieting.
The Lambda Legal Defense and Education
Fund has filed an amicus curiae brief
surprisingly urging reversal--
surprisingly because Lambda is an
organization for the promotion of
homosexual rights, and if it is the law
that domestic-partnership benefits must
be extended to heterosexual couples, the
benefits are quite likely to be
terminated for everyone lest the
extension to heterosexual cohabitors
impose excessive costs and invite
criticism as encouraging heterosexual
cohabitation and illegitimate births and
discouraging marriage and legitimacy. But
Lambda is concerned with the fact that
state and national policy encourages
(heterosexual) marriage in all sorts of
ways that domestic-partner health
benefits cannot begin to equalize. Lambda
wants to knock marriage off its perch by
requiring the board of education to treat
unmarried heterosexual couples as well as
it treats married ones, so that marriage
will lose some of its luster.
This is further evidence of the
essentially symbolic or political rather
than practical significance of the
board’s policy. Lambda is not
jeopardizing a substantial benefit for
homosexuals because very few of them want
or will seek the benefit. In any event,
it would not be proper for judges to use
the vague concept of "equal protection"
to undermine marriage just because it is
a heterosexual institution. The desire of
the board of education to increase the
employment of homosexual teachers is
admittedly a striking manifestation of
the sexual revolution that has character
ized, some would say convulsed, the
United States in the last forty years.
The courts did not try to stop the
revolution. On the contrary, they spurred
it on, most pertinently to this case by
their decisions removing legal
disabilities of birth out of wedlock,
e.g., Jimenez v. Weinberger, 417 U.S. 628(1974); Gomez v. Perez, 409 U.S. 535(1973) (per curiam); Weber v. Aetna
Casualty & Surety Co., 406 U.S. 164(1972); Glona v. American Guarantee &
Liability Insurance Co., 391 U.S. 73(1968); Levy v. Louisiana, 391 U.S. 68(1968), disabilities that if they still
existed might have induced Ms. Irizarry
and the father of her children to marry
in order to remove those disabilities
from their children. Likewise relevant
are cases such as Stanley v. Illinois,
405 U.S. 645 (1972), that confer
constitutional rights on unwed fathers.
But no court has gone so far as to deem
marriage a suspect classification because
government provides benefits to married
persons that it withholds from cohabiting
couples. That would be a bizarre
extension of case law already criticized
as having carried the courts well beyond
the point at which the Constitution might
be thought to provide guidance to social
policy.
To the board’s argument that it has
extended spousal benefits to the domestic
partners of homosexual employees because
homosexual marriage is not a status
available to its employees, Irizarry
replies that the argument depends on the
board’s groundless decision to provide
benefits to spouses, rather than domestic
partners, of its employees. She says that
all the board has to do to purge the
constitutional violation is to condition
all nonemployee fringe benefits on
satisfaction of its domestic-partnership
conditions other than that the domestic
partner be of the same sex as the
employee; and then the "discrimination"
in favor of heterosexuals that the
extension of spousal benefits to
homosexual domestic partners was intended
to erase will be eliminated without
discrimination against heterosexual
domestic partners. She points to
Chicago’s Human Rights Ordinance, which
forbids discrimination on the basis of
marital status. But the purpose, at least
the primary purpose, of such a
prohibition is surely not to
dethronemarriage; it is to prevent
discrimination against married women, who
employers might think have divided
loyalties. Such laws are pro-marriage,
not anti- as the plaintiff suggests.
All other considerations to one side,
the board reaps cost savings by basing
dependent benefits on marital status--
savings distinct from those discussed
earlier that depend simply on the much
smaller number of homosexuals than
heterosexuals likely to seek or qualify
for domestic-partner benefits. It is
easier to determine whether the claimant
is married to an employee than to
determine whether the claimant satisfies
the multiple criteria for domestic
partnership. Earlier we took for granted
that cost is an admissible consideration
in evaluating the rationality of a
classification; here we add that the
cases so hold. Bankers Life & Casualty
Co. v. Crenshaw, 486 U.S. 71, 83-84
(1988); LaGuerre v. Reno, 164 F.3d 1035,
1041 (7th Cir. 1998); DeSousa v. Reno,
190 F.3d 175, 185 (3d Cir. 1999); Silver
v. Baggiano, 804 F.2d 1211, 1218-19 (11th
Cir. 1986). And we do not understand the
plaintiff to be arguing that the board of
education must have anything more than a
rational basis for its action in order to
defeat the plaintiff’s equal protection
claim. Only when the plaintiff in an
equal protection case is complaining of a
form of discrimination that is suspect
because historically it was irrational or
invidious is there a heavier burden of
justifying a difference in treatment than
merely showing that it is rational. E.g.,
Kimel v. Florida Bd. of Regents, 528 U.S.
62, 83-84 (2000); Milner v. Apfel, 148
F.3d 812, 815-16 (7th Cir. 1998); Miller
v. United States, 73 F.3d 878, 881-82
(9th Cir. 1995); Disabled American
Veterans v. Dept. of Veterans Affairs,
962 F.2d 136, 141-42 (2d Cir. 1992).
Heterosexuals cohabiting outside of
marriage are not such a class. There is a
history of disapproval of (nonmarital)
cohabitation, and some states still
criminalize it. See, e.g., Ariz. Rev.
Stat. Ann. sec. 13-1409; Mich. Comp. Laws
Ann. sec. 750.355; N.D. Cent. Code sec.
12.1-20-10--as indeed Illinois did until
1990. United States v. Nichols, 937 F.2d
1257, 1263 (7th Cir. 1991). But the
disapproval is not necessarily irrational
or invidious, Doe v. Duling, 782 F.2d
1202, 1207 (4th Cir. 1986), given the
benefits of marriage discussed earlier.
It was rational for the board to refuse
to extend domestic-partnership benefits
to persons who can if they wish marry and
by doing so spare the board from having
to make a factual inquiry into the nature
of their relationship.
The least rational feature of the
board’s policy, though not emphasized by
the plaintiff, is that although-domestic-
partner benefits are confined to persons
of the same sex, the partners need not be
homosexual. They could be roommates who
have lived together for a year and own
some property jointly and for want of
relatives are each other’s "sole domestic
partner," and if so they would be
entitled to domestic-partner benefits
under the board of education’s policy. To
distinguish between roommates of the same
and of different sexes, as the policy
implicitly does, cannot be justified on
the ground that the latter but not the
former could marry each other!
So the policy does not make a very close
fit between end and means. But it doesn’t
have to, provided there is a rational
basis for the loose fit. See, e.g., Kimel
v. Florida Bd. of Regents, supra, 528
U.S. 62 at 83-84; Vance v. Bradley, 440
U.S. 93, 108-109 (1979); Zehner v. Trigg,
133 F.3d 459, 463 (7th Cir. 1997);
Wedderburn v. INS, 215 F.3d 795, 800 (7th
Cir. 2000). This follows from our earlier
point that cost is a rational basis for
treating people differently. Economy is
one of the principal reasons for using
rules rather than standards to govern
conduct. Rules single out one or a few
facts from the welter of possibly
relevant considerations and make that one
or those few facts legally determinative,
thus dispensing with inquiry into the
other considerations. A standard that
takes account of all relevant
considerations will produce fewer
arbitrary differences in outcome, but at
a cost in uncertainty, administrative
burden, and sometimes even--as here--in
invading people’s privacy. It is easy to
see why the board of education does not
want to put applicants to the proof of
their sexual preference. That would be
resented. The price of avoiding an
inquiry that would be costly because it
would be obnoxious is that a few
roommates may end up with windfall
benefits. We cannot say that the board is
being irrational in deciding to pay that
price rather than snoop into people’s sex
lives. Cf. Califano v. Jobst, supra, 434
U.S. at 53-54.
If the result is, as it may be, that
none of the nine employees who have opted
for domestic-partner benefits is
homosexual (or at least that none is
willing to acknowledge his homosexuality
publicly, for that is not required by the
board’s policy though it would seem
implicit in the board’s desire to attract
homosexuals who have "a healthy
acceptance of their own sexuality"), this
would lend a note of irony to the board’s
policy and would reinforce our earlier
conjecture that the purpose is to make a
statement rather than to confer actual
monetary benefits. But "making a
statement" is a common purpose of
legislation and does not condemn it as
irrational.
The plaintiff has a second ground of
appeal. Interpreting the city ordinance
to which we referred earlier as
forbidding discrimination on the basis of
marital status, she argues that by
depriving her of the right created by
those laws the board has deprived her of
"property" without due process of law. It
is true that a legal claim can be
"property" within the meaning of the due
process clause Logan v. Zimmerman Brush
Co., 455 U.S. 422, 428-31 (1982); Mullane
v. Central Hanover Bank & Trust Co., 339
U.S. 306, 311, 13 (1950); Shvartsman v.
Apfel, 138 F.3d 1196, 1199 (7th Cir.
1998), but it is not true that a
violation of state or local law (or for
that matter of federal law) as such is a
deprivation of property. Daniels v.
Williams, 474 U.S. 327, 331 (1986); Paul
v. Davis, 424 U.S. 693, 700-01 (1976).
How could it be? It is the violation that
gives rise to the legal claim! Had the
board not discriminated against the
plaintiff on the basis of her
(non)marital status, she would not have a
claim that she could press (that she is
pressing) before the Chicago Commission
on Human Relations. We suspect that she
has misinterpreted the ordinance as
forbidding any preference for marital
status. But that is an issue for the
Commission to resolve in the first
instance, and it is irrelevant to whether
she has alleged a deprivation of
constitutional property.
Affirmed.