Last Perry Post for Now, I Promise
The level of judicial scrutiny that gays and lesbians should get is both left undetermined in Perry and also is stated in a slightly confusing way. This post is my attempt to iron it out, both for the benefit of the commenters and myself.
Judge Walker claimed strict scrutiny would be appropriate for laws that treat gays and lesbians differentially, but he also wrote that he wasn’t currently applying strict scrutiny on the basis of suspect class status (p 121).
Instead, he noted that even under rational basis review, Prop. 8’s differential treatment of gays and lesbians as a class did not hold up. Some classes — non-suspect ones — get only rational basis review when they are treated unequally. Supposing gays and lesbians to be a non-suspect class, Walker says, the case would have the same result. See p 118 at 14, citing Romer v. Evans — courts must “insist on knowing the relation between the classification adopted and the object to be attained.” Pages 123-132 support the claim that this standard wasn’t met.
Any law giving differential treatment to a “suspect class” is by definition one worthy of strict scrutiny. But another type of law also gets strict scrutiny. These are laws that abridge a fundamental right — for any class at all. That’s where strict scrutiny came into play here — not on the basis of suspect class analysis, but on the basis of fundamental rights analysis. Marriage is a fundamental right; it has been abridged; Walker applied strict scrutiny. There wasn’t much else he could do, because the precedents on the subject of marriage as a fundamental right are unequivocal (p 116).
Some of course will say that the right to same-sex marriage isn’t fundamental, and that the plaintiffs were asking not for the fundamental right to marriage, but for the new right to same-sex marriage. Walker answers:
Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.
This of course leaves abundant ground for further argument. The soundness of that argument will vary.
A conservative might say that while what plaintiffs asked for may be marriage, what they get is not marriage. My sense though is that this begs the question — to answer in this way merely assumes beforehand that two men or two women cannot have a marriage together. And is the very thing the court was asked to determine.