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.
I might be misunderstanding what you’re saying, but I think the resolution to your quandry is that Walker is arguing two different grounds:
1.) That the ban is a violation of the Equal Protection Clause
2.) That it violates due process
The “suspect class” distinction only applies for the Equal Protection part. A lot of times in law, you’ll see a lawyer or a judge arguing two different things that don’t intersect, but that’s legal because each claim is read as being separate and distinct from the other claims argued, implying nothing about the other. If you’re familiar with the process of demurrer in civil cases, it’s a preliminary form of response to a legal complaint that assumes every factual claim that the complainant made is true, and challenges the legal justification and permissibility for the claim.
It’s like if you were defending someone at trial and you argued “My client X didn’t do this, but even if they did you’d still have to find him not guilty because what he presumably did is legal in context (self-defense or something). Based on what I’ve read of the decision, that’s what’s happening here. Walker seems to have done a very good job of making this thing as bulletproof as he could.Report
@Stephen,
Exactly.Report
Jason:
What , in your view, is the best argument the anti-gay side can use on appeal? Isn’t it true that Justice Thomas, for example, has upheld laws he thought were “silly” (see his dissent in Lawrence v. Texas) and does not really agree with the “rational basis” test? So the plaintiffs could convince him the law was idiotic but he will probably not strike it down.
It seems to me that you can also argue “equal protection” does not apply to gays under an “original understanding” of the 14th Amendment. Heck, the court ruled that forced racial segregation was fine until Brown.
Note: I support gay marriage.Report
@Mark F.,
Actually, you couldn’t say that forced racial segregation was okay until Brown, because the legislative history of the Fourteenth Amendment makes it clear that government-run or government-sponsored discrimination was certainly something the framers of that amendment thought they were eliminating.
I believe that equal protection ought to mean that there are no group distinctions made by governments without sufficient justification. Levels of justification will vary according to the groups in question and the types of distinctions being made. It’s a complicated subject, to say the least.Report
An interesting aspect of California law pre-Walker was that a same-sex couple could “be” married: they just couldn’t “get” married. I suspect this will be a means for superior courts upholding Walker, but limiting the holding very narrowly to California.Report
@Jamie O’Neill, I heard an NYU professor say exactly the same thing last night on Charlie Rose.Report
Jason – correct me if I’m wrong, but sexual orientation is not a protected class at the federal level, is it?Report
@Mike at The Big Stick,
Not yet, and it may never need to be.Report
@Mike at The Big Stick,
Before Perry, it had never been declared to be a suspect class, but it was never definitively declared that it couldn’t be, either. Perry argues that it is, but the weight this argument will get on appeal is anyone’s guess. One doesn’t need to sustain the claim of suspect class status to sustain the result.Report
@Mike at The Big Stick, I don’t follow how marriage becomes a civil right in lieu of protected class status. For example, my understanding is that we can legally deny marriage to 12 year-olds because protected class status for age does not start until one hits 40. Basically arbitrary bariers are fine as long as they exist for all protected classes. So if the arbitrary barier in this case is the gender of the participants and so long as no protected class can enter SS unions…isn’t the law being satusfied?Report