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Which test to use

Two items to review:
Complaint: http://www.equalrightsfoundation.org/images/2009-05-22_Filed_Complaint.pdf

Motion for Preliminary Injunction: http://www.equalrightsfoundation.org/images/Preliminary_Injunction_5-27.pdf

They filed the complaint on May 22 and the motion for preliminary injucntion yesterday. It looks like the hearing on the injunction will be on July 2. These documents were submitted by David Boies and Ted Olson. The last time those two names were put together was in 2000, when Boies represented Al Gore and Olson represented George Bush in a case that ultimately went to the Supreme Court.

This time though they're working together, and they're trying to constitutionally strike down the amdendmet to the California Constitution that was the result of Proposition 8.

Should they prevail in the ninth circuit, then similar laws in Arizona, Nevada, Idaho, Montana, Oregon, Washington, Alaska, Hawaii and Guam would be struck down. And if they prevail in the ninth circuit, I seriously, seriously doubt that the Supreme Court wouldn't take up the case, in part because there would be a dispute on the issue in the circuit courts.

This isn't, of course, the first time this argument has been made. The 8th circuit upheld Nebraska's constitutional amendment a few years ago, reviewing the Equal Protection claims under a rational basis test rather than a strict scrutiny test.

As of right now, it's unclear what sort of classification gay people fall into from a US Constitutional Equal Protection basis. So someone says there's a law that discriminates against all people who are X, and the Constitution says that everyone is afforded Equal Protection. In order to figure out whether the law violates the constitution, the courts have devised a sort of classification system. Some classes of people, for example criminals, get legitimately discriminated against all the time. No one cares. Others, for example black people, should never be discriminated against based on their status of being black. The question of the day is, now, where do the gay people fit on this spectrum.

I think it's pretty clear that they're not afforded the strict scrutiny protections of so called "suspect classification."* Strict scrutiny means that the courts will look very carefully at the discriminatory law and in order for it to pass muster, there must be a compelling state interest for the discriminatory practice. The next (traditional) classification is so called "quasi-suspect classification" which is afforded an intermediate scrutiny.** If there's a fact based, biological reason for upholding the law (usually something like "women can't lift 100 pounds regularly"), then the law usually will stand intermediate scrutiny. If it's based on some stupid sexual stereotype (which they usually are), then it will fail. All other sorts of classes that are prone for discrimination fall in the rational basis analysis. Most of the laws scrutinized under a rational basis test pass muster as the state just needs to come up with a good reason for having the law. Until recently, everyone agreed that gay people fell in this last category.

Ok, so that's Equal Protection. Then there's Due Process. Where Equal Protection has to do with everyone being treated the same, Due Process has to do with individual rights and the government's ability to mess around with those rights. Again, the courts will look at the type of right that's being infringed upon to determine if the state has any business getting involved. So called fundamental rights get the strict scrutiny treatment that we talked about above. Everything else gets the rational basis sort of treatment. Marriage is a fundamental right, as determined in Loving v. Virginia, so laws having to do with marriage generally should be given the strict scrutiny treatment. The right to parking your car on a public street without paying the meter will get a rational basis scrutiny, and you're out the tow fee and ticket. There hasn't been, generally, a middle sort of ground for Due Process grounds, BUT every now and then the court will find a new fundamental right. Lawrence v. Texas though, sort of changed that.

Until Lawrence, most homosexual discrimination would fall in the rational basis analysis. So long as the government can show that their policy or law has a rational basis for existing, it's allowed to continue. But Lawrence sort of fucked around with the analysis and didn't really specify which classification it was using. This case was more of a due process case than it was an equal protection case. Kennedy explained his rationale:
Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.
I think ultimately, examination of laws that look at discrimination against gays and lesbians will start to fall under the quasi-suspect classification that discriminations based on sex is examined under. It seems appropriate, too, as I tend to think that homosexual discrimination is simply an extension of sexual discrimination.

So where does that leave us with these marriage cases? I think that ultimately, because of the fundamental right that's being discussed, a strict scrutiny analysis is going to be used in some way, and I'm sort of surprised that the 8th Circuit didn't acknowledge the fundamental right in question. I wouldn't be surprised in the slightest if the 9th circuit finds a fundamental right AND uses an intermediate scrutiny equal protection standard to discuss the discrimination against gay people. If that happens, then I think that we're up for the Supreme Court, which will be quite a battle, because it'll end up with a nationwide impact. The constitutional amendment in Texas would be as at issue as the one in California, should the SCOTUS get involved.

And, I dunno.

I think, though, that O'Connor being replaced by Alito changes the dynamic of the court pretty dramatically. She was in the majority of Lawrence. I don't really see him as a substantive due process kind of guy. On the other hand, there's still Kennedy, Stephens, Bryer, Ginsberg and Souter/Sotomayor/whoever ends up in that seat. OTOH, I never thought that the Solicitor General under Bush would be a substantive due process kind of guy, either, so maybe Roberts or Alito would switch over.

*The test: a "discrete" or "insular" minority who
possess an immutable trait (race or alienage),
share a history of discrimination, and
are powerless to protect themselves via the political process.

This mainly means race, religion or national origin.

**Generally sex.


( 6 comments — Say something )
May. 28th, 2009 06:30 pm (UTC)
Thanks for reminding me of the difference between rational basis and strict scrutiny .... that's a HUGE difference, and I agree, I don't see how they can use the former rather than the latter. States have no more interest in preventing gays from marrying than interracial couples.
May. 28th, 2009 06:59 pm (UTC)
The only reason why I could see the SCOTUS not reviewing the outcome is because marriage has traditionally be a state and not a federal issue. Based upon the rulings to date in CA, they should have a good shot of success. But you never know.
May. 29th, 2009 02:05 am (UTC)
But it's specifically mentioned in the constitution that states have to recognize other states marriages. Although, IIRC there was a ruling by the supreme court that if the marriage would be both illegal and offensive in the state, they don't have to recognize it (I think the case was over the radical differences in age of consent laws).

May. 29th, 2009 03:55 am (UTC)
In that case it could still go either way. Oy.

I'm for age of consent laws, but some states have freaky ones.
(Deleted comment)
May. 29th, 2009 03:20 am (UTC)
Ted Olson? Honestly? Far out.
( 6 comments — Say something )