Mr. and Mr. Smith Go to Washington: Gay Marriage and the U.S. Supreme Court - Part Two

Constant Readers,

Yesterday I wrote about the basics of the recent case to take gay marriage to the United States Supreme Court. Today, I’m attempting to tackle the task of explaining how that Supreme Court case claim would work. Honestly CRs, I’ve agonized over how to present this to you in a way that makes sense while not skipping over the points that are important. I hope I’ve done it justice here, but feel free to let me know.

In the area of Constitutional law Ima talk about today, we’re always looking at a state or federal law that affects the rights of people or a group of people.

Sometimes federal courts look at one of those laws, shrug and say “Meh. No Big Deal.” Sometimes they say, “Waaaaait a minute. You better have a DAMN good reason for passing this law - and if you don’t we’re gonna make it disappear.”   

Which laws get put under the microscope? That's the first question. The second question is what happens once they get there.

A NOTE ON SCRUTINY: When the Court looks a governmental entity as says: "You got some 'splaining to do if you want us to uphold this law" -  it is doing what lawyers call "applying strict scrutiny." There are two reasons why a court will apply strict scrutiny.

(1)    Due Process

The 14th Amendment to the U.S. Constitution says, no "State [shall] deprive any person of life, liberty, or property, without due process of law..."

The above provision has been construed to mean that any law that seriously impinges on people's fundamental rights gets the "strict scrutiny" treatment.

Is marriage a fundamental right? According to the Plaintiffs, it is. In their Complaint, they argue that Prop 8 interferes with the right of homosexuals to enter into the same officially-recognized union with the same dignity and respect as afforded heterosexual couples. (Here's the Complaint again: Download Federal Court Complaint.) In the anti-miscegenation case Loving v. Virginia, the Supreme Court held that, "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival..." So there is some support for the right to marry the person of one's choosing.

On the other hand, Defendants are likely to argue that the fundamental right to marriage does not necessarily include the word "marriage" so long as the right to an equivalent union is present.  Alternatively, they could argue that the fundamental right to marriage has always meant the right to heterosexual marriage - as even in the Loving case, the couple was heterosexual. 

Assuming the court finds that there is a fundamental right to marriage, which includes the word "marriage," the court will cross its arms, give the state the stink-eye and say: "Explain yourself" (this is the strict scrutiny part).

The state will give any number of justifications for why the law exists, but "tradition" will be front and center. Whether that's a good enough reason will be for the Court to decide. According to a 2006 study, only one of every three cases survives strict scrutiny.

A quick sidenote: I get a lot of questions about marriage as a fundamental right and what that will mean to all kinds of relationships. Again: even though marriage is a fundamental right, the state can make arguments for limiting marriage - preventing incest, pedophilia, polygamy, etc. which would presumably be good enough to justify laws against those unions. So, just having a fundamental right does not mean a free-for-all. If there are good grounds for restrictions on that right, they'll be upheld. Okay? Enough with the bestiality hypotheticals. Sheesh.

If the court rules that there is not a fundamental right to marriage, which includes the word "marriage," a good justification for the law won't be necessary. In that case, only a "rational reason" is required.

In a prior Supreme Court decision Lawrence v. Texas the court struck down an anti-sodomy law because the state didn't have a rational reason for the law.  In her concurring opinion, former Justice O'Connor wrote that preserving traditional marriage would be a rational reason for preventing gay marriage.

So, let's hope marriage is a fundamental right so the state will have to present more than just a rational reason for preventing gay marriage.

(2) Equal Protection

"Fundamental rights" aside, any law that singles out a suspect class also gets the strict scrutiny treatment.

NOTE: As an initial matter, the term "suspect class" is clumsy. It sounds like the class itself is "suspect." But that's not true. (At least not legally.) It means that laws singling out that class are suspect.

In order to be part of a suspect class, a group has to meet several criteria:

(1) be a minority or politically insular group, which

(2) has suffered a history of purposeful discrimination,

(3) and are associated with a stigma of inferiority and second class citizenship, and

(4) possess an immutable trait that

(5) bears no relationship to a person’s ability to perform or contribute to society.

There's not really much debate as to whether homosexuals meet all the above criteria - except Number 4. This is a debate I've been having with my BF from college since we met. Luckily, resolving the issue of whether homosexuality is a choice is not completely necessary for the application of this factor. Religions are suspect classes even though a person can convert. So Number 4 is better viewed as "a trait so fundamental to a person's identity that it would be unreasonable to require them to change." Or something like that. 

What does the Supreme Court think of all this?

No idea. The Court has never said homosexuals are or are not a suspect class. They keep squirming out of it.

In the two cases that have come the closest, the Lawrence case and Romer v. Evans (striking down a law that prohibited protection from discrimination against gay people) the court didn't even get into whether gay people are a suspect class, they said: since the states can't even give us a crappy little "rational reason" for these laws, there's no need to ask for really good reasons - which would be required by suspect classes and strict scrutiny discussion.

Assuming the court finds that homosexuals are a suspect class the court will cross its arms, give the state the stink-eye and say: "Explain yourself" (this is the strict scrutiny part).

The state will give any number of justifications for why the law exists, but "tradition" will be front and center. Whether that's a good enough reason will be for the Court to decide. 

If the court rules that homosexuals are not a suspect class, a good justification for the law won't be necessary. In that case, only a "rational reason" is required.

 (c) Summing it up

To prevail, the Plaintiffs have to establish that (a) marriage (including the word "marriage") is a fundamental right, and/or (b) homosexuals are a suspect class. (Failure to establish at least one of these means that the bar is really low and states could easily justify the law.)

If they can establish at least one of those bases for strict scrutiny, then the state will have to prove that limiting marriage to opposite-sex couples is justified by a compelling state reason. Will "tradition" be enough? That's up to the judges.

Part Three will include strategy info about using the federal courts.

--Melissa

Comments

[generic]

My google feed lists this post as "Mr. and Mr. Smith Go to Washington: Gay"

Which? Works just as well.

[Paul Hogarth]

I agree the "strict scrutiny" standard is key, because as long as we have a "rational basis" test it doesn't really matter why the state chose to limit marriage to being a man and a woman. Just as long as the Court can dream up a "rational" reason, it's okay.

In New York, the Court upheld a marriage ban because heterosexual couples might accidentally produce kids, so the state has "more of an interest" in letting straight people get married than gay folks -- as marriage is good for the children. It's an insane argument, and it certainly wasn't the reason why the state only has marriage between a man and a woman, but it passed the "rational" basis test.

I'm nervous that the federal court will come up with some other boneheaded idea like that ... Remember, California is the only state (I believe) whose Court has even said homosexuals are a suspect class. That's why for years gay marriage advocates and went to court arguing that denying them marriage rights was "sex discrimination." It was always a stretch, but arguing that point was a strategic decision -- gender is a suspect class, but sexual orientation hasn't really been established yet in most places.

[vansmack]

@Paul: California, Connecticut, Massachusetts and Iowa all treat sexual orientation as a suspect class (sensing a pattern?). Hawaii used to, but the voters allowed the legislature to change that after the Baehr decision.

I've got much more to say, but not enough time right now.

[qwerty]

You can still invoke equal protection if a fundamental right is abrogated.

[vansmack]

Melissa, great job explaining the different rationale/scrutiny levels for DP and EP. I apologize in advance if I'm stealing tomorrow's thunder, But I thought a little historical perspective might help put all of this into context.

Right after Loving v. Virginia (1967) , two guys in Minnesota filed for a marriage license and were denied. Then they sought out a county that would give them a license, but the Minnesota Supreme Court invalidated it. They appealed to the US Supreme Court who dismissed it for lack of a substantial Federal question. Now that's a very important distinction to recognize: they didn't issue a denial of certiorari (often thought of as an agreement with the court's decision), but instead told the US citizens that this is not a Federal Issue, but a state issue. This was interpreted as any way a state decides on the same-sex marriage issue is permissible as long as it does not violate state law. This is still the presiding Supreme Court ruling on same-sex marriage: if your state wants it, we won't stop you. If your state doesn't want it, we won't force you.

So, advocates for gay and lesbian rights sought to raise the ceiling of scrutiny in as many states as they could. As I've mentioned before, the US Supreme Court sets the floor and the States are free to raise the ceiling, and some have done so by including sexual orientation as a protected class.

I'm fast forwarding a little bit, but they found a willing state in Hawaii, which, at the time in 1991, recognized homosexuality as a protected class subject to strict scrutiny (so did CA, MA, IA and CT). A group of advocates filed for marriage licenses, were denied and brought suit that made it all the way to the Hawaii Supreme Court. In 1993, they were granted their request by the Hawaiian Supreme Court. They Hawaiian legislature then passed a statute defining marriage as between a man and a woman, which the court also overturned as it was in violation of the Constitution. Eventually, the voters of Hawaii (stop me if you've heard this before...) passed an amendment allowing the legislature to make a constitutional amendment defining marriage as between a man and a woman (that's how the ballot initiative process works in Hawaii). It was passed and Hawaii now bans same-sex marriage in their constitution.

At the same time, the Feds started acting with the Defense of Marriage Act (many states also reacted and passed similar laws). DOMA has two parts: (1) The Feds will not recognize same sex marriages for Federal Benefits (congratulations, you're not subject to the marriage "penalty" from the IRS, but you also don't get estate tax benefits, immigration rights, Medicare, or a whole slew of other benefits) and (2) they essentially reiterated long standing Lex Loci (full faith and credit limitation) application of recognizing marriages: "valid where celebrated, valid every where else unless contrary to strong public policy" by stating that no state has to recognize same-sex marriages if they don't want to. Notice again, the Federal government has not said that they are banning same sex marriages - it's up to the state to decide. Many cases have been brought to the Supreme Court challenging DOMA on Due Process and Equal Protection grounds, all of which have been denied.

It's not all doom and gloom though. Massachusetts (through the Court), Connecticut (court) and Iowa (legislature) have all worked through the existing legal framework to have same sex marriage and will very likely enjoy that right for eternity (with Maine [legislature] and Vermont [legislature, overriding a Governor's veto!] soon to follow, perhaps in NY (legislature) as well). The successful passage in those states actually undercuts the arguments being made in Federal Court right now: it is possible to have same sex marriage in your state with the right structures put in place. What do you need us Feds for?

The problem before CA is that the existing structure now prohibits gay marriage (there are many differences between CA's structure and the structure in the states that have gay marriage, most notably that CA only requires 50%+1 of the voters to make a constitutional amendment, and that it's binding. In Iowa for example, any amendment would have to pass in two consecutive legislative sessions and then be passed by the voters, the trio of which is very unlikely). The Feds aren't preventing CA from doing anything, the CA voters are, and as the structure currently sits, they are well within their rights to do so under existing CA law.

So I don't see how a Federal Court, especially the make up of this Supreme Court, would take on this matter as it has failed to address one fundamental question the court looks at first: what is the Federal Issue at stake? If you want to have sexual orientation enjoy strict scrutiny, then I don't think the denial of marriage is the strongest argument - I would look elsewhere and come back to the marriage issue later. If you want to make Marriage a "Fundamental Right" then I don't think the gay marriage issue is the one that will see that change. The court has arguably become more conservative since the Lawrence decision, and even back then, none of them had the guts to raise the scrutiny passed rational basis. While I strenuously disagreed with Scalia's opinion in the Lawrence case, he was right about one thing: if my fellow Justices are going to decide this way, they at least should have the guts to decide it properly with the right rationale - the Lawrence case can only be decided by applying strict scrutiny. The court failed to do that, and since then O'Connor was replaced by Alito, otherwise it's the same court and I just don't see that happening.

We've seen all of these arguments that are being made in this Federal Appeal before, so I urge folks not to get their hopes up. I would continue to advise advocates of same sex marriage to fix the structures at the state level state by state. Even with DOMA repealed (at least the first part of it), that does not guarantee same sex marriage to the citizens of every state. Changing state structure will happen long before there are enough votes on the US Supreme Court to see either (1) Strict Scrutiny for sexual orientation at the Federal Level or (2) Marriage seen as a fundamental right.

[DJTennessee]

Even in that frumpy frock, the Statue of Liberty gets more ass than me.

[MikeD]

An interesting possibility that Melissa doesn't mention is that the couples lose at the district court (district courts tend to be very cautious, it isn't their job to make new law, nothing wrong with this) but then win in their appeal at the 9th Circuit Court of Appeals.

The 9th Circuit, like all circuits, decides most cases with three judge panels chosen from their judges (the 9th Circuit has about 30 judges who are selected randomly for panels). The 9th has several judges who are very liberal and probably very likely to rule in favor of same sex marriage on the basis of suspect class. It would not be surprising for the couples to win here, winning an order for California to recognize same sex marriages on federal grounds.

Circuit court rulings then can be appealed to the a panel of all judges for the circuit (the 9th is too big so they randomly select 15 judges of the about 30). This could well affirm the three judge panel.

What next? Complications. The 9th Circuit ruling is binding not just in California, but also several other states and Pacific territories (see http://en.wikipedia.org/wiki/File:US_Court_of_Appeals_and_District_Court_map.svg) so those places would be bound as well. If the US Supreme Court grants cert, things will go as Melissa explains. But if the US Supreme Court denies cert, saying they don't want to hear the case, then the 9th Circuit gets same sex marriage.

[FlexSF]

On "suspect class," it is strange that religious people have been granted this status. It seems that at some point in time, when they were granted this status, the court had really stretched out number 4. As you said, people were not born religious, and they can choose any type of religion, but sexual orientation is different. We all love who we love. Some people are blessed with the ability to love both sexes. But, our sexual orientations are, indeed, immutable, and need "suspect class" status protection more than religion needs it.

Thanks for your time and effort to put these commentaries together.

Be well.