I’m speed-reading through the Prop 8 case decision that just invalidated the ballot measure as violating the 14th Amendment’s Due Process and Equal Protection Clauses. Judge Walker framed his decision not as creating a new right to gay marriage, but rather a vindication of the institution of marriage itself:
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. (p. 114)
And because the Supreme Court has long held that marriage is a fundamental right, and holds that California’s domestic partnership alternative for same-sex couples is no substitute for that fundamental right. Walker then applies strict scrutiny to the plaintiffs’ claims and concludes that Prop 8 violates the Due Process Clause of the 14th Amendment, largely because he held in the findings of facts that the defense’s witnesses were “unreliable and entitled to essentially no weight”:
As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.” Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.
On the Equal Protection front, Walker did not assign a heightened level of scrutiny to gays and lesbians, abiding by the Supreme Court’s refusal to cast equal suspicion on classifications based on sexual orientation as those based on gender or race. But sexual orientation’s rational basis review, which started as a dodge by Justice Kennedy back in Romer v. Evans and continued by Justice O’Connor in her Lawrence v. Texas concurrence, now seems to be as protective as intermediate and strict scrutiny. Rational basis review is supposed to be the most forgiving of acts of discrimination–if one gives even a hypothetical justification in defense of a discriminatory law or practice, that law or practice would always be deemed constitutional. Higher levels of scrutiny were left for “officially” illegitimate identity-based classifications.
But now, the Court, in avoiding the anointment of a new suspect classification for fear of bringing the Clinton/Bush era culture wars into the courtroom, has made its imprimatur irrelevant. If you enact a law or institute a practice that tells a distinct and traditionally maligned group of Americans that they are unequal citizens, then you are irrational. Hypothetical justifications are now inadmissible opinions unworthy of deference. And when this case reaches the Supreme Court, the justices’ reliance on rational basis review will no longer be a peevish dodge or refusal to stratify suffering; it will be an honest reckoning of an America that no longer tolerates intolerance.
Walker provides an example of this leveling of rational basis and heightened scrutiny by collapsing sex and sexual orientation discrimination into each other:
Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.
In doing so, he also pulls out a nugget from Justice Ginsburg’s Christian Legal Society opinion that some seized on several weeks ago as a gay marriage “time bomb” in dicta:
Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian. Lawrence, 539 US at 579; FF 42- 43; see also Christian Legal Society v Martinez, 561 US __, 130 SCt 2971, No 08-1371 Slip Op at 23 (“Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].”) (June 28, 2010) (citing Lawrence, 539 US at 583 (O’Connor, J, concurring)). [my emphasis]
Just for the sake of it, though, Walker does explicitly intimate his belief that even though he is applying rational basis, strict scrutiny is appropriate:
The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.
This note, however, is more evidence that levels of scrutiny collapse when one recognizes animus-driven actions for what they are. More searching review may come in time for less overtly hostile acts and practices, but hopefully by that time, there will be no more suspect classes and only suspect actions.
A jurisprudence of rights as opposed to identities appeals to Justice Kennedy, whether or not American society has caught up to his ideal. Kennedy might not have liked to watch this case at first, but he will most certainly enjoy being in the center of the action once Perry v. Schwarzenegger gets to the Court. As opposed to his more conservative brethren, he sees rights as robust vessels rather than narrow privileges. For this reason, Walker’s Due Process analysis broadly reading the right of marriage will be Kennedy’s reasoning of choice, while we can count on Scalia to see such a robust reading as leading, at the very least, to unions between all consenting adults no matter how many or how closely related.
But for unanimity’s sake, Kennedy, or maybe a justice or four in the liberal bloc, would be well-advised to latch onto Walker’s Equal Protection analysis as well. Under this analysis, Scalia has already accepted gay marriage as an legal inevitability, per his Lawrence concurrence:
This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).
Of couse, gaining Scalia’s vote–even in an exasperated concurrence–is wishful thinking. But at least the Court’s putative majority in Perry v. Schwarzenegger, — U.S. — (2013) will take pleasure in quoting him, as Walker did in his Finding of Fact 21(c) on page 61 of his 136-page opinion:
Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting) (“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct * * * what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”)
Nevertheless, there always does remain the chance that this putative majority may turn to mush in the face of a federal right to same-sex marriage, whether or not Walker’s framing survives the Ninth Circuit’s go-round. And as I wrote after the Massachusetts DOMA cases:
The question now, however, is whether Justice Kennedy, the author of both Romer and Lawrence and the putative fifth vote in a gay marriage case, is willing to extend his sexual orientation discrimination jurisprudence the same way he has expanded his death penalty jurisprudence. In other words, is recognizing a federal constitutional right for same-sex marriage more akin to sheltering juveniles from life without parole for non-homicide crimes, or is it more like deeming the death penalty at all times unconstitutional under the Eighth Amendment? If the former, the Perry plaintiffs can take heart. If the latter, Perry may fail to gain Kennedy’s approval, and Gill and Mass v. HHS will become the preferred precedents in the fight for marriage equality.
We must remember that even though Kennedy likes his rights robust, he has also become the limiting agent to the abortion right he helped preserve in Casey. But there is a difference between the gay rights Kennedy has helped protect in Romer and Lawrence and the abortion rights he has since restricted since Casey: gay marriage, unlike abortion, has no dauntingly actual life-or-death element.
Yet as a matter of political consequence, a critical mass of states has not yet come to pass on gay marriage. With only a handful of states and the District of Columbia recognizing same sex marriage, Perry may be more Roe than Loving, and I imagine that every member of the Court will have that in mind when considering the case.
What is certain is that same-sex marriage is gestating in the states, however few have so far endorsed it. The question, then, will be whether Kennedy sees Walker’s opinion as a new birth of freedom for a class long robbed of its dignity, or as a grisly killing of viable progress throughout the states’ slow and steady political processes.