Gay Marriage and Equal Protection

All legislation generally creates classifications that work to the advantage or the disadvantage of certain people. For example, 20-year olds can drive; 12-year-olds cannot. You can legally drink at 21, but not at 16. An indigent single parent is entitled to government financial aid, but millionaires are not. And so on. The Equal Protection Clause does not mean that government must treat everyone equally, only those “similarly circumstanced.”

The highest level is strict scrutiny and involves suspect classifications, or fundamental rights. A fundamental right is one that is deemed crucial or essential, not something that is preferred. Conversely, a suspect classification usually involves race, ethnic origin or alienage. Note that cases of alleged sex discrimination are NOT placed in this category. To be placed in a suspect class, the group must have experienced a history of discrimination and be defined as a distinct group. Furthermore, they should be a minority or politically powerless. Finally, they must have characteristics which have little relationship to the government’s policy aims or the ability of the group to contribute to society. Given this definition and these parameters, it is obvious that blacks and other ethnic minorities can be suspect classes. The Supreme Court has never elevated homosexuals to being a suspect class.
In effect, the LGBT community and, by inference, the Obama Administration believes they should be placed in this category.

The other line of argument of the LGBT community involves the idea of fundamental rights. These are liberties so implicit that if they were sacrificed, neither liberty nor justice would exist. One way to determine whether the right is fundamental is to see whether the right is deeply rooted in our Nation’s history and traditions. Obviously, marriage meets that definition and the Supreme Court has determined that the right to marriage is, in fact, fundamental. Again, the LGBT community and, by inference, the Obama Administration are arguing that since marriage is a fundamental right, any restrictions on marriage should receive strict scrutiny.

A law can survive strict scrutiny if the law addresses a compelling government interest. For “compelling,” it must be necessary and/or crucial, not simply preferred. Second, the law must be narrowly tailored to meet those interests and finally, the government must use the least restrictive means necessary.

If we apply strict scrutiny to the gay marriage issue, then laws against gay marriage would have a difficult time being upheld under the Equal Protection Clause. First, the government would have a difficult time proving that banning gay marriage serves a compelling state interest. In essence, they reflect a legislative preference. What is the “government interest” involved? Obviously, like most laws, they represent a moral statement. In the original Proposition 8 District Court trial, the judge there determined that, based on the evidence presented, the law was predicated upon outdated and prejudicial beliefs about homosexuals. An “ban” is certainly narrowly tailored in that it affects only the homosexual community, but is an outright ban the least restrictive means? And this is the crux of the problem in these cases. Any law restricting marriage, the LGBT community argues, should be subject to strict scrutiny.

Here, they somewhat blur the picture. They are essentially arguing for an expansion of the opinion in Lawrence v. Texas. But, in that decision, the Supreme Court did not find that sexual conduct between consenting adults to be a fundamental right. In fact, in Lawrence, they specifically excluded themselves from any discussion on the gay marriage issue. Also, not all important decisions of the Court establish a fundamental right. In Lawrence, the Supreme Court did not condone homosexual sex. They simply ruled that Texas could not criminalize private consensual sex. The fact that the law involved homosexual acts involving sodomy was merely the vehicle that brought the case to the Supreme Court. If Texas had enacted a law stating that a heterosexual couple cannot kiss during sex under threat of criminal sanctions, the result would have been the same. Furthermore, the Supreme Court in Lawrence v. Texas stated that homosexuals were not a suspect class, or even a semi-suspect class. In short, Lawrence v. Texas was a narrow ruling, not the homosexual equivalent of the Emancipation Proclamation.

The next level is intermediate, or exacting, scrutiny and usually applies to sex-based classifications. Here, the proponent of the “discrimination” must have “exceedingly persuasive justification.” This level of scrutiny also applies to cases of illegitimacy. In Romer v. Evans, which invalidated a Colorado law designed to rescind protections for homosexuals against discrimination, the Court never specified the level of scrutiny applied and instead ruled that because the law was motivated by a bare desire to harm a politically unpopular group, it could not survive under any constitutional test. The result is that the Court and most lower courts have refused or been reluctant to apply heightened scrutiny to any law that may affect homosexuals.

That leaves the final level- rational basis. Here, the law must be rationally related to a legitimate state interest and courts are generally deferential to legislative actions. In short, courts cannot and should not substitute their personal preferences when analyzing the law. In fact, in the aforementioned Romer v. Evans case, the Court stated that a law is presumed valid even if “it seems unwise, works to the disadvantage of a particular group, or if the rationale for it seems tenuous…” This may be one area where the 1st Circuit erred in their opinion- the level of scrutiny applied.

In their brief to the Supreme Court, BLAG and Paul Clement assert that the 1st Circuit created out of legal thin air an entirely new level of scrutiny called “intensified scrutiny.” In short, this level of scrutiny is outcome determinative especially since the 1st Circuit determined that Section 3 of DOMA would survive under the rational basis level of scrutiny. Since they could not elevate it to heightened or strict scrutiny lest they run afoul of Supreme Court jurisprudence, they created this more demanding version of rational basis. In this “new” level of scrutiny, one need merely show that the group affected was/is historically disadvantaged or unpoular (check!) AND that the justification for government action was thin, unsupported or impermissible (here, they ruled that the support was thin and unsupported).

And what is the justification for DOMA? One stated reason is that the traditional definition of marriage codified in Section 3 fosters the relationships optimal for procreation thus ensuring stable generational continuity in the United States. Unless I missed something in biology class, the way humans procreate is through the union of a sperm from the male and an egg from the female. Procreation cannot be achieved through homosexual sexual acts. The second justification is that it encourages the creation of a stable relationship that facilitates the rearing of children. That second justification may be unsupported. There are many same sex couples raising adopted children today and many studies indicate that it has minimal, if any, deleterious effects on child development. However, since it is a relatively new phenomena, longitudinal studies are few and far between. At best, the scientific jury is still out on this question. In the Proposition 8 case at the District Court level, competing theories and studies sort of cancelled themselves out.

In effect, the respondents in the case are asking the Supreme Court to do one of two things- either elevate homosexuals to the level of a suspect class, or declare the right to same sex marriage as fundamental. Given Supreme Court precedent here, either option would be a hard sale unless the Court adopts the new level of scrutiny espoused by the 1st Circuit Court of Appeals. The LGBT community and the Obama Administration are reading too much into Lawrence v. Texas and trying to create a constitutional right where none exists.

But, there is an ace in the hole here. In 1971, a homosexual couple applied for a marriage license in Minnesota and were denied based upon that state’s traditional definition of marriage. In the resulting appeal before the Minnesota Supreme Court- Baker v. Nelson- they ruled against the homosexual couple. They then appealed to the US Supreme Court which denied the case for “want of a substantial federal question.” Although Clement frequently cites the case in his brief to the Court, the “federal question” now is specifically DOMA. That is, DOMA federalized the issue of gay marriage whereas the definition of marriage and laws about who could or could not marry was the traditional province of the states.

The government argues that Baker v. Nelson should not be controlling here since the Court never ruled on the merits of the case in a per curiam decision. However, as Justice Byron White has explained in other areas, a summary reversal or a per curiam decision like Baker v. Nelson ARE necessarily a judgment on the merits. In fact, that “judgment” leads to rejection or reversal of the case. Hence, as Clement argues, this 40 year old precedent is binding upon the lower courts and since there is no federal question, federal courts should be precluded from adjudication UNLESS a fundamental right or a suspect class justification can be used. Conversely, again erroneously, the LGBT community and Obama argue that the more recent Lawrence case should be controlling. Remember, however, that case involved consensual private sex, not a right to gay marriage nor an acceptance of homosexuality.

In effect, the respondents here are asking the Supreme Court to nationally define marriage as between two willing, sane, adult humans regardless of their gender. This would then force the federal government to recognize same sex marriages in states where it is permitted. That would then mean that same sex couples would gain the benefits that opposite-sex couples receive as concerns the federal government. Left undecided, and the issue in the next entry, is whether a state that does not recognize gay marriage must recognize a gay marriage performed in another state that allows it and if they are then entitled to state benefits as a married couple.

The bottom line is that the Supreme Court could re-invoke Baker v. Nelson and reject the case for lack of a substantial federal question. That would leave the definition of marriage up to the individual states where it has been since our founding. Unfortunately, since DOMA federalized a definition of marriage, they will likely take the case and it will revolve around the correct level of scrutiny to be applied. If they accept the 1st Circuit’s new level of scrutiny, then the law cannot survive. If they accept the expansion of Lawrence decision theory, opponents of gay marriage cannot prevail. If they side with the rational basis level of scrutiny, then the opponents of gay marriage will win and Section 3 of DOMA must necessarily stand. Of course, the entire battle will continue as is on a state-by-state basis and opponents of DOMA will have to resort to the legislative process to repeal or amend the law. That is where this debate rightly belongs, not in the courts.